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: November 16, 2012

December 14, 2012

Actual Record Closed Date: January 2, 2013

Hearing Officer: Mary Noe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 16,

2012

Attorney (Via Telephone) — Student

DR., DOE Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 14,

2012

Parents

Attorney — Student

Physician (Via Telephone) — Student

Pre-K Teacher (Via Telephone) — Student

SEIT Teacher (Via Telephone) — Student

Psychologist, District Representative — DOE

Asst. Principal, (Did not appear) — DOE

Placement Officer, (Via Telephone) — DOE

The parent requested a hearing on August 2, 2012. I was appointed on August 2, 2012. I called the parent and the district, however, the information is irrelevant since the parent retained counsel on September 6, 2012, the date of the first scheduled hearing. On September 7, a pre-hearing order was sent to the Impartial Hearing Office. On September 12, the parties agreed to the hearing date October 24. On September 25, there was a conference call with all the parties. The parent’s attorney stated that she would submit an amended complaint on September 28. On October 10, the parties agreed to a hearing date of November 20, 2012. A pre-hearing order was sent to the parties. On October 24, a pendency hearing was scheduled for November 16. The parties participated by telephone. On November 16, 2012 a pendency order was issued. (Impartial Hearing Officer (IHO) Exh. 1) On or before November 20, there was a request for an adjournment, which was granted. On November 16 the parties agreed to a hearing date of December 14. The parent requested an extension of the compliance date which was granted.

The district was represented by Dr. . The parent was represented by The district did not comply with the pre-hearing order to have affidavits of direct testimony for their witnesses and therefore was precluded from having witnesses testify.

(T. 37 - 39)

The student is ), and classified as . The date of the Individualized Education Program (IEP) that is challenged is April 3, 2012. The recommendation of the IEP is a special class in a special school with related services. (Exh. E) The parent requests:

“Placement in a program for children ) that uses the intensive, one-on-one instruction that [the student] needs to make progress toward his goals. The placement must be in a class with students performing at similar levels to the student;

An independent, comprehensive evaluation at Department expense that includes an investigation of the motor –based interventions that will assist in gaining expressive language skills. Additional individual based on the recommendations of the evaluation; an independent comprehensive Occupational Therapy (OT) evaluation at Department expense including an evaluation of processing abilities.

Appropriate OT services based on the evaluation’s conclusions;

Parent counseling and training services as required by Part 200.13 as needed by the Parent to participate in the Student’s education;

Home-based Applied Behavior Analysis (ABA) instruction of 5 hours a week;

Any further relief that the Hearing Officer may deem just and proper to ensure the student a free and appropriate education.”

As of the day of the hearing the student was not attending school.

PENDENCY

On November 14, I issued the following pendency order in part:

“The parties agree that the last agreed upon IEP is dated July 7, 2011.

It is hereby ORDERED that during the pendency of this action the student is provided with the recommendation on the IEP dated July 7, 2011:

Special class , bi-lingual Special Education Itinerant Teacher (SEIT) 5 hours at home; Speech and Language therapy for 30 minutes three times a week at school; occupational therapy , twice per week, 30 minutes at school twice a week; physical therapy twice a week, thirty minutes at school.”

At the hearing on December 14, Dr. stated that she contacted the student’s preschool and the school would not accept him because he aged out. (T. 199) Dr. was unaware that the implementation unit had not provided SEIT services. (T. 200) The district had no seat to offer the student with a program. (T. 214) On December 3rd the district attempted to comply with the pendency order and found a program.

Parents counsel and district agreed to a different and superseding pendency order at the hearing on December 16 which stated:

“ The district will pay for the student to be immediately placed in a state approved non-public school in an or or program for children in either or class. If a seat in a school is not obtained by December 21, then a seat in a non-approved non-public school setting is to be ascertained with the same program as previously stated.

The district will provide the mother with RSA for and on Monday, December 17, 2012. The parent is also to be provided with a list of providers. If after a diligent search the parent is unable to ascertain any one of the providers, then the district will pay an enhanced rate of $80 per hour. The number of services are listed in the last agreed upon IEP dated July 7, 2011.

The district will pay for SEIT services pursuant to the IEP dated July 7, 2011 immediately.” (Exh. HO 2)

HEARING

At the hearing, the district failed to comply with the pre-hearing order requiring that direct testimony be submitted by affidavit. The parent’s counsel objected to verbal direct testimony and that object was sustained. The district did not call any witnesses.

The parent’s attorney submitted the following documents that were admitted into evidence: Vineland Early Childhood Scales (Exh. R)

The date of the test is March 1, 2012. The student was old. The parent testified that she provided the information to the Interviewer: . The results of the test were as follows:

Interpersonal Relations: Age Equivalent

Play and Leisure Time “ “

Coping Skills “ “

Social-Emotional Composite: Low Context Based Developmental Assessment (Exh. S)

The date of the test is March 16, 24, 2011. The student was old. The Clinician is . The results of the test were as follows:

Referral Information: Parent reported student’s development was slow but he had progressed, doing better in school performance. Dr. suggested student have a developmental/educational evaluation to better understand his unique pattern of developmental strengths and weaknesses and to support educational planning for the immediate future.

The parent provided information about student’s strengths, weaknesses and issues of current importance.

Development and Current Functioning: Parent reported students developmental history and current abilities ie. Jump up, run, play catch, kicks a ball, basketball. Language development and student now has a , i.e. juice, crackers, cheese. He independently. He tries to . at books Assessment and Impressions: Student becomes while completing the Fine Motor and Receptive Language tests.

Impressions of Adaptive Behavior and Play: Student did not always respond when his name was called. The student impressed as self-directed unless adults sought to engage him directly. He responds to low-level interactive play with bubbles etc. He is largely unrelated. He never initiated activities with his mom or clinician. He demonstrated difficulties using his communicative supports in concert and did not pair gaze, vocalize, to either indicate wants or share interests. In general the overall quality of .

Mullen Scales of Early Learning: He worked steadily for more than 30 minutes. Then he at a second session. Standard Score Visual Reception Fine Motor Receptive Language Expressive Language Descriptive Category

Social/Emotional Impressions: Student is content and but and mostly, until a need arises. He did not to either of the adults, unless he was communicating a special need or seeking some .

Summary and Recommendations: The student in visual motor and fine motor development with more substantial weaknesses in receptive . All scores are quite low and indicate significant deficits in cognition and learning. All skill domains are far below age expectations. His is in the very low range. His Scales is at the .

The student should remain in a class for children who are at the same functional level in a small class with a low student-teach ratio. Continued and are recommended. He would benefit from ABA delivered at home, at an intensive level. Parent support and education are also recommended. Bilingual Psycho-Educational Evaluation (Exh. T)

The test was administered on April 24, 2010 by Examiner . Student was . Cognitive Functioning:

Overall Performance:

Language Scale:

General Development Quotient:

Summary/Recommendations:

Identified deficits appear to be to warrant intensive adult support in a small student ratio where he can obtain the direct instruction he needs with modifications and specialized strategies to facilitate learning. A bilingual evaluation should be performed to further assess language skills and determine how the student processes an evaluation. Neurodevelopmental Evaluation (Exh. U)

The test was administered on July 14, 2009 by Dr. . The student was 2 years old.

“He preferred to . At a previous appointment he had month level skill….”

Under the heading Impression: Cognitive level: “Formal cognitive testing was not completed as part of the current session. [The student’s difficult to have him utilize all of the materials necessary for such an assessment at this time…”

“[The student] is demonstrating skills that are in the 15 – 18 month range with .”

“On the Childhood Autism Rating Sca le (CARS), associated with surveyed and each characterized by functioning either within the typical range or the range seem in children with severe autism…. Total scores range between 15-60 with scores 30 and above consistent with . [The student] received a score of 32 in the range of mild to moderate autism.

Under the heading Plan: “By parent preference, a center based component is indicated, however I am also strongly recommending a formal program. [The student]

presents as a little boy who is able to be engaged and this tendency needs to be nurtured for the best outcome. and services should also be part of the program, as well as parent support.”

Classroom Observation (Exh. BB)

The test was administered on March 27, 2012 by . The student was 4 years 8 months old.

The observation was completed on the playground of the preschool site. [The student] is shy and did not talk. He had to be prompted in order to complete an activity. He interacts well with adults but does not play with peers. He appears to need one to one attention and he has to be prompted and reinforced in order to complete tasks. Educational Progress Report (Exh. DD)

The test was administered on January 6, 2012 by , MS Ed. The student was .

Under the heading Cognition month age range; Speech/Language month age range; Receptive Language: month age range; Fine month age range; Gross Motor: – month age range; Social/Emotional: month age range; Self Help: month age range.

Under the heading Summary: [The student] continues to need instruction in order to decrease his distractibility and help him gain new skills. Preschool Student Evaluation (Exh. HH)

The date of evaluation is April 24, 2012. The student was months old. Cognitive Development: Student has a prior diagnosis of autism. Student has limited , decreased attention span and limited focus. The Bayley results were in the Extremely Low Range. Cognitive scores were in the month age range. Social/Emotional Development: Physical Development: below age expectations Speech/Language: below one year level Adaptive Behavior: Low average range Letter from to Whom It may Concern dated July 27, 2012 (Exh. KK) Identical to letter dated 2/23/12 Letter from to Whom It may Concern dated February 23, 2012 (Exh. NN)

Student has a diagnoses of ) and ( Recommendations are offered: placement in an academic program with a strong behavioral component and significant behavioral expertise. ABA methodology, attention such as program found at intensive using PROMPT methodology individually; intensive R.F. Kennedy Children’s Evaluation Summary dated March 30, 2011. (Exh. OO) Student is months old.

Neurodevelopment Pediatric Evaluation November 15, 2010 L. Shulman MD

Context Based Developmental Evaulation March 13, 2011 D. Meringolo MA, MS Intelligence: Overall very low performance; month age range, fine motor: month age range

: student meets criteria for a diagnosis of Team Recommendations: continue with , add home ABA program

Submitted into evidence are IEP Progress reports dated June 2012 and August 2012. (Exh. JJ) It is unclear who completed these reports. The method of measurement used is teacher/provider observation. The student was unable to name with verbal prompts, he was able to label familiar toys, family names with verbal cues, unable to indicate age with visual cues. In a category such as self skills, the student was unable to complete four out of five short term objectives. In reading and math readiness skills the student was unable to complete two short term objectives and able to complete one short term objectives. In improving listening, the student was unable to complete two short term goals and able to complete one short term objective. In ability to verbally respond the student was unable to objective. The student is able to and on schedule. The student is unable to answer what questions with and without cues but able to answer where questions with cues. The student is unable to comprehend pronouns with or without cues. He is . The student is unable to hear . The student is unable to grasp holding a crayon 50% of the time or manipulate sliding a coin from hand to fingertips. The student in August was able to cut out a circle within ¼ inch but was unable to copy a square using straight lines or imitate letters of the alphabet. The student was unable to hop or gallop. In August . The student was unable to throw a tennis ball 10 ft. forward, kick a playground ball forward 12 ft. or throw a tennis ball at a target 5 ft. away. All scores were identical for June and August except where noted.

Report dated January 3, 2012 by , the SEIT teacher. The student s. The Report states the following: : skill goals have not been met; : goals are not met; Development: limited due to his limited vocabulary; Physical Development: improving; Adaptive Development/Self-Care Skills: reaching age appropriate; Recommendations: setting. (Exh. FF)

The IEP dated July 7, 2010 (Exh. G) classifies the student as a preschool student with a disability. The recommendation is for a twelve month program special class five hours a day, five days a week in a ratio of with related services: occupational therapy twice a week for 30 minutes ; physical therapy twice a week for 30 minutes therapy three times a week 30 minutes . Student presents with pervasive delays in cognitive functioning and communication abilities. is extremely low, language abilities – very poor; (14 months); adaptive behavior low average.

The IEP dated July 7, 2011 (Exh. F) classifies the student as a preschool student with a disability. The recommendation is for a twelve month program special classbilingual alternate interim five hours a day five days a week , bilingual SEIT five hours with related services: occupational therapy twice a week for 30 minutes therapy twice a week for 30 minutes three times a week for 30 minutes .

The IEP dated April 3, 2012 (Exh. E) classifies the student as . The recommendation is for a class with related services therapy twice a week 30 minutes therapy once a week 30 minutes physical therapy once a week, 30 minutes occupational therapy once a week 30 minutes . The IEP indicates that that the student’s academic achievement, functional performance and learning characteristics in communication were low, daily living skills were low, socialization and motor skills were low, adaptive behavior composite score were low, SEEC composite score is low. The IEP has listed the Rose Kennedy evaluation, teacher report of January 3, 2012 and January 6, 2012, speech and language evaluation. The parent’s is concerned about the student’s development. The parent has seen improvement in his receptive language skills and he can respond to his name. She has to push him to say what he wants when she knows that he is able to verbally identify the objects he wants. Parent is concerned about language, communication and to a lesser extent, social interaction delays.

A Evaluation was conducted on April 24, 2010 (Exh. W). The student was . An update on November 22, 2011 (Exh. V). The student is and months. An Evaluation was conducted on April 24, 2012 (Exh. Y) and an update on November 11,

2012. (Exh. X)

TESTIMONY

The student’s pre-school teacher during the 2011 – 2012 school year, testified that there were nine student and four adults in the student’s class. (T. 94) Every few days, the assistants would be doing verbal behavior, discrete trials one to one. (T. 95, 96) Ms. did (MAPP) of the student. (T. 97) The student should be in a small, highly academic structured classroom. The student has higher but his (T. 68) The student tends to , but has .(T. 69, 99) He was on a . (T. 94) The student responds very well to ABA and one to one instruction. Ms. stated that she and the psychologist wrote the goals for the IEP but she disagreed with the goals. She believed they should have been more challenging. She does not believe there was any evaluative data presented to support a removal of the SEIT services. Ms. believes that the student still needs the SEIT services because his and the SEIT provider can work with him on these skills, although she has never spoken to the SEIT provider, didn’t know how many hours the student received and didn’t know what the SEIT provider was working on. (Exh. BBB,

T. 104-106) Ms. testified that she read her report at the IEP meeting and collaboratively with the psychologist wrote the goals. (T. 107, 116), however in her affidavit she stated she disagreed with the goals. (Exh. BBB) Ms. felt rushed and was caught off guard because the psychologist usually writes the goals. (T. 108, 109) She stated she voiced an objection to some of the goals because she believed they could have been more challenging but did not specifically disagree with the goals. (T. 110, 113) Ms. agreed with the placement. (T. 114) Ms. testified that she believed she had an opportunity to participate and that the recommended program met the student’s needs.

(T. 120)

, the student’s SEIT testified that she worked with the student on the 2011 – 2012 IEP goals including goals on a one to one basis at home for five hours per week from July 2011 to August 2012 year. (T. 42, 47, 49) Ms. did not have the student’s IEP at the hearing and the only thing she remembered about the IEP were the related services. (T.

50) Ms. testified that she never spoke with any of the student’s teachers or contacted them. (T. 52, 53) The parent would report on the work the student was doing in class and she was able to see some of the papers that came from school. (T. 53) Ms. testified she was unaware of the student’s scores on the Vineland testing. (T. 78) The student needed reinforcers, including the iPad, in order to make progress. Ms. and the student worked a lot on tracing, on identifying pictures, which he really likes, or looking at books and things of that sort of a matter. (T. 42) Ms. used ABA methodology because she believed it was being used in school. (T. 43 – 44) She also utilized a token economy system where every time the student wanted something, he would have to actually work for it. And then the fourth time he did it correct, then got what wanted. (T. 43) Ms. testified that she did informal assessment. (T. 45) She also stated that she coordinated with some of the at home related service providers. (T. 45) The student had many speech problems and therefore Ms. used pictures. (T. 46) The student has shown great progress because of their work together. The student is now able to use some vocabulary and speak two or three word sentences. (T. 48) Based on her observation, he would benefit from intensive speech and language therapy to increase his ability to express his wants and needs clearly. Ms. is working on increasing the student attention span and ability to sit for more than five minutes. Ms. ’s recommendation would include ABA, one to one attention. Ms. did not attend the IEP meeting nor did she submit a report. Although she was not there she testified “There were no evaluations discussed related to the continued need for SEIT services.”The student was not able to trace his name and now he is able to trace his name and identify his name. The student has strong cognitive abilities but needs the repetition to continue to progress." (Exh. CCC) In a report dated January 3, 2012, Ms. stated that the student’s cognitive skill goals have not been met. “Over all in the area of cognitive skill he has made some improvement.” The student skills are improving however his language goals are not met. He is not able to talk in full sentence or hold a conversation. The student’s social interaction with others is limited due to his limited vocabulary. The student’s physical developments are improving. His are reaching age appropriate. He is not aware of danger. Ms. ’s recommendation is for “…speech in a setting.” (Exh. FF) Ms. issued a quarterly and annual report. (T. 54) She also issued a Report dated January 3, 2012. (Exh. FF, T. 59) Ms. stated that the student is functioning at an age level of 2.5 for interpersonal skills, coping skills; his social emotional age equivalent would be 2.9/3.0. Ms. never received any reports from the parent. (T. 56) Ms. testified that the July 7, 2011 IEP goals were appropriate. (T. 60 – 61, 64)

The parent testified that at the IEP, the team went over the papers. I was not given any previous advice what was I supposed to do in the meeting, what was going to be the meeting about, what they were going to discuss in the meeting. I just showed up in the meeting and everybody was discussing about my son's education, flying papers from here to there. And it was just more like they were making the decision and I was just there-- sitting there. The parent member was introduced to the parent. (T.130) The parent testified that she did not speak at the meeting however she stated I asked at the meeting “he's in an and it's sometimes nine in the class, how he's going to go to a ,” they said is for children with behavioral problem and he's autistic, so he doesn't fit into an .. (T. 131) The parent believes the student needs a strong ABA program because he was receiving ABA at home and at school. “He was receiving it four hours a day from 2 to 3-years old. And then when he was three to five, he was receiving school plus the SEIT 1 services. The parent believes the student needs to continue on ABA because if he's not pushed enough and if he's not getting , he will regress.” (T. 133) The parent was satisfied with the student’s academic performance during the 2011 – 2012 school year and he did improve. (T. 133) When the student is receiving all of his services, he's calmer. (T. 134) The parent testified that she filed a due process complaint on August 1st because she was not satisfied with the school placement that New York City Department of Education offered her. (T. 134) The parent testified that at the meeting she expressed that she would like the student to go to because she visited the school twice, went on tours, and found that that was the school that had the best program (ABA) for her son at the time or she wanted the student placed in a class that he would be able to grow, has opportunities to be challenged and maybe moved into an inclusion classroom. The parent testified that she wants a class children because she doesn't want the student placed in a class that is not for students. (T. 135-138) The parent said no to a because she doesn’t want the student in a class with behavioral problems and then she agreed with the placement. (T. 139) The district recommended two placements with a class which the parent rejected because the first isolated students for distraction purposes and the second she felt the student would be unable to grow. (T. 142-145) The parent was dissatisfied with the district’s Vineland Evaluation because the student did not answer the questions, she did.

(T. 147) The parent brought the March 2011 Evaluation to the IEP meeting. (T. 149-

150) The parent wanted a new evaluation to determine the student’s progress. (T. 151) The parent stated that she was not “comfortable” with the student’s placement and the SEIT at the meeting. (T. 153) The parent testified that she believed her son was doing ”OK” with physical therapy. (T. 156) At the meeting she agreed with the therapy, . (T.

156) The team did not mention SEIT. (T. 156) The parent did not voice any other concerns. (T. 157)

Dr. testified that she has known the student since he was two and sees him about every six months. (T. 225) She stated the student has “ .” (T. 226) His social . He's a great ABA responder. He has the cognitive capacity and the social motivation over time to benefit from being with more verbal peers. He should definitely have a component of individualized education like an ABA setting, either discrete trials or verbal ABA, but he should have exposure to verbal peers. (T. 227, 229) Dr. testified that the student is testing in the very high borderline range. (T. 230) A mainstream class would be too far a step. (T. 231) Dr. Shulman stated if he could spend part of the day in a setting, it might benefit him. (T. 230) Borderline cognition is considered normal. (T. 234) Dr. testified the student needs a of children who are at a similar level as he is and who are also verbal and have the ability to move from one class the another as he improves and get exposed to higher levels of functioning. (T. 238) Dr. was not asked to participate at the IEP meeting. (T. 239)

, the District Placement Officer testified that a programs are either intellectually disabled or multiply handicapped; classes, are typically students with standard assessment classes are students with ; classes that are alternate assessment typically either have students who are a general intellectual disability or students with autism; with standard assessment is typically students with emotional disturbances; alternate assessment are typically students with intellectual disabilities. is a pre-K-only program for students classified as autistic using an alternate assessment and methodology is a mix of TEACCH and ABA. (T. 187, 188) The in very generic terms, usually is a mix of TEACCH methodologies and ABA. (T. 185 – 188)

DISCUSSION

AS TO THE PROGRAM:

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a Free and Appropriate Public Education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (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]). 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 Committee on Special Education (CSE) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). Consistent with the IDEA, 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 P. v. Newington Bd. of Educ., 546 F.3d 111, 114 [2d Cir. 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 [2d Cir. 1998]; 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 determining whether the IEP proposed by the district was appropriate, the Court must determine "(1) whether the state complied with the procedural requirements of IDEA, and (2) whether the challenged IEP was 'reasonably calculated to enable the child to receive educational benefits.' " Walczak v. Florida Union Free School Dist. 142 F.3d 119, 129 (2d Cir.1998) quoting Board of Educ. v. Rowley, 458 U.S. at 206-07.

The IEP team in its IEP dated April 3, 2012 recommended a class with related services. Dr. testified the student should be placed in a program. (T. 238) , the student’s pre-school teacher who attended the IEP meeting agreed with the program. (T.

114) Bianca Garcia, the student’s SEIT teacher recommends a program in her report. (Exh. FF) The parent at the IEP meeting agreed with the program. (T. 139) testified that are typically students with (T. 185 – 188) Ms. stated that the use a mix of TEACCH methodologies and ABA. (T. 185 – 188) The district recommended two placements with a class. The parent testified that she rejected the first site because the students were isolated for distraction purposes and the second she felt the student would be unable to grow. (T. 142-145) She never stated that the programs did not provide ABA.

The evidence supports the district's recommendation and it is appropriate program to meet the needs of this student.

PARENT PARTICIPATION

The parent testified that she did not participate at the IEP meeting yet her testimony at the hearing as to her discussions with the team was contrary. (T. 131, 135138, 139, 149-150, 153, 156) I find that the parent was an active participant at the IEP meeting.

IEP GOALS

The student’s pre-school teacher (2011-2012), testified she felt “rushed” as to drafting the goals and did not agree with the goals because they should have been more challenging. (T. 104-106) In the IEP Progress reports dated June 2012 completed by the student's teacher, although unidentified by name, there were 63 Short Term Objectives in academic, listening, verbal response and fine motor. The objectives are graded as ‘Y” for yes, meeting the goal and “N” for no, not meeting the goal. Out of the 63 Objectives, 14 are marked “Y” and 49 are marked “N.”

In the Report dated January 3, 2012 by SEIT teacher the student did not master one goal. (Exh. FF)

Evaluation Summary dated March 30, 2011 scores the student’s intelligence as overall very low performance; 33 – 36 month age range. At the time of testing the student was four years and eight months old. (Exh. OO)

Based on the above, the hearing record reflects that the team created contained annual goals and objectives on the April 2012 IEP that were appropriate to meet the student's needs and that they provided sufficient specificity to enable the student's teachers and related service providers to understand the CSE subcommittee's expectations with respect to each goal and what the student would be working on over the course of the school year (, Appeal No. 09-082; , Appeal No. 09-038; , Appeal No. 08-096; see Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *9 [S.D.N.Y. July 3, 2008]); Application of a Student with a DisabilityApplication of a Student with a DisabilityApplication of the Dep't of Educ. Application of a Student with a Disability, Appeal No. 08-086; Application of a Child with a Disability, Appeal No. 07-117; see also M.C. v. Rye Neck Union Free Sch. Dist., 2008 WL 4449338, at *11 [S.D.N.Y. Sept. 29, 2008]).

REQUEST FOR EVALUATIONS

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

The following evaluations were submitted into evidence: Vineland Early Childhood Scales dated March 1, 2012 (Exh. R); Context Based Developmental Assessment dated March 24, 2011, (Exh. S); Bilingual Pscho-Educational Evaluation dated April 24, 2010 (Exh. T), Neurodevelopmental Evaluation dated July 14, 2009 (Exh. U); Speech and Language Update dated November 22, 2011 (Exh. V); Bilingual Speech and Language Evaluation dated April 24, 2010 (Exh. W); Occupational Therapy Update dated January 11, 2012 (Exh. X); Occupational Therapy Evaluation dated April 24, 2010 (Exh. Y), Physical Therapy Updated dated January 6, 2012 (Exh. Z); Bilingual Physical Therapy Evaluation dated January 24, 2009 (Exh. AA); Classroom Observation dated March 27, 2012 (Exh. BB) Conference Summary Form dated March 30, 2011 (Exh. OO)

Parent's brief suggests that Dr. suggested a type of therapy and additional time, however Dr. he provider to support additional or different

Based on the foregoing, I find the IEP team had sufficient information from these evaluations to properly assess the student’s abilities. There was no challenge to the validity of the information in the evaluation.

REQUEST FOR ADDITIONAL RELATED SERVICES

There was no testimony as to the appropriateness of related services, notwithstanding SEIT. The parent testified that she was satisfied with the number of related services. (T. 156)

REQUEST FOR SEIT SERVICES

The parent asserts in the complaint that the student requires home-based SEIT services because the student’s “rate of progress only began to improve when the home instruction was returned to his program.” (Exh. A-4)

The parent testified that the student received ABA since he was in early intervention, at home and at school. He was receiving it four hours a day since from 2years old to 3-years old. And then when he was three to five, he was receiving some services in school plus the SEIT services. (T. 132-133) The parent’s testimony as to SEIT and the complaint are incongruous, i.e. “when home instruction was returned to his program.” Additionally the parent testified that the student “really needs to continue on that ABA so he could at SEIT because if he's not pushed enough and if he's not he will regress.” (T. 133)

, the student’s SEIT testified that she worked with the student on the 2011 – 2012 IEP goals. (T. 42, 47, 49) However, her Turning Five Report dated January 3, 2012, which was not submitted to the IEP team, indicates that the student had not achieved his goals in cognitive development, language and communication skills, social and emotional development. Furthermore, Ms. had no communication with the student’s special education in school and was unaware of the curriculum or the student’s performance. (T. 52-53) In Ms. ’s recommendation she does not recommend SEIT but rather speech in a 6:1:1 setting. (Exh. FF) Ms. never received any evaluations and she estimated the student functioning at an age level of 2.5 for interpersonal skills, coping skills; his social emotional age equivalent would be 2.9/3.0. These estimations are lower than the Evaluation Summary dated March 30, 2011, one year prior, which state the student’s intelligence as overall . (Exh. OO)

dated March 30, 2011 states that the student would benefit from sessions of Applied Behavioral Analysis delivered at home, at an intensive level. (Exh. S-7, Exh. OO)

The Evaluation dated April 24, 2010 does not recommend at home ABA. (Exh. T-7)

Evaluation dated July 14, 2009 does not recommend at home ABA. (Exh. U-8)

, MD of dated July 27, 2012 and February 23, 2012 does not recommend at home ABA. (Exh. KK-1, NN-1) In her testimony she states the student should definitely have a component of individualized education like an ABA setting, either discrete trials or verbal ABA, but he should have exposure to verbal peers. (T. 227, 229)

dated January 6, 2012 does not recommend ABA. (Exh. CC-1)

Educational Progress Report dated January 6, 2012 does not recommend at home

ABA. (Exh. DD)

There were three reports in 2012 and they did not recommend ABA at home, including the report by the SEIT teacher.

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). Upon review of the hearing record, I find that the information that was before the April 2012 CSE team does not support a finding that the student required home-based services in order to receive educational benefits.

PARENT COUNSELING AND TRAINING

The parent maintains that the district's omission of the provision of parent counseling and training from the April 3, 2012 IEP contributed to a denial of a FAPE to the student. State regulations require that an IEP indicate the extent to which parent training will be provided to parents, when appropriate (8 NYCRR 200.4[d][2][v][b][5]). State regulations further provide for the provision of parent counseling and training for the purpose of enabling parents of students with autism to perform appropriate follow-up intervention activities at home (8 NYCRR 200.13[d]). Under State regulations, the definition of "related services" includes parent counseling and training (8 NYCRR 200.1[qq]). Parent counseling and training is defined 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]). However, Courts have held that a failure to include parent counseling and training on an IEP does not constitute a denial of a FAPE where the district was not unwilling to provide such services at a later date (see M.M. v. New York City Dep't of Educ., 583 F. Supp. 2d 498, 509 [S.D.N.Y. 2008]; but c.f., P.K. v. New York City Dep't of Educ., 2011 WL 3625088, at *9 [E.D.N.Y. Mar. 2011], adopted at, 2011 WL 3625317 [E.D.N.Y. Aug. 15, 2011]; R.K. v. New York City Dep't of Educ., 2011 WL 1131492, at *21 [E.D.N.Y. Jan. 21, 2011], adopted at, 2011 WL 1131522 [E.D.N.Y. Mar. 28, 2011]). Recently, the Second Circuit explained that "because school districts are required by [State regulation] to provide parent counseling, they remain accountable for their failure to do so no matter the contents of the IEP. Parents can file a complaint at any time if they feel they are not receiving this service" (R.E., 2012 WL 4125833). The Court further explained that "[t]hough the failure to include parent counseling in the IEP may, in some cases (particularly when aggregated with other violations), result in a denial of a FAPE, in the ordinary case that failure, standing alone, is not sufficient to warrant reimbursement" (id.). the omission of parent counseling and training from the student's IEP did not result in a denial of a FAPE to the student. Parent’s requests are denied. Dated: January 14, 2013 ________________________

MARY NOE, ESQ.

Impartial Hearing Officer

MN;mv

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

HEARING OFFICER

1 Second Prehearing Order Dated 11/16/2012

PARENT

A Amended due process complaint, Dated 9/28/2012, 5 pages B Due process response, Dated 10/11/2012, 4 page C Motion for amendment to pendency order, dated 11/16/2012, 1 page D Order of pendency, Dated 11/12/2012, 5 pages E IEP, dated 4/3/2012, 19 pages F Pendency IEP, dated 7/7/2011, 21 pages G IEP, dated 7/7/2010, 18 pages H Notice of schedule impartial Hearing, dated 8/8/12, 1 page I Email from to parent dated 7/24/2012, 1 page J Letter of Recommendation Dated 7/9/2012 K Detailed placement inquiry screen, 5/3/2012, 2 pages L Final notice of recommendation Dated 4/24/2012, 1 page M Authorization of the IEP change Dated 4/24/2012, 1 page N Placement determination Dated 4/19/2012, 1 page O District placement office referral form dated 4/3/2012, 1 page P CSE meeting invitation, Dated 3/15/2012, 2 pages Q Consent to assess, Dated 1/24/2012, one page R Vineland Early Childhood Scales Dated 3/1/2012, 22 pages S Context-based development Assessment, 3/24/2011, 7 pages T Bilingual Evaluation dated 4/24/2010, 7 pages U evaluation Dated 7/14/2009, 8 pages V update Dated 11/22/11, 5 pages W Evaluation dated 4/24/10, 4 pages X Occupational therapy update Dated 4/24/2010, 5 pages Y Occupational therapy evaluation Dated 4/24/10, 5 pages Z Physical therapy update Dated 1/6/2012, 4 pages AA Bilingual physical therapy Evaluation dated 1/24/2009, 4 pages BB Classroom observation Dated 3/27/2012, 1 page CC 12-month rational Dated 1/6/2012, 1 page DD Educational progress report Dated 1/6/2012, 4 pages EE Social history update Dated 1/3/2012, 3 pages FF Turning five report Dated 1/3/2012, 2 pages GG Initial bilingual social history dated 4/24/2010, 4 pages HH Preschool student evaluation Summary report dated 4/24/2010, 2 pages II evaluation report Dated 7/1/2010, 1 page JJ IEP progress report, August 2012 , 9 pages KK Letter from Dr. Dated 7/27/2012, 1 page LL Medication administration form Dated 3/26/2012, 1 page MM Child history examination form Dated 3/26/2012, 2 pages NN Letter from Dr. Dated 2/23/2012, 1 page OO Summary form, 3/30/2011, 1 page PP Email QQ Email RR Email SS Order of pendency Dated 11/21/2012 TT Email UU Email VV Email WW Email XX Email YY Email ZZ Email AAA Opening statement Dated 12/14/2012, 3 pages BBB Affidavit, Dated 12/6/2012 CCC Affidavit, Dated 12/6/2012 DDD Affidavit EEE Affidavit, Dr. Dated 12/6/2012 FFF Prehearing order Dated 11/16/2012 GGG Prehearing order Dated 9/7/2012

DEPARTMENT OF EDUCATION

1 IEP dated 4/3/2012 2 Letter of Recommendation Dated 6/8/2012, 1 page 3 Letter of Recommendation Dated 7/9/2012 4 Email correspondence 5 Withdrawn 12-month rational Dated 1/6/2012, 1 page 6 Class profile 36 43 Dated 12/3/12, 2 pages 7 Class profile 42 43 Dated 12/3/2012, 1 page