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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: July 28, 2011
August 11, 2011
September 26, 2011
October 18, 2011
October 26, 2011
December 19, 2011
December 21, 2011
Record Close Date: January 13, 2012
Hearing Officer: Lana S. Flame, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 8, 2011
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 24, 2011
Attorney, Law Offices of — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 26, 2011
Attorney, Law Offices of — Student
Parents
Parents
Attorney — DOE
School Psychologist, CSE (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 18, 2011
Attorney — Student
Parents
Parents
Attorney — DOE
Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 26, 2011
Attorney — Student
Parents
Parents
Head of School, (via telephone) — Student
ABA Supervisor (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 19, 2011
Attorney — Student
Parents
Parents
(via telephone) — Student
SEDU Teacher LSS (via telephone) — Student
SEDU Teacher (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 21, 2011
Attorney — Student
Parents
Parents
PhD, Child Psychologist (via telephone) — Student
(via telephone) — Student
Attorney at — Student
Attorney — DOE
The parent of . (“ .”) requested an impartial hearing on July 1, 2011, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. Sec. 1415 (f)(1). I was appointed to hear the matter on July 5, 2011. At the parents' request, a hearing was held on July 8, 2011, to address the student's pendency placement. On that date, the parties agreed that the student's pendency placement was pursuant to his Individualized Education Program (“IEP”) dated January 28, 2009 (Tr. 6, Ex. B). The hearing on the merits was held on August 24, September 26, October 18, October 26, December 19, and December 21, 2011. Both parties were represented by attorneys. Lists of the individuals who appeared and the documents entered into evidence are included in this decision. Extensions of the time line
On August 24, 2011, the parties jointly requested an extension of the time lines due to the availability of the witnesses. (Tr. 37-38). It was granted on that date for thirty days and extended to September 26, 2011. (Tr. 38). On September 26, 2011, the parties jointly requested and I granted an extension of the time lines due to the availability of the witnesses, for 30 days to October 26, 2011. (Tr. 124-125). On October 26, 2011, the parents requested an extension of the time line due to the extensive testimony and issues. (Tr. 232). I granted the extension to November 25, 2011. (Tr. 233). The parents requested another extension on November 23, 2011, due to extensive testimony and issues. The extension was granted for thirty days to December 25, 2011. The New York State IHRS automatically adjusted the date to December 27, 2011, because it fell on a weekend. On December 21, 2011 the parents requested an extension of the time line in order to submit post hearing closing statements and legal arguments. The New York City Department of Education (“DOE”) did not object and indicated that it also would be submitting papers. The time line was extended for thirty days to January 26, 2012.
The student, ., is who is diagnosed with . His classification of is not in dispute. . has been ( ), a non-public school approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities, since the 2009-2010 school year. (Tr. 69). The parents agree that he should be placed there for the 2011-2012 school year. They disagree with the recommendation of the DOE to continue without providing for the continuation of home-based Applied Behavioral Analysis (“ ”) program and services as well as after school related services that he has been receiving. The parents maintain that their son needs these services to make the gains he has achieved and that without the additional supports, he would have difficulty keeping up with the grade level expectations of the placement. They assert that he requires the pre and post teaching, along with the generalization of skills, across all environments. (Tr. 58-59). Due Process Complaint
By due process compliant notice dated July 1, 2011, the parents requested an impartial hearing alleging that the DOE failed to offer the student a free appropriate public education (“FAPE”) for the 2011-2012 school year for a variety of procedural and substantive reasons (Ex. A). Among the allegations raised, the parents assert that the May 16, 2011, meeting was improperly composed because no general education teacher or District representative participated, the Committee on Special Education (“CSE”) improperly relied upon “teacher created materials” rather than objective test scores to report the student's present levels, failed to properly consider evaluative information it possessed, and did not accurately reflect his current functioning related to his performance, learning characteristics or needs. Further, the CSE did not treat the student's parents “as equal members of the IEP team', failed to meaningfully include them in the IEP development process, and inappropriately predetermined its recommendations. (Ex. A-3). The parents also asserted that the IEP does not accurately reflect the student's behaviors, inexplicably indicates that his behaviors do not interfere with instruction, yet include a behavioral intervention plan (“ ”) that is flawed and was not based on a previously conducted functional behavioral assessment (“ ”). The parents also contend that the proposed goals are incomplete, inconsistent with his present levels and do not include short term objectives or discernible standards for determining measurement or mastery of the skills. There were no goals created to address in activities of . (Ex. A-4, A-5)
Regarding the specific program recommendation, the parents allege that the DOE failed to recommend services “despite the fact that [ .] engages in inappropriate and self-stimulatory behaviors such as clenching, ” and denied an individualized program of services by refusing to consider extended day services. (Ex. A-4)
As relief, the parents requested funding the student's placement at Learning Spring with transportation, 10 hours per week of services, 1 hour per week of supervision,[1] hour per week of parent training, 2 hours per week of therapy, 2 hours per week of therapy1 , and team meetings. The parents request these services on a twelve month basis. The parents asked for declaratory, compensatory and remedial relief, to the extent that they have incurred costs and expenses attempting to provide their son with an appropriate education. (Ex. A-6). The Department of Education's Position
The New York City Department of Education (“DOE”) claims that it provided the student with a FAPE. It maintains that the IEP for the 2011-2012 school year was developed appropriately and that the recommendation for the student to attend the and receive the related services of and occupational therapy at DOE expense, is appropriate to meet the students needs, i.e., sufficient for him to make educational progress in the least restrictive environment. (Tr. 54-55).
The DOE asserts that the parents' proposed program is inappropriate. It also maintains that the equities favor the DOE. (Tr. 57). The Parents' Position
The parents maintain that the IEP is procedurally and substantively flawed. In addition to the specific allegations set forth above, they assert that , alone, is insufficient to meet their son's needs. While is an appropriate component of C.D.'s education program, he requires the additional services requested to receive meaningful educational benefit or a FAPE. The services requested are appropriate. Additionally the parents maintain that the equities support an award of the requested relief.
The Department of Education's Case
Dr. testified that she is a school psychologist for the Committee on Special Education (CSE) 9. (Tr. 65-66). She testified that she was the CSE point person for Learning Spring for the 2009-2010 school year when the parents unilaterally placed their son there, and in that capacity she became familiar with him. She conducted his CSE meeting for the following school year when the team decided to defer his case to the Central Based Support Team to consider a non public school. (Tr. 70, 184). She also was on the CSE team that met on May 16, 2011, to develop the student's IEP for the 20112012 school year. (Tr. 70). She testified that she sat as the and the district representative. (Tr. 70-71, 154-155). She testified that she forgot to sign in and her name does not appear on the attendance list. (Tr. 71-72, Ex. B-2). Dr. testified that the meeting for . was a “re-application”; “...the main purpose of the meeting is to extend the funding for the following year and update the IEP goals, the annual goals.” (Tr. 225-226).
The additional CSE participants included a DOE social worker, the home-based speech and language therapist, the Itinerant Teacher, (“SEIT”) the head of school, the student's teacher at the time, and the parents. (Tr. 79-80; Ex. B-2). There was no general education teacher present because, Dr. Carty explained, “No general ed program was being considered, at this meeting. It was understood that because of [C.D.'s] deficits, it precludes him participating in any meaningful way, in any kind of general education setting.” (Tr. 80). The CSE addressed this fact as noted on the IEP: “due to his cognitive and academic deficits, he is not able to function in a general education setting.”[2] (see Ex.B-3; Tr. 80).
In preparation for the CSE review, Dr. reviewed documents that she received from the parent including a psycho-educational report (Ex. O), a report (Ex. D), the quarterly progress report from the SEIT (Ex. N), an additional SEIT report (Ex. I) and the speech and language update (Ex. P, Tr. 74-75, 76). On the day of the meeting she also received from the parent and the school, the most recent progress reports from the Learning Spring teacher (Ex. J), the therapist (Ex. K) and occupational therapist (Ex. L) as well as the adaptive physical education report (Ex. M) and a draft of the IEP prepared by and the related services providers (Tr. 75-76, 156). She reviewed these prior to the CSE meeting. (Tr. 76). She first met with the other CSE team members to discuss the reports at the time of the meeting. (Tr. 155). No observation of the student was done for consideration of the 2011-2012 IEP. (Tr. 153).
Dr. testified that in preparation for the CSE meeting, staff prepared the reports and “they also prepare a draft of the IEP, in particular certain sections of the page one, the page three, four, five, six, and in some cases the page nine.” (Tr. 76-77). By page six, Dr. meant a draft of the goals (Tr. 77). She explained that prepares the draft
“because they know the child best. They are the ones that have been working with the child on a day to day basis, in a school/classroom setting. So, they are the ones that are most qualified...to know what the child's academic, social emotional, health and physical development is, what the child's management needs are, and to draft the IEP goals.”
(Tr. 78, see Tr. 176). Dr. testified that the parents were given the documents before the meeting started and had the draft in front of them at the meeting. (Tr. 78-79).
Dr. testified that she took minutes at the meeting, “an informal record of what took place, that in general, and this is the spirit of what we talked about.” (Tr. 82, Ex. 5). Dr. recalled that the ABA SEIT provider, , told the CSE how many hours and how (strategies and content) she works with the student as well as what kind of progress . has made. (Tr. 83). She recalled that the parents, when invited to ask questions or express particular concerns regarding the student's program for the upcoming year, expressed none. (Tr. 83-84). Later in the meeting, she stated that the father talked about how the student likes to be with other people, he is at a loss about how to interact with them and the therapist helped him to interact with his peers on a play date. (Tr. 84). The mother stated that her son had just started using the , “really loved it” and that he comes home afterward, much calmer than he normally would. (Tr. 84). Dr. recalled that the head of school, , “said that the outside services support [ .] for him to do as well as he does at the school.” (Tr. 84). Dr. believed that Ms. meant “that he is doing very well and as well as he is doing, okay, due to the support services.” (Tr. 207-208). She did not indicate that the student would not be able to make progress without the after school services. (Tr. 208). The classroom teacher, , spoke about the student's overall academic and social improvement. She informed the team that informally, the school is using an FM unit with which is helping him focus better, although he still requires a great deal of prompting and redirection due to his short attention span and distractibility. (Tr. 86). The teacher also reported .'s academic levels: decoding was on a late level, reading comprehension was on a late kindergarten level, writing was on a kindergarten level and math was on a beginning first grade level. The teacher additionally reported that the student benefited from the use of manipulatives in math and required “a lot of one to one support” in order to learn new concepts. (Tr. 86-87).
Dr. recalled that , the for home-based services, contributed information about .'s interfering with his skills acquisition and sensory integration needs for sensory input. She noted that . does not have “pretend play” and “how his symbolic play has improved.” (Tr. 88). He recently began to speak about school and classmates. He requried less repetition to follow two-step verbal commands.(Tr. 88-89). They were working on WH questions and temporal concepts. He does better with concrete questions and visual cues. His self-regulation had improved as shown by his asking for a break. (Tr. 89).
drafted the academic levels and management needs page of the IEP. (Ex. B-3). At the meeting she reviewed the information about the student's academic levels, referring to the draft. (Tr. 157-158). Dr. , referring to the CSE meeting minutes, testified about what specifically was discussed related to 's academic skills and management needs. (Tr. 161,166, Ex. 5). No one expressed disagreement with the contents of the page at the meeting. Dr. explained that the team used the teacher reports about the grade levels rather than the results of Dr. 's assessment (Ex. O) because they reflect “what he is capable of doing when he's working with the teacher, with teacher created materials” as compared to the results on the evaluation which reflected lower levels due to the standardized testing conditions. She emphasized that, in this case, the teacher materials were better for determining the student's skill levels. (see Tr. 179-183). In her testimony, Dr. compared specific psychological testing results to the teacher estimates. (Tr. 90-93). No changes were made to Learning Spring's draft of page three of the IEP.[3] (Tr. 167).
The speech and language therapist drafted page four of the IEP regarding .'s “significant ”. The therapist was not present at the meeting. According to Dr. , the present levels drafted on the IEP were talked about by the classroom teacher. (Tr. 167). At the CSE review, no one stated that the information on the page was inaccurate and no changes were made to the draft. (Tr. 94-95, 168).
Dr. thought that the teacher together with the school counselor or psychologist drafted the social and and management needs page. She recalled that it was discussed at the CSE review as reflected in the CSE minutes, and no one expressed that the information was inaccurate or that the needs were inappropriate. (Tr. 95-96, 168-169, Ex. B-5, Ex. 5).
Dr. testified that the IEP section, “ ” was discussed at the CSE review. (Tr. 9697). She stated that the box indicating that “ with instruction and can be addressed by the special education teacher” is checked because “within the context of a highly specialized program like , which knows how to deal with children who are on the ” it is appropriate since . has the support of the special education teacher and two other adults. (Tr. 97, 169). The box that states that the student requires a ( ) was checked. (Ex. B5). Dr. stated that the . was developed by , in draft form, prior to the meeting, because the school identified certain behaviors that interfered with sufficiently that they would want to have a formal plan in place. (Tr. 175, Ex. B-16). has a school wide plan as well. (Tr. 98).
Dr. explained that the IEP statement: “parents are … encouraged to carry over program into their home” means that the school encourages the parents to implement a similar type of behavior modification management program and strategies at home that they have in school. (Tr. 100, Ex. B-5).
The occupational therapist drafted page six of the IEP (Ex. B-6). She was not present at the meeting and the information was discussed with the parents by the classroom teacher. (Tr. 170). In connection with that page the participants discussed .'s , his sensory integration problems, his difficulty with body concept and visual motor integration as well as some of the improvements he has made. (Tr. 101). The team added the information: “Medication is administered during school day to increase attention.” (Tr. 102, 170-171, Ex. B-6).
Dr. testified that the teacher and related services providers drafted the goals, “based on the student's progress and what he needed to continue working on....” (Tr. 102, 171). The goals, although not each and every one, were discussed at the meeting. (Tr. 171-172). Dr. did not remember which specifically were discussed. (Tr. 173). No one asked that the goals be changed or added to in any way and no changes were made (Tr. 173-174, 204). Dr. thought that the CSE team's understanding was that these goals would be addressed during the school day at . (Tr. 103). At the meeting, no one stated that the student needed support after school in order to meet the IEP goals. (Tr. 103).
Dr. testified that , the SEIT ABA home provider, “went into some detail during the meeting” about the work she was doing with , as reflected in the CSE minutes. (Tr. 201-204, Ex. 5). . was working on the same skills during the school day. (Tr. 204, 221222).
The team recommended a non-public school setting with an ratio and considered other placements, which were discussed with the parents, and were determined would not be appropriate (Tr. 175). Based on the provider's progress report and considering her mandate, the services were recommended at twice a week for thirty minutes and once a week for thirty minutes in a group of two. (Tr. 105). The mandate of twice a week for thirty minutes in a group no larger than eight and individually three times per week for thirty minutes was determined as appropriate by considering the occupational therapist report and her recommendation. Dr. pointed out that the DOE team members recognized needs and increased his mandate from the previous year. (Tr. 105-107).
Dr. testified that at the meeting the parent did ask for seven additional hours spread over five days after school for their son as well as home for 60 minutes twice a week and occupational therapy twice a week for 60 minutes in a . (Ex. 5-6, Tr. 107-108, 205-207). The CSE heard from all of the home providers and according to Dr. , based on all the reports, the draft IEP, the goals developed for him to continue to make progress, and considering the student's progress as well as his interfering behaviors, the DOE CSE members determined that the services were not necessary because .'s “educational needs could be met in the setting that he already was in at ” without the extra services. (Tr. 109-110, 187). She added that the school is an extremely restricted setting, “he is already receiving a ton of services, many of which are on an individual basis, as well as having three adults in the classroom with him, with eight students. And we determined that that was enough for him to make meaningful educational progress.” (Tr. 110, 190). She later clarified that it was the DOE team members who came to this conclusion. (Tr. 186). At the meeting, the parents did not ask for hours or team meetings. (Tr. 205-206). Dr. , in her report, recommended team meetings and weekly meetings for the parent with the ABA or supervisor. (Ex. O).
Dr. explained that the team considered the but did not follow the recommendations because the student was functioning at a higher level in the school and because these professionals worked in different models (developmental and medical) that are not identical to an educational model which the CSE thought more appropriate to make recommendation for a school setting. (Tr. 117-118, 194-195). Also, Dr. stated that the SEIT report indicated that the work done at home was addressed at school and performed at a higher level at school, at least in some areas. (Tr. 118-119).
Dr. thought that the after school programing was too much for a second grade student with a full day of school and services, as well as a bus ride home. In her opinion, the student needed time to decompress and socialize. (Tr. 195-196). She stated that she is aware that left to his own devices, the student can engage in “sensory seeking behavior and that kind of thing” and that he lacks social skills, requiring support to interact or socialize with another child. (Tr. 196-197). She was unaware whether he had any independent play skills. (Tr. 196). Her understanding at the CSE meeting was that would be able to implement the entire IEP at school during the 2011-2012 school year. (Tr. 121).
Dr. confirmed that the CSE minutes state that “the CSE will not provide home services” including SEIT, . (Tr. 176-177, Ex. 5). Dr. denied ever stating that she informed the participants that home services would not be discussed at the CSE meeting and noted that and the home based providers talked about the benefits . receives from the services. (Tr. 177). The ABA provider recommended that . continue to receive the services. (Tr. 178). The Parents' Case
.'s mother testified that he was diagnosed with an which includes deficits in speech gross motor development, fine motor development, and core body strength. (Tr. 603). The parents noticed that he was developing differently than his sister who is twenty-one months older, when he was less than a year old, “...but he was not flagged as having until he entered preschool.” (Tr. 603). . turned three, during the spring of 2007, the parents had him evaluated. (Tr. 604). In August 2007, the parents received the evaluation reports and diagnosis. The evaluator recommended a center-based program with after school services, but the parents were unable to find a seat in a center -based program so . remained in his pre-school for typically developing children, with support, and had home based . (Tr. 606). For the 2008-2009 school year, his last year of preschool, the parents moved . to a center-based preschool program at where he continued to receive seven hours of as provided on his IEP and the parents provided two hours of privately. (Tr. 606, 636). He received in school. For kindergarten he attended and continued with seven hours of services and two hours of . (Tr. 606, 636637). He continued that level of services while he attended for the 2010-2011 school year. (Tr. 637). In April 2011 he began to receive two hours of occupational therapy in the sensory gym. (Tr. 641-642).
Ms. , head of school at , testified that currently there are 90 students at the school. All of the students are diagnosed on the , and have classifications of disability, . (Tr. 246). The students range in age from 5 through 14. There are ten classrooms for kindergarten through fifth grade. The school offers . (Tr. 250). The school's mission is “to prepare our students in K through 8 who are on the to be prepared for the wider community, using academics, social skills, organizational skills to help them be best prepared.” (Tr. 250). The curriculum adheres to the New York State standards. (Tr. 251). Ms. Poggi explained that the students are bright; “it's the social skills that is really keeping them from being in a less restrictive environment” so the school's academic director and social skills director work closely “to integrate that throughout the day in every academic subject.” (Tr. 252). She added that the school provides direct instruction in social skills once a week, offers special interest groups to the students and uses an approach called relationship development intervention, an approach for working with students on the that is based in relationships and tries to address the core deficits of autism. (Tr. 252-254, 285-286). The school also has an after school program with the public schools in the area in which are mentored by typically developing peers. (Tr. 252-254). The younger classes, including , had a structured recess with one of the private schools in the area. (Tr. 284-285). The purpose of the structured recesses is to give the students “opportunities to generalize the skills that we’ve been working on in the wider community, opportunities with typically developing peers.” (Tr. 285).
The school encourages a “really strong home/school connection” including three formal parent meetings per year related to progress reports, informal meetings as needed, and parent events. The school also encourages communication among the school, outside providers and the parents “so that we're kind of all addressing the same needs and using the same language.” (Tr. 255). The school provides parent support groups and parent training in topics such as “ , at school and at home.” (Tr. 282-283, 284).
Ms. testified that the parents applied for for the 2009-2010 school year, and she visited him at his preschool. (Tr. 258, 279). He was accepted because, she inferred, he was on the showed an interest in socially connecting, was and ready to learn in a group. (Tr. 259, 277, 279). Ms. stated that will not accept a student if the admissions team does not believe that is able to meet their needs. (Tr. 281). determined that should continue for the 2011-2012 school year in the course of meeting with the parents to discuss his progress. (Tr. 281). He was making gains and Ms. believed that could meet his needs. (Tr. 282).
Ms. testified that she participated in .'s May 16, 2011 IEP meeting and recalled that “...it lasted quite—longer than our usual meetings.” (Tr. 259, 264). In preparation for the meeting “[w]e completed the IEP with the identifying information and the goals and the present levels, and then shared it with the family. The family reviewed it and then we presented it at the meeting.” (Tr. 263, 287). The head teacher wrote the educational component and the sections were written by his then therapists. (Tr. 301). Ms. and the parents talked “about adding home services, and I said that I wasn't able to add that on, that it would have to happen at the meeting.” (Tr. 287). Ms. later explained that she informed the parents that she could only add “what it is we do” to the IEP. (Tr. 302). Ms. testified: “...I know we talked about the need for home services. That was a part of the meeting. I mean, but I don't think they had any issue with anything else that was in the IEP, or it would have been addressed before the meeting.” (Tr. 288).
Ms. testified that at the very beginning of the meeting, “Dr. said that we couldn't consider home services at that time, and I know that, the parents and I were in agreement that the home services were part of [ .'s] plan.” (Tr. 264-265). She recalled that Dr. said something to the effect that she was not allowed to recommend home services or it “wasn't in her purview.” (Tr. 265, 289, 294). Ms. testified that she, the student's parents, his teacher, and home therapist “wanted to be able to have this discussion”, “all strongly feel that he needs these services, so we did let her know that.” (Tr. 265, 292). She explained that “these services” meant the after school . (Tr. 265-266, 289). She did not recall the number of hours for the that were discussed. (Tr. 289-290, 293). She does not have knowledge about what the after school providers are working on with C.D. after school. (Tr. 292-293).
Ms. explained that “requires a lot of repetition of concept and things that are taught in school. So anywhere from three to five hours per week, I think, you know, would be helpful.” (Tr. 291). She called this number a “guestimate”, explaining that she does not work with the student on a daily basis. (Tr. 291-292). She added: “I know that in general it's a home program that complements his success here at school.” (Tr. 292).
Ms. explained why she feels . needs these services:
“...first of all, he came in with extra home services when he started here, and we have seen him make gains, so it's really hard to tease out...what in this whole package of services that [ receives is...promoting this success....” What
I can say in[sic] that the educational plan that's been serving him for the past 2, 2 1/2 years has been successful for him....he's made gains academically and socially and behaviorally...He is able to be part of a classroom. He has...across the board made gains.”
(Tr. 266). Ms. stated that 's parents, his therapist and his head teacher all voiced agreement with her about his after school or at home services during the meeting. (Tr. 267). Dr. would not consider these services at the meeting. (Tr. 267). Ms. could not recall Dr. ever observing or visiting the lower school. (Tr. 267-268). No one at the meeting expressed that would be inappropriate if those home services were not continued. (Tr. 294-295).
When asked her opinion as to how the student would do without the after school or home program hours Ms stated:
“I think that's really very difficult to determine. I mean, I know that [ .] has a very difficult time when he's out of school. He definitely and it's difficult to get him back into the everyday day-to-day activities, so I can only –you know, I can't imagine if these services were pulled from him what regression we might see.”
(Tr. 296-297). Ms. explained that she was referring to after breaks from school, not going home for the evening. (Tr. 297-298).
Ms. did not think that an class was restrictive for . because it gives him the opportunity to develop enough independent skills, but provides enough adult staff so that if he needs support it is available. (Tr. 268-269). Ms. is an appropriate placement even though he needs it in combination with an extended day because “at this point in [ .'s] development, is offering him both the academic and the social skills curriculums [sic] that he really, really needs. He's provided with other students here who may have more developed social skills, who can really provide him with that model. He gets both speech and occupational therapy here. He is provided with a head teacher who offers the curriculum at his level, and is able to kind of push a little bit, but be able to...also be there if he needs more individualized attention. So I think at this point it is a nice—a good fit for him, an appropriate fit.”
(Tr. 269-270).
Ms. testified that to address students' behaviors each classroom has a classroom management plan that is discussed with staff at the start of the school year, and each child has their own individual goals that they work on throughout the school year....” (Tr. 276).
Mrs. testified that she currently is working as an ABA home-based supervisor with and and TodC.D.ers (“the Center”). (Tr. 309, 322). . is one of the students who receives services through the Center. Mrs. supervises home therapist, , who is a certified special education teacher. (Tr. 333-334, 342). Ms. provides seven hours of ABA services at home per week. (Tr. 342, 375, 380). Beyond the seven hours provided by Ms. “will attend her sessions and often stay longer to discuss the observations that I have, to discuss anything that comes up in the session, to problem solve, to think about strategies to move forward. We will also talk with the parents about what we currently see going on with [ .] and strategies to use to help make improvements.” (Tr. 343). She goes to a session, on average, once every month. She testified that as of the time of her testimony, she visited his home three times since July. (Tr. 386).
Mrs. described . as being highly motivated to look at visual stimuli and to listen to auditory stimuli that exist in the environment. Consequently
“it creates a large barrier for him to be able to attend to instruction and listen to what is being taught to him. In addition to that, [ will exhibit other behaviors such as bolting away from instruction. He will do some hand flapping or hand squeezing as a means to escape the instruction that's being done with him so that he can access something that he desires more. So a lot of what we have recognized and assessed in our sessions with [ .] is that we need to break down these barriers so that [ .] is more available for learning in any context that he's being taught in.”
(Tr. 326).
Mrs. noted that another area of with processing newly acquired information. (Tr. 327). She explained that he has a very difficult time organizing the information ess of through which sense he receives it. “So he requires a lot of support to be able to organize that information so that he can demonstrate understanding, so that he can execute understanding of what it is that's being taught to him. “ (Tr. 327). The main strategy the is using with him is “fluency training”, in which “one of our first and primary goals is to help him to practice basic skills so that they are fluent and mastered.” (Tr. 328). If he can learn to perform basic skills automatically and with distractions that exist in the environment, he will be more able to concentrate and focus on the content being presented. (Tr. 329, 393-394). Another strategy the is employing is a token economy; “...it has helped to increase his attention during instruction, to be able to work amongst distractions, and to be able to demonstrate what he understands with some support through prompting, prompting being some sort of aid, either verbal or visual, or sometimes physical, depending on the task, that will help to elicit a certain response that we're looking for a child to demonstrate.” (Tr. 329, 331). The ABA providers have noticed with use of the token economy . “works very quickly to accomplish what's being asked of him. He's able to demonstrate more what he knows, he can work amongst distractions, and he's still able to access a desired activity that he wants.” (Tr. 331). The use of a token board, displaying stickers he has earned, is the most effective way they have to motivate the student to attend for increasingly longer periods of time. (Tr. 347,394).
Mrs described .'s strengths. . is able to learn information quickly when he is provided with supports. He is able to convey his wants and needs with ease, and he is able to navigate pretty complex systems, like a computer system. He is able to learn anything that is very concrete like the names of numbers or letters. He can label anything that he sees and has learned. (Tr. 332-333).
Mrs. stated that Ms. is working with the student on “a lot of reading, writing, and mathematic skills....being able to read words, sounding out words, being able to read stories to retell, that are read to him. It's also...helping to work on his spelling words, on writing skills, writing out words and letters. And then...math skills, working on him being able to count out a requested amount from a group, to be able to rote count, to know what numbers come next, what numbers occur before and after.” (Tr. 344-345). She reported that last year he was working on pre academic skills – recognizing letters and numbers and letter sounds while this year he is sounding out words, read some with fluency, and is able to write some words. (Tr. 345). Ms. also uses to increase the amount of time during which . is able to attend, so that he learns to gradually lengthen the task before getting access to a reinforcer. (Tr. 347-348).
Through his ABA sessions to follow multi-step instructions. (Tr. 349). According to Mrs. . to complete a multi-step instruction by using visual support and verbal reminders to create a “visual memory.” (Tr. 350). In this regard, is learning to retell a story, and has learned to organize a sequence of events and answer who and what questions with visual supports or verbal reminders. (Tr. 350-351).
Ms. also addresses expressive and pragmatic language skills with . (Tr. 351). Mrs. testified that . is able to make most requests for what he wants, and that he is now working on requests for information. (Tr. 352). She is teaching him to question independently to “acquire information from the environment and have less dependence on it being systematically taught to him.” (Tr. 352). She is also teaching him to comment on what he sees in the environment, which strengthens his relationship skills, as he is learning that by sharing his observations, he receives information in return from others. (Tr. 352). He is also learning to take turns and keep appropriate space from others when speaking, and to infer meaning from what someone is saying. (Tr. 353). Ms. also works with . (Tr. 353).
Mrs. also testified about the work Ms. does to address , at home, including his tendencies to bolt from a task, seek , squish or flap his hands, and engage in property destruction. (Tr. 356-357, 385). Ms. and Mrs. teach ’s parents strategies to meet the function of as a part of parent training. (Tr. 357).
Ms. collects anecdotal data and writes daily session notes to record .’s progress. (Tr. 373-374). He has increased his length of attention span and improved his ability to e “higher academic content.” (Tr. 360, 391). He is able to sound out words to read sight words, and is starting to spell and write. (Tr. 360). . has also improved as a result of the token board, as Mrs. testified that he has learned to use the board properly, which “creates more opportunity for him to practice.” (Tr. 360). Mrs. said, “we’ve noticed with the use of this token economy that he very quickly works to accomplish what’s being asked of him. He’s able to demonstrate more what he knows, he can work amongst distractions, and he’s still able to access a desired activity that he wants.” (Tr. 330). The token system also has enabled to be less distracted by stimuli in the environment. (Tr. 331).
Mrs. and Ms. recommend that continue to receive SEIT/ABA services, as he has made progress with the combination of a home and school program, he has significant challenges in generalization, he presents with processing deficits which make it challenging for him to demonstrate understanding and because of his need for fluency in basic skills. (Tr. 364-365). According to Mrs. .’s home-based programming is “critical for . to be able to make progress in any school setting.” (Tr. 365). His ABA/SEIT services “help to make the skills that he needs for school participation more so that he’s able to process and acquire new skills within the school environment.” (Tr. 365). With the support of his home program, . is able to acquire necessary skills “to be more masterful and fluent with those skills in a school based setting.” (Tr. 365). Mrs. recommended that . receive ten hours per week of home-based because “there would be more consistency between sessions and less time would need to be spent in trying to regain that attention and decrease those other that impose on the instruction. So with service consistently every day, we would eliminate his opportunity to reinforce himself in those and create more opportunity to reinforce him for appropriate behaviors that he should engage in during after school time....” (Tr. 380, 381-382). Mrs. testified that “supervision would occur with” the recommendation of the ten hours of ABA therapy. So we would provide supervision in addition to that without it being a mandated number.” (Tr. 399, see Tr. 408-409).
Mrs. stated that , an essential component of a successful . (Tr. 407-408; See p. 20, supra). Supervision is necessary to “ensure that effective procedures are being utilized and that progress is being monitored.” (Tr. 408). Mrs. recommended that . continue to receive ABA/SEIT supervision.
Mrs. agrees that is appropriately placed at , as “this is a school that focuses on learners who are similar to . and the evidence based practices that are – have been found to work with these children.” (Tr. 361). Like Ms. , Mrs. communicates with ’s teachers frequently, and “feel[s] as though they truly understand the learner profile that . has, the type of learner that he is, how he compares to other learners with similar diagnoses, the strategies that are best used for these kinds of learners and within these kinds of circumstances…” (Tr. 361). The teachers and communicate regularly via emails about what is going on at school or at home, what strategies are being used and what .'s performance has been. (Tr. 394-395)
Kimberly Stanton testified that she is the head teacher of .'s class at (Tr. 450452). attending to the lessons and with , and has issues having interactions. (Tr. 454453, 469). He has “made great gains in staying with the group and sitting in his seat while a lesson is going on.” (Tr. 453). He has “increased his interactions in general, they're not very authentic and a lot of them include mimicking other kids or making repetitive statements without follow up...” (Tr. 453). . has made a lot of progress in his decoding and reading skills, but he still is “behind his peers.” In terms of math, he is working oneon-one right now with another teacher working on the kindergarten program, because he hadn't mastered the skills necessary to move on to the level that the class is working on.” (Tr. 453-454). While . has shown progress in all areas, with reading and decoding he is at about the same level as some of the other students, in math he is a little behind, and socially he is behind his peers. (Tr. 462).
She explained that .'s goal now is to stay with the group and meeting expectations of what the group is doing. (Tr. 454, 456-457). After each period the teachers check in with the students to see how they have done with their particular goal, and by the end of the day, depending on how many reminders they have needed, they earn rewards. (Tr. 457). The teachers also are using structured breaks with .; he has a visual timer and after
15 minutes of staying with the group he gets a five minute break. (Tr. 457). He also earns stickers on a token board; for ten stickers earned he gets computer time. (Tr. 457458). With prompting and support he is able to complete the activities and stay with the group. (Tr. 454-455, 458). Given his progress staying with the group, . now has the goal to stay with the group “with a quiet mouth” in order to reduce his scripting which interferes with his ability to listen to what is being said and interferes socially because it bothers the other children. (Tr. 458-459). Ms. uses a visual aid of a person keeping a quiet mouth, verbal reminders, and a goal sheet to help reach his goal. (Tr. 471-472). Since this has become a goal, Ms. has observed much less scripting. (Tr. 459, 471-472). During free time, . now has more goal directed activities such as playing with toys or looking through books rather than wandering. (Tr. 455-456). He has more social encounters with peers or teachers and is making longer utterances. (Tr. 456).
Ms. meets weekly with the other teachers, an administrator and service providers to address the student's needs in the classroom. (Tr. 490-492). She e-mails with the parents “pretty frequently”. (Tr. 464). She sends home a goal sheet with comments and communicates regularly about behavior plans and progress. (Tr. 464). She also e-mails frequently with the , who has visited the class. In the beginning of the school year, their communications were particularly helpful to Ms. who did not know the student well and learned what strategies are productive with C.D. Ms. also provided Ms. with the language she uses with . at home; both the teacher and provider have found this consistency “very beneficial”. (Tr. 465). Ms. also relied on Ms. to help develop .'s behavior plans. (Tr. 465).
Ms. feels that “needs a home program.” (Tr. 466). The student “really needs a lot of repetition and support to generalize his skills. And so I think he needs somebody at home to help him do that.” (Tr. 466). Ms. stated that she works on generalization during the school day by trying to use the lessons from in the classroom. (Tr. 474-474). Ms. testified that while .'s progress “has been slow and steady” ten hours of home services “would actually be more beneficial, because it's been slow progress and he is still behind his peers.” (Tr. 468). She explained that more hours would increase his rate of progress because it would be more time spent on generalizing skills and social skills. (Tr. 479).
She thinks that is an appropriate placement because she sees making progress there. (Tr. 466). The school is appropriately addressing the academic and social deficits that are seen at school. (Tr. 485-486). She testified that she could not say whether the speech and occupational therapists were addressing the student's deficits in their sessions in those areas. (Tr. 489-490). She is using the goals on his IEP and believes they are appropriate for him. (Tr. 476). She testified that she could not say whether would be appropriate without the 7 hours of ABA therapy because she only has known the student with it. (Tr. 484-485).
testified that she was .'s first grade head teacher for the 2010-2011 school year. (Tr. 496-498). Last year he had “a . He had a , demonstrated some and he perseverated frequently. But, he definitely had shown progress as far as reading and math were going...” (Tr. 498).
Ms. was familiar with the outside service providers and services received during the 2010-2011 school year and thought that the services were appropriate for him. (Tr. 499-500). She had open and ongoing communication with the , related services providers and parents through e-mails; the group was referred to as “ .'s team”. (Tr. 499500).
Ms. testified that she created some of the goals for .'s May 16, 2011, IEP: the four English language arts, the four math and the four social/ behavioral goals. (Tr. 508509). She also drafted the pages with descriptions of his levels as well as the management needs. (Tr. 509-510).
Ms. testified that she attended 's May 16, 2011, IEP meeting. (Tr. 500). She stated that “...we went over the first page of the IEP, stating that the school was still an appropriate place for him and then we continued forward.” (Tr. 511). She thought that it was appropriate, and explained: “I think that the staff and the type of program that's provided there both their academic combined with their program and their social skills curriculum is an important aspect for [ .'s] learning.” (Tr. 511-512). There was no discussion about the services because the therapist was not on the phone. (Tr. 502). As for the outside related services, the student's mother asked to address those services, “but we were told that the meeting was strictly for, you know, approving the new IEP and proving the school and really just discussing that at that annual review.” (Tr. 502). When the parent brought up the she was told she could go to the Department of Education office to fill out additional paperwork, “but that wouldn't be discussed at that time.” (Tr. 504-505).
At the time, Ms. thought that the outside services were appropriate for . She stated: “The whole time that I taught [ .] he's had these services, so it would be hard for me to say that he wouldn't need them, but the consistency of both the home services continues there and the transferring between school and home seemed extremely appropriate for him.” (Tr. 505-506).
Dr. testified about her credentials. She has a Ph.D. in clinical psychology and is licensed in the State of New York. (Tr. 533). She previously worked in the postdoctoral program at the child development, and also worked for the for eleven years where she assessed and provided direct , as well as supervised other psychologists. (Tr. 534, 536) Now in private practice, Dr. conducts assessments for children with a variety of learning issues, including basic learning difficulties, developmental syndromes that interfere with intellectual development, . (Tr. 535).
Dr. first evaluated . in 2008. (Tr. 537). She has evaluated him face-to-face three times and has observed him at his school and home programs, last in 2009. (Tr. 575-576). She conducted a assessment for . in March and April, 2011, during which she carried out a battery of tests, including the Differential Abilities Scale (“DAS”)[4] , a portion of the Stanford-Binet Scales of Intelligence, and the Wechsler Individual Achievement Test (“WIAT”),[5] and conducted a clinical observation. (Tr. 539; Ex. O). The results of Dr. ’s testing covered .’s performance in the areas of communication, socialization, and , which provided information on .’s overall functioning, as well as his verbal skills, non-verbal reasoning, spatial skills, academic skills, and behaviors. (Ex. O). Dr. testified that in the area of socialization, . “was quite variable”. (Tr. 541). His was somewhat purposeful, spontaneous, and scripted. (Tr. 540). He spoke a lot about topics with which he was , and often repeated back what Dr. said. (Tr. 540). She observed that . had a very limited ability to understand casual conversation and demonstrated limited expressive skills. (Tr. 540). Dr. also recounted variable attention, and referred to “lots of intervals where [C.D.] would get very dreamy and very preoccupied with something he was obsessing about…” (Tr. 541-542). She then was not able to get him back on task to work appropriately. (Tr. 542). She also noted that tendency to be preoccupied with certain topics makes him “less available” socially. (Tr. 541).
. was able to execute simple directions, but struggled as test material became more challenging. (Tr. 543). Dr. attributed ’s results to a combination of “processing problems” and “attention level”. (Tr. 543). One of C.D.’s weakest areas was in the assessment of . His inability to absorb and retain auditory information infringes upon his ability to use it appropriately, and places . at a “huge disadvantage in terms of [his] ability to take in what’s being said to [him], to learn from what is being told to [him] and to use other people’s .” (Tr. 544-545). demonstrated greater strengths in nonverbal reasoning. (Tr. 545). . is able to “show his conceptual knowledge and conceptual reasoning” without using language. (Tr. 546). . also performed relatively well in reasoning using abstract information. (Tr. 547). In terms of visual motor skills, . was able to copy simple items, but struggled significantly with pattern construction due to his preoccupation with the physical properties of the blocks. Dr. administereda substitute subtest from the SStanfordBinet and the results of testing ultimately demonstrated .'s deficit in motor planning skills. (Tr. 550-553). The DAS told Dr. that the student “is making progress, but that he's still struggling....with the comprehension and processing of language and ...with the production of language....And that motor, control and motor planning are still areas of weakness for him.” (Tr. 554).
Dr. used the WIAT to assess .’s reading, math, and writing skills. (Tr. 555). . knew his letters well and he was able to connect letters with sounds, but “when tasks in this area were purely auditory without visual support, he .” (Tr. 555). The auditory processing with his development of certain skills needed to become a good reader. (Tr. 555). .'s limited decoding skills prevented Dr. from assessing his ability to understand what he reads. (Tr. 557). He has mastered some very basic math skills (rote counting, counting objects and some quantitative concepts), but struggled when the language of the questions became more complex. (Tr. 558). Consequently, Dr. was uncertain whether . did not know the concept or if the language issues were interfering. (Tr. 558). C.D. struggled with the written computational skills and was unable to print the numbers. (Tr. 558). His writing skills are limited as reflected by his ability to write some random letters, but not the full alphabet. (Tr. 559). Though he , when asked . instead drew pictures of the words presented, indicating that he did not have representing things at that time. (Tr. 559). The results of the testing shows . was functioning at a midprekindergarten level and had only very basic math skills, such as the ability to rote count, recognize shapes and label numerals. (Ex O). Dr. found that ’s general ” (less than 1st percentile), verbal performance was “very low” (in the 1st percentile), reasoning was “ ,” (5th percentile), that he had “ ) spatial skills. (Ex-O). His test results also indicated that his pre-reading skills were “ ” (early reading skills), math skills were at a mid-prekindergarten level, and that his early writing skills were .” (Ex-O).
Dr. interviewed .’s mother using the Vineland Adaptive Behavior Scale to measure .’s adaptive behavior and get a sense of his behavior “outside of the testing room.” (Tr. 561). Overall, the results yielded a finding that “ is still hav[ing] difficulties with his everyday life and these difficulties appear in the areas of his ability to communicate, his abilities to take care of himself personally and in the home and in the community and his ability to socialize.” (Tr. 563). are low relative to age expectation. (Tr. 562). The results also reflected ’s difficulties in all areas of daily living. (Tr. 562563). . also has moderately low social skills relative to his age, including interpersonal, play, leisure, and coping skills. (Tr. 563).
Overall, Dr. found that “is making progress, but that he’s ,” particularly in the realms of , processing, and production, and that he also demonstrates difficulty with control and motor planning. (Tr. 554). Dr. recommended that . receive and intervention so that he does not lose skills and regress, and that “attend a program organized around the needs of ,” because he requires a small, structured program “to function appropriately,” and “to learn appropriately.” (Tr. 564; Ex. O).
Based on the results of .’s evaluations, as well as on her review of reports describing .’s progress at school, and reports from .’s ABA/SEIT provider at home, Dr. recommended that . receive home-based ABA services for opportunities to generalize the skills he learns in school, to “practice and improve the skills that he needs to function at school, at home, and in the community,” and “because . with attention and he with his functioning.” (Tr. 567, 570). Dr. explained that “need[s] what he was receiving at school to be supplemented in order for him to be successful both at school and at home.” (Tr. 574). By “successful” she meant available for learning. Dr. explained that the major impediments to . from being available to learn are his off and his Those in order for the student to be available for learning. Since spends a big portion of his life outside of school,
“...if it's only being worked on in school, there's so many other hours of the day where those difficulties are not being addressed and if he's not given structure and instruction, those difficulties are allowed to flourish, he can practice repetitive behavior, he can practice being off topic. So part of it is that you want to work on the skill as much as you can in order for him to...eliminate it.”
(Tr. 596). She also noted that if a behavior is addressed at school and home it speeds up the rate at which it can be learned or eliminated. (Tr. 597). She further explained that for . to be “successful” at home he would be “able to occupy himself in a productive fashion. That [ .] is able to execute daily living skills. That . is able to function in the community appropriately.” (Tr. 599). Dr. also recommended that .’s parents receive parent training and meet with .’s ABA therapist to learn to intervene with successful techniques when there is no teacher or therapist around and to learn how to manage .’s behaviors. (Tr. 567- 568).
Dr. recommended because 's skills are . She thinks that “improving his would help him give up some of his and help him reduce some of his repetitive his attention.” (Tr. 568). She determined the frequency and duration because she “felt at those rates, . would get the appropriate amount of intervention and service” that she felt he needed “to function properly”. (Tr. 586-587). She recommended that . receive in the school setting “because you have people who are working with [ .] every day and know his needs and specialize in treatment of children of and are going to be able to target in on the skills that he's having difficulty with in the school setting.” (Tr. 587). She recommended services in the “to strike a balance” between getting him services in the school setting and also making sure “that not too much time is being spent in school - taken away from his peers and from opportunities to work with his classmates and teachers.” (Tr. 587-588). The recommendation for the “is for him to improve integration skills.” (Tr. 588). and “and it's keeping him from being appropriately grounded and mindful and attentive in the moment.” (Tr. 589-590). Dr. did not know whether the school had time to address issues as well as his or whether has (Tr. 590-591).
Dr. specifically named in her recommendations for . because she is familiar with the school from student observations, knew . attended it, and thought that it was an appropriate placement. (Tr. 566). Based on a review of the progress reports from the school and from the (Ex. E, Ex. I, Ex. J, Ex. N, Ex. Q, Ex. BB, Ex. CC, Ex. FF), Dr. stood by her recommendations from the spring because the areas she identified as areas of concern still exist. (Tr. 570). Dr. arrived at the recommended rate of ten sixty minute because she felt “that getting between one and two hours every day spread through the week would be the ideal supplement to what [ .] is receiving at school.” (Tr. 591).She wants to see the student work on every day of the week if possible. (Tr. 592).
., the student's mother, testified that “is definitely appropriate for [ .] because it challenges him academically, but also provides the scaffolding and the support hat he needs to learn. And it's appropriate for him because it addresses his significant social deficits with a very extensive program of social skills development and support.
...they've demonstrated a willingness and an ability to work collaboratively with our home therapy team to ensure consistent implementation of skill building at school and at home.”
(Tr. 611).
The parent testified about gains she has seen her son make for the 2011-2012 school year. She explained that “it's very hard to distinguish between gains specifically linked to the home and gains specifically linked to the school....the programs are and they function as a whole in his life....” (Tr. 620). He has made gains in reading so that he is “clearly an emergent reader, he recognizes many sight words, he has basic decoding ability....” (Tr. 612). His reading comprehension is improving and he shows an increased interest and ability to engage with books. He is making improvements in basic math skills, “counting, conceptual concepts like more and less, very basic addition and subtraction.” (Tr. 612). He is making some gains socially. He is able to seek another child out in the playground, but not sustain the interaction. He is able to initiate and sustain a brief conversation if it's something that interests him. (Tr. 612-613). The parent testified that in and out of his ears while making sounds, ear stimming, has decreased. His behaviors of spitting and screaming when making a transition have been extinguished for weeks. The scripting at school, as reported by the classroom teacher, has diminished since she and the worked together on incorporating language to improve that for him. (Tr. 621).
The parent testified that together, the school and home based are appropriate for her son. They function as a “collaborative cohesive whole to allow him gains...academically...socially...and behaviorally.” (Tr. 625). According to the parent, . needs that level of support. He needs a lot of repetition to learn these skills, more than he can get in the school day. Even though he can learn, we have seen that with the right program he can and does make academic gains. He needs a lot of repetition to get his skills to a level of automaticitiy so that they can serve as a foundation for learning new skills....The home program also supports the school program in issues because the at school and the work that he does on it at home translates into him being more available for learning at school.” (Tr. 625-626). The parent also explained that . needs the home program to support his progress in activities for daily living which are addressed in the school. However, she added, the behavioral support he gets from the home program helps his ability to function at home and in the community, and to support his development to function independently. (Tr. 626).
The parents chose to have . receive his outside occupational therapy at a sensory gym rather than at home on the recommendation of Dr. and , . One gain the parent observed is that . has an hour of at the sensory gym before an hour of and the provider has commented that he is much more and able to learn during those sessions. (Tr. 616).
The parent testified that she attended the CSE meeting on May 16, 2011. She recounted that the first thing that happened was Dr. “indicated that the meeting would be to address only the school placement and that outside services would not be considered at the meeting.” (Tr. 629). Dr. informed the parents that if they wanted to pursue outside services they would have to exercise their due process rights. The CSE social worker told the parent that “they weren't allowed to help us with outside services.” (Tr. 629). The parent also testified that Dr. stated “that it was generally the position of the DOE that if the child was in an approved non-public school like and still needed outside services, that he was probably not in the right school.” (Tr. 629).
The parents then indicated that they understood that outside services would not be considered and the meeting proceeded to address the school placement. (Tr. 630). The participants only talked about the school mandates. The parent testified that she signed the Final Notice of Recommendation at the end of the meeting and wrote the statement: “We agree with the placement of but also feel [ .] continues to need home-based services.” (Ex. 2, Tr. 631-632). The parent explained that she wrote the statement at Dr. s recommendation that the parents note their disagreement with the DOE over the homebased services.
The parent stated that she did not voice any objection or concerns during the meeting to the recommendation of because the parents strongly feel that is the right school and they did not want to jeopardize his placement there since Dr. indicated at the start that if he needs additional services he might be in the wrong school. (Tr. 633-634). Consequently, as the meeting minutes reflect, she did answer, in an unqualified way, that meets her son's needs. (Ex. 5, Tr. 634).
The parent testified that she has consented to all requests for evaluations and observation for her son, she has sent notices when required, and she provided documentation about her son to the CSE prior to the IEP meeting. (Tr. 634).
The parent testified that they were asking for ten hours of ABA services, consistent with Dr. 's recommendation. Previously, the provider did not have additional hours. The parent has not considered reducing the hours despite continued progress every year because “the experts who we rely on for advice on his program are continuing to recommend the outside services.” (Tr. 643).
Ms. , an at , began to work with . in September 2011. (Tr. 422). She provides services three times a week, individually, for thirty minutes. (Tr. 422). One of .'s biggest areas of is his inability to focus so Ms. works with him on an attention component while working on most of his other areas of weakness. (Tr. 430-431). . has deficits in his ability to and, in some instances, he is under responsive to some stimuli. (Tr. 423). Ms. works on these deficits “by doing lots of movement for him” including different types of obstacle courses, a variety of swings to help increase his level of arousal, and modifications to his environment. (Tr. 423). She gives him during which he has the opportunity to move, works on following two step directions, and gives him discrete activities to complete, such as puzzles. (Tr. 423). During the school year she has seen make some gains in his ability to participate in groups for a longer amount of time, about a minute, without as much assistance. He also is beginning to plan his own obstacle courses and following simple two-step directions with verbal cues and occasional physical prompts. (Tr. 424).
In the area of , . “has a lot of difficulties with his , which also create difficulties in coordination, bilateral coordination activities using two sides of the body.” (Tr. 425). He also has difficulty with . (Tr. 425). These deficits affect the student's academic instruction because if he is skills such as writing it hinders his ability to do those tasks. (Tr. 425-426). In the area of is “working on a lot of motor planning goals, things such as creating and executing a three step obstacle course. We're working on performing jumping jacks appropriately.” (Tr. 426). Additionally they are working on a lot of bilateral coordination activities that require integrating both sides of the brain simultaneously, to help use both sides of the body. (Tr. 426, 441-442, 445). Ms. stated that . needs less assistance to do jumping jacks, motor planning and other coordination activities. He can move a scooter board longer distances while he is prone before he fatigues. (Tr. 426-427).
In the area of fine motor skills activities of daily living such as buttoning and tying shoe laces. (Tr. 427, 439). Currently, he is cutting out simple shapes within one inch of the border, working on buttoning and working on the Program to assist him with his handwriting. (Tr. 427-428, 439-440). His gains include the ability to write, not copy, most of the capital letters independently, the use of a more appropriate tripod grasp a greater percentage of the time, and the ability to cut simple shapes with moderate rather than a great deal of assistance. (Tr. 428).
During their sessions, Ms. sees some such as scripting or behaviors such as “ ”. Ms. observed that she sees fewer of these than are seen in the classroom because she is working with him individually and her always is on him. Also, in their sessions, he is usually moving which reduces those behaviors. (Tr. 428-429). Ms. works with . to reduce by providing . with more ways to in an appropriate manner including use of the obstacle course and swings or pushing the wall if he is seeking joint or proprioceptive input. (Tr. 429).
. also receives twice a week outside of school. (Tr. 424-425, 431-432). Ms. communicates with the outside therapist, , regularly via e-mail. They “discuss” the different skills that they are working on and how they are being addressed. (Tr. 440). She stated that they are working on the same skills, but may be using different activities and equipment. (Tr. 432). They both are working on the level of , and activities. (Tr. 432433).
Asked her opinion as to whether . needs the additional outside occupational therapy, Ms. testified:
“I've never seen [ .] without it and I definitely see him making progress from, since September. He definitely has significant deficits compared to a typically developing seven year old child. He really needs to work on generalizing these skills to different environments. I’ve only seen benefits from him being in his outside .
The repetition for him is so important to retain these skills.
The repetition for all of these different skills to retain and then generalize them. It's just very difficult for him if he doesn't get that constant repetition.”
(Tr. 433-434). With these services . is making “ .” (Tr. 437).
Ms. communicates with the parents via e-mail and at parent teacher conferences throughout the year. (Tr. 434, 438-439). They are very receptive to working on strategies or programs Ms. Toor introduces. Mostly they work on some of the mastered skills. (Tr. 434). They discuss activities that the parents can do at home or that might be done in the school. (Tr. 439)
Ms. meets weekly with the teachers. (Tr. 438). She goes into the classroom and provides environmental modifications and “different sensory needs for the different children”, such as the seat cushion she provided for . due address the difficulty he has sitting in his seat. (Tr. 438).
testified that she provides services through , a pediatric therapy . (Tr. 649). Ms. has a Master’s degree in occupational therapy and is licensed and certified as an occupational therapist in New York State. (Tr. 649). Ms. works with children on fine motor control, gross motor control, activities of daily living, and on visual perceptual skills. (Tr. 650).
Ms. provides services to . twice per week. (Tr. 650). Initially, . was unable to maintain attention on several tasks (including gross motor, fine motor, handwriting, sensory processing, and activities of daily living). (Tr. 651). He presents with gross motor deficits, including deficits in “auto-integration skills,” such as hopping, kicking, running, jumping, and generally “allowing both sides of the body to work together.” (Tr. 651). include difficulty with his hand-manipulation skills, such as using scissors, and with handwriting, both of which areas are being addressed in his sessions with Ms. (Tr. 652-653). include difficulties in standing, visual discrimination (i.e. matching different pictures), and with visual relations, i.e., “being able to judge how close or far he is from a specific object [or] individual.” (Tr. 654). . also has difficulty processing which leads to his disorganization and a general inability to know where his body is in space and how to move appropriately in his environment. (Tr. 656). . also shows , which are apparent when . fails to answer to his name or is distracted by during their sessions. (Tr. 657). . also struggles with , which makes him incapable of Ms. . to improve these deficits by creating obstacle courses and activities for him to practice using his auto-integration skills for “running and navigating through his environment.” (Tr. 651). She addresses .’s visual-perceptual needs by increasing his attention on tasks, using different sensory inputs, and teaching him to navigate his environment in a safer manner. (Tr. 654). . has increased his visual stimulation with matching simple items, and shows increased awareness after he receives different sensory inputs. (Tr. 655). Ms. creates obstacle courses and various activities that provide . with the he needs “to become more organized throughout the rest of the session.” (Tr. 656). Ms. addresses .’s by working with in a quiet area and giving him breaks to rest so as to not . (Tr. 657). Ms. practices activities of daily living with including brushing his teeth and handwashing or drying, in an effort to increase his tolerance for these activites, an issue for because of his sensory processing sensitivities. (Tr. 658).
Ms. communicates with parents before or after .’s sessions. (Tr. 659). She also maintains communication with ’s school . (Tr. 659). They have communicated about .’s progress, and about effective strategies for him. (Tr. 659). Ms. considers the additional two hours of that . receives outside of school in a sensory gym necessary “to function appropriately within school and within his daily life.” (Tr. 662).
Ms. testified to ’s improved skills, particularly with regards to .’s writing skills. (Tr. 653-654). Findings of Fact and Conclusions of Law Legal Framework
The central purpose of the IDEA is to ensure that children with disabilities have available to them a free appropriate public education (FAPE). 20 U.S.C. Sec. 1400(d)(1)(A). See Bd. Of Educ. v. Rowley, 458 U.S. 176, 179-80 (1982). A FAPE includes special education and related services designed to meet the student's individual needs, provided in conformity with a written IEP, at public expense. 20 U.S.C. Sec. 1401(9); 20 U.S.C. Sec. 1414 (d). The special education and related services must be “tailored to meet the unique needs of the particular child and be 'reasonably calculated to enable the child to receive educational benefits.'” E.S. ex rel. B.S. v. Katonah-Lewisboro Sch. Dist., ---F. Supp. 2D ---, 2010 WL 3835008, at *1 (S.D.N.Y. Sept. 30, 2010) (quoting Rowley, 458 U.S. At 207) (additional internal quotations omitted).
A board of education may be required to pay for education services obtained for a child by the child's parents. The prevailing standard used to determine whether the local school district must reimburse parents for private school tuition or other education services is the three-prong “Burlington-Carter” test. Reimbursement can be awarded if the services offered by the board of education were “inadequate or inappropriate”, the services selected by the parent were appropriate, and equitable considerations warrant it. School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). Prong I: Did the DOE offer C.D. a FAPE?
A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; M.S., 231 F.3d at 102; Application of the Bd. of Educ., Appeal No. 04-031). If a procedural violation has occurred, relief is warranted if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL3218 [S.D.N.Y. Nov. 14, 2002]), or seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 3 F. Supp.2d 144, 3 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]). Thus, Prong I of the Burlington-Carter test entails both procedural and substantive considerations. Procedural Violations Composition of the CSE
The parents allege that the CSE was improperly constituted because the team did not include a district representative, a general education teacher, or an individual responsible for interpreting instructional implications of evaluation results. The New York State regulations require that a general education teacher participate in the CSE whenever the student is or may be participating in general education. 8 NYCRR 200.3(a)(1)(ii). Dr. 's testimony that the team was not considering a general education setting due to the student's delays is credited, and is reflected in the IEP.(Tr. 80, Ex. B-3). Nor did the parents dispute the appropriateness of the recommendation for , a special education setting. Accordingly, a general education teacher was not required at the review. Dr. testified that she participated as the district representative and the school psychologist at the CSE review, but forgot to sign in on the attendance page. (Tr. 71-72, Ex. B-2). She further testified that as a school psychologist she is qualified to interpret evaluations. (Tr. 68). The parents did not challenge Dr. 's qualifications to serve these functions nor is there evidence in the record to indicate that she did not satisfy these roles. Therefore, the CSE composiiton on May 16, 2011, was duly constituted. Evaluative Data and Present Levels of Performance
The complaint alleges that the present levels of performance listed on the IEP are inaccurate, the academic scores listed on the IEP were determined using methods that are not “objectively measureable”, that the DOE did not consider the evaluative information with objective measures that the parents provided, and the IEP fials to include sufficient academic management needs.
The record supports a finding that the CSE considered all of the reports made available including progress reports, the ABA provider's reports, the related services provider's reports and the evaluation conducted by Dr. Evaluation conducted by Dr. . The CSE also considered the present levels of performance as drafted by .'s then teacher which she also reported on at the CSE review. (Tr. 75-76, 86-87, 156, 509-510).
The IEP lists the student's decoding, reading, listening and writing skills at a late kindergarten level and lists hismath skills at a first grade level. (Ex. B-3). The IEP indicates the test/evaluation method as teacher created materials. Ms. testified that she drafted the pages of the IEP with 's levels and that she provided accurate information. Nothing in the record indicates that the teacher materials were not “objectively measureable” evaluation methods. No witness disputed the accuracy of the information reported during their testimony or as reported by Dr. 's account of the CSE meeting. Dr. 's explanation of why she chose to rely on teacher evaluations rather than the formal assessments provided in Dr. 's and Dr. s reports established that the teacher's scores provided a more accurate idea of how . actually performed in the classroom and reflected his abilities more accurately than the formal tests. (Tr. 113-115). While the CSE should have included references to the formal evaluations with Dr. 's explanation directly in the IEP, the IEP accurately reflects the student's academic performance levels, consistent with the progress reports and the witness's testimony, and therefore in this respect, the DOE did not deprive . of a FAPE. Predetermination and Parental Participation
The parents assert that at the May 16, 2011, CSE meeting, the CSE engaged in impermissable predetermination when formulationg the student's IEP and failed to treat the parents as full members of the CSE. The overwhelming evidence in the record supports the parents' claims. Prior to the CSE meeting, Dr. informed the head of school, , and subsequently the parents, that the CSE would not consider a request from the parents for any outside services in addition to a recommendation that the student attend . The parents were told that they could exercise their due process rights if they wanted to obtain additional services. (Tr. 264-265, 289, 629, 645) Additionally, the parents were told that if they felt that an approved nonpublic school was insufficient on its own to meet the student's educational needs, the school might be deemed to be inappropriate.
Where the CSE was fully aware that the student had been receiving at home ABA services as well as outside related services while at yet refused to have a full discussion about whether the student needed these services in order to progress or be provided with a FAPE, the CSE impeded .'s right to a FAPE, most egregiously impeded the parents' opportunity to participate in the IEP formulation process, and compromised the development of an appropriate IEP resulting in a loss of educational benefits.
The consideration of possible recommendations for a student, prior to a CSE meeting, is permitted only if the CSE understands that changes may occur at the CSE meeting. (see T.P. v. Mamaroneck Union Free Sch. Dist. 554 F. 3d 247, 253 [2d Cir. 2009]. The CSE must demonstrate that it had the requisite open mind. In this case, it was not enough that Dr. allowed the to discuss some details of her services, the parents to reference positive aspects of the outside services and the head of school to state that the student does as well as he does because of the outside services (Tr. 83-84, 201204, 207-208). Nor was it sufficient that the CSE increased the student's occupational therapy mandate based on his severe needs. The parent, Ms. all testified that it was made absolutely clear before the meeting ever started that the outside services would not be considered. (Tr. 264-265, 502, 505, 629, 645) Under these circumstances, the CSE made a decision about what it would even consider as appropriate for . before the meeting started. In fact, Dr. testified that the meeting was a “reapp”, convened mainly for the purpose of continuing the student's funding in his then current placement.
Additionally, Dr. conceded that she might have stated that a different recommendation might be considered if was insufficient alone and the parent clearly stated that she was afraid to jeopardize her son's chances of a recommendation for since the parents felt strongly that it is the appropriate school for created a chilling effect that impeded the parents' ability to freely, fully and meaningfully discuss their concerns about their son's educational needs. Even if the CSE ultimately disagreed with the parents' opinions, it had an obligation to engage with the parents in a meaningful discussion about their concerns. (See App. of a Child with a Handicapping Condition, Appeal No. 91-13). The CSE had an obligation, under the circumstances, to determine whether , alone, would allow the student to progress in a meaningful way. Moreover, without this discussion, no exploration about other possible program recommendations, whether they were for additional services or different settings, could be meaningful either.
The IDEA requires that parents participate in the process of developing their child’s IEP (Appeal No. 96-31). Federal and State regulations grant parents the role of participants, not merely observers, at meetings held to develop IEPs. (8 NYCRR §200.4(c)(3); 34 C.F.R. §300.345(a)). The SRO has .y held that a CSE does not fulfill its obligation to afford parents a meaningful opportunity to participate in the development of their children’s IEPs by merely listening to the parent’s concerns and then unilaterally preparing the IEPs (Appeal Nos. 91-13; 92-7; 93-42). Because the parents were prevented from actually having a full discussion with the CSE about their concerns regarding such an established and crucial component of ’s educational program, the CSE review was incomplete and this procedural violation must be considered a denial of FAPE. Substantive Violations ABA services The district did not support its burden of demonstrating by a preponderance of the evidence that the IEP was “reasonably calculated to enable the child to receive educational benefits” Rowley 458 U.S. at 207. The district did not present any evidence to support the necessary finding that, standing alone, the IEP would be “likely to produce progress, not regression” Walczak v. Florida Union Free School District, 142 F. 3d at 130 (internal quotation marks and citation omitted). On its direct case, the DOE did not present a single witness from the recommended program to support the proposition that alone was an appropriate program. In fact, as the parent's witness, the head of school, Ms. . made as much progress as he did because of the home program and that she agreed with the parents request for outside services. (Tr. 84, 265-266).
The CSE did not develop a program that was reasonably calculated to enable C.D. to receive meaningful educational benefits. Mrs. B. v. Milford Bd. Of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997). The record establishes that the School is an integral component of an educational program for ., but is insufficient alone to provide an appropriate education. The parent, .'s teacher, the head of school and the home provider all testified credibly that while addresses and supports his work on his goals, . is available to learn there, in large part, as a result of the home services which focus on decreasing the behaviors that interfere with his ability to learn and increasing the automaticity of basic skills. (Tr. 326, 596, 621, 625-626) The record shows that the school communicates regularly with the parents, the home provider, and related services providers (Tr. 464, 499-500) and that strategies are shared between the home provider and the school (Tr. 465), enabling .'s educators both at and home to tailor a program to meet his needs.
Ms. Poggi testified that “the outside services support [ .] for him to do as well as he does at school.” (Tr. 85). Ms. .'s current teacher testified that he “needs” ten hours of a home based program. (Tr. 449, 464-466, 478-479). She could not say whether would be appropriate without the services because she only has seen . make progress with them and his progress is slow. Ms. also could not say that did not need the services because for the entirety of the 2010-2011 school year he had the services. Ms. testified that the home-based program is “critical for [ .] to be able to make progress in any school setting”. (Tr. 365). Dr. testified that she recommended a number of hours of an ABA home program because needed it in order to be available for learning at school, as well as better able to function at home and in the community. The parent, too, testified that the were an integral part of a whole appropriate program for ., with . (Tr. 625-626).
Further, it is well-recognized that that there are circumstances in which a child may require services beyond the school day. (See e.g. Application of a Child with a Disability, Appeal No. 06-011, Application of a Child with a Disability, Appeal No. 9730).
Based on the weight of the evidence before me, the DOE has failed to establish that the program it recommended for without the home-based ABA services, is appropriate and failed to offer the student a FAPE.
At the time of the May 16, 2011, CSE meeting, . was reported to have significant occupational therapy needs and to be making moderate but steady progress in skills related to activities of daily living, fine and gross motor activities and sensory regulation. (Ex. G, L, S). Based on the student's signifcant occupational therapy needs, Dr. testified that the CSE increased his mandate to three individual thirty minute sessions per week (from two) and two group thirty minute sessions per week. (Ex. B-15, Ex. L). The parent testified that began to attend the one month prior to the CSE meeting, in April 2011. While there is no doubt that the student would benefit from continued sessions at the , there is insufficient evidence to support a finding that without those services, the DOE's recommendation is inappropriate. Indeed, the parent testified that her son made progress each year. (Tr. 638-649). The DOE's recommendations for occupational therapy therefore are deemed appropriate. Parent Training
The parents assert that the DOE failed to recommend parent training or counseling and reqeusted one hour per week of parent training. The IEP indeed fails to recommend parent training, however, the record shows that the parents receive parent training from Learning Spring.[6] Ms. testified that provides parent support groups and training on necessary skills that will allow the parents to support the implementation of the student's IEP. For example, last year the training was on therapeutic crisis intervention and behavioral management in the school and home. (Tr. 282-283). Ms. testified that training is offered for the 2011-2012 school year as well. Based on the record, the parents have available to them the parent training and counseling contemplated by the regulations. 34 C.F.R. Sec. 300.34(c)(8). The CSE shall amend the IEP to conform to the regulations. Prong II: Is the Parents' Unilateral Choice of Program Appropriate?
The parent bears the burden of proving that is an appropriate program for See Schaffer ex rel. v. Weast, 546 U.S.49, 58, 126 S.Ct. 528, 163 L. Ed. 2D 387 (2005); N.Y.
Educ. Law 4404(1)(c). To meet this burden, the parent must demonstrate that the educational services provided by the home ABA providers address identified special education needs. The record supports the finding that the dual program provides an appropriate and “reasonably calculated” program for . However, the parents have met their burden as it applies to the seven hours of services provided by Ms. , not ten.
The standards for determining whether a private school placement (or in this case the privately obtained service) is appropriate under the IDEA are similar, but not identical to evaluating the appropriateness of the DOE's proposed placement. See A.D. v. N.Y. City Dep't of Educ., 690 F. Supp. 2D 193 (S.D.N.Y. 2010). To be eligible for reimbursement, the parent's chosen placement is not required to meet federal or state requirements, but rather a less stringent standard. See Carter, 510 U.S. at 14; Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d Cir. 2006). The core issue is whether the private placement is “reasonably calculated to enable the child to receive educational benefits.” id. at 364 (citing Rowley, 458 U.S. at 207). “No one factor is ...dispositive” of this issue. Instead, courts must consider “the totality of the circumstances....” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112(quoting Frank G., 459 F.3d at 364-365). Ultimately, the analysis requires determining whether “[the] unilateral private placement ...provides education instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo,489 F. 3d at 115.
, and motor planning. (Tr. 58, 607, Ex. D, Ex. O). The parent, Dr. and Mrs. all testified extensively about issues that interfere with his ability to learn in the classroom. (Tr. 327-329, 336-337, 607-608). The record supports the finding that the services provided at home by Ms. facilitate acquiring automaticity of skills and eliminating interfering behaviors. Additionally Ms. is reinforcing the academic skills . is learning at school to help address his delays in reading, writing and math (Tr. 347-
348) Ms. is kept aware of .'s at school through regular communication in the form of e-mails and goal sheets with comments that frequently are sent home. She strategizes with the teacher to address issues at school and provides consistent strategies to be used in both environments. Through use of visual aides is better able to follow multi-step instructions. (Tr. 349). Ms. also is addressing skills with . (Tr. 351).
The parent, teachers from last year and this year, and head of school, as well as the ABA supervisor all testified about .'s progress with the home services for both the 2010-2011 and 2011-2012 school years. The testimony and the extensive progress reports from the 2010-2011 school year show the progress . made prior to the CSE review, underscoring the parents' choice of continuing the dual program as an appropriate one. (Tr. 330-331, 360, 391, Ex. E, J, Q). Most relevant to this determination, the teacher, head of school, and parent all testified that .'s progress is attributable to the collaboration between the school and home programs. (Tr. 365, 453-454, 462, 466-468, 612-613, 620-621). He has made progress academically, behaviorally and socially.
The record fully supports the finding that the home program is specifically tailored to .'s unique special education needs and that he is deriving meaning ful benefit from it.
While the student benefits from ten hours of the home-based ABA services, and there is nothing inappropriate about that amount of services, the parents did not meet their burden of proving the necessity of an increase from seven to ten hours or the need for . The student made progress with seven hours of ABA home-based services. Ms. opined that an additional three to five hours per week would be helpful. Dr. testified that between one to two hours every day would be ideal. (Tr. 591). As for the supervision, Mrs. breifly testified that one hour weekly is needed to ensure that the program is effective. Again, . was shown to make meaningful progress without the weekly supervision and there is insufficient evidence to support a finding that it is necessary in order for . to have an appropriate educational program. Accordingly, the DOE shall pay the cost of seven hours of home-based ABA services for for the remainder of the 2011-2012 school year. Prong III: Equitable Considerations
Once a decision has been made in favor of the parents on the first two prongs of the Burlington-Carter test for reimbursement, it must be determined whether equitable considerations support the parent's claims. “[E]quitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363-364 (2d Cir. 2006) (citing School Comm. of Burlington, Mass. v. Dept. of Educ. of Mass., 171 U.S. 359, 374 (1985)). Where a district fails to provide a student with a free and appropriate public education and the private placement is found to be appropriate, “the court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” N.R. ex rel. T.R., 2009 WL 874061 at *6 (March 31, 2009) (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)). A “major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the city throughout the process to ensure that their child receives a FAPE.” (id. quoting Bettinger v. New York Bd. of Educ., No. 06 CV 6889, 2007 WL 4208560, *6 (S.D.N.Y. Nov. 20, 2007)).
The district argues that equitable considerations should preclude an award of reimbursement because the parents had no intention of placing the student in without the home services. The parent, however, did continue the student in without a recommendation for the home program, taking the risk that they might have to bear the financial cost of doing so. The district cannot be permitted first to preclude a discussion of the need for a home program at the CSE, and after failing to even consider it, cry foul when the parent pursues the recourse the district directed was hers to pursue. Additionally, the parents put the district on notice that they retained their rights to challenge the CSE recommendation promptly, by stating it on the final notice of recommendation on the same day of the CSE review (Ex. 2). The record shows that the parents have a history of sharing information with the CSE, participating in the CSE meetings, providing notice when required and cooperating in the CSE process. (Tr. 634, Ex. U). Nothing in the record suggests the contrary.
ORDER
Accordingly it is ordered that:
1. The New York City Department of Education failed to offer the student, ., a free appropriate public education for the 2011-2012 school year.
2. Seven hours per week of as provided by are appropriate.
3. The equities support the parent.
4. The New York City Department of Education shall continue to pay for seven hours of Special Education Itinerant Teacher (SEIT) /Applied Behavioral Analysis services per week.
5. The DOE shall continue to fund .'s tuition for for the 2011-2012 school year including transportation. Dated: January 26, 2012
___________________________
LANA S. FLAME, ESQ
Impartial hearing Officer
LF:dl
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 THE RECORD ON JULY 28, 2011
PARENT
A Demand for Due Process and Stay Put Pendency, 7/1/11, 6 pages B IEP, 1/28/09, 14 pages C Amended Order on Pendency, 8/4/10, 7 pages D IEP, 5/16/11, 16 pages
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 26, 2011
PARENT
E Progress Report, November 2010, 5 pages F Progress Report, November 2010, 2 pages G Progress Report, November 2010, 2 pages H Adaptive Physical Education Progress Report, November 2010, 1 page I Quarterly Progress Report, 12/1/10, 2 pages J Progress Report, February 2011, 6 pages K Progress Report, March 2011, 2 pages L Progress Report, March 2011, 2 pages M Adaptive Physical Education Progress Report, March 2011, 1 page N Development, 4/1/11, 2 pages O Assessment, 3/23, 3/30/11, and 4/6/11, 11 pages P Progress Update, 4/25/11, 4 pages Q Progress Report, June 2011, 5 pages R Progress Report, June 2011, 2 pages S Progress Report, June 2011, 2 pages T Adaptive Physical Education Progress Report, June 2011, 1 page U Letter from Parents to CSE 9 with Fax Confirmation, 6/17/11, 2 pages V Program, School, 2011-2012, 1 page W Class Schedule, , 2011-2012, 1 page X Mandate Change Justification, , Undated, 1 page Y Schedule for , Summer 2011, 1 page Z Schedule for , Fall 2011, 1 page AA Summer Progress Update, 9/13/11, 2 pages BB Quarterly Progress Report, 7/1/11, 2 pages CC Quarterly Progress Report, 8/30/11, 2 pages DD Progress Note, from , 8/2/11, 4 pages
DEPARTMENT OF EDUCATION
1 Due Process Response, 7/11/11, 4 pages 2 Signed Final Notice of Recommendation, 5/16/11, 1 page 3 Class Schedule, 2011-2012, 1 page 4 Resume, Undated, 2 pages 5 IEP Meeting Minutes, 5/16/11, 6 pages
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 13, 2012
IMPARTIAL HEARING OFFICER
I Inter im Order on Pendency, 9/28/11, 5 pages II Closing Brief for the Department of Education, 1/10/12, 28 pages III Petitioner’s Post Hearing Memorandum, 1/10/12, 31 pages
Footnotes
[1] The parents withdrew their request for speech and language therapy during the hearing (Tr. 516).
[2] The IEP sections on “School Environment” (Ex. B-13) or “Other Programs/Services considered” (Ex. B-14) do not include any statement about the student's ability to function in a general education setting.
[3] No reference is made to Dr. Leach's evaluation or test results on the IEP.
[4] The DAS is “an assessment of .” (Tr. 542). Dr. explained that it is designed to generate a general score of overall cognitive functioning by breaking down into areas of verbal skills, . (Tr. 542). Each area is broken down further to determine specific strengths and weaknesses. (Tr. 542-543). It is “a collection of different subtests, some of which are timed, some of which are not.” (Tr. 579).
[5] Dr. testified that the WIAT measures academic skills, including pre- and early academic skills. (Tr. 555).
[6] The IEP statement “encourages parents to carry over the progarm in the home”is not deemed to be a provision of parent training. (Ex. A-3).