New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 27, 2012

September 11, 2012

November 2, 2012

December 13, 2012

January 8, 2013

January 9, 2013

February 8, 2013

February 25, 2013

Actual Record Closed Date: March 27, 2013

Hearing Officer: Esther Mora, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 27, 2013

For the Student:

NONE

For the Department of Education: : DOE Attorney (Via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 11, 2013

Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 2, 2013

Parent (Via Telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 13, 2013

Parents

Attorney — DOE

CSE-6 (Via Telephone) — DOE

Special Education Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 8, 2013

Parents

BCBA (Via telephone) — Student

DOE Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 9, 2013

Parents

BCBA (Via telephone) — Student

DOE Attorney\ — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 8, 2013

Parents

BC BA, ADA Provider, Parent Training Provider (Via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 25, 2013

No Appearance — Student

Attorney — DOE

The parent’s impartial hearing request pursuant to the Individuals with Disabilities Education Act was received on July 26, 2012. Upon appointment as hearing officer I immediately scheduled the hearing. The matter was first heard before me on August 27, 2012, and proceeded as expeditiously as possible. Continuance dates were scheduled for as promptly as possible. Compliance date extensions were granted only for good cause shown and are documented in writing as part of the transcript.

PENDENCY

The parent requested pendency relief, which I granted by Interim Order dated September 11, 2012. The parent an amendment of the Order so that the effective date is the commencement of the 2012-13 school year, to ensure that all providers are paid. (Exh. S)

SCHOOL DISTRICT

The school district presented testimony and documentary evidence in support of its position that it offered a free appropriate public education (FAPE) to the student. (Testimony and Exhibits 1-22) School district witnesses included a social worker, who was a member of the Individualized Education Program (IEP) team. She testified regarding the development of the IEP, the team members, which were the parent and a school district psychologist, and the results of the IEP meeting. (Tr. At 53-72)

The team developed an IEP dated June 27, 2012. (Exh. 21) The recommended disability classification was Autism. The parent does not dispute the classification. The placement recommendation was a NYSED approved non-public school day program. The parent did not dispute this. The school district offered to place the student at the Hawthorne School and the parent consented because it was the school she requested. The recommended related services were:

a. speech and language therapy, 3x30

b. physical therapy 2x30,

c. occupational therapy, 3x30

The record establishes that the parent disagreed with the frequency and duration of the related services and also asked for home-based Applied Behavioral Analysis (ABA) services and parent counseling and training.

The school district also submitted documentary evidence at the hearing. A bilingual psycho-educational evaluation dated May 3, 2012, found that the student had a diagnosis and was functioning significantly in all academic areas. (Exh. 3) A psychological update dated May 30, 2012, noted that the student continued to perform and exhibit The evaluator recommended continuation of home care and parent involvement. (Exh. 4) An educational progress report dated January 17, 2012, noted that the student made progress in all areas but continued to require a modified and adaptive curriculum. (Exh. 5) A speech and language annual progress report dated January 17, 2012, noted that although the student was progressing he was often distracted and demonstrated difficulty attending to adult generated activities. (Exh. 6) A physical therapy annual report dated January 20, 2012, noted that the student was progressing but he continued to and decreased balance, coordination and motor planning abilities. He displayed and required verbal cueing and encouragement to complete activities. (Exh.

7) A evaluation by center dated March and April 2012, noted that the student continued to require intensive therapy. (Exhs. 8, H) A letter dated May 2, 2012, from the student’s occupational therapist, recommended that he receive an IPAD to use at home. (Exh. 10) A social history dated June 5, 2012, noted that the parent was seeking a change in placement site. (Exh. 11) A physical therapy progress report dated June 10, 2012, noted that the student was making slow, steady progress but required close supervision due to his poor dynamic awareness. He was easily distracted and needed constant redirection. (Exh. 18)

By final notice of recommendation dated June 27, 2012, the school district offered to place the student at the . As noted above, the parent consent to the placement site but disagreed with the frequency and duration of the related services of , physical therapy and therapy. (Exhs. 19, Q)

The student’s teacher at the testified about the services the student receives at . She also testified regarding the parent training offered . (Tr. At 83-95; Exh. 21)

PARENT

The parent presented testimony and documentary evidence. A letter dated May 2, 2012 from the student’s occupational therapist recommended that he receive an IPAD for use at home and school to improve his visual perceptual and skills, to challenge his him to attend and visually track objects. (Exh. M) An update dated May 30, 2012, noted that the student continued to exhibit behaviors consistent with the diagnosis of Autism. Impairments included communication, social interaction, behavioral regulation and adaptive skills. Recommendations included 20-25 hours per week of home-based ABA services to allow for carryover and family training in order to make appropriate progress and meet IEP goals. (Exh. C) By letter dated June 5, 2012, the parent consented to an assistive technology evaluation. (Exh. N) A physical therapy progress report dated June 10, 2012, noted that the student required physical therapy 3x60, to ensure more rapid progress in gross motor development and to improve his daily functioning within his home and school environment. (Exh. P) A doctor’s letter from the dated June 22, 2012, noted that the results of an ongoing indicate that the , indicate that he continues to require 20 hours of ABA therapy after school, as well as daily , therapy four times a week. (Exh. B) A home-based educational services quarterly progress update dated June 23, 2012, noted that the student received home-based services and the parent received parent training. He continued to demonstrate deficits in all skills domains but made progress. He progressed in the ability to work for longer periods of time without breaks and sitting appropriately during instructional time at his table. He gained in his ability to state personal information and receptively and expressively sorting items by categories. Future recommendations included targeting additional daily living skills and incorporating the student’s brothers into social goals as much as possible. The evaluators recommended continuation of ABA home-based services and parent training. (Exh. D) By progress report dated August 24, 2012, the student’s recommended an increase in service to address his receptive, expressive and which were interfering with his daily functioning. (Exh. I) A quarterly report indicated that the student continued to require and benefit from the he received at school. (Exh. R) An annual physical therapy progress report by the student’s physical therapist, dated November 13, 2012, noted that the student required physical therapy 3x60, , through different , to improve his strength, his locomotion skills, so he could engage better in school and play.

By progress reports dated June 10, August 8 and November 18, 2012, the student’s occupational therapists recommended y 5x60 to address his sensory, fine motor, visual perceptual/motor and self-care needs. (Exhs. J, K, L)

Witnesses for the parent included the parent, the student’s occupational therapist, who testified that the student requires occupational therapy 5x60 (Tr. At 102-141), the student’s speech and language therapist, who testified that the student requires therapy 5x60 1:1 (Tr. At 142-172), the supervisor of the student’s ABA program, who testified that the student requires at least 15 hours of direct ABA services, plus weekly team meetings, and that the parent requires 5 hours per week of parent training (Tr. At 179250), and the parent training provider, who testified about the services she currently provides and the reasons to increase the hours. The witnesses also testified in depth about the student’s strengths and weaknesses, the services they provided, the methodology utilized, and the progress the student has made.

FINDINGS OF FACT AND LAW

The record establishes that the school district failed to provide a FAPE to the student for the 2012-13 school year.

As was recently reiterated in Appeals 12-048 and 12-135, 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 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 (20 U.S.C. § 1400[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]). In this instance, I find that these two purposes were not met.

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 7(Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). The school district in this instance did develop an IEP, as it is required to do, but the IEP was not reasonably calculated to enable the student to receive educational benefits because it did not provide for all of the services the student requires to receive educational benefits.

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 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 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]; Winkelman v. Parma City Sch. 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]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (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" (Rowley, 458 U.S. at 203). In this instance, the record establishes that a FAPE for this student must include 15 hours of home-based ABA, weekly team meetings, additional related services, parent and training and transportation, to enable him to receive the level of personalized instruction with sufficient support services he requires to benefit educationally from the instruction he receives in school. Several witnesses for the parent testified credibly as to how these services will enable the student to benefit fully from his educational program at school.

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] [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 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). This is not a situation where the parent seeks any more than an “appropriate” education for the student. The record demonstrates that the services she seeks are the services the student requires, at a minimum, to progress.

The 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, 2007 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 (LRE) (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]). In this case, the record establishes that the IEP developed by the school district is not likely to produce progress. In fact, without the services requested by the parent it is more likely that the student will regress or make no more than trivial advancement. The IEP is not reasonably calculated to provide meaningful benefit.

The record also establishes that providing a program that includes the additional services the parent seeks, including the ABA services, is the least restrictive environment for the student. The hearing record establishes that the after-school ABA services and the additional related services are not overly restrictive for the student. Appeal No. 12-048

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 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] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 8300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with 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 a Disability, 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). In this case, the parent obtained and submitted to the school district many recent evaluations and progress reports to substantiate her request for the additional services. Those reports, as well as the hearing record, establish overwhelmingly that the student requires the services sought by the parent. I also that none of the district’s witnesses had ever observed the student’s home-based ABA program. Appeal No. 12048

As in Appeal No. 12-048, I also find that the home-based ABA services are not duplicative of the instruction provided by the nonpublic school. Although both the nonpublic school and the after school ABA services address similar needs, there are differences between the instruction provided in the two settings and the record is clear that the student requires substantial repetition to acquire new skills. The record demonstrates how the student benefitted from the ABA instruction he received and the witnesses testified specifically and credibly as to how he progressed with both the ABA, as well as with the additional related services. Although there is inevitably some overlap of the skills addressed at school and home, the hearing record supports a finding that the home-based ABA services are not duplicative of the school-based services to such an extent that they are unnecessary or excessive. Appeal No. 12-048

And as in Appeal No. 12-048, I also find that in this case the relevant factor in determining whether services are duplicative is not whether the nonpublic school and home-based services address similar areas of need, but whether the nonpublic school services sufficiently meet the student's needs in an area of deficit such that the student is likely to progress, thereby rendering the home-based services unnecessary or excessive. I find that this hearing record supports a finding that the student's home-based ABA services did not constitute maximization, but rather an appropriate supplement that supported the student's school-based special education program.

The parent also seeks five hours of parent counseling and training. The school district contends that the services are available at the school, but the record establishes that they are in fact not available to the parent. Parent and training is defined in State regulation as "assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program" (8 NYCRR 200.1[kk]; see 34 CFR 300.34[c][8]), and State regulations require that IEPs developed for students make provision for such services, "for the purpose of enabling parents to perform appropriate follow-up intervention activities at home" (8 NYCRR 200.13[d]; see 8 NYCRR 200.4[d][2][v][b][5]). I find that this service is essential for the student to progress and that it should be provided at school district expense. Appeal No. 12-048

PENDENCY

The parent’s request for an amendment of the pendency order is hereby granted. My Interim Order dated September 11, 2012, which addressed pendency, is hereby amended. The Interim Order is effective as of the commencement of the 2012-13 school year, to ensure that all providers are paid. (Exh. S)

ORDER

For all of the reasons set forth above, I grant the relief set forth below. For the 2012-13 school year the school district is to provide:

A. 15 hours per week of home-based ABA instruction, and

B. Weekly team meetings supervised by/with a Board Certified Behavior

Analyst

C. Occupational therapy in a sensory gym, 5x60 , and

D. Physical therapy in a sensory gym, 3x60 , and

E. Speech and language therapy, 5x60 , and

F. 5 hours per week of parent counseling and training by a Board Certified Behavior Analyst, and

G. Special education transportation to and from school in an air conditioned mini-bus with a bus paraprofessional and limited time travel.

I have considered the parties' remaining contentions and find them to be without merit. Dated: March 28, 2013

ESTHER MORA, ESQ.

Impartial Hearing Officer

EM:gc

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Findings of Fact and Decision, 17 pages (previously admitted) B Letter from , Comprehensive Epileptic Center dated 6/26/12, 1 page. C NYU dated 5/30/12, 9 pages D VIPS Behavior Intervention Services, Acquired

Pre-Progress Update, Home Based Educational Services, Date of Report

6/23/12, 3 pages E VIPS Behavioral Services Quarterly Progress Update, dated on 11/12/12,

5 pages F Graph, dated 11/12/12, 1 page G November Consultation Notes Signed by , dated 11/10/12,

2 pages H Center, dated on 3/26/12

and 4/2/12, 4 pages I Play Works Pediatric Therapy Related Services Student Progress Report, , date of Report 8/24/12, 3 pages J Related Services, Student Progress Report, Play Works, dated 11/18/12,

2 pages K Related Services Student Progress Report, Occupational Therapy, dated 8/8/12, 2 pages L Progress Note by , , dated 6/10/12, 2 pages M Letter of justification by dated 5/02/12, 2 pages N Consent for an Assistive Tech Evaluation dated 6/5/12, 1 page O Physical Therapy Progress Report, Formacion PT, dated on 11/13/12,

2 pages P Related Service Student Progress Report dated on 6/10/12, 2 pages Q Final Notice of Recommendation by the Department of Education dated 6/27/12, 3 pages R Related Services Progress Report by School , dated of report 11/01/12, 1 page.

DEPARTMENT OF EDUCATION

1 Parent's Complaint dated 7/26/12, 7 pages 2 Department's Due Process Response dated 7/30/12, 4 pages 3 Bilingual Evaluation dated 5/3/12, 7 pages 4 Update dated 5/30/12, 9 pages 5 School Educational Progress Report dated 1/17/12, 5 pages 6 School Annual Progress Report, dated 1/17/12, 3 pages 7 School Physical Therapy Annual Report dated 1/20/12, 2 pages 8 , Speech And Language Evaluation dated 4/2/12, 4 pages 9 Department of Education Appointment Letter dated 4/17/12, 1 page 10 Letter by dated 5/2/12, 2 pages 11 Department's Social History dated 6/5/12, 2 pages 12 Consent for Assistive Technology Evaluation dated 6/5/12, 1 page 13 Department's IEP dated 6/5/12, 13 pages 14 Department Assurance Checklist dated 6/5/12, 2 pages 15 Department IEP Team Efforts to Place Student in Least Restrictive Environment, dated 6/5/12, 2 pages 16 Department's Central Response for Consideration of state Approved Nonpublic School, dated 6/5/12, 1 page 17 Letter from dated 6/7/12, 1 page 18 Leaps and Bounds Related Service Student Progress Report dated

6/10/12 19 Department's Final Notice of Recommendation dated 6/27/12 20 Department Declination of Participation of Parent Member dated 7/14/12 21 Department Individualized Education Plan, dated 8/6/12, prepared

6/27/12, 13 pages