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: October 10, 2012

October 24, 2012

January 2, 2013

January 3, 2013

Actual Record Closed Date: February 5, 2013

Hearing Officer: Lana S. Flame, Esq.

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

Attorney — Student

Legal Assistant — Student

Parents

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 24, 2012

Attorney — Student

Legal Assistant — Student

Parents

Psychologist (Via Telephone) — Student

District Representative — DOE

DOE Psychologist (Via Telephone) — DOE

Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 2, 2012

ESQ., Attorney — Student

Legal Assistant — Student

Parents

ABA Therapist (Via Telephone) — Student

SLT Therapist (Via Telephone) — Student

DR, Psychologist (Via Telephone) — Student

DR., DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 3, 2012

Parents

Attorney — Student

Legal Assistant — Student

PHD (Via Telephone) — Student

DOE Representative — DOE

INTRODUCTION

By correspondence dated July 27, 2012, the parents of ("the student") requested an impartial hearing on his behalf pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sec. 1415 (f)(1) (Ex. A).^[1] The parents alleged that the New York City Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) for the 2012-2013 school year, commencing mid-August 2012, by

(1) failing to offer to continue the student’s 10 hours per week of home-based applied behavioral analysis (“ABA”) instruction from mid-August 2012 through the 2012-2013 school year, (2) failing to provide the student with 5 sessions of therapy per week (with at least two sessions to take place outside of school) and (3) failing to reimburse the parents for the cost of private evaluations provided to the student during the 2011-2012 school year (Ex. A-1, A-2). Additionally the parents asserted that they were denied meaningful participation because the “IEP teams continually deflected the issue of outside services and indicated that it was beyond their authority to recommend any outside services.” (Ex. A-5).

A pre-hearing conference was held on September 12, 2012. On the first day of hearing, October 10, 2012, the parties requested an order with respect to the student’s pendency rights.^[2] A pendency order was issued on October 25, 2012 (IHO Ex. II). The hearing was held on October 10, October 24, 2012, and January 2 and 3, 2013.

The student is a 5 year old boy, born on October 1, 2007, who has been diagnosed with ”) (Tr. 172-173, 384; Ex. H-1; Ex. K-1; Ex. O-1; Ex. P-1). The parties agree that the student is properly classified as a student and needs a 12 month program (Ex. A; Ex. C-1, C-8; Tr. 5, 62, 379). In his June 27, 2012, IEP, the student was recommended to attend , a non-public school approved by the New York State Education Commissioner to provide special education and services to students with disabilities by contract with the DOE (Tr. 62). The parties agree that is an appropriate recommendation. The issues before me are: 1) whether the student was denied a FAPE because the CSE eliminated the 10 hours of special education itinerant teacher (“SEIT”) services the student was receiving and would not include 10 hours of ABA therapy which specifically was the service he had been receiving under his previous IEP; 2) whether the student was denied a FAPE because the CSE would not provide the student with five sessions of therapy, an increase of two sessions that were requested by the parents; and 3) whether the parents are entitled to reimbursement for the cost of independent educational evaluations provided to the student during the 2011-2012 school year. Extensions of the Time Line

On October 10, 2012, the parties jointly requested an extension of the time line due to the availability of the witnesses. Tr. 35-36. On that date, I granted the extension from October 15, 2012, to November 14, 2012. The extension allowed time for both parties to present their case, with the necessary witnesses, in accordance with due process requirements. There were no previous delays caused by either party (Tr. 214; IHO Ex. III)

On October 24, 2012, I granted an extension from November 14, 2012, to December 14, 2012. In a November 7, 2012, e-mail exchange the parent requested an extension of the November 14, 2012, compliance date to December 14, 2012, due to the impact of Hurricane Sandy on the parents’ ability to prepare. Due to the effects of the storm, neither the parents’ attorney nor I had access to our files or the October 24, 2012, transcript, when a previous request and decision had been made and granted. I granted the extension request a second time, for the same time period, and memorialized that request and decision (IHO Ex. IV; Tr. 452-454).

In an e-mail dated November 16, 2012, the parent requested an extension of the compliance date from December 14, 2012, for an unspecified amount of time. Subsequently, during several teleconferences, Mr. , attorney for the parents represented that due to the impact of Hurricane Sandy, his office building remained closed and he was unable to access his files. In teleconferences with Mr and Dr. representative for the DOE, the parties each represented that neither party, including the student, would be prejudiced by a further delay in this matter. I found that Mr. kept me and the district informed about the status of his ability to resume this hearing since Hurricane Sandy and made reasonable efforts to resume given the impact of the storm on his office. Due process considerations required an extension of the compliance date. On December 14, 2012, I granted an extension to January 13, 2013 (IHO Ex.V).

On January 3, 2013, the parties jointly requested an extension of the time line in order to allow time to receive the transcripts and submit closing briefs (Tr. 450). I determined that the parties would not be prejudiced by a further delay in this matter. I granted an extension from January 13, 2013 to February 12, 2013, in order to allow the parties to fully exercise their due process rights (IHO Ex.VII).

On January 18, 2013, the parents asked for an extension of the compliance date due to additional time needed to submit the parents’ brief. The attorney preparing the brief needed additional time due to illness. The district joined in the request. After a determination that previous delays were due to the impact of Hurricane Sandy and that the parties would not be prejudiced by an extension, on January 24, 2013, I granted an extension of thirty days from February 12, 2013, to March 14, 2013 (IHO Ex. VIII).

FINDINGS OF FACT

At 18 months the student was evaluated at the suggestion of his pediatrician because he was (Tr. 380). The student qualified for and received and special instruction, at home, until he aged out of the program.

In 2010, the student was evaluated by the Committee on Preschool Education (“CPSE”) and was found to be a preschool child with a disability (Tr. 381-382). In July 2010, the student was placed ”), a center-based program that used TEACCH methodology. The student’s CPSE IEP also mandated therapy for three sessions per week (Tr. 401). By letter dated September 23, 2010, Dr. , a , provided the student’s diagnosis of ”), “with ” (Ex. O-2). Dr. recommended, among other things, both at home and in school (id.).

Over the next five months the student showed no or and that he previously had not exhibited (Tr. 385-386, 392). helped the student’s parents in contacting the DOE to request at home services for the student. The CPSE added five hours of SEIT services to the student’s Individualized Education Program (“IEP”) and in December 2010 he began to receive at home (Tr. 390-391).

The provider found that one hour per day, five days per week, were insufficient for her to work effectively with the student so that he could progress and receive educational benefit. In February 2011, the CPSE agreed to increase the student’s at home SEIT services from five to ten hours (Tr. 242-243, 392-393). The student consistently has received the ten hours of therapy since February 2011 (Tr. 393-394).

By letter to the CPSE dated December 13, 2011, the parent requested that the DOE fund an independent neuropsychological evaluation for her son. The parent expressed her concern that “current testing does not adequately assess his emotional and learning needs” (Ex. G-1). The fee for the evaluation identified by the parent, to be conducted by Dr. Elizabeth , was $4,200.00 (Ex. G-1). The parent did not get a response to this letter (Tr. 407). The parent had the student evaluated by Dr. for a fee of $4200.00, which the parent paid (Tr. 407-408; Ex. CC-8). The parent provided Dr. ’s report to the CSE in time for the “turning five” meeting to plan for the 2012-2013 school year (Tr. 408-409, 413, 437-438). Dr. ’s evaluation, Ex. H, was available to the CSE prior to the June 27, 2012, IEP meeting and it was reviewed by Ms. and the assigned CSE special education teacher, , prior to that meeting (Tr. 93-94).

Dr. , a clinical psychologist who specializes in evaluating children with learning disabilities, evaluated the student over three days for approximately five to six hours and completed a report dated December 27, 2011 (Ex. H; Ex. CC; Tr. 320-321).3 In terms of the student’s cognitive functioning, Dr. found that the student is a highly intelligent boy with intellectual potential far above the average range. On the WPPSI-III [the student] obtained a Full Scale IQ rating of 112, which places him in the high average range of intellectual functioning. However, due to his , he was not able to perform to his fullest potential during the evaluation Dr. direct testimony was submitted by affidavit (Ex. CC). (Ex. CC-4). On sections of the WPSSI-III which required the student to understand a verbal question and formulate a logical response, the student was unable to produce a response if there were no visuals, scoring in the borderline range for comprehension and average range on the General Language Scale. The borderline score (5%) was misleading because the student’s raw score was zero (Ex. H-10). Additionally, the student performed in the borderline range (8%) in the Woodcock Johnson Story Recall subtest, showing the student’s inability to process lengthy information (Ex. H-7; Ex. CC-5). Similarly, the student was unable to process lengthy instructions (Ex. H-8; Ex. CC-5).

Dr. observed the student’s varied capacity to relate to others, noting that at times he “was well-related and . At other times, he merely in a . At times, too, he , such as ” (Ex. H- 9; Tr. 321-322). The student also “would sometimes , merely . This showed me he .” (Ex. CC-6; see Tr. 321-322). Dr. noted the necessity for social skills training because “[h]e does not pick up on and he cannot interact appropriately with peers (Ex. H-11).

Dr. recommended that the student continue his 10 hours per week of at-home ABA therapy because it helps him to “remain connected with the real world so that he does not retreat into himself” (Ex. H-11). She recommended because she knows that ABA helps children with these deficits (Tr. 326-327, Tr. 329-330). Based on what Dr. read in the reports, she also noted that when the student received the therapy for only five hours per week during the 2010-11 school year, he did not progress and that “only when services were increased to 10 hours per week did he begin to progress” (Tr. 330). She was unable to state whether the student’s progress could be attributed to his school experience alone, but rather “it’s a combination of everything that this child is getting” (Tr. 324-325).

Dr. recommended an increase in to five times per week “to help him develop . He requires intensive work on naming objects, expressing himself, and communicating with others.” Ex. H-11: Ex. CC-6). The additional also would help the student by addressing the that he provides when he does not know the answer (Ex. CC-6). She recommended that the student receive the services with a therapist who is trained to work with children (Ex. H-11).

A January 10, 2012, Twelve Month Rationale written for the student by Ms. Irina Avdeeva, the student’s , indicated that the student required consistent services in order to avoid regression. She noted that the student regressed during weekends and vacations and that “after school vacations it takes 5-6 weeks and after weekends it takes 2-3 days for [the student] to relearn the classroom routine and previously taught concepts and skills” (Ex. N-1).

By letter to the CPSE dated February 27, 2012, the parent requested that the DOE fund an independent evaluation for her son (Ex. F). The parent stated her concern about a report provided by the Birch speech pathologist. The informed the parent that she was under pressure from the DOE to reduce the number of sessions offered to students and consequently, she would be recommending two sessions for the student rather than three (Tr. 403). The parent did not receive a response from the DOE (Tr. 404-405).

The student underwent a evaluation conducted by Dr. , a pathologist, specializing in (Ex. DD-1). He conducted a evaluation of the student over two sessions, each lasting about one and a half hours (Tr. 354). Dr. provided the student with various tests of that were not provided by the most recent DOE pathologist in the progress report that recommended the reduction of services. For example, Dr. administered the Goldman-Fristoe Test of Articulation, the Peabody Picture Vocabulary Test IV-A, and various subtests of the Clinical Evaluation of Language Fundamentals Preschool-2 (“CELF-PS2”) (Ex.I- 3-5). He wrote a report dated March 10, 2012 (Ex. I). The parent provided a copy of his report to the CSE for use at the “turning five” IEP meeting (Tr. 406). The fee for the evaluation was noted as $600 (Ex. F).

Dr. diagnosed the student with a (Ex. I-7). 4 He found that the student performed at in the Word Structure subtest, the in the Expressive Vocabulary subtest and the in the Sentence Structure subtest of the CELF-PS2 (Ex. I -6). Dr. recommended that the student receive five sessions of because based on the evaluation results, the time spent with the student and a review of documents, the student impressed as presenting with “at least a . There are issues of social pragmatic language issues. There

Dr. ’s direct testimony was submitted by affidavit dated December 30, 2012 (Tr. 351; Ex. DD). are issues raised of intelligibility and phonology that was stressed in previous reports, as well as mine, that needed to be addressed….” (Tr. 356).^[5] He also noted that “additional opportunity should be given for group therapy to strengthen use of language in addition to [the student’s] individual therapy” (id.).

Dr. also recommended that the student continue to receive 10 hours of ABA at home services. Dr. based his recommendation on his experience as a consultant and member of “scores of ABA teams where I’ve been with ABA board-certified people….” (Tr. 357). Dr. emphasized that students with a do not learn incidentally. Given the student’s , a language-rich school environment is an integral key part of any program, but that alone is not enough (Tr. 362-363; Tr. 372). An effective program is a combination of multidisciplinary therapies that all work to attain the same goal. The classroom environment would be a vehicle to allow for socialization for transitioning between activities for group and individual learning and for exposure to peers who have language. The behaviors reported in all of the evaluations are going to interfere in a classroom and markedly interfere with learning (Tr. 363-364). The portion of the integrated program would address school, can be interfering with learning, as well as behaviors that need to be reinforced, and need to be strengthened. The program would have visual supports, a strong schedule of reinforcement, breaking down the student’s abilities, breaking down skills that match his abilities, recording progress, and having an ongoing dialogue between the providers (Tr. 366).

A SEIT Student Progress Report dated April 4, 2012, prepared by the student’s ABA therapist, Theodora Theodosiadou, noted that “the student concepts and skills (e.g., ), he continues in generalizing what he has learned at school and properly using those skills in the home environment.

This is particularly true in the following areas:

(Ex. J-1). The student continued to what he had learned in school to other parts of his daily routine outside of school, reinforcement” (Ex. J-1). The student had even in one to one instruction, his with the intent to communicate was noted to be “very limited” to expressing his basic needs generally using one word, he was unable to respond to questions requiring more than a yes or no answer without considerable prompting or visual supports, he was unable to identify or describe his daily activities, he had difficulty using pronouns correctly, and he (Ex. J-2).

In the realm the student was learning how to play games, follow the rules, and take turns. The student liked being in the company of other children and adults, but did not greet them spontaneously, did not respond to his name consistently or maintain eye contact (Ex. J-3). The student’s “ability to with other children his age is limited by his difficulty with expressive language, and is hindered by his and ” (id.).

Ms. also commented on the student’s tendency to regress without services. She noted that “although are provided consistently throughout the school year, when there is a gap in , the student regresses and requires significantly more ” (Ex. J-1).

Ms. recommended that “[the student] should continue to receive at least ten hours of home-based therapy ” (Ex. J-4). Ms. Theodosiadou noted that “[the student]’s IEP goals will continue to be the focus of ABA home therapy so he will meet criteria, and generalize and maintain these skills across various settings (e.g. school, home, and in other environments) and people (e.g., school teachers and therapists, home therapist, family, peers)” (id.).

The student’s “turning five” CSE meeting was first held in April 2012.6 The CSE meeting was attended by Ms. , a CSE school psychologist, , a CSE special education teacher the student’s mother, and the student’s then classroom teacher (Tr. 78). The CSE recommended an integrated co-teaching (“ICT”) class with related services for the student (Tr. 78-79, 411-412). The parent strongly disagreed with the recommendation and stated that the student belonged in a much smaller and structured setting (Tr. 79, 412). At the time, Ms. had not read the private evaluations and the parent informed her that the student had been diagnosed with . The meeting was adjourned until the next day (Tr. 413). The next day, the CSE reconvened and again recommended an ICT class with related services (Tr. 414).

Neither Ms. nor the parent could recall the specific date of the first “turning five” meeting.

By E-mail dated May 10, 2012, the student’s father asked for another IEP meeting to discuss his concerns about the ICT recommendation and the student’s possible placement in , where he recently had been accepted. The father made note that the CSE was aware that he was out of the country when the “turning 5” CSE meeting proceeded without him (Tr. 416, 419; Ex. E).

A May 14, 2012, Educational Progress Report written notes:

“Although [the student] has acquired many academic concepts and skills, his ability to use them in the . [The student] has mastered many academic skills through . However, when it comes to generalization and use of the skills, [the student] and proper usage of the information. [The student]

performs much better in a and has difficulty generalizing the things he has learned”

(Ex. K-1, 2).7 Ms. also noted that the student’s “participation in classroom activities is compromised by his and difficulty to express his needs and wants independently” (Ex. K-2, 3).

On May 15, 2012, the CPSE met and recommended that for July and August 2012, the student attend a special class, and receive SEIT services for 10 hours per week, as well as speech-language therapy three time per week individually for thirty minutes, occupational therapy twice a week for thirty minutes individually, and physical therapy twice a week for thirty minutes, individually (Ex. B-9, B-14; Tr. 96-98). In addition to the information provided by the participants, the recommendation was made based on informal testing by the teacher using the Brigance Inventory Assessment, an occupational therapy evaluation report and a physical therapy report (Tr. 97-98; Ex. B-1). In a Classroom Observation dated June 1, 2012, Ms. , a certified school psychologist assigned to CSE 24 and 30, wrote that she observed the student at his pre-school, in 8 connection with his “turning five” IEP (Tr. 76). The report states that the student

7 It must be noted that the student’s June 27, 2012 IEP contains portions of Ms. s observations verbatim (Ex. C-1, 2). 8 It is unclear when this observation took place. Parent Ex. D-1, an e-mail from the parents’ attorney, , CSE Chair, sent at 8:52 am on June 1, 2012, references a recent observation “for placement in an Intensive PreK program” for which the student was found inappropriate. No other classroom observation was introduced into evidence. responded to the teacher after she called his name a few times. He appeared “very . The teacher praised the student for reading “some difficult words” and it looked as though the student . The teacher asked the student some questions about the book, but the student could not answer the questions. Ms. noted that the student was directions, but he “ ”, required throughout the day, and did not initiate social interactions with his peers or adults ( Ex. 1-2).

The parents provided the CSE with more documentation and met with DOE representatives on at least two other occasions to discuss possible programs. (Tr. 440442). The parents explored options that were suggested. The parent continuously raised the student’s need for additional as well, but consistently was told that the focus was first to find the student a kindergarten placement (Tr. 417-418).

At one such CSE meeting, the CSE considered a student progress report, the speech report, and the preschool teacher’s updated report (Tr. 82).^[9] The CSE was in possession of and was aware of the student’s CPSE May 15, 2012, IEP, including that the student had been receiving SEIT services (Tr. 98, 113; Ex. B). At that time, the CSE deferred the student’s case to the Central Based Support Team (“CBST”) for a non-public school recommendation. There was no disagreement with the recommendation (Tr. 8283). The parents had in mind at that time and the placement was discussed at the meeting (Tr. 82-83).

A CSE meeting was held on June 27, 2012, to update the student’s IEP by adding the program recommendation, “NYSED-Approved Non Public School-Day”, and related services (Tr. 83; Ex. C-8). The student was recommended three times per week, physical therapy twice a week and occupational therapy twice a week (Tr. 86; Ex. C).

As per Dr. ’s recommendation that the student’s be increased to at least five individual 30 minute sessions of therapy per week, the parent asked for additional speech services (Ex. I-7). Prior to the June 27, 2012, CSE meeting, Ms. reviewed Dr. evaluation of the student (Tr. 106). The parents asked for two additional periods of services, but Ms. testified that she was “directed that what was on the secure placement letter, I have to put it on his IEP” (Tr. 88). “I was directed by the Central based support team to put whatever was on the secure placement letter.” (Tr. 107; Ex. 3-2). She further explained that “said three times per week.” (Tr. 106-108). The parent was told that the maximum number of sessions that could be provided to the student would be three (Tr. 422).

The parent asked for the student to receive afterschool services, but was told by Ms. that the DOE was prohibited from including anything in the IEP that is not provided by the school (Tr. 422). Ms. stated that since the secured placement letter said nothing about after school SEIT services, she could not put it in the IEP (Tr. 108). She recalled a discussion about afterschool SEIT services that the student was receiving as part of his pre-school IEP services, but stated, “…but at the kindergarten level, I don’t think he would qualify for the CET [sic] service” (Tr. 87, 91).

Ms. after a break between direct and cross examination, on cross examination stated: “Actually, I take that back. But we decided that we have given him with a highly structured and very small student ratio with the related services. And we thought that those services would like sufficient for him to—for the kindergarten” (Tr. 91). Ms. stated that this view was based on her observation and a talk with the Birch classroom teacher (Tr. 91). This testimony is not credited given the witness’s original testimony, the timing of her corrective testimony and the parent’s credible testimony corroborating that the parents were told that the CSE only could provide what was in the secured placement letter. The CSE based its decision to eliminate the student’s SEIT services on speculation. Speaking about , Ms. testified:

Actually this is like a highly structured and a very small teacher/student ratio. And sometimes they incorporate a lot of, in their curriculum, a lot of student attention is given there. And then they have like applied

So I was not sure. I assume that .

(Tr. 99-101). When asked whether the CSE knew if incorporates ABA into the curriculum, Ms. responded: “No, we did not know at the time of the meeting whether— for sure if they had it, but we—it was hypothetical, we assumed that they may have it.” (Tr. 104-105).

Dr. , a clinical psychologist, evaluated the student and consulted with the student’s parents on October 24, 2011, July 18 and 19, 2012, and produced a report at the end of July 2012 (Ex. P). The purpose of the consultation was to assess the student’s current functioning and whether the services he was receiving were appropriate to the student’s needs (Tr. 201). Dr. ’s findings and recommendations were consistent with Dr. findings (Tr. 183, 187-188; Ex. H; Ex I). The report was not available for the June 27, 2012, CSE meeting (Tr. 199).^[10]

, the student’s current kindergarten teacher at , taught the student for a little over a month at the time of her testimony (Tr. 118-123). The student adjusted well from the first day (Tr. 123). Ms. described the student as academically, “very bright” (Tr. 123). The student what has been taught to him because of , but “he has a difficult time in .” (Tr. 123-124, 136). He reads fluently, does and is able to comprehend stories read for him (Tr. 123-124). With support and motivation, he can retell parts of the story. The student has to be addressed at this time (Tr. 124). He has . He is and transitioning from (Tr. 124). The student , but after , he will get up. He follows the classroom routines with reminders (Tr. 125). The student has not made any attachments to adults or students in the classroom (Tr. 125). The student (Tr. 125). The student quickly resumes the same behavior (Tr. 125-126).

The student’s difficult to understand. He in . He needs (Tr. 126). Ms. feels that she is able to address the student’s needs through encouraging the student to use his words. Ms. believes that she addresses the student’s academic needs because the classroom curriculum will cover the areas of the student’s goals. Ms. addresses the student’s social needs through modeling by other students, trying to encourage the student to interact well with the other students and to initiate interactions in the classroom by using the appropriate word or full sentences (Tr. 126-127, 133). The student receives (Tr. 133).

Ms. addresses the student’s difficulty with generalization by having him use the information he is learning throughout the day, in different subjects. According to Ms. , the student is unable to generalize information in that way (Tr. 136-137). Once a week, Ms. communicates with the student’s teacher at via e-mail and receives a weekly calendar for the student (Tr. 246-247). Ms. testified that the student requires ABA therapy at home while he attends because “whatever he is he needs someone to assist him in generalizing those things he’s learning at home” (Tr. 247). She assists the student with his homework daily. The student and requires a lot of repetition of questions and . She models things for the student “when it’s very difficult for him to understand the questions that the teacher is asking” (Tr. 247).

In Ms. ’s view, the parents would not be able the student to complete his homework because in order for the student to complete the work, she must break down skills into smaller skills, model and redirect the student. The parents are not familiar with all of these techniques (Tr. 253-254). Ms. also takes the student out into the community and teaches him skills such as going to the store to buy items (Tr. 254). Ms. takes the student to the playground with his babysitter. The student is taught how “to take turns and share materials, how to improve his , how to improve his find [sic] motor skills by playing with material….” (Tr. 254, 268-269). The provider is addressing the student’s very limited diet by introducing an eating schedule. She also is teaching the student to be careful crossing the street and reported that the student “sometimes has no concept of danger” (Tr. 254-255).

Since the student began to receive services, he now is able to greet people spontaneously and shows affection when someone is leaving (Tr. 244-245). He has been (Tr. 245). He has increased his vocabulary, learned more math skills and is reading books and answering “wh” questions (Tr. 245). Using several techniques, including a time clock, verbal reminders, and physical prompting, the student has been able to from one minute in 2010 to 30 minutes currently (Tr. 255-256). He is a happier child and is able to identify his emotions (Tr. 245).

Ms. ’s rate is $85.00 per hour. That is the rate the DOE had paid the agency where she worked previously (Tr. 250).

Ms. , a New York State licensed pathologist, with approval from the DOE to work with students who receive related services authorizations (“RSA”s) has a private speech therapy practice (Tr. 297-298). Ms. was the student’s when he was receiving services (Tr. 300-301, 303, 310). At that time, the student was able to make (Tr. 303304).

Ms. observed the student on September 5, 2012, at the request of the parent, to determine whether she would work with the student again (Tr. 302). Ms. observed the student for about an hour, after school, during an (Tr. 302-303). She observed that he was able to speak in full sentences and to read (Tr. 304-305). Ms. observed that it was “very hard” for the student to stay on topic or to elaborate on one specific activity (Tr. 306). In terms of “wh” questions, the student could answer only “what” an object is. He confused pronouns (Tr. 306).

Ms. testified that the student should receive speech services at home, above the three thirty minute sessions he currently is receiving at to be able to transition the same goals he is working on in school with the speech therapist to the home setting (Tr. 308). Additionally the student needs help to stay on topic, to maintain proper eye contact, and to engage in proper communication skills (Tr. 307-308). The student “takes very . He constantly needs ” (Tr. 312). Ms. acknowledged that the student’s three pull out sessions of and his regular instruction at are a very rich language-based program, but that it is not enough (Tr. 312). The student’s mother testified that sometimes it is difficult for the student to find words (Tr. 377). He unless they are very simple yes no questions or if they are repeated “over and over again.” (Tr. 378). He does not understand prepositions or pronouns. Currently the parents are working with the to improve the student’s and widen the (Tr. 395-396, 428). The also helps the parents break routine tasks like requesting a particular food for breakfast or getting dressed into pajamas for bed into little incremental steps for the student to perform himself (since as the parent explained she could do all of these things for the student in a fraction of the time, but he needs to learn how to do these tasks independently) (Tr. 428-429).

The parent thinks that is appropriate, but not enough for the student to progress. Now, if the student misses four days of because of the weekend or the provider’s illness, by the fourth day, “it’s very hard to get to connect.” (Tr. 424-425). Without , by the fourth day, the student .” (Tr. 425). It takes a significant more effort to get him to respond (Tr. 426). Discussion and Conclusions of Law

The parents are seeking a ruling that the DOE failed to provide the student with a FAPE for the 2012-2013 school year by failing to recommend a continuation of the at home ten hours of ABA services the student was receiving at the time of the June 27, 2012, CSE review and is now receiving pursuant to the IDEA's pendency provisions. Additionally they are seeking an order for two additional thirty minute sessions of at home services as well as reimbursement for independent educational evaluations.

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, economic self-sufficiency, 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]; Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-07 [1982]).

To prove it offered a FAPE, the DOE must show that (a) it complied with the procedural requirements of the IDEIA; and, 2) the educational plan developed by its CSE was “reasonably calculated to confer education benefits to the child” (Rowley, 458 U.S. 176, 206-07 (1982)). The importance of IDEA's procedural provisions was highlighted by the Rowley Court when it stated: “[t]he initial procedural inquiry is no mere formality” (Id.). “Adequate compliance with the procedures prescribed [by IDEA] would, in most cases assure much, if not all, of what Congress wished in the way of substantive content in an IEP” (Rowley, 458 U.S. at 206). Although procedural flaws do not automatically require a finding of a denial of FAPE, procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, do constitute a denial of FAPE. (Application of the Dep’t of Educ., Appeal No. 12-048 citing, 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]).

A school district “fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement.” (T.P. ex rel S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009) quoting, Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); Application of the Dep’t of Educ., Appeal No. 12-075 at 11). 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).

The DOE has the burden of proof that it provided a FAPE to the student for the 20122013 school year (N.Y. Educ. Law § 4404(1)(c)). FAPE means “special education and related services that have been provided at public expense, under public supervision . . . and without charge; meet the standards of the State educational agency; include an appropriate . . . elementary, or secondary school education in the State involved; and are provided in conformity with the individualized education program required under section 1414(d) of the IDEIA.” ( Sec. 20 U.S.C. § 1401(9)).

The DOE failed to meet its burden of proving that it offered the student a FAPE on both procedural and substantive grounds. Through its only CSE witness the DOE was unable to establish that it had conducted a review allowing for the meaningful participation of the parent or that it considered the individual needs of the student in making its recommendations. The recommendation of a New York State approved nonpublic school with therapy three times per week for thirty minutes per session, physical therapy twice a week and twice a week was unlikely to produce progress rather than regression in the student. Parental Participation

The parents assert that at the June 27, 2012 CSE meeting, the CSE denied the parents the opportunity to fully and meaningfully participate in the development of their son’s IEP because the “IEP teams continually deflected the issue of outside services and indicated that it was beyond their authority to recommend any outside services.” (Ex. A5).

The CSE was required to consider the concerns and contributions of the parents in planning for the student’s education (8 N.Y.C.R.R. 200.4(d)(2); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524, 530-32 (2007)). The IDEA “requires the CSE to consider any ‘concerns’ of parents for ‘enhancing the education of their child’ when it formulates the IEP” (id.; Application of the Dep’t of Educ., Appeal No. 12-048 at 8). The CSE is required to consider parentally provided input and opinions in the same manner it considers the input of DOE team members (8 N.Y.C.R.R. §§ 200.3(a)(1)(i) and (c)(2)(i); Application of a Child with a Disability, Appeal No. 03-026). Based on the parent's unrebutted testimony, I find that under the circumstances of this case, the district conducted the June 27, 2012 CSE meeting in a manner that significantly impeded parental participation due to its unwillingness to consider the parents' concerns (Winkelman, 550 U.S. 516, 524; Application of the Dep’t of Educ., Appeal No. 12-048; Application of the Bd. of Educ., Appeal No. 07-087; see T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]; Application of the Dep't of Educ., Appeal No. 11-031). The district's failure in this instance to consider or adequately respond to and address the parents' concerns that they raised during the formation of the IEP constituted a procedural infirmity which "significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student" (Application of the Dep’t of Educ., Appeal No. 12-048, quoting, 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Application of a Student with a Disability, Appeal No. 08-035; see Matrejek, 471 F. Supp. 2d at 426-27), thereby denying the student a FAPE The evidence in the record supports the parents' claims. The record reflects that the parents met with the CSE at least four times. The parent’s testimony that the CSE would not engage with them in a discussion about the continuation of the student’s SEIT services or the parents’ request for while the parents and CSE were trying to identify an was credible and there was no evidence in the record to the contrary. The parent’s testimony that the CSE would not engage with them in a discussion about the continuation of the student’s SEIT services or the parents’ request for additional once the recommendation was made, on June 27, 2012, also was credible (Tr. 422). The credible testimony of the CSE witness was that the CSE was limited to offer only the services stated on the secured placement letter from and nothing more (Tr. 88, 106-108). Even if the CSE witness’s “corrective” testimony were to be credited, that is, that the decision was made because would be sufficient for the student for kindergarten because it was highly structured and offered , the reality is that the CSE did not know what would be offered (Tr. 91, 99-101, 104-105).

Where the CSE was fully aware that the student had been receiving 10 hours of at home ABA services under his prior IEP and the parents had provided numerous evaluations with recommendations to continue and to add two sessions of outside speech therapy, yet refused to have a full discussion about whether the student needed these services in order to progress or be provided with a FAPE, the CSE impeded the student’s right to a FAPE, impeded the parents' opportunity to participate in the IEP formulation process, and compromised the development of an appropriate IEP resulting in a loss of educational benefits (see, Application of the Dep’t of Educ., Appeal No. 12048 at 8, the CSE significantly impeded the parent’s opportunity to participate in the decision-making process, thereby denying a FAPE, by refusing to consider or accurately respond to the parent’s request to continue home-based ABA services that the child had already been receiving and had resulted in academic and ). The DOE presented no evidence or support for eliminating services that had previously been included in the student’s IEP, or the refusal to consider an increase in services.

Even if the CSE ultimately disagreed with the parents' opinions, it had an obligation to engage with the parents in a meaningful discussion about their concerns. (See App. of a Child with a Handicapping Condition, Appeal No. 91-13). The CSE had an obligation, under the circumstances, to determine whether The Child School, alone, would allow the student to progress in a meaningful way. Because the parents were prevented from actually having a full discussion with the CSE about their concerns regarding such an established and crucial component of the student’s educational program, the CSE review was incomplete and this procedural violation must be considered a denial of FAPE. ABA Services

“To meet [the IDEA’s] requirements, a school district’s program must provide ‘special education and related services’ [20 U.S.C. § 1401(9)], tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits (M.H. v. NYC Dep’t of Educ. 685 F.3d 217, 224 (2d Cir. 2012); citing Gagliardo v. Arlington Cen. Sch. Dist. 489 F.3d 105, 107; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d

Cir. 2005)).

The law requires that the CSE make recommendations based upon a child’s individual needs (Rowley, 458 U.S. at 206-207). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs ((34 CFR 300.320[a][1]; 8 N.Y.C.R.R. 200.4(d)(2)(i)) and provides for the use of appropriate special education services (34 CFR 300.320[a][4]; 8 N.Y.C.R.R.

200.4(d)(2)(v); see SRO 09-070; Application of the Dep't of Educ., Appeal No. 07-018).

A school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater that mere ‘trivial advancement’” (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting, Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); SRO 12-075 at 11).

Here, the weight of the evidence compels the conclusion that the CSE’s recommendations were improperly made based upon policy considerations rather than on the student’s individual needs. The DOE failed to offer any evidence that the termination of services was appropriate for the student. The record supports the finding that as recently as May 15, 2012, the DOE, through its CPSE found that the student needed 10 hours of SEIT services together with placement , a five hour per day, 12:1: 3 program that was described by Ms. as also structured and having a high student to teacher ratio (Tr. 102-104, 109-110, 400; Ex. K). As noted previously, the June 27, 2012, IEP team agreed with Ms. Avdeeva’s characterizations of the student and included them verbatim in the IEP they developed. (Ex. C-1, 2). The weight of the evidence shows that at the time of the CSE June 27, 2012, review, the student had “very limited” ability to use the academic information that he learned by rote, in the classroom setting (Ex. K; Ex. C-1). The student exhibited difficulty using , retrieving information, answering questions, initiating social interactions, playing with his peers, and maintaining focus (Ex. C; Ex. H, Ex. I; Ex. K). The at the time was Ms. , who had provided a progress report describing the work she was doing and the student’s progress. The evaluation reports and testimony of all of the parents’ witnesses state that the student requires 10 hours of at home because his behaviors interfere with his learning at school and he is unable, with the school program alone, to generalize what he learns at school in other environments. (Ex. H, Ex. I). Moreover, the student’s teacher at testified that he is unable to generalize what he has learned even to other parts of his school day (Tr. 123-127, 136-137). Additionally, the student regresses, both losing skills he had acquired, his relatedness to others, and his ability to focus, when he has missed sessions for extended periods of time (Ex. N-1; Ex. J).

The DOE, in its post-hearing submission, challenged the student’s actual need for ABA services based on the absence of charts or graphs documenting the student’s progress, as well as Ms. s inability to explain why as of September 2012 she stopped creating charts and graphs for the student, but instead is collecting “anecdotal data” on the student’s IEP goals (Tr. 266, Tr. 270-271). If the DOE had reason to doubt the accuracy of the evaluative information for consideration at the CSE review, which included progress report dated April 4, 2012, (Ex. J), as well as the student’s previous IEP which recommended a continuation of the 10 hours of SEIT services, created only weeks earlier (Ex. B), the DOE had the burden of conducting the assessments it determined were necessary to determine the content of the student’s IEP. 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. §300.305(c); 8 N.Y. Comp. Codes R. & Regs. §200.4(b)(5)(iii); see A.D. v. City Sch. Dist. of NY, 690 F.Supp.2d 193 (S.D.N.Y. 2010). The ABA provider progress report and testimony were consistent with the pre-school teacher’s reports, the evaluation and testimony of Dr. , the evaluation and testimony of Dr. and the parent.^[11] The burden of proof that the CSE recommendation was appropriate for the student is on the DOE, and it has failed to meet its burden. Despite having in its possession the numerous evaluations that recommended a continuation of the ABA services and the student’s May 15, 2012, CPSE IEP which noted the student’s difficulty in generalizing skills, poor socialization skills, that he is much more successful in a “one-to-one situation” and provided for 10 hours at-home ABA services to address these needs (Ex. B-2, 9; Tr. 95), the CSE terminated the student’s ABA services without a rational basis. When the CSE chairperson, Uma Murthy, was asked on cross examination what rationale the team had for taking away the student’s ABA services, she admitted that the CSE only assumed that the student would receive a lot of individualized attention and ABA would be incorporated in program (Tr. 87, 91, 99-101, 104-105, 108).^[12] Moreover, Ms. testified that she was directed by the CBST to only include in the IEP the services listed in secure placement letter (Tr. 106-107). Since acceptance letter did not mention “after school aid’ she was “not allowed” to put it in the IEP (Tr. 107-108). Ms. also thought that at the level, student’s no longer could receive SEIT services (Tr. 87, 91).

The DOE failed to meet its burden to prove that eliminating the students 10 hours of ABA therapy was appropriate. In Application of a Student with a Disability, Appeal No. 10-011, the State Review Officer (“SRO”) found that where, as here, “the hearing record is devoid of evidence supporting the appropriateness of such a reduction in services” the district was required to reinstate the delivery of such services. The number of hours requested is not , as the student has been receiving that amount of services and has been benefitting from them. The evidence shows that the student requires intense supervision and instruction. Additional Therapy

The June 27, 2012 CSE also refused to increase the services despite the undisputed evaluation findings that it was necessary. Dr. recommended at least five, thirty minute, 1:1 therapy sessions per week, in addition to group sessions (Ex. I-7).

During the June 27, 2012 IEP meeting, the parent requested an increase to five individual therapy sessions per week. Ms. informed the parent that she only was authorized to approve the three therapy sessions that were enumerated in secure placement letter, regardless of any reports that were presented at the IEP meeting (Tr. 99, 107, 419-422).

The DOE failed to satisfy its burden of establishing the appropriateness of its denial for an increase in therapy or that three sessions of therapy were sufficient. The student requires five sessions of therapy per week in order to benefit from his education. Two of those sessions must take place in an environment outside of school so that the student does not miss his academic classes (Tr. 312, 369-70). The student’s preschool teacher reports, Dr. ’s evaluation, Dr. ’s evaluation, the ABA provider’s report and testimony, and the parents all emphasize the student’s and his need for increased services. While the student has received therapy since he began in March 2009, he has yet to receive sufficient therapy services (Tr. 381; Ex. I) Dr. ’s evaluation also found that the student’s “receptive and are severely delayed” (Ex. H-10). Dr. recommended that receive therapy five times per week with a therapist who is trained to work with children with (Ex. H-11).

In Application of the Dep't of Educ., Appeal No. 11-126, the DOE was found to have denied a student a FAPE because its reduction in therapy sessions was not based on the individual needs of the student, but on a subjective opinion of how many sessions per week were “excessive” (id. at 20). “The CSE was free to, but opted not to conduct its own evaluation of the student to determine his needs” (id.). Here too, the CSE had the authority and opportunity to conduct an evaluation and present evidence in opposition to the numerous documents offered by the parents demonstrating the student’s need for an increase in therapy services as well as the rationale for providing those services outside of the school program. The DOE failed to do either and consequently, failed to satisfy its burden.

Under the circumstances presented in this case, the DOE failed to prove that it offered the student a FAPE for the 2012-2013 school year. The record demonstrates that at the time of the June 27, 2012, IEP meeting, the student required ten hours of services and two additional thirty minute sessions of therapy, to be provided outside of the school program, to progress in any meaningful way. Independent Educational Evaluations

The parent is entitled to reimbursement for the cost of the independent neuropsychological evaluation and the independent evaluation. Federal and State regulations provide that, subject to certain limitations, a parent has the right to an independent educational evaluation (IEE) at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[a]; 8 NYCRR 200.5[g][1]; see Phillip C. v. Jefferson County Board of Educ. ___ F.3d ___, (11th Cir., decided Nov. 21,2012) (upholding the federal regulation authorizing a parent’s right to an independent evaluation at district’s expense under the IDEA)). If a parent requests an independent evaluation at public expense, the school district must, without unnecessary delay, ensure that either an evaluation is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 C.F.R. § 300.502[b][2[i]-[ii]; 8 NYCRR 200.5[g][1][iv]; see Harris v. District of Columbia, 561 F. Supp.2d 63, 69 (D.D.C. 2008) (failure to act on a request for an independent educational evaluation was not just a procedural violation and amounted to a denial of FAPE); A.S. v. Norwalk Bd of Educ. 183 F. Supp. 2d 534, 549 [D. Conn. 2002] [upholding an order of reimbursement where the district failed to demonstrate that its evaluation was appropriate].

Here, the parent’s letters to the DOE alerted them that she disagreed with the student’s current evaluations and requested independent evaluations at DOE expense. (Ex. G-1; F-1). The DOE did not respond to either letter requesting independent evaluations at the school district’s expense. The DOE did not request an impartial hearing to challenge the parents’ requests. The DOE’s IEP and testimony reflected that the DOE relied on information in the resulting evaluation reports and no evidence was presented to contradict the parents’ right to reimbursement. Accordingly the parents are entitled to reimbursement for the evaluations done by Dr. and Dr. .

ORDER

1. The New York City Department of Education denied the student a FAPE for the 2012-2013 school year.

2. Within two weeks of the date of this order, the CSE shall reconvene and modify the student’s IEP to include 10 hours of at-home services per week, for a twelve month school year, consistent with this decision.

3. The DOE shall pay no more than $85.00 per session for the provider’s services.

4. Within two weeks of the date of this order, the CSE also shall modify the student’s IEP to include five 30 minute sessions of therapy, three in school and two after school. The DOE shall provide the student with a Related Services Authorization for two sessions per week of home-based therapy.

5. Pursuant to the Interim Order on Pendency dated October 25, 2012, the DOE shall reimburse the parents or pay directly to the SEIT provider any outstanding balance owed for the 10 hours per week of SEIT services provided to the student from the date of filing the impartial hearing request, July 30, 2012, to the date of this order. Payment shall be made within fifteen days of the parents’ submission of proof of payment or the provider’s submission of invoices .

6. The DOE shall reimburse the parents for the cost of Dr. ’s evaluation in the sum of $4,200.00 and the cost of Dr. ’s evaluation in the sum of $600.00.

Payment shall be made within fifteen days of the parents’ submission of proof of payment. Dated: February 15, 2013

LANA S. FLAME, ESQ.

Impartial Hearing Officer

LSF: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 Hearing Request dated 7/27/12, 6 pages B New York City Department of Education Individualized Education Program dated 5/15/12, 15 pages C New York City Department of Education Individualized Education Program dated 6/27/12, 10 pages D Letter to Committee on Special Education dated 6/1/12, 4 pages E Letter from Parent to New York City Department of Education dated 5/10/12, 1 page F Letter from Parent to New York City Department of Education dated 2/27/12, 2 pages G Letter from Parent to New York City Department of Education dated 12/13/11, 2 pages H Evaluation by , undated, 13 pages I Evaluation by Steven , undated, 8 pages J SEIT student progress report by dated

4/4/12, 4 pages K Educational Progress Report by dated 5/16/12,

5 pages L Quarterly Progress Report dated 3/2012, 3 pages M Educational Progress Report by dated 1/13/12,

5 pages N 12-Month Rationale by dated 1/13/12, 2 pages O Letter from , M.D. dated 9/23/12, 3 pages P Psychologist Consultation , undated, 4 pages Q Signed Subpoena dated 9/25/12, 1 page R Invoice from Dr. dated 12/27/11, 2 pages S Proof of Payment to Dr. dated 12/15/11 and 12/22/11, 2 pages T Proof of Payment to Dr. dated 3/10/12 and 3/12/12, 1 page U Preliminary Summary, undated, 1 page V Invoice from Dr. , dated March 10, 2012, 1 page W Invoice 1 and Proof of Payment from dated 9/7/12,

2 pages X Invoice 2 and Proof of Payment from dated 9/14/12, 2 pages Y Invoice 3 and Proof of Payment from dated 9/21/12, 2 pages Z Invoice 4 and Proof of Payment from dated 9/28/12, 2 pages AA Invoice 5 and Proof of Payment from dated 10/5/12,

2 pages BB Invoice 6 and Proof of Payment from dated 10/12/12,

2 pages CC Affidavit of Dr. and Curriculum Vitae, 12/29/12, 16 pages DD Affidavit of and Curriculum Vitae, 12/30/12, 12 pages

DEPARTMENT OF EDUCATION

1 Classroom Observation Report dated February 3rd, 2012, 1 page 2 Classroom Observation Report dated June 1st, 2012, 1 page 3 Notice of Securement, dated June 14th, 2012, 1 page 4 Due Process Response, dated July 11th, 2012, 2 pages

IMPARTIAL HEARING OFFICER

I Email from Mr. Marcus dated 9/14/12, 2 pages II Pendency Order, 10/25/12, 4 pages III Compliance Extension, 10/12/12, 1 page IV Compliance Extension Request & Decision and Letter from to NYSED re

Impact of Hurricane Sandy11/2/12 and 11/7/12, 4 pages V Order for Compliance Date Extension, 12/14/12, 1 page VI Corrected Transcript, 9/12/12 and Confirmation Email, 9/12/12 and 10/11/12,

10 pages VII Compliance Date Extension, 1/10/13, 1 page VIII Emails re Compliance Date Extension, 1/18/13 – 1/24/13, 5 pages

POST HEARING SUBMISSIONS

DOE’s Closing Remarks, 2/4/13, 7 pages Parents’ Closing Brief 2/4/13, 23 pp w/cover

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Footnotes

[1] The parents filed the due process complaint on July 30, 2012. Tr. 44-45.

[2] In an e-mail date September 14, 2012, from , one of the attorneys representing the parents, the parents requested that the student’s pendency rights be addressed on the first day of hearing. Mr. wrote that the student was receiving the services in question at that time and that the parents were paying for the services. Since the student’s educational interests were protected, I determined that the pendency issue could be addressed as per the parents’ request. IHO Ex. I.

[5] Dr. reviewed an educational progress report, a progress note and an update from the CPSE that included a current note of the student’s progress (Tr. 362).

[9] Neither the parent nor Ms. could recall the specific dates of the CSE meetings leading up to the June 27, 2012, IEP meeting (Tr. 82-83). Nor were any documents submitted that would substantiate the dates of these meetings. The witnesses’ testimony is consistent, however, that numerous meetings were held.

[10] Dr. s evaluation and testimony were of little probative value. His evaluation and report took place after the student’s challenged IEP meeting. Also, he testified that he would base his recommendations on the student’s services during the school day, which he thought was taking place at Additionally, he could not state what his justification was for recommending an additional two hours services (Tr. 203-205, 209).

[11] Dr. testified that if the was using the discrete trial method he would expect to see charts and graphs indicating the specific skills the provider is addressing and the progress the student made. There is no indication in the record that Ms. was using the discrete trial method, one of several methods, to increase or decrease the .

[12] Besides eventually stating that the CSE did not know for a fact whether or not offered (Tr. 104-105), there is no evidence in the record that offers any to the student.