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: December 17, 2012

January 7, 2013

Actual Record Closed Date: February 1, 2013

Hearing Officer: JudithT. Kramer, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 17,

2012

Attorney — Student

Mother — Student

Therapist (Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 7, 2013

Attorney — Student

Mother — Student

SETSS Provider — Student

Occupational Therapist (Via Phone) — Student

District Representative — DOE

INTRODUCTION

On December 17, 2012, an impartial hearing was commenced pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged the failure of the Department of Education (DOE) to provide a Free and Appropriate Public Education (FAPE) to Ivar A. (I.A.) (“the student“) for the 2012-2013 school year. The hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 10:00 a.m. and was completed on January 7, 2013.^[1]

A list of exhibits that were admitted into evidence is attached to this decision.

BACKGROUND

On August 2, 2012 the parent filed a request for an impartial hearing. She alleged that the student was denied a FAPE because of procedural flaws in the development of the Individualized Education Program (IEP) and that the services recommendation were inappropriate.

THE PARENT’S POSITION

The parent contends that the DOE failed to provide a FAPE to the child for the 2012-2013 school year. She further contends that the DOE should continue provide the student with ten hours of Special Education Teacher Support Services (SETSS) per week at a rate of $110 per hour. In addition, the DOE should provide home-based services including ( ) and ( ) and that the student’s IEP be modified to reflect those services. The parent also requests that the IEP be modified to reflect that the student will receive 3x30 in school and 3x30 in school and ) 2x30.

THE DOE’S POSITION

The DOE did not present any evidence to show that FAPE was provided. The DOE agreed that the student should receive 2x30 in school.

FINDINGS OF FACT

The student is a who currently attends , a New York State approved school. He also receives individual therapy for seven (7) sixty minutes sessions weekly and group therapy ( for one (1) thirty minute session weekly, of which 5 ½ hours are home. (T.

72) In addition, the student receives individual ) for six hours weekly, of which only 1 ½ hours are provided in school. (T. 112) Physical therapy ( ) for two thirty minute sessions is also provided in school. These services have been provided pursuant to an IEP. (See Ex. C-8) Additionally, he receives 10 hours weekly of special education teacher support services (SETSS), pursuant to an unappealed impartial hearing officer’s decision dated December 13, 2011. (Ex. B-16) The district does not dispute that the above services constitute the student’s “last agreed upon program.” (See Interim Order dated August 1, 2012, and Second Interim Order dated August 6, 2012).

The evidence presented by the parent shows that the services continue to be necessary in order to provide him with a FAPE. The student exhibits expressive, receptive, and pragmatic language delays. (T. 72) , licensed pathologist, provides him with 5 ½ hours weekly at home, in addition to 3 thirty minute sessions he receives in school, to address these needs. (T. 71-72) Receptively, the student following complex .

(T. 72-73) To address these deficits, Ms. works on goals to target comprehension of directions and temporal concepts. (T. 73-74) These concepts are incorporated into everyday tasks and experiences. (T. 74) Goals such as listening to stories of increasing length and complexity, followed by answering questions related to the story, address both the student’s . (T. 75)

The student’s are more as he presents , , . (T. 78) Ms addresses his skills through goals to retell a personal experience, describing sequence pictures, constructing stories related to pictures, and engaging in conversations. (T. 79) Pragmatically, he in social language. (T. 80) He receives instruction in skills such as appropriately greeting people, recognizing and discussing feelings in himself and others, and appropriately engaging in conversation.(T. 80-81)

goals are run in “trials”, where data is monitored and his rate of accuracy is calculated in terms of percentages. (T. 76) He has increased his skills in each of the above areas by at least 20%. Ms further testified that when the student reaches 80% accuracy, the complexity of the goals change, though the same skill area is addressed. (T. 76-77, 80, 83) To ensure continuity of services, Ms. communicates with the student’s therapist at , to ensure that they are working towards the same goals. They provide each other with helpful advice to adequately address his language needs. (T. 86) Family members and community activities are included in therapy session to ensure that skills are generalized to different people and settings. (T. 89) Ms. concluded that the student would not be able to meet his language needs if he were to only receive his for 3 thirty minute sessions weekly . (T. 86) Moreover, when services are interrupted, he experiences regression, in that he requires more prompting, uses less structured sentences, will go back to pointing and single word communication. (T. 87, 92)

With regard to the students needs, he exhibits deficits in the areas of activities of daily living skills, fine motor skills, writing, and gross motor skills. (T. 157) Historically, these skills have been addressed through home-based , for six hour long sessions weekly.

(T. 156-57) However, since June 2012, he has not been receiving the home based OT because his previous therapist, Ms. had scheduling conflicts. (T. 157) He did receive school based for 3 thirty minute sessions weekly began when he began attending .

Developmentally, the student functions on a level in the area of daily living skills, with ing more difficult for him, while during his sessions with Ms. , and required less assistance with these tasks, he continued to exhibits daily living skills deficits at the start of the 2012-2013 school year. (160)

The student presents , or a weakness in his upper body and hands. (T. 162) affects his fine motor and handwriting abilities as well as his endurance for academic and daily living activities. (T. 162-63) To address this need, Ms. worked on exercises to strengthen . (T. 163) At the start of the 2012-2013 school year, the student continued to have fine motor deficits, and required additional instruction to address , accuracy, and quality of his writing. (T. 165)

were also addressed during , where Ms. provided the student with to address course. (T. 166) He such as a , in that he does not feel pain immediately. (T. 167) Ms. implemented a brushing protocol with him, followed by . (T. 169)

As part of her work with the student, Ms. provided weekly feedback and input to the parent regarding follow up activities at least one time weekly. (T. 180) Ms. concluded that at the start of the 2012-2013 school year, the student continued to require

6 hours weekly of OT, as he continues to ”. (T. 172) Each deficit area can be addressed sufficiently only through consistent, daily therapy. (T. 173) When he has not received consistently, such as during scheduled school breaks, his skills in these the point where it would take approximately three to four months to regain lost ground. (T. 176) Since four and a half hours of was discontinued in July, he has experienced regression in related skills, such as a decrease in his handwriting abilities and an behaviors. (T. 207)

Due to across all areas SETSS for ten hours weekly also continue to be appropriate and necessary to provide the student with a FAPE. , a licensed special education teacher who is also a Board Certified Behavior Analyst (BCBA) has been providing these ten hours weekly to him. (T. 186) Ms. utilizes applied behavior analysis (ABA), a research based technique, which has proven to work well with him. (T. 188) In fact, he received instruction using this methodology in school and at home since he was less than two years old. (T. 100, 102, 188, 222)

Ms. addressed the student’s inability to request, difficulty following directions, maintaining a conversation, and delivering messages to others. (T. 190) Through the use of elements of , such as differential reinforcement, shaping, and positive reinforcement, combined with techniques such as social stories, he has increased in his ability to ask appropriate social questions, communicate in longer sentences, and follow two-step directions. (T. 191-92, 195)

While chronologically the student should be in the academically, he functions approximately . In the area of reading, He exhibits comprehension skills at level, while his , at a grade level. (T. 196) Ms addresses his through use of texts, increasing the length of text, multiple choice questions, fill-in questions, vocabulary words, and paraphrasing. (T. 197) The complexity of the reading material is gradually increased. (T.

198) He is also required to write a summary of what he has read. (T. 198) Independent writing skills are further practiced through journal entries. Id.

There are , where the student’s skills range from a level, with mastery of some beginning skills. (T. 197) During SETSS sessions, he works on long division, word problems, operations with fractions and decimals, probability, and more basic skills such as telling and calculating time. (T. 198) Each math skill is paired with a real life skill to provide meaning and promote generalization. (T. 199) Ms. communicates with the staff to maintain consistency in social studies and science topics. (T. 199)

The student also exhibits a , including such as , and . (T. 202) Some of these behaviors can also be , or . Some are a and Other , that he , and , can be . (T. 202) Differential reinforcement strategies are used by Ms. to . (T. 203)

In order to accurately assess whether progress is being made, Ms. records data on all goals. (T. 194) Ms. consistently communicates with the classroom teacher at by telephone as well as by way of the communication book to coordinate services. (T. 191) Ms. communicates consistently with the parent, and also describes and practices various strategies with her. (T. 204) Ms. trains the parent on how to manage the student’s as well. (T. 204) Each skill addressed with him at home and at school is also practiced in the community to ensure that he is generalizing them across settings and people. (T. 205-06)

Ms. concluded that the student continues to require 10 hours weekly of SETSS, to ensure consistency between the home and school environment, as well as to prevent . Historically, when SETSS are not provided for even a short period of time, a noticeable regression occurs where maladaptive behaviors increase, and skills that were mastered or were close to mastery are lost. (T. 209)

CONCLUSIONS OF LAW

Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). FAPE consists of a program that enables a child “to receive ‘meaningful educational benefits’.” R.E. v. N.Y. City Dep’t of Educ., 2011 WL 924895, No. 10 Civ. 3176, at *9 (S.D.N.Y. Mar. 15, 2011) (emphasis added) (citing Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir.1997); rev’d on other grounds, No. 11-1266-cv (2d. Cir. 2012).

A FAPE also includes necessary “related services” as well as “specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including, instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings.” 20 U.S.C. §1401 (29) (A). There are no restrictions or limitations set forth with regard to where services are to be provided, or during what time of day. Related services are defined as “supportive services . . . as may be required to assist a child with a disability to benefit from special education.” 20 U.S.C. §1401 (26). The N.Y.S. Education Department, in its August 1995 field memorandum, recognized that while the needs of most students with disabilities can be met during the course of the school day, there are circumstances where the “extraordinary needs” of the child require special education services beyond the school day. The School Resource Officer (SRO) applied this standard in Application of a Child with a Disability, Appeal No. 97-30, where he concluded that a child who received both school and home-based services continued to require the home-based services, in view of the child’s “relatively severe educational deficit, as well as the fact that he did make significant educational progress while participating in the [district recommended] program and the program provided by his parents.” The SRO has also held that recommendations must be based on the level of services that are appropriate to meet the child’s unique educational needs, rather than the length of the school day. Application of a Child with a Disability, Appeal No. 06-011.

The DOE has the burden of proof to show that it has provided the child with a FAPE. Here, the DOE has not presented any evidence to show that FAPE was provided to the student. It is therefore concluded that the student was denied a FAPE.

The parent argues that since the Burlington/Carter test is not the appropriate standard in a case such as this one, citing to Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-13 (1993); Burlington Sch. Comm. V. Dep’t of Educ., 471 U.S. 359 (1985) and M.N. and H.N. v. New York City Department of Education, 700 F. Supp.2d 356 (“MN”), the IHO must simply continue all existing services without further inquiry. Plaintiff’s counsel reads MN too broadly. While the strict three prong standards of Burlington may apply here because no reimbursement is sought, an IHO still has the ability to craft an appropriate remedy in each particular case where FAPE has been denied.

Hearing officers have broad discretion in fashioning any relief necessary to ensure that the DOE provides a student with a FAPE. Pursuant to the IDEA, courts – and by extension, hearing officers – are authorized to “provide such relief as the court determines is appropriate.” 20 U.S.C. 1415(i)(2)(B)(iii). Moreover, “the court enjoys broad discretion in [fashioning such relief]” and “equitable considerations are relevant” in doing so. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993)) (quoting Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369 (1985)). As the United States Education Department’s Office of Special Education Programs has opined:

[a]lthough Part B [of IDEA] does not address the specific remedies an impartial hearing officer may order upon a finding that a child has been denied FAPE, OSEP’s position is that, based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary, inclusive of compensatory education, to ensure that a child receives the FAPE to which he/she is entitled. Letter to Kohn from Office of Special Education Programs 17 EHLR 522 (1991). See also Sabatini v. Corning-Painted Post Area Sch. Dist., 78 F. Supp. 2d 138, 146 (W.D.N.Y. 1999) (“the fact that a particular form of relief is not expressly provided for by the IDEA does not necessarily preclude a court from awarding such relief, given the court’s broad discretion in determining what relief is appropriate in light of all the equities in the case”).

In this case, the evidence, which is unfuted by the DOE, shows that all three of the student’s therapists credibly testified that they are of the strong opinion that the student should continue to receive to the full extent and manner that these services have been delivered in the past including home-based services. They have opined that the student, who is classified as . The related services, which they deliver, have afforded the student an opportunity to make meaningful progress, which he has made and if they are altered or eliminated, the student will regress. Accordingly, in order for the student to receive a FAPE, it is necessary for all of these services to continue in the same manner and frequency that they have been delivered in the past.

Ordered that that the DOE shall:

1) Continue to provide the student for 7 ½ hours weekly (3x30 to be provided at school); for 6 hours weekly (3x30 at school), and SETSS for 10 hours weekly of home based services at a rate of $110 per hour.

2) issue related service authorizations with on one week of the DOE’s receipt of this decision and order for 5 ½ hours weekly of SL, 4 ½ hours weekly of and 10 hours of SETSS at the rate of $110 per hour (if such RSA is required for SETSS to be delivered at home) for the child to receive such additional services at home. Dated: February 13, 2013

_____________________

JUDITH T. KRAMER, ESQ.

Impartial Hearing Officer JK;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’s Exhibit List

Exhibit Date Title of Document Number of Pages A 6/27/12 Impartial Hearing Request, 4pp

B 12/13/11 Findings of Fact and Decision, 18pp

C 4/5/12 Individualized Education Program, 12pp

D 8/2/12 Amended Impartial Hearing Request, 5pp

E 6/26/12 Related Service Response Form, 1p

F 4/28/11 Individualized Education Program, 24pp

G 3/30/12 Letter from , Social

Worker from to Parent, 1p.

H 6/1/12 Final Notice of Recommendation, 1p.

I 7/2/12 Final Notice of Recommendation , 1p.

J 7/24/12 Final Notice of Recommendation, 1p.

K 6/11/12 Letter from Parent, 1p.

L 6/11/12 Letter from Parent, 1p.

M 6/25/12 Letter from Parent, 2pp

N 5/1/12 Letter from Parent, 1p.

O 7/10/12 Email drafted by Parent, 1p.

P Undated Statement of , 1p.

Q withdrawn

R 3/8/12 Educational Progress Report , 5pp

S 4/2/12 Progress Report, 3pp

T 4/3/12 Therapy Progress Report, 2pp.

Footnotes

[1] On July 30, 2012 a pendency hearing was held and two interim orders were issued dated August 2, 2012 and August 6, 2012 continuing the services which the student has been receiving based upon an IEP and a prior unappealed IHO decision.