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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: February 20, 2013
Actual Record Closed Date: March 6, 2013
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 20,
2013
Parents
Grandparent — Student
Occupational Therapist (Via Telephone) — Student
District Representative — DOE
Supervisor of (Via Telephone) — DOE
the mother of., requested an impartial hearing on January 3, 2013, for the — DOE
purpose of seeking occupational therapy (“ ”) services for her daughter. (Impartial — DOE
Hearing Officer (IHO) Ex. I). I was designated to hear this matter on January 29, 2013 pursuant to 20 U.S.C. Section 1415(f) (1) after the prior hearing officer recused. An impartial hearing was held on February 20, 2013.
old girl with a classification of . Her classification is not in dispute. (Department of Education (DOE) Ex. 1). In May 2012, when was old, and still student, her mother brought her for private testing at the due to concerns that she and because of her . The Sensory Integration and Praxis Test (SIPT), consisting of 17 subtests, was performed. As a result of the testing, was grouped in the “ group”, indicating lack of motor planning and visual planning. It was noted that although , because of the weakness in her does not give her appropriate feedback of the world around her. It was noted that she displays decreased vestibular processing, leading to poor orientation and interaction with her environment. It was recommended that she receive twice per week for forty-five minute sessions in a sensory rich environment with specialized equipment, with a focus on setting up a “ ”, astronaut training that promotes input, and metronome and therapeutic listening protocol to increase her overall body awareness, attention and concentration at school and at home. (Par. Ex. A).
was referred to the Committee on Special Education (“CSE”) for evaluation by her parent on September 11, 2012. (DOE Ex. 3). Her teacher reported concerns that , that she get when writing, and that she . She reported strengths in reading, oral tasks, knowing letters of the alphabet and rhyming. In a report dated October 24, 2012, her teacher rated her as in reading, as comparable to her classmates in math, morning and dismissal routines, transitions and mealtime; but in writing, physical education and playground/free play. (DOE Ex. 5).
An evaluation was performed on October 24, 2012 by , a Department of Education (“DOE”) employee. Ms. observed during morning social studies work, during snack, and during lunch. She was not observed to fall or step on anyone during the observation. Lunch room personnel said she does not fall in the cafeteria. During a gross motor screening, was able to get around the school building with no concerns, including going up and down stairs. Ms. noted that the teacher had concerns management of classroom tools and materials. She reported does not keep up with classroom writing demands and does not write legibly. On the Beery Test of Visual Motor Integration 5th Edition, scored in the average to above average range on various subtests. Difficulty was noted in ’s ability to move her eyes when tracking numbers.
Ms. concluded that ’s “questionable to be her most significant weakness”. It was reported that none of the concerns noted by the teacher is impacting on her academic performance. It was reported that she may benefit from having a cushion on her chair to help with her posture and arousal. It was recommended that the entire class can benefit from organized movement breaks to improve focus and attention. With respect to her difficulty with writing, Ms. wrote that at the age of five, is not expected to write legibly on any standardized testing. She recommended using a variety of pencil grips and a handwriting program such as Handwriting without Tears. OT was not recommended as it was felt that the student’s needs can be met by the primary education program. She made various recommendations for the home and classroom; and recommended clarification of ’s visual concerns. (DOE Ex. 4).
A ”) evaluation was performed on October 26, 2012. The evaluator noted that school staff reported that frequently falls off her seat and complains of pain in her body, bumps into things, and trips when walking. The parent expressed concern for her safety in the gym and on staircases; and concerns with her ability to follow instructions, fine motor skills, hand eye coordination and body awareness. was observed descending stairs. She has not had reports of falling on the stairs, but was observed sliding her feet down each step in an unsafe manner. It was reported that fully participates in gym, recess, and academics. Physical therapy was recommended, once per month, to make modifications to the environment, give strategies and follow up so that may safely negotiate her classroom environment. (DOE Ex. 7).
, the Supervisor of for Districts 13, 18 and 20 performed additional observations of on December 18, 2012 and January 23, 2013. did not ; however she was ; and when returning to her classroom from the restroom. with her peers during academic activities. No difficulties were noted in her ability to follow rules and routines in the classroom. Nor were any difficulties noted in her fine motor skills. She was able to write, with some reversals, described as age appropriate. No concerns were noted in her attention or peer interaction. In conclusion, it was felt does not present with significant attention, sensory processing, or concerns. (DOE Ex. 6; Tr. pp. 9-10).
At the hearing, Ms. testified that she reviewed both the DOE evaluation and the parent’s private evaluation. (Tr. p. 10). She testified that she also observed on four occasions. (Tr. pp. 11-12). With respect to the parent’s private evaluation, Ms. testified that the school was concerned functioning. (Tr. p. 15). She testified that all of the evaluators agreed that there was a visual component to ’s problems. As a result, the DOE recommended a by a , to determine if there is an . (Tr. pp. 16-17). Ms. also feels there is a safety concern with ’s stairs; and that physical therapy was also recommended. (Tr. p. 18). Nevertheless, Ms. testified has progressed in her writing since her October evaluation; and that her were “phenomenal”. (Tr. p. 18).
While acknowledging handwriting , she testified that this did not warrant occupational therapy, as there was no significant delay within the academic environment. (Tr. p. 20). From the school’s point of view, the concern is not with her handwriting or fine motor skills; but with her falls and gross motor skills, which led to conclude PT would be more appropriate, and that a vision assessment should be performed. (Tr. p. 36).1
With respect to the visual training receives in her outside sessions, Ms. testified that under the direction of an includes a different level of training, which are not trained to perform. (Tr. p. 26). She noted that as her are being adjusted. (Tr. p. 28). She testified that at the recommendation of the supervisor, was given a cushion to assist her so that she does . (Tr. p. 29). She testified that in her opinion, should receive , once per week; but that she does not require at this point. (Tr. pp. 34, 39).
On December 17, 2012, 2012, the Committee on Special Education (“CSE”) met to review ’s program. The Individualized Education Program (IEP) incorporates the results of , and tests abilities. It was noted that her daily skills measure in the well above ; but significant weaknesses were noted in visual discrimination, as it involves short term visual memory. Socially, the IEP indicates that she is adjusting to the new
1
The parent acknowledged that the CSE offered to increase ’s recommendation to once per week, but that she rejected the offer because it was not what she wanted. (Tr. pp. 37-38). Also, she disagreed with the CSE’s proposal to provide half of the sessions on a push-in basis, in the classroom. (Tr. pp. 37, 40). school community and is initiating friendships. (DOE Ex. 8, p. 1) As to her physical development, it was noted that she fully participates in all areas of the school environment, but that she frequently falls off of her chair in class and bumps into furniture. (Id. at 20). was recommended for Physical Therapy once per month for thirty minutes. (DOE Ex. 8, p. 4).
PARENT’S POSITION
Ms. mother, testified that she began the process of evaluated when she was in . (Tr. p .62). She also evaluated , and testified that is that are being increased every three months. (Tr. pp. 20-21, 72-73). She testified that she was referred to a by . (Tr. p. 26). He evaluated and stated that she did not need vision therapy. She testified that nevertheless, ’s includes vision therapy, in the form of “astronaut training” to . (Tr. pp. 27, 73, 74). She agreed to a further optometric evaluation, which was requested by the
CSE. (Tr. p.74).[2]
, an employed at , testified that has been receiving treatment in individual sessions since July 13st. She testified that while she agrees that there is a component to ’s she believes that to address coordination, which is vital to s ability to stabilize her paper and complete handwriting tasks, as well as carry items within the classroom. (Tr. p. 50). She testified that impacts her pencil grip, and that she puts too much force into writing. (Tr. pp. 51-53). She also expressed concern about her skills which impact her ability to navigate through her class. (Tr. p. 52). She recommended that receive OT once per week for 45 minute sessions or 2 times per week for 30 minute sessions. (Tr. p .58).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176 [1982].
The appropriate education mandated by the IDEA does not require states to “maximize the potential of handicapped children”. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998) (citing Rowley). An appropriate public education under IDEA is one that is “likely to produce progress, not regression”. Id. (citing CypressFairbanks Indep. Sch. Dist. v. Michael F., 118 F. 3d 245, 248 (3d Cir. 1997).
There is no dispute has and . The record indicates that the CSE has attempted to address these concerns by services and evaluation. The CSE is also recommending be evaluated for orientation and mobility services. The parent has rejected the CSE’s offer to increase the recommended amount to once per week.
While I find that would be beneficial to , I am unable to determine, on this record, whether also requires in order to make appropriate educational progress. While I credit Ms. is progressing in her handwriting, ’s teacher reported, in October, does not keep up with classroom writing demands. Furthermore, raised concerns about skills. As I am unable to determine, based upon the record, whether requires OT services in order to make appropriate educational progress, I will order that the DOE provide an independent occupational therapy evaluation at public expense, provided that the parent consents in that evaluation. The parties have agreed that the CSE should arrange for a .
For all of the foregoing reasons, it is hereby ordered as follows:
1. By agreement of the parties, the CSE shall arrange for evaluation within 30
days;
2. The CSE shall arrange for an orientation and mobility evaluation , within 30 days, provided that the parent consents to said evaluation;
3. Within 30 days, the CSE shall fund an independent , provided that if the parties cannot mutually agree on an independent evaluator to conduct the evaluation, the CSE shall provide the parents with information about where such independent evaluation may be obtained, as well as criteria applicable to independent evaluations; See Application for Review of a Determination of a Hearing Officer, Appeal No. 12-033.
4. The CSE shall obtain an updated report from s teacher about her progress in keeping up with the demands of the classroom.
5. Within 30 days following the completion of the foregoing evaluations and reports, the CSE shall reconvene with ’s teacher, an Occupational Therapist and a Physical Therapist to develop an appropriate IEP for Dated: March 13, 2013
________________________
DORA LASSINGER, ESQ.
Impartial Hearing Officer DL;mv
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
Parent
A Sensory integration and praxis test, dated 5/22/2012, 8 pages
Department of Education
1 Due Process Request, dated 12/21/12, 2 pages
2 Due Process Response, dated 1/11/13,3 pages
3 SESIS documents list, dated 1/11/13, 2 pages
4 eval, dated 10/24/12, 9 pages
5 teacher report, dated 10/24/12, 4 pages
6 observation form, dated December- January 2013, 2 pages
7 eval, dated 10/26/12, 4 pages
8 IEP, dated 12/17/12, 10 pages
Impartial Hearing Officer
I Prehearing Conference Summary, 1/31/13, 1 page
Footnotes
[2] Both parties agreed that the CSE should perform an evaluation to determine whether requires vision therapy. (Tr. p .76 , the District Representative, stated that following the vision evaluation, the CSE would also consider ’s need for orientation and mobility services. (Tr. p. 78).