New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: August 30, 2011

October 27, 2011

December 21, 2011

January 18, 2012

March 7, 2012

March 21, 2012 Actual Record Close Date: April 30, 2012 Hearing Officer: Theresa R. Joyner, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 30, 2011

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 27, 2011

Attorney — Student

Parents

Attorney — DOE

Executive Director (via telephone) — DOE

Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 21, 2011

Attorney — Student

Father — Student

Mother — Student

Attorney — DOE

Special Education Teacher (did not testify) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 18, 2012

Attorney — Student

Parents

Parents

Occupational Therapist (via telephone) — Student

Occupational Therapist (via telephone) — Student

MS., Speech Therapist (did not testify) — Student

Attorney — DOE

Special Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 7, 2012

Attorney — Student

Parents

Parents

Physical Therapist (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2012

Attorney — Student

Father — Student

Mother — Student

Clinical Director- (via telephone) — Student

Speech Therapist (via telephone) — Student

Attorney — DOE

This matter came before me on August 30, October 27, December21, 2011, January 18, March 7, 21, 2012, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1). The parties requested to submit closing statements in writing. The compliance date was duly extended. A list of persons in attendance and of evidence is appended hereto.

BACKGROUND

. He attends a . The Committee on Special Education (CSE) convened an annual review on May 4, 2011 to make a recommendation for a special education program and services for the 2011-2012 school year. The CSE recommended continued placement at the special class and a 12 month school year with related services. and ) was the only related service recommended, at a separate location, .

The parents requested this hearing (1) to challenge the alleged failure of the CSE to provide their son with a “free appropriate public education” (FAPE ) for the 2011-2012 school year and (2) to seek an order mandating that the CSE reinstate their son’s related services of

THE DEPARTMENT OF EDUCATION’S CASE

The Department of Education’s (DOE) first witness was , the executive director of the charter school; the student has attended the school since the 2006-2007 school year. Ms. has been the director since 2009; she has a master’s in social work and is a board certified behavior analyst (BCBA). Her duties cover clinical and administrative responsibilities. She works with the staff reviewing curriculum decisions, problem solving, behavior challenges and is in the classrooms daily. Her professional history includes working with children with since 1987. She has been trained to work in the areas of since all have deficits in these areas. Also, her training has included working on fine and gross motor skills. Typically children with have varying degrees of such as with . She stated the school has thirty students, eight classrooms and all the students are diagnosed with She has worked directly with the student and with staff who have worked with him. She attends IEP meetings for every student in the school.(Tr. 30-32 and 33-35)

The class ratio is , four students, one certified special education teacher and three instructors. The student’s teacher is and each instructor is required to have a bachelor’s degree and experience working with or using applied behavioral analysis (ABA). She discussed the May, 2011 IEP meeting; she identified the attendees, the documents considered at the meeting and the final recommendations.(Tr. 35-37 and 39-

42) She explained that typically the goals and objectives are developed at the school along with present levels of performance; the information is made available to the parents. ABA is the underlying methodology used at the school; the school focuses on teaching the Their program is data driven and the data is graphed to track progress and what is or may not be working. There is significant research that validates using ABA to teach speech and language skills and motor skills. The school does not provide related services on site; they do call on related service providers on a consulting basis. She explained that the school does not have related service providers because their program is fortunate enough to have a one on one instructional mode and this allows them to work in the areas that related service providers would and they are able to use effective ABA strategies to address deficits. (Tr. 43- 47)(Exh. 3)

Approximately 50% of the students in their school receive privately obtained related services outside of the school. However, the school has found that its methodology of handling related services deficits has been effective in achieving meaningful progress. The school’s programs and varied activities are designed so that the student has to interact with different people throughout the school. She described the student’s strengths as being very adept at following schedules and routines. He is motivated to be independent; he can read sight words and is good at basic social interactions. Some of his deficits are

She discussed in detail his and how the school addressed them. The school has different programming in place related to improve his conceptual use of understanding of words and one on one instruction facilitates improving his . and the student is very good . Every objective on the IEP has a corresponding skill acquisition in his program book. Also, she discussed the programs and systems used to address his all antecedent . Sometimes it that appears to . The student likes to be able to do things independently, so manual guidance can . Manual guidance is reduced to a minimum throughout the day and programming is developed to help him tolerate a higher degree of manual guidance. are created to address for short intervals where he does not engage in any . She reviewed his procedure probe form and explained how it worked in addressing negative behaviors. She noted that all the staff in the classroom is trained to implement the . (Tr. 61- 64;65-68 and 71-72)(Exh. 9)

She reviewed his progress report and discussed his that had lasted for several months. Sustained improvement began when they developed his current behavior plan and once the were corrected then he was put back on track, most of the academic/training programs developed for him were reinstated. She noted that sensory processing was covered to some extent, in her ABA training. She was trained to look at the external stimuli in the environment and to scrutinize how individuals respond to those stimuli. She noted as a she does not involve herself with attempting to probe into an individual’s internal space. She focuses on an individual’s response to what is happening in his environment. The school does not , in the environment that impact on the that can give them . The school’s gym has treadmills, stationary bikes, basketball hoops and scooters. In addition, the school has access to a track for certain periods of the day. These activities address the sensory input and teach them skills they can use elsewhere and addresses some of their motor skills deficits.(Tr. 74-77 and 78-80) The director stated in terms of the student’s motor skills, she has not seen any deficits that have interfered with his education.(Tr. 81-82)9Exh. 7)

She is aware that the student has hearings; she opined that the services were not necessary for him to progress in school. The student has made gains in reducing levels of , which has made him more available for learning. His social skills have improved since his engagement with certain community activities and he . He continues to grow in the area of developing independent activities. She testified that she believed the school offers an appropriate program for the student because he benefits from the instruction he receives in the school. The student continues to progress across different domains.(Tr. 85-88)

On cross examination, the director stated as of the May, 2011 CSE meeting, approximately sixty to seventy percent of the programs that were being worked on with . (Tr. 92-93) She stated that she attended thirty two IEP meetings in a year. She stated that she has yet, to encounter a situation where she had personally felt that related services were required for students, in order to make “meaningful educational progress.” (Tr. at 98) There were no related service providers at the CSE meeting and there was no discussion regarding their reports at the meeting. However, she did review the reports prior to the meeting. She did not recall if any discussion occurred regarding the reduction of the student’s SLT from two sessions to one. She acknowledged that there was no parent member at the meeting. (Tr. 101-103)

She admitted that she had never spoken to any of and held no certifications/licenses in . She acknowledged the student . She agreed that he does not have . None of the staff at the school are trained in therapy. She admitted that she had not done any formal speech assessments of any kind at the school. (Tr. 115-119) She acknowledged that she had never known or instructed the student when he was not receiving his . (Tr. 121 -122) She noted that for a short period of time in the 2009-2010 school term the DOE had a ; the DOE tried unsuccessfully to hire an occupational and physical therapist for the school. (Tr . 125-126)

testified that he is the student’s head teacher and he has been teaching since 2006. He is certified in general and special education. He has taught since 2009 and has done two home visits, one as recent as in October, 2011. (Tr. 142-145) The student has a ; the current plan has been in effect since July. He reviewed the behavior intervention procedure probe form and confirmed that it is the student’s current plan. The plan was developed in collaboration with him, the other classroom instructors and reviewed by leadership in the school. The plan has been very effective as evidenced by the in . He described the program book, its function and what is contained therein. As the student acquires skills in the different programs, it is noted and graphed. Programs are faded out as targets are achieved and new ones introduced. He reviewed the student’s list of targets mastered which covered through April or May, 2011. He stated that he considered the list of mastered targets prior to attending the May, 2011 IEP meeting. He described a typical day in school for the student and what was being worked on. His day is broken into half hour segments with different instructors. More programming on life skills have been added since a lot of the have abated. In addition, more exercise videos have been added. He has not observed any physical limitations pertaining to the student’s ability to follow the videos.(Tr. 146-148 and 150-154)(Exhs.9 and 10)

He discussed in detail how ’s are addressed in class and the different methods used to . Some of the approaches used to address those include using prompts, cues, textual and visual information as well as scripted conversations. (Tr. 155-

157) The student has made improvements in describing varied pictures and in his phraseology. He went to observe the student during his after session because the mother reported the student’s interfered with his . The teacher went to observe, make suggestions and share insight as to what was being done at school to keep the in check. A couple weeks later a therapist came to the school to observe the strategies that were successfully being employed at the school.(Tr. 159-162)

The teacher drafted the present performance information and drafted the initial goals. He described how the goals are targeted to address the student’s . The student continues to , such as who, what and where. However, since the have faded the student has shown progress in his ability to . His and we continue to work on developing them. has been successful with and . He continues to work on building models; he . He is quite adapt at working projects of that kind and drawing. He is working on typing data onto a spread sheet and is doing well. (Tr. 166-169 and 171-175) (Exhs. 3; 13 and 10) He recalled observing the student during after . He reviewed the occupational report dated May 1, 2011 and found the writing goal inappropriate. The teacher noted that the trend is towards electronic data and focus should be on using computers. The writing emphasized in school is more functional such as having the student write out his schedule and working on spreadsheets. (Tr. 181-182 and 183-185)

He reviewed the student’s report; he found the goals unrelated to making educational progress. He did not see any limitations pertaining to the student’s fine and gross motor skills. The student has made progress in making some of his physical activities goals. The student has made gains in his ability to tolerate instructions and to acquire skills across various domains. His has opened up other programming and affords him the opportunity to improve his skill acquisition in other domains. (Tr. at 191; 194-196 and at 197) (Exh. 11)

On cross examination, he admitted that some of the student’s as reported in the January 3, 2011 progress report were discontinued due to inconsistent progress. No additional social interaction goals were added in the April, 2011 progress report. Other goals were put on hold to reprioritize programs to .(Tr. 223-226; Exh. 8) The witness noted that the student does not have any deficits that impedes the teacher from instructing However, he admitted that the student does not have age appropriate handwriting skills. He acknowledged that a 60 word paragraph in14 point font is about five lines of text. The goal is inappropriate because the school emphasizes moving towards the digital age.(Tr. 231-232)

Mr. acknowledged that he is not trained in assessing skills motor skills. He further acknowledged that the student does not have whether the student had difficulty with He had not observed the student with the opportunity to participate in

On redirect, he explained that the school is focusing more on typing than handwriting of material because it is more functional to do so with the limited amount of time that they have with the student. It is more functional for filling out forms, sometimes forms have to be filled out on line and also in the work environment, where he would be more likely have to input data via a keyboard. The student’s fine and gross motor abilities have not interfered with his academic abilities. (Tr. 246-247 and at 252)

THE PARENTS’ CASE

The parents’ lead witness was , one of the student’s ; she has worked with him approximately two years. Ms. is certified and licensed as an occupational therapist in New York. Also, she holds certifications in Metronome and in handwriting. She provides three times a week, in 30 minute individual sessions. She described him as . The student’s ; she works on building up his endurance through various exercises. (Tr. at 257 and 259-260) The student becomes . She works on his sensory needs by using . The student had problems with transitioning, this year he has been doing well. In addition, metronome is used to help people regulate their bodies and to synchronize their bodies. It to increase his hand strength and to help with the modulation of his hand strength. , which impacts on handwriting. She works with him in the gym on activities. She explained that the CSE or the school. (Tr. 261-264 and 266-269)

On cross examination, Ms. Tang admitted that when she said the student had motor planning difficulty with more , such as Tai Quan Do, the difficulty could be attributed to as well as lack of . (Tr. 280-281) During redirect, she explained the importance of working on and how they impact on the child’s ability to learn and engage in academic activities. address the child’s ability to copy information from a board or a book. help the child to . She stated that the student has as opposed to because he to be . (Tr. 283-285; Exh. 11)

testified that she has a master’s degree in and is a licensed Occupational Therapist. She has taken numerous post graduate courses in and in work. She has worked in her field eight years. She works as an independent contractor for , providing th . She evaluated the child on June 9 , 2011, at the request of his mother, to assess his needs. She discussed and described the assessments she used to evaluate the student. (Tr. 306-309) The evaluation revealed the student has causing him . He has which requires . ; he needs , so that he is able to distinguish . (Tr. 316-317)

Some of the other deficits that were revealed from the evaluation is the student has his . His matching like objects. (Tr. 318-320) The student has difficulty with . He exhibited , without intervention he will regress more. She recommended that he needs 3sessions of in 45 minute sessions in .(Tr. at 326 and 332-333)

On cross examination, she opined that the May 1st, 2011 progress report did not contain any standardized evaluation. She acknowledged she had not met the student prior to her evaluation; she did not observe him in school or at home. (Tr. at 341) She stated that she believes the child’s “ comprehend the tactile information from holding the pen, that prompts and cues are not going to make him change his grip.(tr. 346-347) She commented that the OT progress report’s recommendation were not adequate to meet WL’s OT needs.( Tr. at 348; Exh. 11) On , therapy can be used collaboratively. (Tr. at 350)

Dr. , a licensed New York State has worked with the since 1999. In her current position as a senior physical therapist, she is the acting supervisor when her supervisor is out. She provides treatment to students and conducts evaluations. She evaluated the student in June, 2011. She interviewed the mother, gave her a form to fill out, administered some tests and observed him in the sensory gym at the center, engaged in different physical activities. She discussed some of her findings and explained that having him do certain exercises in a would address his numerous gross motor deficits. She concluded that the student had a in his when compared to children with his diagnosis; he had when compared to typically developing children. The student’s shows that he is able to process information from his system but struggles with . He has ; he when change. His . (Tr. 359-361; 364- 368 and at 382 )(Exh. D)

In addition, the student presents with , and . Dr. further explained that the student has an system which causes , creates difficulty in doing activities that requires . The student’s weak core impacts on his ability to sit for any length of time, his ability to use his eyes appropriately and to stabilize himself. She concluded that the student had a in his when compared to children with his diagnosis; he had a when compared to typically developing children. (Tr. 373-376 and 377-378) She reviewed the student’s IEP, January and April, 2011 progress reports and addressed the goals contained therein. The goals are not sufficient to address the student’s gross motor needs because they are not addressing the . She noted that goals identify certain tasks he is to perform and provides for him to achieve the task, by continuing to practice it until he memorizes it and is able to do it by rote. However, the fact that he can complete the task does not mean that he understands it.( Tr.400-402; Exhs. 3,7 and 8)

On cross examination, the therapist replied that she did not review any reports or observe the student at school prior to her evaluation. She based her evaluation on her observations.(Tr. 403-404) Moreover, she stated that she did not want to know what progress he was making in his because that would bias her opinion. She reviewed a report done by the student’s physical therapist; she agreed the goals were appropriate.(Tr. 413-414; Exh. 12) She explained that his delay was based on his level of functioning compared to students his age.(Tr. at 427) On redirect she stated that typically she does not review any documents prior to an evaluation because she did not want her opinion to be biased. The therapist was not aware of any physical development standardized tests that have been normed on students with autism. Usually with students like evaluations are done based on clinical observation because the children are not able to focus and engage for an extended amount of time, as required.(Tr. 431-433)

is the Clinical Director of ; she is a New York State licensed Speech and Language Therapist and is a Board Certified Behavior Analyst (BCBA) as of 2010. In addition, she is PECS trained and certified since 1997 in Prompt for Restructuring Oral Motor Phonetic Targets (PROMPT). She has been in her current position since 2000. In this capacity,. she oversees the entire clinic, including providers. She directly supervises his , him to say hello upon entering a room, he needs prompting to look at people and to interact with others. She noted that his has made this year. (Tr. 457 -461 and 463-465)

His ; the team works on and how to breathe appropriately in different positions. She acknowledged that and modeling is a part of addressing the problems and you still need a the child’s . She explained how PROMPT is used to help, it’s important to know the physiology.

On cross examination, she explained that one of the ways that her team works on The . It helps him to realize when he is component. Her team has worked with the student for the past three to four years and has been using since then. Last year both of his speech providers were ; this year one of the providers are . The student receives this year, one provider sees him three times weekly; the other twice a week.(Tr. 479-483 and at 485) She and the therapists who work directly with him collaborated on what his mandate should be. There was a reduction in services to 30 minutes; he cannot tolerate 60 minute sessions. Last year her team was in communication with his school; this year to date there has not been any communication between her team and the school. Ms. agreed that good communication between the two teams would be beneficial in meeting the student’s educational needs. She recalled at the beginning of the 2010 school year that the student became very non-compliant and remained so for most of the year until the summer of 2011. Due to then, had to be put aside until the maladaptive behaviors came under control.(Tr. 488-490 and 491-493) Modeling alone is not sufficient to . His two therapists work on the same goals, carryover and generalization. The charter school never said that was not necessary for the student. Last year, her team gave the school instructions on how to work with the student on . (Tr. 494-496)

The mother testified that she first realized her son had a disability when he was . He started receiving around . The parents returned to New York when he was about seven; he was placed in the . He has consistently received private related services every year since he started attending the charter school. (Tr. 499-502) The mother recalled receiving a letter from the CSE in January, 2011 requesting to do a evaluation. Also, someone contacted her by telephone requesting to do a of her son. She had not requested that the evaluations be done. She responded in writing to their letter, requesting to defer doing the evaluations because they were in the midst of litigation. She never told anyone at the CSE that she was opposed to having the evaluations done. The CSE never requested to have a or done. (Tr. 503-506; Exh. 14)

She attended the May, 2011 IEP meeting, there was no parent member at the meeting; she has never declined the participation of a parent member. She provided current progress reports from each of the child’s related service providers to the CSE prior to the meeting. None of the progress reports were reviewed at the meeting. S he had a to participate by telephone; the CSE choose not to contact her. There was no discussion regarding doing any evaluations or regarding the student’s needs for and PT except that Ms. (District Representative) arbitrarily reduced the therapy from two sessions weekly to one. The focus of the meeting was discussing strategies to get the student’s behaviors under control. (Tr. 506-509 and 510-512)

She provided copies to the CSE of the evaluations, in August, 2011 when they were finalized. The CSE has not contacted her to do any evaluations despite her letter to them in June, 2011indicating that she was now amenable to having the evaluations done. ( Tr.538-539; Exh. C) During cross examination, the mother acknowledged that the dance video and LEGO set she purchased for home use were not the same as the school’s video and LEGO set. The Yes/No program originated out of the charter school, the school was responsive to her request and modified it. (Tr. 547-550)

The parents’ final witness was , a pathologist and she is certified. She has been a speech pathologist for 25 years and prior to that she was a special education teacher for two years. She evaluated the student on May 4th and June 1st, 2011; she did not review any reports before hand to avoid being biased towards any information contained therein. She discussed her findings; she attempted to administer two measurements but had to discontinue because of the student’s . The development scale, based on the parent’s responses placed his language skills at the age of 5 years and 2 months. It was inflated, when she compared the response of his production in a naturalistic language sample, it was closer to a three year old (Tr. 556-558).

The student presents with difficulties. He understand him, especially if you do not have . His His greatest errors were . (Tr. 559-560 and 562-565) (Exh. F) She reviewed the IEP and reports only after completion of her evaluation. She found the IEP goals rote and rigid; they do not address the problem.(Tr. 572-573)

FINDINGS OF FACT AND DECISION

The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]). A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized educational program. The 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. 04-043).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1). If a student’s behavior impedes his or her learning or the learning of others, the CSE must “consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior” when developing,, reviewing and revising an IEP ( 20 U.S.C. §1414[d][[3][B][i]; see 34C.F.R. §300.324[a][2][i]; 8 NYCRR [d][3][i]).

The burden of persuasion in an administrative hearing challenging the IEP is on the party seeking relief. Schaffer v. Weast, 126 S.Ct 528,537[2005] In New York, it is the local educational agency (the DOE) that has the burden to establish that it appropriately ascertained the child’s educational needs and prepared an IEP in accordance with the procedural and substantive requirements of federal and New York State Regulations.

While both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Bd. of Educ. v. Rowley, 458 US 176, at 205[“the importance Congress attached to these procedural safeguards cannot be gainsaid”]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP” (Rowley, 458 US at 206; M.S. v. Bd. Of Educ. of the City of Yonkers, 231 F.3d at 102).Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129[2d Cir. 1998]) These detailed procedures “lie at the heart” of the statute ( Evans v. Bd. Of Educ. of the Rhinebeck Cent. Sch. Dist., 930F. Supp.83, 93 [S.D.N.Y. 1966]) They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. Of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 24 [S.D.N.Y. 2000]; Evans, 930 F.Supp. at 93).

In the instant matter the parents argue that the Department of Education has failed to provide the student with a FAPE on substantive and procedural grounds. The parents’ primary argument is that the District failed to develop an IEP on May 4, 2011 that would meet the student’s special education needs with respect to the related services that he needed. There is no dispute regarding classification or placement. The record is replete with testimonial and documentary evidence supporting the child’s needs for .

, a New York licensed reported that the student someone. He is his body awareness and to address his . His are .(Tr. at 313-314; 318-319) The mother testified how he . (Tr. 518-519) Ms. , a licensed has been treating the students for the past two years, she testified . She addresses his which impacts on his movements and . Both therapists are in need to improve his behavior. (Exhs. E and 11) However, they differ in their recommendations for . Ms. recommended continuation of his , weekly; Ms. recommended .

Everyone agrees that the student has deficits. Ms. testified that the student has . (Tr. at 57 and 157-158) Ms. testified extensively about the child’s deficits in expressive, receptive and skills. She spoke about the need for using , the physical of production of . She noted that his is which is She mentioned how her team is using an .(Tr. 479-480) The student has made progress; he is able to respond to some .(Tr. 460-461. Ms. , a licensed speech pathologist and certified has twenty five years experience in the field. She evaluated the student and found him recommended weekly. (Exhs. F and 13)

Dr. evaluated the student; she concluded the student had a in his skills when compared to children with his diagnosis and a when compared to typically developing children. (Tr. at 378) Her report indicates he presents with decreased muscle strength, poor body space awareness, impact on his gross motor skills development. Her findings are consistent with his progress report by his treating therapist; that therapist recommended . Dr. .

The student’s related service providers have testified uniformly that the student presents with , . The student has made progress in each domain, as documented in the progress reports.(Exhs. 11,12 and 13) The independent evaluations serve as an objective overview of the child’s needs for each of the therapies requested. Moreover, the evaluations confirm what his individual therapists have been reporting over the years and further document the the child has in the above noted areas. Also, they emphasize the need for these services as a means to improve his behavior so that he can be available for learning. I find based on the foregoing that the District’s failure to recommend the appropriate related services to meet the unique needs of the student resulted in denying the student a FAPE. I find the District’s argument that the above related services are not needed because the school programmatically addresses the , therapy needs not persuasive in this instance because the child presents across the three domains.

Equally unpersuasive is the District’s argument, that the parents’ initial request to defer evaluations because they were in the midst of litigation, constitutes a refusal to consent to the District’s request to do evaluations. Also, it is important to note that the District’s request for evaluations did not include a evaluation. The parents did notify the District by letter in June, 2011 that they were then amenable to having the evaluations done. (Exh. C and 14) The District did not follow up. (Tr.504-506) Moreover, the District’s failure to include the related service providers at the May, 2011 IEP is a violation of the Commissioner’s Regulations, which provides, in part: “The membership of each committee shall include, but not be limited to… other persons having knowledge or special expertise regarding the student, including related service personnel as appropriate…” 8N.Y.C.R.R.§200.3(a)(1)(ix).

It is undisputed that there were no service providers at the IEP meeting despite the District’s team knowing well in advance that related services were a critical component of the child’s educational program and that the parents were advocates for those services since 2007.( 501-502) The CSE’s failure to contact the providers, its refusal to consider providing additional related services( Exh. 3-10) and its decision to reduce the child’s speech therapy without any justification constitutes a denial of FAPE.( Tr. 507-508)

The District erroneously argues that the three prong Burlington/Carter test is the appropriate legal analysis in this matter. The parents did not unilaterally place the student in a private school or unilaterally seek private related services; they are not seeking reimbursement. The parents” …are merely seeking to maintain the related services they are currently receiving at the DOE’s expense pursuant to the IDEIA’s pendency provision, the Burlington-Carter test does not apply.” M.N. and H.N. v. New York City Department of Education, 700F.Supp.2d 356, 368(S.D.N.Y. 2010)

ORDER

The Department of Education shall continue the provision of weekly, individual sessions of the following related services for the remainder of the 2011-2012 school year: , five thirty minute sessions, The Department of Education shall reconvene within 10 days of the date of this Order and place the aforementioned related services on the student’s IEP. Dated: May 9, 2012

_________________________________

THERESA R. JOYNER, ESQ.

Impartial Hearing Officer

TRJ:jj

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

PARENT

A Impartial Hearing Request, 7/6/11, 4 pp. B Findings of Fact and Decision, 5/17/11, 27 pp. C Letter from Parent to CSE Chairperson, 6/22/11, 2 pp. D Evaluation, 6/17/11, 4 pp. E Evaluation, 6/9/11, 4 pp. F Evaluation, 5/4/11 and 6/1/11, 5 pp.

DEPARTMENT OF EDUCATION

2 Due Process Response, 8/4/11, 4 pp. 3 IEP, 5/4/11, 11 pp. 4 CSE Meeting Notice, 4/13/11, 1 p. 5 CSE Meeting Minutes, 5/4/11, 1 p. 6 FNR, 5/4/11, 1 p. 7 NYCCSA Progress Report, 4/1/11, 9 pp. 8 NYCCSA Progress Report, 1/3/11, 10 pp. 9 NYCCSA Behavior Plan, 7/11/11, 2 pp. 10 NYCCSA Target Responses, Various Dates, 31 pp. 11 Progress Report, 5/1/11, 4 pp. 12 Progress Report, 4/29/11, 4 pp. 13 Progress Report, 4/11/11, 5 pp. 14 CSE Case Closing Form, 1/22/11, 2/2/11, 2 pp. 15 Emails, 1/12/11-1/26/11, 6 pp.