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: April 12, 2013

May 13, 2013

Actual Record Closed Date: June 17, 2013

Hearing Officer: Dora Lassinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 12, 2013

Attorney — Student

Parents

Parents

Speech Language Pathologist — Student

(Via Telephone) — Student

Occupational Therapist (Via Telephone) — Student

ABA (Via Telephone) — Student

DOE

Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 13, 2013

ESQ., Attorney, — Student

Parent/Mother — Student

Parent/Father — Student

Licensed Social Worker (Via Telephone) — Student

Committee on Preschool Education — DOE

Administrator — DOE

The parents of . filed a request for an impartial hearing on January 18, 2013, seeking funding for at the and the . I was designated to hear this matter on January 23, 2013 pursuant to 20 U.S.C. Section 1415(f)(1). after the prior hearing officer recused. An impartial hearing commenced before me on January 30, 2013, on the issue of pendency. ^[1]

A hearing on the merits was held on April 12, 2013 and May 13, 2013. The compliance date was extended on three occasions, due to the extensive testimony and issues. The final compliance date is July 2, 2013. (Impartial Hearing Officer (IHO) Ex. II, III, IV).

On April 12, 2013, the Department of Education (“DOE”) conceded that it was unable to meet its burden of proving the appropriateness of its recommendations. (Tr. pp. 12-13). The DOE did not present any witnesses or documentary evidence.

is a Preschool Child with a Disability. (Par. Ex. B). His classification is not in dispute. (Par. Ex. A). For the 2011-2012 school year, attended the (“CPELC”). On June 6, 2012, the Committee on Pre-School Education (CPSE) recommended placement in a Special Class (12:1:3) with Special Education Itinerant Teacher (SEIT) services five days per week for 60 minute sessions, and related services of SLT, twice per week at school for thirty minutes (once individually and once in a group of three) and twice per week individually, for forty-five minutes, at an Agency. ’s placement at the CPELC was continued. (Par. Ex. B).

Ms. mother, testified that at the start of the 2012-2013 school year, it became apparent that Shane was regressing in his program at the CPELC. (Tr. p. 33). The parents then secured a series of evaluations. On December 10, 2012, the parents wrote to the Committee on Preschool Special Education (“CPSE”) stating that they had shared their evaluations with the CPSE; and their serious concerns. They stated that they intended to withdraw from CPELC as of January 3, 2013 and place him at the combined with related services and Applied Behavior Analysis (ABA) teaching from the . (Par. Ex. F).^[2] In January 2013, Shane began receiving ABA therapy, SLT and OT at (Par. Ex. FF).

Ms. . testified that Shane has responded to the token system used at (Tr. p. 135). He participates in programs at the (in a group setting) during the day, including circle time, and language arts, accompanied by his ABA therapist. (Tr. p. 137). Shane attends for six hours per day, five days per week, receiving 20.25 hours per week of ABA time; 3.75 hours per week of OT; 3.75 hours per week of SLT; and 2.25 hours per week at lunch. (Par. Ex. EE). The parents’ expenses for the therapies provided at the totaled $63,185.00, through April 2013. Their transportation expenses (via taxi) through May 14, 2013 were $900.17. (Par. Ex. FF). The parents are not separately billed for Shane’s participation at the or his lunch period. (Tr. pp. 140-141). They are billed separately for two hours per week of program development and supervision billed at the rate of $100.00 per half hour unit. (Tr. p. 144; Par. Ex. FF, p. 50).^[3]

On November 18, 2012, , a licensed occupational therapist performed an Occupational Therapy (“OT”) evaluation She noted that he was delayed due to decreased core and shoulder girdle strength as well as sensory processing and attention difficulties. She recommended that he receive OT five times per week for forty-five minute sessions with long term goals of improving his adaptive processing, improved skills; improved graphomotor, fine motor and visual perceptual skills and improved selfcare skills. (Par. Ex. Z).

On November 5, 2012, a psychological/developmental evaluation was performed by Dr. and on November 29, 2012, a physical/neurological evaluation was performed by Dr. . As a result of the combined evaluation, ), and . It was recommended that he receive placement in a twelve month program in a highly structured environment with a low student to teacher ratio. It was further recommended that the receive Applied Behavioral Analysis (ABA- 1:1) 7 hours per week, with supervision by a Board Certified Behavior Analyst (BCBA) who spends at least one hour per week working directly with weekly teaching clinics; 1 – 3 hours per week of parent training; SLT 2 x 45 minutes weekly at ; OT five times per week for forty-minute sessions in a sensory gym; and ongoing interdisciplinary meetings. (Par. Ex. J).

On November 29, 2012, , a certified special education teacher and BCBA employed at the performed a classroom observation at He demonstrated little in his peers and their play, difficulty sustaining attention to group instruction and would resist directions at various times throughout the day. She recommended placement in a twelve month program with a small student to teacher ratio; and an ABA therapist to work on implementing behavior strategies, expand play skills and facilitate peer interactions. She also recommended an additional 5-7 hours of ABA to work on areas of concern, as well as parent training within the home; 5 x 45 OT per week; and continuation of speech therapy (Par. Ex. I; Tr. p. 80).

Ms. testified that she ABA and educational programs. (Tr. p. 81). She testified that when first started at the , he had difficulty transitioning between activities, sitting for a few minutes, sustaining eye contact, generalizing to new materials and retaining new skills. His language contextual. He exhibited a lot of problematic behavior, would tantrum or . (Tr. pp. 82-83). Based upon an assessment performed at that time, it was determined that he was not able to learn in a group setting and that he needed a lot of adult prompting and one-to-one intensive learning opportunities. (Tr. p. 84). With his ABA therapist, Shane interacts with other children during circle time at , and for 30 minutes in a language arts group, during lunchtime, and in an activity at the end of the day, for a total of 90 minutes per day. (Tr. pp. 85, 89).

Ms. performs four hours of ABA therapy each week and provides two hour per week of supervision. receives his other ABA hours from two other ABA therapists. (Tr. pp. 86-87, 98-99, 101). She testified that this is an effective level of service. (Tr. p. 93). The school provides weekly updates to the parents, and communicates by telephone with the mother, to provide strategies than can be carried over at home. (Tr. p. 90).

s ABA sessions include discreet trial training to acquire skills; generalizing skills in various classroom; and participation in group activities at the (in a classroom) with an ABA therapist. (Tr. pp. 103-104). She testified that since January 2013, Shane has progressed in his language skills and his attention to a natural environment. He shows more of an interest in peers and imitates them spontaneously. His language is more functional. (Tr. p. 106). has progressed in nine developmental milestones as of April. His therapists will continue to work on his language skills, his visual performance skills, independent play, social skills and well as academic skills. She testified that Shane cannot participate in a classroom situation until there is a continual decrease in his noncompliance and and in his ability to respond to group instructions. (Tr. pp. 94-95).

On December 17, 2012, , a licensed pathologist, employed at the , performed an evaluation . Testing revealed significantly delayed expressive and receptive language skills. She recommended individual speech language therapy 3 x 45, and a social skills group to develop pragmatic language skills and improve peer relations. (Tr. p. 43; Par. Ex. K). After working with him, she determined that he was not ready to work in a group, and that he benefits instead from increased individual sessions (5 x 45). (Tr. p. 59).

At the hearing, Ms. testified that receives five sessions per week of SLT for forty-five minute sessions. She provides four of the sessions, and another licensed pathologist provides the other sessions. (Tr. p. 45). She also participates in team meetings. (Tr. p. 52). She described ’s difficulty with , and . She testified that since January 2013, Shane has improved in his ability to transition and focus. (Tr. p. 48). He is requesting more frequently and has achieved goals in labeling, responding and expressing physical state. (Tr. p. 56).They also work on all areas of language, including receptive, expressive pragmatics and play skills. (Tr. p. 55).

, a licensed Occupational Therapist, employed at the , testified that receives OT five days per week for forty-five minute sessions. Ms. provides OT two days each week, and another therapist works with him on the other three days. Shane receives services in the sensory gym, and receives work in fine motor areas. (Tr. pp. 26-36). She noted his progress in his ability to transition more , hold a writing tool with an approximated tripod, and stand on one foot for four seconds. (Tr. pp. 68-69). During OT sessions, Shane continues to work on modulation of arousal, gross motor goals, strengthening his core, improving his fine and visual motor skills and skills. (Tr. pp. 7071). ’s behavioral programs are carried over in OT, in the form of a token system. (Tr. p 74).

In a report dated March 22, 2013, licensed social worker, a Program Coordinator, Clinical and Research Program at NYU Child Study Center, wrote that she observed in his program at the and noted a significant decrease in Shane’s oppositional behaviors, more available and present for learning. (Par. Ex. BB; Tr. p. 151).^[4] When he was initially, placed at the , the plan was for Shane to spend more time in the classroom; however, once he began attending, it became apparent that he needed more one to one instruction. The school is working to help develop a tolerance for small group instruction. She observed that at , he seemed happier, able to engage, and improved in his spontaneous language. (Tr. pp. 155-156). She testified that benefits from the behavioral strategies and visual supports provided at the Center. (Tr. pp. 158-159).

Ms. . is billed at the rate of $155.00 per 45 minute session of OT and SLT. (Par. Ex. GG). ABA therapy is billed at the rate of $80.00 per unit (30 minutes); $90.00 per unit for supervision; and $100.00 per unit for Program Development. ( Id.)

PARENTS’ POST-HEARING BRIEF

In their post-hearing brief, the parents request that I find that at the (consisting of 20.25 hours per week of direct ABA and shadowing support; 3.75 hours per week of OT and 3.75 hours per week of SLT), 5 combined with his pendency services are an appropriate program. They request reimbursement for their tuition costs at for a twelve month school year, transportation costs and continuation of funding pendency services. (IHO Ex. V, pp. 10-11).

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]. A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board Of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with Florence disabilities does not preclude an award of reimbursement. (Florence School District Four et al. V. Carter by Carter , to 510 US. (1993).

In these proceedings, the DOE conceded that it was unable to meet its burden of proving that it recommended an appropriate educational program . Appropriateness of Parental Placement

To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

I find that the parents demonstrated that the program provided at the and the , which consists of 20.25 hours per week of ABA therapy (which includes to classroom activities at the ), five forty-five minute sessions per week of OT; five forty-five minute sessions per week of SLT; as well two hours per week of program supervision, provides Shane with an appropriate educational program designed to meet his unique needs. Based upon Dr. s report, I also find requires twelve month programming.

While the staff originally anticipated placing in a classroom setting, upon his arrival to the school, it became apparent that due to his intensive behaviors, he required more individualized instruction, with the introduction of group instruction occurring on a gradual basis. The record indicates has benefited from the behavioral approach and visual schedules provided at the . His have decreased and he is more interested in interacting with other children. He has also made progress in his attending and language skills. I find that the level of one-to-one ABA therapy provided at (in addition to two hours per week of program supervision) is reasonably calculated to enable him to make educational progress.

Dr. also recommended, in her report, that the parents receive one to three hours of parent training. Therefore, I find that the parents are entitled to continuation of two hours per week of SEIT service, as parent counseling. See 8 NYCRR 200.6(h)(8).

Shane has benefited from his SLT services at the . Since January 2013, Shane has improved in his ability to transition and focus. He is requesting more frequently and has achieved goals in labeling, responding and expressing physical state. He also works on all areas of language, including receptive, expressive pragmatics and play skills.

Based upon the testimony of Ms. I find that the five sessions per week of SLT which he receives at the is appropriate and enables him to progress. There was no testimony at the hearing regarding his need for continuation of an additional two SLT sessions per week at , as provided in the Order on Pendency.

Shane has also benefited from the OT services at . Shane receives services in the sensory gym, and receives work in fine motor areas. Ms. noted his progress in his ability to transition more flexibly, climb, ascend a staircase, hold a writing tool with an approximated tripod, and stand on one foot .

EQUITABLE CONSIDERATIONS

In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a free and appropriate public education (FAPE). Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007].

Tuition reimbursement may also be reduced or denied, if the parents neither inform the CSE of their disagreement with the proposed placement, including stating their concerns and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. Sec. 1412[a][10][C][iii][I]; Application of the BOARD OF EDUCATION, Appeal No. 08-084. The purpose of the notice requirement is to give the district a meaningful opportunity to minimize its expenses by developing its own IEP that would provide the child with a FAPE within the School District. J.S. and A.G. v. Scarsdale Union Free School District, 111 LRP 73958 (U.S.D.C, S.D.N.Y., 2011) (citing W.M. o/b/o O.M. v .Lakeland Central School District, 783 F. Supp. 2d 497 (U.S.D.C., S.D.N.Y. 2011).

The record indicates that the parents participated in the CPSE review and that Shane attended the program recommended by the CPSE. They shared their private evaluations with the CPSE and provided timely notice of their intention to enroll Shane at the McCarton Center in their letter dated December 10, 2012.

I find that the tuition charged by the McCarton Center is reasonable, taking into account the highly individualized and specialized nature of the instruction provided. I also find that the parents are entitled to be reimbursed for their transportation expenses.

ORDER

Therefore, it is hereby ordered that the DOE shall:

(1) Reimburse the parents for the following services provided by from January 3, 2013 until the end of the 2012-2013 school year, upon presentation of proof of payment thereof.

(a) Up to 20.25 hours per week of direct ABA services;

(b) Up to five forty-five minute sessions per week of SLT;

(c) Up to five forty-five minute sessions per week of OT and

(d) Up to two hours per week of program supervision

(2) Reimburse the parents for their transportation expenses (via taxi) to and from the , from January 3, until the end of the 2012-2013 school year: upon presentation of proof of payment thereof.

(3) Continue to provide the parent with two hours per week of SEIT services, as parent counseling and training.

The parents’ request for continuation of the services ordered in the Order of Pendency is denied, except as indicated above. Dated: July 2, 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

HEARING OFFICER.

I Prehearing conference summary, 3/4/13, 1 pg.

II Extension of compliance date, 3/13/13, 2 pg.

III Case follow up sheet dated April 12th, 2013, one page

IV Case follow up sheet dated May 13th, 2013, one page

V Petitioner’s Post-Hearing Brief, 6/17/13, 12 pp,

PARENT

C Due process response, 2/1/13, 3 pgs. D IEP, 1/11/13, 30 pgs. E Final notice, 6/6/12, 1 pg. F Letter from parent, 12/10/12, 1 pg. G IEP meeting notice, 12/12/12, 2 pgs. H Letter from parent, 12/21/12, 1 pg. I School observation, 11/19/12, 4 pgs. J report, 11/29/12, 13 pgs. K evaluation, 12/17/12, 6 pgs. L Educational and behavior evaluation, 1/17/13, 10 pgs. M Recommendation, 1/11/12, 1 pg. N Recommendation, 1/27/12, Pediatrics East, 1 pg. O Recommendation by Talia Max, undated, 2 pgs. P through Y -- Withdrawn Z O.T. Evaluation dated November 8th, 2012, 21 pages AA Withdrawn -- duplication BB Classroom Observation, dated March 22nd, 2013, six pages CC IEP 2012-2013, 11 pages DD Email between Dr. and Parents, dated December 4th, 2012, one page EE Class Schedule, 2012-2013,undated, one page FF Parent’s Affidavit dated 5/16/13 with attachments, 50 pp. GG Affidavit of dated 5/17/13, 1 p.

Footnotes

[1] Both parties agreed that during the pendency of all due process proceedings, the DOE shall continue to provide Shane with the SEIT services (5 times per week for sixty minute sessions, individually) and Speech/Language Therapy (“SLT”) at Agency (2 times per week for forty-five minutes individually).

[2] On December 20, 2012, the CPSE met to review the Shane’s program. (Par. Ex. G, H), however the parents’ concerns were not resolved. (Tr. p. 40).

[3] In addition to the program provided at the , during the pendency of these proceedings, the parent continued to receive five hours per week of SEIT and two forty-five minute sessions per week of SLT at . (IHO Ex. V, p. 4).

[4] She testified that she had previously at CPELC, in March 2012 and October 2012, and had noted a deterioration in his behavior in that setting, including noncompliance. (Tr. p. 153). In addition, the parents request reimbursement for supervisory ABA hours. (IHO Ex .V, p. 10).