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: August 9, 2013

October 16, 2013

December 4, 2013

February 3, 2014

March 26, 2014

April 28, 2014

Actual Record Closed Date: May 9, 2014

Hearing Officer: Jeanne M. Keefe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 9, 2013

ESQ., Attorney for Parents — Student

ESQ., Attorney for Parents — Student

DR., DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 16, 2013

Attorney — Student

Parents

Parents

DR., District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 4, 2013

Parents

Parents

Attorney — Student

Interpreter — Student

CSE Psychologist (Via Telephone) — DOE

Teacher (Via Telephone) — DOE

Department of Education Rep. — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 3, 2014

Attorney for Parent — Student

Spanish Interpreter — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 26, 2014

Attorney — Student

Parents

Parents

Interpreter — Student

Special Education Itinerant Teacher (Via Telephone) — Student

Placement Coordinator, (Via Telephone) — Student

DR., District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 28, 2014

Attorney — Student

Parents

Parents

Interpreter — Student

DR., DOE Representative — DOE

Occupational Therapist (Via telephone) — DOE

Physical Therapist — DOE

INTRODUCTION

On July 26, 2013 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, section 1415 (f) (1), concerning a dispute involving the special education program of

BACKGROUND

. The classification is not in dispute. (t. 70) currently attends the (“ ”) a New York State approved non-public day school in a 6:1+2 special class with related services of 3x30, ”) 2x30, and ”) 3x30. The student also has an augmentative communication device, Nova Chat 7 for use at school and home. (Ex. 1) A request for an impartial hearing was filed on 7/1/13 in which the Parent alleges that the Department of Education (“DOE” or “District”) failed to offer a free and appropriate public education (“FAPE”) and that the IEP for the 2013-14 school year is substantively and procedurally defective and asserts that the DOE program by failing to make provision in the Individualized Education Program (“IEP”) for at home services of ten hours a week SETSS/ABA therapy at the providers current rate of $110, one hour per week of and 1:1 PT. JH began receiving the aforementioned at home services in early intervention and when he aged out of that program he received them pursuant to Impartial Hearing Orders (t. 15960, Ex. B & C). An Order of Pendency, dated 8/21/13, was issued directing that the after school related services be provided for the duration of the hearing. In addition, makeup services were ordered for 4 weeks of school services that should have been provided over the summer but were missed due to lack of funding by the DOE. The DOE did not object to the Order of Pendency. (t. 12) It is the position of the DOE that JH was offered a FAPE for the 2013-14 school year and that the program and placement addressed his unique needs.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

An IEP meeting was held on 5/28/14 In attendance at the meeting were both Parents and sister of bilingual social worker (also acts as translator), district representative and school psychologist, a parent member, special education teacher/related services provider. Also in attendance via telephone were representatives from HASC the student’s current school which included his teacher Irina Firsheyn and related service providers. ( Ex 1) is described as basically non-verbal, and demonstrating significant cognitive, academic, speech, fine motor and gross motor deficits. In preparation for the attempted to do (Ex. 4) and did a classroom observation. was unable to complete the academic test for the evaluation because of his significant communication problems and short attention as well as being over stimulated. (t. 66-67,119, Ex.6) At the meeting the CSE team reviewed the related services reports provided by the school, the psycho-educational report and classroom observation by Ms. Murthy, and the social history update (Ex. 5) prepared by the social worker. ( t. 64-66) There was no disagreement the program or his related services at the school with the exception of a reduction in PT. The physical therapist recommended a reduction of 1 session per week, the rationale being that he was making an improvement and 2 times per week would be sufficient. The Parent was not in agreement to a reduction in PT. (t. 70-

73) The goals were to be provided progress and needs were discussed at the meeting and there was no disagreement. (t. 74, 108-09) Ms. testified that at the time of the meeting she was unaware of the fact was receiving after school services until advised by the Parent. She further testified that she does not recall whether or not she told the Parent that they would not consider after school services because they were not on his prior IEP (t. 75, 81, 90) Prior to the start of the meeting the Parent provided the district representative with reports prepared by the after school related service providers (Ex. F, G, H, J) and asked if they could participate in the meeting as those providers were available to participate. The Parent testified that she asked the CSE about continuing the after school services at both the beginning of the meeting and the end of the meeting. Ms. told her that she did not know anything about after school services and that they were only there to do the IEP for the 2013-14 school year and that the Parent would have to address the issue with another person. (t. 161-67, 170-71) There was no discussion of a transition plan from 13 hours of after school services to no services as the CSE was unaware that he was receiving such services. (t. 174)

Ms. testified that he was making positive and had made good progress. She was also in communication with his home based SETSS teacher. (t. 120-21) She believes that the school provides parent training and sometimes participated at workshops but mostly came in for parent/teacher meetings or spoke to her on the phone. She participated in the annual review meeting on 5/28/13 and the goals were provided by the school and are realistically attainable. (t. 122-23) Ms. testified that she believes that benefits from his afterschool program and that continuation is necessary for continued progress, especially . (t. 124-26) Ms. stated that in the course of the 5/28/13 meeting she strongly recommended the continuation of the after school services because has good potential and is able to pick up new skills but it is necessary for him to generalize his skills in different environments. The home based teacher can help to generalize his skills in a more natural environment and also to continue to develop skills as well as to show the Parents how to manage the teaching. She further testified that she does not recommend home services for all her students but felt it was necessary for She stated that in order to prevent regression needs home based services. Ms. testified that she was in contact with his home based teacher via phone and were working on similar goals and that the additional work at home helped him progress with his activities of daily living skills (“ADL”). It is her opinion that without the home services JH will regress and that he needs the home services without interruption. (t. 127-30)

The IEP for the 2013-14 school year was developed and did not contain any afterschool services. (Ex. 1) Prior to receiving the IEP the Parent sent a letter to the chairperson of the CSE dated 6/12/13 (Ex. D) in which she noted that she had not yet received a copy of the IEP, requesting that it be translated in to Spanish and that she is in agreement with the continuation of and the in school services. In addition the Parent stated that she believed that the CSE wrongly refused to consider the after school services and that she was told could not get after school services because he was not currently receiving any such services. She further states that she will seek funding/reimbursement for the after school services. No response was received from the CSE. A copy of the IEP translated in to Spanish was sent to the Parent in September 2013. (t. 176, 104)

the SETSS teacher at the time of the 5/28/13 IEP meeting testified that at the time of the meeting JH required the continuation of the after school SETSS. The services were needed in order to maintain a level of independence, acquire new skills and prevent regression as well as to generalize the skills from school to home. (t. 205-06) She testified that students are often able to perform a skill in the setting in which they learn it but are unable to translate that skill and perform it in another environment. (t. 211-12) When she worked with JH they were working on his goals from his IEP and she communicated with his HASC teacher. She testified that was making progress and absolutely needs the after school services. (t. 214-16, 218) Ms worked with the Parent to show her the steps to work with JH. (t. 222)

The Parent testified that despite the order of and has not received it since in or around September 2013. This was based on a payment dispute between the service provider and the DOE. The Parent did not go to another provider and had been working with that particular therapist for a long time. The Parent did not believe that it would last that long, though it has not been resolved to date. (t. 180, 194) Without the after school speech the Parent testified of the . (t. 198) The Parent testified has made progress with his after (t. 181)

current in school testified that his progress for the 2013-14 school year has been limited. She believes that he receives additional services. She was unable to offer an opinion on the benefits of because she would need to know what the goals and objectives are that differ from in-school goals and objectives and how the therapy was meeting his needs on a different level. (t. 258-60) She testified a significant amount of behavioral overreactions to therapy which impede his progress. (t. 261) It was her opinion that the focus should shift more towards life skills and ADL skills training. s not set up to offer such real life skills training. (t. 265-66)

current physical therapist , testified that she has been working September, 2013 and that he was making progress in the beginning but is not making much progress now and believes he may have out grown the school. In addition she testified that she spends a lot of time addressing . (t. 273-74, 278-79) Ms testified that she believes that JH is getting PT after school and that he can benefit from . (t. 275, 281-82)

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. 1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. 1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. 1414 (d); 34 C.F.R. 300.320). As noted by the State Review Office (“SRO”) in Application of a Student With A Disability, Appeal No. 11-068 the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition for a unilateral placement has the burden of proof regarding appropriateness of such placement. (Educ. Law Section 4404 (1) (c); see MPG v. New York City Dep’t of Educ., 2010WL3398256 at *7 (SDNY Aug 27, 2010) In the case at hand the Parent is seeking to maintain the same level of services that the student was receiving pursuant to prior un-appealed impartial hearing orders.

I find that based on the testimony adduced at the hearing the District failed to provide the student with FAPE for the 2013-14 school year based on the failure to provide, or even consider providing, with the after school services that he had been receiving at the time of the 5/28/13 IEP meeting.

The State Review Office (“SRO”) considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No. 08-037. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing officer “may find that a student did not receive FAPE only if the procedural inadequacies: (a) impeded the student’s right to FAPE; significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE for the student; or caused a deprivation of educational benefits.” (Matrejek v. Brewster Cent. School Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007). FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). In Walczak v. Florida Union Free Sch. Dist, 142 F.3d 119 (2d Cir. 1998) the Court observed that the “[Individuals with Disabilities Education Act] does not itself articulate any specific level of educational benefit that must be provided through an IEP. The Supreme Court has… specifically rejected the contention that the “‘appropriate’ education” mandated by IDEA requires states to ‘maximize the potential of handicapped children’ Board of Educ. V. Rowley, 458 U.S. at 197 n.21, 189, 102 S.Ct. at 3046 n.21, 3042. the purpose of the Act was ‘more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.’ Id. At 192, 102 S.Ct at 3043; accord Lunceford v. District of Columbia Bd. Of Educ., 745 F.2d 1577, 1583 (D.C.Cir 1984) (Ruth Bader Ginsburg, J.) (because public ‘resources are not infinite,’ federal law ‘does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child’) An appropriate public education under IDEA is one that is likely to produce progress, not regression.’ Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 248 (5th Cir.1997) (internal citation omitted), cert. denied, ---U.S.---, 188 S.Ct. 690, 139 L.Ed.2d 636 (1998). Id., at 130, 132. An IEP must be reasonably calculated to produce educational benefit, not necessarily to maximize potential. See Rowley, 458 U.S. at 189 (1982). A public school district is not required to provide essentially “everything that might by thought desirable by loving parents.” See Walczak, 142 F.3d at 132.

I find that based on the testimony adduced at the hearing that the DOE failed to provide JH with FAPE for the 2013-14 school year. It is uncontested that at the time of the May 28, 2013 IEP been receiving after-school services of ten hours a week of SETSS/ABA therapy at the providers current rate of $110, one hour per week of and or been receiving the aforementioned at home services in early intervention and when he aged out of that program he received them pursuant to Impartial Hearing Orders. I credit the Parent’s testimony that at the IEP meeting she provided the CSE with reports from the after-school providers, requested their participation in the IEP meeting and requested inclusion of the after-school services at both the beginning and the end of the meeting. I further credit the testimony of Ms. that she strongly recommended the continuation of the after-school services in the course of the IEP meeting. I find it unlikely that the CSE had no knowledge of the after-school services, especially in light of the fact that the student had been receiving them for years, and had been the subject of two impartial hearings for the two prior school years. The fact that the after-school services were not included in the prior IEP is not a reason to ignore the services. Even if taken in the most positive light for the members of the CSE team at the meeting of 5/28/13 the DOE was aware of the after-school services and should have made certain that their employees were properly prepared for the meeting with all the requisite knowledge of the student. In addition, once the CSE was made aware of the after-school services by the Parent and Ms. Firsheyn they were under an obligation to address the after-school services. Putting the onus on the Parent for not adjourning the meeting for another date does not absolve the DOE of their responsibility to address the after-school services and give reasons as to why they should or should not be continued. I also find that the Parent was unclear as to what steps she would have to take or who to speak to regarding another meeting. In addition, the Parent followed up with a letter to the Chair of the CSE detailing the failure of the CSE team to include the after-school services in the IEP and received no response to that communication. In failing to address the afterschool services the DOE impeded the student’s right to FAPE and further significantly impeded the Parent’s opportunity to participate in the decision making process regarding FAPE for the student. The testimony of the providers and teachers that work with the student all agreed that JH benefitted, or could benefit, from after-school services. The HASC teacher, and the after-school SETSS teacher both testified that the after-school services would be important to avoid regression. In view of the foregoing I find that the DOE has failed to FAPE for the 2013-14 school year.

ORDER

Therefore, it is hereby ordered that the Department of Education shall continue to provide the student with after-school services as follows: ten hours a week SETSS/ABA therapy at the providers current rate of $110, as well as one hour per week of for the 2013-14 school year. Dated: May 20 2014

Jeanne M. Keefe, Esq. gc

JEANNE M. KEEFE, ESQ.

Impartial Hearing Officer

JK:gc

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 AUGUST 9, 2013

A. Impartial Hearing Request, dated 7/1/13, 7 pages Parent

B. Findings of Fact and Decision, dated 7/7/13, 14 pages Parent

C. Findings of Fact and Decision, dated 12/12/11, 17 pages Parent

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 16, 2013

D. Letter from parent with fax confirmation, dated 6/12/13 Parent pages

E. IDENTIFICATION ONLY Parent

F. SETSS Progress Report, dated 5/15/13, 1 page Parent

G. Bilingual Addendum, dated 2/17/13, 3 pages Parent

H. PEDS OT Report, dated 2/15/13, 2 pages Parent

I. PEDS PT Report, dated 2/16/13, 2 pages Parent

J. SETSS Report, dated 2/15/13, 1 page Parent

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 4, 2013

K. Psycho Educational Evaluation, dated 5/20/13, 4 pages Parent

1. IEP, dated 5/28/13, 16 pages District

2. Minutes of Meeting, dated 5/28/13, 2 pages District

3. PT Annual Progress Report, dated 4/3/13, 3 pages District

4. Evaluation, dated 8/14/12, 4 pages District

5. Social History Update, dated 5/20/13, 3 pages District

6. Classroom Observation, dated 5/28/13, 1 page District

7. Educational Progress Report, dated 4/14/13, 4 pages District

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 26, 2014

E. SETSS Progress Report, dated 8/15/13, 1 page Parent

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 28, 2014

K. SETSS Progress Report and Proposed IEP pages, dated 12/1/13, Parent

6 pages

POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER

I. Statement of Adjournments and Extensions, undated, 1 page