NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 22, 2011
January 13, 2012
January 27, 2012
February 17, 2012
March 5, 2012
March 13, 2012
Actual Record Closed Date: April 9, 2012
Hearing Officer: Dora M. Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 22, 2011
ESQ., Attorney — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 13, 2011
Attorney — Student
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 27, 2011
ESQ., Attorney, — Student
ESQ., Attorney, — Student
Parents
ESQ., Attorney, — DOE
Assistant Principal, — DOE
Developmental Center West (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 17, 2012
Attorney — Student
Attorney — Student
Parents
Department of Education Attorney — DOE
Head Teacher at (Via Telephone) — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 5, 2012
Attorney — Student
Attorney — Student
Parents
Leaps & Bounds (Via telephone) — Student
Leaps & Bounds (Via telephone) — Student
SEIT Teacher (Via telephone) — Student
DOE Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 13, 2012
Attorney — Student
Attorney — Student
Mother — Student
ABA Provider (Via Telephone) — Student
DR., Clinical Psychologist (Via Telephone) — Student
Attorney — DOE
The parents of., by their attorney,, of the office of, requested an impartial — DOE
hearing on September 6, 2011. (DOE Ex. 1). I was designated to hear this matter on — DOE
September 8, 2011 pursuant to 20 U.S.C. Section 1415(f) (1). An impartial hearing commenced before me on September 22, 2011, on the issue of pendency. [1]
A hearing on the merits was scheduled for November 30, 2011 and December 8, 2011, but both dates were cancelled after the parents filed an amended Request for Due Process. In their amended request, the parents , request placement at (“Hawthorne”), additional (“ ”) and ”), and ); continuation of 10 hours at home ”) therapy, weekly team meetings supervised by a ”); monthly parent training and counseling by a , reimbursement and/or payment for an appropriate set of evaluations (including a comprehensive educational and and ) and compensatory relief for the 2009-2010, 2010-2011 and 2011 -2012 school years. (DOE Ex. 2).
On January 4, 2012, the Department of Education (“DOE”) moved to dismiss the parent’s claims for the 2009-2010 school year, as being time barred. (IHO Ex. I). I issued an Interim order defining the issues (see attached); and took testimony from the parent. On January 27, 2012, I ruled that the parents’ claims prior to September 6, 2009 were time barred. I ruled that the parent could present evidence regarding the appropriateness of her son’s educational program from September 6, 2009 forward. (Tr. pp. 125-130). The hearing on the merits then proceeded; and concluded on March 13, 2012. The compliance date was extended on four occasions due to the extensive testimony and issues, and due to the parent’s family issues. (IHO Ex. II, III, IV) Evidence Presented 2009-2010 School Year
. His classification is not in dispute. (Par. Ex. I). received (“ ”). (Tr. p. 688). In May 2009, he began receiving therapy as part of program. (Tr. p 585). In June
1. The Department of Education (“DOE”) shall continue to fund ’s placement at Country Day
School;
2. The DOE shall provide with SEIT services, ten hours per week, after school;
3. If the DOE has not previously issued RSA’s for the Occupational Therapy Services and the Physical Therapy Services it shall forthwith issue RSA’s for said services;
4. shall receive therapy twice per week for thirty minute sessions. 2009, the parent met with the DOE to plan for his preschool program. Ms. , the District Representative, stated that he would be recommending that attend ”) , a specialized preschool, where he would receive related services. He did not recommend any ABA or afterschool programs. (Tr. pp. 688-689). The staffing ratio was 8:1:3. (DOE EX. 3). [2] began attending in September 2009.
Ms. the assistant principal of , testified that ’s class consisted of eight students, a certified special education teacher, and three certified teaching assistants. Ms. is also certified to teach special education. The teacher met with an educational supervisor and the team, every two to three weeks. The school utilized the TEACCH (Treatment and and other . (Tr. pp. 139-141, 173-174, 191). The program utilized a lot of visual supports. Each student had an individual schedule. The students in ’s class were three and four years old. (Tr. p. 142). ’s teachers and providers worked from his June 10, 2009 IEP. (Tr. p. 147). assistance from the teacher and teaching assistants was provided to , as needed. (Tr. p. 224). Ms. testified that made progress during his time at . (Tr. pp. 157-158). She feels that was an appropriate school placement for him, and that it was geared toward his needs. (Tr. p. 175).
, the special education teacher assigned to ’s class during the 2009-2010 school year, testified that at the time, she had an internship certificate and was working toward her Master’s Degree in General and Special Education. (Tr. pp. 380-381). She testified that the TEACCH program utilized in the class was a program for teaching the children independence, social skills and sharing and playing with other children. (Tr. pp. 381-382). The children would sit, three or four to a table, and the teacher’s assistants would sit with the children and assist during circle time. (Tr. p. 383).
The school day included circle time (where the students would sing and play instruments and do movement exercises); and reading, with the teacher reading aloud with visuals and asking simple questions. The students would work on math (including counting objects and sorting) at tables. They worked on writing the first letter of their names and singing ABC songs. The class also included cooking activities and science.
Socializing with peers and adults was an important part of the class. Socialization occurred during table time, center time and in the playground. Students worked on greeting their friends and sharing. The students varied in their behaviors. (Tr. pp. 383387).
Ms. mother, testified that the 2009-2010 school year was not a good year for . When she went to see him in the classroom, he was wandering around the room in circles, still stuck on the first activity of the day. Within the first few weeks of school she noticed that he was not participating in a circle time and had a lot of tantrums. She felt that he lost some of the he had previously acquired. When she discussed his behaviors with the teacher, she said was adjusting. Mr. told her to wait for the first progress report to see what was going on. (Tr. pp. 692-693).
In the Educational Progress Report dated October 2009, Ms. reported that was able to follow classroom rules and routines; but was unable to sit during circle and table time activities. When redirected, he and . It was reported that he began to show enjoyment in social interactions such as in circle time, playground and music and movement. toward more independence in . (DOE Ex. 16). Ms. testified that’s enjoyed certain activities including using manipulatives and playing with farm animals. She stated that once adjusted, he would participate in circle time with an assistant seated next to him. (Tr. p. 388).
In a report dated October 2009, the reported that accompanied by one to two words, that he is able to , . He was able to follow . He benefited from the use of a visual schedule which aided in his transitions between tasks. (DOE Ex. 17). In a report dated October 2009, an at J reported that in his participation in therapy tasks. She reported that responded to deep pressure which calms him, and enables him to engage in a five minute activity with good attention. and did well with fine motor and eye hand coordination tasks. (DOE Ex. 18).
Ms. . testified that she did not see the progress which was reported. She testified that did not bring home any new words or songs. (Tr. p. 693). She wrote to Mr. , and requested a CSE review, which was scheduled for January 2010. (Tr. 156, 695).
In a January 2010 report, Ms. reported that . She reported that is able to follow through the use of ; but that he during . When directed to . Socially, such as in circle time, playground and music and movement. with toys and materials. In language (DOE Ex. 23). reported progress in his receptive and expressive language skills. (DOE Ex. 24). His reported that sensory activities were employed to help organize . He had begun to use a compression vest in order provide deep tactile input to his body for a calming effect, which was reported to make a difference in his ability to engage in classroom activities. (DOE Ex. 25).
At the January 11, 2010 CSE meeting, Ms. requested that receive 10 hours per week of therapy; but Mr. told her that since was in a full day program, he could only recommend five hours per week of ABA therapy. (Tr. pp. 695-696).
Ms. testified that at the January 11, 2010 meeting the mother expressed concerns regarding at home; and that the team spoke with her about ways they could work together to help him. (Tr. p. 402). The team decided to give five hours per week of home services to assist with his academic skills, and due his difficulty coming back to school following a holiday or break. (Tr. pp. 403-405). The team felt that 10 hours per week of at home service would be too much, since was receiving five hours per day of instruction in the classroom. (Tr. p. 404).
The five hours per week of ABA therapy was provided by . Ms. reported to the mother that she needed more time with , because she spent part of the time addressing his behaviors. (Tr. pp. 697-698). Ms. testified that after the five hours per week of SEIT hours was added to program, he improved in his academics, language and behaviors, between January and April 2010. (Tr. p. 409). The SEIT came to ’s class and spoke with Ms. periodically. (Tr. pp. 442, 446).
Ms. . testified that both she and the teachers saw a little progress after the five hours per week of therapy was initiated, but Ms. . felt that he needed the ten hours per week he received previously, to continue the progress he was making. She asked Mr. to come observe at her home. He came to observe him, and scheduled another CPSE review on April 8, 2010, at which time the CPSE increased ’s ABA hours to 10 hours weekly, and added PT, twice per week for thirty minute sessions, to ’s IEP. (Tr. pp. 698-700; Par, Exs O, Q).
In an April 2010 progress report, Ms. reported that requires heavy use of . He required one to one assistance to remain in his workstation and attend to tasks. had . He preferred to wander around the class. He remained in the play center for no more than three minutes. He had increased . He was goals. He to 2-4 words more consistently. He was . (DOE Ex. 20). ’s reported improvement in ’s participation in a . A compression vest was provided to increase his . was noted to benefit from participating in play with swings. began to , through a brushing technique. (DOE Ex. 21).
Ms. testified that progressed in his math skills, from being able to count to five at the beginning of the year; to rote counting from one to ten at the end of the year. (Tr. p. 389). In terms of social skills, progressed from having no social skills to being able to sit next to another child and interact during circle time. (Tr. p. 391). He also progressed in his ability to recognize colors, letters and shapes, and drawing a circle. (Tr. p 395). She felt that was an appropriate placement for during the 2009-2010 school year, as demonstrated by his improvement in interacting with peers, singing, playing with instruments, and with shaving cream and water .(Tr. p. 412).
Ms. testified that although he initially had a difficult time following the classroom routine, over the course of the 2009-2010 school year, ’s skills increased, and he showed improvement in his . He was and (Tr. p. 164). ’s mother participated in parent support groups run by the social worker and educational supervisor, and was at the school quite often. She also met with the occupational therapist regarding the use of a . (Tr. p. 170). Parent support groups addressed issues including the use of visual schedules at home, behavior and toilet training. (Tr. p. 171).
, a certified special education teacher with a background in , testified that she began providing home to in May 2009 (10 hours per week), when he was receiving . Those services ended in August 2009. In around November 2009, Ms. contacted Ms. due to her concerns that was having and not sitting in class. (Tr. p. 586-587, 589). Ms. went to see in his class at , and observed that he was not sitting or participating during circle time, and that he needed a lot of adult direction. (Tr. pp. 587-588). Also, he was not demonstrating to his teachers that he could request items in a sentence; although this was a skill he demonstrated during . He demonstrated his ability to request juice, however, from Ms. , at the time of her visit. (Tr. pp. 588-589). She felt that was not appropriate for , since it was not an school; and had been showing significant progress with . (Tr. p. 590).
In January 2010, Ms. resumed working with , five hours per week. She testified that while made some progress with the five hours per week of , more hours were requested. Because had , it would take him 30 minutes to calm down, before they could begin to sit down and work. (Tr. pp. 592-593, 632). In a letter dated February 7, 2010, requesting the additional hours, Ms. noted ’s regression since services were discontinued. (Par. Ex. DD). The request for an increase to 10 hours per week was granted, and in May 2010, Ms. began working with him 10 hours per week until August 2011. (Tr. pp. 594-595). From that point forward, made progress in his language abilities, matching and labeling letters and identifying numbers. (Tr. p. 633). 2010-2011 School Year
In September 2010, Ms. . enrolled at (“QSAC”), which had an ABA program. According to Ms. , performed well with the school program, and continuation of 10 hours per week of . (Tr. pp. 601, 700-701). [3] 2011-2012 School Year Evaluations and CSE Review
In a February 2011 progress report, , ’s classroom teacher at noted ’s difficult behaviors in an setting. She wrote that requires , and recommended that he enter a class with a and a paraprofessional to meet his needs. She further recommended that receive three times weekly individually, as well as twice per week, for thirty minutes in a group. She wrote that ’s communication skills need building, as his inability to express his wants contribute to his . (Par. Ex. BB). His wrote that while ’s and had been noted, he should receive at least four times per week to further develop age appropriate . (Par. Ex. CC).
On March 7, 2011, Dr. , a clinical psychologist in the of Columbia University, provided a research summary, including tests performed of . met the criteria for classification with an (“ASD”). On the Vineland Adaptive Behavior Scales, 2nd edition, achieved a composite score in the low range, corresponding to the 1st percentile rank. On the Differential Ability scale (DAS-II), ’s were a age expectation. His were more . On language testing, ’s standard score was in the . It was recommended that he (“ ”) and intervention plan, that he continue to , and that he be further re-evaluated by someone with with ; that he continue to receive a home program to ensure generalization of learned skills and to address his in the home and community. (Par. Ex. X).
On May 13, 2011, , a school psychologist employed by the DOE conducted a reevaluation of . As background information, it was reported that had adapted to morning routines and had shown improvement in his . His teacher reported that he . During structured time he was able to remain seated for at least ten minutes with prompts. On the Kaufman Survey of Early Academic and Language Skills, ’s vocabulary score was in the ; he recognized body parts and almost all of the alphabet letters, but did not print his name when asked. On a numbers, letters and words task, he performed in the average range. On letters and word skills, he put forth a solid performance and identified two words (Me and Mother). On the Stanford Binet-5th Edition, ’s functioning was measured to be within , with no significant difference noted between non-verbal and verbal scales scores. , presented with . He was highly distractible and very restless while on his seat. It was recommended that be placed in a highly structured setting with a based instructional and language and other required services. (Par. Ex. W). Ms. testified that Mr testing took only about 30 minutes. She testified that had a .[4] (Tr. p. 704). She felt there were errors in the report, which she pointed out to Mr. She testified that he made some corrections, and that the final report is the one in evidence.
(Tr. p. 706). Specifically, she told Mr. that he should not have dictated letters to , because he cannot write. (Tr. p. 706).
On April 11, 2011, was evaluated by Mrs. , a at . ’s’ overall intelligibility was judged to be fair to poor. On the ( ), ’s and were in the first , indicating . He had . It was recommended that receive individual speech and language therapy five times per week for 60 minute sessions, to focus on improving oral movement, vowel production increasing phonemic repertoire, expressive vocabulary skills, with small group therapy recommended three times per week to focus on pragmatic skills. (Par. Ex. GG). The parent is requesting reimbursement in the amount of $500.00 for this evaluation. (Tr. p. 711).
On May 26, 2011, Ms. participated in ’s “turning five” CSE review. (Par. Ex. I; Tr. p. 608).[5] At that meeting, the CSE recommended that attend a Special Class in a specialized school with related services of , four times per week for thirty minutes, and once per week in a group of three for thirty minutes; three times per week for thirty minutes and twice per week for thirty minutes. (Par. Ex. I, J). The CSE did not recommend after school . (Tr. p. 733).
The review team included both parents, Mr. (who acted as the school psychologist and district representative), a special education teacher, Ms. and a program director. (Par. Ex. I, 13). Ms. . tried to bring up the issue of home , but Mr. told her that he could not address it at the meeting. She also tried to discuss the findings of the St. ; however Mr. stated he could not take it into consideration, or offer the level of service that was recommended (5 x 60). (Tr. p .729). Following the meeting, on June 14, 2011, the DOE sent the parent a Nickerson letter, and she enrolled in , effective September 7, 2011. (Tr. p. 730 Ex. E, H). The DOE issued a Related Services Authorization (“RSA”) for the services recommended in ’s IEP; and Ms. arranged for the services to be provided through an outside provider, , which has a . (Tr. pp. 6, 479-480; 501-502)
Ms. testified that without afterschool therapy, “ ”, which includes . (Tr. p
.735).[6]
Ms testified that in her opinion, continues to require after school, 10 hours per week, to continue his . (Tr. p. 611). She testified that a school that uses strategies throughout the day is an appropriate school setting for him. (Tr. p. 636).
On September 1, 2011, at the request of the parent, , , an educational consultant, performed an “educational evaluation” of consisting of an observation of at home, during his home therapy session, and a review of records. There is no indication in her report that she conducted any formal testing. She recommended that continue to receive 10 hours per week of home on . (Par. Ex. V-6). The parent is requesting reimbursement of $900.00 for this evaluation.
On September 22, 2011, Dr. , a school psychologist, performed an evaluation of . Prior to evaluating him, she did not review the DOE performed four months earlier. (Tr. p. 650). She did review Ms. ’s September 1, 2011 evaluation. (Par. Ex. U-2). She performed a full scale battery of the Stanford-Binet Intelligence Scales, fifth Edition. achieved a full scale score of , in the .[7] His full scale in the . was observed , when he could not get immediate gratification of his needs. He entered the . He . He . Due to Dr. clinical observation and the test results, she recommended that he continue to receive previous interventions at home. (Par. Ex. U5). She testified that ten hours per week of therapy would provide him the amount of intensive remediation he needs to compensate for his , and to develop compensatory strategies which are slow to develop, particularly in light of his . He also needs and a great deal of repetition due to his short term memory difficulties. (Tr. pp. 565-567). The parent is requesting reimbursement of
$2,000.00 for her expenses in securing Dr. . (Tr. p. 709). She testified that she shared all of the private evaluations, including Dr. evaluation, with the DOE, because she wanted them to consider providing with additional services. (Tr. pp. 713, 736, 772). She never requested that the DOE perform any evaluations, prior to securing any of the private evaluations, for which she seeks reimbursement. (Tr. p. 768).
, the Head teacher in ’s class at , testified that he is state certified in special education. He is responsible for executing the goals and objectives of the students’ IEP’s and all data recording. (Tr. pp. 239-241). Mr. has two teaching assistants. There are six students in the class, ranging in age from five to seven. The students students receive instruction in reading, writing and math each day. They also receive instruction in art and social studies. (Tr. pp. 245-246). Physical education is taught by another teacher. (Tr. p. 247).
Students receive group instruction for music and art; however most instruction is given individually or in a group of two. The students receive all of the they are mandated to receive. (Tr. p .249). receives of school through . (Tr. p. 272, 274276). Mr. began teaching ’s class in November.
Mr. described as “strong” academically. He reads well in comparison with the other students. He is just starting to learn addition. (Tr. p. 250). can remain seated for twenty minutes, with reinforcements, including toys and edibles. Without reinforcers, he will leave the instructional area, and he may become very upset if redirected to the instructional area. (Tr. p. 251-252) A mat is placed underneath him for his protection. (Tr. p. .253). The staff is in the process of developing a for , in consultation with his prior school and his mother, and based upon data collected at the school. (Tr. pp. 252, 255, 256).
Referring to ’s last IEP (Par. Ex. I). Mr. testified that he is working on many of the goals, including goals for , (sitting at table top for ten minutes); increasing fine ; mastering association for letters of the alphabet, ; understanding books read to him; printing half of the alphabet letters; and producing simple pieces of writing; printing single digit numbers during math activities; addition and calendar skills. (Tr. pp. 263268). Gross motor goals are addressed in gym. (Tr. p. 265).
He testified that staff rotates among the students, in working on goals, to promote generalization. (Tr. p. 270). He described ’s progress in (answering and requesting times in complete sentences; answering Wh questions); fine ); reading (sight words and sound-symbol association; understanding books read to him); writing (he can write seven letters); and matching numbers. (Tr. pp. 269-283). He also works with him on elated goals including pronouns, plurals, prepositions, and answering questions of personal information. (Tr. p. 288). receives twice per week at school, for thirty minute sessions. (Tr. p. 290). Some sessions are provided on a push-in basis. (Tr. p. 291). Mr. Heimann is supervised by , who has a Ph.D. from Teacher’s College and an ABA background. Dr. also helped him write ’s FBA. He testified that is an appropriate placement for . He testified that ’s ; but that he has shown improvement over the year. (Tr. pp. 292, 370).
utilizes methodology, collecting data throughout the day. (Tr. p. 295). receives the majority of his instruction with another student, in a dyad, for approximately four hours each day. (Tr. pp. 286, 295-296). Mr. testified that the teachers try to provide at least a couple of hours of instruction in the morning when the students are the most focused. (Tr. p. 356). The teachers take turns working with the individual students. When the other student in the dyad is receiving instruction, ; and will be rewarded for . (Tr. p. 305).When the other student is out of the room receiving related services, receives one-to-one instruction. He interacts . will parallel play, but needs and to wait for a toy. (Tr. p. 297).
, which interfere with his play and instruction. (Tr. p. 300). Soon after taking over ’s class, Mr. began work on a , due to the fact that , other students. would also . (Tr. p. 309). Ms. also reported to him that . (Tr. p. 316). The FBA has not been formalized; however the . (Tr. p .350; Par. Ex. KK). , but the instances have decreased since Mr. began teaching the class. . (Tr. p. 365).
, a certified , testified that she works with children with at , a pediatric clinic with a . (Tr. pp. 457-459). Since September 2011, Ms. has provided to , three times per week for 30 minute sessions. starts his sessions in the , and then proceeds to do . She testified that . He also requires a lot of . (Tr. pp. 461-462, 490). She testified that since September, has improved in his ability to transition between activities, and has increased his ability to sit from 2 minutes to 10 minutes. She testified that the sensory input he receives in the sensory gym helps him to have decreased. (Tr. pp. 466, 488-489). His handwriting and motor planning have also improved. (Tr. p. 491492).
In a written report dated November 30, 2011, Ms. recommended that continue to receive OT, 3x 30, individually, in an environment where he gets consistent sensory input. (Par. Ex. MM).[8] At the hearing, however, she testified that as of January 2012, due to his , requires two more sessions per week (a total of 5 x 30) in order to make more meaningful progress. (Tr. p. 478). Nevertheless, she acknowledged that his current progress is meaningful. (Tr. p. 497). His needs to be provided in a location which provides Tr. p. 483).[9]
, a certified physical therapist, testified that she provides to , twice per week for thirty minute sessions in the sensory gym at . (Tr. pp. 501-503). In a written report dated March 3, 2012, Ms. reported that has been making “slow but steady progress in physical therapy with ”. Specifically, he made progress in climbing stairs, jumping forward, catching a ball and kicking a ball. His lack of appropriate skills with respect to locomotion and object manipulation was reported to interfere with his ability to participate in classroom activities and play activities with his peers. She recommended a CSE evaluation. (Par. Ex. LL). At the hearing, she testified that has made only very limited progress within the thirty minute sessions. She testified that she needs to devote the first 15 to 20 minute of each session to work on his , and work on gross motor skills. She testified that he requires a minimum of two forty-five minute sessions, in a , away from other children so that he can . (Tr. p. 507). She testified that she was told by her workplace she could not make a recommendation for additional services, so she recommended a CSE evaluation. (Tr. p. 508). In an earlier report, dated February 14, 2011, Ms. recommended two sessions for sixty minutes each. She testified that at that time she was not prohibited from making specific recommendations. (Tr. p. 509). Ms. collaborates with the and her supervisor, and ’s mother, so that they are addressing ’s needs as a whole. (Tr. p. 520).
, a BCBA, testified that she is working towards her Ph.D. in learning and behavior analysis. Ms. began working with in December 2011. She sees him three times per week for two hour sessions, for a total of six hours per week, in his home. (Tr. pp. 527-529). Another therapist provides an additional four hours per week of therapy. (Tr. p 530).
When she first began to work with him, could sit for only three minutes, or five minutes with . (Tr. p. 528). He required for every single response he gave. (Tr. p. 531). In terms of language, he could label very preferred items, but would not request things which were out of sight. He , and . (Tr. p. 532). She has been working with him on , describing items by , answering . (Tr. p. 533). She testified that there has been a lot of progress in his ability to answer questions and describe objects. (Tr. pp. 534-535). His attempts to escape from tabletop work have decreased. (Tr. pp. 535-536). He has also shown progress in math, and . (Tr. pp. 536-539). He has also made progress in his , including giving instructions and use of pronouns. For most programs, Ms. uses discrete trials. (Tr. p. 534).
In January, Ms. observed at school, in an effort to coordinate her efforts with the school. (Tr. pp. 544-545). She observed that was performing well, reading sight words which were presented, and responding to very . (Tr. p. 545). She observed that was on a continuous schedule of reinforcement and could attend for a maximum of five minutes. (Tr. p. 546). She discussed ’s with the teacher’s supervisor and learned that a plan was being developed. (Tr. p. 547). ’s teacher asked is similar to what is used in the class. She also tried to work on skills being worked on at school. (Tr. pp. 565-566).
She testified that is appropriate for , because it breaks complex skills into small units, and provides opportunities for practicing the skill. (Tr. p. 547). She testified that he needs a lot of after school to practice skills, to learn, and to generalize skills across environments. (Tr. p. 549). She testified that the amount of he receives at this time is the minimum he should be getting; and that ideally he should receive fifteen to twenty hours of services, including services over the weekend. She testified that when she does not see him for a week, she observes regression in his behaviors, and sessions are less productive. (Tr. p. 558). Ms. works from goals in ’s IEP’s and from problems identified in assessments. (Tr. p. 563). Since she began working with him he has made a lot of progress toward his goals, , in and wh questions. (Tr. p. 573). Parents’ Position
The parents’ position is that (1) was denied FAPE during the 2009-2010 school year, and is therefore is entitled to an unspecified “bank of hours for after-school ”; (2) ’s current placement at coupled with 10 hours per week of home , with afterschool in a is an appropriate placement for ; but that he should receive an increase in all of his related services as follows: (a) increase from three to five thirty minute sessions per week; (b) increase from two thirty minute sessions per week to two fortyfive minute sessions per week; (c) increase from five thirty minute sessions per week to five sixty minute sessions per week. The parents also request one hour per week of parent training and counseling by a , and reimbursement for the three private evaluations she obtained ( ; ). The parents also request a neuropsychological evaluation at district expense and transportation in an air-conditioned minibus with a and limited time
10 travel. (IHO Ex. VI). Department of Education Position
The DOE’s position is that the DOE provided with a Free Appropriate Public Education (“FAPE”) during the 2009-2010 school year and that therefore, he is not entitled to compensatory education. In addition, the DOE maintains that although it could not meets its prong I burden with respect to the 2011-2012 school year, and issued a 10 Although the parents requested a evaluation and special transportation in an air-conditioned mini-bus with a one-to-one paraprofessional in their Amended Complaint, no evidence was presented to support either request. Nickerson letter, the DOE presented evidence that ’s is making progress in his placement at and that he does not require additional services (DOE Ex. V).
Findings of Fact, Conclusions of Law and Order
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The special education provided by a district must be meaningful, and provide the opportunity for more than only trivial advancement. Walczak v. Fla Union Free School District, 142 F. 3d 119 (2d Cir. 1998) .
Within the Second Circuit, compensatory education, in the form of supplemental special education, has been awarded to students who remain eligible for special education, where there has been a denial of FAPE. Application of a Student with a Disability, Appeal No. 11-021 (citing P. Newington Bd. Of Educ., 546 F. 3d 111 (2d Cir. 2008). 2009-2010 School Year
I find that the educational program provided for for the 2009-2010 school year was reasonably calculated to enable him to receive a meaningful benefit, and that he did in fact progress during that school year. During the 2009-2010 school year, was placed in a class of eight students, with a certified special education teacher, and three certified teaching assistants. The school utilized the TEACCH methodology a program for children with autism which teaches the children independence, social skills and sharing and playing with other children. received related services of , and as of April 2010, . The school also provided parent support groups run by the social worker and educational supervisor, which addressed issues including the use of visual schedules at home, behavior and toilet training. Ms. . also met with the regarding the use of a weighted vest and a therapeutic brushing program.
Although school records support the parent’s testimony that had difficulty sitting and would tantrum, as of January 2010, (before therapy was added to his program), his teacher reported that progressed in social interactions such as in circle time, . also improved in his . In language, made progress in his ability to communicate his needs through the use of and . ’s therapist reported progress in his receptive and . His reported that were employed to help organize . He had begun to use a in order provide , which was reported to make a difference in his ability to engage in .
Ms. testified that progressed in his math skills, from being able to . In terms of social skills, progressed from having to being able to . The fact that the CPSE later agreed with the parent’s request to to ’s program is not evidence that the program was .
For all of the foregoing reasons, I find that the DOE sustained its burden of proving that was provided a FAPE during the 2009-2010 school year. (Board of Educ. v. Rowley, supra; Walczak v. Fla Union Free School District, supra. Therefore, the parents’ request for compensatory education is denied. 2011-2012 School Year The DOE conceded that it was unable to meet its burden of proving that it provided with a FAPE for the 2011-2012 school year. Both parties agree that ’s school placement at Hawthorne is appropriate. What is in contention is whether that placement, by itself, is sufficient to enable to receive meaningful educational benefits.
1. Home
Based upon the documents in evidence and testimony, I find that continues to require 10 hours per week of at home , in addition to his school placement, in order to make meaningful progress toward his IEP goals. The record is clear, that despite three years of intervention, ’s difficult behaviors persist. Dr. recommended that continue to receive a home to ensure generalization of learned skills and to address his behavioral dysregulation in the home and community. Ms. also testified that needs a minimum of 10 hours per week of after school to practice skills, to learn, and to generalize skills across environments. Since she began working with him he has made a lot of progress toward his goals,
Dr. testified that ten hours per week of therapy would provide the intensive remediation he needs to develop compensatory strategies which are slow to develop, particularly in light of his behavioral difficulties.
The above recommendations are consistent with the report of , ’s classroom teacher during the 2010-2011 school year, that , requires a higher level of service.
2. Request for Parent Training and 8 NYCRR 200.1(kk) defines parent counseling and training as “assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child’s individualized education program.” 8 NYCRR 200.13 requires that educational programs for students with include, as a component, parent counseling and training, for the purpose of enabling parents to perform appropriate follow-up intervention activities at home.
Neither party presented evidence regarding the availability of parent counseling a Hawthorne, or the amount of parent counseling the parent requires. Therefore, the CSE should determine an appropriate amount of parent counseling and training, taking into account the availability parent counseling and training at ’s school. Therapy
The parents request an increase in ’s from five thirty minute sessions per week, as recommended in the challenged IEP to five sixty minute sessions, as recommended in the evaluation. At the time of the evaluation, was receiving only two sessions per week of
ST. (Par. Ex. GG).[11] The challenged IEP provided for an increased level of , to four individual sessions, and one group session, for thirty minutes each. This recommendation was consistent with the recommendations of ’s classroom teacher, Ms. and his prior provider. Inasmuch as the CSE’s recommendation is consistent with the recommendations of ’s providers, I find that the parents have failed to demonstrate that requires five sixty minute sessions of in order to make educational progress.
3.
In their closing brief, the parents requested that ’s services be increased from three thirty minute sessions to five thirty minute sessions per week, after school, in a sensory gym. Ms. testified, however, that has been making meaningful progress with his current mandate of three thirty minute sessions per week. Therefore, the parents’ request for additional services is denied.
The DOE has agreed to provide an RSA so that he can continue to receive his OT, after school, in a sensory gym.
4. Physical Therapy
Ms. testified credibly that requires longer sessions (with an increase from thirty to forty-five minute sessions) due to his . She explained that it takes 15-20 minutes just to , so that they can work on his goals. The CSE should reconvene to increase his sessions to forty-five minutes. In addition, an RSA should continue to be provided, so that can receive these services after school, in a .12
6.Reimbursement for Evaluations
A parent has the right to one independent evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees; provided, however the school district is not responsible for funding the independent evaluation if it demonstrates that its evaluation is appropriate. 8 NYCRR 200.5 (g) (1). In order to qualify for funding for the independent evaluation, the parent must identify the specific evaluation with which she disagreed. It is not sufficient that the parent disagreed with an IEP. Application of a Student with a Disability, Appeal No. 11-001.
In these proceedings, the parent identified only one evaluation with which she disagreed; Mr. ’s May 2011 . She testified that she disagreed with the evaluation, because
(1) it was of short duration, (2) either prior to or during the evaluation and (3) because she felt Mr. should not have dictated letters to . While the DOE did not present any testimony to support the appropriateness of Mr. evaluation, neither did the parent demonstrate the appropriateness of either the independent by Dr. or the Educational Evaluation of Ms. .
The DOE already agreed to provide the RSA for PT, but at the recommended level of 2 x 30.
Dr. admitted that prior to conducting her evaluation, she did not review Mr. s evaluation conducted just four months prior. Had she done so, she would not have repeated the Stanford-Binet- 5th edition; but would have conducted different testing. Nothing in Dr. ’s testimony discredited Mr. s evaluation. She testified that the Stanford-Binet was the most appropriate test to administer to ; and she agreed with his description of ’s . Ms. conducted an observation of , and no formal testing. It is not clear which evaluation the parent disagreed with, when she arranged for Ms. to observe . She testified that she was trying to convince the DOE to fund additional services for .
Finally, there is no indication that the DOE conducted a evaluation. Therefore, there is no basis for the parent to request funding for her independent evaluation. For the foregoing reasons, the parents’ request for reimbursement for their private evaluations is denied.
7. Funding for Neuropsychological Evaluation
No evidence was presented to support the parent’s request for funding for a neuropsychological evaluation. Therefore that request is denied.
8. Special Transportation
No evidence was presented that had special transportation requirements. Therefore the parent’s request for transportation in an air-conditioned mini-bus with a bus paraprofessional and limited time travel is denied.
For all of the foregoing reasons, it is hereby ordered as follows:
1. The CSE shall reconvene within 10 days of this order to add 10 hours per week of ABA therapy to ’s IEP, and shall continue to provide those services for the balance of the 2011-2012 school year. ’s mandate shall be increased to two times per week for forty-five minute sessions. The DOE shall continue to provide an RSA for ’s and services for the balance of the 2011-2012 school year, so that he can continue to receive both services after school, in a .
2. At the CSE review, the CSE shall recommend an appropriate amount of parent training services, taking into account the availability of parent training and counseling services provided at ’s school.
3. The parents’ requests for compensatory education, reimbursement for the Educational Evaluation, Evaluation and Evaluations, a evaluation and specialized transportation are denied. Dated: April 20, 2012
DORA M. LASSINGER, ESQ.
Impartial Hearing Officer DML: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 THE RECORD ON SEPTEMBER 22, 2012
PARENT DESCRIPTION
A Demand for Due Process dated 9/6/2011, 12 pages B IEP dated 10/22/2010, 16 pages
DEPARTMENT OF EDUCATION DESCRIPTION
1 IEP, 5/26/11, of 13 pages
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 13, 2012
PARENT DESCRIPTION
C Due Process Response dated 9/15/2011, 3 pages D Interim Order on Pendency dated 9/23/2011, 5 pages E P-2 Letter from dated 8/31/2011, 2 pages F Letter from to dated 7/11/2011, 1 page G Letter from to Parent dated 7/11/2011, 1 page H P-1 Letter dated 6/24/2011, 1 page I IEP dated 5/26/2011, 13 pages J IEP dated 5/26/2011, 16 pages K IEP dated 8/24/2010, 17 pages L Records for Sessions at QSAC, dated 11/8/2011, 4 pages M CPSE Final Notice of Recommendation dated 10/22/2010, 1 page N Department of Education Authorization of IEP dated 9/1/2010, 1 page O Department of Education Authorization dated 4/9/2010, 1 page P Letter Re: Related Services dated 4/8/2010, 1 page Q CPSE IEP dated 4/28/2010, 17 pages R CPSE IEP dated 1/11/2010, 18 pages S CPSE IEP dated 6/10/2009, 16 pages T Development Forms 2009-2010, 4 pages U Evaluation by Dr. dated 9/22/2011, 5 pages V Evaluation by dated 9/1/2011, 6 pages W Psychological Report by dated 5/13/2011, 4 pages X Research Summary by dated 3/7/11, 8 pages Y Letter from dated 2/28/2011, 1 page Z Physical Therapy Report by dated 2/14/2011, 2 pages AA Occupational Therapy Report by dated 2/2011, 2 pages BB Progress Report by L. dated 2/2011, 4 pages CC Update by dated 2/1/2011, 3 pages DD Justification dated 2/7/2010, 1 page EE Enhanced Educational Progress Report dated 1/2010, 2 pages FF Developmental Session Logs 2009-2010, 5 pages GG Evaluation by A. dated 4/11/2011, 8 pages HH School Progress Report dated 11/30/2011, 7 pages II Therapy Progress Report dated 11/1/2011,
1 page
JJ Evaluation by 4dated 1/11/2012, 1 page
DEPARTMENT OF EDUCATION DESCRIPTION
1A Due Process Complaint dated 9/7/2011, 8 pages 2 Amended Due Process Complaint dated 11/21/2011, 11 pages 3 IEP 2009-2010 dated 6/10/2009, 16 pages 4 Final Notice of Recommendation dated 6/10/2009, 1 page 5 Declination Letter dated 6/10/2009, 1 page 6 Amended Due Process Response dated 11/22/2011, 4 pages 7 Subpoena to dated 1/9/2012, 3 pages 8 Subpoena to Therapy dated 1/12/2012, 2 pages
9 Declination Letter dated 10/22/2010, 1 page 10 Final Notice of Recommendation dated 8/24/2010, 1 page 11 IEP 2010-2011 dated 10/22/2010, 16 pages 13 Classroom Observation dated 5/11/2009, 1 page 14 Bilingual Social History Report dated 5/8/2009, 3 pages 15 Bilingual Evaluation dated 1/2/2009, 4 pages
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 17, 2012
PARENT
KK Initiated, 11/21/2011, 6 pages
DEPARTMENT OF EDUCATION
16 Educational Progress Report dated 10/2009, 1 page 17 Progress Report dated 10/2009, 1 page 18 Progress Report dated 10/2009, 1 page 19 Educational Progress Report dated 4/2010, 1 page 20 Progress Report dated 4/2010, 1 page 21 Progress Report dated 4/2010, 1 page 22 Evaluation dated 3/12/2010, 4 pages 24 Progress Report dated 1/2010, 3 pages 25 Progress Report dated 1/2010, 2 pages 26 12-Month Rationale dated 1/11/2010
IMPARTIAL HEARING OFFICER
III Case Follow Up Sheets, various dates, 2 pages (see tr.2/17/12)
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 5, 2012
PARENT
LL progress report dated 3/3/12, 4 pages MM report dated 11/30/11, 2 pages
IMPARTIAL HEARING OFFICER DESCRIPTION
I Department of Education Motion to Dismiss dated 1/4/2012, 5 pages II Case Extension Letter, 9/22/11, 1 page
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 13, 2012
IMPARTIAL HEARING OFFICER
IV Case Follow Up Sheet (3/13/12) 1 page
POST HEARING SUBMISSIONS
V DOE Closing Brief, 4/9/12, 20 pages VI Parents’ Post Hearing Brief, 4/9/12, 19 pp
Footnotes
[1] I ordered that during the pendency of these proceedings:
[2] was recommended for ST three times per week individually and OT twice per week individually. (DOE Ex. 3, p. 16). PT added to ’s IEP on April 8, 2010. (Par. Ex. Q 17).
[3] The parties indicated that they had resolved the parents’ claims with respect for the 2010-2011 school year. Accordingly, no evidence was taken relative to that school year. (See IHO Ex. V and VI).
[4] According to the evaluation, this incident occurred in his classroom, prior to the evaluation. (Par. Ex ,W- 2).
[5] The DOE conceded that it could not meet its burden of proving that it provided a FAPE for the 2011- 2012 school year, and issued a Nickerson letter. (Tr. p. 609).
[6] She testified that there was a six week period between mid-August 2011 and end of September 2011, when he did not receive after school until she was able to implement the Interim Order on pendency. (Tr. p. 782).
[7] Four months earlier, was reported to have achieved a score of 73 on the abbreviated IQ, Stanford Binet- 5th Edition, in the borderline range. (Par. Ex. W3). Dr. was not provided with the earlier evaluation, prior to conducting her own testing.. (Tr. p. 673). Had Dr. reviewed the DOE evaluation prior to testing , she would not have given the Stanford-Binet, although she felt it was the best measure, given his difficulties. She would have given him the Wechsler Preschool Scale, because it is not appropriate to give the same test within six months. (Tr. p. 650). She agreed with Mr. s description of ’s behavioral issues. (Tr. p. 654).Although Dr. was provided the IEP which noted that had been given the Stanford-Binet-5th Edition, she did not see it prior to performing her own evaluation. (Tr. p. 669; Par. Ex. J, p.2). She did review it, however, prior to testifying. (Tr. p. 652).
[8] This is also the level of services recommended in the May 26, 2011 IEP. (Par. Ex. I). The DOE stipulated that could continue to receive his services, pursuant to a Related Services Authorization (“RSA”) for the balance of the 2011-2012 school year. (Tr. pp. 479-480). In their amended due process compliant, the parents requested additional in an unspecified amount. (DOE Ex. 2). In their closing brief, the parents request an increase of services to five thirty minute sessions provided after school, in a sensory gym. (IHO Ex. VI, p. 13).
[9] Haydee Olano, ’s prior OT, reported in February 2011, that was making slow and steady progress with his skills, and , with three thirty minute sessions per week. (Par Ex. AA).
[11] In addition, as the parents invoked their pendency rights in the October 22, 2010 IEP, has received only two sessions per week of ST during the pendency of these proceedings. (Par. Ex. D).