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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parents
Dates of Hearing: July 30, 2013
August 5, 2013
December 18, 2013
January 9, 2014
March 18, 2014
April 2, 2014
April 15, 2014
May 2, 2014
Actual Record Closed Date: July 23, 2014
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED July 30, 2013 August 5, 2013 December 18, 2013 January 9, 2014 March 18, 2014 April 2, 2014 April 15, 2014 May 2, 2014
Attorney — Student
DR., CSE Representative (via telephone) — DOE
Attorney — Student
Attorney — DOE
Attorney — Student
Attorney — Student
Parents
Attorney — DOE
School Psychologist (via telephone) — DOE
Attorney — Student
Attorney — Student
Parents
Attorney — DOE
School Psychologist (via telephone) — DOE
Attorney — Student
Attorney — Student
Parent/Mother — Student
Attorney — DOE
District Representative Observing — DOE
School Psychologist (via telephone) — DOE
Attorney — Student
Attorney — Student
Parents
Attorney, New York City — DOE
Rel. Serv. Coordinator, (via telephone) — DOE
Senior Teacher, (via telephone) — DOE
Attorney — Student
Parents
R, (via telephone) — Student
(via telephone) — Student
Attorney — DOE
Attorney — Student
Attorney — Student
BCBA (Via Telephone) — Student
Physical therapist (Via Telephone) — Student
Parents
Attorney — DOE
On July 30, 2013, August 5, 2013, December 18, 2013, January 9, 2014, March — DOE
18, 2014, April 2, 2014, April 15, 2014 and May 2, 2014, I conducted an Impartial — DOE
Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).
Procedural History
The proceeding was initiated at the request of the parent by correspondence dated July 1, 2013. (Ex. A) I was appointed Impartial Hearing Officer on July 3, 2013. I was available to conduct a hearing within 14 days of appointment. A hearing was held on July 30, 2013, with regard to the parents’ request for an order concerning the student’s pendency entitlements. At that hearing it was determined that the New York City DOE district had been incorrectly specified by the Impartial Hearing Office and the DOE Representative who appeared had no knowledge or responsibility with regard to this matter. Further, she asserted that she had not received the parents’ disclosure documents which would have made that clear to her before the hearing. Accordingly, I declined to default the district with regard to pendency. (T. 11-26) The correct district and district representative were thereafter identified and a hearing was held on August 5, 2013, at which counsel appeared for the district. Although the resolution period had concluded in the interval, the August 5 hearing was limited to the pendency issue. (T. 31)
At that hearing, the parties agreed that the student was entitled to various related services pursuant to pendency but disputed, among other things, precisely what had been provided by the DOE. It was agreed that further investigation was required in order to determine if the parties could resolve this matter or if additional evidence was required and a telephone conference was scheduled. (T. 58-66) I was thereafter informed that some of the issues had been resolved but that further investigation was required. By email dated August 26, 2013, I was informed as to the terms of the agreement with regard to pendency. The email chain concerning this matter is included herein as Exhibit I.
I issued an Interim Order on Pendency on August 27, 2013. (Ex. H) The order specified that:
The parties have agreed that pursuant to pendency provisions of applicable federal and state regulations the student is entitled to receive from the DOE, for the period from July 1, 2013, until this action is withdrawn or a final decision is issued, the following:
1. Full time placement at ”), a non-public day school (12 month program);
2. In school therapy (“ ”) 4x30x1:1 and 1x30xgroup per week. However the parties agree is only providing 3x30x1:1 of the requirement and that RSAs are to be issued for afterschool SL 1x30x1:1 and 1x30xgroup (12 month program);
3. In school as provided by the non-public school (3x30x1:1 per week) (12 month program);
4. In as provided by the non public school (2x30x1:1 per week) (12 month program);
5. Afterschool 10 hours ABA per week via RSAs (12 month program);
6. Afterschool in a (3x30x1:1per week) via RSAs (12 month program);
7. Afterschool in a sensory gym (2x45x1:1 per week) via RSAs (12 month program);
8. Parent training and counseling as provided by the non-public school.
At a telephone conference with the parties conducted on August 26, 2013, the initial hearing was scheduled for October 16, 2013, the first mutually available date for the parties, their witnesses and the hearing officer. (Ex. II )
By correspondence dated October 4, 2013, the parents filed an amended hearing request. (Ex. I) The parents alleged that the 2013-2014 school year IEP had only recently been received. (Ex. I) I granted amendment on October 10, 2013. The October 16 hearing was cancelled and a new resolution period commenced. That resolution period concluded on October 25, 2013. At a telephone conference with the parties conducted on October 30, 2013, a hearing was scheduled for December 18, 2013. On December 18, 2013, the DOE requested an adjournment due to the unavailability of witnesses and the adjournment was denied. Various other dates were thereafter scheduled but weather conditions and hearing office notification failures caused some cancellations/rescheduling.
The parties moved to extend the compliance date various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and the submission and consideration of closing arguments. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and my written decisions were given to the parties. (T. 73-75, 119-120, 282-283, 466, 472, 662-663, 805, Ex. III)
The current compliance date is August 5, 2014. The record closed on July 23, 2014, upon my receipt of all closing memoranda. 1 Background 2 The student at the commencement of the 2013-2014 school year and his classification . (Ex.[1] ) That classification is not in dispute. (T. 663) His history includes diagnosis . (Ex. 12)
The student received and Applied Behavior Analysis therapy (“ABA”) through ”). (T. 12)
He attended preschool , a state approved private special education day school, and received related services and 10 hours of 1:1 at home ABA through the CPSE. (Ex, 11)
From the 2011-2012 school year, upon “turning five,” he has attended in a 12 month Extended School Year (“ESY”) program, ( ”), a state approved private special education day school, with in-school related services and continued to receive 10 hours of ABA after school as well as after school related services until implementation of his May 16, 2013 IEP. (Exs. E, F)
On May 16, 2013, the CSE had reconvened to develop a program for the remainder of the 2012-2013 school year pursuant to the order of Impartial Hearing Officer , issued March 12, 2013, which also specified certain conditions with regard to the conduct of that review. (Ex. E) At that review the CSE reduced weekly afterschool services to 5 hours of ABA, parent training . (Ex. O) The student continued in a class with a paraprofessional. (T. 149, Ex. O) Transportation accommodations were provided (air conditioning, mini wagon, limited time travel- not more than 90 minutes). (Ex. O)
On June 18, 2013 and June 25, 2013 the CSE reconvened to develop a program for the 2013-2014 school year. In the IEP that resulted (referred to herein as “the June 2013 IEP”), the CSE recommended an with a crisis management paraprofessional and in school weekly 3x30 , and as well as parent training and counseling 1x60 per month to be determined by the school. However, it eliminated all afterschool services. Transportation accommodations were provided (1:1 paraprofessional, restraint). (Ex. 1)
The parents filed an impartial hearing request concerning the May 13, 2013 and June 25, 2013 IEPs by letter dated July1, 2013. (Ex. A)
My interim order concerning pendency was issued on August 25, 2013 and provided that, pursuant to the agreement of the parties, from July 1, 2013 the student as entitled to receive afterschool services weekly of 10 hours of ABA, OT in a sensory gym ( (Ex. H)
By letter dated October 4, 2013, the parents alleged that they had not received the June 25, 2013 IEP until on or about September 20, 2013, and they filed an amended hearing request. (Ex. I)
Positions of the Parties
Parents
The parents assert that the May 16, 2013 and June 25, 2013 IEPs are substantively and procedurally defective. 3 The parents claim that the DOE failed to provide a FAPE for the period from May 16, 2013-June 30, 2013 (2012-2013 school year) and July 1, 2013-June 30, 2013 (2013-2014 school year). The parents assert that a Burlington/Carter analysis should not be applied in this matter since the student has received the in school program recommended by the CSE, in a state approved non-public school as well as services pursuant to pendency order and the issue of “funding” or “reimbursement” does not apply. The parents claim that a “straight FAPE analysis should apply” but do not otherwise address it. However, they claim that the afterschool services they request are appropriate and that equitable considerations favor the parents. [4]
In their closing memorandum, they request in addition to the in school program and placement provided during pendency the following: afterschool related services (10 hours of 1 of OT in a sensory gym, 2 45 minute funding for all transportation costs associated with utilizing the afterschool related services; special education transportation to and from school in an air conditioned mini –bus with a bus para and limited time travel (under 1 hour); reimbursement for costs/expenses of transportation to and from school when was not provided; 2 hours per month of parent training and counseling by a Board certified ; receipt of all services on “a 12 month basis”).[5] (Ex. VI)
3
In the amended hearing request the parents asserted claims that the CSE failed to comply with various specific procedural requirements of IHO Cohen not included in the IDEA and state and federal implementing regulations. (Ex. I) As discussed below the DOE asserts that I may not consider any claims with regard to the May 2013 IEP. However, I note that the parents appear to have abandoned those claims based upon lack of compliance with the unique requirements of that order. (Ex.VI ) Moreover, with regard to those requirements, I note that in any event the evidence does not support them. Rather, the evidence shows that that the in school PT provider did participate. (T. 158, Ex. O), the parent was provided with minutes prepared by the CSE (T. 156) and the CSE provided the parents with a justification of its recommendations in writing (T. 200-202, 450, Ex. 20)
Further, in the amended hearing request the parents also asserted a failure to provide a placement. That claims, however, also appears to have been abandoned. In any event it is not supported by the evidence which shows that the parents were informed at the June 25, 2013 review that the student would remain at Hawthorne. (T. 266-269)
DOE
The DOE asserts that the program provided by the CSE in both challenged IEPs was appropriate and allowed the student to make meaningful progress, that it complied with such procedural requirements as were raised by the parent in their complaint and provided a placement that could implement the IEPs. Further, it claims that the afterschool services have not been established to be appropriate because they are substantially more than is necessary to enable the student to receive appropriate educational benefits and rather seek “generalization” of skills which the DOE claims it is not required to provide.. The DOE also asserts that the equities favor it because the parents seek generalization/maximization. The DOE asserts that a Burlington/Carter analysis is required. (Ex. V)
Further the DOE reiterates its motion to dismiss all portions of the amended request and which relate to the 2012-2013 school year and the May 16, 2013 IEP as seeking enforcement of a prior impartial hearing officer decision and therefore not subject to my jurisdiction. (T. 136-139 , Ex. V)
Cases Presented
Both parties submitted documents which were admitted into evidence. A list of documents in the record is appended.
DOE Witnesses
participated in the May and June reviews as school psychologist and district representative. (T. 147, 374, Exs. 1, O) She has never observed the student. (T. 372,
397) The testimony included the following:
May review
request and the details of that request was not discussed during the hearing. It is also noteworthy that the program is a 12 month ESY program.
Other participants in the May review were a DOE special education teacher, the Hawthorne program coordinator, the , the providers as well as both afterschool ABA providers, the student’s mother and her attorney. (T. 156, 187, Ex. O) The May review was limited to discussion of afterschool services in the remaining portion of the 2012-2013 school year pursuant to the IHO order since an annual review for the following school year would be held shortly. (T. 157, 173, 204, 356, 396) An FBA/BIP was not developed because that would have been addressed at the annual review but there was an FBA and BIP in effect at the time. (T. 159) After the CSE said it had not received documents the parent stated were previously sent, copies of afterschool ABA, SL, OT and PT progress reports were given to the CSE and all the reports were reviewed. (T. 160, 364-365) The preparers of all the progress reports participated in the review. (T. 175, 177, 182, 187) At the meeting the team also had the March 2013 Evaluation of Dr. (“ ”) as well as other evaluations. (T. 191, 200, Ex. 12) All documents provided at the meeting by the parent were reviewed. (T. 375) The team believed it had all the information necessary and further evaluations were not needed. (T. 203)
’s related service provider report for was considered as was the afterschool progress report. (T. 161-165, 384, Exs. 6, 7) The goals were the same based upon their individual assessments and said the student could progress with the current inschool mandate of 3x30 1:1. (T. 166, 169, 171, 199) The CSE reduced the afterschool service from 4 to 2 30 minute sessions because in view of the student’s maladaptive behaviors the CSE did not want to completely eliminate that afterschool service. (T. 169) The parent disagreed with the reductions in services and her attorney said they were necessary for generalization. (T. 170, 172)
The team reviewed the OT progress reports and recommendations and reduced afterschool because asserted that both were working on the same deficits and everything the afterschool provider was working on could be and progress made within the 3x30 1:1 mandate but the CSE did not want to entirely service in view of the high level of service the student had been receiving.. (T. 174-181,185, 199, Exs. 10, 11) The issue of a sensory gym was discussed asserted that it had all equipment. (T. 178, 394). The parent disagreed with the reduction. (T. 179)
The team reviewed both and asserted that everything the afterschool provider was working on could be addressed and progress made within mandate the student was receiving in school but the CSE did not want to completely eliminate the afterschool service because of the high level the student had been receiving (T. 181-185, 199, Exs. 8, 9) The parent disagreed with the recommendation. (T. 186)
The student’s home ABA providers’ recommendation of 10 hours per week of ABA was progress according to the student’s teacher. (T. 188, 199) that a lot of what the providers were working on was home related which the parent had said she could not do and the CSE did not want to completely eliminate it in view of the high level the student had been receiving. (T. 188-189) Those included Adaptive Daily Living Skills (“ADL”) including
With regard to parent that the parents had been receiving that 5 times per week for several months and at that point the parent would have gained necessary skills and 2x45 would suffice. (T. 194, 198) The ABA therapists who had been doing the training disagreed. (T. 198 has parent training, had no knowledge as to the parents’ participation in that. (T. 197)
With regard to the 2013 , she stated that many of the recommendations were already in place. (T. 191-197)
The student was exhibiting impulsivity at the time of the review and that was a factor in continuing some after school service. (T. 203) The student was at time exhibiting aggression but that was going to be “really discussed” as the June annual. (T. 204)
The program was not discussed at the May review but at opined that if the student needed the afterschool services to make progress perhaps Hawthorne was not a proper placement. (T. 205)
The goals in place at that time were similar or the same as the home providers goals. (T. 208)
June reviews
The CSE scheduled a June 11 meeting and informed the parent by letter but the parent was unable to attend on that date and provided available dates which were too close to the end of the school year. (T. 210-212, Exs. 15, 21) The CSE so informed the parent and scheduled a meeting for June 18 for which the parent appeared but the start time was delayed, the parent had to leave before it was completed and it continued on June 25 after discussion with the parent and her attorney. (T. 211-215, 217, Ex. 16)
June 18 participants were the DOE special education teacher who participated in the May review, the student’s teacher, the Hawthorne head teacher and the Hawthorne program director. (T. 216, Ex. 1) The same persons participated on June 25 as well as various related service providers. (T. 216, 263-264, Ex. 1)
With regard to predetermination and related issues, stated that on a number of occasions prior to the meeting she had discussed with that she had been informed by DOE administrator as to a State “rule” that if a school could not provide the services a student needed it might not be an appropriate placement. (T. 221-222, 398-399, 411) Those conversations had been general and did not concern this student particularly. (T.
221) KR testified initially that the CSE could order afterschool services when appropriate if it could not find a program that was appropriate. (T. 261-263) She thereafter testified that her understanding was that the determination by the CSE that a student required afterschool services in addition to a school program did not affect the appropriateness of the school but a school’s inability or unwillingness to deliver the in-school mandate would. (T. 398-401) It was her understanding that were limits in what Hawthorne would provide but she did not know what they were and she was not given a reason for the maximums. (T. 406, 408) The CSE’s recommendations was based upon its conclusion as to what was appropriate for this student, not what it believed that the school could or would provide. (T. 412)
The team had the same material as in the May meeting but also received an additional progress report. (T. 225, 263, Ex. 4) No additional evaluations were requested or necessary because the team believed it had everything it needed including ABA provider participation in the review. (T. 225-226, 383, 397) The CSE had the (T. 375, 380, 381, Exs. 12, 13, N) id not believe additional participants were required but they would have been permitted. (T. 263-264)
The student’s mother disagreed with the description in the Present Levels of Performance section and said that she did not see the same thing at home. (T. 228, Ex. 1-
2) The IEP addressed things, a (T. 234, 257-258) Difficulty in navigating the school was noted and addressed. (T. 235) Management needs were specified and there was no disagreement. (T. 236-239) ABA was not specified on the IEP but all were aware that utilized that methodology and its components were outlined in the management needs. (T. 239-241) The academic goals are measurable and were to be worked by all teachers and related service providers. (T. 243-247) Related service goals were measurable. (T. 256-257) Related services were provided based upon Hawthorne provider recommendations as to the mandates necessary for the student to make progress.
(T. 247-255) The parent and her attorney objected mandate because they did not think the student could progress. (T. 248) ’s proposal that an additional session be added at school was rejected by the parent who thought afterschool services were necessary to generalize and by the school which thought its current mandate was sufficient. (T 249) The issue of was stated that that at that time it had everything needed although not in one room. (T. 251, 425-426) The team was aware the FBA and BIP would . (T. 447-448) The team believed that generalization needs, including with regard to navigation, would be addressed through parent counseling and training 1x60 per month with and the ability to seek and the parent disagreed (T. 250, 252, 253, 254) All agreed that the student would not benefit from counseling as a related service. (T. 255)
The parent and the ABA providers had stated that the student had regressed after the reduction of afterschool services in May but the school staff said they had not seen that. (T. 258-261, 465, Ex. 2) The CSE was aware that all the independent evaluations had recommended 10 hours per week of afterschool ABA. (T. 382) However, those reports were made prior to the reduction in services without knowledge that the school staff had not seen any resulting negative effect. (T. 446)
The school recommended and the CSE agreed that the student should moved to an from was then in and there were no objections to that move. (T. 264) The student is “alternate assessment” therefore testing accommodations were not required and Hawthorne is ungraded so promotional criteria were also not required. (T. 269-270) All agreed that the student was intelligible and no one indicated that an Assistive Technology device was required. (T. 271) Transportation using a harness and was discussed, the CSE submitted the necessary forms and that service was approved and the recommendation placed on the IEP, carried over from previously. (T. 272-273, Ex. 1-11) An FBA and BIP were developed during the meeting and there was no disagreement. (T. 273)
A prior written notice was sent out subsequent to the June meeting. (T. 451)
The (“HSL”)
related services coordinator and she has provided to the student for 3 years.
(T. 475, 477) Her testimony included the following:
The attendance list specifies that she attended the June 18 and June 25 meetings but she had no recollection of it and might have just “popped in” briefly to answer questions concerning . (T. 478, 492-493, 501, Ex. 1) She had no recall as to whether she attended the May meeting. (T. 524) With regard to her work with the student, currently she is working on increasing novel utterances, skills, inferencing answering WH questions, turn taking and participation in adult directed activity. (T. 478-479) The student at times has difficulty attending and transitioning and for that reason pull-out service is more effective. (T. 514-515) , hit or bang his head into someone. (T. 531)
In 2013-2014 she saw the student 3x30 (1:1) usually on a pull out basis and he received the same level of service in the 2012-2013 school year. (T. 479, 494) His 1:1 para is always with him during sessions so there are 2 adults but the para does not participate . (T. 516, 545) students receive more than 3 weekly SL sessions. (T. 535)
She stated that in addition to the IEP SL goals she is working on turn taking and adult directed activities. (T. 480-487) During the 2012-2013 school year she was also working on reducing scripting, WH questions and turn taking but at lower/different levels. (T. 537-538) The student has progressed since July 2013 in the areas of communicative function, reducing scripting and listening to direction. (T. 490-491) She characterized his progress as moderate. (T. 538)
The HSL had recommended continuation of the prior level of service because he was making progress at that level and achieving goals while getting enough time to carry over the skills within the class. (T. 494) She was not aware as to whether the student was receiving any provider for this student and does not know what he may be working on afterschool. (T. 498-499, 541) She could not opine as to his need for afterschool services because she has not seen him in another setting but stated that the in Hawthorne 3x30 1:1 has enabled him to make progress. (T. 498) She only recommends school services because she is only with him there. (T. 540) Afterschool SL might or might not affect the degree of progress the student was making with her. (T. 547-548)
Because the HSL had preciously testified in an impartial hearing for this student and was aware that he had been receiving afterschool service in all areas. (T. 520) She has never spoken with the parent concerning any afterschool related services the student was receiving this year. (T. 542)
Her role as related service coordinator is told her that the student was making progress in all areas told her he was improving in all activities. (T. 496-498, 532) The student received 3x30 (1:1) on a pull out basis always present at the sessions. (T. 516, 518-519)
Senior Teacher (“ )
since September 2013 and supervises the student’s class as well as others. Her role includes helping and supporting the teacher in instructional and behavioral areas and to writing behavior plans. (T. 552) She is a certified special education teacher, has a masters and is pursuing a doctorate in applied behavior analysis and has completed all requirements for a BCBA but has not yet taken the exam. (T. 555) The testimony of the HST includes the following:
She described the student who has responded well to a behavior plan. (T. 557) The student and . (T. 600-601) He needs varying amounts of (T. 603-604) He also leaves the area in which instruction is being provided to go to another part of the room, a form of lack of participation. (T. 612, Ex. 23-3) The student benefits from being reenforced for correct behaviors. (T. 614)
The student’s class is the highest functioning class in the school in that they have the highest verbal and academic skills in that they are on some grade level. (T. 564, 579) She has not given the student academic instruction directly but has made many observations. (T. 559) The and wrote a BIP for the student which has not yet been implemented and has reviewed the IEP’s BIP which is in effect. (T. 559-561) The proposed changes in the BIP are a result of progress. (T. 561) During this school year a class wide token economy was implemented. (T. 562) A direct instruction program is utilized to provide applied behavior analyst developed scripted curriculum for all instruction, correlated with the Common Core, and requiring ongoing collection of data and graphing. (T. 565-569) Data is collected for . (T. 569) The student has a para who is always present but does not provide instruction. (T. 574) The student receives whole class instruction as well as instruction in a dyad and (T. 577, 632) The HST was unable to quantify the amount instruction the student received because it varied. (T. 629)
The student has progressed academically, significantly or otherwise, in all subjects and is progressing to achieving his IEP goals. (T. 581-582) With regard to behaviors the data shows an overall demonstrating progress. (T. 583-584) The HST is aware that the student received afterschool ABA from information provided by the parent and an observation by the home provider but is not sure of the amount. (T. 585) She communicates with the home provider through the parent and the teacher may also communicate. (T. 585) The afterschool provider observed at least twice this year so far.
(T. 585-586) The HST provided materials for the after school ABA and responded to questions concerning what was being worked on in the class and questions concerning his instruction. (T. 586-587, 655) The at home program is working on the same IEP goals. (T. 589, 655-656) The HST has not received any data taken by the home provider and has not received reports. (T. 590) She opined that the student had made significant progress in school based upon his performance on the target curriculum with built in assessments which she believed could be attributed only to instruction provided there.
(T. 590-591) She has no knowledge as to what services other than ABA he receives after school. (T. 617)
The goal of parent training is to give the parents what they need to have success with a student at home. (T. 593) The school provides hour parent training monthly on a specific topic and the parent has attended many. (T. 591-592) The HST opined that was sufficient based upon his needs in school but that she did not know his needs at home. (T. 591)
Parents Witnesses
The Afterschool (“the AOT”)
The AOT is licensed to practice OT in New York and is authorized to deliver EI services. (T. 671) He is founding member and supervises all , a rehabilitation center providing to children from birth to 21 which is a DOE contracted agency which also accepts RSAs. (T. 671-675) His testimony included the following:
The AOT provides OT service to the student and currently there is another OT who also provides service to him under the AOL’s supervision. (T. 676) Approximately 40-50 % of his caseload are children on the autism spectrum. (T. 673) The student currently receives 3 30 minute sessions per week from the agency, 2 from the AOT. (T. 676, 701, 721) The student has substantial , consistent prior to his being able to address more academic –based goals including handwriting and fine motor skills and to be more independent in school. ( T. 673-674, 678-681, 702) Those behaviors include and is addressed by activities to provide what and increasing the possibility of focus and attention. (T. 679-680, 693) These activities input of various types. (T. 679-682, 688-689) He generally requires10-15 minutes to regulate before work can commence. (T. 681-682) The student is and tends to perseverate, requiring constant redirection and may script for 5-10 minutes. (T. 689-690) OT positioning close to the student is required 80-90% of the time to maintain focus and enable work to be done. (T. 691) During the session, at the table. (T. 692, 694) The student also with no thought of the possibility . (T. 694-695) is among the methods utilized to address visual/spatial needs affecting handwriting. (T. 696-698)
The student has progressed with . (T. 691, 698) He is sitting for longer periods of time but not consistently and more receptive to assistance. (T. 692, 700) He has made progress with regard to motor planning and sequencing and grasp. (T. 695, 699-670) He has progressed in following directions can follow simple directions but not consistently.
(T. 715-716) Progress is reported in annual progress reports, quarterly reports and session notes. (T. 731)
The AOT could not recall participation in any CSE review and was not sure if he provided services in May-June 2013. (T. 704) During OT sessions the student is working on IEP OT goals as well . (T. 706-709, Ex. 1-7) For this student, a big component of his being able to do the academic work is attention and the sensory work relates to how he will transition and sit and attend. (T. 708-709) A variety of activities relate to skills needed for reading math and problem solving as well as attention to task. (T. 713-714) ADL skills are not something worked on a regular basis with this student. (T. 737)
In the AOT’s March 2013 progress report he had recommended 5x30 in a venue that could provide sensory-based intervention and he likely did not then know the precise level of service the student was receiving at school. (T. 717-718, Ex. L) He did however, receive reports from the parent although he did not directly communicate with the Hawthorne OT. (T. 718-719, 729) He has not observed . (T. 729) This year he has recommended 3 afterschool sessions in addition to his current 3 session school mandate because of the progress demonstrated between September 2013 and March 2014. (T. 719, 740-741) He stated that the two programs are working on the a lot of the same thing but the student is grossly delayed and needs additional services in view of his sensory issues.
(T. 719-720, 722) The AOT opined that the student requires daily 30 minute OT sessions (Mon-Sat) with the parents providing certain activities in a 12 month ESY program. (T. 723, 729) Work is provided for parents to do at (T. 686-687)
Further, he testified that the student because that issue was a large component of his problems. (T. 725) He had no knowledge as to the equipment the school was using for this student this year. (T. 733) However, he is aware the some of the same issues that he has described. (T. 733)
The Afterschool Provider (“ASL”)
The ASL is a licensed speech pathologist, is a certified teacher of students hearing handicapped and has had some ABA training. (T. 747, 797) She has her own practice
She commenced with this student in July 2013 and sees him 2x30 1:1 per week.
(T. 746, 750) She did not evaluate him but reviewed documents and gathered baseline data. (T. 801) She is unable to see him in a group as mandated ( for 1 session) because of when he does not want to participate in an activity or wants something he cannot have. there were 4 or 5 consecutive sessions without having to deal with the behaviors. (T.
732) The tantrums vary from 10 minutes to 25 plus minutes. (T. 753) The student is energetic on occasion, it has been necessary to get assistance from the student’s father.
(T. 757, 760-761) However, he has strong abilities to complete a task when behaviors are not interfering. (T. 757) The student can verbalize but does not . (T. 770-771)
She uses ABA methodology with predictability and reinforcers, modifies the lesson to provide additional prompting and cueing and extends sessions to avoid reinforcing the behaviors. (T. 755, 758-759) She does not take data. (T. 798)
She is aware that the student was receiving at school because it is on the IEP and the parent has provided her with all reports and communications, including the school progress reports, which she has read. (T. 760-761, 780) The goals worked on at school are the same as those she is working on. (T. 762, 778-784) She also works on turn-taking with some sequencing. (T. 784) The ASL report did not describe the severity of the behaviors she observed and described him a little higher functioning than she observed.
(T. 804)
She described the student as very inconsistent and not generalizing with skills demonstrated sometimes and then not. (T. 763-764, 765) She is now trying to work at about the 1st grade level and breaks down the material to do that as well as prompting and cueing. (T. 765) The student responds to a large variety of questions but they need to be very basic and often require a visual cue. (T. 764) He . (T. 776) With regard to pragmatic language, she stated that the student can only repeat. (T. 776)
Progress in expressive and receptive language since July has been observed but it is inconsistent. (T. 757-758, 768-769, 772, 784) The behaviors in July were “very, very ” but have improved and decreased. (T 771) He is now better able to focus and to respond to more difficult questions. (T. 772) Very nice progress with regard to writing has been demonstrated. (T. 786) Progress is measured by his ability to move onto more difficult tasks. (T. 773) Session notes are made, the ASL communicates after each session with the parent and a progress report is prepared. (T. 773)
She opined that the student needed daily therapy and an additional 4 times a week, , outside of school because he is not consistent in demonstrating the skills he learns and does not sustain them. (T. 788-789, 803) Further, she opined that the behaviors are a function of his inability to communicate in another manner. (T. 789-790)She recommends sessions of 60 minutes to better enable dealing with the behaviors and the goals in 12 month ESY program. (T. 794, 796) Her recommendation is based upon her current observations. (T. 794)
The Afterschool ABA Provider (“the AABA”)
The AABA as a Ph.D. in behavior analysis, is a board certified behavior analyst at the doctoral level and has been working in the field for 12 years. (T. 815) Her testimony includes the following:
She has been working with the student for some 3 years and has provided 6 hours per week with another therapist, with whom she communicated and jointly maintained a communication book, who provided 4 hours. (T. 817, 857) Since January 2013, that provider has been an individual in the doctoral program in behavior analysis who has the hours and courses necessary for the BCBA but has not yet sat for the exam. (T. 857)
In Spring 2013, the student was making steady progress in many areas but continued , academics, and social area and he had the work area certain situations and needing a very high rate of reinforcement (for every few tasks he was completing correctly) and frequent breaks.(T. 820) She worked on reading books and asking questions, labeling, turn taking, constructing simple sentences of 3-4 words, math, spelling, writing and similar subjects. (T. 821) She worked both in a discreet trial manner and a more naturalistic manner. (T. 821) Common strategies were utilized by both ABA providers they were in constant touch. (T. 826)
The student’s behavior included running away from the work area and head and sometimes a harder surface. (T. 827) She stated that and things sent from school. (T.
827) The providers utilized functional communication training to teach him to express at the level of consequences. (T. 827-829)
There has been communication with the school changing the reactive measures utilized on the basis of information provided by the ABA providers. (T. 829-830) She communicates principally with the student’s teacher about what they are working on and how they are doing it in order not to confuse the student and to supplement what is being done in school and has seen school data. (T. 858-860) The afterschool providers were working on IEP goals in both 2012-2013 and 2013-2014 and data taken was in all areas.
(T. 833-836, 872, Ex. O) Although all the global goals are worked on but some of the specifics are not necessarily on the IEP. (T. 855) In addition, there were 2 or 3 goals the family thought were necessary including personal information and being able to say what happened to him. (T. 856)
She stated that progress resulting from the afterschool ABA has been demonstrated. (T.836) She asserted that the progress could not be attributed solely to the school because this student needed repeated opportunities to learn and different forms of exposure and, further, that he escaped a lot of the work at the school. (T. 844-845)
The AABA has visited the school, seen the curriculum utilized there (direct instruction curriculum) including reviewing specific lessons and observed the student doing reading with that curriculum, and received information about from the teacher and supervisor. (T. 845-846, 851, 873-874 876) She stated that doing some tasks in that curriculum the student refused to respond for 10 minutes or more and later responded at a very low rate and that the curriculum and make him read more.(T. 852, 874-875) Further, a lot of reading was done at home and a lot of his reading pleasure and skill comes from there. (T. 871) She asserted that it was difficult to differentiate what was accounting for what in his progress. (T. 852)
With regard to the , she stated that the ABA providers read the communication book sent every day by the teacher and every other day there was a , . (T. 863, 872) In contrast, she stated, his behaviors at home had been very substantially reduced. (T. 863864, 876)
She stated that effective instruction in a dyad would be limited for this student because he does not pay attention if he is not directly talked to. (T. 849)
When the student’s hours were reduced after implementation of the May 2014 IEP in June, regression occurred in various areas and when data was taken in July it revealed that he was 40 % below the pre-reduction levels in some skills including spelling, WH questions and retelling a story. (T. 837-838, 867) At the time of the June review objects, which had continued at school was reemerging at home and there were longer periods of running away from the work area at home. (T. 844, 872-873) The ABA providers also see an increase upon returns from breaks. (T. 868) In her most recent progress report she recommended 15 ABA hours a week and service on a 52 week basis.
(T. 868)
She disagreed with the a specification in the June IEP that the student was able to express his wants and needs clearly and said that he was unable to do that now and that that because they were often a consequence of his being unable to communicate what he wanted. (T. 840) She noted that compared to someone who did not talk it all it might be a reasonable description. (T. 840, Ex. 1-1) She continued to recommend 10 hours at the June 2013 review. (T. 843)
The AABA opined that notwithstanding the fact that Hawthorne was an ABA school the student needed additional hours because he needed a lot of opportunities to learn, repetition and approaching the same targets in different manners (“multiple exemplars”) to acquire the skill. (T. 826, 865) In addition, even when he mastered something it was very context-specific and if the location or person changed he would no longer respond. (T. 865) She also stated that there were long periods at the school when . (T. 826, 872-873)
She attended the May 16, 2013 review and had previously sent a report to the parent which the parent transmitted to the CSE. (T. 823) The recommendation of the 2 ABA providers was that the student continue to receive 10 hours of 1:1 ABA after school.
(T. 824) The DOE participants had not reviewed any records including the afterschool .
(T. 824, 861) They “flipped through” the documents during the review and opined throughout the meeting that they did not think he needed the hours. (T. 825)
Afterschool PT Provider (“the APT”)
The APT has a doctorate degree and is a licensed physical therapist in New York State. (T. 880) His testimony included the following:
He is , a sensory gym. (T. 881) He started providing service to the student in about September 2012. (T. 886) At that time the gave him information about the student and thereafter they communicated via email and he read her reports and all communications from the school to the parent concerning PT. (T. 887-888) In the 20132014 school year, he continued to read reports and other communications to the parent.
(T. 908) He has never observed the student in school. (T. 907) The aim of the providers was the “in the same picture” and for to following the academic needs of the student.
(T. 889) When he commenced providing services to the student, he more relevant to participation in school and impacting his academic environment. (T. 908-909) IEP goals were worked on although some of the short term objectives were consistent but different.
(T. 910)
During the 2012-2013 school year he provided 2x45 (1:1) and he prepared a progress report in March 2013. (T. 890, Ex. 9) He recommended continuation of the afterschool service because although the student was progressing he would not/had not mastered the 2012-2013 goals. (T. 889-890) The level of service provided was the “minimum’ in view of this student’s usual need to be settled down because of his behaviors and sensory issues before physical activities can start. (T. 890, 914) The into the APT and the (T. 896, 912) He estimated that only some 25-30 minutes remained for therapy activities and the need to continued. (T. 891, 912) His understanding based on conversations with the parent at every session is that the is similar. (T. 912)
He described the , activities. (T. 893, 897-898) The sensory gym equipment used by this student includes a “universal set” which is used for sensory modulation in numerous ways, as well as swing, balance boards and an obstacle course. (T. 894-895) Based upon his review of school reports, he believed that the school PT was working with almost the same tools for therapy but did not work on vestibular stimulation (for sensory modulation) with the universal set or swings. (T. 911)
He recommends at a minimum continuation of the in school and afterschool PT to at least maintain the rate of “slow but steady” progress the student was making. (T. 900903, 915) The gap between this student and typically developing students currently is decreasing a little bit. (T. 917) But even with that level of service, the student continues to have safety issues. (T. 903) Accordingly, he recommends increasing the duration of the school session to 45 minutes, due to behaviors, and adding a school session while maintaining the afterschool program at the same level. (T. 905, Ex. EE) That would provide a total of 5 sessions (Mon-Fri) with the weekend for activities to be done by the parents. (T. 905-906) However, if 5x45 were provided in school and his sensory issues could be regulated there, that would be acceptable. (T. 913) Progress reports are written at the parents’ request but no more than every three months and no less than one per year.
(T. 911)
Mother ( ‘the parent”)
The testimony of the parent included the following:
The student has received 10 hours of at home ABA with only a brief interruption, and has received that and afterschool related services since starting . (T. 921, 923) The 2013-2014 school year was his 3rd year . (T. 921)
In May 2013 the CSE reconvened pursuant to impartial hearing officer order to review, among other things, the various reports and evaluations that the parent had obtained and to make services. (T. 925) At the start of the meeting said that the DOE was tired of catering to the student at such a high level of services. (T. 926) With regard to the recommendation that afterschool ABA continue, the DOE special education teacher participant commented that of course she was going to recommend that since you hired her to say that. (T. 927) staff were each asked if they thought the student needed service outside of school and replied that they could not talk about that because they did not see the student after school. (T. 928) The DOE had conducted no evaluations before or after the May reconvene. (T. 930, 937) At the conclusion of the meeting, the parent was informed that the CSE was reducing the afterschool services but did not give a reason for that reduction. (T. 929-930) However, the parent was surprised they had provided any since she had always been informed that the a review was not the place to discuss that. (T. 952-953)
With regard to the scheduling of the June meetings, the parent stated that initially June 11 was scheduled but it was rescheduled at her request, that the meeting was rescheduled to June 18 despite notification from her that that date was a hardship and she appeared for that meeting but the meeting started very late and had to be continued in view of the . Although she had requested a meeting in July for that reason and the CSE indicated that it would try to reschedule then, she later received a notice for a June 25 meeting. However, she was aware of why it was important to have a meeting in June. (T. 930-932, 954-955)
At the June 25 meeting, which lasted almost an hour, the parent informed the CSE that the afterschool providers would be available by phone. (T. 933) Both ABA providers stated had been observed after the reduction in hours and they recommended at least 10 hours weekly. The other providers were not called. (T. 934-935, 940, 960) The reports provided by the parent were not reviewed. (T. 935) Hawthorne related service participants said that that they believed that the student needed to continue with what he was receiving at the school but had no opinion services. (T. 935) program. (T. 936) Subsequent to the administrative staff apologized to her and told her prior to the meeting had called and said that if afterschool services were recommended the student would . (T. 958)
With regard to parent training and counseling, the parent stated that during the 2013-2014 school year the school had four workshops but three of the four were not were not useful . (T. 940) Home training and counseling is not offered. (T. 941) The parent visits the school at least once a week usually for from 45-60 minutes and she stated that there is there are usually 2-3 children working at the same time. (T. 941, 961, 962) It was her understanding that , who was aware that the student was receiving afterschool services in a sensory gym was going to recommend that but she did not know what the provider meant in her recommendation. (T. 961, Ex. 8) The parent observes each afterschool OT, SL and PT session and speaks with the providers. (T. 942) She observes the afterschool ABA at least once every two weeks. (T. 942)
Afterschool provider progress reports have been given to the CSE but not to Hawthorne because based upon lack of response in the past to attempts to communicate, she did not believe the school was interested. (T. 942-944) Prior to the May review, the student’s afterschool ABA providers had submitted goals for submission to the CSE but that was not done . (T. 926, 947-948) However, the parent faxed all progress reports and evaluations to the CSE in April. (T. 949) The CSE had not had them at the review and the parent provided copies at that time (T. 950)
The parent stated that the student needed afterschool ABA services because he did not generalize and needed repetition and learning in different environments and from different people and the combination of home and school has enabled him to progress.
(T. 944) The student required a lot of sensory input and structure throughout the day and when it has been absent has reported that it is difficult for him to concentrate in school. (T. 945)
The student wakes up at 6:45, school starts at 8:30 and ends at 3 PM and the student received services usually until 6:30 but one night until about 7:30-8 PM. (T. 951)
Findings of Fact and Conclusions of Law
I find the testimony of the witnesses credible in that I conclude that they testified accurately with regard to their observations, current recollections and the the opinions they expressed. Relevant inconsistencies are discussed below. Record references below summarize the testimony which is detailed above.
A) DOE Motion to Dismiss
The DOE has moved to dismiss all claims relating to the May 2014 IEP, which concerned the balance of the 2012-2013 school year. It argues that that review was conducted pursuant to impartial hearing officer order and that therefore any claims relate to implementation of that order and are not within my jurisdiction. I conclude, however, that only those requirements specified by the impartial hearing officer (“IHO”) that exceed or differ from those mandated by the IDEA and implementing regulations are excluded from my consideration. I note that reviews pursuant to IHO order are not uncommon and the DOE has provided no authority or rationale for entirely excluding those reviews from the impartial hearing process merely because of their motivation.
Ordered procedural requirements that relate solely to this review are severable in this matter. However, as discussed in Footnote 3 herein, I conclude that claims regarding those unique requirements have been abandoned and, I noted, in any event lacked merit.
B) Burden of Proof
The evidence shows that the student was in an agreed upon placement with unilateral services being received through pendency. The sole issue therefore is whether appropriate services were provided by the CSE as part of the student’s program. With regard to the appropriate program for this student, the parents assert, and I agree, that in this matter in which the student has not been unilaterally placed, the DOE has the burden of proof with regard to all matters. SRO 11-053, N.Y. Education Law §4404[1][c].
Under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006).
C) Conclusions re a FAPE
An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (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). While school districts are required to comply with all Individuals with Disabilities Education Act procedure, s, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
In the instant matter, the parents have alleged that the May 2013 IEP and the June 2013 IEPs are substantively and procedurally defective. Substantively, the parents claim that afterschool related service hours were reduced (May 2013 IEP) and then eliminated (June 2013 IEP) and that as a result the programs provided in each of those IEPs were not reasonably calculated to enable the student to make meaningful educational gains. Further, they claim that in the circumstances here the CSE failed to provide adequate parent counseling and training.
It is the DOE’s burden to establish that the recommended program was supported by sufficient evaluative material. See 8 NYCRR 200.4[b][4][5][6] “Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 C.F.R. § 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).” Appeal No. 11-025.
The evidence shows that the student had substantial cognitive strengths but that his behaviors at the time of the , . These occurred both at school and at home, although in different degrees. It is noteworthy in considering behavioral differences that in school he was to be accompanied throughout a highly structured day Although the DOE suggests that reports might have been to some extent affected by the self-interest of the providers, I find no evidence that supports that and conclude that the and CSE staff was in the circumstances here similarly possibly affected by institutional concerns and conflicts. (T. 958, Ex. V)It is noteworthy in considering the reliability of the parents’ witnesses with regard to this issue that about a month after the June review, the student’s teacher reported behaviors when could last up to 60 minutes and which occurred typically every day. (Ex. 17) In the February 2014 Annual Report he observed that the student’s behaviors escalated during downtime and for this reason he required a highly structured school day, obviously not the environment provided or possible at home. (Ex. 23) The parents also persuasively claimed that certain academic achievements noted by the school were not observed in the home environment. (T. 944, Ex. 1)
The evaluations reviewed by the CSE, and there is no claim that any others to the contrary were reviewed by the CSE, all supported provision of significant afterschool services in view of this student’s behaviors. (Exs. 12, M) Dr. noted that the “above and beyond” what is typically consistent in . (Ex. 12-16) The persuasive evidence indicates that the CSE had reservations about the reliability of the evaluations because they were obtained by the parents. (T. 926, 927) However, the CSE could have sought to conduct its own evaluation and chose not to. There is no DOE claim of parental interference with that.
The DOE participants had no personal knowledge of this student. (T. 372) They relied upon information provided in the progress reports and the other information provided by the participants for both IEPs.
With regard to the May 2013 IEP, the evidence shows that the CSE, notwithstanding its provision of certain services , relied solely upon claims that the student would progress with the program and services provided by Hawthorne. With regard to the reliability of the claims of school program sufficiency, the evidence shows that the afterschool program had had virtually the same goals and utilized similar methodology and the student had been receiving those services throughout the school year and, indeed, throughout the student’s attendance at the school. Further, the degree of afterschool services was not an insignificant addition to what the and I am not persuaded that the degree of progress in the school was sufficiently substantial to support a conclusion that meaningful progress for this student would have been made without the additional services. Further, the record is unclear as to the extent of school staff’s knowledge of the degree or content of the afterschool program provided and I note that evidence shows were unable to opine as to the contribution of the afterschool program to his overall progress either at the reviews or in this proceeding. (T. 498-499, 540-541, 547-548, 928)
Although the May 2013 CSE appears to have concluded that these services were duplicative and unnecessary because the goals were the same, the record does not support a conclusion that they were unnecessary or excessive and not substantially related to the progress . I note that although certain additional goals not specified on the IEP were addressed by the ABA provider, they related principally to necessary safety related issues.
(T. 856) The fact that afterschool services for the student were provided at all was at best simply to avoid an abrupt cutoff and is not a basis for concluding that the program that resulted was reasonably calculated to lead to meaningful educational gains. (T. 169, 174185)
With regard to the June 2013 IEP, the evidence shows that the CSE relied on virtually the same material. (T. 225, 263) The CSE rejected the testimony of provider observed even during the short period involved, relying upon the reports by school staff that none had been observed there. (T. 258-261, 465) However, I find the testimony detailed and reliable in claim that it was based upon data collected. (T. 837-838, 867) I find the fact that at the time of the review there had been nothing yet observed in the school not surprising in view of the much more highly structured school environment which I conclude would inhibit immediate registering of any consequences. I find no support for the CSE’s asserted reliance on the absence of regression for discounting the evaluations received which all recommended afterschool services in view of this student’s unique needs. (. 446) The findings and conclusions discussed above regarding progress in and that staff’s lack of knowledge of the student’s home program are applicable with regard to the June 2013 IEP.
The DOE further asserts that the afterschool services are principally if not entirely to “generalize” to a different environment and therefore should not be considered with regard to a determination as to the appropriateness of the program provided. (Ex. V) With regard to that claim, I note that I have concluded that the evidence shows that the afterschool program reinforced and was a significant factor in the progress the student made at the school. Even were that not the case, the evidence shows extreme disparity between the student’s behaviors and performance at school and in other environments. It is further noteworthy that the DOE cites no legal authority in this circuit for the proposition that an effort to enhance appropriate generalization in these circumstances is barred by the IDEA. Indeed, I note that the purpose of parent training and counseling is precisely for that purpose as acknowledged by KR. (T. 250, 252-254) ) See also 8 NYCRR 200.1(kk); 8 NYCRR 200.13.
Based upon the foregoing, I find that the DOE has failed to establish that it provided a program reasonably calculated to
In view of the foregoing findings, I do not address the parents’ procedural claims except to note that most were not addressed in the parents’ closing memorandum and the evidence in this matter suggests that they have principally been abandoned.
Accordingly, I turn to the parents’ specific requests. I note that although the parents requested an enhanced rate in their hearing request, no basis for that was asserted during the hearing and the claim was not repeated in the closing memorandum.
With regard to the parents proposed program, the DOE asserts that the services previously provided, and requested, were “tremendously restrictive, if not overwhelming….” (Ex. V-16) I note that that has not been asserted by any of the DOE’s witnesses and, further, that parents are not bound as strictly to LRE requirements as the district. SRO 12-048. I am persuaded that this student’s deficits are such that, as the parent testified, and as the Hawthorne teacher’s report supported “the more downtime he has, the harder it is for him to concentrate.” (T. 945, Ex. 23) Further, I find no support, in view of the extent of this student’s herein, that the services the student has been receiving constitute “maximization.”
Home based ABA: The testimony of the AABA that the student continued to require at least 10 hours per week of home based ABA services to make meaningful progress toward his IEP goals was persuasive.
Physical Therapy: The APT testified credibly as to slow but steady progress when the student received addition to the in school mandate. (T. 900-903, 915) With that level of service the student was closing the gap, albeit slowly, in relation to typically developing students. (T. 917) In these circumstances, I find that level requested by the parents was appropriate. The provision of those services in a sensory gym was necessary in view of this student’s substantial sensory needs without regard to whether the school had adequate equipment.
: The student has progressed with afterschool in addition to the in school mandate although he continued to demonstrate poor safety awareness and a continual need for refocusing. (T. 694-695) In these circumstances I find the level requested by the parent appropriate. The provision of those services in a sensory gym was necessary in view of this student’s substantial sensory needs without regard to whether the school had adequate equipment.
: In the amended hearing request the parents sought afterschool their closing memorandum. The ASL recommended 4x60 after school. I am persuaded that the student’s 789-790, 840) The student has progressed with 2 30 minute afterschool sessions although that progress was inconsistent. (T. 757-758, 769, 772, 784) The provision of 4 30 minute sessions, I conclude, is appropriate to enable more reliable improvement and is not excessive.
Parent Training and Counseling: I find credible the parent’ testimony concerning the limited utility to her, after 2 years in the school, of the training and counseling that . (T.940) I also note with regard to school staff’s availability to provide advice that staff did not visit the student’s home. (T. 941) Staff testified that she could not opine on the sufficiency of the school’s training with regard to home needs. (T. 591) 591) I am persuaded that in view of the student’s behaviors in the more unstructured home environment, additional training and counseling from a qualified individual was appropriate. However, I note that the parent testified that in addition to frequent visits to the school, she routinely observed home based ABA sessions and the evidence shows she was present at each related service sessions as well. In these circumstances, I conclude that one hour per month from a BCBA is an adequate supplement.
With regard to transportation, there has been no evidence presented indicating disagreement with the provisions of the June 2013 IEP or supporting the addition of further requirements. The evidence shows that that issue was discussed at the review and that the CSE followed appropriate procedures. I do not address the provisions of the May IEP since I conclude that those provisions were superseded.
The parents asserted claims for compensatory services/reimbursement in the amended hearing request but have abandoned them. (Exs. I, VI)
Order
1. The student was entitled to receive for the periods June 16, 2013-June 30, 2013 (May 16, 2013 IEP for the balance of the 2012-2013 school year) and July 1, 2013-June 30, 2014 (June 25, 2013 IEP for the 2013-2014 school year) in addition to the program provided , his non-public school CSE placement (Extended School Year) and the DOE was required to provide through the issuance of RSAs on an Extended School Year basis:
1. 10 hours of home-based ABA (
2. therapy - 4x30 ( ), after school;
3. therapy -3x30 , after school;
4. therapy – 2x45 , after school.
2. For the period specified in (1) above, the parents were entitled to receive 1 hour per month of parent training and counseling through the issuance of RSAs or other appropriate authorization. Dated: August 6, 2014
Judith Schneider, Esq. gc
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
EXHIBITS
PARENT
A Demand for Due Process, 7/1/13, 13 pgs.
B Motion to Compel, 7/7/13, 4 pages
C DOE Response to Motion to Compel, 7/17/13, 3 pages
D IEP, 4/30/12, 14 pgs.
E Findings of Fact and Decision if , Esq, 3/12/13, 24 pgs.
F Findings of Fact and Decision of , Esq., 4/20/12, 31 pgs.
G Interim Order, 1/31/12, 8 pgs.
H Interim Order, 8/27/13, 6 pages
I Amended Due Process Request, 10/4/13, 18 pages
J Due Process Response, 7/31/13,6 pages
K Progress Report, 3/15/13, 5 pages
L Progress Note, 3/20/13, 3 pages
M Educational Evaluation ( ), 3/19/13, 8 pages
N Educational Evaluation ( ), 3/17/13, 10 pages
O IEP, 5/16/13, 14 pages
P WITHDRAWN
Q Noncompliance Data Form , 7/ 2013 – 1/14, 4 pgs.
R WITHDRAWN
S WITHDRAWN
T WITHDRAWN
U ABA Progress Report by , 12/20/13, 3 pages
V School Observation by , 12/18/13, 2 pages
W WITHDRAWN
X Letter from Parent to CSE 9 with confirm., 10/28/13, 3 page
Y WITHDRAWN
Z WITHDRAWN
AA WITHDRAWN
BB WITHDRAWN
CC WITHDRAWN
DD WITHDRAWN
EE PT progress report, 3/28/14, 3 pages
FF ABA progress report, 3/27/14, 4 pages
DEPARTMENT OF EDUCATION
1A IEP, 6/25/13, 15 pages
1B IEP, additional 2 pages
2 Meeting Notes ( ), 6/25/13, 5 pages
3 Meeting Notes ( ), 6/25/13, 15 pages
4 Progress Report for IEP Goals, 2012/2013, 10 pages
5 Draft IEP, 9/6/13-3/15/14, 9 pages
6 SL Related Service Progress Rept re events subseq. to 11/1/12, 1/4/12, 4 pages
7 Afterschool Therapy Progress Report, 3/4/13, 2 pages 8 PT Progress Report 1/1/13, 4 pages
9 PT Progress Report 3/21/13, 2 pages
10 OT Progress Report, 2 pages
11 WITHDRAWN
12 Evaluation, 2/2013, 18 pages
13 Evaluation, 8/2/12, 4 pages
14 WITHDRAWN
15 Letter from , 6/10/13, 1 page
16 Letter from CSE 9, 6/11/13, 1 page
17 Summer Report, 7/31/13, 5 pages
18 Meeting minutes, 05/16/2013, 6 pages
19 annual report, 2/04/2013, 6 pages
20 Clinical justification, 05/16/2013, 2 pages
21 SESIS event log, 07/24/2012 through 06/18/2013, 7 pages
22 Related Service Progress Report Physical Therapy, 12/19/13, 1 page
23 Annual Report2/21/14, 4 pages
24 Related Service Progress Report, 12/19/13, 1 page
25 Related Service Progress Report Occupational Therapy, 12/19/13, 1 page
26 progress report for IEP Goals, 3/25/14, 9 pages
IMPARTIAL HEARING OFFICER
I E-mails between Hearing Officer and attorneys of the parties concerning pendency entitlement claims and agreement, 8/5/13 through 8/26/13, 10 pgs. II Prehearing Conference Memo
III Compliance Date Extension Decisions
IV Subpoenas
V DOE Closing Memo, 7/3/14
VI Parents Closing Memo, 7/3/14
Footnotes
[1] Requested extension of filing time and various post office failures, communicated to the parties, delayed receipt of closing documents. The contents of this section is included herein as Findings of Fact
[4] The parents request in the alternative in the amended hearing request for a different placement has been withdrawn. (T. 128-135)
[5] With regard to that closing memo requests, however, I note that in the amended hearing request the parents sought a somewhat lower the amended hearing request. (Ex. I) With regard to the request for services to be provided on a 12 month basis,” I note that that was not specified in the amended hearing