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 31, 2011

November 8, 20122

December 6, 2011

Actual Record Closed Date: March 30, 2012

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

District Representative DOE 08/31/11

District Representative DOE 11/08/11

District Representative DOE 12/06/11 Attorney PARENT 08/31/11

Mother PARENT 08/31/11 11/08/11 12/06/11 Attorney PARENT 11/08/11 12/06/11

On August 5, 2011, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Parts 200 and 201 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act, concerning a dispute between the Parent of a (4) year old student who was attending public school, and the New York City Department of Education (“DOE”) - District 06, regarding the student’s special education program.

BACKGROUND

This case involves a ( who according to the Parent, has been diagnosed with , (“ ”) “…an .” (P-A) The student is presently age.” (Id.) The Parent is challenging the student’s Individualized Education Program (“IEP”) for the 2011-2012 school year, dated May 1, 2011. (Id.)

Prior to the expiration of the “resolution period”, the matter was set down for a “pendency hearing” on August 31, 2011. Both sides made oral arguments on the record concerning the issue of pendency and testimony on the issue was received from the student’s mother. A motion schedule was agreed to and subsequently amended as follows, at the Parent’s request: Parent’s Motion in Support of Pendency due September 13, 2011, DOE Opposition Papers, if any by September 20, 2011, Parent’s Reply Papers, if any, by September 23, 2011. (T-55 & E-Mail dated 09/10/11) On September 26, 2011, the following Order on Pendency was issued in this case:

“ORDERED that the DOE shall continue the student’s pendency placement and related services pursuant to the student’s IEP dated August 2, 2010, as modified by the student’s October 7, 2010 IEP, in the amount of (10) hours of SEIT services at home and related services as follows:

Status Related Services Language Location Ratio

I English Agy/Home/School - Lenox

I English Agy/Home/School - Lenox

I English Agy/Home/School - Lenox

I English Agy/Home/School (Id.)”

The matter then proceeded to a hearing on the merits on November 8, 2011 and December 6, 2011. A list of the persons appearing at the hearing and the documents received in evidence is annexed hereto.

THE DOE’S CASE

The DOE agreed to the Parent’s request for a “Nickerson Letter” and issued the same on October 13, 2011. (T-61-3 & D-1) The agency agreed to re-convene the Committee on Special Education (“CSE”) for the purpose of creating a new Individualized Education Program (“IEP”) for the student. (T-61-3 & D-13) The agency further agreed to conduct evaluations as necessary for the student. (T-61-3, D-10, D-11 & D-12) The DOE also issued Related Service Authorizations (“RSA”) for the student to . (D-2, D-3, D-4 & D-5) Finally, the agency agreed to conduct a ”) and develop a ”) for the student. (T-61-3)

According to the DOE, the only issues to be resolved at the hearing are the Parent’s request for additional services to compensate for service that have not been provided to the student, and the Parent’s off the record request for transitional services. (Id.) The DOE argues that the Parent’s request for transitional services is outside the scope of her Due Process Complaint. (“DPC”) (T-63) The Parent argues that the DPC includes a request for transitional service in its “Section 5”, where it alleges that the DOE has failed to offer the student mandatory services for . (T-64)

The DOE also opposed continuation of the student’s (10) hours per week of Special Education Itinerant Teacher (“SEIT”) services. (T-88) At the impartial hearing, the DOE did not call any witnesses to testify on its behalf and submitted (13) documents into evidence.

THE PARENT’S CASE

The Parent called one witness to testify on her behalf and submitted (39) documents into evidence. In sum, substance and relevant part, the testimony in support of the Parent is as follows:

The Parent’s only witness is the student’s mother. (T-26-7) She testified that she attended the student’s August 2, 2010 IEP meeting. (T-28) She received copies of “everything” at the IEP meeting. (T-29) They discussed changing the student’s preschool placement and “adding additional services.” (T-30) She requested “ ” services and the DOE representative requested . (Id.) The DOE agreed to provide the student with (10) hours of services at home. (T-31) In November, she started with a private service provider. (T-32) The student also received services during the summer months. (Id.)

The Parent stated that the student was supposed to be in school, but he wasn’t. (T-33) At the Committee on Special Education (“CSE”) meeting held in August of 2010, she requested for the student and was told that the student would receive that service both at school and at home. (T-34) The at home did not continue throughout the entire school year. (T-35-6) The student received both inside and outside of school. (T-37) Physical therapy was provided “at the agency” and in the school building during the 2010-2011 school year. (T-39) She did not receive a RSA for those services. (Id.)

The Parent stated that the student was receiving “2 x 30” physical therapy at school. (T-40) In addition to that, the student was receiving (10) hours of at home. (T-40-1) For the 2010-2011 school year, the student was in a “10:1:3 ABA play-based classroom setting.” (T-42) After the student’s August 2, 2010 IEP meeting, she understood and agreed that the student would attend a classroom setting (5) hours a day, (5) days per week, plus (10) hours of services and related services outside of the house. (T-43-4) She never received an assessment or an evaluation that would indicate that the student no longer needs or a lesser amount of “ ” or “ services.” (T-44)

On cross examination, the witness testified that the services that appear on page

(9) of the student’s IEP dated July 29, 2010 and August 2, 2010, were provided at school. (T-45-6) The student was being provided an additional (10) hours of . (T-46) She received progress reports from the student’s school based and providers. (T-49) She received a separate report from the student’s outside . (T-49-50 & P-M) were provided by a separate provider. (T-50)

On re-direct testimony, the Parent testified that she did not pay for the related services provided by the outside agency. (T-51-2) The DOE paid for those services. (T-52) There was no re-cross examination of the Parent. (T-52)

During voir dire, it was noted that there is one exhibit in evidence concerning the student’s home-based SEIT services. (T-48 & P-M) There are no reports in evidence that relate to related services at home for the student. (Id.) The Parent testified that she does not know what an RSA is. (T-53) She signed a document every time the SEIT provider came to the home. (T-54)

On re-re-direct testimony, the witness stated that she first suspected the student had a disability when he was around a . (T-92) The student received . (T-93) With the Committee on Special Education (“CPSE”), the student had an IEP. (Id.) The student requires a lot of reinforcement and has to be re-directed all of the time. (T-94) His teacher says that he cannot focus. (T-95)

The witness stated that she made efforts to implement the student RSAs. (T-96-6) The student started to receive on October 6th, on October 7th, on October 17th and at the end of October. (T-96) The student has not yet received . (T-97) She has contacted more than (13) school on “the list” in search of a placement for the student pursuant to the Nickerson Letter. (T97-8) She was told that they did not have space for the student, but that she could tour the schools for the 2012 school year. (T-99)

The witness stated that she was told the student was on the . (T-100) The student has trouble transitioning. (T-101) The student is presently receiving services. (T-101-2) She sees a lot of progress in the student, but he still needs a lot of reinforcement. (T-102) The student is receiving (10) hours a week of . (T-103)

On re-re-cross examination, the witness testified that she had not provided the CSE review team with medical information. (T-110) There was a school that rejected the student because they said that he was too aware for the classroom and . (T-112) Sometimes the student has a very difficult time adhering to . (T-114) The student always requires consistency. (T-116) Ten hours per week of were added for the student for the 2010-2011 school year, not for this school year. (T-120-1) There was no re-direct examination of the witness. (T-125)

FINDINGS OF FACTS & DECISION

The only issues to be decided in this case are the Parent’s request for compensatory services, transitional services and continuation of the student’s receipt of

(10) hours per week of . (T-61-3 & 88) All of the other issues initially raised in the Parent’s DPC have been resolved by agreement. (T-61-3, D-1, D-2, D-3, D-4, D-5, D-10, D-11, D-12 & D-13)

I first address the Parent’s request for compensatory services. Although there is evidence in the record that the student did not receive certain mandated services, there is no evidence that the student regressed as a result of the same. (T-33 & 96-9) In fact, the evidence is to the contrary as the student’s mother testified that she sees a lot of progress in the student, although he still needs a lot of reinforcement. (T-102)

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5[j][5][v]). It has also been held that denial of compensatory education under the IDEA is appropriate where3 the denial of FAPE did not result in regression. (See Wenger v. Canastota Cent. Sch. Dist., 979 F.Supp 147, aff’d 181 F.3rd 84 (2nd Cir. 2000)) Based on the record before me, I must deny the Parent’s request for compensatory education.

I next turn to the issue of whether the student should receive “transitional services.” The DOE argues that these services are outside of the scope of the Parent’s DPC. (T-63 & DPC) The Parent argues that the DPC includes a request for “transitional service” in its “Section 5”, where it alleges that the DOE has failed to offer the student mandatory services for children with . (T-64)

8 NYCRR § 200.13(6) states: “In those instances where a student has been placed in programs containing students with other disabilities, or in a regular class placement, a special education teacher with a background in teaching students with autism shall provide transitional support services in order to assure that the student's special education needs are being met.” (emphasis added) Here, the student’s previously agreed to IEP classifies the a student as a “pre-school student with a disability.” (P-D) The IEP in dispute classifies the student as having a “ .” (P-C) The student’s SEIT report does not identify him as being , but instead as “…demonstrating moderate to significant delays in his .” (P-M)

The student’s Bilingual Psychological Evaluation states that “Although [student name] experienced a traumatic event at approximately 16 months, this is the age where language loss can occur in the autism spectrum. Given his at the time of this evaluation, [student name] meets criteria for .” (P-X, emphasis added) The report does recommend continued . (Id.) The student’s Bilingual Social History report also does not identify the student as autistic. (P-S)

The student’s mother conceded that a school rejected the student because they said that he was too . I find that the record is devoid of any credible evidence that the student is autistic. What’s more, other than the Parent’s request for transitional services, the record is also devoid of any evidence regarding the nature of those services or why they are needed. Accordingly, I must deny the Parent’s request for transitional services.

There is support for the Parent’s request for continued services. (P-X) Moreover, the DOE agreed to provide the student with (10) hours of at home for the 2010-2011 school year. (T-31, 40-1, 46 & P-D) The student’s mother testified that she has never received an assessment or an evaluation that would indicate that the student no longer needs services, or a lesser amount of “ services.” (T-44) She also stated that the student is presently receiving services. (T-101-2)

The DOE bears the burden of demonstrating the appropriateness of the program recommended by its CSE, which in this case recommends removal of the student’s home services. (SRO No. 00-033, citing SRO Nos.: 93-9, 92-7 and Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]) Based on the record, I find that the agency has failed to meet its burden justifying removal of those services.

NOW, therefore, it is hereby

ORDERED that the Parent’s request for compensatory educational services is DENIED; and it is further

ORDERED that the Parent’s request for transitional services is DENIED; and is further

ORDERED that the Parent’s request for the continuation of (10) hours per week of home services for the student for the 2011-2012 school year is GRANTED; and it is further

ORDERED that the DOE, upon its receipt of reasonably satisfactory proof of that student has received (10) hours per week of home services, shall pay the costs of said services. Dated: April 11, 2012

_____________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer EDL:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

01 Nickerson Letter 10/13/11 DOE 01

02 RSA - 10/12/11 DOE 01

03 RSA - Therapy 10/12/11 DOE 01

04 RSA - Therapy 10/12/11 DOE 01

05 RSA - Services 10/12/11 DOE 01

06 Fax Confirmation 10/18/11 DOE 01

07 Letter to Parents 10/14/11 DOE 01

08 Letter to Parents 11/01/11 DOE 01

09 Fax Confirmation 11/01/11 DOE 01

10 Social History Update 11/07/11 DOE 02

11 Evaluation 11/16/11 DOE 03

12 11/16/11 DOE 03

Evaluation

13 CSE Review Letter 11/29/11 DOE 01

A Demand for Due Process 08/02/11 PARENT 04

B DOE Due Process Response 08/11/11 PARENT 04

C IEP 05/04/11 PARENT 13

D IEP 07/29/10 PARENT 13

E IEP 07/30/09 PARENT 15

H FNR 06/06/11 PARENT 01

I FNR & IEP 08/02/10 PARENT 01

J IEP Authorization Change 08/07/10 PARENT 01

K DOE Approval & 07/30/09 PARENT 01

Authorization

L CPSE Recommendation 07/30/09 PARENT 01

M Placement

Service 05/15/11 PARENT 3

N Weekly

Session Plan 09/27/10 PARENT 03

O

Eval 07/28/10 PARENT 29

P Eval 06/10/09 PARENT 03

Q Eval 06/10/09 PARENT 05

R Bilingual 05/28/09 PARENT 03

S Bilingual Social History 05/28/09 PARENT 05

T Bilingual Eval 05/28/09 PARENT 06

U Summary 01/13/09 PARENT 01

V bilingual Eval 01/07/09 PARENT 07

W St. Mary’s Bilingual Eval 01/06/09 PARENT 04

X RCDS Bilingual

Eval 11/28/08 PARENT 11

Y Summary 10/22/08 PARENT 02

Z Bilingual Fam.

Asses. 10/13/08 PARENT 07

AA Bilingual Speech

& Lang 10/09/08 PARENT 07

BB ’s Bilingual

Edu. Eval 10/07/08 PARENT 09

CC Teacher Therapist

Questionnaire 07/21/11 PARENT 02

DD Preschool Teacher Interview 04/14/11 PARENT 08

EE Teacher Observation Form 05/03/10 PARENT 1

FF Teacher Eval 05/13/10 PARENT 01

GG Progress Report 05/2010 PARENT 08

HH Progress Report 11/2009 PARENT 02

II Progress 10/04/09 PARENT 09

JJ Progress 05/07/09 PARENT 14

KK Letter 01/11/11 PARENT 01

LL Letter 10/17/09 PARENT 01

MM Letter 01/14/09 PARENT ^[01]

NN Consult Notes 12/17/09 PARENT 03

OO Parent Notes 06/2011 PARENT 10

Footnotes

[01] Parent’s Pendency Brief 09/13/11 IHO 37