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: July 30, 2013

October 2, 2013

November 21, 2013

December 13, 2013

January 29, 2014

February 5, 2014

Actual Record Closed Date: March 3, 2014

Hearing Officer: Diane Cohen, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 30, 2013

(T) Attorney for Parents

(T) District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 2, 2013

Attorney for Parents

Mother

Father

Attorney for DOE Observer

(T) Teacher Assigned — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21,

2013

Attorney for DOE

Attorney for Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 13,

2013

Attorney for DOE

Attorney for Parents

Mother

Father

Attorney for Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 29, 2014

Attorney for DOE

Attorney for Parents

Mother — Parents

Father — Parents

(T) Occupational therapist — DOE

(T) S/L Provider — DOE

ABA Provider — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 5, 2014

Attorney for DOE

Attorney for Parents

Father

(T) Psychologist — Parents

Dr. (T) Developmental Pediatrician — Parents

Dr. (T) S/L Pathologist — Parents

On July 2, 2013, I was appointed hearing officer pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), in this matter. The Parents had submitted a hearing request, dated June 25, 2013, and an amended hearing request on July 23, 2013. The New York City Department of Education (the “DOE”) accepted the amended request and the resolution period began anew. The Parents requested that I submit a pendency order. On July 30, 2013, I conducted a pendency hearing. I issued a pendency order on August 12, 2013.

At the pendency hearing on July 30, 2013, the parties agreed that the Student’s pendency placement was based upon the Findings of Fact and Decision, dated February 15, 2013 (the “February Decision”). The parties agreed that in addition to the Student’s school program at (which is not at issue in this hearing), pendency included ten hours of at home based Applied Behavioral Analysis (“ABA”) services per week for a twelve month school year and five thirty minute sessions of speech and language therapy, three in school and two after school. The outside of school were to be provided by related service authorization. (See Tr. 4- 7)

On August 12, 2013, I ordered that the following would be included in the Student’s services during the pendency of these proceedings (See IHO Exh. IV):

(1) DOE would provide the Student with ten hours per week of ABA services in the home on a twelve month school year basis. The DOE would pay no more than $85 per session for such services. The DOE would reimburse the Parents for such services provided to the Student during the pendency of these proceedings, upon presentation of appropriate documentation.

(2) The Student would also receive five thirty minute sessions per week therapy, three in school and two after school. The DOE would provide related services authorizations to the Parents for the two sessions per week of after school speech language therapy.

(3) All pendency services would be as of the date of the hearing request, June 26, 2013 and shall continue throughout the pendency of these proceedings.

The resolution period ended on August 22, 2013. I contacted the parties to schedule the hearing. The district representative offered dates at the end of September. The attorney for the Parents informed me that she was on maternity leave and requested hearing dates after November 2, 2013. The DOE strongly objected to delaying the hearing. The DOE asserted that the delay would be prejudicial to the DOE since the Student was receiving pendency services and that due to holidays in November and December it would be likely that the case would end well into 2014. I agreed that it was inappropriate to delay the hearing over the objections of the DOE due to the lack of availability of the attorney for the Parents. I scheduled the hearing for October 2, 2013, and granted the Parents’ request to extend the decision date. Since the DOE was not available until the end of September and the only financial burden would fall on the DOE, I felt it was appropriate to grant the extension. I noted that the Student would not be harmed by the delay since he was receiving pendency services. I extended the decision date for thirty days to November 5, 2013.

The Parents retained a new attorney to represent them for the remainder of the hearing.

At the hearing on October 2, 2013, the DOE made objections to documents which the Committee on Special Education (the “CSE”) did not have at the time of its meeting. The DOE objected that the letter submitted by the Parent which recommended additional occupation therapy was dated after the Individualized Education Program (IEP) meeting and should not be considered (See T. 50). I noted that the amended hearing request was filed for the purpose of requesting additional occupational therapy and that the letter was specifically referenced in the amended request. I noted that the DOE had accepted the amended request, which they had not been compelled to do.

I believed that the CSE should consider the new document before I addressed the issue of additional occupational therapy. The Parents were concerned that if the CSE disagreed with them at the reconvene, that a new hearing request would have to be filed. I did not think that was the case. Since the Parents had raised the issue in their hearing request, I did not feel that an amended request would be necessary if the CSE disagreed with the Parents. The DOE did not disagree (T. 122). The Parents agreed that it would not be a problem if both parties were in agreement on this process (T. 150). We agreed to a conference call on October 4, 2013 to determine how to proceed (T. 134). On the call, I determined that we should proceed with the reconvene and that I would consider the Parents’ suggested order. Ultimately, I crafted my own order without input from the parties.

On October 11, 2013, I ordered that the CSE reconvene within two weeks to consider the Parents’ request for in a sensory gym as well as their request for homebased ABA and speech and language therapy in school and at home. (See IHO Exh. V).

We scheduled a hearing for November 21, 2013. The Parents requested an extension of the decision date. I granted that request and extended the decision date for thirty days to December 5, 2013, after considering all appropriate factors as discussed above.

On November 19, 2013, I received an email from the attorney for the Parents indicating that he was required to appear in New York Supreme Court on a different matter on November 21, 2013, and due to the nature of the matter, could not find anyone to replace him. The district representative did not object to the adjournment. Due to the fact that the attorney for the Parents had a legitimate obligation and noting the agreement of the DOE, I agreed to the adjournment. We scheduled a conference call for November 21, 2013. On the call, we agreed to a hearing date of December 13, 2013. The Parents requested an extension of the decision date. I granted that request and extended the decision date for thirty days, to January 4, 2014, after considering the appropriate factors as discussed above.

We convened for a hearing on December 13, 2013. I asked the DOE whether they still rested their case, or whether they wanted to present additional witnesses since the CSE had reconvened. The DOE indicated that they wanted to call the occupational therapist. However, due to a late start in the hearing, we were unable to reach the occupational therapist. The parties jointly requested an extension of the decision date. I granted that request and extended the decision date for thirty days to February 3, 2013, after considering all relevant factors as discussed above, and due to the due process needs of the parties.

We were unable to agree on hearing dates before March and I scheduled dates in March. However, I then contacted the parties by email to go through each possible day prior to March so that we could find a date when everyone did not have a commitment for at least part of the day. It was extremely difficult to find dates that each of the parents, the attorneys, myself, and the witnesses were all available. Ultimately, we were able to schedule a full day of hearing on January 29, 2014 and February 5, 2014. We completed the hearing on February 5, 2014.

On January 29, 2014, the Parents requested an extension of the decision date. I granted that request to allow the parties the opportunity to complete the hearing, and extended the decision date to March 5, 2014, after considering the appropriate factors as discussed above.. At the hearing on February 5, 2014, the parties requested the opportunity to submit closing memoranda on or before March 3, 2014. I agreed to that date since transcripts were taking as long as three weeks to be produced and the parties would need another week to draft their memoranda. The Parents requested an extension of the decision date. I granted that request and extended the decision date to March 17, 2014.

ISSUES

The hearing request asserts that at the IEP meeting on April 17, 2013, the Parents requested that the Student’s ten sessions per week of home-based ABA services and his five sessions per (with at least two sessions taking place outside of school) be continued through his first grade year. The hearing request asserts that the team indicted that while it planned to recommend the in-school services, it was beyond its authority to recommend, and therefore could not recommend, any outside services. The Parents assert in their hearing request that the Student requires ten hours of home based ABA per week in order to benefit from his education. It is asserted that during the brief periods when the Student did not receive his ABA services he regressed. The hearing request asserts that the Student requires five sessions of therapy per week in order to benefit from his education. It asserts that it is crucial that at least two of these sessions take place in an environment outside of school in order to allow for generalization across environments, to address language difficulties in a variety of contexts and so that he does not miss his academic classes (See IHO Exh. II)

The amended hearing request asserts that a letter, dated July 19, 2013, by Dr. , recommends that in addition to the ABA and therapy, the Student also requires occupational therapy in an after school environment with a sensory gym (See Exh. A)

The hearing request, as amended on July 23, 2013, requests that the Student be provided with two individual 30 minute sessions per week of occupational therapy after school at a sensory gym. It further requests prospective payment of $85 per hour for ten sessions per week of home-based ABA therapy provided by Theodora Theodosiadou (or if she is unavailable, an equally qualified provider) from July 2013 through June 2014. In addition, it requests the provision of five sessions per week of speech and language therapy, and more specifically, the provision of an RSA for at least two sessions per week of therapy with , and to provide any other relief deemed appropriate (See Exh. A).

APPLICABLE STANDARDS

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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., 557 U.S. 230, 239 (2009); Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982)). A FAPE is offered to a student 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 20607; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005)). "'(A)dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998), quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch.. Dist., 554 F.3d 247, 253 (2d Cir. 2009)).

The IDEA directs that, in general, an IHO'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). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute 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 v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008)).

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. New York City Bd. 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 and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (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. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010)).

FINDINGS OF FACT

The Student is a boy. He has been classified as and has been recommended to attend an class with occupational therapy two times per week for thirty minutes, physical therapy, three times per week for thirty minutes and therapy four times per week for thirty minutes (two in a group of one, and two in a group of 3). He was recommended to have a twelve month school year. He has a and accommodations. He was recommended to attend a New York State Approved Non-Public School. (See Exh. 2). He attends .

The Student has , and to complete a task. He has during group activities. He is easily distracted by playing with . He needs constant guidance and redirection to complete a task. He needs to be addressed several times on his inappropriate recitals. He distracts the class and self. He and . He does in class discussions. He has difficulty with following directions. He has ” without picture cues. He benefits from a visual schedule to . He responds in a but it may be difficult to . He has open ended questions. (Exh. 2, p. 2).

He does not engage in appropriate social play with his peers and responds to his name with fleeting eye contact. His participation in classroom activities is compromised by his his needs and wants independently (Exh. 2, p.2).

As of April 17, 2013, when the Student was five and one half years old, the Student was reading at a and doing mathematics at a first grade level (See Exh. 2, p. 9).

The Parents had previously requested a hearing with respect to the 2012-2013 school year. In that case, the hearing officer found that that the DOE had failed to meet it burden in proving that eliminating the Student’s ten hours of ABA therapy was appropriate. In that hearing, the Parents had requested an increase in the Student’s speech and language services. The hearing officer found that the DOE had failed to satisfy its burden of establishing the appropriateness of its denial to therapy or that three sessions of speech and language therapy were sufficient and ordered two sessions of speech language therapy outside of school Exh. I, p. 28).

At the instant hearing, Evelyn Alvarez testified that she attended the IEP meeting as the special education teacher assigned. She testified that is not an ABA program and that no one from the Child School indicated that the Student required an ABA program

(T. 63). She testified that she did not take any steps to communicate with the ABA service provider prior to making a decision to terminate his ABA services (T. 81). She testified that she was the one who decided to remove ABA from his program, based on the reports given to her by the providers at the school (T. 83). She testified that the teacher did not recommend any reduction to services, however (T. 83). Ms. Alvarez recalled very little regarding what transpired at the hearing (See T. 89, e.g.).

testified that she has been the Student’s occupational since September 2012

(T. 168). She provides occupational therapy based upon his IEP goals, for fine motor and visual perceptual skills two times per week for 30 minutes (T. 169). She recommended that he continue with the same mandate for the 2013-2014 school year (T. 170). She made that recommendation because the Student had achieved the goals for the prior year. She recommended that the mandate should continue so that they could work to increase the goals (T. 171). He is progressing with that level of service (T. 172). She testified that if he is , then she gives and then they on the goals (T. 172). She testified that she believes she is addressing the with the two individual 30 minute sessions (T. 181). She testified that when she picks him up from class she gives him sensory input by providing activities like , to help him focus before working on the goals (T. 182). The sensory input helps children focus more and perform more because it gives the body more organization and more capability to process the next sensation or input (T. 183). She testified that the Student has sensory integration deficits (T. 190). She testified that the services he is receiving in school are sufficient for him to make progress and does not require occupational therapy in a sensory gym (See T. 197-198). She reiterated that based on his school performance, the Student is fine and is progressing (T. 207).

, the Student’s , testified that she recommended four sessions per week in school because he had made progress over the year and thought four sessions would be appropriate (T. 261). She testified that in her professional judgment she felt he could make progress with four sessions. She recommended that two of the four sessions be in a group because he needed a group dynamic (T. 262). She testified specifically that he was successfully able to sequence, retell four picture cards, attend to main character, identify facts and content from text, answer “wh” questions, including what, where and when (T. 230). She testified that he made “immense” progress the current school year (T. 237), and listed a host of areas in which he had progressed (T. 237-238). She reiterated that he had made “great” progress this year, and that all his deficit areas are being addressed (T. 239).

The Parents submitted a psychological evaluation by Dr. who also testified at the hearing. Dr. recommends in his report that the Student continue to receive speech and language therapy in school and outside so that he can generalize skills from one context to another. He supports Dr. ’s recommendation as to frequency and duration. He also recommends a continuation of home based ABA therapy at the current frequency in order to help the Student develop and generalize skills learned in the school environment. Dr. opines that in order for generalization to occur, ten hours of ABA is “essential” (Exh. X, p. 3). I note that Dr. was under the impression that the Student was receiving ABA therapy in school as well (T. 455). He also recommends should continue at the current frequency and should increase to include two hours weekly outside of school. He opines that it will be “useful” for his therapist to help skills, self-regulation and monitoring of his activity levels and to offer him ways when he is called and on task (Exh. X, p. 4).

The Parents submitted a letter from Dr. , a developmental pediatrician. Dr. states in his letter, that the developmental and behavioral profile of the Student suggests that he is a child with an with developmental, medical and educational special needs (See Exh. N, p. 1). He states that the home based ABA therapy “needs to” remain in place “to help generalize academic and social skills mastery across school and home environments” and to prevent regression of previously attained academic and social skill mastery (Exh. N, p. 1). He testified that the Student needs preview and review of the curriculum and the goals so as to get the benefit that he needs out of a school program (T. 476). Based upon the reports of those who have been working with him at school and at home, the Student is making slow, steady progress, and so needs to continue with the current program If he were “really zooming ahead” that perhaps would not be his recommendation (T. 479).

I note that in contrast to Dr. ’s conclusion that the Student is making slow progress, the speech language therapist testified that the Student is making immense progress. The First Progress Report, dated November 13, 2013, indicates that the Student is learning and applying new concepts at an accelerated pace and appears to be functioning at a high level in reading (See Exh. PPP, p. 4).

Dr. recommends that the school based and services be continued for the generalization of skill acquisition across home and school environments and to ensure prevention of regression of previously and successfully acquired communication and language skills. He also testified that the home therapy is to preview and review various things that are gong on in school sessions, what is appropriate to be doing at school and how to use language appropriately at school (T. 491).

He also recommends the sensory integrative occupational therapy be implemented in a sensory gym two times per week for thirty minutes each session. to remediate his sensory processing, . The therapy needs to create and implement an appropriate sensory diet for use at home, school and community (Exh. N, p. 2). Dr. Freilich corroborated the information in his letter by affidavit, dated January 30, 2014 (Exh. NNN).

Dr. testified that he observed the Student at school and during home based ABA therapy. He observed the Student in in school but not during in the home (T. 463). He observed him in his for about one and one half hours (T. 471) but not during any other therapeutic interventions in the community. The ABA provider was not at the afterschool when he observed him there (T. 464). He testified that he suggested strategies to the provider for the incorporation of a sensory diet (T. 466). He testified that he also spoke with the occupational therapy provider in school about a sensory component to the therapy (T. 467). He testified that the school based therapy was not “really” addressing his regulatory issues and knew this because they told him that they are focused on fine motor and handwriting. From what he observed, it is not in a sensory gym, and they don’t have the appropriate facilities to give him the sensory interventions that are needed to address that in a formal setting (T. 467). He testified that the occupational therapy could “possibly” be giving him some very less intense types of interventions but is not doing it in the way that he believes the child needs to be done at school and at home and in the community (T. 468).

The Parents submitted a report and an affidavit from Dr , a clinical psychologist who has been testing the Student since approximately December 2011 (See Exh. OOO, p. 1). She stated in her affidavit that the Student still had serious interfering behavioral such as retreating, circling around the room, or curling up when he was challenged. That indicated to her that he continued to need many hours of ABA delivered on a consistent basis (Exh. OOO, p. 5). She stated in her report, dated May 9, 2013, that he continues to need ABA on a continuous daily basis for two hours a day at home in order to generalize what he has learned at school and to apply those skills to his home environment (Exh. Z, p. 4). She recommended ten hours per week because it was her understanding that in 2010 or thereabouts, he had been receiving five hours per week and had not been progressing at all. With ten hours he was showing some progress. So she is going by what seems to be working (T. 502).

Dr. ,a pathologist, has evaluated the Student and has submitted reports and testified for the Parents at the hearing. Dr. testified that he did not feel that the amount of speech therapy that the Student was getting in school was enough (T. 515). He testified that it was important that the be done with high frequency and across environments “if possible” to allow for generalization and transfer in crating opportunities for learning in various contexts (T. 515). In his report, dated May 30, 2013, he recommended that the Student should be seen for three individual 30 minutes sessions of speech and language therapy in school and two 30 minute sessions of speech and language therapy outside of school “to continue to support goals, allow for generalization between home and school environments, and to further address language difficulties in a variety of contexts.” (Exh. Y, p. 7).

DECISION

The original hearing request in this case was dated June 25, 2013, and raised issues regarding the recommendations set forth in an IEP dated April 17, 2013. When the Parents submitted an amended hearing request on July 23, 2013, they added a request for after school occupational therapy and renewed their requests and assertions from the original hearing request. The DOE, although not compelled to accept this amendment, did so. Since the CSE had not had the opportunity to consider the letter from Dr. which was also referenced in the amended hearing request, it seemed imperative that the CSE reconvene to consider the request for occupational therapy and the letter of Dr. The DOE disagreed. I ordered the CSE to reconvene, and they did so.

The parties, however, appear to be in agreement that what occurred at that CSE meeting is irrelevant to this hearing other than the fact that they did not agree to the after school occupational therapy or the other requests set forth in the original hearing request (See T. 353-354). Thus, the reasoning of the CSE at that reconvene was not presented as evidence at the hearing, and the IEP was not submitted.

Based upon this sequence of events, put into place by the submission of the amended hearing request, its acceptance by the DOE and my order of a reconvene, it is not clear as of what date my consideration of the issues in this case should focus. I have determined that since I do not have information on what transpired at the reconvened CSE meeting and do not have that IEP, and since the parties do not believe that IEP should be an issue for this hearing, my determination will be made as of the date of the IEP meeting in April 2013. I note that when I admitted Dr. Freilich’s letter into evidence, I did so with the expectation that the IEP from the reconvene would be admitted and that what transpired at that IEP meeting would be relevant to this hearing. However, the parties have not submitted that IEP and continue to assert that it is not relevant. Thus, I note that it is not clear that the letter from Dr. is relevant or that any other documentation after the date of the April 2013 IEP meeting should be considered.

The situation requires, however, that I consider later information to some extent in order to avoid an inequitable result. I will refer to the various reports as appropriate and to the extent that I believe they are relevant.

The Parents argue in this case that this case bears a striking similarity to the R.K. case which is part of the Second Circuit decision in R.E. v. NYCDOE, 694 F. 3d 167 (2nd Cir. 2012). They argue that it is similar in that the consensus among the experts who have evaluated the Student is that he required at home ABA services to prevent regression (See Exh. VI, p. 10). The DOE argues that the services being requested are for the generalization of skills, and that generalization of skills is not a goal that is required under the IDEA (See Exh. VII, p. 12). The Parents assert that such cases are distinguishable in that the Student would suffer regression without the home services.

The report of the home-based ABA provider indicates that the home-based therapy provides for generalization and reinforcement of academic, communication, and social skills that he needs to acquire and apply across his school and home environments (Exh. HH, p. 1). The report indicates that the Student requires the home-based ABA services to help learn important social skills and norms, to help him in listening, answering questions and holding conversations, to help him in expressing his emotions with words and without inappropriate behaviors, and in navigating his environment safely (See Exh. HH, p. 7). She states in her report that when there is a gap in home-based ABA services, the Student and requires significantly more prompting and redirection. In addition, his self-stimulatory and noncompliant behaviors increase, along with his frustration level (Exh. HH, p. 2). In her testimony at the hearing, she stated that she spends a lot of time working on generalization, perhaps ½ hour per day (T. 342). She also testified that with a lot of repetition, the Student eventually starts doing a skill in a different environment (T. 291).

The District’s witnesses did not provide any evidence that would indicate that the school program would be appropriate without the home-based ABA services. The Student has been receiving these services for years. Yet there is no evidence that there was any discussion regarding these services before their removal at the IEP meeting. The team did not contact the home based ABA provider or attempt to obtain a report from the provider before discontinuing the services (T. 80-81). The team removed the ABA services from the Student’s program based on the teacher reports and how he was doing at the Child School (T. 82). She testified that with the supports he is receiving, he is doing fairly well

(T. 102). However, it was not considered by the team that the Student’s progress at school may have been based in part on the home-based services. None of the teachers recommended that the service be removed from the IEP (T. 82).

Based upon the testimony and the reports, I find that the evidence supports a finding that the Student continues to need the home-based ABA services he has been receiving in order to make meaningful progress in school. There is no evidence that the Student is likely to continue to make significant progress in school without these services. The IEP team did not appropriately consider the effects of a reduction in these services. Therefore, although some of the services may be provided for the purpose of generalization to the home environment, it is not clear whether a reduction in services will affect the Student’s ability to progress in school. Since the CSE has not considered the effect of a reduction in ABA services on the education of the Student, I will therefore not order any reduction in such services. Since the DOE did not present any evidence that the rate of pay requested by the Parents was inappropriate, I will order that the DOE shall continue to fund the ABA services as set forth in the pendency order.

I now turn to a consideration of the home based speech and language therapy services. The Evaluation, dated March 10, 2102, indicates that the Student has difficulty responding to his name, responding to more open-ended questions and consistently responding to yes/no questions. He scored at least 1.5 standard deviations below the mean on various subtests on the CELF-PS2: the Sentence Structure subtest (5th percentile); the Concepts and Following Directions subtest (5th percentile), the Word Structure subtest ( 1st percentile) and the Expressive Vocabulary subtest (2nd percentile). The evaluator also noted that the testing was performed in a one to one setting, in a quiet room, free from distraction and with trial items and instruction provided before each task. Spontaneous, natural setting language demands would provide greater challenges for the Student (Exh. CC, p. 7).

The Student was found to have a moderate to and has deficits (See Exh. CC, p. 7). Dr. recommended in addition to the speech language therapy that he continue with his ten hours per week of ABA therapy to strengthen behavioral concomitants necessary for pre-academic and social use of language and to provide instruction on discreet aspects of language that can be generalized to the classroom. Classroom difficulties identified can be addressed during ABA sessions to supplement his program and work toward consistency and generalization between home and school environments (See Exh. CC, p 8)

In Dr. s more recent Evaluation, dated May 30, 2013, he noted that the Student was acquiring a fund of information, increasing vocabulary and developing many of the underlying requisites to acquiring language. He noted that the Student continued to present with a (Exh. Y, p. 5). H noted that when tasks become more abstract, require inferencing, higher level language functions including predicting and using language to explain, his test results indicate marked difficulties. His scores on the subtest for reasoning on the PLAI-2 fell below . Difficulty with higher level language tasks was also noted on the ) and the Paragraph Comprehension subtest ) The impact of deficits in higher level language tasks could be noted with score on the Preschool Language Assessment Instruction ).He noted that the Student had shown progress since he was last assessed in both language functioning and behavior, including attending skills. His recommendations included two thirty minute sessions of therapy outside of school to continue to support goals, allow for generalization between home and school environments and to further address in a variety of contexts. I note that his recommendation of two sessions after school was coupled with a recommendation that he receive three sessions in school, individually (See Exh. Y, p. 7). He also recommended the continuation of ten hours of ABA outside of school to introduce, reinforce, expand and maintain the basic concepts, behaviors and skills that form a basis for language and language learning. He noted that it would also aid in transferring and maintain skills across environments. (Exh Y, p. 7).

The Student’s current provider testified that the Student had made progress with five individual sessions of speech language therapy (including the two at home) and that four sessions would, in her professional judgment, be appropriate (T. 261 – 262). When asked about the Student’s progress between September 2012 and February 2013, she responded that he was making progress all year. (T. 271). She testified that she attended the IEP meeting in April 2013 (T. 243) and that her recommendation was based on the Student’s progress toward his goals (T. 247). At the time of the April 17, 2013 meeting, she had been working with the Student since the fall of 2012 (T. 247). She testified that she felt that the four sessions in school would be sufficient instead of the three sessions in school plus the two sessions after school based upon the progress he had made (T. 261-262).

The Teacher and Related Services Report, dated April 3, 2013, indicates that the Student had made significant progress in his expressive language. He could then answer “where” and “why” questions with minimal cueing given a picture or textual frame of reference. He continued to display more difficulty answering open ended wh questions. He displayed pronoun confusion when retelling sequences or personal narratives often referring to himself as “Luke.” He had a difficult time speaking about information that had occurred in the recent past. He could maintain a conversation for four turns with moderate cues. He showed greater comprehension when presented with written information as compared to information read aloud or when following multi-step directions (Exh. 3, p. 1).

I do not agree that the Student continues to require home-based speech and language therapy. The Student’s testified that the Student was making progress with three sessions of in school in conjunction with the two sessions as home, and that in her professional opinion, he would continue to make progress with four sessions in school without the home based services. I see no reason to question that judgment. I also note that although the Student has significant difficulties, the ABA provider is working on such language goals as listening, answering questions, holding conversations, and with words. The speech language provider created goals for therapy which focus on answering “wh” questions, improving skills and understanding and using quantitative, qualitative, spatial and temporal concepts by following multi step directions containing these concepts (See Exh. 3, p. 3). These goals were included in the individualized education program (the “IEP”) (See Exh. 2, p. 4). The hearing request does not challenge the appropriateness of the goals on the IEP. The provider testified that four sessions per week were enough to achieve these goals. I therefore find that the speech and language therapy recommended by the CSE is appropriate.

In relying on the evidence provided by the speech and language provider, I note that the IDEA and the regulations promulgated thereunder provide that the opinions of the teachers and providers who work with a student should be considered by the CSE when determining the services required by a student. The determination is not simply made based upon assessments or opinions of evaluators. The IEP team is required to include not less than one special education teacher of the student, or where appropriate, not less than one special education provider of the student (See 34 CFR 300.321(a)(2)). The IDEA provides that individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate, shall be included on the IEP team at the discretion of the parent or the district (See 34 CFR 300.321(a)(6)). In developing the IEP, the team must review observations by teachers and related services providers (See IDEA §614(c)((1)(A)(iii)). Thus, the opinion of the Student’s language provider regarding the Student’s current rate of progress and the expected rate of progress with the recommended services should be given appropriate weight. The provider is in a unique position to make that assessment in that the provider works with the Student on a regular basis. An outside evaluator is not similarly situated to make that type of assessment.

The Parents refer to an evaluation by Dr. from December 2011. That evaluation no longer represents the Student’s functioning, as the Student has made significant gains in speech and language since December 2011. Dr. ’s evaluation from May 2013 is dated after the date of the IEP meeting in question. However, a review of the document does not change the result. Dr. is applying a standard that goes well beyond the legal requirements that the DOE must meet. Dr. is not recommending services to provide for meaningful educational progress, but so that the Student “will be able to become incorporated into the real everyday world” or to “generalize” skills to the home environment. (See Exh. Z, p. 4). While it is understandable that the Parents would want this standard to be applied, and it would be of benefit to the Student, the law does not require that the DOE provide it. I note that Dr. is a clinical psychologist, and as such, her recommendations regarding the frequency required are unlikely to be as reliable as would be the judgment of the speech language therapist who is working with the Student and who is a specialist in speech and language. The Parents also rely on the report of Dr. Again, Dr. is a clinical psychologist whose views on frequency and duration and therapy would not be as reliable as would the views of pathologist. Moreover, Dr. based his opinions on a review of Dr. ’s report, on casual conversations with the Student and on anecdotal evidence from the Mother rather than on any objective testing (See Exh. BB, p. 2). In Dr. ’s report in July 2013, he recommends home-based therapy based upon Dr. ’s recommendation and indicates that the reason for the recommendation is for generalization (See Exh. X, p. 3).

Dr. noted that the Student had made progress in both language functioning and behavior. His recommendation that the Student continue with the two sessions of home based therapy in addition to three sessions in school was not based upon the legal standard which the DOE needs to meet. The DOE is responsible for providing a program that is reasonably calculated to provide educational progress. Dr. s recommendation has gone well beyond that. I note, for instance, that Dr. indicates that home-based therapy will “continue to support goals, allow for generalization between home and school environments, and to further address language difficulties in a variety of contexts” (Exh. Y, p. 7). The need for generalization between home and school environment, and the addressing of language difficulties in a variety of contexts goes beyond what the DOE is required to provide. The State Review Officer has held in more than one decision that school districts are not required 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 Appeal No. 12-099, 12-204 and 11-031.

In those decisions the State Review Officer cited courts in other jurisdictions who have so held, including the following cases: 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)). In addition, the State Review Officer cites a decision in the Eastern District of New York: Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *17 (E.D.N.Y. Oct. 30, 2008).

The State Review Officer held, instead, that the issue is whether the district has failed to comply with its obligation to offer the student an educational plan that was specially designed for the student and from which there is a reasonable likelihood that the student would receive some educational benefits. See Appeal No. 12-099 at 22-23. The speech language provider in school has testified that the Student had been making progress and that in her professional opinion a reduction to four sessions per week would continue to allow for educational benefits. There is no evidence to the contrary. I see no reason to question the opinion of the in speech language provider. I note that the fact that the speech and language therapy services were reduced two months after the hearing officer’s decision was issued in the prior hearing is of no moment. The decision in that case related to a hearing request dated July 27, 2012, and related to IEP meetings in April, May and June 2012 (See IHO Exh. I, pp.12-14). The hearing request for the current hearing is dated June 25, 2013, nearly one year later than the prior hearing request, and with respect to a meeting held one year later that the prior IEP meetings, in April 2013. The Student has made significant progress in his and in all realms since that time.

While my finding is that as of the date of the IEP meeting on April 17, 2013, the recommendation regarding services set forth on the IEP was appropriate, I also note that the speech language provider testified that the Student has made immense progress during the current school year (T. 237).

In denying the home-based services, I note that the Parents are requesting home-based ABA services which overlap to some extent. The ten hours per week of ABA services are designed to address many of the needs of the Student, including his communication needs. I note that Dr. states in his report that continued home based ABA will afford the Student the best opportunity to develop his real world social and communication skills (Exh. X, p. 2). Dr. ’s report also recommends home-based ABA to “introduce, reinforce, expand and maintain the basic concepts, behaviors and skills that form a basis ” (Exh. Y, p. 7). The reports of the many professionals the Parents have consulted have phrased their recommendations in different ways. However, they are consistent in their reliance on a standard that goes beyond what the DOE is required to provide. These reports, in general, appear to be designed to maximize the potential of the Student, which goes well beyond what is required.

The Parents are also requesting the initiation of occupational therapy in a sensory gym. The evidence does not support the need for occupational therapy in a sensory gym in order to provide FAPE. The occupational therapy provider testified that if the Student is too stimulated, she gives the proper sensory input and then they continue working on the goals. She testified that she believes she is addressing the Student’s deficits with the two individual 30 minutes sessions per week. I see no reason to doubt the testimony of the occupational therapy provider that the types of sensory input she provides are sufficient to allow him to focus and progress. The CSE could consider whether the Student requires a sensory diet to be implemented by his teachers and providers, if that would be beneficial to the Student. However, the Student is making progress in all realms and FAPE does note require the provision of occupational therapy in a sensory gym. I note that – while I believe at this point that Dr. ’s letter and his observations of the Student are not relevant to the issues in this hearing due to the fact that they occurred after the date of the IEP meeting in question -- consideration of the recommendation of Dr. Freilich that the Student be provided occupational therapy in a sensory gym would not change my analysis. While Dr. recommended occupational therapy in a sensory gym, his recommendation was not solely focused on the requirements of FAPE but on the Student’s overall needs across environments. The Student is, according to all the evidence, making academic progress and does not need additional services that are not currently being provided. I also note that Dr. ’s assertion that a sensory gym is necessary and that the Student’s sensory needs can not be addressed in school is inconsistent with his assertion that the Student should be provided with a sensory diet in school and with his testimony that he made recommendations to the speech and language provider regarding strategies of sensory input.

The Parents argue that the issues in this hearing should not be deemed moot. I note that the IEP, dated April 17, 2013, which is the subject of this hearing, has been superseded by the IEP developed by the CSE pursuant to my order. In addition, the Student is due for an annual review. Thus, my order in this case shall be in effect until an IEP subsequent to the April 17, 2013 IEP is implemented.

I grant the Parents’ request for a continuation of home based ABA services and deny the request for home based speech language services and home occupational therapy in a sensory gym.

I THEREFORE ORDER that the Student shall continue to receive ten hours per week of ABA services after school, on a twelve month school year basis, at a rate no greater than $85 per hour, until an IEP subsequent to the April 17, 2013 IEP is implemented. Dated: March 10, 2014

_______________________

DIANE COHEN, ESQ.

Impartial Hearing Officer DC ;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 ON JULY 30, 2013

IHO Exhibits Date Number of Pages

I. /15/13 34

II. Hearing Request 6/25/13 6

III. Emails among IHO and parties 7/30/13 2

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 2, 2013

Parents’ Exhibits Date Number of Pages

A. Amended Hearing Request 7/23/13 2

B. [Intentionally Omitted]

C. IEP 2/26/13 13

D. IEP 6/27/12 11

E. IEP 5/15/12 15

BB. Psychological Consultation 7/19/12 4

CC. Speech and language Evaluation 3/10/12 9

DD. Auditory Skills Assessment 2/10/12 6

EE. Evaluation 12/17/11 14

FF. Pediatric Neurology Consult 9/23/10 3

GG. Summer Progress Report August 2013 3 II Midyear Progress Report February 2013 8

JJ. O/T Mid-Year Progress Report 2/13/13 6

KK. P/T Progress Report 2/13/13 2

LL. First Progress Report 11/1/12 5

MM. Educational Progress Report 5/14/12 5

NN. S.E.I.T. Progress Report 4/4/12 4

OO. Quarterly Progress Report March 2012 9

PP. CPSE S/L Progress Report 1/19/12 2

QQ. O/T CPSE Progress Report 1/19/12 3

RR. CPSE P/T Progress Report 1/18/12 3

SS. Twelve Months Rationale 1/13/12 2

TT. Educational Progress Report for CPSE 1/6/12 5

UU. Resume of Undated 1

DDD. RSA-2 Form – S/L 2/28/13 1

KKK. SESIS Events Log1 2/9/12 – 101/13 4 DOE Exhibits Date Number of Pages

1. Notice of IEP Meeting 3/21/13 4

2. IEP 4/17/13 11

3. Teacher Progress Report 4/3/13 7

4. FBA 4/24/13 3

5. Social History Update 6/4/12 2

6. Classroom Observation 6/1/12 1

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 29, 2014

Parents’ Exhibits Date Number of Pages

F. Letter to CSE w/fax 6/22/13 2

G. CSE Meeting Notice 4/4/13 3

H. Letter to CSE w/fax 3/29/13 (date of fax) 2

I. Letter to 5/10/12 1

J. Letter to w/fax 4/18/12 2

N. Letter from Dr. 7/19/13 2 (N 1, 2)

and cover letter from Parent w/fax 7/23/13 2 (N 3, 4)

O. [Intentionally Omitted]

P. [Intentionally Omitted]

Q. [Intentionally Omitted]

R. [Intentionally Omitted]

S. [Intentionally Omitted]

T. [Intentionally Omitted]

U. [Intentionally Omitted]

V. [Intentionally Omitted]

W. [Intentionally Omitted]

Submitted with hand-written circle on first page as well as phone number on top of first page.

X. Consultation 7/10/13 4

Y. Evaluation 5/30/13 8

Z. Updated Assessment 5/9/13 6

AA. FBA 4/23/13 4

HH. In-home ABA Progress Report 6/26/13 ^[7]

VV. [Intentionally Omitted]

WW. [Intentionally Omitted]

XX. [Intentionally Omitted]

YY. [Intentionally Omitted]

ZZ. [Intentionally Omitted] AAA [Intentionally Omitted]

BBB. [Intentionally Omitted]

CCC. [Intentionally Omitted]

EEE. [Intentionally Omitted]

FFF. [Intentionally Omitted]

GGG. [Intentionally Omitted]

HHH. [Intentionally Omitted]

III. [Intentionally Omitted]

JJJ. [Intentionally Omitted]

LLL. Email from Mother 10/24/13 3

with prior email chain

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 5, 2014

Parents’ Exhibits Date Number of Pages

MMM. Emails between Father & R. Wessel 6/21/13 1

NNN. Affidavit of Dr. 1/30/14 6

OOO. Affidavit of Dr. 1/30/14 15

PPP. First Progress Report 11/13/13 11

DOE Exhibits Date Number of Pages

ADDITIONAL DOCUMENTATION

IHO Exhibit Date Number of Pages

IV. Order on Pendency 8/12/13 6

V. Interim Order 10/11/13 5

VI. Parents’ Closing Brief 3/3/13 19

VII. DOE’s Closing Brief 3/3/13 19

VIII. Email from IHO to parties 3/9/14 1

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Footnotes

[7] Information from 4/17/13 1