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 7, 2014

April 25, 2014

Actual Record Closed Date: May 9, 2014

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 7, 2014

For the Student:

, PARENT

For the Department of Education:

, CSE- DISTRICT REPRESENTATIVE (VIA TELEPHONE)

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 25, 2014

For the Student:

, PARENT

For the Department of Education:

, DOE ATTORNEY

INTRODUCTION

On February 26, 2014, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

On April 07, 2014 a prehearing conference was conducted and hearing was scheduled for April 25, 2014. Clarification was provided by the parent that the hearing relates to the parent allegation that the school is not properly addressing the student’s behavioral needs. Parent seeks services to address student behavior that include speech, occupational therapy and a paraprofessional. (T 4-5 & 8, Ex A)

On April 25, 2014, a hearing was conducted. Appended to the record are lists of persons in attendance and the documents received in evidence.

BACKGROUND

This matter was instituted by the impartial hearing request dated February 25,

2014. (Ex A)

Request includes the following information: student has been attending an ungraded since summer of 2013, after three years of public schooling, is making small progress and has taken a toll on his family. (T 26, Ex A)

Lately, the student requires on his bus, without whom the student cannot ride the bus. Student requires constant redirection through the help of an aid or professional in the . There is in the area of daily living and . It is without him . (Ex A)

Parent seeks after school instruction in collaboration with the school, in every area, including speech, OT and Applied Behavior Analysis (ABA) to (Ex A)

Most recent Individualized Education Plan (IEP), dated 03/25/2014, identifies the student as with a recommends a Special class in an approved Non Public Day School, related services of Therapy, a twelve month program, special transportation and Instructional/Functional Levels of Pre-Kindergarten for Reading and Math. (Ex D 1, D 9, D 10, & D 12)

Said IEP was completed after the filing of the hearing request, and parent raised her concerns at the meeting, and mentioned her filing for an impartial hearing. (T 30)

PARENT POSITION

( ), parent, presented her case.

Referring to the current March 25, 2014 IEP parent state it is the: “Same IEP from last year. This IEP has not been modified. Basically things are written the same. My son is not progressing. I went to the IEP meeting. And I also mentioned about the hearing. But this IEP was not modified. The services they intend to give him, he is definitely not progressing, especially behavior. The behavior is maladaptive behavior.” (T 25-26, Ex D)

Parent does not disagree with the services contained in the IEP and provided at

AMAC. However, parent contends: “He cannot carry the skills when he's not in school…He's been in the public school for for one year. And there's no change in social skills, nothing.” (T 32-33)

Student was developing normally until about six months of age and started to receive services at twenty months of age, via early intervention. Student condition impacted his sister, and the family tried to work around his behavior. Family had moved upstate and then returned having realized the student needs a lot of help. Student and had received ABA. Some change was and someone was coming to the home to deliver

ABA. (T 34-36)

A drastic difference was seen when the student was receiving the home ABA service. “I could take him out in social settings…I went to the Board and I said listen, this boy needs some help. But he's preschool-aged. They gave me somebody to come to ABA two hours a day. And that made a big difference, like it made a big difference. And I was trying to mimic what the person was doing. Now he's gotten older. He started public school. We tried public school for three years…this school tried their best. And this was a good school. But without service at home, because (student) whatever he learns…there's been a lot of potential. But without help, you're looking at a huge liability on society and family and my child.” (T 36)

Parent provides letter from neurologist indicating information regarding the student, including a , no to control behavior. Letter notes the when her received home ABA services. Student has made slight but has Goals achieved in school do not carry over to home life. Presently it is impossible to take the student out in public due to . Student has a one-to-one para on the bus, without whom he could not ride the bus. Doctor recommends home based services in collaboration with the school, including ABA behavioral therapy, OT to reduce therapy, in addition to school based services. (T 37, Ex B 1)

Parent had raised her concerns at the last IEP meeting, of March 25, 2014. (T 37)

IEP does not note any parent concerns in the area of social development. (Ex D 2)

Student is not . (T 37)

IEP indicates a out bursts, will . (Ex D 3)

Parent states that the BIP has never been implemented. (T 40)

Behaviors at home are also at school. This . Parent only saw these behaviors addressed when the student received the home ABA service. Parent has tried some of the ABA but does not know “how to implement”. (T 40-41)

Student is getting services at school and the staff is aware of his behaviors. “They address them at school. And then when we get home, Because whatever you learn at school, you're supposed to carry over in a social setting…And that's a problem. If he only can behave at school, then that's a problem.” (T 42)

During pre school, when he was “really doing good” the student was receiving ten hours of home ABA at home weekly. (T 43)

Parent would join in and mimic some of the home ABA she was able to see being implemented. (T 44)

The home ABA “took us out in society, took us to stores. She told me what to do. And she also taught (student)…And I saw a tremendous difference.” (T 49-50)

Parent believes that no matter what school the student attends “as long as he's not carrying over skills of society, then it doesn't make no sense because he's only in his nest for six hours when they're monitoring you. And then you need to go to church and to do things in society, even if you have deficit. But you need to be able to, you know, enjoy life outside the school. And it's not--this is not fun for no family.” (T 50)

Parnet defines the needed ABA as “ten hours of ABA service at home after school between 4:00 and 6:00.” (T 51)

Student needs OT to diet. (T 44)

Parent does not see carry over of the school OT services to the home. (T 45)

“And , he could use some, especially to There is a lot of deficit…(student)… . There is is not addressed in that. He needs to carry over those things. And this has not been carried over. “ (T 51)

Parent counseling and training was not mentioned at the last IEP meeting. (T 48)

The , has not contacted the parent regarding training. Parent does not feel training at the school is beneficial without the student. (T 49 & 52-53)

DEPARTMENT OF EDUCATION POSITION

, DOE attorney, represented the DOE at hearing. DOE submitted no evidence and made no case presentation. (T 20)

confirmed at hearing that no case was presented and that the DOE would respond to the parent case presentation. (T 34)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A student is offered a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability enabling him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). The burden of proof is on the school district during an impartial hearing. (Educ. Law § 4404[1][c]).

IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). 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).

Parent hearing request notes that the student “seems to be making small progress with speech and some academics” (Ex A)

Speech Report of January, 2014, includes student goals and progress in areas including receptive skills and expressive sklls. (Ex G)

IEP does include goals to address fine motor and sensory issues. This includes “self feed using a fork or spoon” and “grasp a writing tool.” (Ex D 7 & 8)

OT progress is indicated in OT report, of January, 2014. Report includes student goals and progress in the areas of fine motor skills, visual motor skills, ADL and self care skills. (Ex F)

I find the DOE has identified and addressed student OT and speech needs in the IEP and through the recommended program.

Claims related to additional being required after school are dismissed.

IEP includes an annual goals relating to behavior, identified as Social and Behavioral Goals. It is not clear who is to implement these goals. Progress is to be measured by “Practitioner Assessment” (Ex D 4)

No evidence is presented by the supporting the IEP goals relating to behavior or appropriate implementation.

No evidence is presented that a BIP was developed and is being implemented at the AMAC program.

DOE fails to present any BIP as indicated in the IEP. (Ex D 3)

Parent states that the BIP has never been implemented. (T 40)

IEP fails to identify any parent concerns regarding the social development of the student. Parent clearly testified that she raised concerns over student behaviors at the IEP meeting of 03/25/2014. (Ex T 37, D 2)

The IDEA places the responsibility to identify the needs of a student on the district—not the parents (see A.D. v. Bd. of Educ. of City School Dist. of City of New York, 690 F.Supp.2d 193, 208 ([S.D.N.Y. 2010]). It is not clear how the IEP intends to address student behaviors. The primary purpose of the sought after home based services, primarily home based ABA, are to generalize progress achieved in the day program to the home setting. Parent testifies that regression has occurred since the home based services were discontinued, and neurologist letter supports parent in this regard. (T 37, Ex B 1)

In order for the student to be offered an IEP that was "likely to produce progress, not regression" and provide an opportunity for more than "trivial advancement" does not require school districts as a matter of course to design educational programs to address a student's difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom (see Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 [1st Cir. 2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v. Hendry County Sch Bd., 941 F.2d 1563, 1573 [11th Cir 1991]; see also K.L., 2012 WL 4017822, at *14 [upholding the determination that home-based ABA services provided to generalize skills and improve the student's custodial care are not a necessary component of a FAPE]; Application of the Dep't of Educ., Appeal No. 12-086; Application of a Student with a Disability, Appeal No. 12-074; Application of the Dep't of Educ., Appeal No. 12-052; Application of a Student with a DisabilityApplication of the Dep't. of Educ. Walczak, 142 F.3d at 130 [2d Cir.1998] [internal quotation marks omitted]; see M.H., 685 F.3d at 224).

Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Board of Educ., 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172; J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 [S.D.N.Y. 2009]; M.M. v. New York City Dep't of Educ., 583 F. Supp. 2d 498, 510 [S.D.N.Y. 2008]; Tarlowe, 2008 WL 2736027, at *8; W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 149-50 [S.D.N.Y. 2006]; Application of a Student with a Disability, Appeal No. 09-101; Application of a Student with a Disability, Appeal No. 09-038; Application of a Student with a Disability, Appeal No. 08-028; Application of the Dep't of Educ., Appeal No. 07120). To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student (20 U.S.C. § 1414[d][1][A][i][IV]; 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v][a], [b][3]; Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100, at *1 [S.D.N.Y. Apr. 7, 2011]; Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 [N.D.N.Y. Sept. 29, 2009] [discussing the student's IEP which appropriately identified program modifications, accommodations, and supplementary aids and services]; P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 380 [S.D.N.Y. 2008]; see also Schreiber v. East Ramapo Central Sch. Dist., 700 F. Supp. 2d 529, 556 [S.D.N.Y. 2010] [noting that when defending a unilateral placement as appropriate under the IDEA, a parent in some circumstances may also be required to demonstrate that appropriate "supplementary aids and services" are provided to the student]).

In New York State, policy guidance explains that "the IEP must include a statement (under the applicable sections of the IEP) if the student needs a particular device or service (including an intervention, accommodation or other program modification) to address one or more of the following needs in order for the student to receive a [FAPE]" ("Guide to Quality Individualized Education Program [IEP] Development and Implementation," at p. 25, Office of Special Educ. [Dec. 2010], available at http://www.p12.nysed.gov/specialed/publications/ iepguidance/IEPguideDec2010.pdf). "The behavioral interventions and/or supports should be indicated under the applicable section of the IEP," and if necessary, "[a] student's need for a [BIP] must be documented in the IEP" (id.).4 State procedures for considering the special factor of a student's behavior that impedes his or her learning or that of others may also require that the CSE consider having an FBA conducted and a BIP developed for a student in certain non-disciplinary situations (8 NYCRR 200.4[d][3][i], 200.22[a], [b]). An FBA is defined in State regulations as "the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment" and "include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it" (8 NYCRR 200.1[r]). According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the student's history of presenting problem behaviors (8 NYCRR 200.22[a][2]). An FBA must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a BIP (if required) may be developed "that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement" (8 NYCRR 200.22[a][3]). Although State regulations call for the procedure of using an FBA when developing a BIP, the failure to comply with this procedure does not automatically render a BIP deficient (A.H., 2010 WL 3242234

In the current case no evidence is presented that the DOE developed and is implementing an appropriate BIP for the student.

The evidence does suggest that the student required home-based programming order to avoid regression, make progress during the in-school portion of his program, and enable the student to receive educational benefits. The district has failed to evidence how the student behaviors are addressed and how progress in this area is to be made by the student. No evidence was presented disputing the parent’s testimony that the home based ABA service is essential for the student to make progress in the area of behavior. The school district is not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Bryant v. New York State Educ. Dept., 692 F.3d 202, 215 (2d. Cir. 2012); Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). The IDEA ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker, 873 F.2d at 567)

In this case the DOE has failed to present any evidence that the student behavior is addressed at all within . Evidence includes that the student behavior is actually This is indicated in the assertion by the parent that the student requires a para professional on his bus, without whom the student cannot ride the bus. (Ex A)

State regulations require that an IEP indicate the extent to which parent counseling and training will be provided to parents, when appropriate (8 NYCRR 200.4[d][2][v][b][5]). State regulations further provide for the provision of parent counseling and training for the purpose of enabling parents of students with autism to perform appropriate follow-up intervention activities at home (8 NYCRR 200.13[d]). Under State regulations, the definition of "related services" includes parent counseling and training (8 NYCRR 200.1[qq]). Parent counseling and training is defined as "assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program" (8 NYCRR 200.1[kk]; see 34 CFR 300.34[c][8]). Courts have held that a failure to include parent counseling and training on an IEP does not constitute a denial of a FAPE where a district provided "comprehensive parent training component" that satisfied the requirements of the State regulation (see R.E., 694 F.3d at 191; M.W., 869 F. Supp. 2d at 335; C.F., 2011 WL 5130101, at *10; M.N., 700 F. Supp. 2d at 368; M.M., 583 F. Supp. 2d at 509). The Second Circuit explained that "because school districts are required by [State regulation]24 to provide parent counseling, they remain accountable for their failure to do so no matter the contents of the IEP. Parents can file a complaint at any time if they feel they are not receiving this service" (R.E., 694 F.3d at 191). The Court further explained that "[t]hough the failure to include parent counseling in the IEP may, in some cases (particularly when aggregated with other violations), result in a denial of a FAPE, in the ordinary case that failure, standing alone, is not sufficient to warrant reimbursement" (id.; see A.D., 2013 WL 1155570, at *11-*12; FB and EB v. New York City Dep't of Educ., 2013 WL 592664, at *11-*13 [S.D.N.Y. Feb. 14, 2013]; F.L., 2012 WL 4891748, at *10; K.L., 2012 WL 4017822, at *14).

No evidence is offered to show the DOE met its burden in offering parent training and counseling for this student. Parent counseling and training was not mentioned at the last IEP meeting. (T 48)

Parent testified that the home ABA services, in an informal way, amounted to a type of parent training that helped the family address student behaviors in the home.

During pre school, when he was “really doing good” the student was receiving ten hours of home ABA at home weekly. Parent would join in and mimic some of the home ABA she was able to see being implemented. (T 43-44)

I find that the DOE is not currently offering, and implementing a FAPE to the student. Student behaviors are severe and require services to address those needs. IEP and current services are not designed to meet their unique needs of the student and prepare this for further education, employment, and independent living.

I parent testimony credible and that equitable considerations support the parents claim.

Parent appears to have cooperated with the IEP process by attending the required meeting and in no way thwarted any DOE effort to deliver a FAPE.

I find the student is entitled to ten hours weekly of ABA services outside the current , for the 2013-2014 school year.

ORDER

1. Parent claim demanding is dismissed.

2. Parent claim demanding services is dismissed.

3. The DOE shall provide, for the student, ten hours weekly of outside of school ABA services for the 2013-2014 school year.

4. The DOE shall immediately issue necessary forms to the parent to authorize delivery of ten hours weekly of ABA services for the 2013-2014 school year.

4. This decision is subject to appeal and review by the State Review Officer. Dated: May 12, 2014

Daniel Ajello mv

DANIEL AJELLO, ESQ.

Impartial Hearing Officer DA;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

ENTERED 04/25/2014

A Hearing Request, 2/25/14, 2 pages B Letter from Dr. , 4/7/14, 1 page C Letter from Dr , 4/17/14, 1 page D IEP, dated 03/25/2014 14 pages E PT Report, 1/22/14, 3 pages F OT Report, January 2014, 4 pages G Report, January 2014, 3 pages

DEPARTMENT OF EDUCATION

NONE

HEARING OFFICER

Entered 04/25/2014 I Email, 2/26/14, 3 pages II Denial of Timeline Extension Request, 4/2/14 III Denial of Timeline Extension Request, 4/16/14, 4 pages