New York City Department of Education, Impartial Hearing Decision

CORRECTED FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: July 9, 2012

July 23, 2012

Actual Record Close Date: August , 2012

Hearing Officer: Elise B. Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 9, 2012

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For the Student:

Grandmother

For the Department of Education:

, Director of Special Education

, Supervisor

, Supervisor

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 23, 2012

For the Student:

, Grandmother

, Father

For the Department of Education:

, Director of Special Education

, Supervisor

, Supervisor

Hearing Officer’s Corrected Findings of Fact and Decision 2

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Introduction

This case was brought before me upon my designation by the Department of

Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by ., the Grandmother (“Grandmother”) on behalf of , the student (“Student”), by filing a Due Process Complaint dated May 11, 2012 with the District (D-1) and an Amended Request for Due Process on July 9, 2012. THO-I.

The Grandmother is alleging that her grandson, , was denied a free and

appropriate public education (“FAPE”) for the 2012-13 school year and is seeking and as related services for said year. A evaluation was conducted on February 10, 2010 by the District (D-3) and an evaluation was conducted by the District on March 5, 2012. D-4.

There were two days of hearings in this matter. Hearings were conducted on July 9, 2012 and July 23, 2012. Extensions were granted in this case making the final compliance date, August 28, 2012. A list of Exhibits is attached as Exhibit A. The Parents, the District and the IHO submitted exhibits.

Background

This case involved an year old student. During the 2012-13 school year,

the student will attend ina class with a paraprofessional and counseling in accordance with the IEP that was developed on May 3, 2012 . D-7. No other related services were offered to at that time. D-7.

The Parents filed a Due Process Complaint on May 11, 2012 and then an

amended Due Process Complaint on July 9, 2012 objecting to the fact that and are not being offered to her grandson for the 2012-13 school year. P-7. I was appointed as an Impartial Hearing Officer on May 11, 2012.

Position of the Parties

Grandmother’s Case

The Grandmother called one witness, herself, and placed three documents into

evidence. P -A -- P-C.

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The grandmother testified that based on all the recommendations and standardized tests, she sees that has did not think it was necessary for to

get . She stated that she is concerned for his _ in the school She indicated that Dr. and the therapists’ evaluations specified that has

.P-A; P-C. She stated that the evaluators only saw her grandson for a short period of time while Dr. has been seeing for a long time. Tr. 82. She

indicated that sees Dr. every three months. Tr. 82. She said that Dr.

tested for and referred him to an to but found there was no .

Tr. 82. The grandparent also testified that Dr. provided her with a for and services. D-9; D-10. He did not provide any specifics with respect to what he needed but he did indicate in a letter that he needs and . Tr. 84. She also said that he at home without anything and she said that she hasn’t observed that it is based on . Tr. 85. She said that there are times in school where he has to go to the —_— because he and as a result, . Tr. 85. She said she believes this has during the 2011-12 school year. Tr. 85.

District’s Case

The District called two witnesses and placed ten (10) documents into evidence. D-1—D-10.

The first witness was , the supervisor for the District. Ms.

testified that the evaluation that was conducted was done by Ms. 5a

with the District on February 10, 2012. Tr. 33; D-3. The report is called a School Functional Assessment because it assess the student within the entire school environment to see how he is able to __ the school environment in comparison to his peers and what other supports he might require. Tr. 33-34. The evaluation was requested by both the District and the parent and it was done before the IEP meeting. Tr. 35. In terms of school mobility, Ms. testified that is able to access the entire school environment. Tr. 35; Tr. 36. She stated that “he is , Meaning he can when they are

throughout the with his peers.” Tr. 36. Ms. testified that the evaluator did notice that when was he did when he was . Tr. 36. She also

testified that he does have a paraprofessional that is a support system that is with him when he accesses the environment which he needs to be efficient and safe. Tr. 36. She

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also testified that in the classroom activities the evaluator found that he is —_ functioning with in the classroom, however she did notice that the times he would require assistance was when he was than the . Tr. 36. With respect to transportation, there

were no problems. Tr. 36. In addition, he was independent with respect to mealtimes and . Tr. 37. The evaluator also indicated that he wa sable to and at the same level and also was able to and participate in gym along with his peers. Tr. 37.

With respect to his , the evaluation states that he walks with a normal

pattern but he does move at a when they conducted the and sometimes he

. Tr. 38. She said he , and did well on the and performed within the

range of his . Tr. 39. She also testified that according to the

evaluation, he has but the evaluator did notice some of his which

may be . Tr. 39. She did state, however that she noticed that his when he was and this could also to the tasks in comparison to his peers at school. Tr. 39. Ms. testified that it does not seem to be affecting his school performance. The evaluator indicated that he does when he is or not and she recommended

some strategies that could be utilized in school and at home. Tr. 40. To build his —_, she suggested that he be in charge school since that involves __. Tr. 41. She also suggested task. Tr. 42. She also suggested one to

two minutes of . Tr. 42. Other strategies include putting him in

. Also , the evaluator suggested after school . Tr. 43.She also

suggested etc. By doing it at school and at home,

she testified that he would be “getting practice at doing to foster his and on a consistent basis, so they can see __ over time.” Tr. 43. Since the evaluator was only there one day, it was suggested that the teacher keep a log so that they would be able to pinpoint the exact environment that they could target that area. Tr. 44. The teacher did state in her report that he Tr. 44.

When asked why was not placed on ’s IEP, Ms. stated that even

though the evaluator did indicate that he throughout the school environment, they felt that it was based on his level of would not be able to help him with that. Tr. 45. She felt that the strategies the evaluator suggested would be more supportive since they are being done throughout the day and they are being targeted to deal with him

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, etc. Ms. also stated that it was important that the strategies be used at home and at school or else they will not work. Tr. 46. She testified that “based on the evaluation that I have here and the request that I’ve read from the parent, I believe that is not needed at this time on the child’s IEP.” Tr. 47 She testified that might be required if after the strategies are implemented for four to six weeks, the child is still . If that were the case, Ms. testified that she would then reevaluate to see if would be an appropriate service on ’s IEP because then they would have tried everything about changing his environment and giving him the support he needs. Tr. 48.

Ms. testified that the therapist would support in September

even if he were not mandated to receive because he has been identified as a child at risk and an evaluation was done and he was given specific strategies to be implemented in school. Tr. 48 Ms. testified that it would be up to the in the building to make sure the teacher understands how to implement the strategies and check back in on a regular basis to make sure they are being implemented and that they are working. Tr. 49. Ms. specifically stated that “We’re going to work hand in hand with the team, the school, to make sure how the child s actually benefitting from it.” Tr. 50.

On cross examination, Ms. testified that she will ensure that the strategies take place and there is follow up to see if services are necessary, because it is the role in the building to do this and she is the supervisor and will follow up. Tr. 52. She stated that “once we identify that [ ] has these strategies, before the school year I send out a list to all my letting them know exactly what’s going on in the schools and flag certain things. And in four to six weeks---...if [the strategies] are not working, then the had the report and has all the documentation, which is what I said about , when it’s happening, what strategies are working, And then we’ll come back again and discuss it. And if at that time it is not working...then... is probably warranted at this time.” Tr. 53.

The second witness was Mr. , the supervisor of Tr. 54. The

evaluation was requested by the Parent and District. Mr. stated that on the Report there were two concerns that were written by the student’s teacher. The first was that “[ ] (__ ).” The second was that “[ ] often in class.” Tr. 56. Mr. testified that the evaluator indicated that the student was not during the evaluation but he did

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; did not sustain effort on tasks but was; and was during the evaluation but did not Tr 58.

Mr. also testified that the evaluator also stated that was ; ;

and , and was the evaluation. Tr. 58. The evaluator, did, however, state that when something was __, got out of his , but with to do the tasks.

Tr. 58.

In terms of movement, in the categories of moving in a participating in,

moving , demonstrating and , demonstrating and adequate range of

, Mr. stated that the evaluator noted that there were some did not significantly and . Tr. 59.

In the area of activities of the daily living component, Mr. testified that the evaluator found that ’s skill level was consistent with his classmates and no significant difficulties were noted. Tr. 60.

In the area of classroom management abilities, Mr. testified that the evaluator found that ’s skill level was consistent with his peers and no significant difficulties were noted. Tr. 60. The evaluator noted that had for his age. Tr. 60

In the area of skills, Mr. testified that in most areas the evaluator

found that was consistent with his classmates, however, was noted in his

. Tr. 62.

Mr. further testified that the evaluator had take the Beery Developmental test, which is a test of . Tr. 67. performed slightly

which Mr. indicated is not significant. Tr. 63.

Mr. testified that the things that stand out for [ ] are...his , his

activities.” Tr. 65. With respect to the other areas including the of __ , difficulties were noted but not as significant. Tr. 65. Mr. stated that the evaluator pointed out that these behaviors are associated with his . He also is a child that seeks input through his . Tr. 66. Mr. stated that his , and need for can best be

addressed in the classroom. Tr. 67. He indicated that work in partnership with a team including the teachers, the paraprofessionals and the caregiver’s parents. Tr. 67. He stated that these behaviors are addressed through a . Mr. testified that this is the most direct treatment and the main role of the to consult and ast as a and

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partner with the team in order to support with a . Tr. 69. He stated that the recommendation is not often written into the IEP, “it’s sort of an agreement per the people that are working together with the student individually...” Tr. 71.

Mr. testified that there are two on staff at the school, and they work with the mandated students and also work with the non-mandated students in a “collaborative sort of monitoring role”. Tr. 71. Therefore, they are supposed to be a resource for the school at large, even for non-mandated students. Tr. 72.

With respect to writing, reading, math cluster subjects, morning and dismissal routines, education, transportation, grooming and , and ,and and_ ,he was found to perform comparable with his peers. Tr. 73. The two areas that were below his classmates were playground free play and transitions.

Mr. testified that it is crucial that the provider in the school provides strategies to ’s teachers and paraprofessional. He stated that this is probably the most important part of how they support kids since even for students who have a mandate to a address a specific school set, it is only for a short period of time and the bulk of the day is in the classroom, the school, and at home. Tr. 74.

Mr. testified that overall has the skills he needs to function and that his and they are best addressed on an ongoing basis in collaboration with the people that are with him all day. Tr. 75. On *s IEP, Mr. said that there is no

recommendation for services. Tr. 76. On ’s IEP, Mr. e testified that it says that is not recommended. D-7. Mr. testified that “His in the classroom are not within the scope of intervention. The evaluation was conducted was because the

parents and District were concerned involved ’s tripping and falling. The evaluation showed that had the and this is not an area that would address at

this time and he stated that “ there are better means by which we can support him. Tr. 77.

Findings

Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that

students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual 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 (20 U.S.C.

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1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. 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 (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 an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent.Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). 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 (20 U.S.C. §1415[f][3][E] [ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4] ii]; Winkleman v. Parma CitySch. Dist., 550 U.S. 516 , 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. Of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. 2007] aff'd 2008 WL 3852180 [2d Cir. Aug. 19, 2008]

A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (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

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F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 US. 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 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). 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]; see, Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see 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; E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]) An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Childwith a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with aDisability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of

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production and persuasion regarding the appropriateness of such placement (Educ. Law §$4404[1][c], as amended by Ch. 583 of the Laws of 2007).

The grandmother argued that the District failed to provide FAPE to for the 2012-13 school year since the CSE did not provide the student with and under the IEP. D-1; IHO-I. The grandparent stated that the May 3™ TEP was deficient because it failed to recommend and to address the student’s issues with respect to

tripping and falling in school and at home. The District conducted a evaluation in February 2012 (D-3) and an in March 2012 (D-4) and the reports were presented at the CSE meeting held on May 3", 2012. D-7. The District also conducted a classroom observation in January 2012. D-5.

In terms of the , the evaluator determined that was not

recommended at the time of her evaluation due to the fact that he scored a on the School Functional Assessment and that the student was performing within the range typical of his peers and the evaluator felt that his needs could be met by the student’s current education program. D-3. The evaluator did recommend that perform a consistent as well as in after ,and and chores in school and at home to help improve his . The evaluator felt that after this methodology was tried, if not successful, a reevaluation would take place. D-3. She specifically stated that the areas of concern were” in the classroom where he requires a _ paraprofessional to assure that he remains on task and . “She also stated that the student “demonstrates some during transitions as he and when he is not or . She does not require

supervision as he has good .’ D-3. During the hearing, the supervisor for the District, Ms. testified that even though the evaluator indicated that he

throughout the school environment, they felt that it was based on his level of and and that would not be able to help him with that. Tr. 45. She felt that the strategies that the evaluator suggested would be more supportive since they are being done throughout the day and are being targeted to deal with , getting himto , and at home and at school. Tr. 46. She specifically stated that the would support during the 2012-13 school year despite the fact that he is not a mandated student since he has been identified as a child at risk, an evaluation was done and it’s the job to make sure the strategies that have been suggested for are implemented throughout

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the school day with collaboration with the school team. Tr. 49-50. Finally, Ms. testified that as the supervisor, she will ensure that the strategies are implemented and will follow up, and if the strategies are not working in weeks, then they will discuss it, reevaluate and may be warranted at that time. D-3; Tr. 53. The May 3^rd IEP, it indicates that if his persist, a reevaluation is recommended in September 2012. D-7.

In terms of , the evaluator, Ms. determined that “Based on [ S|

performance during the evaluation, teacher report and clinical observations, services are not recommended. [ ’s] reported difficulties are not within the scope of

intervention. In addition , he is in a small classroom setting with a one to one paraprofessional to address his academic and behavioral needs at this time.” D-4. During the hearing, Mr. , the supervisor for the District testified that overall has the skills he needs to function and that his weak areas are and they are best addressed on an ongoing basis in collaboration with his team including his teachers, paraprofessionals, and his grandmother and other caregivers. Tr. 74. Mr. stated that ’s areas of , and and these needs are best addressed through a

working as a consultant in partnership with the other members of the team. Tr. 69. In terms of the , Mr. testified that it is not often written in the IEP, he stated that “‘it’s sort of an agreement per the people that are working together with the student individually...” Tr. 71. In terms of movement, it should be noted that in the categories of moving in a coordinated way, participating in , and , and demonstrating

adequate function and range of motion, Mr. noted that there are but they do not significantly . Tr. 59. It was also noted that his skills were

but Mr. said this was not significant. Tr. 67. Mr. testified that he had underlying skills and there were better means to support at this time and that was not

recommended.

Ms. testified that at home and she does not believe it is based on

fatigue. Tr. 85. She says that there are times at school that he has to go to the nurse because of his and misses school work. Tr. 85. In this regard, she provided Office of School Health reports from the office but only one of the six reports included in evidence appeared to be for a_ to the . P-B. Both the District and the grandparent are,

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however, in agreement that he several times a week. D-3; D-4; D-7. Dr. also indicated that he needs and in his letters dated May 3 (P-A) and July 17^th (P-C) and he provided s for the (D-9; D-10), however, he did not give instructions on what specifically was needed nor did he provide testimony. Although, Ms. was sincere in her testimony, she provided no specific reports or testimony that was in dispute with the District’s findings. A letter from Dr. stating needs and is not sufficient..

Based upon the foregoing, I believe the District has sustained their burden in demonstrating that and are not warranted at this time. Based on the reports and evaluations, it is clear that the District has provided a program designed to meet *s individualized needs, and he is being provided with sufficient support services to receive educational benefit. It is also clear from the hearing record that in the event does not show improvement after the strategies are put in place by the supervisor and supervisor to meet his needs, the student will be reevaluated. It is clear that the parties need to work in collaboration to implement the strategies for identified by the evaluators for four to six weeks before any other actions will be considered to reevaluate for and/or .

Accordingly, I find that the District provided FAPE to the student for the 2012-13 school year. Therefore, the grandmother’s request for and for the 2012-13 school year, at this time, is denied in its entirety.

ORDER

Based upon the foregoing, it is hereby Ordered that the grandmother’s request for

and is hereby denied .

Dated: August 28, 2012.

Correction Date: August 30, 2012 (Correction Made to the Actual Record Close Date)

ELISE B. KESTENBAUM, ESQ.

Impartial Hearing Officer

EBK:jj

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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.

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DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Letter from Dr. , 9/30/12, 1 p.

B Notices from Office of School Health, Various Dates, 6 pp.

C Letter from Dr. , 7/17/12, 1 p.

DEPARTMENT OF EDUCATION

1 Request for Impartial Hearing, 5/11/12, 1 p.

2 Final Notice of Recommendation, 5/3/12, 1 p.

3 Report, 2/10/12, 5 pp.

4 Report, 3/5/12, 7 pp.

5 Classroom Observation, 1/18/12, 1 p.

6 IEP Meeting Notice, 4/12/12, 1 p.

7 TEP, 5/3/12, 13 pp.

8 Teacher Report, 1/6/12, 3 pp.

9 , 12/21/11, 1 p.

10 , 2/21/12, 1 p.

IMPARTIAL HEARING OFFICER

I Amended Request for Due Process, 7/9/12, 1 p.-