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Special Education Law
DECISIONDistrict PrevailedSEL No. 2012-ih-628

New York City Department of Education, Impartial Hearing Decision

April 18, 2012·Jeffrey J. Schiro·Hearing Requested by: Parent

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: January 10, 2012

February 1, 2012

February 7, 2012

February 9, 2012

March 6, 2012

Record Close Date: March 30, 2012

Hearing Officer: Jeffrey J.Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 10, 2012

Attorney — Student

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 1, 2012

Attorney — Student

Attorney — Student

Parents

District Representative — DOE

Special Education Teacher (via telephone) — DOE

Assistant Principal (via telephone) — DOE

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

Attorney — Student

Parents

District Representative — DOE

Speech Teacher (via telephone) — DOE

Occupational Therapist (Did Not Testify) — DOE

Physical Therapist (Did Not Tesify) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 9, 2012

Attorney — Student

Parents

Retired IEP Coordinator (via telephone) — Student

Program Director (via telephone) — Student

District Representative — DOE

Occupational Therapist (via telephone) — DOE

Physical Therapist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 6, 2012

Attorney — Student

Parents

Medicaid Services Coordinator (via telephone) — Student

District Representative — DOE

I. INTRODUCTION - ADMINISTRATIVE PROCEDURES

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested on December 9, 2011 by the attorneys for the student and the parent. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to provide the student with compensatory additional services (Ex. P-1).[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program, (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, crossexamine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).

II. PROCEDURAL HISTORY

I was appointed by the DOE to hear this matter on December 12, 2011. On December 13, 2011, the DOE moved for an Order declaring that the parent’s due process complaint notice was insufficient (Ex. IHO-I). See 8 NYCRR §§ 200.5(i)(3), (6)(i). On December 14, 2011, the parties were informed of my determination that the parent’s due process complaint conformed to the State’s minimal pleading requirements (Ex. IHO-II). See 8 NYCRR § 200.5(i)(6)(ii).

In a December 15, 2011 due process response, the DOE denied each and every allegation contained in the parent’s due process complaint (Ex. P-2). On December 29, 2011, the DOE moved to dismiss the parent’s due process complaint, alleging that claims raised were moot in light of an offer of settlement made at a December 22, 2011 resolution session meeting (Ex. IHO-III). See 8 NYCRR § 200.5(j)(2). The parent opposed the DOE’s motion (Ex. IHO-IV).

In a letter dated January 5, 2011, I advised the parties of their rights and obligations under the New York Education Law and the Regulations of the Commissioner of Education of the State of New York (Ex. IHO-V). A hearing was held on January 10th, during which the parties presented oral argument on the DOE’s motion. In an Interim Order dated January 17, 2012, the DOE’s motion was granted with respect to the parent’s claim for attorneys’ fees, see Application of the Bd. of Educ., Appeal No. 08-026 (SRO May 12, 2008), but denied on all other respects. Additionally, I ordered that, on or before January 27, 2012, the DOE initiate the following evaluations of the student: an occupational therapy evaluation, a physical therapy evaluation, a speech/language evaluation, an assistive technology evaluation, a neuropsychological evaluation, and a functional behavioral assessment. The DOE was also ordered to convene a meeting of its CSE on or before February 24, 2012, to review with the parent the results of the evaluations called for in my January 17th Interim Order (Ex. IHO-VI at

6).[2]

Thereafter, additional hearings in this matter were held on: February 1, 2012; February 7, 2012; February 9, 2012; and March 6, 2012.[3] On March 12, 2012, the parent moved to reopen the hearing to receive evidence on the findings and determinations made by the CSE at a March 9, 2012 meeting (Ex. IHO-IX). On March 16, 2012, I denied the parent’s motion as beyond the scope of the parent’s December 9th due process complaint. See 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§ 300.507(d)(3)(i), 300.511(d); 8 NYCRR § 200.5(i)(7)(b). I also noted that State regulations precluded my approval of a posthearing amendment to the parent’s due process complaint (Ex. IHO-X). See 8 NYCRR § 200.5(i)(7). Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

At the time of the hearing, the student was and educationally classified as a (Exs. P-1 at 6, P-2 at 1, P-3 at 1). In addition to an , the student has been diagnosed with - not otherwise specified (“ ”), ”), , (Exs. P-1 at 1, P-25 at 1-2, P-26, P-27 at 3, 4-5, P-

28 at 1, P-29 at 2, P-30 at 6, P-31, P-32).4 The student also reportedly can is not in dispute in this hearing (Ex. P-A at 1-2). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).[5]

The student participated in a on September 18, 2006, when he was old. On the Stanford-Binet Intelligence Scale (L-M), the student’s IQ was measured as , which was within the range of . The student displayed on . During the evaluation the student displayed a number of (Exs. P-1 at 2, P-28 at 3, P-33).

On the Vineland Adaptive Behavior Scales, using information supplied by the student’s mother, the student’s adaptive behavior skills measured in the profoundly deficit range.[6] The student still needed help for all areas of basic care and required close supervision for safety (Exs. P-28 at 3, P-32, P-33).

As of October 2006, the attended a special education SIE II program at . The student had a and some hours during weekends (Exs. P-27 at 3, P-32).

At an annual review meeting held on February 26, 2007, the CSE recommended that the student receive instruction in a special class in a specialized school. The CSE also recommended that the student receive related services of: specialized transportation, adaptive physical education, individual and group therapy, individual physical therapy, . Twelve month programming was also recommended by the CSE for the student (Exs. P-27 at 3, P-8 at 1, 13).[7]

In a March 2008 letter from Dr. Merryl Schechtman, the student’s developmental pediatrician, the physician stated that the student’s behavioral outbursts in school had 4 The student’s . His mother reports that he (Exs. P-25 at 2, P-26, P-27 at 4, P-30 at 1, P-31). worsened and that he would benefit from a paraprofessional “to help him and in the classroom.” The cause for the student’s was unclear, and could have been related to ongoing changes at home such as: , , , , or other (Ex. P-28 at 1).

In June of 2008, Mr. the student’s teacher, reported that the varied depending on his mood. He sometimes appeared , while other times he , and/or became and (Ex. P-28 at 1).

To address these behaviors, Mr. conducted a (“FBA”).[8] The student’s targeted behaviors included with his . Mr. reported that the student would often become upset when told that he could not do something. The may have been related to the student’s . Past consequences for had been by his teacher. The ”) included a reinforcement for good behavior involving tokens earned every 10-15 minutes which could be exchanged for a chosen reward.[9] The student was

In June of 2008, Mr. also reported that the student showed progress in English/language arts and math, participated in class discussions, completed work within expected time frames, but displayed . The student also with , making and social judgment. Mr. recommended that the student continue to receive consistent routines and a highly structured learning environment (Exs. P-28 at 2, P-54 at 2).

In a July 11, 2008 letter, Dr. noted that:

Over the last few months, [the student] has become , which he

Dr. an recommended a to determine if the with techniques (Ex. P-31).

The student participated in a on August 20, 2008, when he old, to assess his current level of . At that time, the student attended , where he received speech therapy as part of his educational program. The student also attended the program five (5) days per week (Exs. P-1 at 2, P-27 at 3, P-29 at 2, 4, P-30 at 1).

On an administration of the Stanford Binet Intelligence Scale - Fifth Edition (“SB-V”), a battery of tests which evaluate intellectual abilities, the student’s overall cognitive ability (full scale IQ score of ) measured within the of . On the Childhood , the student obtained a composite score of placing him in the . On the Vineland-II Adaptive Behavior Scales (“Vineland II”), which measures personal and social skills, the student obtained an adaptive behavior composite of , with a low range of functioning on the communication, . Based on the assessment results, the evaluator recommended that the student be provided with analysis therapy and respite services and a continuation of speech therapy and service coordination, all to aid the student’s development of daily living skills (Exs. P-1 at 2-3, P-29 at 4, P-30 at 7).

As of October of 2008, when the student was in the eighth grade, he participated in a , a specialized school within the DOE’s District program. The student received related services of individual school-based counseling, individual and group therapy, individual . The student’s teacher at this time reported that the student was functioning on a pre-K level in all academic areas. In mathematics, the student reportedly could count and write numbers from He had difficulty with basic arithmetic facts as well as double-digit arithmetic problems. With regard to reading and writing skills, the student reportedly could write his name and knew some letters (Exs. P-1 at 3, P-27 at 3, P-28 at 1, 4).

, the student sometimes presented as a , but often would get agitated for no apparent reason. When he did not get his way, he became aggressive. His varied greatly by day. The student often appeared . He was , but was often . He continued to . He was resistant to sitting for long periods of time (Ex. P-28 at 4-5).

At a meeting held on December 2, 2008, the CSE recommended that the student receive instruction in a special class in a specialized (District ) school. The CSE also recommended that the student receive related services and specialized transportation. Twelve month programming was also recommended by the CSE for the student (Exs. P-7 at 1, P-27 at 3).

In a June 2009 Alternate Assessment Report to Families, the student’s teacher (Currie) reported that the student was able to write his name in a neat fashion, file cards according to their color and sort objects related to their classification. The student was showing progress in being able to count to twenty (20), physically participate in group games and work on independent tasks (Ex. P-53 at 2).

In August of 2009, the student’s summer school teacher reported that:

[O]nce engaged, he is able to participate in simple, turn-taking games, use materials appropriately, and function in small groups (with two peers)

appropriately for 7-10 minutes, given staff support. In this past week, he has begun exploring the classroom and choosing materials independently (such as duplos) and using them appropriately (Ex. P-52).

In a September 29, 2009 l evaluation, the student’s skills in activities of daily living were reviewed. The student was . The student did not and . The student needed .

At that time, a number of were in place to address the student’s psychiatric profile. The student was prescribed and . The student was also prescribed , which had been decreased by his neurologist from per day. In addition, the student was prescribed . The student was also prescribed (Ex. P-27 at 4).

For the future, the social worker who conducted the recommended that the family receive to ensure that the student remained in a . In-home behavior management was recommended to assist in . After school services were recommended to provide socialization and academic support to the student in a structured environment. Recreational services were also recommended to increase the student’s socialization skills (Exs. P-1 at 3, P-27 at 6).

By the end of October of 2009, the student’s teacher ( ) reported that the student was not and . He was able to (2) minute intervals and benefitted from one-to-one instruction (Ex. P-51).

On November 15, 2009, the parent was invited to an annual review meeting of the CSE on December 2, 2009 (Ex. P-18). In a December 1, 2009 counseling report, a licensed certified social worker recommended the termination of school-based counseling as the student was receiving limited benefit from the service (Ex. P-26).

At an annual review meeting held on December 2, 2009, the CSE recommended that the student receive instruction in a special class in a specialized (District ) school. The CSE also recommended that the student receive related services of: specialized transportation, adaptive physical education, group , individual physical therapy, individual occupational therapy and group counseling. Twelve month programming was also recommended by the CSE for the student (Exs. P-1 at 3, P-6 at 1, 12).

On a June 18, 2010 related service progress report, the student’s physical therapist stated that the student had make progress toward his goals of increasing activity tolerance and his overall fitness, but still required therapy services to achieve those goals (Ex. P-50 at 2).

At the beginning of 2010, the student was referred by AHRC’s Article 28 Health Care Clinic for a psychological evaluation to assess his cognitive and adaptive functioning for enrollment in and Developmental Disabilities (“ ”) services. At that time, the student attended a special class at . The student received the following medications on a daily basis: ); mg); mg); Hydroxizine PAM (200 mg) (Ex. P-25 at 2).

As part of a completed on April 21, 2010, when the ( old, the student was readministered the SB-V and the Vineland II. On the SB-V, the student demonstrated significant deficits in his when compared to the national standardized sample. He received a nonverbal IQ score of ( ) and a verbal IQ of (less than ). His full scale IQ was measured as ) (Exs. P-1 at 3-4, P-25 at 2-4).

Likewise, based on information provided by the student’s mother, the student when compared to the national standardized sample. On the Vineland II, the student received a communication standard score of ( ), a daily living skills standard score of ( ) and a socialization standard score of ). His adaptive behavior composite was

Overall, the student displayed a similar pattern in functioning in both and , which fell within the moderate range of . The evaluator recommended that the student apply for OMRDD services, including respite and residential habilitation (Ex. P-25 at 5).

On an August 13, 2010 report card, the student’s teacher stated that the student had “been meeting a few of his IEP goals and we are so proud of him. He was an excellent student to have this year as well as this summer” (Ex. P-47). On November 15, 2010, the parent was invited to attend a meeting of the CSE on December 20, 2010 (Ex. P-15).

On a December 3, 2010 report of the student’s performance on the New York State Alternate Assessment, the student achieved a “4" on all graded areas, including, English/language arts, math, science and social studies (Ex. P-48).

At an annual review meeting held on December 20, 2010, the CSE recommended that the student receive instruction in a special class in a specialized (District ) school. The CSE also recommended that the student receive related services of: specialized transportation, adaptive physical education, group , individual physical therapy, and individual therapy. A transition plan and a behavior intervention plan were developed by the CSE for the student who was also recommended to receive twelve month programming (Exs. P-5 at 1, 12-14, P-13).

On January 18, 2011, the student’s mother wrote to the CSE to request a revaluation to ensure that the student was “receiving the appropriate services and is in the appropriate educational setting” (Exs. P-1 at 4, P-11, P-12). In a February 3, 2011 letter to the parent from , the student’s teacher, Ms. stated that the student’s next reevaluation was scheduled for December 2, 2011 (Ex. P-10).

In a March 2, 2011 teacher evaluation, Ms. reported that the student “communicates in what he wants,” that he can “ directions with also reported that the student “ ” (Exs. P-1 at 4, P-23).

On a March 1, 2011 administration of the Vineland II, the student received a communication standard score of ( ), a daily living skills standard score of ( ) and a socialization standard score of ( ). His adaptive behavior composite was (less than percentile) (Exs. P-1 at 4; P-22 at 3-4).

At a meeting held on March 7, 2011, the CSE recommended that the student receive instruction in a special class in a specialized (District ) school. The CSE also recommended that the student receive related services of: specialized transportation, adaptive physical education, group therapy, individual . A transition plan was developed by the CSE for the student who was also recommended to receive twelve month programming (Exs. P-1 at 4, P-3 at 1, 10-11).

On June 1, 2011, the parent requested an IEP review for her son, seeking to review his then-current placement and services and to have new information added to the IEP (Exs. P-1 at 5, P-9).

In a June 10, 2011 related service progress report, the student’s physical therapist reported that the student had make progress toward his goals of increasing activity tolerance and overall fitness, but still required therapy services to achieve those goals (Ex. P-39 at 2).

In a June 15, 2011 annual review plan, the student’s occupational therapist stated that the student was cooperative when coming to individual sessions, was independent with and had made “some progress meeting his IEP goals.” The therapist recommended adding a group therapy session to the student’s IEP to increase opportunities for socialization (Ex. P-36).

For the current school year (2011/12), the student attended a special class at a specialized (District ) school in the through November (R. 101, 224; Ex. P-73). Subsequent to that time, the parent was no longer able to have the student attend school for instruction, given his size (approximately lbs.) and (R. 101, 194, 204). Schoolbased efforts to improve the student’s (R. 197-204, 225, 230-232, 261-262, 269).

IV. POSITION OF THE PARTIES

A. The DOE

The DOE argues that it afforded the student a free appropriate public education via an IEP developed by its CSE at a meeting held on March 7, 2011 (R. 67-69).

B. The Parent

The DOE has denied the student a free appropriate public education for the 2009/10, 2010/11 and 2011/12 school years. Specifically, it has failed to address his and failed to develop an for the student or provide services mandated by State regulations for students with . The student’s disability interferes with his ability to attend school. The student is entitled to compensatory additional services and the CSE should be ordered to consider a residential placement for the student (Ex. IHO-XI).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. General Legal Standards

Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.[10] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).

The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.

The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(I), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8

NYCRR

§ 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).

B. Compensatory Additional Services

Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to remedy a school district’s failure to implement a student’s IEP which resulted in a denial of FAPE. See Newington, 546 F.3d at 123 (stating that “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for a denial of a FAPE”).

Likewise, State Review Officers have awarded compensatory “additional services” to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See, e.g., Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep’t 2005) (finding it proper for a State Review Officer to order a school district to provide “make-up services” to a student upon the school district’s failure to provide those educational services during home instruction); Application of a Student with a Disability, Appeal No. 09-044 at 17 (awarding “make-up” counseling services to remedy the deprivation of such services) (SRO June 25, 2009).

As the CSE has offered the student a FAPE and implemented the program and services called for in his IEPs, I do not find that the student is entitled to compensatory additional services (R. 235-236; Exs. P-3, P-5, P-6, P-7, P-8, P-56, P-57, P-58). Given that the parent has raised a number of objections to the student’s IEPs, I will address each claim in turn.

1. Adequacy of Evaluations

The parent alleges that the CSE failed to appropriately evaluate the student (Ex. P-1 at 5-6, 8, Claims #1, #3, #4, #5, #17).

An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).

A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).

I find that the CSE had adequate evaluative information of the student’s functional, developmental and academic needs upon which to premise its programs for the student for the 2009/10, 2010/11 and 2011/12 school years. See Application of a Student with a Disability, Appeal No. 12-017 (SRO February 22, 2012). The evidence offered into the hearing record demonstrates that the student’s educational functioning, were regularly assessed by the CSE since 2006 (Exs. P-20, P-21, P-22, P-23, P-25, P-27, P-28, P-29, P-30, P-31, P-32, P-33, P-37, P-38). I further find that the progress reports prepared by the student’s related service providers were sufficiently comprehensive to identify all of the student's related services needs (Exs. P-26, P-36, P-39, P-50).

2. Adequacy of Goals & Objectives

The parent alleges that the annual goals developed for the student did not adequately address his particular needs, (Ex. P-1 at 7-8, Claims #8, #11, #15).

An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs the result from the student’s disability to enable the student to be involved in and make progress in the general education curriculum, and meet each of the student’s other educational needs that result from the student’s disability. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.320(a)(2)(i);[8] NYCRR §§ 200.4(d)(2)(iii), 200.16(3)(3). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. See performed and the frequency, duration and percentage of accuracy required for measurement of progress and remedied any deficiencies in the annual goals (Exs. P-5 at 6-9, P-6 at 6-11, P-7 at 7-13, P-8 at 6-10). See W.S. v. Rye Neck City Sch. Dist., 454 F. Supp. 2d 134, 146-7 (S.D.N.Y. 2006); Application of the New York City Dep’t of Educ., Appeal No. 12-005 at 9 (SRO March 5, 2012).

3. Methodology

The parent alleges that the student’s IEPs identified no instructional methodologies appropriate for the student’s needs (Ex. P-1 at 7, Claim #7).

I find that the absence of specific instructional methodologies from the student’s IEPs for the last three academic years did not impede the student’s right to a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or cause a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii). Although an IEP must provide for specialized instruction in a student's areas of need, the IDEA does not explicitly require a CSE to specify methodology on an IEP and, in many cases, the precise teaching methodology to be used by a student's teacher is generally a matter best left to the teacher. See, e.g., Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 07-054 at 9 (SRO July 11, 2007); Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 07-052 at 6 (SRO July 11, 2007).

Notwithstanding the absence of a specific instruction methodology from the student’s March 7, 2011 IEP, Ms. Quinones provided credible testimony that her 6:1:1 special class program uses the Treatment for Education of Autistic Children in Communication Skills (“TEACCH”) methodology. Designed for student’s with autism, the TEACCH methodology helps students increase independence by using visual picture cards, daily schedules and work set activities (R. 102-103).

4. Adequacy of Transition Planning

The parent alleges that the transition plan for the student does not include a coordinated set of activities to be undertaken to address the student’s transition to adult living (Ex. P-1 at 8, Claim #12). For the reasons stated below, I find that this component of the parent’s claim is without merit.

Under the IDEA, to the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enables the student to prepare for later post-school activities, including postsecondary education, employment, and independent living. See 20 U.S.C. § 1401(34); see also N.Y. Educ. Law § 4401(9); 34 C.F.R. § 300.43; 8 NYCRR § 200.1(fff). Accordingly, pursuant to federal law and State regulations, an IEP for a student who is at least 16 years of age (15 under State regulations) must include appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, if appropriate, independent living skills. See 20 U.S.C. § 1414(d)(1)(A)(viii); 34 C.F.R. § 300.320(b); 8 NYCRR § 200.4(d)(2)(ix). It must also include the transition services needed to assist the student in reaching those goals. See id.

The CSE has consistently developed transition plans for the student over the last three (3) academic years (Exs. P-3 at 11, P-5 at 13, P-6 at 15). I find that the March 7, 2011 IEP contained a statement of transition services needed to assist the student in reaching his postsecondary goals. See id. The March 7th transition plan indicated that upon aging out of school-age programming, the family intended for the student to participate in a supported employment program while he lived at home. To assist the student in reaching that goal, the CSE developed an instructional plan of community integration and independent living skills, including learning various work task activities such as sorting and matching. Work study opportunities are also available to the student in his special class program (R. 121-124, 227-228; Ex. P-3 at 11).

The student also receives extensive outside agency involvement. According to a September 29, 2009 comprehensive , the student receives medical care through He receives developmental pediatrics through the The student receives Medicaid Service Coordination through Services for the . He has also participated in after-school programming and residential habilitation (R. 578-579, 620-621; Ex. P-27 at 4).

5. Adequacy of Language Instruction

The parent alleges that the CSE failed to provide the student with adequate services and that the student was deprived of daily language instruction for the last three academic years (Ex. P-1 at 6, Claims #6, #10).

Based on the credible testimony of Ms. and Ms. , the student’s , I find that the CSE’s recommended program provided the student with sufficient instructional services to meet his individual needs, i.e., , through classroom-based instruction and recommended related services (R. 114-115, 154-155, 171-175, 347-349, 351-354, 356357; P-34). See 8 NYCRR § 200.13(a)(4); Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 08-109 at 17 (SRO December 22, 2008).

6. Adequacy of Progress Reports

The parent alleges that the DOE failed to provide her with meaningful progress reports on the student’s IEP goals and objectives (Ex. P-1 at 8, Claim #14).

The operative regulations require that IEPs include “a description of when periodic reports on the progress the child is making toward meeting the annual goals (such as through use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided.” See 34 C.F.R. § 300.320(a)(3)(ii); see also 8 NYCRR § 200.4(d)(2)(iii)(c).

While the student’s IEPs for the last three (3) academic years failed to indicate when periodic reports on the student’s progress toward his annual goals would be provided to the parent (Exs. P-3 at 6-7, P-5 at 6-9, P-6 at 6-11), see id., I find that these omissions did not impede the student’s right to a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or cause a deprivation of educational benefits, see 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii), because the parent was regularly provided with detailed reports on the student’s progress toward his annual goals (Exs. P-23, P-24, P-34, P-35, P-36, P-37, P-38, P-39, P-40, P-41, P-42, P44, P-45, P-46, P-47, P-49, P-50, P-51, P-52, P-53, P-54).

7. Adequacy of Behavior Management

The parent alleges that although the CSE recognized that the student’s it failed to develop a for the student (Ex. P-1 at 7, Claim #9).

Where a student's , the CSE must "consider the use of , and other strategies, to address that " when developing, reviewing, and revising an IEP. See 20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324(a)(2)(i);[8] NYCRR § 200.4(d)(3)(i).

For the last three (3) academic years, the CSE has developed s to address the student’s difficulties in paying attention and maintaining concentration, expressing his emotions and his displays of self-abusive behaviors (Exs. P-5 at 14, P-6 at 16, P-71, P72). Ms. also stated that she used an “if-then chart” and verbal praise to address the student’s behavior management needs in class (R. 106, 166).

Alternatively, while it does not appear that the CSE conducted FBAs of the student prior to its development of s on December 20, 2010 and December 2, 2009, where, as here, the s document a child’s and propose strategies and supports to address those behaviors, the failure to also conduct an does not amount to a denial of FAPE. See A.C., 553 F.3d at 172.

8. Parent Counseling & Training

The parent alleges that she was deprived of parent counseling and training for the last three academic years (Ex. P-1 at 6, Claim #6).[11]

State regulations require that an IEP indicate the extent to which parent training will be provided to parents, when appropriate. See 8 NYCRR § 200.4(d)(2)(v)(b)(5). State regulations further provide for the provision of parent counseling and training for the purpose of enabling parents of students with autism to perform appropriate follow-up intervention activities at home. See 8 NYCRR § 200.13(d).

The hearing record is unequivocal that the provision of parent counseling and training was not memorialized on any of the student’s last three (3) IEPs (Exs. P-3, P-5, P-6). Given, however, the testimony of Assistant Principal that parent counseling and training was available at the assigned school, I find that the CSE’s failure to specify parent counseling and training on the student’s IEPs did not result in a denial of FAPE

(R. 220, 226-227). See M.N. v. New York City Dep't of Educ., Region 9 (Dist. 2), 700 F. Supp. 2d 356, 368 (S.D.N.Y. 2010); M.M. v. New York City Dep’t of Educ., Region 9 (Dist. 2), 583 F. Supp. 2d 498, 509 (S.D.N.Y. 2008).

VI. CONCLUSION

Having determined that the district offered the student a FAPE for the 2009/10, 2010/11 and 2011/12 school years, I find that the student is not entitled to compensatory additional services.

VII. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,

IT IS

HEREBY ORDERED THAT:

1. The parent’s claims challenging the appropriateness of the student’s IEPs for the 2009/10, 2010/11 and 2011/12 school years are DISMISSED; and

2. The parent’s claim for compensatory additional services is DENIED. Dated: April 18, 2012

_________________________________

JEFFREY J. SCHIRO, ESQ.

Impartial Hearing Officer JS: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 JANUARY 10, 2012

PARENT

1. Due Process Complaint Notice/Impartial Hearing Request, 12/9/11, 13 pgs.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I. DOE Motion on Sufficiency of Complaint, 12/13/11, 1 pg.

II. IHO’s Determination on Sufficiency, 12/14/11, 1 pg.

III. DOE’s Request for Preliminary Ruling/Motion to Dismiss, 12/29/11, 2 pgs.

IV. Parent’s Response to DOE’s Motion, 1/1/12, 5 pgs.

V. Letter to Parties from IHO, 1/5/12, 5 pgs.

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 1, 2012

PARENT

2. Due Process Response, 12/15/11, 3 pgs.

3. IEP, 3/7/11, 11 pgs.

4. [Withdrawn]

5. IEP, 12/20/10, 14 pgs.

6. IEP, 12/2/09, 16 pgs.

7. IEP, 12/2/08, 15 pgs.

8. IEP, 02/26/07, 13 pgs.

9. Letter from parent, 6/1/11, 1 pg.

10. Letter to parent, 2/3/11, 2 pgs.

11. Referral to SBST/CSE, 1/19/11, 1 pg.

12. Letter to C. Blanco from parent, 1/18/11, 1 pg.

13. Notice of Recommendation, 12/20/10, 2 pgs.

14. Annual Review Cover Sheet, 12/20/10, 1 pg.

15. Notice of IEP Meeting, 11/30/10, 2 pgs.

16. Trans-Disciplinary Meeting Agenda, 12/3/10, 1 pg.

17. Annual Review Cover Sheet, 12/2/09, 1 pg.

18. Notice of IEP Meeting, 11/15/09, 2 pgs.

19. Communication Profile, undated, 1 pg.

20. Brigance Student Assessment Plan, undated, 1 pg.

21. Brigance Inventory of Early Development II, 9/20/11, 27 pgs.

22. Vineland II Survey Interview Report, 3/7/11, 5 pgs.

23. Teacher Evaluation, 3/1/11, 1 pg.

24. 2010/11 Student Communication Profile, 10/8/10, 2 pgs.

25. Comprehensive Psychological Evaluation, 4/21/10, 5 pgs.

26. Counseling Report, 12/1/09, 1 pg.

27. Comprehensive Psychological Evaluation, 9/29/09, 6 pgs.

28. Report, 10/8/08, 5 pgs.

29. Comprehensive Evaluation, 8/22/08, 4 pgs.

30. Comprehensive Evaluation, 8/22/08, 7 pgs.

31. Letter from Dr. , 7/11/08, 1 pg.

32. Evaluation, 10/18/06, 2 pgs.

33. Report, 9/18/06, 3 pgs.

34. Class Profile, 2011/12, 1 pg.

35. CSS Communication Profile Cover Sheet, 2011/12, 5 pgs.

36. Occupational Therapy Annual Review Plan, 12/15/11, 2 pgs.

37. Student Instructional Priority Report Card, 11/11, 11 pgs.

38. Student Instructional Priority Report Card, 6/23/11, 4 pgs.

39. Related Service (Physical Therapy) Progress Report, 6/10/11, 2 pgs.

40. Report Card (2010/11), 5/13/11, 3 pgs.

41. Report Card (2010/11), 3/18/11, 5 pgs.

42. Student Instructional Priority Plan & Progress Report (2010/11), 2/7/11, 2 pgs.

43. Instructional Priority Data Collection Sheet, 11/10, 9 pgs.

44. IEP Progress Report, 12/17/10, 2 pgs.

45. Report Card, 11/1/10, 10 pgs.

46. Student’s Strength-Based Profile, 9/17/10, 1 pg.

47. Student Instructional Priority Plan & Chapter 683 Report Card (2010), 8/13/10,

2 pgs.

48. Alternative Assessment Portfolio, 12/3/10, 1 pg.

49. Student Instructional Priority Plan & Progress Report, 2009/10, 3 pgs.

50. Related Service (Physical Therapy) Student Progress Report, 6/18/10, 2 pgs.

51. Report Card, 2009/10, 3 pgs.

52. Summer Report Card, 8/14/09, 2 pgs.

53. Report to Families, 9/08 - 6/09, 4 pgs.

54. Report to Families, 9/07 - 6/08, 3 pgs.

55. [Withdrawn]

56. Physical Therapy Attendance, 9/11 - 12/11, 17 pgs.

57. Attendance, 9/11 - 12/11, 21 pgs.

58. Folder, 9/11 - 10/11, 9 pgs.

59. License/Certification, , 1 pg.

60. License/Certification, , 1 pg.

61. Diploma, , 4/19/07, 1 pg.

62. Registration Certificate, , 1 pg.

63. Public School Teacher Certificate, , 9/1/02, 1 pg.

64. Social Emotional Performance page, 6/24/11, 1 pg.

65. [Withdrawn]

66. [Withdrawn]

67. [Reserved]

68. [Withdrawn]

69. [Withdrawn]

70. NYC DOE, Practice Guide, Fall 2011, 38 pgs.

71. , 12/20/11, 1 pg.

72. , 12/20/11, 2 pgs.

73. Student Progress Report, 1/25/12, 2 pgs.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

VI. Interim Order, 1/17/12, 8 pgs.

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 6, 2012

PARENT

67. Encounter Attendance , 2011/2012, 9 pgs.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

VII. Second Interim Order, 2/21/12, 8 pgs.

DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING

PARENT

None

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

VIII. Confirmation of Extension, 3/6/12, 1 pg.

IX. Parent’s Motion, 3/12/12, 2 pgs.

X. Letter to Parties (Ruling on Parent’s 3/12/12 Motion), 3/16/12, 2 pgs.

XI. Parent’s Closing Brief, 3/23/12, 15 pgs.

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”

[2] In a Second Interim Order dated February 21, 2012, my January 17th Interim Order was modified to include a evaluation among the battery of assessments to be conducted of the student. The date by which the CSE was to convene to review the evaluation results was also extended to March 9, 2012 in light of a school vacation during the week of February 20th (Ex. IHO-VIII at 4).

[3] The parties moved to extend the case compliance date in this matter once during the course of the hearing. In considering that request, I weighed the cumulative impact of the relevant factors and found that the parties’ need for additional time to present their written closing statements or briefs on the extensive issues raised in the parent’s due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, the parties’ joint request for an extension of the case compliance date was granted (R. 718-721; Ex. IHO-VIII).

[5] means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of after age 3 could be diagnosed as having if the criteria in this paragraph are otherwise satisfied. 8 NYCRR § 200.1(zz)(1).

[6] Adaptive behavior refers to an individual’s typical performance of the day-to-day activities required for personal and social sufficiency (Ex. P-30 at 4).

[7] Twelve-month special service and/or program means a special education service and/or program provided on a year-round basis, for students determined to be eligible in accordance with sections 200.6(k)(1) and 200.16(i)(3)(v) of this Part whose disabilities require a structured learning environment of up to 12 months duration to prevent substantial regression. 8 NYCRR § 200.1(eee).

[8] means the process of determining why a student engages in and how to the environment. shall be developed consistent with the requires of section 200.22(a) of this Part and shall include, but is not limited to, the identification of the problem behavior, the definition of the , the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. 8 NYCRR § 200.1(r).

[9] means a plan that is based on the results of a and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why and intervention strategies that include and serves to address . 8 NYCRR § 200.1(mmm).

[10] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

[8] NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3). The student’s IEPs for the last three academic years established annual goals and short-term instructional objectives which were reasonably related to his educational deficits. The student’s IEPs included annual goals in reading, writing, math, listening, communication, social skills, activities of daily living, physical conditioning and fitness, fine motor and motor planning skills, which described what he could reasonably be expected to accomplish within a twelve month period. The student’s short-term instructional objectives in those areas represented measurable, intermediate steps between his then-present levels of educational performance and his annual goals (Exs. P-5 at 6-9, P-6 at 6-11, P-7 at 7-13, P-8 at 6-10). To the extent that some of the IEP goals may have neither contained evaluative criteria or schedules, the corresponding short-term objectives contained sufficient detained information regarding the conditions under which each objective was to be

[11] Parent counseling and training means 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 § 200.1(kk).