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: November 30, 2011
December 23, 2011
January 31, 2012
February 7, 2012
February 16, 2012
March 6, 2012
March 7, 2012
March 20, 2012
April 5, 2012
Record Close Date: April 9, 2012
Hearing Officer: Dora M. Lassinger, Esq.
CORRECTED
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 30, 2011
Attorney (via telephone) — Student
Attorney (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 23, 2011
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31, 2012
Attorney, — Student
Parents
Translator — Student
Educational Administrator-Case Manager, Central Based Support Team (via — Student telephone) — Student
Attorney — DOE
School Psychologist, CSE Manhattan (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 2012
Attorney — Student
Parents
Translator — Student
Attorney — DOE
Master Teacher, (via telephone) — DOE
Supervisor (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 16, 2012
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 6, 2012
Attorney — Student
Parents
Interpreter — Student
Attorney — DOE
Director of Related Services at (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 7, 2012
Attorney — Student
Parents
Interpreter — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 20, 2012
Attorney — Student
Parents
Interpreter — Student
Expert — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 5, 2012
Attorney — Student
Attorney — DOE
The mother of (“ ) by her attorney, , of the , requested an impartial hearing on September 23, 2011, seeking placement at the Hawthorne Country Day School (hereinafter “ ”)1 a valid Individualized Education Program, (“IEP”) compensatory relief for the 2011-2012 school years, after school ”) and speech services, toilet training, leisure services, rehabilitation services, training in ”) generalization and safety in the community. (Par. Ex. A). I was designated to hear this matter on November 14, 2011 pursuant to 20 U.S.C. Section 1415(f) (1), after four other hearing officers recused themselves. The compliance date was extended on four occasions due to the availability of parties, and witnesses, and in order to allow the parent’s expert to evaluate . (IHO
Ex. III, IV). 2
. He currently ; a state approved private day school. The parent does not dispute ’s classification, or the recommendation that he attend a non-public day school. (Par. Ex. A).
received services (“ ”) including ”), ”) and (“ ”). He also received therapy as part of his program. (Tr. p. 669). He continues to receive and , which is funded by Medicaid. (Tr. p. 599, 672).
’s mother was born , and moved to . (Tr. p. 584). Her first Language was Cantonese. (Tr. p. 585). English is not her native language. (Tr. p .591). She cannot read or write English. (Tr. pp. 586-587). The CSE Review Meetings
On February 17, 2011, the Committee on Special Education (“CSE”) conducted an annual review of ’s program. At the time of the meeting, had been a student at for two years.3 Dr. , a Department of Education (“DOE”) school psychologist, testified that the meeting was scheduled with the intention to continue placement at . (Tr. pp. 171-
1 On the final date of hearing, the parties informed the hearing officer that the DOE had referred for placement in a day school and that he had been accepted at Hawthorne conditioned upon a reduction in his physical therapy mandate from three days per week to twice per week. The parent’s attorney stated that her client would stipulate to the change in ’s IEP to satisfy the condition of his acceptance to . (Par. Ex .W, X; Tr. pp. 821-822). 2 A more detailed description of the progress of the proceedings is described in the annexed Interim Order dated February 29, 2012, in which the parent’s request for partial summary judgment was denied. 3 attended AMAC as a preschooler and as a school age student. He commenced the school-age program in January 2010. (Id. at 335). 172). He does not know whether any of the special education documents pertaining to were ever translated into Chinese for the parent. (Tr. p. 179). The recommended program was a New York State approved non-public day school, with a staffing ratio of , and related services of (each three times per week, for thirty minutes individually). (DOE Ex. 12).
Ms. . testified that there was no translator present at the February 17, 2011 meeting. Her friend, , accompanied her and tried to explain what was going on. He does not speak Chinese. The February 2011 Individualized Education Program (“IEP”) was never translated to Chinese. (Tr. pp. 600-601). At the meeting, Ms. . requested extra services and a change of school, but she was told that all of her requests should be made at a second meeting. (Tr. p. 601). In May the school gave her the IEP and informed her that would remain at AMAC. (Tr. p. 605).
On June 22, 2011, the CSE reconvened, to consider the parent’s request for a change in school placement. (Tr. p. 122). Dr. participated in the meeting as school psychologist and district representative. A Chinese translator was provided for the parent. The review team also included a school social worker, a special education teacher, and , a teacher from . (District Ex. 14, p. 2). As a result of the meeting, the CSE recommended deferring the case to the Central Based Support Team (“CBST”) for consideration of an alternate site. (Id. at 1; Tr. p. 132). In the IEP resulting from the June 22, 2011 meeting, ’s academic levels were determined based upon teacher estimates that he was performing at a kindergarten level in reading, writing and math. (DOE Ex. 14, p. 4).
As part of the package that was sent to the CBST, Dr. completed a form regarding the CSE’s efforts to place the student in the least restrictive environment. He wrote that of the goals on the student’s IEP, 15 of 15 had not been achieved. (Par. Ex. D2).
Ms. testified that even though a translator was provided, statements made by the participants (who participated by telephone) were not all translated. (Tr. pp. 607-608). Ms. . requested that be transferred to . (Tr. p. 608). She was told that the case would be sent to the . (Tr. p. 609). The June 2011 IEP was not translated for Ms. C. (Tr. p. 610).
, an Educational Administrator and was assigned as ’s . (Tr. pp. 195-197). Her role was to determine whether was doing well where he is; or whether he would be better off at a different placement. (Tr. p. 198).
Ms. called ’s school and obtained a letter from his classroom teacher, . (Tr. pp. 199-200; DOE Ex. 11). The letter stated as follows:
“To Whom It May Concern:
This letter is to verify that . is a current student at , Inc. who is placed in a classroom. Discrete Trial/ABA teaching is the main focus of this class instructional methodology. In this class students are taught new skills in isolation with a chance to generalize newly acquired in a small group setting (one to two peers). has demonstrated steady progress at his current school placement.
is currently working on the following programs in class manding using
PEC icons to improve expressive language skills, following a one-step direction such as “Give me” to improve his receptive language skills, body and object identification such as ears, cup, phone to improve cognition
Skills, imitating vertical/horizontal strokes to improve fine motor skills, gross motor imitation such as clap hands and stomp feet to improve gross motor skills and to improve overall social and attending skills with “Look at me” and “Sit Still” programs. (DOE Ex. 11).
She concluded that was appropriately placed at based upon the fact he is autistic, the school serves autistic children, the school utilizes the methodology, and the letter from the school, indicating that was making progress. (Tr. pp. 205-206). Ms. Cohen communicated her findings to , who was the liaison. She did not call the parent because she felt that she knew her feelings. (Tr. p. 211).
On July 7, 2011, , an Education Administrator at the wrote to Dr. stating as follows:
“This case was reviewed by an Education Administrator at CBST and it has been determined that this student’s needs are appropriately being met in the current non-public school setting at . Updated school report indicates that ‘ has demonstrated steady progress at his current school placement. It is suggested that this student remain in current setting at this time. This case is inactive at CBST.” (Par. Ex. C1).
On July 15, 2011, the CSE reconvened and recommended that remain at .
The CSE review team included a special education teacher, a general education teacher, the parent, a district representative (who also served as school psychologist) a social worker, a parent member, and a translator. (DOE Ex. 15, 12; Tr. p. 611). Ms. .
disagreed with the CBST’s determination, and stated that had not made any progress and has regressed. (DOE Ex. 16). There was no discussion of ’s annual goals at the meeting. (Tr. p. 615). The CSE recommended that received related services of and , all three times per week for thirty minute sessions, in a separate location. (DOE Ex. 15,
p. 7).
’s IEP includes a goal of improving self-help skills with short term objectives of zipping and unzipping his jacket, requesting the use of a toilet, and feeding himself with a spoon and fork. The IEP does not indicate with what level of prompts or assistance will accomplish these objectives. (Id. at 3). It further provides that he will improve his skills with short term objectives of greeting peers/adults with contact, increasing his eye contact, improving his attention span and indicating the need for the . It does not indicate at what level he is expected to or improve his ; or how he is to indicate the need for the . (Id. at 3)
The IEP also includes a goal for improving receptive language skills with a short term objective of following one-step directions, identifying simple pictures, body parts and numbers one through five. The IEP also includes a goal of improving expressive language skills by requesting preferred items with a point of his finger and vocalization, successfully identifying letters of his name, and primary colors, and successfully requesting to use the . (Id. at 4).
Testimony and Documents
educational progress reports from March 2009 through October 2011 were received in evidence. In a report written in January 2010, it was noted that can respond to his name when called, and recognize it when it is written; that he responded to one and two-step commands; and that he lacks and structured communication skills.
(DOE Ex. 19, p. 68). In an Educational Progress Report dated June 2010, it was reported that can follow simple one-step commands, and that he needs high reinforcement and constant prompting to sit and participate during classroom activities. He continued to .
(Id. at 57). In an Educational Progress report dated January 2011, his teacher, Ms.
reported that can sit and play/work for 10 to 15 minutes; but that he does not acknowledge his peers. She reported that he does not request to use the bathroom, but must be prompted to point and vocalize with the . (Id. at 49-50). In June 2011, his teacher reported no progress in ’s ability to request to go to the bathroom. She reported that he can follow some simple directions and . His attention span and eye contact were still quite poor. (Id. at 39). In an October 2011 report, , ’s special education teacher, reported that ’s . She reported that he has minimal interaction with peers; and is .
(Id. at 31).
2009. At that time, was working with the PECS, to discriminate between two pictures. (DOE Ex. 19, p. 83) In January 2010, was able to follow very simple routine directives. His eye contact was inconsistent and required maximum clinical cueing. He was and . His ability to attend to tasks was limited. (Id. at 70.) As of June 2010, had improved in his ability to remain seated for a thirty minute therapy sessions. He was able to establish eye contact for 1-2 seconds. (Id. at 63). In January 2011, ’s speech therapist still reported that he was able to understand simple one-step commands. His eye contact was still inconsistent. It was reported that . (Id. at 45). As of June 2011, was still only following one-step commands. His eye contact remained inconsistent. He did not attempt to interact with other students and continued to play with . (Id. at 40).
OT progress reports were submitted dating back to March 2009. At that time, was able to complete a 4 piece inset puzzle of simple shape. He presented with a short .
He was able to string 6-10 large beads with moderate difficulty. He stacked 10 to 12 large blocks with minimal difficulty. (DOE Ex. 19, pp. 85-86). In May 2010, it was reported that his visual motor skills were diminished, and that his ability to perform stacking and puzzle activities had decreased. (Id. at 64). His visual attention was reported to last between 1 and 5 seconds. In August 2011, it was reported that was able to complete simple interlocking puzzles and stack five blocks.
Ms. , a certified special education teacher, was the master teacher for eleven classes (with a total of 82 students) at during the 2010-2011 school year. She was assigned as master teacher for ’s class from March until June 2011. Her duties included overseeing staff, programming and assisting the inter-disciplinary team in meeting the student’s goals. (Tr. pp. 252-255, 296, 299, 319). ’s program utilizes an approach to working with students with . She stated that the methodology is “data-based”, but also includes incidental learning. The program comprehension, appropriate play and social interactions. (Tr. pp. 256, 380). The school provides ongoing training with a board certified behavior analyst (“BCBA”). (Tr. p. 259). Parent training is provided once per month; and additional training as needed. Topics covered include different approaches to , a system of reinforcement scheduling, manding programs for and . (Tr. p. 260).
During the 2010-2011 school year, was working on social skills such as look at me, sitting in his seat, body part identification, and imitating hand over hand vertical lined horizontal strokes. For gross motor, he followed an imitation program of clap hands and stomp feet. did not keep any of the raw data from these programs. (Tr. pp.
286-287). Ms. testified that all available documents for the current and prior school year were produced for the hearing, however no graphs or raw data were produced for the 2010-2011 school year. She could not explain why there was no raw data or graphs for the period preceding November 2011 for the current school year. (Tr. p. 323, 325).
Ms. did not recall reviewing any data for ’s classroom during the period when she was the master teacher. (Tr. p. 322). She did not recall whether he met any of his goals on his IEP for the prior school year. (Tr. p. 385).
During the current school year, is working on , identifying colors, PECS with choice of two, imitating written stroke, imitating movement, sitting still and eye contact. (DOE Ex. 19, p. 32).[4] Graphs were produced for the various programs during portions the current school year. Some of the graphs showed data from November 2011 through January 2012. Some showed data only for December and January 2011. showed no progress in . (Tr. p. 329; DOE Ex. 19 p, 14). He also failed to show progress in programs involving color identification and functional directions during the period for which data was produced. Indeed the graph shows regression. (Id. at 15, 16).
Ms. testified that during the prior school year, was able to sit and attend for two to three seconds, without prompting, during instruction discreet trial sessions. (Id. at 334). During the current school year, staff graphed his ability to sit still for four seconds. Ms. could not explain the program for . (Id. at 334). In the prior school year, could not sit still for any amount of time without hand-over-hand prompts. (Id. at 356-357).
She testified that a program described as “look at me” was a program for eye contact. The program involves counting how long the student engaged in eye contact without any prompts. Ms. could not tell, based upon the graph in evidence, how long engaged in eye contact. (Tr. p. 336). In the prior school year, was unable to maintain eye contact for three second without prompts. (Id at 336).[5] Based upon the graphs in evidence, did not he show any progress in imitating written strokes between November and January 2012. (DOE Ex. 19, p. 21; Tr. pp. 341). In a program for stacking blocks, it does not appear that made any progress. In any event, Ms. . was unable to describe the manner in which the trials were conducted. (Tr. p. 343; DOE Ex. 19, p .21).
During the current school year, is placed in a classroom with a staffing ratio of 6:1:3. His teacher is Ms. . Ms. did not know whether she is certified. Nor was she aware of the qualifications of the paraprofessionals. (Tr. p. 353). receives related services within the classroom, except for , which is delivered in the hallways. (Tr. p. 371, 378). He receives two sessions of discreet trial instruction; one in the morning and one in the afternoon. New skills are taught during these sessions. The sessions are approximately one hour in duration (Tr. pp. 372-377, 381).
Based upon her work with her during the prior school year, Ms. described as highly distractible and needing a lot of prompting to remain focused. He learned new skills best in a one-to-one setting. (Tr. p. 299). He was , and communicated through gestural pointing. would go to the . (Tr. pp. 299-300). She testified that during the current school year, is beginning to use , with a choice of two. He is still doing gestural pointing. (Tr. p. 300). She testified that based upon her review of the records, is requesting more with the picture icon when he needs to use the bathroom outside of the scheduled time. (Tr. p .301). She testified that he was . She did not recall whether was working with him on toilet training for bowel movements. (Tr. p. 363).
In an October 2011 report, his teacher described his poor attending skills and limited safety awareness. She wrote that he uses , when prompted. (DOE Ex. 19, p.
30). Ms. could not explain to what extent uses the system. (Tr. pp. 365-366). In the prior school year, he used it inconsistently to indicate that he needed to use the bathroom. (Tr. p. 366).
Dr. , s director of related services, testified that she has a doctorate in hearing sciences. (Tr. p .479). is mandated to receive . All services are recommended to be provided three times per week for thirty minute sessions. The school utilizes methodology. Related services providers push into the classrooms (except for , which is delivered outside the classroom) and work on the same programs that are being run by teachers and teacher assistants. (Id. at 482-483, 496).
Dr. testified that has been receiving his mandate during the current school year from . has been focused on trying to get to be more expressive through the use of gesturing, some vocalization, and increasing his receptive and cognitive skills. She reported that his progress has not been at the rate the school would like to see. She attributed his lack of progress to his . (Tr. pp. 484-487). She does not know whether an individual ”) was performed for . (Tr. p. 511). She could not explain why ’s IEP had no goals . (Tr. p. 513).
The staff would like to become verbal and improve his attention span. For OT, has been receiving services, except for a two month gap between December and February. She testified that the school would have reimbursed the parent if she could have located an outside provider, but she did not know whether the parent made any such arrangements. (Tr. pp. 488-490). [7]
Dr. has observed in his classroom during the prior and current school years. Last year, she observed that he made minimal progress, using the . (Tr. pp. 498-499). She testified however that he does not have a large repertoire of pictures; but merely selected from a few . (Tr. p. 522). He still requires hand-over-hand assistance to use the toileting PEC. (Tr. p. 525). She did not know whether he made any progress on the goals developed on his 2010 IEP. She testified that the school shreds raw data sheets, but keeps the graphs. (Tr. p. 514).
During the current school year, ’s progress has also been minimal. She described him as more attentive; but stated that he can follow single directives and is working on some two-part directives, which is . His eye contact is intermittent, but there have been some improvements. (Tr. p. 499, 526-527). is but uses the a , by which he uses picture icons to communicate his needs. (Tr. p. 500). She testified that has moved from one picture to two pictures with about 60% accuracy. (Tr. p. 501). His goal for eye contact is to maintain it for three seconds. He is able to perform this task, with edible reinforces, at a rate of 50%. (Tr. pp. 540-541).
Dr. was not familiar with the qualifications of the staff in ’s current classroom. (Tr. p. 538). Parent’s Testimony and Documentary Evidence
Ms. . testified that learned some words in his . . (Tr. p. 617). He teaching him , and he can . (Tr. p. 618). has been . (Tr. p. 619). He is still not fully trained for . Nor can he , . (Tr. pp. 620-621). He needs Ms. . testified that is unable to count or identify the letters of the alphabet. (Tr. p. 626). He does not understand traffic lights and is unable to socialize with children his own age. (Tr. p. 627). has been able to identify some body parts and follow simple directions since prior to entering school. In fact, she testified that has not made any progress at during the current school year, or in the prior school year. (Tr. pp. 641-642).
At , was instructed with the ; however during the current school year, he was given one picture of the desired item; whereas in prior years, he was given two pictures to choose from. (Tr. pp. 643-644). The outside increased the number of pictures to three choices. (Tr. pp. 661-662).
No one from ever trained Ms. in the use of at home. She was offered only one parent training during the current school year; however she could not attend, as it was at night, and she had to stay with . (Tr. p .645, 655). In visits to , she observed hitting the table and not following instruction. (Tr. p. 648). On another occasion, the teacher attempted to teach him to look at her, using cereal. He responded inconsistently. (Tr. p. 650).
In September 2008, was evaluated at the for People with Disabilities (“ ”). At the time, he attended preschool at . On the Bayley Scales, he attained a developmental age of 3 months, within the Moderate Mental retardation range. On the Vineland Adaptive Behavior Scores, he scored at below the 1st percentile in all areas, in the low range of adaptive functioning. (Par. Ex. G-8). When re-evaluated in November 2010, no significant changes were noted. He was very everything he saw. (Par. Ex. G-1). In a report dated October 2011, Dr. , ’s physician wrote that medication had been ; and with side effects. She recommended that he participate in an educational environment that could provide at least 20 hours of therapy per week. (Par. Ex. I). Parent’s Expert
Dr. testified that she is a certified special education teacher and a at the doctoral level. (Tr. pp. 704-705). She is an adjunct professor at Queens College and consults with school districts and parents. (Tr. pp. 708-709). Dr. reviewed exhibits presented at the hearing and met with for one hour and fifteen minutes on March 6, 2012. (Tr. p. 715).
Dr. testified that has , which is an inability to form words. His motor impairment impacts his ability to speak. She noted that while has been recommended for Prompt Therapy to address the , there is no indication that it was ever provided. (Tr. pp. 727-728).
She testified that responded to his name inconsistently. He was unable to identify the letters A and B, both of which are part of his name. (Tr. pp. 716-717). He responded to a couple of one-step commands, and was able to identify his nose, mouth and head; but not any other body parts. While he did not appear to respond to pictures, he responded well to a Kindle his mother provided, where he was able to identify pictures from an array of four, after seeing a word; thus demonstrating a knowledge of twentyseven sight words. (Tr. pp. 718-720, 727). He was unable to complete a simple seven piece puzzle with knobs on the ends. (Tr. p. 718). He was unable to identify colors, or accurately imitate a single stroke of writing. (Par. Ex. V2). Using the Kindle, however, he was able to identify colors, common objects, body parts, animals and foods at an independent level. (Par. Ex. V6). Dr. testified that although had available to him a bathroom pictures, in his textbook, he did not use it, when he had to use the bathroom. (Tr. p. 721). He used sign language for indicating what he wanted, but incorrectly. (Tr. p. 724).
Reviewing the Progress reports in evidence, she testified that is at the same point, in his ability to communicate, as he was in March 2009, when he was evaluated at . (Tr. p. 732; DOE Ex. 19, pp. 82-84). He still responded to his name inconsistently; is inconsistent in his ability to respond to two pictures presented simultaneously; is unable to consistently make eye contact, or sustain attention to task. She noted that as reported by , in January 2011, when was presented with two pictures, he would select the item on the right side 90% of the time. She testified that for a , communication skills should be the number one target in his program. (Tr. pp. 732-733). Furthermore, the reports indicate that has not been taught to exhibit skills without prompts. (Tr. p. 734)
Dr. noted a similar lack of progress based upon her review of the educational progress reports. She testified that although the reported goal was for to maintain eye contact for up to three second, in her evaluation he was unable to sustain eye contact for even a full second. (Tr. pp. 736-737). Indeed, Dr. found that had not made progress in any specific area, based upon her review of the progress reports. (Tr. p. 738).
Reviewing ’s June 2010 IEP goals, Dr. testified that did not demonstrate mastery of those goals; which included parts on request. (Tr. p. 743; Par .Ex. B8). Nor did he greet people, or establish eye contact. (Tr. p. 746; Par. Ex. B10). Reviewing the goals in his June 2011 IEP, she testified that they were inappropriate, because they do not provide the level of independence or prompt that should be applied in meeting the goals. (Tr. p. 752).[8]
Based upon her review of the documents in evidence and her observation of , Dr. recommended a change of program, due to ’s lack of progress in his current program. (Tr. pp. 756-757). She concluded, based upon her observation, that showed much higher level skills when presented with the electronic Kindle device than when presented with 2 and 3 dimensional stimuli; and that he has the potential to learn, which has not been realized in his current setting. (Par. Ex. V6).
She recommended that he be placed in a program that provides a full day of oneto-one instructional program providing an protocol. (Tr. p .758). She recommended that if such a program were not available, then she should be provided with 10 hours per week of instruction at home, to assist him in developing communication, self-care, and leisure skills. (Par. Ex. V7; Tr. p 767).[9] She further recommended that he provided with a , for two hours per week, to monitor his home based program and to meet with school staff for purposes of maintaining consistency across both environments. (Tr. p. 768; Par. Ex. V7). In addition, based upon ’s lack of progress in his current setting, she recommended compensatory services of 10 hours per week, for every week (since July 1, 2011).[10] She stated that the compensatory hours could be delivered during the weekends. (Tr. p. 770). She further recommended that a (“ ”) be conducted due to ’s . (Tr. p. 771). She also recommended that an evaluation be conducted for Augmentative Communication. (Par. Ex. V7). Dr. also recommended individual and , five times per week for minutes; individual parent training once per week for sixty minutes and twelve month programming. (Par. Ex. V7). She testified that ideally, he should receive his related services at school, but that is not always accomplished. (Tr. p. 805). She testified that could tolerate a total of 25 hours of services after school and including weekends. (Tr. pp. 806-807).
Reviewing the graphs provided by , (DOE Ex. 19, pp. 14-23), she testified that they did not indicate what level of prompt was being applied. Data points were connected from phase one of a program, to the next phase. The graphs did not indicate, with any degree of clarity, what the instructional expectations were. (Tr. pp. 763-765). For a block stacking program, ’s performance was so highly variable as to indicate a need for an intervention. (DOE Ex. 19, p. 21; Tr. pp. 765-766). She testified that based upon her review of the graphs, and her knowledge of , the program implemented there does not follow the principles of . (Tr. p. 766). Parent’s Position
The parent’s position is that the challenged IEP’s (February, June and July 2011) are procedurally and substantively invalid. The procedural violations alleged are (1) failure to provide translation of documents, including IEP’s; (2) failure to provide a translator at the February 2011 meeting) (3) pre-determination of ’s program and (4) improper delegation of the CSE’s placement decisions to the CBST.
Substantively, the parent maintains that did not make progress at , and in fact regressed, that is entitled to compensatory education for the lack of FAPE, and that the hearing officer should order the DOE to fund tuition at , assuming both parties agree to place there. The parent also requests implementation of all of the recommendations made by Dr. including at , a to monitor the home based program, an , an assistive technology evaluation, and additional and . (IHO Ex. VI). Department of Education Position
The DOE’s position is that notwithstanding the fact that ’s case had been referred to the CBST for placement at (as of the final hearing date), the DOE provided with a Free Appropriate Public Education (“FAPE”) during the 2011-2012 school year, and that therefore he is not entitled to compensatory education. The DOE argues that any procedural defects in earlier IEP meetings were cured by the subsequent reviews, held in June and July 2011. The DOE further maintains that the parent meaningfully participated in the IEP process. In addition, the DOE maintains that inasmuch as the CBST had secured a placement from for , that portion of the parent’s complaint seeking an order directing the DOE to fund ’s placement at is moot and should be dismissed. (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).
In evaluating whether a school district has complied with the procedural requirements of the IDEA, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies (I) impeded the child’s right to a free and appropriate public education. (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or (III) caused a deprivation of educational benefits. 20 U.S.C. Sec. 1415(f)(3)(e)(ii).
A predetermination, or pre-selection of a student’s program by a district, not subject to change or consideration of parental input, is a procedural violation of the IDEA which can support a determination that a FAPE has been denied. Application of a Student with a Disability, 08-035, p. 21 (citing Deal v. Hamilton County Bd. Of Educ, 392 F. 3d 840 (6th Cir. 2004).
For all of the reasons set forth below, I find that the DOE failed to meet its burden of proving that it provided with a FAPE for the 2011-2012 school year. Procedural Violations
1. Predetermination
For purposes of evaluating the DOE’s compliance with the procedural requirements of the IDEA, I find that the relevant IEP’s are the IEP’s dated June 22, 2011and July 15, 2011 IEP, which determined ’s program for the 2011-2012 school year. I find that ’s program placement at was predetermined by the CBST; and that the parent had no opportunity for input into the CSE’s July 15, 2011 to maintain at . The minutes of that review reflect that the parent’s request for a change of placement, based upon ’s regression at , was denied. According to the minutes, and the testimony of , the CBST case manager, the decision to deny her request was made by the CBST, without any participation by the parent. The record indicates that Ms. relied upon a single letter from ’s current teacher, and that she failed to communicate with the CSE or the parent in making her decision. Had she conducted a thorough review of ’s performance at , she would have learned that as of July 2011, he was regressing, and not progressing at .
2. Lack of Translation
I find that the parent’s native language is . While the CSE provided a translator at both the June and July meetings, as required by 34 C.F.R. 300.322(e), the record indicates that translation was not provided of statements made by AMAC participants, who participated by telephone. Nor were any of the IEP’s translated. 8 NYCRR 200.4(b)(6)(xii) requires that results of evaluations must be provided to parents in their native language. While there is no specific requirement that a school district translate an IEP to the parent’s native language, (In re Student with a Disability, 111 LRP 39015), in the instant case, where the IEP was based upon teacher estimates and input (and not on formal written evaluations) the DOE’s failure to do translate statements of AMAC participants and IEP’s significantly impeded the parent’s ability to participate meaningfully in the IEP meetings.
3. Lack of Measurable Goals
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes goals and short-term objectives related to those needs and provides for the use of appropriate special education services. Application of a Child with a Disability, 02-014. An IEP must include measurable annual goals, including the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal. 8 NYCRR 2000.4(d)(2)(iii). ’s July 15, 2011 IEP includes a goal of improving self-help skills with short term objectives of . The IEP does not indicate with what level of prompts or assistance will skills with short term objectives of greeting peers/adults with , . It does not indicate at what level he is expected to ; . I find that the goals in the critical areas of self-help skills, eye contact, improving attention are not measurable, as required by the regulations.
I find that the foregoing procedural violations individually and collectively impeded ’s right to a FAPE. Inappropriateness of the Recommended Program
I find that the educational program provided for for the 2011-2012 school year was not reasonably calculated to enable to receive a meaningful benefit. Although his teacher, Ms. , informed the CBST that had demonstrated steady progress at his current school placement, a review of ’s records combined with the testimony of Ms. and Dr. reveals that as of July 2011, when the decision was made to maintain ’s placement at , he had regressed there.
In a report written in January 2010, it was noted that can respond to his name when called, and recognize it when it is written; and that he responded to one and two step commands. Nevertheless, Ms. reported one and one-half years later, in her July 5, 2011 letter, that was still working on following a one-step direction to improve his receptive language skills. 11 Dr. testified that when she evaluated , on March 6, 2012, he responded to his name inconsistently, and was unable to identify the letters A and B, both of which are part of his name.
In an Educational Progress report dated January 2011, Ms. reported that can sit and play/work for 10 to 15 minutes. One year earlier, in January 2010, it was reported that was able to remain seated for a thirty minute therapy sessions. Ms. testified, however, that during the 2010-2011 school year, was able to sit and attend for only two to three seconds, without prompting, during instruction discreet trial sessions.
His July 15, 2011 IEP contains a goal of following one-step commands. Furthermore, the record indicates that he developed , which were not addressed through a specific .
In March 2009, was working with the PECS, to discriminate between two pictures. Two years later, it was reported that had begun to use the PECS system with two pictures; but that he reaches for the picture on the right side 90% of the time, regardless of what it is.
The reports support the testimony of the parent and Dr. that has regressed in his program at . Therefore, I find that the CSE’s recommendation to continue his placement there for the 2011-2012 school year, was not reasonably calculated to enable him receive meaningful educational benefits and constituted a denial of FAPE. (Board of Educ. v. Rowley, supra; Walczak v. Fla Union Free School District, supra. [12] Relief Requested
As relief for the denial of FAPE, the parent requested that the DOE place at ; and that it provide a legally valid IEP which includes training and other services. (Par. Ex. A) In her closing brief, the parent requested that the parent have the ability to obtain privately, at market rates; and that the FBA and AT evaluations be obtained privately. The parent also requested make up . (IHO Ex. VI, p. 23).[13] The parent also requests compensatory education, which is discussed further below.
On the final date of hearing, the parties informed the hearing officer that the DOE had referred for placement in a day school and that he had been accepted at conditioned upon a reduction in his mandate from three days per week to twice per week. The parent’s attorney stated that her client would stipulate to the change in ’s IEP to satisfy the condition of his acceptance to . Based upon the foregoing, it is hereby ordered that the DOE fund ’s tuition at , within the time frame necessary to secure his seat there; provided that both the parent and agree to place there. If the parent and do not agree to place him there, the DOE should find an alternative, appropriate program.
In the absence of any evidence that will be placed in a school which provides full-time, ABA instruction, and based upon Dr. ’s testimony, Dr. s recommendation, and Ms. ’s testimony that learns new skills best with individualized instruction, I find that requires at home services, 10 hours per week, and the services of a , two hours per week to set up and monitor his home based program. There is no basis in the record, however, for me to order that the parent have the ability to obtain the services privately, at market rates.
Although the record is clear that ’s progress in has been inadequate, the record does not provide a basis for me to make a specific direction for additional . The CSE should conduct a new evaluation to determine whether additional services are required, above what is provided at his school. 14 Nor is there a basis for me to conclude that requires than is provided in his IEP.
Finally, based upon Dr. s testimony, and the evidence that is , that he responded to the presented to him during her evaluation, indicating much higher potential than was shown with the low-tech (and other two and three dimensional stimuli presented to him during the evaluation), the CSE should order an assistive technology evaluation. There is no basis in the record for me to find that the DOE is unable to conduct this evaluation, and that it should be conducted privately, as requested by the parent. (IHO Ex. VI, p. 23).
Request for FBA
8 NYCRR 200.22(b) provides that a must be considered by the CSE when the students exhibits interfering behaviors, “despite consistently implemented general schoolwide or classroom-wide interventions”. An is the process of determining why these occur and how the student’s behavior relates to the environment. 8 NYCRR 200.1(r).
The parent’s request for an order directing the DOE to fund a private must denied. First, the issue was not raised in the due process complaint, or litigated, until Dr. testified near the conclusion at the hearing. Nor did the parent ever seek to amend her due process
The most recent speech/language evaluation in the record is dated October 7, 2009. (Par. Ex. J). complaint notice to include the issue. See Application of the Board of Education, Appeal No. 12-029; In re Student with a Disability, 112 LRP 13395, Appeal No. 11-161. Furthermore, even if the issue had been raised in the due process complaint, I would find that it would not be appropriate to perform an , at this time, when is most likely in transition to a new learning environment, which may have its own school wide or classroom wide interventions. Finally, as part of my order, I have determined that should have the services of a two hours per week, to monitor his program and to meet with school staff. This service will also address the parent’s concerns regarding ’s behaviors at home and at school. Request for Parent Training
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, , for the purpose of enabling parents to perform appropriate follow-up intervention activities at home.
The record indicates that offered parent training on a monthly basis, with additional training, as needed. The parent was either unaware of these services, or was unable to avail herself of the services due to child care concerns. Inasmuch is will be placed at Hawthorne or another state approved private school, it must be assumed that the program will comply with state regulations, including the requirement that the program provide parent training. Accordingly, any decision regarding the amount of parent training the parent should receive should take account the extent to which it is provided as part of his school program. See Application of the Board of the Sachem Central School District, Appeal No. 06-129. Therefore, the CSE should determine to what extent parent counseling and training is provided by ’s school; and whether the parent requires additional parent training and counseling services. Compensatory Education
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). An award of compensatory education should be tailored to meet the unique circumstances of each case. Application of a Student with a Disability, Appeal No. 11021, p. 22 (citing Wenger v. Canastota, 979 F. Supp. 147 N.D.N.Y. 1997).
Dr. recommended that, based upon ’s lack of progress in his current setting, he should receive compensatory services of 10 hours per week, for every week (since July 1, 2011).[15] She stated that the compensatory hours could be delivered during the weekends. (Tr. p. 770). She testified that could tolerate a total of 25 hours of services after school and including weekends.
As noted above, I find that was denied a FAPE for the 2011-2012 school year; and that in fact he has regressed. The limited data which was produced at the hearing, and the testimony of the witnesses demonstrate that has not received instruction consistent with methodology which purported to provide. On the contrary, graphs of programs which were produced did not indicate what level of prompt was being applied or what the instructional expectations were. Therefore, consistent with my finding that requires 10 hours of at-home therapy per week, and with Dr. ’s recommendation, I find that an appropriate award of compensatory education is 10 hours per week, for each week since the commencement of the 2011-2012 school year; or a total of 38 weeks (380 hours), as requested in the parent’s closing brief. There is no basis in the record for me to order the rate at which those services are to be provided. Request for Make-up Services The parent requests one full year of make-up speech , on a pull-out basis after school basis. The record indicates that although ’s IEP provided that all of his related services were to be provided in a separate location, he received within the classroom, and outside the classroom. I do not find that the failure of the school to provide the related services on a pull-out basis requires that the DOE compensate with make-up related services. I do find that is entitled to be compensated for the two month period that he was without Therefore, I find that is entitled to 24 one-half hour sessions of .
For all of the foregoing reasons, it is hereby ordered as follows:
1. The DOE shall pay ’s tuition, within the time frame necessary to secure his seat at , provided that both the parent and agree to place there. If the parent and do not agree to place him there, the DOE shall place in an alternative appropriate non-public school program.
2. The CSE shall reconvene within 10 days of this order to add 10 hours per week of therapy to ’s IEP. ’s IEP shall also provide for the services of a two hours per week, for purpose of monitoring his program, and communicating with his school. ’s PT mandate shall be reduced from [3]
times per week for thirty minute sessions to 2 times per week for thirty minute sessions, at school.[16] The CSE shall consider whether requires additional services, after school, in light of this reduction.
4. The DOE shall provide with 380 hours of compensatory services, in addition to the 10 hours weekly therapy provided in paragraph 1 above.
5. The CSE shall conduct a Evaluation and an of within 30 days of this decision.
6. The DOE shall compensate for 24 half-hour missed OT sessions. Dated: April 17, 2012 Corrected Date: April 18, 2012 (Correction on Cover Page with IHO name)
_________________________________
DORA M. LASSINGER, ESQ.
Imparial Hearing Officer
DL:dl
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 23, 2011
PARENT
None
DEPARTMENT OF EDUCATION
1 , dated 10/19/10, 2 pp. 2 Update by Dr. , dated 11/23/10, 2 pp. 3 Physical Therapy Progress Report, dated 12/20/10, 3 pp. 4 and Progress Report, dated 1/2011, 2 pp. 5 Educational Progress Report, dated 1/2011, 2 pp. 6 Medical Consultation Note by Asmah Sadeike, dated 1/11/11, 4 pp. 7 Therapy Quarterly Progress Report, dated 2/16/11, 2 pp. 8 Premier Healthcare Evaluation, dated 4/25/11, 8 pp. 9 DOE Social History Update, dated 6/22/11, 1 p. 10 DOE Rationale for More Restrictive Environment, dated 6/22/11, 3 pp. 11 Letter, dated 7/5/11, 1 p. 12 DOE IEP, dated 2/17/11, 17 pp. 13 DOE CSE Minutes of Meeting, dated 2/17/11, 18 pp. 14 DOE IEP, dated 6/22/11, 18 pp. 15 DOE IEP, dated 7/15/11, 12 pp. 16 DOE Minutes of Meeting, dated 7/15/11, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 31, 2012
PARENT
A Hearing Request, dated 9/23/11, 7 pp. B IEP, dated 6/10/10, 18 pp. C E-mail from Rabino to Czarneki dated 7/7/11, 1 p. D CBST Deferral Form, Various dates, 4 pp. E Language Progress Report, Various dates, 14 pp. F Educational Progress Report, Various dates, 13 pp. G Evaluation, Various dates, 12 pp. H Consultation Notes, dated 1/11/11, 4 pp. I Letter from , dated 10/18/11, 2 pp. J Evaluation, dated 10/7/09, 4 pp. K Re-Evaluation, dated 12/17/08, 6 pp. L Notices, Various dates, 5 pp. M IEP, dated 6/22/11,[18] pp. N Social History, dated 6/22/11, 1 p. O Meeting Minutes, dated 2/17/11, 1 p. P Meeting Minutes dated 6/15/11, 9 pp.
DEPARTMENT OF EDUCATION
17 Assurance Checklist, dated 6/23/11, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 7, 2012
PARENT
Q Report Cards, 2010/2011 & 2011/2012, 5 pp. R Notice from Regarding , dated 1/31/12, 1 p.
DEPARTMENT OF EDUCATION
19 Subpoena Response Documents, Undated, 103 pp.
IMPARTIAL HEARING OFFICER
I Subpoens, 12/23/11, 5 pp. II Motion for Partial Summon Judgment, dated 2/15/12, 10 pp. III , Various dates, 3 pp.
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 7, 2012
PARENT
S Letter, dated 2/7/12, 2 pp. T NYC Standard Operating Procedures Manual Excerpt, February 2009, 18 pp. U Defer to CBST Packet, Undated, 2 pp.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
IV CFU, dated 3/7/12, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 20, 2012
PARENT
V Report of Dr. Fiorile, dated 3/15/12, 8 pp.
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 5, 2012
PARENT
W Memorandum of Notice of Securement, 3/26/12, 2 pp. X Letter from CBST, 3/20/12, 1 p.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
V DOE Closing Brief, dated 4/9/12, 15 pp. VI parent’s Closing Brief, dated 4/9/12, 24 pp.
Footnotes
[4] In the course of her testimony it became clear that Ms. ’s knowledge of ’s program during the current school year did not extend beyond documents which were in evidence. (Tr. pp. 265-266). She had no knowledge of how his programs were developed for the current school year. (Tr. pp. 294-295). Nor could she explain how progress was measured on some of his programs. The raw data which was available for the programs was limited for periods ranging from weeks to a maximum of three months for the programs run. (DOE Ex. 19, pp. 14-21). Based upon her lack of personal knowledge of ’s progress during the current school year, and the limited nature of available data regarding his progress during the current school year, I sustained the parent’s objection, when the DOE asked her opinion, generally, regarding ’s progress from the prior school year. (Tr. p. 309). She was permitted, however, to describe his progress or lack thereof, in specific areas. (See. Tr. pp. 300-343).
[5] She later testified that would only respond to “look at me” for one or two seconds, with a food reinforcer, before he would glance away. She was not aware of whether the staff was ever able to fade the reinforcer. (Tr. pp. 355-356)
[6] In this report, the teacher also refers to “ ’s” progress; thus it is not clear that the report was describing . (DOE Ex. 19, p. 31).
[7] In a letter to the parent dated January 31, 2012, wrote that had missed 9 OT sessions, and offered to reimburse the parent if she secured an alternate provider. (Par. Ex. R).
[8] Dr. did not have the July 2011 IEP. (Tr. p. 753).
[9] , the school requested by the parent; and to which was accepted as of the last hearing date, does not provide all day. (Tr. p 800). Dr. Fiorile was not aware of any state approved schools which provide such a program. (Tr. p. 813).
[10] At the time of hearing, the total amount recommended was 340 hours. The parent requested that this amount be supplemented to reflect the additional 4 week period which would transpire until the decision issues. (IHO Ex. VI, p. 22).
[12] Furthermore, the DOE failed to demonstrate the qualifications of the teachers and paraprofessionals in the ’s classroom, for the 2011-2012 school year.
[13] The parent states that although she did not specifically request an FBA or AT evaluation, in her due process complaint, the hearing officer should require that both evaluations be performed, as both are legally required. (IHO Ex. VI, p. 22). In fact, the CSE’s failure to consider assistive technology was raised in the due process complaint. (See Par. Ex. A, p. 5, par. o).
[15] At the time of hearing, the total amount recommended was 340 hours. The parent requested that this amount be supplemented to reflect the additional 4 week period which would elapse until the decision issues. (IHO Ex. VI, p. 22).
[3] At the CSE review, the CSE shall consider the need for parent training services, taking into account the parent training services provided at ’s school.
[16] This reduction is ordered with the consent of the parent, in order to facilitate ’s enrollment at Hawthorne.
[18] Progress Notes, Undated, 59 pp.