NY IHO #2012-ih-124: New York City...

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FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 30, 2011

September 23, 2011

October 18, 2011

November 1, 2011

November 28, 2011

Actual Record Closed Date: February 18, 2012

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

District Representative DOE 08/30/11

District Representative DOE 11/23/11 10/18/11 11/01/11 11/28/11

(T) Assistant Principal DOE 11/23/11

(T) Teacher DOE 11/23/11

(T) Therapist DOE 10/18/11

(T) Therapist DOE 10/18/11 Attorney PARENT 08/30/11 11/23/11 10/18/11 11/01/11 11/28/11

Father PARENT 08/30/11 11/23/11

Mother PARENT 08/30/11 11/23/11 10/18/11 11/01/11 11/28/11

(T) Teacher PARENT 11/01/11

(T) Doctor PARENT 11/01/11

(T) SEIT PARENT 11/28/11

(T) PARENT 11/28/11

On June 27, 2011, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Parts 200 and 201 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act, concerning a dispute between the Parents of a (6) year old student attending a public school and the New York City - Department of Education (“DOE”) - Home District: , Service District: , regarding the student’s special education program.

BACKGROUND

The student in this case . (See Parent’s Due Process Complaint - “DPC”) According to the Parents, at an Individualized Education Program (“IEP”) meeting held on March 19, 2010, the Committee on Special Education (“CSE”) terminated the student’s (10) hours of at home (“ Special Education Itinerant Teacher (“SEIT”) services because he was and decreased his and therapy sessions. (Id.) The Parents disagree with the CSE’s recommendations and allege that the student has been denied a “free and appropriate public education (“FAPE”) for the 2010-2011 school year. (Id.) At the instant impartial hearing, the Parents request that the following relief be granted:

(a) an independent , , and evaluation to be conducted by certified providers; and

(b) the CSE to reconvene within (10) days of the completion of those evaluations to consider the same; and

(d) for the student to receive (10) hours per week of home based services; and

(e) for the student to receive all of the services mandated by “Part 200.13” and “Part 200.1(kk) for children with ; and

(f) that a “ ” (“FBA”) be conducted and an appropriate “ ” (“BIP”) be developed and implemented for the student; and

(g) that the student receive “make-up” services for the related services of therapy from September 2010 through March 1, 2011; and

(h) for any other relief that the Impartial Hearing Officer (“IHO”) deems appropriate.

THE DOE’S CASE

The DOE argues that the student is receiving a FAPE in his current placement pursuant to his March 10, 2011 IEP. (T-58-9 & P-KK) The agency called (5) witnesses to testify on its behalf and submitted (12) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness is the Assistant Principal for the school that the student attends. (T-64) She has worked for the DOE for (27) years. (T-67) She has observed the student during class activities, , lunchrooms and teacher observations. (T-67-8) The student attends a 6:1:1 program which is specific for children on the spectrum. (T-68) They follow the alternate grade level curriculum and use “ with ELA” and “Everyday Math.” (Id.)

The witness stated that they use and that the teachers do carry data sheets when they are doing (T-69-70) They assess the students twice a year and do Progress notes and Progress Report Cards. (T-70) They use “ as an assessment for basic language learning and do a “ ”) twice a year. (Id.) The is administered by the classroom teacher. (T-71) The . (T-72) They have a “Lead Teacher” who trains the teachers, a District that also does training, and a consultant that comes from who works with the teachers who are doing . (T-74) Administrators are available and teachers have “district professional development.” (Id.)

The witness stated that the PTA sends out flyers every single month to the parents suggesting workshops and their Guidance Counselors are available on a consistent basis. (T-88) The student’s Parents have attended a meet and greet, the “intake process” and the father attended a “spring show.” (Id.) The student receives ,“ services, “ services and (T-89) From September, 2010 to February 2011, the student was not getting all of his services. (T-90) He was being underserved by one session because they were short in . (Id.) An “ ”) was sent out to the Parents. (T-90-1) She does not believe that the Parents ever received services for the student pursuant to the

RSA. (T-91)

The witness stated that the .” (Id.) The school provides a “ program.” (T-92) They use a “token economy.” (Id.) The student does not have an , but he does have a . (T-93) The student’s teacher created his two days before the IEP was written. (T-98) She has never seen the student . (T-99) Every day the Parents and teachers communicate through a communication book. (Id.) There are also telephone calls between the Parents, teachers, Guidance Counselors and they also have an open door policy. (Id.)

The witness stated that the student goes on every trip that his class plans. (T-100) She has not heard of the . (Id.) “ is “discreet trials” which is done both individually with the student as well as in group activities. The students have individualized schedules. (Id.) It has never been brought to her attention that the student . (T-101) They have an “inclusion program” at another school. (Id.)

The witness stated that she attended the IEP meeting held on March 10, 2011. (T-

102) The Parents wanted more and they modified those services so that the student could communicate with his peers. (T-103) They also added . (T-104) The student made during the 2010/2011 school year. (Id.)

On cross examination, the witness testified that her teachers have training in “Brigances”, “ABLLS”, and “SESIS.” (T-105-6) She observes the student’s entire class in the classroom once or twice a week. (T-108) She usually does not go into the student’s sessions. (Id.) She has interacted with the student on an individual basis maybe once or twice. (T-109) She was the “district representative” at the March 10, 2011 IEP meeting. (Id.) She was not there for the entire meeting. (T-110) The student’s goals, evaluations and assessments were reviewed at the meeting. (Id.) The Parents were concerned about making up the time the student had lost when they did not have an “ .” (T-112) She does not remember how the CSE responded. (Id.) was added to the student’s IEP. (Id.)

The witness stated that she did not know if the student’s classroom teacher is certified in . (T-113) The teacher and the paraprofessionals are trained in . (T-114) is delivered in the classroom every day. (Id.) She does not know for how long and it is not delivered in a group. (T-115) Data is collected every day but she does not know if it is shared with the Parents. (T-116) Progress notes are shared with the Parents four times a year when they send report cards out and at any other time that the Parents come into the building. (Id.) The related service providers maintain daily notes or logs regarding the student’s day-to-day progress. (T-117)

The witness stated that she does not know if the was shared with the Parents. (T-118 & D-5) If a parent expresses a need to be trained, they do so. (T-124) The Parents only requested a BIP two days before the IEP meeting. (T-130) In order for them to conduct an FBA, they need to collect data for at least a month. (Id.) She met the student’s mother at the IEP meeting and at a meet-and-greet at the beginning of the year. (T-133-4) There was no substantive testimony developed during the witness’s re-direct examination and there was no re-cross examination of the witness conducted. (T-134-5)

The DOE’s second witness had the student in her class since September 2010. (T-137) She is a certified special education teacher, “k” through “6”, and has training via an workshop. (T-140) Every week they have a collaborative meeting between team teachers. (Id.) She has attended “ ”, “ ” and Strategies. (T-142)

The witness stated that the student can identify numbers up to “30”, knows all of his letters, can identify colors, shapes and objects and he can write all of his letters. (T-

143) The student enjoys and is . (T-144) They use . (T-145) is done all throughout the day. (Id.) They do one period of . (Id.) It is a highly structured work environment, work on . (Id.) They use “ and .” (T-146) They take the standards and they gear it towards the alternate assessment. (T-148) They also use the

The witness stated that the student needs to work on counting by groups, his requesting skills and shows . (Id.) She generated the student’s progress report. (T-150 & D-10) The student. (T-153) The student is . (T-154) The student’s mother requested but has never asked how to implement it. (T-155) She has asked how the student is doing. (Id.) They do an for students who have a paraprofessional, which the student does not have. (T-156) She does not believe that the student needed an FBA. (Id.)

The witness stated that the did not impede his learning or the learning of other students. (T-157) They are and . (Id.) These behaviors have decreased. (Id.) During the IEP meeting on March 10, 2011, the student’s mother said he needed a placement. (T-158-9) She had no other concerns and did not bring any evaluations to the IEP meeting. (T-159) The student was not receiving his mandated service because there was only one provider at the school. (Id.) An letter was sent to the student’s home. (T-160) was initiated at the March 10, 2011 IEP meeting. (T-161) The student has an individualized schedule. (T-162)

The witness stated that she has never seen the student scratch another student. (T162-3) The student transitions well. (T-163) He does not exhibit any in the school community or on classroom trips. (Id.) The student will have met the goals on his March 10, 2011 IEP when the CSE reconvenes in March 2012. (T-164) is done with the student all throughout the day by all of his teachers. (T-165)

On cross examination, the witness testified that she and the paraprofessionals are informally trained in but they are not certified. (T-168) They use until the student can work independently and follow a schedule. (T-169-70) They use throughout the day, discreet trials for one (20) minute period on a basis, positive behavior scores, visual aids, differentiated lessons and positive reinforcement. (T-170) The student is in class. (T-171-2) He will . (T-172) During the 2010-2011 school year, the student had . (Id.) The student is . (Id.) He can . (T-172-3)

The witness stated that the student has . (Id.) There are ( boys and ( girl in her class, all on a , of whom are . (T-173-4) All of the students are on (T-174) less. (T-174) During the 2010-2011 school year she conducts the and evaluations. (Id.) The results were shared with the Parents. (T-175) Throughout the year she let the student’s mother know how he was progressing in the classroom. (T-176) She sent home a list of the programs they would be working on throughout the year. (Id.)

The witness stated that she has been trained in the administration of the but not the (T-177) She shared the data with the Parents through the . (Id.) The student presents with and help with holding a pencil and writing. (T-179-80) He also has . (T-180 , the student would rather play independently and will respond to greetings but has trouble initiating them. (T-182) The student’s May 27, 2011 indicates that the student has improved by ( during the 2010-2011 school year. (T-183)

The witness stated that she did not train the Parents in how to implement the at home. (T-186) An FBA is taking data over the course of (30) days to see what the behaviors are taken care of. (Id.) An FBA is done for students . (T-187) The student only received one session of from September of 2010 to March of 2011, when they were able to get a second . (T-189-90) The related service providers did not utilize the . (T-190)

The witness stated that she was first made aware of the Parents’ concern regarding at the March 2011 IEP meeting. (T-191) They never asked her personally for an increase in services. (T-191-2) They did express concern over the student’s . (T-192) The Parents never indicated to her that a program was inappropriate for the student. (Id.) was initiated for the student in March of 2011 because he was starting to more and it was another opportunity for him to be in a group setting with his peers and to be able to converse with them. (Id.) There were no assessment reviewed at the meeting and she does not know when the student was last evaluated. (T-194) The Parents agreed with the CSE recommendations. (Id.)

On re-direct testimony, the witness testified that the student participates at the “ ” twice a day. (T-199) The student has art every day. (T-200) The Parents agreed with the initiating of for the student. (T-201-2) She did not informally create an . (T-202) There was no re-cross examination of the witness. (T-203)

The DOE’s third witness has been the student’s since September 2010. (T-226) She thought the student’s delays were greater than his articulation. (T-232) She did an assessment of the student in September of 2011. (Id.) In terms of his , the student made small gains towards his goals, but has not met them yet. (T-233) She believes that he will meet those goals by March. (Id.) The student usually transitions well. (T-234) She uses a lot of visual cues, a lot of and the student is not resistant to therapy. (Id.)

The witness stated that she attended the IEP meeting on March 10, 2011. (T-235) The Parents did not provide any evaluations or reports regarding (Id.) The student’s mother wanted him to move to a less restrictive environment at some point. (T-

236) They think the student benefits from a small class size. (Id.) The change in the student’s was discussed with the . (T-238) She thought that the student should be more with his peers. (Id.) The student’s mother wrote in the communication book that she was in agreement. (T-239) was added because they wanted him to have more of an . (Id.) The school has an . (Id.)

The witness stated that the student has made progress using different word combinations. (T-240) The student is able to request and respond to peers with prompts. (Id.) She and the student’s teacher were both trained in “ ” which is a way to collaborate lessons. (T-240-1) The student needs a lot of guidance to stay on task. (T-241) She uses picture books, art activities, sentence completion, questioning to develop the student’s . (T-242)

On cross examination, the witness testified that her experience with students with special needs was a student teaching externship. (T-245) The student is . (T-245-6) The student is , but they . (T-247-8) When a parent asks for training, they train them. (T-248) She has met the Parents at Parent/Teacher conferences. (T-249) In March of 2011 she completed the “ Scale.” (T-250) In September they did an and she completed a communication profile. (T-251) The student’s last and was done at his past school. (T-253) She did not have a evaluation prior to the IEP meeting, just her own assessments. (T-253-4) She did not develop the goals on the student’s March 19, 2010 IEP, but worked on them throughout the 2010-2011 school year. (T-255) The student mastered his “spatial concepts” goal, but not the other ones. (T-255-6 & P-CC) She did not carry those goals over to the 2011 IEP. (T-257)

The witness stated that the student’s mother agreed with the change to the student’s service in the March 2011 IEP, by writing in the communication book. (T-258-9) The Parents did not express a desire to have an increase in services prior to the IEP meeting. (T-259) When confronted with the following entry in the communication book, “I was thinking of , say 1 x 60 and also SETSS.” (P-GG, pg. 16), the witness stated that at the IEP meeting she told the student’s mother that the CSE is not able to authorize out-of-school sessions. (T-260) They decreased the student’s service based upon classroom observations, her CSE communication profile and conversations with the teacher. (T-261) The Parents did not provide any reports, none were considered at the meeting and she does not know if any were conducted prior to the meeting. (T-262-3)

On re-direct testimony, the witness testified that the Parents never objected to any of the goals on the March 2011 IEP. (T-265) There was no re-cross examination of the witness. (T-266)

The DOE’s fourth witness is the therapist that has been working with the student since September of 2010. (T-267-8) He stated that the student is an independent ambulatory. (T-272) He does not display any and he is fully able to participate in all the school activities. (Id.) He does not of not wanting to go to therapy. (T-273)

The witness stated that he attended the March 10, 2010 IEP meeting. (T-274) There were no evaluations provided by the Parents and no concerns were voiced by them. (Id.) The student’s mother stated that she was worried about his ability to play catch and his . (Id.) He recommended that they decrease the to twice a week. (T-275) The student’s mother agreed with his recommendation. (T-276) There was really no need to pull the student from class three times per week. (Id.) He did keep some daily notes and the student met his goals for last year. (T-277-8) The student met most of the goals on his 2010-2011 IEP, but did not quite meet some of his short-term goals. (T-281) He formulated new goals for the student’s 2011-2012 IEP that included those that he did not meet for the 2010-2011 school year. (T-286) The Parents listed concerns on the checklist that he sends home every year. (T-289)

On cross examination, the witness testified that he does not know if an IEP was provided to him in September of 2010, but it was sometime early last fall. (T-295) He participated in the CSE meeting in March of 2011. (T-300) There were no evaluations conducted by him during the 2010-2011 school year. (Id.) Although he recommended a decrease in services, there was actually no decrease because the student was already receiving (T-301) The progress notes were not shared with the Parents. (T-302) He communicated with the Parents during the 2010-2011 school year. (T-302-4)

The witness stated that the . (T-305) He requires some re-direction but not more so than any other children. (Id.)

There was no substantive testimony developed during the witness’ re-direct examination. (T-309-10) There was no re-cross examination of the witness. (T-310)

The DOE’s fifth and final witness is . (T-312) He uses “ ” and the school based “ ” which is good with the student. (T-315) The student . (T-316) He worked with the student initially and then in February the student was seen by another therapist. (T-317) He did the student’s in November. (T-318) He found that the student needed some work on writing. (T-319) He writes session notes. (Id.)

The witness stated that the student has made some progress and can reproduce letters. (T-322) He can cut with scissors and can button. (T-323) He is delayed but not significantly. (Id.) He attended the March 2011 meeting. (Id.) The student’s mother wanted a and he told her that he thought the frequency that the student was already receiving was appropriate. (T-324) In 2010 he saw the student once a week and the RSA was sent. (T-326) Now he sees the student three times per week. (Id.) He is presently working on . (T-328)

On cross examination, the witness testified that he worked with children on the doing . (T-331) The student is not easily but he is distractible. (T-333) He’s not really during a task. (Id.) He does not know if the student is . (T-334) In general, he pulls the student out for services. (T-335) He only delivered therapy for the 2010-2011 school year, even though the student was mandated for services , because he was the only at the school and his caseload was full. (T-336) He does not know when the Parents were sent an RSA letter. (T-337) From September to January he did not have any contact with the Parents in regards to the student’s progress. (T-341-2)

The witness stated that he conducted the but was not trained in that. (T-

345) He does not believe that any other formal evaluations or assessments of the student in therapy were conducted over the course of the 2010-2011 school year. (T-346) He would only look at the if the teacher said that the Parents had a question or something to discuss. (T-346-7) The two goals on the student’s IEP were achieved. (T347-8 & P-CC) There was no substantive testimony developed during the witness’ redirect examination and there was no re-cross examination of the witness conducted. (T350-1)

THE PARENT’S CASE

The Parents argue that the student’s , including his and services. (T-60-1) This is not a tuition reimbursement case as alleged by the DOE, but instead, a case of a student that aged out of and was getting SEIT services at home which the DOE now states that he cannot receive. (T-62-3)

The Parents called (5) witnesses to testify on their behalf and submitted (42) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parents is as follows:

The Parents’ first witness was the student’s classroom teacher at his pre-school. (T-364) She is a special education teacher for early childhood and a board certified behavior analyst. (T-367) The class is designed for students with disorder. (T-370) They use (Id.) Some of the students were and some were . (Id.) She taught the class with two assistants. (T-371) The student was , . (Id.) The student was receiving either “SEIT” instruction, instruction or some type of special education services at home. (Id.) The student was also receiving , two times per week. (T-372 & P-N)

The witness stated that the student was . (T-375) He (T-376) She is trained and certified in . (T-377-8) The home-based program is necessary for the student so that he could continue to progress the way he was in the classroom. (T-379) She wrote the educational update dated September 8, 2009, wherein she requested services at home for the student. (T-380 & P-K) The student received SEIT services (5) hours per week and two times a week for (30) minutes. (T-383 & P-N)

The witness stated that the student made academic progress in terms of his counting, math skills and . (T-384-5) He did not make progress socially. (Id.) The student required supervision on the stairs due to his , but nothing worse than that. (T-386) For his placement for the 2010-2011 school year, she recommended that the student be placed in a small classroom specifically for students with disorder. (Id.) The student definitely needed and to be continued. (T-387)

The witness stated that she participated in the student’s March 19, 2010 IEP meeting. (T-395) The student’s home based program and program were not continued. (T-396) The CSE and the Parents agreed with her recommendations. (T-399)

On cross examination, the witness testified that she never met the student’s SEIT provider, but “may” have communicated with that person through the student’s communication book. (T-400) She does not believe that she collaborated with the student’s . (T-401) She does not know if the SEIT provider was certified in . (T-

402) She has not seen the student since he left her classroom. (T-403) Neither has she seen any of the student’s evaluations or know his current level of performance. (Id.) She does not know if the student still needs the level of support that she previously recommended. (Id.) She has not communicated with the student’s current school. (Id.)

There was no substantive testimony developed during the witness’ re-direct examination. (T-405-6) On re-cross examination, the witness testified that the student was able to transition to the next activity with . (T-407) They did not have a specific for the student because he did not need one. (T-407)

The Parents’ second witness is the student’s since about 2009. (T-408-9) She deals with disabilities in children, including . (T-411) She gave the student the “ (“ ”), graphomotor skills, visual perceptual skills, assessment and the (“ ”). (T-418) The student was not able to concentrate for a long time, has . (T-419-20) What she saw made her think “ tism. (T-420)

The witness stated that the testing that began on May 1, 2009, she continued on August 5, 2009. (Id. & P-I) The second visit with the student occurred on July 27, 2009, when she conducted the standardized assessment of the student. (T-421 & P-H) The student , (T-422) His was within the . (Id.) On August 5, 2009, they did a . (T-423 & P-I) They thought the diagnosis was in the and significant disorder. (T-423) They recommended that he continue in the center-based program, that he receive at home for at least ten hours a week in an . (T-423-4) They also recommended that be provided at home for at least once a week. (T-424) She believes that these recommendations were included in the student’s 2009-2010 school year. (Id.)

The witness stated that she saw the student again on March 28, 2011. (T-425 & P-LL) The Parents were concerned about and a lack of . (T-425) The student presented as a , . (T-426) The Parents were not pleased with the student’s present class and school. (T-429)

The witness stated that she recommended that the student be placed in an appropriate class in a structured, small classroom placement, which is designed for children with . (T-430) The class should have which is , whether that is or any other . (T-430) The student did not have , which was of concern to her. (T-431) More , but the student needed more interventions. (T-432) She did not observe the child functioning in a community setting. (Id.)

The witness stated that the student (T-434) The student should receive at least (10) hours per week of home-based , but even more would be helpful. (Id.)

The witness stated that she saw the student again on June 16, 2011. (T-435 & P-

NN) She did some early academic skills testing and the student scored ( when the standard score is ( (T-435-6) His (55), just like his and his pre-academics was

(T-436) In word reading the student scored ( and in spelling he scored ( (Id.) The student’s word reading, spelling and pre-academics are in the

The witness stated that on June 20, 2011 she saw the student again and his language testing was very (T-438) The first visit she had with the student in 2011 was on March 28th. (T-439 & P-LL) The student does respond to appropriate behavior modification. (T-439) She recommends parent training. (Id.) When the student had his first visit with her in 2009, his vocabulary score was ( later on it was ( or ( which is not actually regression because a 10-point difference is still within the competence interval. (T-440) Whatever service the student is getting at school or at home, . (T-441) She sees based upon her informal clinical opinion and formal standardized test scores. (Id.)

On cross examination, the witness testified that she is not certified in . (T-443) There is no reason why she did not see the student during the 2010-2011 school year. (T-

446) They do not provide actual services at her center. (T449) She consulted with the student’s school via written school reports. (Id.) The student’s progress reports were not provided to her. (T-451) She is not allowed to do an because she is a doctor, not a (T-455) Instead, they do by our observation and provide strategies to address that. (T-456) In all of the sessions, the student did not engage in any activity. (T-459) She performed different test in 2009 and 2011 because the student has grown up. (T-462) No assessment instrument tests the generalization of skills. (T-

465) She has visited many District classrooms. (T-466) She does not know if the Parents showed her recommendations to the district program. (T-469) There was no substantive testimony developed during the witness’ re-direct examination and no recross examination of the witness was conducted. (T-471-4)

The Parents’ third witness was the student’s therapist and SEIT. (T-481) She is a Board Certified Behavior Analyst. (T-483) She did the student’s . (T-484) From February to August of 2009, she delivered services in the student’s home. (T-486) They did a lot of natural environment training and she used . (T-487) in the classroom is mainly academic, the home requires that the child and make eye contact. (T-490)

The witness stated that they wrote notes in the student’s communication book and that there was some carry over from what his classroom teacher was working on. (T-491-

2) She believed that the student’s home-based program should have been continued because he still needed to learn more communication and to cut down on his frustration levels. (T-494) The student had not yet and his and reciprocal sharing needed to be worked on. (T-495-6) She submitted her report to “ and she believes they send it to the CPSE. (T-497) The student made progress with her home-based program. (T498)

On cross examination, the witness testified that she saw the student his brother. (T-500) The student was easily re-directed but then the behavior was repeated again. (Id.) Some of his did diminish. (Id.) She did not collaborate with the classroom teacher to any great extent. (T-502-3) The student had not mastered a lot of skills, but he had been improving. (T-504) She has not seen the student since 2009 and does not have firsthand knowledge if his have changed or if his skills progressed. (T506-7) There was no re-direct examination of the witness. (T-507)

The Parents’ fourth witness was assigned the student’s “ case.” (T508-9) She first met the student when she did an observation of him on January 22, 2010. (T-514 & P-W) The student had limited , , . (T-517) She evaluated the student on January 29, 2010. (T-518) The school provided her with . (T-520) She also reviewed related service provider reports. (Id.)

The witness stated that she participated in the student’s CSE meeting during the 2009-2010 school year. (T-520 & P-CC) She was the school and district Representative. (T-521) The student’s did not participate. (Id.) The therapy report stated that the student would benefit from three times a week on an individual basis along with . (T-522-3 & P-V) Nevertheless, the home-based program was not continued. (T-524) The also recommended a continuance of services also. (T-525 & P-R) However, the Parent agreed with the decrease in services. (T-526)

The witness stated that at the meeting the was discontinued for the 2010-2011 school year because the recommended program was a specialized program that would address the needs in the classroom. (T-527) She does not remember receiving any reports from the , or the Parents expressing any interest in continuing then home-based program. (Id.) Her supervisor indicated that the recommended program would be the most appropriate program for a student who is . (T-528) The IEP indicates that the student’s . (T-529 & P-CC) A was not developed for the student and an was not conducted. (T-529-30) An observation was conducted. (T-530) The Parents agreed with the overall program recommendation. (T-531)

On cross examination, the witness testified that the student’s teacher recommended that he be placed in a small structured classroom specific for children with , but she did not specify that it should be an classroom. (T-532) There was no redirect examination of the witness. (T-534)

The Parents’ fifth and final witness is the student’s mother. (T-535) She stated that the student was . (T-536) The student is The witness stated that the student exhibits . (T-541-2) The Committee on PreSchool Special Education (“CPSE”) initiated the home-based program because it was recommended by the doctor. (T-544) The home-based program worked for the student. (T-545)

The witness stated that she was told that home-based services . (T-549) She does not know why the student’s . (T-550) The did not agree. (Id.) They accepted because it was so hard to get all of the services “so the rest were not discussed.” (Id.) “SETSS” was not mentioned. (T-551) She agreed with the District recommendation for the student. (Id.) A was conducted that said the student’s services should be continued because he would benefit from it. (T-552)

The witness stated that in January she received an RSA for the the student was missing. (T-557) She found a provider who told her that the RSA was for only one session. (T-558) Then the office that sends out the RSA told her that there was already an agency assigned to the school for the service. (Id.) That was at the end of February of 2011. (T-559) From March through the summer of 2011, the student received his full mandate of services. (T-560)

The witness stated that she did not agree with the recommendation of for the student, because she figured it would be better for him to have more because of his . (T-563) She asked about SETSS for the student. (T-565) The student had regressed due to the lack of services last year. (T-566-7) She did not agree with the CSE recommendations because the student needs more is not appropriate for him. (T-570)

The witness stated that she communicated with the related service providers and the student’s teacher through the communication book. (T-570-2) She did not receive progress reports, only report cards. (T-573) She did not attend parent workshops because they were usually on a Wednesday at 6:00 PM and did not coincide with her schedule. (T-575) The teacher told her that the student in the classroom and does not as much as she says he does. (T-576) During the IEP meeting they had a in place, but she was never taught how to carry it over at home. (T-577) She does not know if an was conducted. (T-578) She was told that the was going well. (T-579) The student’s class uses discrete trials. (T-582) The witness stated that she did not share the doctor’s recommendations with the CSE. (T-583-4) She did not know that she could give evaluations from other sources. (Id.) She has never seen an . (T-584)

On cross examination, the witness testified that she does not know for a fact that the student’s . (T-588) It could have been due to the that he received. (Id.) The student can be . (T-588-9) When he was receiving at home, the teacher worked with her directly. (T-589) She did not agree with because she thought that it was for . (T-

594) She really does not know what is. (T-596) The student’s teacher has shared school work samples and projects that the student has worked on with her. (T596-7) She believes that the student has made some gains in his current program. (T599)

On re-direct examination, the witness testified that she was referring to the student’s home-based services and the increase in his , when she attributed his progress to an increase in school services. (T-603) She does not think the student has mastered any of his goals during the 2010-2011 school year. (T-606) There was no re-cross examination of the student. (T-607)

FINDINGS OF FACTS & DECISION

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 (2005)) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2nd Cir. 2005))

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 (2nd Cir. 2000)) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 (1982)) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)(1))

The parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370, SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (SRO, No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the parents' request. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-

102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-

049).

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA. (Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The Parents herein challenge the student’s IEP dated March 19, 2010 and allege that the student was denied a FAPE for the 2010-2011 school year. (DPC & P-CC) The DOE argues that the student is receiving a FAPE pursuant to his March 10, 2011 IEP. (T-58-9 & P-KK) The agency called (5) witness to testify, but only one of them said he had attended the March 10, 2010 IEP meeting. (T-274, 102, 158-9, 235) There is no evidence in the record of what if any evaluations and/or assessment were considered by the CSE at the March 19, 2010 IEP meeting. The Therapist, testifying for the DOE, stated that there were no evaluations provided by the Parents and also added that they did not voice any concerns. (T-274) He also states that there were no evaluations conducted by him during the 2010-2011 school year. (T-300)

Under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007). The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No.: 08-016)

The fact that the DOE changed the student's IEP one year later is not proof that the March 19, 2010 IEP was appropriate. The law is clear that the IEP should be judged as a "snapshot" of the student at the time of the CSE meeting. (See SRO No. 03-011, citing Roland M. v. The Concord School Committee, 910 F.2d. 983 at 922 [1st Cir. 1990]) Here, there is ample evidence in the record concerning the student’s performance levels during the 2011-2012 school year, but nothing to support the CSE’s recommendations on the March 19, 2010 IEP.

The student’s classroom teacher testified for the Parents and stated that she attended the March 19, 2010 IEP, but has never seen his evaluations of knows his current level of performance. (T-395 & 403) The behavior also testifying for the Parents, conducted numerous test of the student as early as May 1, 2009 and as late as March 28, 2011. (T-420-5, P-I & P-L) However, the student’s mother testified that she did not provide those test results to the CSE because she did not know that she could give evaluations from other sources. (T-583-4) She has never seen the student’s “ or evaluations. (T-584) The student’s therapist did not conduct the until November, long after the March 19, 2010 IEP meeting. (T-318) He does not believe that any other formal evaluations or assessments of the student in therapy, were conducted over the course of the 2010-2011 school year. (T-346) The record does not support a finding that the student’s March 19, 2010 IEP was appropriate, or that the student was offered a FAPE for the 2010-2011 school.

I turn to the question of whether the student’s receipt of (10) hours of home services are necessary and appropriate. The student’s classroom teacher is board certified in and testified that the student’s home-based program is necessary for the student so that he could continue to progress the way he was progressing in the classroom. (T-367 & 379) She stated that the student definitely needed and to be continued. (T-387)

The student’s recommended that he continue in the center-based program and that he receive behavior modification at home for at least (10) hours a week in an intensive and consistent manner, after conducting a on August 5, 2009. (T-423-4 & P-I) She also recommended at home at least once per week. (T-424) After the student’s home services were removed, she saw the student again on March 28, 2011 and found that he had not made much progress. (T-426) She sees no improvement in the student based upon her informal clinical opinion and formal standardized test scores. (T-441) She also believes that more than (10) hours per week of home-based would be helpful to the student. (T-434)

The student’s home-based “SEIT” and therapist also board certified and testified for the Parents. (T-481-3) She believes that the student’s home-based program should have been continued because he still needed to learn more communication and cut down on his frustration levels. (T-494) The Parents’ fourth witness, who was assigned the student’s “ case”, did an observation of him on January 22, 2010. (T-508-9, 514 & P-W) She found that the student had limited , one to two word utterances, behaviors, (T-517) She also evaluated the student on January 29, 2010 and received extensive evaluations from 2008 and the three-part

Assessment from August 2009 from the school, as well as related service provider reports. (T-518, 520) There is no indication in the record that these reports were reviewed at the CSE meeting held on March 19, 2010.

She participated in the student’s CSE meeting during the 2009-2010 school year as the school and district representative. (T-520-1 & P-CC) She stated that the therapy report they reviewed stated the student would benefit from continued and and services. (T-522-3 & P-V) At the meeting, the home-based program was discontinued for the 2010-2011 school year because the recommended program was a specialized program that would address the needs in the classroom. (T-527) She does not remember receiving any reports from the home-based provider. (Id.)

Finally, the student’s mother testified that he still . (T-540) She testified that the home-based program was recommended by the student’s doctor and that it has worked for the student. (T-544-5) She stated that she did not know why the student’s and services were decreased and indicated that the DOE terminated the student’s home-based services as a part of a blanket policy to end those services at age (T-549-50) For all of the reasons stated above, I find that continuation of the student’s home-based services is appropriate.

There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. Although she did not provide the CSE with the results of the behavior testing, she testified that she did not know that she could give the CSE evaluations form other sources. (T-583-4) There is nothing in the record that contravenes her testimony. Therefore, I find that equitable considerations do not bar an award of home-based services to the Parent.

The Parents also requested “make-up” services for the related services of therapy from September 2010-through March 1, 2011. (DPC) Although the record does evidence that the student did not receive all of his mandated service (T-159-60 & 189-90), there is no indication that he suffered any regress as a result thereof. Accordingly, I decline to award the Parents “make-up” services in this case. (See Wenger v. Canastota Cent. Sch. Dist., 979 F.Supp. 147, aff’d 181 F.3rd 84 (2nd Cir. 2000), denial of compensatory education where denial of FAPE did not result in regression)

NOW therefore, it is hereby

ORDERED that the student shall receive (10) hours of per week, inclusive of Parent training, program development and meetings with department heads, the costs of which shall be paid by the DOE for the remainder of the 2011-2012 school year; and it is further

ORDERED that an will be conducted by certified providers the cost of which shall be paid by the DOE; and it is further

ORDERED that the student shall receive all of the services mandated by “Part 200.13” and “Part 200.1(kk) for for the remainder of the 2011-2012 school year; and it is further

ORDERED that a “ ”) will be conducted and an appropriate “ be developed and implemented for the student for the remainder of the 2011-2012 school year and for consideration in the 2012-2013 school year; and it is further

ORDERED that upon the completion of the aforesaid evaluations, the CSE shall forthwith reconvene to produce a new IEP and make a new appropriate recommendation for the student that considers all of the student’s available evaluations and any related services that he should receive for the remainder of the 2011-2012 school year and for consideration in the 2012-2013 school year. Dated: April 3, 2012

_____________________________

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

1 Communication Log Various DOE 3

2 Parent Workshops and

Meetings 2010-2011 Various DOE 1

3 Report Card Various DOE 4

4 Individual Student

Attendance Report Various DOE 1

5 Assessment 10/10-05/11 DOE 3

Inventory of Early Devl. Various DOE 3

6 09/30/09 DOE 10

7 . Progress Report 09/28/11 DOE 4 8 . Report 09/27/11 DOE 3

9 & 09/11 DOE 4

10 Daily Progress Report 09/20/10 DOE 25 11 . Progress Report 10/06/10 DOE 4 12 Evaluation 10/26/11 DOE 4 A Service

Report 05/01/09 Parent 4

Therapy Rpt 05/18/09 Parent 2

Therapy 05/19/09 Parent 3

. Rpt 05/19/09 Parent 3

E History 05/28/09 Parent 2 F Ed 05/28/09 Parent 2

Update

G Individualized Ed Prog 06/09/09 Parent 18 H Behavior 07/27/09 Parent 3 I Behavior 08/05/09 Parent 3 J Letter from Parent 08/10/09 Parent 1 K Ed 09/08/09 Parent 1

Update

And 09/11/09 Parent 1

M Indep. Agency 09-10 Parent 4

Agreement

N Individual Ed Program 09/18/09 Parent 18 O Ed

Acceptance Letter 09/18/09 Parent 1

P Consent for Reevaluation 11/16/09 Parent 2 Q 12/21/09 Parent 2 R

01/06/10 Parent 3

S Consent for Reevaluation 01/07/10 Parent 1

T History 01/07/10 Parent 2 U Education 01/18/10 Parent 2 V

And 01/18/10 Parent 3

W Interview List 01/22/10 Parent 1 X NYC Dept Eval 01/29/10 Parent 4 Y Individualized Ed. Program 02/04/10 Parent 18 Z Individualized Ed. Program

Updated 02/04/10 Parent 18

AA Annual Goals & Objectives 02/01/10 Parent 10

BB Social History 02/23/10 Parent 4 CC Individualized Ed Prog 03/19/10 Parent 14 DD Eval 04/26/10 Parent 2 EE 05/03/10 Parent 6 FF Sensory Profile Sum & Rpt 06/01/10 Parent 3 GG Excerpt from Notebook 2010-2011 Parent 22 HH Eval 01/08/11 Parent 4 II Eval 01/08/11 Parent 5 JJ Related Ser Indep Author. 02/01/11 Parent 5 KK Individualized Ed Program 03/10/11 Parent 18 LL Revisit 03/28/11 Parent 5 MM Report to Families 06/20/11 Parent 4 NN Revisit 06/24/11 Parent 8 OO Request for Due Process 06/24/11 Parent 8 PP Revisit 06/30/11 Parent 3

New York City Department of Education, Impartial Hearing Decision