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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 17, 2012
September 12, 2012
September 13, 2012
September 24, 2012
October 11, 2012
October 22, 2012
October 23, 2012
October 25, 2012
December 5, 2012
December 13, 2012
December 17, 2012
December 26, 2012
Actual Record Closed Date: March 5, 2013
Hearing Officer: Lana S. Flame, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 17, 2012
ESQ., Attorney (Via Telephone) — Student
ESQ., Attorney (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 12, 2012
Attorney — Student
Parents
ESQ., Attorney — DOE
School Psychologist — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 13, 2012
Attorney — Student
Parents
DOE Attorney — DOE
School Psychologist — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 24, 2012
Attorney — Student
Parents
Attorney — DOE
Classroom Teacher (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 11, 2012
ESQ., Attorney — Student
Parents
Educational Director — Student
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 22, 2012
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 23, 2012
For the Student:
, ATTORNEY
, Mother , Occupational Therapist (Via Telephone) , Educational Director, For the Department of Education: , Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 25, 2012
Attorney — Student
Parents
Education Director, — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 5, 2012
ESQ., Attorney, Law Offices of, LLP — Student
Parent/Mother — Student
ESQ., Attorney, — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 13, 2012
Attorney — Student
Parents
FORMACION, Physical Therapist (Via telephone) — Student
DOE Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 17, 2012
Attorney — Student
Parents
Educational Director, — Student
Speech Therapist (Via Telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 26, 2012
ESQ., Attorney — Student
Parents
ESQ., Attorney (Via Telephone) — DOE
On June 6, 2012, the parents of Alyssa S. (“the student”) filed an impartial hearing request, through their attorney, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. Sec. 1415(f) (1).[1] The parents challenged the New York City Department of Education (“DOE”) recommendation for special education and related services for the 2011-2012 school year, alleging a denial of a free and appropriate public education (“FAPE”) for their child. Ex. A. The parents are seeking tuition reimbursement for their daughter’s attendance at the (“ ”) and reimbursement for the student’s after school related services. Id. [2]
A pre-hearing conference was held on July 17, 2012. The parent filed an Amended Due Process Complaint dated July 17, 2012, on that same date. Ex. A; Tr. 13-
14. The New York City Department of Education accepted the Amended Complaint on July 25, 2012. The hearing was held on September 12, 13, 24, October 11, 22, 23, 25, December 5, 13, 17, and 26, 2012. Both parties were represented by counsel. Lists of the individuals who appeared on each date and the documents entered into evidence are included in this decision. Compliance Date Extensions
On September 13, 2012, the parties jointly requested a thirty day extension of the compliance date due to the parent’s health issues, and the time needed to submit posthearing briefs. I granted the extension for thirty days to November 8, 2012. Tr. 299-301. IHO Ex. IV-5. On November 7, 2012, the parties jointly requested an extension of the compliance date due to the impact of Hurricane Sandy, and the health condition of the parent. The extension was granted for thirty days to December 8, 2012, in an e-mail dated November 14, 2012. IHO Ex. I. (December 8, 2012, was a Saturday and the Impartial Hearing Office (“IHO”) System as well as the New York State Education Department Impartial Hearing Reporting System (“NYSED IHRS”) database automatically converted the compliance date to the next business day, Monday, December 10, 2012.) On December 5, 2012, the parties requested an extension of the compliance date due to witness availability, and extensive testimony. Tr. 708-710. The parent represented that there would be no loss of educational opportunity if an extension were to be granted since the hearing request was for a prior school year and the relief requested was reimbursement, the parents have paid the school and the providers are willing to continue to assume any financial implications that might arise in connection with an extension. Tr. 709. The DOE represented that no detriment would come to the student or to the DOE from an additional extension. A thirty day extension was granted to January 9, 2013. Tr. 711; IHO Ex. IV-5. On December 26, 2012, the parties jointly requested an extension of the compliance date to allow time for the submission of post-hearing briefs and due to the extensive testimony. Tr. 1106. The parties represented that no prejudice or harm would come to either party if the extension were granted. Tr. 1107-1110. Due to the extensive testimony and the parties’ request to submit briefs, I granted an extension to February 6, 2013. Tr. 1110; IHO Ex. IV-6.
On January 18, 2013, the parties jointly requested, by e-mail, an extension of the compliance date, written by Parents’ counsel and joined by DOE’s counsel, for the following reasons: “The transcript was recently received and is 1043 pages in length. Additionally, there are in excess of 50 exhibits contained within the record. Given the enormity of the record, I require additional time to review these materials and present our closing arguments in accordance with the principles of due process.” IHO Ex. II. On January 22, 2013, as per a request I received from the DOE, I asked the NYC IHO office for corrected transcripts from the reporting company because the transcript pages were numbered incorrectly, causing confusion in a lengthy record. The October 11, 2012, transcript was paginated from 311-374. The next day of hearing was October 23, 2012, and the transcript should have begun with page 375. Instead, the reporting company started it on page 320 and continued to page 471. Consequently, all of the page numbers were off, and many were duplicated. On January 22, 2013, I informed the parties that I would grant an extension both of the due date for their briefs and the compliance date, but I would set the due dates once we received the corrected transcripts. On February 6, 2013, I spoke to the parties’ counsel because despite repeated follow up with the IHO office, we still had not received the corrected transcripts, and the data with respect to the calculation of the time lines still had not been corrected. The compliance date was February 6, 2013, and I informed the parties that I would grant the extension request. On February 7, 2013, Parents’ counsel reiterated the compliance extension request, in an email, and in articulating his reasons, included the facts about the need for the corrected transcripts. As I had stated to the parties, the compliance date was extended to March 8, 2013. IHO Ex. III.
On February 7, 2013, corrected transcripts were sent to the parties and impartial hearing officer. I extended the date for the parties to submit their briefs to February 18, 2013, and upon request by the DOE, granted an additional one day extension to February 19, 2013.
On February 27, 2013, I was informed that the corrections regarding the trigger dates for the time lines had been recalculated for correction to the IHO System and IHRS. If the dates had been entered correctly, the compliance dates with 30 day extensions, as were granted in this case, should have been as follows:
The first compliance date should have been October 1, 2012. A thirty day extension was granted for the first extension request, and the compliance date would have been October 31, 2012. The next compliance date extension of thirty days would have been to November 30, 2012. The next compliance date extension of thirty days would have been to December 30, 2012. (December 30, 2012, was a Sunday and the data system automatically would change the compliance date to the next business day, December 31, 2012.) The next compliance date extension of thirty days would have been to January 30, 2013. The next compliance date extension of thirty days was granted to March 1, 2013.[3]
In an e-mail dated March 1, 2013, the parents requested an extension of the compliance date, as stated by their attorney: “due to the issues and complexities resulting from the incorrect dates being repeatedly entered in the SED system throughout the hearing, despite repeated requests for correction by the IHO, the parties, and the case manager. The parties have just recently submitted closing memorandum and I believe such an extension is necessary to permit the hearing officer to consider the briefs and review the extremely voluminous record of this matter and issue a decision in accordance with the principles of due process.” The attorney continued to represent that no prejudice would come to the parties for the same reasons stated in previous extension requests. For the reasons requested, and upon consideration of the relevant regulatory factors, I granted an extension to March 14, 2013. IHO Ex. IV-3.
Background
At the time of the DOE’s Committee on Special Education (“CSE”) review, March 25, 2012, and the development of the Individualized Education Program (“IEP”) in question, the student was old. The CSE classified the student . The student’s classification is not in dispute. Tr. 15-16.
On March 25, 2012, the CSE recommended that the student attend a special class in a District 75 specialized school with the services of a full time behavior management paraprofessional. The CSE also recommended that the student receive the related services of individual therapy (five times per week, thirty minutes per session), physical therapy (five times per week, thirty minutes per session), and (three times per week, forty-five minutes per session), all in a separate location. All services were mandated to be provided on a twelve month basis beginning July 1, 2011.[4] Ex. 1.
The parents maintain that the DOE failed to offer the student a FAPE on procedural as well as substantive grounds. The parents rejected the DOE’s offer and enrolled the student at the ”) and provided her with after school related services of speech and language therapy, physical therapy and occupational therapy. The parents are seeking reimbursement for the tuition and the related services for the 2011-2012 school year. Ex. A.
Specifically, the parents challenged the proposed placement as substantively inappropriate to meet the student’s special education needs. Nor was a specific class identified on the Final Notice of Recommendation (“FNR”). Additionally, the parents claim that a program with the recommended related services and paraprofessional are insufficient to support the student’s educational, and needs. The parents assert that the recommendation was made based on the programs that are available within the New York City public schools, and not on the student’s unique educational needs. (Ex. A)
Also, the parents did not receive a copy of the IEP until after July 15, 2011, thereby claiming that it prevented them from assessing all of the IEP contents and recommendations prior to the first day of the 2011-2012 school year. The parents also allege that the CSE denied their meaningful participation in the development of the student’s IEP by failing to consider information about the student’s specific need for 1:1 Applied Behavioral Analysis (“ABA”) therapy. The parents also assert that the IEP contains “goals and objectives that fail to provide any baseline, or then-current, level of ability in any of the areas” and no short term objectives are included. Ex. A-4. The Behavior Intervention Plan (“BIP”) included in the IEP indicates that the student will receive as a related service yet the section of the IEP listing the mandated related services does not include counseling, there are no goals included for counseling and the FNR does not include counseling as a related service. There also are no goals or objectives for the behavior management paraprofessional. Ex. A-4.
The parents maintain that and the related services that the parents provided to the student for the 2011-2012 school year were appropriate to meet the student’s individualized needs and reasonably calculated to provide her with educational benefits. The parents also assert that there are no equitable considerations that would bar reimbursement. Ex. A-5.
The DOE asserts that the recommendations of its CSE were appropriate to meet the individual needs of the student for the 2011-2012 school year, was inappropriate to meet the student’s needs for that academic year and equitable considerations bar reimbursement as well.
Findings of Fact
As noted above, on March 25, 2012, when the CSE met to develop the student’s IEP for the 2011-2012 school year, she was 7.2 years old. The parties agree that the student’s classification is autism. Tr. 15-16. Consequently, the student is eligible for special education programs and related services as a student . See 34 C.F.R. § 300.8[c][1]; 8 NYCRR 200.1[zz] [1].
At six months, the student was not , was referred to ”) for an evaluation and began services. Tr. 1038. When the student ”) by a pediatric neurologist and was assigned at home Applied Behavior Analysis (“ABA”) hours. In June 2006, the student began to attend a center-based ABA program that used discrete trial instruction, in a class of Tr. 1038-1041. At the same time, the student received 10 hours of ABA, and continued with , at home, until the student aged out years old. Tr. 1039.
The student attended pre-school from September 2007 until August 2009. Tr.
1039. At pre-school, the student continued to receive therapy. At home, she received “either ten or fifteen hours of one-to-one ABA at home.” Tr. 1039. After the student’s first year of pre-school, the parents felt that the student was not progressing as well as she had been and they had the student evaluated by the where and , and therapy evaluations were conducted.[5] Tr. 1041. The parent testified that the recommended that the student attend “an intensive one-to-one ABA program that used discreet [sic] trial instruction and that tracked her progress with data and that the placement that she was in at that time was not appropriate for her.” Id.
In September 2009 the student began to attend the . Tr. 1039-1040. In or about August and September 2010, the student was evaluated by Dr. and Dr. who, according to the parent’s testimony, “confirmed her continued need for education in a structured setting with one-to-one teaching.” Tr. 1041-1042, 1073-1074. The student attended the for the 2009-2010 and 2010-2011 school years. Tr. 1074.
A February 28, 2011, Progress Report for the student contains information relating to the student’s current ABA programs in the “domains” of attending, community, . Ex. 2. Within each domain, there is a chart for a specific objective, a baseline indicating percentage of the student’s ability to demonstrate the task on the date tested, the criterion for mastery, the cumulative number of steps mastered, the number of responses mastered since the date of the last progress report, the student’s current status and comments, if any. Ex. 2. Progress reports are developed and provided to parents three times per year, November 1st, March 1st and June 30th. Tr. 360. Since the previous progress report, the student showed no mastery of additional responses toward the objectives of sitting still (current: 10 seconds %), standing still (current 5 seconds %), waits appropriately when instructed or walking quietly and appropriately (current 10 feet %), or imitates two-step gross motor movements. Id. The student demonstrated progress toward several objectives: visually tracks an object (1 additional step, i.e., “looks at preferred item directly in front of face for one second”); waits appropriately for tangible items (1 additional step mastered, i.e., “50 seconds at desk with other programs being run”); imitates vocal models/objects (1 additional response for total of 4); imitates vocal sounds (13 additional sounds for total of 30); labels body parts ((3 additional body parts); imitates vocal models/shapes (1 additional response for total of 8); requests preferred items spontaneously (1 additional response for total of 3); imitates oral/facial motor actions (5 additional responses for total of 29); identifies objects in pictures (4 additional responses for total of 34); places object or self, according to prepositions (1 additional response mastered for total of 5); and, unpacks a backpack ( 16 additional responses mastered for total of 25). Ex. 2.[6]
The progress report indicates that the student completed the programs for giving items appropriately, touches items appropriately, and matches identical objects in November 2010, and identifying body parts and imitates a vocal model of body parts in January 2011.
The progress report also indicates that certain programs were absorbed into other programs or discontinued. Ex. 2. A copy of the student's behavior program was attached to the progress report. Ex. 2-9.
created a “Treatment Summary”, dated March 9, 2011, which contained proposed goals and objectives for the student for the 2011-2012 school year. Ex. 7. The summary states that the student is learning to walk quietly, appropriately stand still, and wait for tangibles when instructed. Ex. 7. The student also is learning to follow two-step instructions, demonstrate verbs and prepositions, and to answer yes and no questions. Additionally, the student “is learning to imitate simple sounds and words through vocal imitation and mand for desired items.” Ex. 7-1.
The summary states that the student can imitate approximately 16 two-step gross motor movements, identify 18 body parts (receptively) and can receptively identify 35 pictures of objects. The summary also stated that the student had made gains since she began receiving ABA instruction from “across several domains” most noticeably receptive language. “Progress has also been achieved in imitation, matching, receptive language, expressive language, and self-care.” Ex. 7-1. The treatment summary also stated that the student required a "1:1 structured teaching setting utilizing the principles of [ABA] for her to continue acquisition of skills" in the areas of attending, receptive and expressive language, imitation, gross motor, fine motor, socialization, play, leisure skills and behavior management. Ex. 7-1.
The summary states that a “minimum criterion of % for 2 consecutive sessions has been set for each goal and objective” listed. Ex. 7-2.
The summary indicates: 1) the students goals and objectives; 2) instructional, personal and social strategies; 3) materials; and 4) evaluation activities. The student was given goals in the domains of attending, community, expressive language, fine motor, gross motor, handwriting, imitation, leisure, mathematics, pre-academic, reading, receptive language self-care and socialization. Additionally the summary states that formal skills programs will be written for each objective listed. Ex. 7-2.
A March 14, 2011 occupational therapy progress report and justification letter for an increase in services was signed by the student’s occupational therapist and indicated that the student received occupational therapy, three times per week for thirty minutes per session at . Ex. 3. The report states that the student “continues to present with deficits in the areas of ( awareness .” Ex. 3-1. The report notes that the student was diagnosed by a within , and wears and .” Ex. 3-1. The student demonstrated “ the sensory gym, the ability to maintain various body positions and increased grading of movement. The student continued to work on many areas of need. Ex. 3-1, 3-2. The therapist recommended an increase from three thirty minute sessions to three fortyfive minute sessions because the student’s “ .” Ex. 3-3. The therapist explained that the student requires for the initial 15-20 minutes of each session, leaving only 10-15 minutes for addressing all of the other concerns. The therapist included recommended goals addressing improved self-regulation skills by attending to a table-top task, visual motor skills, and self-care skills by putting . Id.
A March 18, 2011, progress report signed by one of two speech pathologists then treating the student, , indicated that the student received therapy, five times per week for thirty minutes per session at . services to the student. Ex. 6. While noting “steady progress throughout the year,” Ms. also stated that the student’s performance on language tasks remained highly dependent on her degree of attention and focus. Ms. noted the student’s interfering behaviors: getting up from the table; running around the room; and . The student sought sensory input by putting , and with non-contextual vocalizations. Ms noted that have worked closely with her and classroom teachers “in order to create an environment that will help .” Ex. 6-1. The student was able to progress in her , in-seat behavior as well as completing table-top activities with frequent reinforcement and redirection. Id. Use of a modified visual schedule was put in place to help the student transition from one activity to the next. Ex. 6-2.
The student’s receptive language skills showed “marked improvement.” Ex. 6-2. The student demonstrated an understanding and ability to follow simple and routine one to two-step directions, answered yes/no questions, stated her name, and was learning to respond when asked her age. The student was beginning to respond to social questions. The student showed “excellent progress’ in her receptive vocabulary skills and could identify vocabulary such as clothing, food, animals and actions (from a field of 3-4 images). She still had difficulty with colors and shapes, and struggled with two-step directions. Ms. described a program, LINKS to Language, that is being used with the student to address the student’s . Ex. 6-1.
The student’s was described as continuing to emerge. “She readily communicates her wants and needs using .” Ex. 6-2. The student’s ability to request items or label them expressively has increased.
The student’s intelligibility remained poor due to “deficits in motor planning and speech praxis. In addition, she presents with a and reduce labial range of motion which significantly impacts her intelligibility.” Ex. 6-2.Ms. explained that therapy “has focused on improving [the student’s] intelligibility for target words” using the PROMPT (PROMPTs for Restructuring Oral Muscular Targets), a methodology which “is a technique which uses tactile-kinesthetic input to oral-motor structures to aid in motor planning of target phonemes.” Ex. 6-2, 6-3. The student also “presents with reduced breath support and a fast .” A variety of strategies including verbal, tactile and visual cues have resulted in significant progress in the student’s ability to slow her rate of speech. Ex. 6-3.
Ms. noted “significant improvement in the student’s skills citing the student’s ability to greet familiar adults with minimal s, maintain , getting the attention of a partner through and playing functionally with toys. The student continued to have , which often resulted . Ex. 6-3.
The student continued to present her mouth with food. even though she could manipulate a fork and spoon. The student verbal cueing during mealtimes.” Ex. 6-3. With cues, the student could take appropriate and safer pace. Id. The speech therapist recommended that the student continue five thirty minute sessions of individual per week, and a continued use of the PROMPT methodology. Ex. 6-4.
A March 20, 2011, physical therapy progress report was prepared and signed by Mohamed Zaki. Ex. 4. The student was receiving three times per week for thirty minutes a session at . The report identifies the current ; ; ( ); and, . Ex. 4-1. The therapist noted that the student exhibited a “fair level of understanding the commands for the required motor tasks but limited ” them. Id. The student “improved her .” Ex. 4-2. The student improved the coordination of both lower extremities. The student had increased her because
The therapist recommended an increase of services to five individual sessions per week for thirty minutes per session to “ and to facilitate the development of age appropriate gross motor skills and to participate in school activities safely.” Ex. 4-4.
On March 25, 2011, the CSE developed the student’s IEP. The IEP section for Present Academic Performance and Learning Characteristics notes that at the present school the student is focusing on “functional” rather than academic skills, such as learning to walk quietly and appropriately, standing still, “waiting appropriately for tangibles and when instructed, and sit appropriately in preparation of behavior management plan.” Ex. 1-3. The IEP notes that the student “can imitate approximately 16 two-step gross motor movements, identify 18 body parts (receptively), and identify 35 pictures of objects (receptively). The IEP records that according to a teacher report, the student is “learning” the following skills: follow two-step instructions; demonstrate verbs and prepositions, answer yes/no questions; imitate simple sounds and words through vocal imitations, “mand” for “desire objects”; and visually track to improve her ability to attend. Ex. 1-3. Reportedly, the is targeting the student’s “ability to improve her stamina to visually attend.” Id.
The IEP also records the teacher report that it is challenging for the student to attend visually and difficult for her to attend to verbal cues. The student engages “in high rates of ) that .” Ex. 1-3. Once the student is engaged, she “demonstrates she understands concept taught. Reportedly, with redirection [the student’s] [sic] behaviors are decreasing.” Id. The IEP includes that the school reported the student’s progress in her ability to sit and stand still. Id.
The IEP notes: “It was reported [the student] has severe motor planning deficits.” Id. “…She has a . Reportedly, walking up/down stairs is difficult for [the student] as she leans to one side and requires prompting and cueing to take alternate steps and not skip a step. Reportedly, the student can imitate “simple gross motor movements.” Id. Reportedly, the student exhibits , but likes to jump on the trampoline, dance and listen to guitar music. Ex. 1-3. The provider is noted to be “ , , and .” Id.
As academic management needs, the student’s IEP recommends only prompting and redirection. Ex. 1-3.
Under the section provided for the student’s present Social/Emotional Performance, the IEP states that according to the teacher’s report, the student “often initiates contact with peers in an inappropriate manner (leans on children). The student currently attends an after school program during which she is paired off with a typically developing youngster.” Ex. 1-4. During therapy sessions, the clinicians encourage the student to interact with peers. Id. The student demonstrates poor attention span and short time eye gaze as well as repetitive . Id. The social/emotional management needs are a full time behavior management paraprofessional and a behavior management plan. Ex. 1-
4. There are no health/physical management needs noted. Ex. 1-5.
As previously noted, the CSE recommended that the student attend a special class in a specialized school with the services of a full time behavior management paraprofessional. The CSE also recommended that the student receive the related services of individual therapy (five times per week, thirty minutes per session), physical therapy (five times per week, thirty minutes per session), and (three times per week, forty-five minutes per session), all in a separate location. All services were mandated to be provided on a twelve month basis beginning July 1, 2011. Ex. 1.[7]
On April 29, 2011, the parent signed a contract with the and paid the tuition deposit by check, in the amount of $1000.00, to secure a placement for the student for the 2011-2012 school year because she had not yet received a placement offer from the DOE and did not want the student to lose her seat at the . Tr. 1056-1057, Tr. 1062-1063; Ex. E-1; Ex. TT. The tuition for the 2011-2012 school year was $95,000.00. Ex. TT. By signing the contract, the parent understood that she had until September 10, 2011, to notify the BAC, in writing, if she decided to enroll the student in a placement offered by the DOE. Tr. 1057.
By check dated June 1, 2011, the parent paid $31,500.00 toward the tuition balance for the 2011-2012 school year. Ex. E-2.[8]
The parent received a Final Notice of Recommendation (“FNR”) dated June 14, 2011, on June 17, 2011. Tr. 1047; Ex.8. On Monday June 20, 2011, the parent called Dina Benanti, the contact provided on the FNR, to arrange a visit to the program. Tr.
1050. The parent made an appointment to visit the school on June 22, 2011. Tr. 10471048; Ex. 8.
By letter dated June 17, 2011, the parents, through their attorney, faxed a letter to the DOE and provided notice of their intent to place the student at the and provide her with related services as of the first day of the 2011-2012 academic school year. Ex. B-1. The letter also stated that the parents were rejecting the proposed IEP and that they had not yet received a copy of the IEP. Ex. B-2. The parents alleged a denial of FAPE and stated that they remained “open to meeting with an IEP team prior to the beginning of the school year if the CSE believes that such a meeting would be beneficial.” Ex. B-2.
The parent and Jaime Nicklas, educational director , visited the school and Nancy gave them a tour. Tr. 1050. Ms. did not have the student’s IEP and asked the parent details about the student. The parent described the student and thought that Ms. seemed familiar with students like her daughter. Tr. 1052.9
The parent was told that the student would be with 6-8 year olds, but she could not learn a specific class assignment. The parent noted that she observed one teacher provide discrete trial work to the students while the other students worked independently or with other adults. Tr. 1052. The parent observed that the class schedules included social studies and science, two academic areas that did not seem suited to her daughter’s levels. The parent asked Ms. how these subjects would be taught and did not receive an answer. Tr. 1053-1054 1097-1098.
The parent did not think that the school was appropriate to meet her daughter’s significant educational needs. By letter dated June 24, 2011, the parent wrote a letter to , rejecting the placement offer. Tr. 1055; Ex. C. The parent stated that the school “does not incorporate a sufficient amount discrete trial instruction.” Ex. C-1. The parent wrote that the student does not have the prerequisite skills to participate in the class’s group lessons in social studies, science, math and reading. Ex. C-2. The parent expressed her concern about the lack of consistency in instruction that would be offered since she was informed that the student probably would be in a different class in September than her class for the summer session. Tr. 1052; Ex. C-2. The parent noted that was provided in one partitioned area of two different classrooms, an environment where it would be too noisy and distracting for her daughter to be able to work on improving her articulation and other therapy goals. Tr.1052-1053; Ex. C-2. The cafeteria also was very noisy, an environment where it would be difficult for the student to work on appropriate eating skills. Ex. C-2. The parent requested another IEP meeting or another offer of placement. Ex. C-2. The parent did not get response. Tr.1055, 1056.
The student continued to attend for the 2011-2012 school year.
The parent had not yet received a copy of the IEP which was mailed on July 15, 2011. Tr. 1047.
On July 15, 2011, the student’s IEP was sent to the parents who received it on July 16, 2011.Tr. 1047.[10]
As noted above, the parents filed for an impartial hearing on June 6, 2012, and amended their request on July 17, 2012. Ex. A.
At the impartial hearing, testified on behalf of the DOE. On March 25, 2011, the CSE met for the student’s annual review and to develop the student’s IEP for the 20112012 school year. acted as District representative and school psychologist and led the meeting. The other individuals who participated in the student’s CSE meeting included Lydia Nesbit as the general education teacher, as the special education teacher, Ann Lui, as the parent member, the parent, and , educational director of BAC. Ex. 1-2.
In creating the IEP, Ms. reviewed the following documents: the progress report (Ex. 2); the report (Ex. 3); the physical therapy progress report (Ex. 4); the speech and language progress report (Ex. 6); and, a treatment summary (Ex. 7; Tr. 28-30, 6163). Ms. reviewed the student’s history by looking at the student’s CPSE documents, prior IEPs, a social history and that had been done during the 2008-2009 school year. Tr. 63-65.
The parent and were the sources of information for the contents of the IEP including the BIP. Tr. 38-39, 43. Ms. viewed Ms. as “the person who is in the school with [the student] who has firsthand knowledge of her functioning, and she’s there day to day, so yes, it was a great help for her to tell us—give us information about [the student’s] progress or lack thereof.” Tr.75. At the meeting, talked about the student’s current level of functioning, the type of work staff was doing with the student, the student’s difficulty attending to tasks, and the student’s difficulty with visual attending. Tr. 1042-1043. Ms. explained that the student was not working on academics yet, but on skills such as sitting still, standing still, and waiting appropriately. Tr.76.
Ms. understood that the student had difficulties with , functioning, , . Tr.3132, 38. All areas of the student’s functioning and development . Tr.32. In the area of student has “ .” “[S]he is near in terms of expressing herself.” Tr.33. The student has some “where she is able to mand for certain items”, or for them with her hands. Id. The team in mostly all . The student has “ her hands, exhibiting the “classic type of traits of .” Tr. 33-34. The student frequently as a means of getting attention or leaned on someone. Tr. 34. The student had “ with her attention in terms of having a need to be redirected often. The student had difficulties in terms of visual tracking. Id. The student was a toe walker at the time of the CSE meeting. The student had difficulty walking down steps; she did not alternate steps with each foot. Tr. 35-36. The student had difficulty knowing where her body was in space and time. The student’s delays included difficulty grasping a pencil and basic writing skills. Tr. 36-37; Ex. 1-7. The student had difficulty with feeding in that she The student “has difficulty in basic activities of daily living in all areas. The student’s by the CSE, but did include “ up, .” Tr. 40.
The parent informed the CSE that she had taken the student to an eye doctor and that the student would be receiving eye therapy “to build up her endurance in terms of visual attending.” Tr. 1043. Ms. reviewed the related services providers’ reports. Ms. asked the parent to follow up with the therapists who had not provided short term objectives with their annual goals, so that the IEP could be provided to the parent as soon as possible. The parent obtained the short term objectives and faxed them a few days after the meeting. Tr. 1044-1045. goals and objectives were provided addressing speech intelligibility by producing target phonemes and reducing her rate , expressive language, receptive language, and feeding safety. Ex. 5-1. goals and short–term objectives were provided addressing improved self-regulation skills by attending to a table- by putting on socks and shoes. Ex. 5-4
The CSE believed that the targeted areas on the reports were appropriate goal areas for the student for the 2011-2012 school year. Tr. 78-79. The CSE carried over these targeted objectives into the 2011-2012 IEP. Tr. 79-80; Ex. 1-6. Ms. testified that Ms. ’s goals were discussed at the meeting and would have been incorporated because Ms. “would have understood that is exactly what [the student] needed…” Tr. 93. The IEP contains pre-academic goals including matching pictures to objects and identifying and labeling letters, labeling numerals, and sequencing numerals. Tr. 86-87; Ex. 1-7. The CSE included these goals because they thought that the student should be exposed to preacademic skills. Tr. 87. There are no goals in academic content areas. Tr. 104. The parent had no objections to the goals discussed. Tr. 1072.
Ms. explained that the goals and objectives do not have baselines because the CSE expected that the description of the student’s present levels of academic performance on page three of the IEP provides the base line and the goals are to begin from that level. Tr. 133-134, 153-158. From the perspective of the CSE, the student’s baseline ability to wait, stand still, ability to wait for ----, ability to give a verbal response to her name, ability to label verbs in pictures, and ability to answer yes or no questions, was “that basically she was learning to do those things.” Tr. 154-156. Ms did not know why the goals did not state levels of achievement to be reached by the student.
Ms. further stated that the goals were taken from the Treatment Summary which did not contain baselines. Tr. 89-90; Ex. 7. For each goal, Treatment summary states that a formal skills program will be written for each objective. Ex. 7. Ms. stated that she did not know what the skill programs are, and did not know how the goals and objectives came to be written on the IEP. Tr. 91-92.11 The IEP was drafted after the CSE meeting. Tr. 92
Under the IEP goals the phrase “short term objectives” is crossed out under every annual goal except those provided by the related services providers. Ex. 1-6, 1-7, 1-8. Ms. thought that her colleague crossed them out. Tr. 82-83. The IEP does not indicate when the CSE thought that the student would accomplish the short term objectives. Tr.
84. The team did not read aloud the text written under each annual goal. Tr. 165.
Based on Ms. s experience as a District psychologist for high school students she testified that at the beginning of the school year, after the teacher reviews the
Previously, Ms. testified that prepared the goals. Tr. 85-86. students’ IEPs, the teacher would do their own informal assessment to determine the student’s functionality. Tr. 132-133.
The BIP lists counseling. Ex. 1-18; Tr.109. Ms. first testified that she did not know why the CSE did not recommend counseling. Tr. 109. Later she explained that from the perspective of the CSE team, there was no evidence supporting the need for the student to receive counseling. Tr. 135. The reference to counseling on the BIP was explained as a “clerical error.” Tr. 135.
The CSE team recommended a specialized classroom in a specialized school (also referred to as a “District program”) with a classroom ratio of comprised of six students, one licensed special education teacher and one classroom paraprofessional. Tr. 30-31.
The CSE discussed the student’s needs with respect to her related services. The CSE reviewed the student’s articulation skills and discussed the student’s need to increase her intelligibility. The CSE recommended that the student continue to receive five 30 minute sessions per week. Tr. 1044. The physical therapist recommended an increase from three to five 30 minute sessions per week to further address the students overall gross motor delays and lack of safety awareness. The CSE recommended the physical therapy increase. Tr. 1043. The requested an increase from three 30 minute sessions per week to five 45 minute sessions per week because the student has many sensory needs and fine . The CSE also recommended the increase of occupational therapy. Id. The parent had no objection to the related services recommendations. Tr. 1072.
The parent agreed that the student had behaviors that interfere with her learning and understood that a behavior management paraprofessional was recommended to manage the student’s behavior. Tr. 1072-1073. The DOE developed a Behavior Intervention Plan (“BIP”) in order to provide guidelines to the teacher, crisis management paraprofessional and providers as well as expectations regarding “expected behaviors to change.” Tr. 41, 43; Ex. 1-18. Ms. stated that the BIP would serve as the goals to be addressed by the behavior management paraprofessional.
Ms. explained that the District program was appropriate because the student has “severe autism.” Tr. 32. The specialized school setting has “familiarity” with students with autism and is the DOE’s “go-to in terms of autism….” Tr. 65, 67-68. From Ms. ’s “understanding of the program”, it is language-enriched, tailored specifically to the needs of children. Tr. 51. Based on professional development attended by Ms. , she understood that the specialized school would have services in all of the areas – ADL, language and academics –needed to help the student. Tr. 67-68. The teacher would know exactly what each child would need and how to deliver it to them. The paraprofessional would work as a collaborative leader with the teacher, and is aware of the students’ needs as well. The classroom also would have groupings based on the functional needs of the students in the class. Tr. 1166-118. There would be ongoing collaboration between the classroom teacher and the related services providers. The providers work on site and collaborate with the teachers. Id. Given what the CSE knew about the student, the team felt that the would give the student the opportunity to be with other students in the classroom and be able “to provide her with opportunities specifically for modeling and for generalization of skills learned in that classroom.” Tr. 51-52, Ms. thought that it was important for the student to be with students who were both more and less “severe”. Tr.52-53. The student would have the opportunity to learn from all of the students in the class, even those whose needs exceed hers. Ms. thought that the opportunity to model peers was present. Ms. thought that in the the student would have the opportunity to learn and generalize the skills learned, in the entire group, within smaller groups, and with the teacher alone or working in collaboration with the providers. Tr. 52-53, 95-96,
99. The rationale for the program was described to the parent. Tr. 52. Ms. never worked in a District elementary setting. Tr. 59. Ms. had not evaluated, observed or met the student prior to the meeting. Tr. 62.
Ms. explained that the team did not offer ABA specifically because they “leave it up to the educators to decide after worked [sic] with the student as to which approach would be best. In the view of the CSE, ABA is one of several methodologies that is used for children .” Tr.98- 99, 100. Ms. agreed that there are some students who only learn through the use of a specific methodology. Tr.100. The CSE team thought that the student would have the ability to learn new skills in the related services sessions that were recommended. Tr.99.
The parent strongly disagreed with the CSE recommendation. At the CSE meeting, the parent spoke about the student’s and the student’s progress at as well as about her concerns with the recommended program. Tr. 50. She explained throughout the meeting that the student needed the instruction to learn and that she has been able to make progress with this instruction. The parent believed that the student required more one-to-one services during which providers would work with the student individually. The parent explained that the student had been in pre-school for two years and made no progress. The parent explained that she had observed programs in the past and observed a lack of individualized instruction, with students unattended or behaviors unaddressed. Tr. 71, 1046. She informed the CSE that even when a student had been assigned a paraprofessional, the para helped other students, the parent had observed students left unattended sitting at a table and engaging in self-stimulatory behaviors. Tr. 72-73.
The parent did not think that setting would be beneficial for her daughter. Tr. 44, 70-71. The parent informed the CSE that without the intensive instruction the student would regress and her behaviors would increase. Tr. 70-71. The parent asked the CSE to consider placing the student . Ms. stated that her “hands were tied" and that she could not recommend the student’s IEP because it is not an approved school. Tr. 145-147. Ms. advised the parent that she could pursue her due process rights. Tr. 75, Tr. 1046-1047.
As recorded in the CSE meeting minutes by Ms. did not feel that the 6:1:1 program would be educationally beneficial for the student. Tr. 46, 47-48; Ex. 9. Ms. Nicklas thought that the student would engage and possibly regress. Ex. 9-3. Ms. Nicklas discussed that was working to reduce the student’s . Tr. 77.
Ms. informed the parent about the services the student would be receiving as well as about the fact that a crisis management paraprofessional was assigned to her daughter. Ms. was not sure whether she explained the purpose for the paraprofessional. Tr. 45. At the hearing Ms. explained that the is “supposed to implement the BIP with the teacher to help remediate or support “and to make sure that the child is safe when she is in the classroom and “to hopefully work with the counselor as well if the child is receiving counseling to implement behaviors—implement strategies to help.” Tr. 45. The paraprofessional would attend lunch or breakfast with the student. Tr. 137-138. Additionally, the paraprofessional could work on many of the goals in the student’s IEP. Tr. 139-144. , a licensed special education teacher for grades testified about the proposed placement. In July 2011, Ms. taught one of classes at and the student was on her roster on the first day of school. Tr. 266-268. The 2011-2012 school year was Ms. ’s third year teaching children . Tr.210-211, 263. Ms. received an ABA three day course in discrete trials in continuing education through the DOE during her first or second year of teaching. Tr. 263-264. She also received a three day course in . Tr. 265.
In Ms. ’s class in July 2011, the students’ functional level in reading was prekindergarten; they were emergent readers. They receptively and expressively could recognize letters. Tr. 314. In math they also were at a pre-kindergarten level, in the early stages of number identification. Tr. 214. A classroom paraprofessional was assigned to the classroom. The paraprofessional’s responsibilities were to perform some administrative tasks, work individually with the students and assist the teacher with lessons by doing discrete trials under Ms. ’s supervision. Tr. 214-215, 269-270. All of the students in Ms. ’s class required and received therapy at the school during the summer of 2011. Tr. 215-216, 292-293. Some of the students required occupational therapy which also was available at the school during the summer of 2011. Tr. 216-217, 292-293.
If the student had attended Ms. ’s class in the summer of 2011, Ms. would have known how she was performing academically by reading her IEP. Tr. 220. Ms. Barry “typically” used the Brigance assessment to determine where students are functioning academically. Tr. 222-223, 289-290. The results of that assessment and the student’s IEP goals “would be used as a basis for how I would begin to teach her.” Tr. 223. The methodology used in Ms. ’s class and for the classes for children Tr. 226-227. The students were given discrete trials, with the data collected either by Ms. or the paraprofessional, who was trained by Ms. and during one professional development day on collecting data. Tr. 227-228, 230-231. Ms. evaluated the data to see what the children had mastered, if the teaching technique had to be adjusted, once a skill was mastered what the next targeted skill would be, and when possible to try to have the child generalize the skills they are working on throughout the day. Tr. 231, 254. Ms. added, that in addition to discrete trial, she analyzed the child’s motivation to perform activities and looked at any other . Also, the child is given positive reinforcement throughout the day in an effort to either Tr. 250-251. The students’ progress was documented by graphing. Tr. 251. Ms. communicated with the parents with a daily communication book. Tr. 252.
Two of the students in the class were assigned behavior management paraprofessionals, who occasionally worked with the other students in the class. Tr. 239. The therapist pushed into the class and would provide a group session. Tr.240. The occupational therapist or physical therapist often would accompany the class outside and work with the children. Tr. 240-241, 271.
Ms. described the class activities. Tr. 244-245. There were two periods of discrete trial work, one math period, one reading period, one social studies period, one movement or art period, lunch and an eighth class period per day. Tr. 27112. Reading skills were addressed through group lessons. Tr. 245. A read aloud would be done with the entire group and for direct instruction the children would work with one or two other children at their level and Ms. Tr. 245-246. During the direct reading instruction, the other students “would be working with a paraprofessional or working in either looking at a book on their own, working in the reading or writing center doing supervised work or working independently.” Tr. 276. While independent work is the goal, not all students were able to work independently. Either a paraprofessional or Ms. would assist the child, prompting at the level that the child needed to perform the task. Tr. 250. The students were provided multiple opportunities to hear language, both social and through books, and to verbally be prompted to respond to questions. Tr. 219.
Ms sat with the children during breakfast and lunch, helped them with their eating skills, and to socialize with each other. Tr. 246-247. The students also were taught play skills either in the playground or gym every day, as well as in the classroom playing games. Tr. 254-255. A different teacher and the classroom paraprofessional as well as the individually assigned behavior management paraprofessionals stayed with the students during art and movement. Tr. 295-296.
Ms. thought, based on a review of the student’s IEP, that she would have been able to address the student’s needs as they are described in the IEP. Tr. 257. The Parents’ Unilateral Placement and Related Services
, a Board Certified Behavior Analyst, is the educational director of the Tr. 324-
326. The is a private, not-for profit school. It is an intensive one-to-one ABA program with nine students and nine one-to-one teachers. The additional staff includes Ms. , an executive director and an administrative manager. Tr. 329. At the discrete trial instruction is used “to teach [the] students to increase socially appropriate behaviors.” Tr.
327. Behaviors are broken down into components. There is an “ ” which is an instruction, a cue or signal that signifies to the student that there is a reinforcement available. The student then has a response which either receives a reinforcement or a prompt to the correct response. That is considered one trial. There are multiple trials to teach an identified skill or target behavior. Prompts to incorrect responses are faded with consecutive trials. Tr. 330-331. A sitting is completed when the student accomplishes five trials of a correct response. Tr. 331.
For the 2011-2012 school year, as educational director of , Ms. developed the student’s program and behavior plans. Tr. 333. In July 2011, the student had a high rate of self-stimulatory behavior. She had . In the past, the student periodically engaged , . The student had a lot of non-contextual motor movements, a lot of and forth, body . At times, the student . Based on data that is collected about the student’s , Ms. stated that the student’s ; she has . Tr. 334-335. The student also has which impact on her rate of learning. Tr. 334. Additionally, the student with all of her activities. Tr. 785-786.
Ms. could not remember the subject of the eighth period class.
For measuring skill acquisition, for a particular day, the teacher would first take cold probe data; the teacher would test the target response and if the student performed correctly on the first trial, the teacher would move on to the next skill or behavior. If the student is incorrect, the teacher would go through the teaching procedure. Once the student has three consecutive days when she has achieved the skill five times in a row (achieved a “yes”) three days in a row, then a post-test is administered. The post-test asks the student to perform the skill three to five times in a row without a reinforcement or prompt to know if the target response can be maintained without reinforcement. Tr. 336337.
For measuring behaviors, “ABC” data is collected daily –antecedent (what happens immediately before a behavior occurs), behavior (exactly what happened), and consequence (how the behavior was handled.)Tr. 337-338. Recording this data helps the staff identify the function of the behavior. Id. The data is summarized and plotted on a graph in order to indicate trends in the behavior and whether the behavior intervention plan is effective. If the plan is not effective, changes are made. Tr. 338. The parents introduced 34
The parent communicated with the professionals through a communication book, through e-mails, and on a daily basis, in person, since the parent took the student to school. Tr. 1064. The provided parent training during the 2011-2012 school year through “formal clinics” which included an opportunity for the parent to raise any concerns at home, and meetings every other week, going over the student’s programs and progress. Informally, the parent could raise issues or concerns at home on a daily basis and receive ‘’on the spot training,’’ a demonstration of a particular was working on that could address the issue. Tr. 1065. The also provided a home visit to help the parent target behaviors that were seen at home and were addressed at school. Tr. 1065.
The parent thought that the student received an educational benefit from during the 2011-2012 school year because she saw progress in her daily interactions with the student at home. The progress was slow, but the parent reported progress in the student’s ability to use spontaneous language and communicate what she wanted. Tr. 1065-1067. The student also more consistently was able to take the parent by the hand and point to what she wanted. Tr. 1066-1067.
, a licensed occupational therapist, has worked for , a pediatric clinic, since April
2011. Tr. 392, 394-396, 416. Ms. is responsible for providing services and writing annual progress reports for the students. Tr. 396. Beginning in September 2011, Ms. Chawla provided the student occupational therapy at three times per week for forty-five minutes per session. Tr. 396-397 416. Ms. worked on sensory processing, selfregulation, hand manipulation, sitting tolerance, activity tolerance and sports activities. Tr. 397-398. Ms. determined what she would work on with the student by collaborating with the , consulting the student’s IEP goals, and based on her observations. Tr. 398, 417-418. Ms. communicated with the student’s school with the parent serving as the conduit to the provider for emails between the parent and teachers. Tr. 398-399. During the 2011-2012 school year, two individuals from the came to to exchange information with Ms. about the student and techniques. Tr. 399-401, 413. Ms. visited the twice to see how the student was in her environment at school, what was working on her with, and techniques that I can take back with me to transition over….”Tr. 410. Ms. spoke to the student’s teachers about the focus of her with the student. Id.
With respect to sensory processing the student needed to have vestibular input, which she received from a variety of equipment in the sensory gym, in order to regulate herself. Tr. 401, 403-404. The student then was able to sit at the table to do tabletop activities for approximately five minutes at a time. Tr. 404. The tabletop activities included fine motor activities, hand manipulation skills and hand-eye coordination. Tr. 404.
The student made good progress in fine motor skills and eye-hand coordination; the student progressed from not being able to clip a clothespin on a rod to succeeding with the task. Tr. 404-405. Additionally, the student progressed in hand manipulation and in her ability to tolerate activities at the table for longer periods of time. Tr. 405-406. Ms. , a New York State licensed physical therapist since November 2008, provided physical therapy to the student three times per week for thirty minutes per session, at during the 2011-2012 school year. Tr. 724-727. Another physical therapist at provided the student physical therapy twice a week for thirty minutes per session. Tr. 726-727. Ms. communicated frequently with the parent in person, with the other related services providers for the student and occasionally with the teachers through group e-mails with the parent. Tr. 727, 739 came to observe as well. Tr. 740. Ms. spoke with the other related services providers because they needed to address the student’s behaviors consistently, such as whether to ignore vocalizations, and to learn whether there were skills that could be carried over from the other related services, school or home, in the course of the physical therapy. Tr. 728, 740-741. The student made slow progress. With support, the student was able to hop if someone held up the other leg. The student also was able to mimic the movement Tr. 731. Ms. wrote a progress report dated February 27, 2012. Ex. UU; Tr. 731-732. During the 2011-2012 school year Ms. Formacion worked on having the student hold her balance for five seconds by standing on one leg and on being able to travel on an eight foot long beam. Tr. 742-743. Ms. had no ABA training. Tr. 747.
The student’s needs included a lot of , a lack of body awareness, and a lack of safety awareness. Tr. 728-729. The student was unable to catch a ball, hop, or jump over hurdles. Tr. 729. The student presented with weak arms, weak legs and trunk, and had poor flexibility in her legs. Tr. 729. Additionally . Tr. 729. Ms. created goals for the student for the 2011-2012 school year once she observed the student’s deficits. Tr. 729-
730. A typical session would include some calming activities such as swinging for vestibular input followed by practicing one or two of the skills identified in the goals. Tr. 730-731. Ms. started providing therapy to the student in September or October 2011. Tr. 733-734. Ms. , a New York State licensed pathologist, provided to the student at from 2009 through June 2012. Tr. 860-864. Although Ms. ’s supervisor was formally trained in ABA, Ms. was not. Tr. 884-885. Ms. received informal training in ABA approaches from her supervisor, staff when Ms. visited the school and through telephone and email exchanges with . Tr. 888. From July 2011 through June 2012, Ms. provided the student with individual three times per week for thirty minutes per session. Tr. 864. In the summer of 2011, the student was provided individual speech therapy twice a week for thirty minutes per session by and from September 2011 through June 2012 the student received individual speech therapy twice a week for thirty minutes per session from . Tr. 864-866, 885-886. Ms. spoke regularly with the other who worked with the student at to ensure their collaboration on the student’s targeted goals and progress. Tr. 866-867. Ms. met with the therapist regularly to discuss ways to use language to help her in those sessions and to discuss the student’s progress. The also provided information about ways to address the student’s in order to make her more available for the speech therapy. Tr. 867. Ms. communicated with the student’s school in order “to be on the same page”, targeting similar goals and carrying over skills, such as vocabulary, focused on during the school day, into the speech sessions. Tr. 867-868.
Ms. spoke regularly with the parent to keep her informed of the student’s program and progress, to learn if there were issues at home or any developments that could be incorporated into the , and to keep updated on communications among the parent, school and other providers. Tr. 866, 868-869. Ms. visited the student’s school twice during the 2011-2012 school year to see how the student was performing in school, observe the student, and to collaborate with the student’s teachers and educational director about any specific concerns regarding that could be targeted as related services. Tr. 886-887.
In July 2011, the student had severe deficits in receptive and expressive language. Receptively, she was able to follow simple or routine one or two-step directions, answer simple yes-or-no questions, answer a few social questions such as what her age or name was, and identify common vocabulary items such as body parts, animals and food. Tr. 870-871. Receptively the student had difficulty with more complex directions or questions such as those that included a spatial or quantitative concept. Tr. 871, 876. Expressively, the student was communicating mostly using one to two-word phrase, most of which were math or phrases to request preferred items, like Ï want cookie.” The student said “no” to refuse items and said “yes” and “no” to answer questions. “But she wasn’t able to expand her utterances to describe things beyond sort of a single-word level.” Tr. 873, 884.
For the 2011-2012 school year the student’s goals that were worked on included the student’s ability to follow directions, her ability to answer questions, identify objects and pictures by name and also receptively in a field. The worked on increasing her utterance lengths and the phrases that she used as well as on helping the student use words describing emotions, to express herself. Tr. 874, 876. The also worked on the student’s and on . Id. The student responded “well” to the goals and the services that were provided during the 2011-2012 school year. Tr. 875, 876. The student made slow and steady progress across all domains . Tr. 875-876. Ms. wrote a progress report in February 2012 documenting the progress the student had made until that time. Tr. 876-878. Subsequently, Ms. observed the student progress by an increase in her vocabulary and in her ability to answer questions about herself. The student also continued to show improved awareness in her communication skills, for example, only needing a visual cue to correct herself and reduce her rate of speech if she was speaking too quickly to be understood. Tr. 890
Ms. believed that the student received benefit in the area of her needs during the 2011-2012 school year. The helped the student with her overall ability to communicate with her family and teachers, as well as in her environment. Tr. 879-880. The student improved in her ability to follow directions, to greet others and to express her wants and needs. Tr. 880-881.
The parent communicated with the providers by e-mail and in person, as well, since she brought the student to the related services. Tr. 1064.
For the 2011-2012 school year the student attended from 9:00 am to 3:00 pm. She received all of her related services at because the student received discrete trial instruction throughout the day, maximizing her progress, rather than being pulled out of instruction for related services. Tr. 1058. For the 2011-2012 school year, the student began school at the and began to receive related services in July 2011. Tr. 1059. The parent paid $2,000.00 for the related services and submitted invoices and cancelled checks to reflect the amounts paid. Tr. 1060-1062; Ex. XX, YY, ZZ; Tr. 1077-1091.
A June 29, 2012 Student Progress Report indicates the student’s progress toward her goals and objectives as developed in her programs. The student mastered three additional steps in her ability to sit still with a current status of 35 seconds. Ms. explained that the student was able to demonstrate this program for higher increased time intervals. Tr. 512. The student mastered three additional steps for standing still and was up to 50 seconds. The student mastered an additional three steps in her program to wait appropriately when instructed. The student mastered one additional response for her program to make to her name. The student mastered three additional responses to the program, answers social questions (“What’s your favorite food?”). The student mastered two additional responses to the program, requests preferred items spontaneously. The student mastered two additional responses to completing fine motor actions and two responses for imitating two-step gross motor movements. Ex. F-3. The student’s skills showed additional improvement in responses to identifying objects in pictures which increased by 86 responses from her previous report. Ex. F-4. The student was unable to master any targets for her program to walk quietly and appropriately. Ms. explained that the criteria were difficult because of the distance involved and the student needed to walk with her heels down. Tr. 513. The program to imitate a vocal model was put on hold since it was too similar to a behavior plan they had implemented to eliminate the student’s creaking sounds. Id. Tr. 512-513. Ms. testified that the student had made the most progress since coming in the period covered by the report. Tr. 511-512 Discussion and Conclusions Of Law Legal Framework The purpose behind the Individuals with Disabilities Education Act is to ensure that children with disabilities have available to them a free appropriate public education (“FAPE”) (20 U.S.C. § 1400[d][1][A]); See, Hendrick Hudson Dist. Bd. Of Educ. v. Rowley, 458 U.S. 176, 179-80 (1982). A FAPE includes special education and related services designed to meet the student's individual needs, provided in conformity with a written IEP, at public expense. 20 U.S.C. Sec. 1401(9); 20 U.S.C. Sec. 1414 (d); 34 C.F.R. § 300.1[a]; 34 C.F.R. § 300.347[a][2][i]). The student's program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
If parents believe that the school district has failed to offer their child a FAPE, they "may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school from the state." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 (citing School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 at 370 (1985)). Such reimbursement covers "'expenses that [the school district] should have paid all along.'" T.P. ex rel S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam) (quoting Burlington, 471 U.S. at 370-71). In determining whether parents are entitled to reimbursement, the Supreme Court has established a three pronged test: (1) whether "the school district [has] fail[ed] to provide a FAPE"; (2) whether "the private school placement is appropriate"; and (3) whether the "equities" warrant a reimbursement award in full or in part. Burlington, 471 U.S. 359, 369-70 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Forest Grove School Dist. v. T.A., 129 S. Ct. 2484, 2496 (2009); see also, Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 at 363-64 (2d Cir. 2006).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]). Appropriateness of the Department of Education’s Recommendations
A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP the CSE developed for the student is reasonably calculated to confer educational benefits to the student. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]. Consideration of both the procedural and substantive violations raised by the parents follows. Procedural Violations
If a procedural violation has occurred, relief is warranted if the violation affected the student's right to a free appropriate public education. R.E. v. New York City Dep’t of Educ., 694 F.3d 167,190-91 (2d Cir. 2012); J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL3218 [S.D.N.Y. Nov. 14, 2002]), or seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 3 F. Supp.2d 144, 3 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]). “Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations considered individually do not.” R.E, 694 F.3d 167, 190-91. 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]). Timeliness of the IEP The parents assert that they did not receive the student’s IEP for the 2011-2012 school year prior to the first day of school, “thus not enabling them to review and critically assess all statements, facts, services, goals, and objectives that may (or may not) have been proposed for their daughter prior to the beginning of the school year.” Ex. A-2. School districts must ensure that a child's IEP is in effect by the beginning of the school year and that the parents are provided a copy. See 34 C.F.R. § 300.342(a) ("At the beginning of each school year, each public agency shall have an IEP in effect for each child with a disability within its jurisdiction."); 34 C.F.R. § 300.345(f) ("The public agency shall give the parent a copy of the child's IEP at no cost to the parent.") See Cerra v. Pawling Cent. School Dist., 427 F.3d 186 (2nd Cir. 2005). The court in Cerra found that while parents are not entitled to “demand” that a school district provide them with an IEP at any earlier date of their choosing, the school district had fulfilled its legal obligations to the parents with respect to the timeliness of the IEP “by providing the IEP before the first day of school” (emphasis added).
However, parents may get relief under the IDEA only if the evidence proves that the delayed delivery of the IEP “impeded the student’s right to a FAPE, significantly impeded the parents’ meaningful participation in the CSE process, or caused a deprivation of educational benefit. Cerra, 427 at 194. Here, the record establishes that the parents did not receive the IEP until after July 15, 2011, the day it was mailed by the CSE, a date after the start of the 2011-2012 school year and by logical extension, after the date it was to be implemented. Tr. 23.
The DOE’s failure to provide the parents with a copy of the proposed IEP before the start of the school year denied the parents the right to meaningfully evaluate the program recommended by the DOE. As noted below, the IEP does not include all of the information required for the student to receive a FAPE, a fact the parents would not be able to assess until they received the IEP. Therefore, the failure to provide the parents a copy of the IEP prior to the start of the school year resulted in a denial of FAPE. Parental Participation
The parents assert that they were denied meaningful participation because the CSE “failed to incorporate parental and expert input and was not reflective of [the student’s] specific and very extensive individualized educational needs.” Ex. A-2, A-3. The parents further claim that the CSE did not give a ABA program due consideration, despite the information it was presented citing the student’s need for such a program, because the DOE does not have a program of that nature to offer.
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).
The record does not support the parents’ claims with respect to their meaningful participation, or with what is in essence, a claim of predetermination. Ms. Nicklas and the parent provided information at the meeting about the student’s current level of performance and the skills the student needed to continue working on. Tr. 70-77, 10421043, 1045-1046, 1072-1073. Indeed Ms. Grandoit testified that they were the sources of the information provided on the IEP.Tr. 38-39. The CSE also considered the reports provided by BAC as well as the student’s related services providers. Ex. 2,3,4,6,7; Tr. 2830, 61-63. The record also makes clear that the parent advocated on behalf of the student for the intensive ABA program she has seen benefit the student and articulated the student’s previous experience with the program. The parent also described her observations of programs and why she believed it is an inappropriate program for the student.
As for the parents’ claim that the CSE recommendation of a program was policy driven, the record does not support such a finding. In the recent Second Circuit case, M.H. v. New York City Dep't of Educ., the Court articulated the standard by which to assess such a claim. 685 F.3d 217 [2d Cir. 2012]. The evidence must show that the school district would not consider a ABA placement in an appropriate case. Id. While the record supports a finding that Ms said that the District 75 classes were the “go-to” programs for the DOE’s and that her “hands were tied”, she also stated that she could not put on the student’s IEP because it is not an approved school. The record does not support a finding that a ABA program does not exist either within the DOE’s range of programs or among the approved private special education schools with which the DOE can contract to provide special education services to its students, or that the CSE would not consider a ABA placement in an appropriate case. Goals and Objectives
The parents allege that the IEP contains goals and objectives that fail to provide any baseline, or then-current level of ability in any of the targeted areas. While levels of mastery are included for the goals, absent any information about the student’s baseline of functioning, it is impossible to determine whether the student was making any progress toward the goals. Additionally, the IEP fails to include short term objectives, goals for counseling which is indicated on the BIP or goals for the behavior management paraprofessional. Ex. A.
An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and to meet each of the student's other educational needs that result from the student's disability. See 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee, and when periodic reports on the progress the student is making toward annual goals will be provided to the student's parents. 8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 C.F.R. § 300.320[a][3]
New York State regulations explicitly require an IEP to specify "evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal." 8 NYCRR §200.4(d)(2)(iii)(b). Similarly, any short-term objective must also be "measurable." Id. at §200.4(d)(2) (iii)(b).
Here, the annual goals state a procedure by which the goals are to be measured, i.e., “by the special education teacher through teacher charted observations.” See DOE 16 to 1-8. However, none of the goals contain a baseline, specific evaluation criterion or evaluation schedule. Id. Additionally, the heading, “Short Term Objective” which appears under the text of each annual goal is crossed out. Id. It is unclear from the IEP itself or the record what the list under the broader stated annual goal is supposed to be. Even if these were taken to be short term objectives, they do not contain a baseline, express method of measurement, specific evaluation criterion or evaluation schedule.
The DOE argues that the parent had no objection to the goals as discussed at the meeting. Tr.1072. The parent’s agreement with the substance of the goals as appropriate areas for the student’s focus is not tantamount to approving the way in which the goals were drafted and included in the IEP. The DOE argues that Ms. testified that page three of the IEP contained information about where the student was functioning academically at the time of the meeting. Tr. 134; DOE Ex. 1.3. However, a review of page three of the IEP reveals that the only baseline data for the student included is, “can imitate approximately (receptively).” As for the other specified skill areas listed on page three, the IEP states that the teacher reported that the student is “learning” them, a standard adopted by Ms. in her testimony. Tr. 154-156. The DOE further asserts that the classroom teacher would determine what the student’s baseline for the goals is through assessments. Tr. 89, 132-133. This type of corrective testimony, to address the inadequacy of an IEP, is precisely the type of evidence prohibited by R.E. v New York City Dept. of Educ., 694 F.3d 167 (2d Cir 2012).
For a student whose skills are so severely delayed and for whom every increased second of attending or additional word of recognition marks improvement, including a baseline, measurement procedures, evaluation criterion and an evaluation schedule is imperative. Of 37 items, possibly short term objectives, not one has language to indicate how the observer is to measure progress or the baseline that would indicate any improvement. Accordingly, the IEP does not comply with the procedural requirements of the IDEA, resulting in a denial of FAPE for the student. M.H. v. New York City Dep't of Educ., 685 F.3d 217 [2d Cir. 2012]. Counseling
While the BIP included in the student’s IEP makes mention of a counselor supporting the paraprofessional and the student in addressing the student’s issues, Ms. testified that the mention of the counselor was a clerical error. Tr. 135-136. This is supported by the fact that neither the parents nor the school reported that the student was in need of counseling services. Tr. 135-136. The failure to or goals for is not a basis for invalidating the IEP. Substantive Violations
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 parents assert that specialized class in a specialized school with the recommended related services and a behavior management paraprofessional is insufficient to meet the student’s myriad and substantial needs. Ex. A
Ms. recognized that the student ” and was essentially with all domains including . Tr. 31-32. She testified that she recommended a specialized class based on her understanding gained from professional development courses, that the program is tailored specifically to the and would have services in all the student’s areas of need. Tr. 51, 67-68. The special education teacher and classroom paraprofessional would be aware of the student’s needs and know how to deliver the required support. Tr. 116-118. The team thought that the program would give the student an opportunity to be with other students in the classroom, both less and more severely impaired, providing the student “opportunities specifically for modeling and for generalization of skills learned in that classroom.” Tr. 51-52, 53, 98-99. Ms. testified that the student would progress in related services sessions. The behavior management paraprofessional was recommended to implement the BIP with the teacher and make sure that the child is safe. Tr. 45.
Although Ms. was sincerely optimistic about the ability of the program’s ability to meet the needs of the student, the DOE provided no evidence that the student could make progress under the proposed IEP, through Ms testimony or otherwise.
In the face of substantial testimony and reports emphasizing the student’s need for intensive ABA instruction throughout her day, the student’s slow rate of skill acquisition even with ABA instruction, the student’s significant inability to attend and the student’s prior regression in setting, the DOE presented no evidence that the student is capable of learning in a setting. There is no evidence of the student’s ability to model in greater than a setting, or, that if capable of modeling, the student would model the behaviors of the less severe rather than the more severe students. Merely stating that the 6:1:1 setting is designed to address the needs of students with severe autism and the staff will know what to do is insufficient to meet the DOE’s burden to prove that the recommended program would result in progress and not regression.
No explanation was provided to address the parent’s stated concern that the student previously had not been able to learn in a setting or that the student has only been able to make progress with intensive ABA instruction. Although the teacher of the proposed class testified that she provides ABA instruction throughout the day, including two periods of discrete trial instruction, the student’s IEP makes no provision for ABA instruction or for that matter, instruction. The only management needs included are prompting and redirection. Ex. 1-3. The teacher merely stated that upon a review of the student’s IEP, she thought that she could meet the student’s needs. Tr. 257. The DOE cannot improve upon a deficient IEP through subsequent testimony at the impartial hearing. R.E. The DOE failed to provide the student with a program reasonably calculated to meet her individual needs. (See M.H. v. New York City Dep't of Educ., 685 F.3d 217 [2d Cir. 2012],wherein the Court of Appeals upheld a finding that a 6:1:1 class for an autistic student with a documented need for intensive ABA instruction failed to provide a FAPE and also upheld a finding that a class for with significant deficiencies provided FAPE where testimony showed that the student’s needs and deficiencies as outlined in the IEP would be addressed, the teacher of the proposed classroom specifically testified that for the school year in question she had worked with students with similar deficiencies and that those students had progressed toward their IEP goals, and the proposed program provided a “transition program” for students who previously had only ABA instruction.)
For all of the foregoing reasons, the Department of Education has failed to provide the student with a FAPE for the 2011-2012 school year.[13] Appropriateness of the Unilateral Placement
Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]; see A.D. v. N.Y. City Dep't of Educ., 690 F. Supp. 2D 193 (S.D.N.Y. 2010).).
Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, the core issue is whether the private placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364 (citing Rowley, 458 U.S. at 207). A student’s academic progress in a unilateral private placement is relevant, but not dispositive. Mr. and Mrs. A ex rel. D.A., 769 F. Supp. 2d at 418 (2011). “No one factor is ...dispositive” of this issue. Instead, courts must consider “the totality of the circumstances....” Gagliardo, 489 F.3d 105, 112 (quoting Frank G., 459 F.3d at 364-365.) Ultimately, the analysis requires determining whether “[the] unilateral private placement ...provides education instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F. 3d at 115. The parents must present evidence demonstrating that their chosen placement is "'likely to produce progress, not regression.'" Gagliardo, 489 F.3d at 112 (quoting Walczak, 142 F.3d at 130). The parents' choice "should [] be evaluated [by] looking at the program at the time that the parents selected it," C.R. ex rel. W.B., 2005 U.S. Dist. LEXIS 15215, at *59 (E.D.N.Y. June 10, 2005), rather than by considering the student's actual progress in the placement.
The student presents as well as . The student . The student exhibits as well as significant . The student makes such . The student has a provided the student with an appropriate education for the 2011-2012 school year. The record establishes that the staff was well aware of the student’s significant needs and provided intensive ABA instruction. The record demonstrates identified the student’s areas of need, developed goals and objectives for the student, created numerous treatment programs for skills acquisition as well as for recording behaviors, and implemented those programs. Ex. I – QQ.14 The student’s progress and lack thereof were recorded on numerous charts and graphs. The evidence shows that the student’s performance was variable and rate of progress was slow, but that she did make progress in some areas. Id. communicated regularly with the parents about the student’s work at Additionally there was regular communication between the staff and all of the student’s related services providers. The teachers and providers worked collaboratively. The parents also received training. Tr. 1064-1065. Last, Ms testified that she relied on Ms. Nicklas’s information about the student and the work done to craft the DOE’s IEP. 3839, 43, 75.
As the evidence shows, both at the time that the parents decided to place the student for the 2011-2012 school year, and evaluating the evidence retrospectively, was reasonably calculated to provide the student with educational benefit for the 2011-2012 school year. Ex. 2, 7. In fact, Ms. relied on the information provided by to develop the IEP, testifying that she knows the student best and would best be able to know what goals the student should be working on. Tr. 38-39, 75. The CSE believed that the targeted areas on the progress reports were appropriate and carried them over into the student’s IEP for the 2011-2012 school year. Tr. 78-80; Ex. 1-6.
The DOE asserts that exhibits on which relied were full of mistakes and inconsistencies.[15] For example, Ms testified that there was no behavior plan to address non-contextual motor movements for 2011-2012 because the focus was on noncontextual vocalizations. Tr. 341, 638. The DOE pointed out that the program for noncontextual vocalizations did not begin until April 30, 2012, asserting that the student’s behaviors were not being addressed by a plan for the 2011-2012 school year without a good explanation as to why. Ex.J; Tr. 649. However, Ms. testified that was recording data on the frequency of the student’s non-contextual motor movements and addressing them through “redirecting the behavior” because sometimes that can help to reduce the behavior. Tr. 352; Ex. I. Ongoing baseline data was collected for non-contextual vocalizations between July of 2011 and April of 2012 before beginning a treatment plan “to see if over time just through redirection and pausing her, so she was walking and made a noise, and we stopped, and we paused her, or just providing some simple reinforcement when she was quiet, if that would have any effect on the behavior before going into a more aggressive treatment.” Tr. 358; Ex. J-18. Thus the non-contextual motor movements and non-contextual vocalizations were not being ignored. Ms. explained that the simultaneous occurrence of the non- and non-contextual vocalizations was particularly difficult to address. Targeting both behaviors potentially could have
14 There was no Ex. LL entered into the record. resulted in producing aggressive behaviors. Tr. 353. The the parent expressed concern about the student’s which Ms. explained the student engaged in for automatic reinforcement as well as attention. Consequently, decided to implement a “ ” treatment as noted on the graph, on April 30, 2012. Ex. J. Tr. 353-358.
The DOE also noted that Ms. was unable to explain why two graphs supposedly for the same data and same time period did not look the same although she agreed that they should. Compare Ex. I-16, with I-2. Additionally, Ms. stated that it was important for the graphs to record “intervening variables” such as school vacations, this data was missing from some graphs. Tr. 600-601. The data sheets for DRO training for does not list baselines and Ms. was unable to explain why. Tr. 768-769. While the DOE was able to expose some inconsistencies and errors in the recorded data collected by , these deficiencies do not negate the overwhelming evidence that demonstrates that the program had accurately identified the student’s needs, developed programs to address the student’s identified needs, implemented them, and recorded mostly accurate data that informed their work with the student. The student exhibited some progress according to the progress reports, the parent, Ms. the related services providers, and Ms. Ex. F; Ex. G; Tr. 510-520; Tr. 66-67, 1065-1067.
The DOE argues that . The IDEA "expresses a strong preference for children with disabilities to be educated 'to the maximum extent appropriate,' together with their nondisabled peers." Walczak v. Florida Union Free School District, 142 F.3d 119; 122. While parents are not held as strictly to the LRE standard as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S., 231 F.3d at 105; Application of the Board, Appeal Number 08-016. The school had a total of nine students in the entire school and all of them received “intensive one to one ABA.” Tr. 329. While the student had social and emotional deficits, since the student could not even for an extended period of time, and had severe delays in all domains, it was reasonable for the parents to select a program that addressed much more basic and significant needs.
Additionally, the DOE argues was not an appropriate placement because it did not provide the student with the student’s necessary related services. The Court in M.H., analyzing Green v. N.Y.C. Dep't of Educ., No. 07 Civ. 1259 (PKC), 2008 WL 919609, 2008 U.S.Dist. LEXIS 32118 (S.D.N.Y. Mar. 31, 2008), instructed that while it is appropriate for a hearing officer and Court to take into consideration the fact that parents obtained necessary services not offered through the selected school from an outside agency, “it is not necessarily dispositive.” 685 F.3d 217 [2d Cir. 2012]. Under the circumstances of this case, where the student is so and is so slow to make gains, the record supports the finding that the student required a full day of instruction to make progress rather than being pulled out of class to receive her related services. Tr. 1058. In contrast to cases cited by the DOE, although the related services do to some extent enhance the student’s learning ability, there is nothing in the record to suggest that it is necessary that they be provided during the school day in order for the student to receive appropriate benefit from them or the school program. Cf. Werner v. Clarkstown Central School District, 363 F. Supp. 2d 656, 660 (S.D.N.Y. 2005); Department of Education Closing Brief.
Under the totality of the circumstances, BAC was an appropriate unilateral placement for the 2011-2012 school year. Appropriateness of the Related Services
There is no dispute that the student had severe delays in the areas of communication, sensory processing, development and as a result needed and physical therapies during the 2011-2012 school year. DOE Ex. 1,3,4, 6. As discussed above, the parent obtained these services through an outside agency, .
The parent provided substantial evidence to prove that the student received speech and language therapy, occupational therapy and physical therapy for the 2011-2012 school year. Supporting the parents’ position that the services provided were appropriate, the parent introduced progress reports from each of the related services areas that were used to develop the March 25, 2011, IEP. Ex. 3, 4, 6. The related services providers developed the goals and objectives that were incorporated into the March 25, 2011, IEP, and supplied them promptly upon the CSE’s request to the parent. The student’s providers testified about the student’s needs during the 2011-2012 school year and how each was being met. Tr. 392-418, 724-747, 860-886. Last, the parent introduced copies of cancelled checks and provided testimony that she paid for the student’s related services from July 2011-June 2012. Ex. XX, YY, ZZ. All of the documentary evidence was reliable and the testimony of both the providers and parent was credible. Accordingly, the related services provided to the student for the 2011-2012 school year were appropriate. Equitable Considerations
Once a decision has been made in favor of the parents on the first two prongs of the Burlington-Carter test for reimbursement, it must be determined whether equitable considerations support the parent's claims. “[E]quitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363-364 (2d Cir. 2006) (citing School Comm. of Burlington, Mass. v. Dept. of Educ. of Mass., 171 U.S. 359, 374 (1985)). Where a district fails to provide a student with a free and appropriate public education and the private placement is found to be appropriate, “the court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” N.R. ex rel. T.R., 2009 WL 874061 at *6 (March 31, 2009) (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)). A “major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the city throughout the process to ensure that their child receives a FAPE.” (id. quoting Bettinger v. New York Bd. of Educ., 49 IDELR 39 (S.D.N.Y. 2007).
The parent cooperated fully with the CSE by actively participating in the meeting, promptly obtaining the related services goals requested by the CSE, providing the statutorily required 10 day notice, promptly visiting the proposed placement, and promptly writing a letter stating her concerns to the CSE. There is no evidence that the parents’ actions in any way impeded the DOE’s ability to provide the student with a FAPE for the 2011-2012 school year.
Accordingly, the parents’ request for tuition reimbursement and for the student’s related services for the 2011-2012 school year is granted.
ORDER
1. The Department of Education failed to provide the student with a FAPE for the 2011-2012 school year.
2. The Department of Education shall reimburse the parents for the 2011-2012 tuition at for the 2011-2012 school year upon presentation of proper proof of payment. Payment shall be made within thirty days of presentation of proof.
3. The Department of Education shall reimburse the parents for the fees paid for the student’s occupational therapy, physical therapy and for the 2011-2012 school year upon presentation of proper proof of payment. Payment shall be made within thirty days of presentation of proof. Dated: March 12, 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 Amended Impartial hearing Request, 7/17/12, 7 pages B Unilateral Placement Notices, 6/17/11, 3 pages C Letter from Parent, 6/24/11, 4 pages D Attendance Report, 6/7/12, 1 page E Cancelled Checks, 4/29/11 – 2/28/12, 9 pages F Progress Report, 6/29/12, 9 pages G Progress, 10/31/11, 8 pages H Omitted I Non-Contextual Programs, 7/11 – 6/12, 32 pages J Non-Contextual Programs, 7/11 – 6/12, 22 pages K Programs, 7/11 – 6/12, 22 pages L Property Damage Programs, 7/11 – 6/12, 30 pages M Programs, 7/11 – 6/12, 10 pages N Programs, 7/11 – 6/12, 9 pages O Programs, 7/11- 6/12, 10 pages P Programs, 7/11 – 6/12, 12 pages Q Programs, 7/1 – 3/12, 8 pages R Initiates Programs
7//11 – 3/1, 8 pages S Program, 7/11 – 6/12, 8 pages T Programs, 10/11 – 6/12, 8 pages U Programs, 9/11 – 6/12, 9 pages V DRO Training for Programs, 10/11 – 6/12, 9 pages W Programs X Programs, 10/11 – 6/12, 8 pages Y Programs, 7/11 – 6/12, 8 pages Z Programs, 7/11 – 6/12, 8 pages AA Programs, 8/11 – 6/12, 8 pages BB , Words Programs, 7/11- 6/12, 9 pages CC Programs, 7/11 – 6/12, 7 pages DD , 7/1 -5/12, 7 pages EE Programs, 7/11 – 6/12, 9 pages FF Programs, 7/11 – 6/12, 8 pages GG Programs, 7/11 – 6/12, 8 pages HH Programs, 7/11 – 6/12, 8 pages II Programs, 7/11 – 6/12, 11 pages JJ Program Level, 2/12 – 6/12 KK Programs, 8/11 – 4/12, 8 pages LL Omitted MM Programs, 7/11 – 12/11, 6 pages NN Programs, 9/11 – 12/11, 7 pages OO Programs, 8/11- 1/12 PP Programs, 8/11 – 1/12, 6 pages QQ Programs, 10/11 – 1/12, y pages RR Omitted SS Clinic Schedule and Preparation Forms, 7/11 – 6/12, 61 pages TT Enrollment Contract, 4/29/11, 3 pages UU Report, 2/27/12, 7 pages VV Report, 2/22/12, 7 pages WW Progress Report – , 2/18/12, 7 pages XX Therapy Invoices and Checks, 7/11 – 6/12, 28 pages YY Invoices and Checks, 7/11 – 6/12, 34 pages ZZ Invoices and Checks, 7/11 – 6/12, 24 pages
DEPARTMENT OF EDUCATION
1 IEP, dated 3/25/11, 18 pages
2 Student Progress Report, dated 2/28/11, 10 pages 3 OT Progress Report, dated 3/14/11, 3 pages 4 PT Progress Report, dated 3/20/11, 4 pages 5 , OT goals, 5 pages 6 Therapy Progress Notes, dated 1/15/10, 4 pages 7 Treatment Summary, dated 2/23/10, 4 pages 8 FNR, dated 6/14/11, 1 page 9 CSE Minutes, dated 3/25/11, 3 pages
IMPARTIAL HEARING OFFICER
I Email re compliance Date Extension, 11/14/12 IV Email Thread and 2/28/13 Memorandum re compliance Date Extensions,
3/1/13 – 3/7/13, 7 pages
POST-HEARING SUBMISSIONS
1. Department of Education’s Closing Brief, February 18, 2013, 19 pages 2 Parents Closing Memorandum of Law, 2/19/13, 20 pages
Footnotes
[1] Congress amended the Individuals with Disabilities Education Act (“IDEA”) by enacting the Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647, which took effect on July 1, 2005. Judicial and administrative decisions, however, continue to refer to the amended Act as the IDEA. Except where noted, the statutory citations in this Findings of Fact and Decision are to the IDEA as amended by the IDEIA, but as is common practice, the statute is referred to as the IDEA.
[2] The Commissioner of Education has not approved BAC as a school with which school districts may contract to instruct students with disabilities. See 8 NYCRR 200.1[d], 200.7.
[3] Upon notice that the compliance dates and extensions were recalculated by the DOE and NYSED, I sent the parties a memorandum dated February 28, 2013, with details of all of the extensions previously granted as well as the recalculated compliance dates and gave them an opportunity to confirm or correct the information provided. Both parties confirmed the information in the memorandum. IHO Ex. IV.
[4] The IEP mistakenly states that the projected initiation date is September 7, 2011. Tr. 187; Ex. 1. The parties agree that the student requires services on a twelve month basis. Additionally, the parent agreed with the related services mandate.
[5] The parents and the DOE were represented by experienced counsel, neither of whom elected to introduce any private or DOE written evaluations into evidence. The parent’s testimony regarding the results of private evaluations was not challenged or rebutted.
[6] The progress report charts an objective for following two-step instructions which was introduced on January 6, 2011. At that time, the student demonstrated a very limited ability to clap her hands and stand up. Ex. 2-4.
[7] See footnote 4, supra.
[8] The parents made two additional tuition payments by check, one dated November 1, 2011, for $31,500.00 and another dated February 28, 2012, for $31,000.00. Copies of the canceled checks are in the record. Ex. E.
[10] Ms. testified that the IEP was not sent to the parent until July 15, 2012, because there is not enough staff “to make sure that we can get all of it done and sent to the parent.” Tr. 54. The IEP was sent to the placement officer, Ms. in time for her to make a placement recommendation which was dated June 17, 2011. Ex.8.
[13] Based on the findings of fact and conclusions of law with respect to the IEP and recommended program, it is unnecessary to reach a determination regarding the appropriateness of the proposed placement.
[15] The parents introduced 34 exhibits comprised of graphs, charts and data created or recorded staff. Of these, Ms. testified about approximately eleven of the exhibits, including I, J, M, N, O, S, V, HH,II, NN and OO. While all of the skills programs and other exhibits have been reviewed, since the data contained in them requires explanation by an experienced clinician to be thoroughly understood and counsel chose not to have them analyzed on the record, little weight is given to the exhibits the parent introduced but did not have explained by one of the witnesses.