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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 16, 2012
July 26, 2012
October 3, 2012
November 16, 2012
December 3, 2012
Actual Record Closed Date: December 21, 2012
Hearing Officer: Dora M. Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 16, 2012
ESQ., Attorney — Student
Chairperson's Designee, CSE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 26, 2012
Attorney — Student
Attorney — Student
Parent (Via Telephone) — Student
Chairperson's Designee, CSE — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 3, 2012
Attorney — Student
Parents
Grandmother — Student
DR., Chairperson Designee, CSE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 16, 2012
Attorney — Student
Mother (Via Telephone) — Student
DR., District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 3, 2012
Attorney — Student
Parents
Grandparent — Student
Physical Therapist (via telephone) — Student
Speech Therapist (via telephone) — Student
NO APPEARANCES
The parents of. (also referred to herein as “ ”), by their attorneys,, requested an impartial hearing on July 2, 2012 seeking continuation Related Services Authorizations (“RSA’s), so that could receive his therapies after school, provision of appropriate transition planning and services and appropriate evaluations.[1] I was designated to hear this matter on July 5, 2012 pursuant to 20 U.S.C. Section 1415(f) (1). An impartial hearing commenced before me on July 16, 2012 and July 26, 2012, on the issue of pendency.[2] A hearing on the merits was held on November 16, 2012 and December 3, 2012. Four extensions of the compliance date were granted due to the availability of witnesses, extensive testimony, and on one occasion, due to an attempted resolution of the issues. The final compliance date is January 15, 2013. (IHO Ex.I to IV).
BACKGROUND
. From the time he was five years old, he has been a student at , receiving his Therapy ( ) and ), outside of school. (Tr. pp. 85-86). An Individualized Education Program (IEP) meeting took place on March 1, 2012. At that time related services mandate was continued from his prior (May 17, 2011) IEP. The Committee on Special Education (CSE) recommended that he receive twice per week for sixty minute sessions, at a “separate location therapist office”; and twice per week for thirty minutes in a “separate location therapist”. (DOE Ex. 1). The IEP was to be implemented on the same date. (Id. p. 1).
s IEP includes as measurable postsecondary goals the following: Education/training: Internship opportunities will be given skills needed for employment will be discussed and learned. (Id. p. 3). There is no indication that any assessments were performed to plan for ’s transition needs. His IEP describes the following activities, which are needed to facilitate the student’s transition:
“Instruction. will begin to identify careers of interest, participate in site visits to observe and learn more about the job of interest.
Community Experiences. will participate in internships and community outings that foster a greater understanding of the world of work.
Development of Employment and Post-school adult Living Objectives: will identify post-school programs of interest and will begin to visit site.
Acquisition of Daily Living Skills: will continue to work on skills related to independent living (laundry, grocery shopping, budgeting and travel training).
Functional Vocation Assessment: Situational assessment, job shadow. (DOE Ex. 1, p. 7-8).According to the IEP the parties responsible for these activities are home, school (except for the functional vocational assessment, which is the responsibility of the school).
s IEP includes three annual goals for . The first goal is to “increase expressive language ability and articulation via PROMPT as necessary”. 3The other two goals are to increase . (Id. at 3-4).His IEP does not include any goals for . (Id.)
DOE POSITION
The DOE’s position is that AHRC has licensed and certified providers who are able to provide the related services recommended in ’s IEP. (Tr. p. 140). The DOE did not present any evidence or arguments regarding the parent’s request for appropriate transition planning or services.
Ms. , a certified special education teacher and school district administrator, testified that while the CSE initially agreed that should continue to receive his related services after the school day, subsequent to the March 1, 2012 meeting, there was a 3 On March 1, 2012, Pathologist, , submitted a report describing her work with She recommended continuation of his current mandate of 2 x 60 in a one to one setting to allow for intense oral motor practice and the incorporation of the PROMPT methodology to aid in his articulation. She wrote that “It is important that these services continue outside of school to minimize time detracted from academics and social interaction with peers”. (Par. Ex. F). PROMPT is an acronym for Prompts for Restructuring Oral Muscular Phonetic Targets. According to Ms. Papaleo, PROMPT Methodology is a tactile-kinesthetic approach to develop motor control and development of proper oral muscular movements, while eliminating unnecessary muscle movements. (Par. Ex. T). directive from the State Education Department requiring the school to deliver the related services during the school day. (Tr. pp. 49-50).
Ms. testified that this is ’s final year of IDEA eligibility, and a critical component of his program is his vocational training. (Tr. p. 60). The school modified his therapy schedule to accommodate his vocational training; however, delivery of related services during the school day would necessarily require that miss time from other subjects. (Tr. pp. 52, 65, 81)
Ms. testified that when was informed that it must deliver related services, during the school day, to its students, it objected because it did not have the staff needed to provide the services. (Tr. p. 74). By July 9, 2012, however, the first day of the summer session, it had hired , ’s therapist at . , his physical therapist, began working at on July 10, 2012. (Tr. pp. 53, 74). Ms. is not PROMPT trained. (Par. Ex. J, Tr. p. 57). Ms. testified that Ms. will work with on his two other goals (increasing pragmatic language and receptive language), and the school will bring in a consultant who is PROMPT trained to work on his PROMPT related goal. As of July 26, 2012, when Ms. testified, the consultant has not yet seen . (Tr. pp. 58-59). Nor was any evidence presented, by the conclusion of the hearing, that the consultant ever saw .
Ms. testified that the physical therapist works with in the extra gym area, which is her work area. (Tr. p. 60).
PARENT’S POSITION
The parent’s position is that it is inappropriate for to receive his related services during the school day because it interferes with his instruction, in his final year of eligibility; and because substantively, the school based related services providers cannot implement his IEP. The parent further maintains that the DOE failed to adequately assess ’s transitional needs, and to prepare an appropriate transition plan.
., ’s mother, testified that at the March 1, 2012 IEP meeting, related services were discussed, and she was informed that would continue to receive his related services, pursuant to RSA’s. (Tr. p. 92). She testified that everyone agreed that as would be graduating in June 2013, he needed time within the school day to do all of his academics, as well as his vocational training. (Tr. pp. 94-95). Following the March 12, 2012 meeting, continued to receive his related services pursuant to RSA’s for the balance of the 2011/2012 school year. (Tr. p. 95).
Over Memorial Day Weekend, Ms. . received a telephone message stating that there would be a change in related services delivery, effective July 9, 2012. (Tr. p. 96; Par. Ex. I). , the Associate Director of the Education Department at (Tr. p. 41) informed her that the state had mandated that provide all related services at the school. (Tr. p. 100). Ms. informed her that the CSE would be reconvening with the parents to discuss the changes; however Ms. was never contacted to come for another CSE meeting. (Tr. p. 101-102).
Ms. . testified that she is the incoming president of the Parent/Teacher Organization at , and is familiar with the facilities at the school. She testified that physical therapy is performed in the cafeteria (where there is no equipment) or, in the gym, when it is empty. The gym has treadmills a bike, balls and an elliptical machine; although some of the equipment has been broken by the students. The gym does not have a stairmaster, a leg press, a pro-stretch machine or weighted pulleys. (Tr. pp. 212-213).
is provided either in the hallway by the elevator, or in a classroom where others may be typing or speaking on the telephone, which is distracting. (Tr. p. 216).
Ms. . testified that the only vocational planning for consisted of “person centered planning” with the parents, to identify his likes and dislikes (Tr. p. 218). She testified that likes cleaning activities, such as sweeping, cleaning tables and doing laundry. (Tr. p. 243).
She feels that is not ready to transition to the adult world. (Tr. p. 219). She testified that in September, began to work with a vocational trainer, named , who took him to a mail delivery messenger service. The site was in the city, and received travel training as well. quit his job in September, and no one else has been assigned to him. (Tr. pp. 221-223). ’s only other internship (during the current school year and in prior school years) is at a senior center, close to the school. He works there, once per week, but only when staff is available to take him. (Tr. p. 226). She doesn’t know whether he currently attends the senior center, as the school is short-staffed. (Tr. p 232).
E-mail correspondence in evidence, from , a Vocational Counselor at , includes a list of ’s vocational and travel training activities. According to the correspondence, worked at the , once per week, from March 2011 to October 5, 2012 (the date of the correspondence) serving hot lunch to seniors; from March 2011 until September 2012 delivering interoffice mail, twice per month; travel training once per week from March 2011 until October 5; and at the school’s copy center, from July 2012 to October 5, once per week. According to the correspondence, ceased visiting the copy center after left; and as of October 22, 2012, no one else was taking him there. (Par. Ex. S,).
Ms. . testified that she would like to see working in a location outside of , specifically in a restaurant, two or three times per week. She testified that his internship at the senior center was the only location which was outside of the school. (Tr. p. 232). She testified that the school has other off-site internships; but that they have not been made available to . (Tr. pp. 240-241).[4]
She feels that travel training once per week is insufficient. (Tr. p .234). She testified that over the past two years, the school did not provide parent training and counseling services. (Tr. p. 236).
, a licensed physical therapist, testified that he has been treating since 2002. Currently, he sees him twice per week for thirty minute sessions, in his facility, where there is a gym. He testified that is . He has . He is cooperative for the most part. has deficits in his dynamic balance and attention. (Tr. pp. 155-156). He and in both legs. (Tr. pp. 157-158). He also has , which necessitates a exercise during therapy. (Tr. p. 164; Par. Ex. U).
Mr. gym includes a treadmill, an elliptical stair climber, leg press machine, weighted pulleys, a balance beam and pro-stretch, and a rebounder and a stationary bike, a trampoline and a hand bike. uses all of these machines; and each machine focuses on something slightly different. The treadmill is used for . The is used for balance and coordination; and the rebounder is used for balance coordination and gross motor skills. The pro-stretch machine is used for stretching the calves. He testified that needs all of these machines, in order to benefit from his twice weekly thirty minute sessions. (Tr. pp. 176-177). He testified that it would not be appropriate for to receive physical therapy in a cafeteria or a gymnasium, as it would be very distracting for him. (Tr. pp. 177-179).
Mr. testified that during the past year, has made progress in his endurance; and performing multi-step activities. (Tr. pp. 180-181).
, a licensed , testified that she has been providing therapy for for seven years. Her professional experience includes working as a speech consultant at from September 2008 to August 2012. (Tr. pp. 187-188, 200). currently receives SLT twice per week for sixty minute sessions, at home or in the community. (Tr. pp. 187-188). He has , all secondary to his a which greatly . (Par. Ex. T; Tr. pp. 188-192). communicates primarily . (Tr. p. 189).
Ms. testified that ’s especially . becomes if people do not understand . (Tr. p. 197).
PROMPT methodology is a large part of his therapy. During , they start with an articulation set that uses the PROMPT methodology. Once they finish these routines, they move on to specific . (Tr. pp. 197-198).
Ms. works on helping ; particularly where he is . This is significant as has a and needs to be able to communicate to his parents and doctor when he is having . (Tr. pp. 198-199). Ms. Papaleo’s work with includes instructing his parents and grandparents in assisting communicate about his . (Tr. p. 205).
Ms. testified that as of August 2012, when she left , there was no one in the school who was PROMPT trained. (Tr. p .203). She testified that as of July 2012, when began providing one-to-one it was in an elevator room, which was a high traffic area, which she felt was inappropriate, due to ’s . (Tr. p. 204). She also testified that delivery of speech services to during the school day will result in his losing instruction in academics and internships, which are essential for him, during his final year at school. (Tr. p. 207).
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 educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982].
APPROPRIATENESS OF THE RECOMMENDED PROGRAM
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. The school district must identify a school which is capable of implementing the IEP. See T.Y., K.Y. on behalf of T.Y., v. New York City Department of Education, 584 F. 3d 412 (2d Cir. 2009).
In these proceedings, the parents do not dispute ’s school placement, or the amount of related services. What is disputed is the adequacy of his transition plan; and the failure to include physical therapy goals in the IEP. In addition, the parents maintain that ’s related services cannot be appropriately provided at AHRC; and that he should continue to receive his related services, after school, pursuant to RSA’s. The parents also seek appropriate transition planning and services, including compensatory education for the failure to provide appropriate transition services.
RELATED SERVICES
The DOE has failed to demonstrate that ’s related services can be appropriately implemented at . I find that PROMPT methodology is an essential component of all of ’s sessions. ’s IEP includes, as a goal, increasing expressive language ability and articulation via PROMPT as necessary. As of the conclusion of the hearing, the DOE failed to present any evidence that PROMPT therapy could be provided at .
With respect to the , I credit Ms. . that PT is not consistently delivered in a gym. When the gym is full, it is delivered in a cafeteria, where there is no equipment, and which is distracting to . The equipment existing at the gym is not adequate to meet ’s needs. Finally, I find that cannot be appropriately delivered to at as his IEP does not contain any goals. In addition, the record indicates that the school does not have an appropriate “separate location” for delivery of , as provided in the IEP.
For all of the foregoing reasons, I find that the DOE failed to demonstrate the appropriateness of the related services available at .
Therefore, it is hereby ordered that the DOE shall continue to provide his and pursuant to RSA’s for the balance of the 2012-2013 school year.
TRANSITION PLANNING/SERVICES
8 NYCRR 200.1(fff) defines transition services as “a coordinated set of activities for a student with a disability, designed with a result-oriented process.” These activities must be based upon “the student’s strengths, preferences and interests.” The record indicates that ’s preference and strengths in cleaning activities were not taken into account in his transition planning.
Furthermore, while was scheduled for a variety of vocational activities; there is no indication that these were coordinated, or consistent with his interests. was scheduled to work once per week at a senior center (serving hot lunch to seniors); twice per month delivering interoffice mail; once per week doing travel training; and once per week at the school, making copies. His participation in these activities has been limited by staff shortages.
The record indicates that from September until October 22, 2012, he was not participating in his messenger service internship (an in-house program), which he was scheduled to attend twice per month. This program included travel training. There is no indication that the program was ever resumed, as of the conclusion of the hearing.
In addition, according to Ms. has not consistently attended his internship at the senior center (once per week) due to staffing problems. Furthermore, according to the February 2012 progress report in evidence, has not been given access to out of school internships.
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).
On the record before me, I am unable to determine the precise amount of instruction which was denied to (with the exception of the messenger service, which was to have occurred twice per month; but which did not occur from September through October 22, 2012). Based upon the foregoing, the DOE is directed to review records of ’s participation in internship and travel training for the 2011-2012 and 2012-2013 school years by January 10, 2013, and determine the specific amount of services he has missed. The DOE is directed to compensate for all missed sessions of internships and travel training, by providing additional internship and travel training opportunities, commencing January 22, 2013 and for the balance of the current school year. The DOE shall work with the parents and to identify appropriate community internships in accordance with ’s interests. Dated: January 2, 2013
DORA M. LASSINGER, ESQ.
Impartial Hearing Officer
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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.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Impartial Hearing Request dated, 7/2/12, 4 pgs B IEP dated, 5/17/11, 19 pgs C Speech Therapy RSA dated 6/8/11, 1 pg D PT RSA dated 6/8/11, 1 pg E Signed RSA dated 9/12/11, 1 pg. F Progress Report dated 3/1/12, 2 pgs. G Progress Report dated 2/23/12, 1 pg. H Related Service Medical Prescription dated 2/14/12, 1 pg. I Correspondence/Notations from dated 5/25/12, 1 pg. J Correspondence to Parent dated
7/12/12, 1 pg.
K Contemporaneous Phone Log dated 6/18/12, 1 pg. L Email Correspondence dated 6/5/12, 1 pg. M Classroom Related Services Schedule, undated, 1 pg. N Legal Authorities dated 7/26/12, 4 pgs O Report dated 2/16/12, 2 pages P Schedule, undated,[1] page Q Letter from State Education Department, dated 7/2/12, 2 pages R 2010/2011 MHS Lesson Plan, 2 pages S Various dates, Emailed Correspondence, 4 pages T report dated 10/8/12, 5 pages U Family Report dated 10/28/12,[2] pages
DEPARTMENT OF EDUCATION
III Case Follow-up Sheet dated 11/16/12, 1 page IV Case Follow-up sheet dated 12/3/12, 1 page
Footnotes
[1] On October 3, 2012, the parent’s Attorney stated that the issue of evaluations had been resolved. (Tr. p. 133).
[2] Following the pendency hearing, I found that was entitled to continue to receive his related services of Therapy (“ ”) and (“ ), pursuant to “RSA”s during the pendency of all due process proceedings.
[4] This testimony is corroborated by a report from dated February 16, 2012, which states that “currently no out of school internships are available to him ( )”. (Par. Ex .O, p. 2).
[1] IEP dated March 1st, 2012, 11 pages
[2] Final Notice dated March 8th, 2012, one page IMPARTIAL HEARING OFFICER I Case Follow-up Sheet dated 8/17/12, 2 pages II Case Follow-up Sheet dated 10/3/12, 1 page