New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: September 7, 2012

October 25, 2012

November 27, 2012

December 11, 2012

Actual Record Closed Date: January 25, 2012

Hearing Officer: Linda S. Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 7, 2012

Attorney — Parents

Dr., Chairperson Designee, CSE 4 — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 25, 2012

Attorney — Parents

Parents

Parents

Dr. — Parents

Dr., Chairperson Designee, CSE 4 — DOE

CPSE Administrator (via telephone) — DOE

Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 27, 2012

Attorney — Parents

Parents

Parents

NY Therapy — Parents

Dr., Chairperson Designee, CSE 4 — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 11, 2012

Attorney — Parents

Parents

Parents

SEIT — Parents

Dr, Chairperson Designee, CSE — DOE

CPSE Administrator — DOE

On August 30, 2012, I was designated by the New York City Department of Education (“DOE”) as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York in the matter of and the parents through their attorney initiated this hearing on June 27, 2012. On September 6, 2012, I scheduled this hearing for September 7, 2012. Hearings were held on September 7, 2012, October 25, 2012, November 27, 2012 and December 11, 2012. An Interim Order on Pendency issued by me (Exh. C) on September 13, 2012 and based upon the Individualized Educational Program (“IEP”) dated December 14, 201110, required that from June 27, 2011 until issuance of this decision that the DOE provide . with the following: (1) 20 hours of Special Education Itinerant Teacher (“SEIT”) as well as related services of therapy (“SLT”) twice a week for 45 minutes per session; individual (“ ”) twice a week for 30 minutes per session; individual physical therapy (“ ”) twice a week for 30 minutes per session through a related service authorization (“RSA”) payment rate. The parents seek a Final Order for the following: (1) individual home-based Applied Behavior Analysis (“ABA”) through ; (2) a full-time paraprofessional ; (3) related services recommended by June 1, 2012 IEP of school-based OT for 3 sessions per week for 30 minutes per session; school-based for 3 sessions per week for 30 minutes per session as well as school-based for 3 sessions per week for 45 minutes per session per the recommendation of Dr. and home-based feeding therapy for 2 sessions for 45 minutes per session at the rate of $67.50 provided by per her Affidavit (IHO Exh. VII). per session per the recommendation of Dr. ; (4) special education transportation with temperature-controlled and limited time travel no longer than 30 minutes; (5) funding for the independent educational evaluation (“IEE”) from Dr. in the rate of $1,800; (6) parent training and counseling; (7) the incorporation of the (“BIP”) from into the IEP; and (8) an assistive technology evaluation (IHO VI at 19).

The district representative stipulated that . required a full-time crisis paraprofessional and special education transportation with temperature-controlled and limited time travel no longer than 30 minutes (Tr. at 398;400). The parties moved to extend the compliance date in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and the required documentation provided to the parties (Tr. at 300; 405; IHO Exhs. 1-V). The current record close date is January 25, 2012 and the decision due date is February 8, 2012. Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

BACKGROUND

. is a with a history of and was diagnosed with ”) in August 2010 (Exh. 4 at1; Tr. at 279). She was at the age of 18 months (Exh. E at 1) and received services through ”) from until the age of 3 when she fell in the jurisdiction of the Committee on Preschool Special Education (“CPSE”) and received services through (Exh. A at 5). On December 14, 2011, the CPSE met and developed an initial IEP that classified . as a preschool student with a disability. The CPSE review team recommended . receive individual SEIT services for 20 hours through New York Therapy and related services through of individual for 2 sessions per week for 45 minutes per session, individual OT twice a week for 30 minutes per session and individual PT for 2 sessions per week for 30 minutes per session for 12 months (Exhs. 1 at 1; 2)

On April 30, 2012, the student progress summery from the ABA provider indicated that (Exh. 3 at 1,3). On May 1, 2012, the SEIT provider recommended a continuation of SEIT therapy at home in addition to as well as a school setting in a small class ratio with an aide to address (Exh. 3 at 8). The SEIT provider noted her , and noted that or her mother or the couch cushions (Exh. 3 at 5). The SEIT provider noted that and would , and (Exh. 3 at 6). The SEIT provider further noted increased due to the when trying to communicate her needs (Exh. 3 at 7). The SEIT provider stressed that was (Exh. 3 at 8).

On June 1, 2012 the CPSE met and again classified . as a preschool student with a disability. The CPSE review team recommended . be placed in a center-based program for 5 hours per day for 5 days per week in a special class with a staffing ratio of and receive center-based related services of individual for 3 sessions per week for 30 minutes a week; for 30 sessions per week for 30 minutes per session and for 3 session per week for 30 minutes per session (Exh. 4 at 13). A placement was formally offered to the parents on June 1, 2012 for for the 2012-2013 school year (Exh 7). At the end of August 2012, the parent attended a resolution meeting and the parent was told his daughter could not receive the home-based services of ABA and only school-based services could be offered (Tr. at 390). The parent further stated that he reiterated need for ABA instruction at home and need for a full-time paraprofessional for school for safety reasons and his request was denied (Tr. at 391).

THE DISTRICT’S CASE

The DOE presented the testimony of , CPSE Administrator and , teacher of .’s class. Ms. , a NY licensed and certified supervisor administrator employed by the DOE for 22 years, testified she participated in the June 1, 2012 IEP and that the meeting lasted 2 hours (Tr. at 38; 52). She recalled that the team had before it various progress reports and the SEIT provider participated by telephone and described the academic functioning levels as delayed in communication, academics, social and self-help skills (Tr. at 40).

Ms. explained that the rationale for not providing after school services was fact that the center-based program met .’s needs and (Tr. at 43). Ms. stated that she observed . on June 1, 2012 and developed the (“BIP”) from the information contained in the reports of the SEIT and related service providers (Tr. at 63). She stated that she did not consider necessary, but because there was a request for a , she created a (Exh. 5) for . (Tr. at 65). She further stated that did not conduct a (“ ”) prior to creating the (Tr. at 68). She recalled a request from the parents for an assistive technology evaluation, but because the parents failed to return the application, an assistive technology was never conducted (Tr. at 73).

Ms. a holder of a Master’s degree in special education and a NY licensed and certified regular education teacher for pre-K to 12 and special education teacher for to 12, employed by the DOE for 13 years, testified that she was .’s head teacher (Tr. at 82). She stated that the staffing ratio in her class was 8:1:2 or 8 children and a head teacher and 2 paraprofessionals (Tr. at 83; 133).She noted that 4 children were classified as and 2 children were classified as (Tr. at 113). She explained that . had problems transitioning and required hand-over-hand help to transition (Tr. at 89). She stated that . had and required assistant with her daily living skills (Tr. at 94). She explained that ABA was incorporated throughout the day and the TEACCH methodology was used for transitions (Tr. at 99). She further explained that ABA consisted on discrete trial teaching and was provided 100 percent during the day (Tr. at 84). She stated that . required instruction to generalize material (Tr. at 127). She further stated that she did not receive .’s IEP or BIP (Tr. at 133). She noted that 10 to 15 minutes of the day was devoted to daily living skills and 20 minutes of the day was devoted to social skills (Tr. at 137).

THE PARENTS’ CASE

The parents’ case as presented in the testimony of the parents, Dr. , Ms .’s SEIT, and , clinical coordinator . The parents maintained that . required a highly structured and consistent program with intensive teaching, repetitive trials and reinforcement to learn and achieve progress and required both the home-based ABA services in addition to the school-based program to progress (Exh. A; Tr. at 148;175). Dr. testified that she completed a evaluation in July 2012. Dr. strongly recommended continuation of the 20 hours of at-home ABA services in a highly structured format Tr. at

175) Dr. .’s functioning levels in the areas of communication and noted that . had words, but did not know how to use her word to communicate her needs and she has echolalia (Tr. at 160). She found that and liked to (Tr. at 162). She described in items and her (Tr. at 165). She observed that and because she could not communicate and had (Tr. at 164;171). She further recommended an increase to cultivate and social skills and she recommended a in the classroom to address safety concerns (Tr. at 179). She disagreed that the TEACCH method was appropriate as . had so little exposure to school (Tr. at 188).

Ms. , certified in special and regular education from early childhood to second grade and employed as a SEIT from to work with children on the since 2002, testified that she was .’s SEIT since May 2012 to June 2012 and September 2012 to date for 10 to 14 hours per week (Tr. at 206;209). She stated that she provided ABA as well as SEIT services (Tr. at 209). She described . progressed from a refusal to to the floor to performing and and receptively for herself and other teachers (Tr. at 213). She explained that through ABA services . decreased her aggressive behavior and increased communication as indicated in her ABA log notes (Exh. 0) and stressed that by providing positive reinforcers . was able to improve in academics and decrease negative behaviors of biting and (Tr. at 217;221). She further explained that she worked with ’s mother to improve progressed in her (Tr. at 224). She stressed that through ABA she was able to increase .’s ability to attend and not become prompt dependent (Tr. at 226-227). She explained . regressed in July and August 2012 without home-based ABA (Tr. at 230). She stressed the benefits of discrete trial teaching and the importance of responding accurately to successfully teach . (Tr. at 236). She explained that data was collected daily and submitted graphs (Exh P) to demonstrate .’s ability to verbally respond without a prompt (Tr. at 245). She further explained that the color coded graphs evidenced progressed in her ability to complete a multitude of steps in sequence (Tr. at 248; 252). She noted that since September 2012, she provided 10 hours of ABA per week and her colleague, Mr. , a board-certified behavior analyst with a Master’s degree in special education, provided 10 hours of ABA per week (Tr. at 260;273). She opined that could benefit from additional ABA; however, at a minimum, . required 20 hours of ABA per week to maintain (Tr. at 261).

The parent testified that her daughter was not able to communicate or to relate to other people, other children or other adults and would because of her communicate (Tr. at 277). She stated that her daughter was and was not able to as other children (Id.). She further stated that her daughter was (Exh. HH) (Tr. at 283). She recalled that her daughter was at 18 months and received services of through for sessions of SEIT, (Tr. at 285;293) She further recalled that home-based ABA services were provided in September 2010 for 20 hours per week and was provided twice a week and was provided twice a week (Tr. at 288). She recalled that these services continued until December 2010 when her daughter fell into the jurisdiction of CPSE (Tr. at 289). She stated that provided SEIT at home and provided provided center-based until June 2012 (Tr. at 297). She explained that she was involved in the home-based services and that her daughter progressed in communication and feeding (Tr. at 301). She opined that her daughter required home-based services in addition to her school program because the school did not use the ABA (Tr. at 307). She stated that she would not sign the June 1, 2012 IEP because she knew her daughter required home-based services and she brought her daughter to Dr. for an evaluation to obtain further documentation of her daughter’s needs (Tr. at 314). She stated that she told CSE that Dr. recommended continuation of current SEIT and a safety paraprofessional to ensure that items (Tr. at 317). She opined that her daughter progressed with 20 hours of ABA at home with and initiating some words (Tr. at 321). She stated her daughter regressed during Hurricane Sandy when she did not receive home-based services; however, with ABA services her daughter was able to learn letters, shapes and puzzles (Tr. at 327).

Ms. Clinical Coordinator at , testified that she had a dual Master’s degree in special education and elementary education and was licensed in special education from birth through sixth grade (Tr. at 339). She stated that she provide ABA instruction for 16 years (Tr. at 340). She explained that provided SEIT services at home and at school through licensed and certified special education teachers with Master’s degrees in special education (Tr. at 343;346). She stated that Ms. was s board certified ABA provider (Tr. at 347). She further stated that she worked with BCBA consultants who assist in implementing the ABA programs (Tr. at 350). She opined that school-based services were required for social interaction and ABA home instruction was required for . to learn as ABA broke down instruction to learn in a discrete fashion (Tr. at 352).

The parent stated that he participated in the June 1, 2012 IEP and he requested a continuation of the home-based services in addition to the school placement at and he provided to Ms. the progress reports recommending the continuation of home-based services and a crisis paraprofessional (Tr. at 374); but his request was denied (Tr. at 377;381). He stated that there was no discussion of a BIP (Tr. at 378).

FINDINGS OF FACT AND DECISION

The District must establish that it appropriately ascertained the child’s educational needs and prepared an IEP in accordance with the procedural and substantive requirements of federal and New York State Regulations. The parent asserted that the school district failed to offer a FAPE in that the CSE failed to offer an appropriate program for the 2011-2012 school year. The State Review Officer (SRO) has ruled on the issue of the type of procedural violation that would render an IEP invalid. The State Review Officer (SRO) has ruled on the issue of the type of procedural violation that would render an IEP invalid. In Appeal No. 09-096, the SRO ruled that ”While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).” The SRO in 06080 also ruled the Second Circuit held that “a school district fulfills its obligations under the IDEA if it provides an IEP that is “likely to produce progress, not regression” and if the student’s IEP affords him an opportunity greater than mere “trivial” advancement. Cerra v. Pawling CSD, 427 F.3d 186, 195, quoting Walczak v. Florida UFSD, 142 F.3d 119 130 [2d Cir. 1998] and that the student’s IEP is reasonably calculated to enable the student to receive educational benefits. Bd. Of Educ. v. Rowley, 485 U.S. 176, 206-207 [1982] Cerra v. Pawling CSD, 427 F. 3d 186, 192 [2d Cir. 2005] and the IEP is likely to provide some “meaningful” benefit to the student. Mrs. B. v. Milford BOE, 103 F.3d 1114, 1120 (2d Cir. 1997).” The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

The parents claim that the IEP is substantively and procedurally defective. I find the DOE’s claims that its program is appropriate without the home program was not supported by the district witnesses or the district’s evidence. I credit the head teacher’s testimony that . required instruction to generalize and transition (Tr. at 127), and that her 8 students would be broken into a small group to receive 20 minutes of TEACCH during instruction (Tr. at 121). I further credit her testimony that data was collected by the paraprofessionals to track progress on goals. It was unclear how much ABA was provided in school and whether the ABA was given by trained personnel. I note Ms. Toro indicated that ABA techniques was incorporated throughout the day; however, she did not explain how ABA was provided throughout the day (Tr. at 84). I find credible and persuasive the testimony of the SEIT and the coordinator concerning the .’s deficits and needs, including her need for after school repetition to learn new skills at school and to prevent regression. I find the June 1, 2012 CSE team was aware of the need for ABA by the progress reports from the related service providers (Exhs. G at 1; H at 3; I at 1) and the deficits in and in terms of (Exh. G at 2-5; 3 at 6) and the failure to provide appropriate resulted in a lack of FAPE. The parents’ attorney asserted that the DOE failed to provide . a FAPE for 2012-2013 because she required a more intense program than the DOE was willing to provide (Tr. at 149; IHO Exh. VI at 4). I conclude that the evidence presented by the district does not establish that its program would provide the instruction required . and that the IEP is substantively defective. (see P.K. v. New York City Dep’t of Educ., 819 F. Supp. 2d 90, 57 IDELR ¶ 139 (E.D.N.Y. 2011. I further the incident report (Exh. GG) dated October 24, 2012 detailing shows that the IEP is not reasonably calculated to enable the student to receive educational benefit. Accordingly, I find that the DOE failed to provide a FAPE for the 2012-2013.

Because I find the IEP is substantively defective and FAPE was not provided to for the 2012-2013 school year I could end my inquiry; however, I note the parents made several claims of procedural defects.

The parents’ attorney argued that the IEP team ignored the parents concerns for continued at-home instruction, an increase in related services, a full-time paraprofessional, special transportation and an assistive technology evaluation (IHO Exh. VI at 6). The parents’ attorney further argued that the IEP team did not conduct the necessary assessments including a FBA or a BIP as required under 8 N.Y.C.R.R. § 200.4[b][1][v] as her behavior impeded her learning and no assessment was conducted to ascertain the that contribute to her disability. The team was required to conduct the to manage the problem behaviors as required under 8 N.Y.C.R.R. § 200.22[b] (IHO Exh.

VI. at 9). Ms. testified that she created a from various documents, but it was undisputed that no was developed pursuant to state and federal law. The Second Circuit differentiated between serious ( ) and minor (parent counseling) procedural violations based on state standards for FAPE analysis and found the “failure to will not always rise to the level of a denial of FAPE, but when an is not conducted, the court must take to care to ensure that the IEP adequately addresses the child’s problem behaviors.” (R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 59 IDELR ¶ 241 (2d Cir. 2012.) I find the June 1, 2012 CSE team was aware of the dangerous behavior exhibited by . as documented by the SEIT progress report of , . I find IEP failed to adequately address outlined in the SEIT progress report of May 2012 (Exh. L at 2). I conclude the IEP did not adequately address the student’s behaviors and in these circumstances, I find the lack of a FBA was a denial of FAPE.

The parent’s attorney further asserted that the IEP team did not provide for mandatory parent counseling and training to promote generalization of skills as required under 8 N.Y.C.R.R. § 200.13[d] and that the lack of parent and training was a denial of FAPE. It is undisputed that no was specified on the IEP. Although, this is a minor violation, the lack of IEP specification of provides support for a conclusion that FAPE was not provided due to procedural violations. (see R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 59 IDELR ¶ 241 (2d Cir. 2012; see also P.K. v. New York City Dep’t of Educ., 819 F. Supp. 2d 90, 57 IDELR ¶ 139 (E.D.N.Y. 2011).

The parents’ attorney asserted that the June 1, 2012 IEP team was improperly constituted and was procedurally invalid (IHO Exh. VI at 5). The parents’ attorney argued that Ms. was never instructed children . The parents’ attorney asserted that Ms. was not a qualified district representative as required by 8 N.Y.C.R.R. § 200.3[a][2] as she never instructed children with autism and had no experience with ABA instruction and lacked any knowledge regarding the availability of preschool special education programs (Id.). I find that Ms. provided 13 pages of her licenses (Exh. 9) including a permanent special education license as well as a permanent education administrator special education program specialist (Tr. at 359-361) and she possessed sufficient qualifications to serve as district representative.

The parent’s attorney maintained that the IEP team failed to conduct an assistive technology evaluation as required under 20 U.S.C. § 1401[1,2] to determine whether could benefit from an assistive technology device in light of her communication skills (IHO Exh. VI at 10). It was uncontested that CSE was aware of the request for an assistive technology evaluation at the June 1, 2012 IEP meeting; however, no evaluation was conducted because the parents did not appropriately request an assistive technology evaluation. I do not find the failure to conduct an assistive technology evaluation resulted in a lack of FAPE; however, I do find the parents were entitled to an assistive technology evaluation.

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; 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]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR ¶ 234 (App. Div. 2011.)

I find the parents established that they expressed the need for ’s continued need for home-based ABA instruction, increased related services, a full-time paraprofessional, and an assistive technology evaluation at the June 1, 2012 IEP and the team’s decision to deny home-based services was made without consideration of the SEIT progress report that recommended the SEIT therapy at home and an aide (Exh. 3 at 8). I find the CSE team was aware of the dangerous behavior exhibited . as documented by the SEIT progress report and ignored the parents’ request which significantly impeded the parents’ opportunity to participate in the decision making process. I further find the incident report (Exh. GG) dated October 24, 2012, documented her need for a paraprofessional as she bumped her head. I find the decision to deny home-based ABA services and a paraprofessional caused a deprivation of educational benefits. Accordingly, I find FAPE was not provided to . during the 2012-2013 school year. I find the parents established the need for extensive discrete trail ABA and provided substantial evidence of data collection and progress report by the ABA providers (Exhs N – EE) and documented her need at home in conjunction with the school program. I note that the Second Circuit of New York ruled in M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 59 IDELR ¶ 62 (2d Cir. 2012)and upheld $80,000 tuition reimbursement for kindergarten child with autism based on finding that child needed extensive discrete-trial ABA services, which district’s proposed placement did not provide.

The Southern District ruled on the whether the Burlington/Carter analysis applied in a case procedurally analogous to this instant matter. M.N. and H.N. v. New York City Department of Education, 700 F.Supp.2d 356, 368 (S.D.N.Y). I find that the Burlington/Carter analysis is not necessary when the relief sought is not funding for a unilateral placement, but rather the continuation of related services and SEIT services; however, I note that the parents provided substantial evident to establish that the at-home SEITs were qualified to provide appropriate services of ABA to meet her unique needs and the SLT provider was qualified to provide feed therapy. I find Ms. has extensive credentials in special education and ABA including experience teaching children aged 3 to 5 on the . Having reviewed documentary evidence submitted by the parent and the unrebutted and credible testimony of the witnesses of the parent, I find the record supports a finding that . required afterschool services of ABA services and increased related services of and feeding therapy after school and the ABA services and related services were appropriate for Accordingly, I find the parents are entitled to 20 hours of home-based ABA per week and 3 sessions of for 45 minutes per session per week and 2 sessions of feeding therapy for 45 minutes per session per week after-school.

The parents’ attorney maintained that the parents were entitled to an independent evaluation (“IEE”) at public expense in light of their disagreement with the evaluations, findings and recommendations that the CPSE relied upon to create .’s IEP (IHO Exh. VI at 17). The parents communicated their disagreement with the CPSE and noted the CPSE that they were seeking funding for the IEE (Tr. at 387-388;Exh. A at 10). Not only did the district not file a due process complaint to defend its evaluations and conclusions as required by 34 C.F.R. § 300.502 and 8 N.Y.C.R.R § 200.5[g], I find the DOE failed to produce evaluations sufficiently comprehensive to identify all the student’s special education needs and to ascertain the factors which contribute to the suspected disability. 8 N.Y.C.R.R. § 200.4(b)(6)(xi), § 200.4(b)(1)(v) § 200.4(b)(5)(iii). See, 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. 300.305(c); See also, A.D. v. Ed. Of Educ., 690 F.Supp.2d 193 (S.D.N.Y. 2010). I further find that the DOE failed to assess . in all her areas of disability.

The parents have a right to an IEE at public expense when they disagree with the evaluation performed by the school district. 34 C.F.R. § 502 (b)(1); 8 NYCRR 200.5(g)(1). When a parent notifies a district that they disagree with an evaluation and seek an independent educational evaluation at public expense, it is the district’s burden to bring an impartial hearing defending the initial evaluation. 34 C.F.R. § 502 (b)(2)(i); 8 NYCRR 200.5(g)(1)(v). I find the district did not file an impartial hearing request defending their failure to evaluate or demonstrate that the private evaluation obtained by the parent did not agency criteria. 34 C.F.R. § 502 (b)(2)(i); 8 NYCRR 200.5(g)(1)(v). Based on the foregoing, I find the parents are entitled to reimbursement of Dr. evaluation at public expense in amount to $1800.

ORDER

Therefore, it is hereby ordered that the Dept. of Education shall provide with the following: (1) the home program for 20 hours per week; (2) a full-time paraprofessional ; (3) related services recommended by June 1, 2012 IEP of school-based for 3 sessions per week for 30 minutes per session; school-based for 3 sessions per week for 30 minutes per session as well as school-based for 3 sessions per week for 45 minutes per session per the recommendation of Dr. and home-based feeding therapy for 2 sessions for 45 minutes per session at the rate of $67.50 per session per the recommendation of Dr. ; (4) special education transportation with temperature-controlled and limited time travel no longer than 30 minutes; (5) funding for the independent educational evaluation (“IEE”) from Dr. in the rate of $1,800; (6) parent training and (7) the incorporation of the from This matter is remanded to CSE to conduct an assistive technology evaluation and incorporate the from Dated: February 6, 2013

_______________________

LINDA S. AGOSTON, ESQ.

Impartial Hearing Officer

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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 ON SEPTEMBER 7, 2012

A Due Process Request, 6/27/12, 11 pp. Parents

B IEP,12/14/11, 23 pp. Parents

I Decision on Extension, 9/7/12, 1p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 25, 2012

A Due Process Request, 6/27/12, 11 pp. Parents

B IEP, 12/14/12, 19 pp. Parents

C Pendency Order, 9/13/12, 4 pp. Parents

D Due Process Response, 7/11/12, 3 pp. Parents

E Evaluation, 7/12, 11 pp. Parents

1 CPSE IEP, 12/14/11, 19 pp. District

2 FNR, 12/14/11, 1 p. District

3 Progress Report, 4/30/12, 8 pp. District

4 CPSE IEP, 6/1/12, 18 pp. District

5 BIP, 7/20/12, 2 pp. District

6 Letter, 6/1/12, 1 p. District

7 FNR, 6/1/12, 1 p. District

8 BOE Approval and Authorization, 12/14/11, 1 p. District

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 27, 2012

F Letter to CPSE, 9/13/12, 8 pp. Parents

G Evaluation, 9/20/11, 5 pp. Parents

H , OT Assessment, 9/22/11, 3 pp. Parents

I PT Evaluation, 9/24/11, 4 pp. Parents

J , 6/14/12, 4 pp. Parents

K Progress Report, 5/12, 3 pp. Parents

L Progress Report, 5/7/12, 5 pp. Parents

M Progress Report, 8/13/12, 1 p. Parents

N Progress Report, 8/15/12, 7 pp. Parents

O SEIT/ABA Log Notes, 5/7/12 to 5/31/12, 2 pp. Parents

P June Graphs, June 2012, 8 pp. Parents

Q SEIT Log, 6/1/12 - 6/27/12, 2 pp. Parents

R Data Sheet, June 2012, 1 p. Parents

S Short-Term Objectives/Antecedents, 2012, 1 p. Parents

T SEIT/ABA Log Notes, 6/1/12 - 6/27/12, 2 pp. Parents

U ABA Log Notes, 7/23/12 - 7/31/12, 2 pp. Parents

V ABA Data Summary, 7/23/12 - 7/31/12, 2 pp. Parents

W ABA Log Notes, 7/2/12 - 7/31/12, 2 pp. Parents

X July 2012 Black and White Graphs, July 2012, 13 pp. Parents

Y SEIT Log Notes, 7/2/12 - 7/16/12, 1 p. Parents

Z Data Sheet, 7/2/12 - 7/16/12, 1 p. Parents

AA ABA Log Notes, 8/1/12 - 8/9/12, 1 p. Parents

BB Data Summary, 8/1/12 - 8/9/12, 1 p. Parents

CC ABA Log Notes, 8/1/12 - 8/10/12 1 p. Parents

DD August 2012 Graphs, August 2012, 8 pp. Parents

EE Documents of ABA Instruction, 1/12-5/12, 48 pp. Parents

FF Special Transportation & Accommodations, 5/30/12-5/31/12, 2pp. Parents

GG Incident Report Regarding School Injury, 10/24/12, 1 p. Parents

HH Letter from Dr. , 11/21/12, 1 p. Parents

II Program Description, undated, 4 pp. Parents

I Decision on Extension, 9/7/12, 1 p. IHO

II Decision on Extension, 9/14/12, 1p. IHO

III Decision on Extension, 11/9/12, 1p. IHO

IV Decision on Extension, 11/27/12, 1p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 11, 2012

X July 2012 Colored Coded Graphs, 12 pp. Parents

JJ Progress Report by , 11/15/12, 1 p. Parents

KK Proof of Payment for Dr. , 08/06/12, 2 pp. Parents

LL Additional Proof of Payment, 09/06/12, 2 pp. Parents

MM Incident Report, 12/06/12, 1 p. Parents

9 Licenses held by , various, 13 pp. District

V Decision on Extension, 12/11/12, 1p. IHO

POST HEARING SUBMISSIONS

VI ’s Closing Brief, 1/25/12, 10 pp. IHO

VII Affidavit of , 1/23/12, 2 pp. IHO