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 13, 2013

September 23, 2013

October 3, 2013

October 8, 2013

October 15, 2013

October 18, 2013

October 25, 2013

November 1, 2013

November 18, 2013

November 19, 2103

November 25, 2013

December 4, 2013

Actual Record Closed Date: December 26, 2013

Hearing Officer: Diane Cohen, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 13, 2013

District Representative

Attorney for Parents

Attorney for DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 23, 2013

Attorney for Parents

District Representative

(T) Special Education Teacher Assigned — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 3, 2013

Attorney for Parents

Dr. District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 8, 2013

Attorney for Parents

District Representative

Mother

(T) Assistant Principal – — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 15, 2013

Attorney for Parents

District Representative

Mother

(T) Assistant Principal – — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 18, 2013

Attorney for Parents

District Representative

Mother

ABA Provider — Parents

( — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 25, 2013

Attorney for Parents

District Representative

Mother

(T) Educational Director – RFTS — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 1, 2013

Attorney for Parents

District Representative

Mother

(T) Speech Therapist — Parents

(T) Academic Coordinators – — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18, 2013

Attorney for Parents

District Representative

Mother

(T) Speech language pathologist — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 19, 2013

Attorney for Parents

District Representative

Mother

(T) Supervisor O/T – RFTS — Parents

(T) Lead Teacher — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 25, 2013

Attorney for Parents

District Representative

Mother

(T) Educational Director – — Parents

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

Attorney for Parents

District Representative

Mother

(T) Lead Teacher — Parents

On July 9, 2013, I was appointed hearing officer pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), in this matter. We convened on August 13, 2013, to address pendency.

At the hearing on August 13, 2013, the parties agreed that the Student’s pendency placement was based upon the Findings of Fact and Decision, dated June 7, 2012. In that decision, the hearing officer ordered the New York City Department of Education (the “DOE”) to fund the Student’s tuition at (“ ”) for the 2011-2012 school year on a twelve month school year basis. The hearing officer also ordered that the DOE provide the Student with transportation to and from .

The parties agreed that there was a stipulation of settlement for the 2012-2013 school year and that the stipulation by its terms provided that it could not serve as the basis for the Student’s pendency placement. The parties also agreed that, pursuant to that stipulation, the Student had received, until the end of the 2012-2013 school year, after school services consisting of eight hours of Applied Behavioral Analysis (“ABA”) services per week; five 45 minute sessions per week of occupational therapy services and three 45 minutes sessions per week of therapy services. The Parents argued that the Student needs those services; and that such services should be included in the Student’s pendency placement. The Parents submitted case law intended to support that view. The DOE disagreed that such services should be part of the pendency placement. We agreed at the hearing on August 13, 2013, that I would order that the pendency placement would include the Student’s attendance at , and hold off on a decision regarding the after school services until the DOE had a chance to review the cases submitted by the Parents and could submit a written response on August 19, 2013.

The DOE submitted a written response (See IHO Exh. II) and there was an exchange of emails among the parties and me. I did not find anything in the decisions submitted by the Attorney for the Parents that would support a finding of pendency in the home-based services (See IHO Exh. I).

We convened for the merits of case on September 23, 2013; October 3, 8, 15, 18 and 25, 2013; November 1, 18, 19 and 25; and December 4, 2013. The DOE completed its case on October 15, 2013. All remaining dates were for the presentation of the Parents’ case.

The Parents requested a hearing in this case in a request, dated July 1, 2013. The hearing request asserts that the Student has been has significant communication, difficulty with issue. He demonstrates which include , rolling objects or clothing in his . He also has demonstrated , has and has particular difficulty doing so during group activities. He also has difficulties in the area of social skills. The hearing request asserts that the Student requires a structured and predictable environment, a classroom that will support his , the support of a small group size for academics, and home-based services to address his difficulty in generalizing newly learned skills across different environments.

The hearing request asserts that the Student began , a private special education school dedicated to the education of children with , around February 2010. The DOE agreed to fund the cost of the program at for the 2009-2010 and 2010-2011 school years. For the 2011-2012 school year, a hearing was brought and a hearing officer ordered funding of the full cost of the program.

The hearing request asserts that the DOE failed to conduct or complete the evaluations prior to the 2012-2013 school year. The hearing request further asserts that when the Parent voiced her concern about the Student’s need for home-based instruction and services, the Committee on Special Education (the “CSE”) asserted that only an impartial hearing officer had the authority to provide such services. The Parents requested a hearing with regard to the 2012-2013 school year, and the matter was ultimately resolved by means of a settlement agreement.

The hearing request asserts that with respect to the 2013-2014 school year, the DOE failed to properly evaluate the Student and determine his needs and abilities. It asserts that the DOE failed to complete the evaluation process and did not share any of the testing results with the Parents. It further asserts that the DOE failed to create an individualized education program (an “IEP”) prior to July 1, 2013 and failed to identify an appropriate public school placement or approved private placement where the Student’s needs could be met.

The Parents request funding as well as the provision of home-based services including ABA instruction, and occupational therapy to focus on generalization of skills and appropriate behaviors and to ensure continued educational progress. They request that I order that the services be provided at the Parents’ discretion on weekdays, weekends, holidays and vacations to prevent substantial regression. The Parents also request transportation to RFTS.

APPLICABLE STANDARDS

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student with a disability by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985)).

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

FINDINGS OF FACT

The Committee on Special Education (the “CSE”) convened on January 11, 2013 to develop an IEP for the 2013-2014 school year, to take effect on July 5, 2013. The team classified the (Exh. 1, p. 1), and recommended a 6:1+1 class with therapy five times per week for 60 minutes, physical therapy two times per week for 30 minutes, and occupational therapy five times per week for 45 minutes (Exh. 1, p. 25). It also provided for a full time crisis management paraprofessional, a twelve month school year (Exh. 1, p. 26), and specialized transportation (Exh. 1, p. 31). An IEP was developed which is 33 pages and includes 18 goals. The team included goals for pre-academics, and . The IEP notes that the Student’s understanding of has increased. It notes that his has improved. His skills in have greatly improved. He has demonstrated great improvement in his articulation and motor speech skills. It notes that with the use of PROMPT therapy, he has demonstrated improved ability to integrate for to improve organization of his oral-motor system.

Many of the goals were developed by the Student’s current providers who were providing such services in a one to one environment (Tr. 143). The crisis management paraprofessional was provided due to elopement and and for the Student’s nut allergy (Tr. 112). The IEP provides ten goals in the area alone. These include goals for improvement of language processing skills, improvement of receptive vocabulary, increasing of understanding of linguistic concepts, improvement of temporal sequencing, improvement in understanding of questions, improvement in understanding of syntax, improvement of Mean Length Utterance, increase in the use of linguistics concepts, increase in the use of syntax, and improvement of articulation skills (See Exh. 1, pp 915). These very fundamental goals reflect intense speech and language needs that would clearly affect the Student’s ability to advance in all academic, social-emotional and behavioral areas.

The occupational therapy progress report, dated December 21, 2013 indicates that the Student had made some progress in engaging appropriately during table top tasks without using behavioral methods. However, it noted that it continued to be an area of significant difficulty and that he required additional support. It noted that when provided with intense sensory input prior to the table top task, he was able to engage appropriately without demonstrating for up to twelve minutes. It further noted that it was important to combine challenging tasks with mastered tasks to allow him to have frequent success to ensure intrinsic motivation (Exh. 2, p. 2).

The report notes that he had made significant progress in his ability to write upper case letters, but required moderate assistance to recall how to make most of the letters. He was able to properly size the letters with verbal prompts to start at the top and bump the bottom line. Continued handwriting intervention as necessary was deemed to be needed to focus on the various components of handwriting such as memory, formation, sizing, placement, spacing and control (Exh. 2, p. 5). The report recommended continuation of occupational therapy services five times per week for 45 minute sessions in a sensory motor gym (Exh. 2, p. 6).

The progress report, dated December 12, 2012, indicates, with detailed specificity that the in receptive language, expressive language, pragmatic language, speech production, play skills, oral motor and feeding (Exh 3). The report recommended a continuation of therapy in school five times per week for 60 minute sessions.

performed a classroom observation on December 12, 2012 (Exh. 6). She testified that she was at the school for “probably” half the day (Tr. 197), which she clarified to mean at least two hours (Tr. 197), but only directly observed the Student for one hour (Tr. 198).

Ms. participated at the IEP meeting in January 2013. She testified that the team relied on testing performed in May 2012 and on the reports from the current providers, and on the classroom observation. (Tr. 105; 199). She appeared to be referring to the psychoeducational evaluation performed by the DOE on April 18, 2012.

The evaluation, dated April 18, 2012, was submitted as evidence by the Parents rather than the DOE. The Parents argue that the evaluation was never completed and was signed by someone different than the evaluator. In addition, the accuracy of testing from May 2012 was questionable because the Student was still learning how to use the , and required adult assistance in using it. The evaluator stated in the report that if the were used and if someone else were involved in the testing process, the standardized testing procedure would be affected. It appears, however, that despite these concerns, the was used. The examiner noted, however, that the appeared to help him make requests and to express his needs and wants. (See Exh. U). It is thus not clear how reliable the results of the testing were. However, the informal observations of the evaluator would be useful even if the standardized scores determined were questionable.

The evaluator noted that the Student did not respond to the examiner’s greeting. The Student . He did not answer any of the examiner’s . He did not respond to her requests directly without or his mother’s redirection. He was not able to identify the biggest or the smallest object on the pictures presented to him (Exh. U, p. 2). The examiner found him to be “unrelated” (Exh. U, p. 4). She found directions and instructions. He exhibited in the areas of . His abilities appeared to below his age expectancy. He demonstrated difficulties (Exh. U, p. 4).

To the extent that the testing was reliable, it indicated that the Student was in the Well Below Average range on the Kaufman Survey of Early Academic and Language Skills in the Composite Score, in the Expressive Skills score, and in the Receptive Skills area. It found that the Student was in the Below Average range in Number Skills and in the Average range in Letter and Word Skills (See Exh. 1, p. 1). The discussion of the results on the of Intelligence indicated that the Student could not provide the definition of the words with and/or without the Dynavox (Exh. U, p. 3), was not able to categorize pictures presented to him; was not able to identify a visual pattern and point to the picture that was missing; had to be constantly redirected during the Block Design subtest; and could not reproduce four red/white blocks patterns. Age equivalent estimates for the subscale were established as less than 2.7 (Exh. U, p. 3). The examiner concluded that the Student demonstrated significant difficulties processing verbal directions and instructions. The examiner noted that the Student did not demonstrate any ritualistic or repetitive behaviors. (Exh. U, p. 4).

The DOE did not perform any additional testing during the 2012-2013 school year. The testing performed during the 2011-2012 school year appeared to be outdated as the Student was now significantly more verbal (See e.g. Exh 1, p. 1).

Ms. testified that her personal experience working with was that she had one child in her class who was on the (see Tr. 94, 119 119-120). Ms. testified that she believed that all children on the could be educated in a class with the correct related services and without 1:1 instruction (Tr. 133).

Ms. testified that the team also relied on the progress reports from RFTS and discussions with the teachers from and the Parents (Tr. 126). However, there was nothing in the reports that would indicate that the Student would do well in a 6:1:1 setting. The CSE minutes note that the school reported that a class is not restrictive enough for the Student (See Exh. a, p. 2).

Ms. based her view that the Student would not require ABA methodology or 1:1 services or home-based services on her observation that he was able to set the table without teacher direction and because he was competent with the computer: able to turn it on and adjust the volume (Tr. 149, 227). Ms. put an extraordinary weight on her own one hour observation, given the many severe deficits that the Student possessed in terms of his , maintaining in general, with communication and language processing, and with social issues. Ms. did not point to anything specific other than the Student’s ability with a computer and with setting the table during her observation, which would provide a basis for disagreeing with the need for ABA or services (see Tr. 148-149). I therefore find that the team primarily relied on Ms. ’ observation and on the assumption that students on the autism spectrum can be educated in a class in making its recommendation of a class.

Ms. testified that the team was aware that the Student had with attention, in following (Tr. 192). The team, however, appeared to rely primarily on her one hour observation rather than on the information conveyed by the school even though the DOE did not perform its own recent testing or evaluations. Nor did the team appear to rely on the performed by the DOE which found the Student to be unrelated and non-verbal; and that he had a very functioning (Exh. U).

I note, moreover, that the activities which impressed Ms. were not classroom activities, but independent activities on the part of the Student. Ms. did not appear to consider the Student’s ability to maintain focus and attention during classroom routines and instruction. I note that the current educational report, dated May 7, 2013 (which is not relevant to the issue of whether the DOE made an appropriate recommendation), indicates that the Student is able to work on an activity schedule for at least ten minutes with minimal prompts to maintain attention to task, but that he is able to engage in leisure play activities for up to thirty minutes (See Exh. I, p. 4). Thus, the Student’s difficulties are more intense in an instructional setting. I further note that Ms. Bellows’ classroom observation indicates that in order to reduce , the Student’s lessons are and a plan is used throughout the day (Exh. 6, p. 2). It is not clear how Ms. concluded that the particular plan used, the teaching or the ABA was not necessary given the successes she observed in the classroom (Exh. 6, p. 2).

Anselma Ferguson, the Assistant Principal at , testified that a class is not suitable for some autistic children and that some autistic children require instruction (Tr. 323).

is a school for children with autism disorders. They utilize ABA (Tr. 643). RFTS develops IEPs that are specific for each student (Tr. 650). There is collaboration among teachers and providers (Tr. 901-902).

Data is taken every day on each skills being taught pursuant to the Student’s IEP (Tr. 711); and the program is constantly changed to account for his progress. The Student is receiving five 60 minute sessions of per week at (Tr. 781) and four 45 minute sessions of occupational therapy at (Tr. 1090).

, the Educational Director , testified that the Student is unable to work on his social goals without the support of a one to one teacher (Tr. 714). She testified as to all the skills that the Student would need to acquire before being able to be educated outside of a 1:1 environment (Tr. 695-696). Ms. testified that a one to one paraprofessional would not have the skills to teach the Student in a one to one setting, as would a trained teacher (Tr. 715).

The academic coordinator at , testified that the Student requires instruction to learn, but that the goal at for this year is to help him to learn in other environments. That is why he is receiving instruction every morning (Tr. 898 - 899). is a nut-free school, which meets the Student’s needs regarding his airborne nut allergy (Tr. 708). testified that she has seen progress in the Student’s functioning at the including in following one step directions, in responsibility for himself in the classroom, in learning in that setting with support (Tr. 899-903), and in math (Tr. 903).

The Enrollment Contract for provides for tuition of $101,000 (Exh. D, p. 1). The Affidavit of indicates that $46,500.00 of such tuition had been paid as of November 18, 2013, and that a balance of $54,500 remained.

Until the end of the 2012-2013 school year, the Student was receiving a home program of ABA and related services as a result of a stipulation of settlement regarding the 2012-2103 school year. The Student’s ABA provider testified that he needs ABA at home to generalize the skills that he is learning in school (Tr. 457). She testified that the Student needs someone who knows ABA to help him stay on task, to help him understand what is being said, to help him find the words to communicate, to address his self- and to redirect other difficult behaviors (Tr. 458- 459). He requires someone who can use ABA to redirect him properly to avoid having these behaviors increase (Tr. 459-460). She uses errorless teaching and reinforcement to pinpoint and address the areas of difficulty in the Student’s generalization of skills to the home environment. (Tr. 469; 475).

The therapist who provided home based occupational therapy in the past testified that the Student needs a particular type of intervention to succeed in the home environment which, by its nature, is less structured than the school environment (Tr. 517). She testified that as of the end of the last school year his needs were such that he continued to need five 60 minutes sessions of home occupational therapy services (although he had previously been receiving five 45 minute sessions; Tr. 529). Rekoutis testified for the Parents. Dr. testified that the home sessions would address “how certain life skills, ADLs and self-care skills are being carried within the home environment; how certain play skills are being carried over in the home environment.” (Tr. 1019).

The home-based occupational therapy services provided in the past were focused primarily on helping the Student regulate his body, behavior and attention (Tr. 507).

, the Student’s therapist both in school and at home during the 2013-2013 school year testified regarding the Student’s needs and functioning. She testified that the Student had been receiving home based speech services three times per week for 45 minutes and continued to need those services. She testified that after the services were discontinued in June 2013, that the Mother indicated that the Student was not communicating as well at home anymore and that his behaviors were increasing (Tr. 1,000). She testified that the Student and the family needed help in helping the Student generalize his learning to the home. The Parents needed to better understand the Student so that he would be able to either receive what he was asking for or they could change their language so that he could understand them better. When she worked in the home she saw that he was using one word utterances to request, while at school he was using . The expectations at school were therefore higher and she helped the Parents learn to expect more from him so that he could realize that he could use all his words at home to communicate better with everybody in his life (Tr. 999). Ms. testified that the home based program is a sort of parent training as well as a program to help the familiarity of generalizations for both the Student and the Parent. In addition, she testified that the Student has “ production problems, and can use any time to work to benefit his ability to be understood.” (Tr. 1041).

testified that she worked on speech production for approximately 15 minutes per session in the home and then did another task which might be language based, peer interactions with the sibling, or bringing in the Parent. Or, if he needed more help on a certain task, she might use 40 minutes to work on that and then bring in the Parent for the last five minutes. (Tr. 1048). She testified that the Parent training component consisted of at least five minutes at the end of each session (Tr. 1057). She testified that the parent training was “to show them what the student is capable of, and to show them ways to elicit those productions of skills by various techniques, whether it be modeling, or use of a visual, or how to use his communication device.” (Tr. 1059). She testified that she recommended five sessions per week of at , but did not recall whether she had also recommended home based speech and language services to the IEP team (Tr. 1064). She testified that the Student progressed in his home program from December 2012 to June 2013 in , and had fewer behaviors because he was less frustrated. He was also and was playing games with his siblings more (Tr. 1064) and progressed in speech production (Tr. 1067). She testified that she needed to work on sound production at home in order to generalize to the home. He was not as effortful in his speech productions at home (Tr. 1066-1067). She testified that is was important to provide parent training at home because there are many more distractions at home and because the environment is different (Tr. 1068).

DECISION

I will first address whether the DOE offered a free appropriate public education (a “FAPE”) for the 2013-2014 school year.

An appropriate recommendation begins with appropriate evaluations and an understanding of the Student’s needs and functioning (See 8NYCRR§200.4). The CSE has not conducted sufficient evaluations of this student to understand his needs and functioning. No evaluations were submitted by the DOE which were developed by the DOE. The CSE instead relied upon the reports , including related service provider reports and input from personnel . Thus, the DOE had little independent information upon which to base its decision at the CSE meeting. At the hearing, the DOE did not provide any experts to counter the assertions or testimony of the witnesses for the Parents. Thus, the evidence weighs heavily in favor of the Parents’ position.

The CSE’s undue reliance on Ms. ’s own observation to determine the Student’s programming, abilities and functioning, without conducting its own thorough evaluation and/or without adequately considering the views of the providers and teachers who then worked with him, was not reasonably calculated to lead to an appropriate program. She did not have an appropriate basis for concluding that the Student could learn new information in a class without instruction or ABA. She testified that she directly observed the Student for one hour (Tr. 198). The observations of the examiner who conducted the psychoeducational evaluation noted many severe deficits that could impact on the child’s functioning even if he was, on the occasion that Ms. saw him, able to engage in an activity on his own for a period of time.

Ms. testified that she believed that all children on the autism spectrum could be educated in a class with the correct related services and without instruction (Tr. 133). This testimony was contradicted by the other DOE witness, , the Assistant Principal at P.S. 4, who testified that a class is not suitable for and that require 1:1 instruction (Tr. 323).

The Student’s teachers and providers from who attended the IEP meeting all said that he needed instruction (Tr. 145) and ABA instruction (Tr. 147). Ms. Bellows testified that despite the testimony of the teachers and providers that the Student required ABA, that the CSE does not recommend methodology (Tr. 148). If the Student requires ABA, however, the DOE’s policy in not recommending that methodology on the IEP is not in accordance with the requirements of the law.

The team included ten goals on the IEP which indicated that the Student had very fundamental difficulties with . These goals were developed by the Student’s speech language provider at the therapist and ABA provider collaborate and both work on these goals (See Tr. 780; 797). The speech language therapist uses ABA to address attention and provide reinforcement and uses a sensory diet as part of her work with the Student (Tr. 794-797). It is not clear whether and how these many goals would be accomplished in a setting, without ABA, and with five hours per week, and without the integration of techniques across provider skill areas (See Exh. 1, pp. 9-15).

I am also concerned about the lack of parent training on the IEP. The fact that parent training is intended to be programmatic in District 75 classes (See Tr. 184) does not address the issue adequately. There was abundant testimony from the Student’s providers and staff that would indicate that the Parents needed very specific training in how to help the Student at home. A general program of parent training would not provide that type of training. It must be individualized to these particular Parents based upon the needs of this particular Student.

I therefore find that the IEP developed by the CSE was not reasonably calculated to provide educational benefits

Having found that the recommendation of the CSE was not appropriate, I now turn to the unilateral placement chosen by the Parents. The evidence supports that the services provided by are designed to provide educational benefits for the Student. is a school for children with . They utilize ABA (Tr. 643). Data is taken every day on each skills being taught pursuant to his IEP (Tr. 711); and the program is constantly changed to account for his progress.

develops IEPs that are specific for each student (Tr. 650). There is collaboration among teachers and providers (Tr. 901-902; 778- 780; 797; 834-838). The speechlanguage provider uses ABA in her work, to address attention and reinforcement and applies the sensory diet developed by the occupational therapist. She has received training in ABA and there is staff development in ABA and across disciplines (Tr. 839-842; 855856). The academic coordinator at , , testified that the Student requires 1:1 instruction to learn, but that the goal at for this year is to help him to learn in other environments. That is why he is receiving instruction at every morning (Tr. 898 - 899). RFTS is a nutfree school, which meets the Student’s needs regarding his airborne nut allergy (Tr. 708). In that setting, he requires a lot more supports, redirection and prompting to generalize his learning, and that is provided by (Tr. 852 - 855). testified that she has seen progress in the Student’s functioning at the Crown Heights Yeshiva, including in following one step directions, in responsibility for himself in the classroom, in learning in that setting with support (Tr. 899-903), and in math (Tr. 903).

The Student is receiving five 60 minute sessions of speech language therapy per week (Tr. 781), which is the same as what was recommended by the CSE (See Exh. 1, p. 25); and four 45 minute sessions of occupational therapy (Tr. 1090), which is less than the five times per week recommended by the CSE (Exh. 1, p. 25). I do not find the deficit in occupational therapy to impact the appropriateness of the placement. The teachers and providers work on the Student’s sensory needs by applying a sensory diet (Tr. 1109-1110; 778-780), and together with that, I believe that the Student’s sensory needs would be met and that the occupational therapy would be sufficient.

, the Student’s teacher, testified that the Student has made progress in increased awareness of safety, in conversational skills, in phonics, in one to one correspondence in mathematics, in reduced frustration, attention, ability to stay on task, initiating conversations and social interactions with adults and increased interest in his peers and ability to initiate with peers (Tr. 1463-1465). The mainstreaming has had positive benefits in terms of allowing himself to be pushed more (Tr. 1466). Ms. Rosa testified that they use the one to one training at to prepare the Student to attend the mainstreaming setting (Tr. 1467). The providers collaborate on goals so that the Student can generalize his learning at the (See, e.g. Tr. 812).

The DOE’s closing statement alleges that has a duplicative overlay of patched together services which were not appropriate; that alleged gains made over the year may be due to maturation, have been broadly subjective and non-measurable; and that whatever gains that were reported were not seen or generalized to any other environment (Exh. IV, p. 1). The DOE, however, provides no evidence that the services provided were inappropriate. The services were individualized ABA services which were designed to meet the Student’s needs. The goals used cover the Student’s many areas of need with specificity. The pre-academic, occupational therapy and speech and language goals used by are to some extent the very goals that were adopted by the CSE in their IEP (See Tr. 143). There is no requirement that progress be proven or that the progress be objectively assessed. Nor is there evidence that the gains are due to maturation or that they could have been generalized with a different type of instruction. The fact that the various providers work collaboratively on some of the same goals is not duplicative, but is a strength of the program that provides for generalization and reinforces the Student’s learning and appears to have provided benefits (See Tr. 797-800). testified that children with autism often become rigid learners (Tr. 725), which could explain any failure to generalize regardless of the type of instruction provided. Since the DOE did not conduct a thorough evaluation of the Student, the DOE is unable to support the concerns raised in the closing statement.

Ms. raised concerns in her testimony that the Student did not need as much of a sensory diet program as was being provided at (Tr. 169), that the program does not offer opportunities for social development (Tr. 202), that the program was not generating the type of learning that could be generalized to the home (Tr. 235), and that his behavior modification plan involved too much (Tr. 159, 162). It is not clear that Ms. had enough knowledge about the Student’s needs and the program he was receiving through to draw some of these conclusions. Nor did she explain how she arrived at these conclusions. However, she clearly has concerns about the program which is a highly restrictive program, involving full time 1:1 instruction. She seemed to feel that he would develop better in a more natural setting with less immediate response to his behaviors, and with a variety of behavioral methodologies (Tr. 222). She was impressed during her observation with the Student’s ability to set the table for the children, counting in his head, putting the place settings with proper spacing, using the computer appropriately (Tr. 227).

While some of these concerns raise questions about the , they are not conclusive. A one hour observation by a special education teacher who is not an expert in is simply not sufficient to draw the conclusions Ms. drew. Moreover, this year, the Student has social opportunities in his mainstreaming class at , which he attends every morning with his one to one teacher (Tr. 698-699). There is no evidence that the Student would make progress in the social realm without the type of support his gets at . The Student’s deficits are such that he does not respond to peers in the natural environment because they do not have his attention (Tr. 864).

Some of the concerns by the CSE, however, should prompt further evaluation and assessment. For this reason and because, in general, I do not believe that the CSE has conducted sufficient evaluations of this Student, I will order that a thorough evaluation be performed. Since the DOE and the Parents are at odds regarding the type of services the Student needs, an independent evaluation – not affiliated with would be appropriate. It appears from the testimony that the Student’s needs are changing such that he may be able to be educated with a less restrictive staffing ratio in the coming year or perhaps in a later year. Thus, it is important to have evaluations that assess his current needs so that it can be determined whether that is the case for the coming year or not. There is testimony that the Student’s attention is an area of concern and that his socialization has not improved in all areas (See Tr. 950). I believe that an FBA needs to be developed. Included in the FBA should be an understanding of the Student’s difficulty in maintaining focus and in initiating with, and responding to, peers, and in following directions.

The DOE alleges that it is clear that the Parent never intended to place the Student in a public school (Exh. IV). However, I see no evidence to support this, and I find that there are no equitable considerations to preclude or limit tuition reimbursement in this case..

The IEP developed by the CSE provides for special transportation services in an air conditioned vehicle with limited time travel, not more than 30 minutes in a minim bus, door to door (Exh. 1, p. 29). I will therefore order that such services be provided to and .

I now turn to the question of home-based services.

Although the Parents have placed the Student in a unilateral placement, the Parents are asking the DOE to provide additional services in the home. If the program at RFTS is an appropriate placement, it is not clear why additional services should be required to be provided by the DOE. Conversely, if the program is insufficient, it is not clear why an award of tuition reimbursement would be

Turning to the question of the home-based services, specifically, I note that the State Review Officer has held in more than one decision that school districts are not required as a matter of course to design educational programs to address a student’s difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom. See Appeal No. 12-099, 12-204 and 11-031.

In those decisions the State Review Officer cited courts in other jurisdictions who have so held, including the following cases: Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 (10th Cir. 2008); Gonzalez v. Puerto Rico Dep't of Educ., 254 F.3d 350, 353 (1st Cir. 2001); Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 (11th Cir. 2001); JSK v. Hendry County Sch Bd., 941 F.2d 1563,1573 (11th Cir 1991)). In addition, the State Review Officer cites a decision in the Eastern District of New York: Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *17 (E.D.N.Y. Oct. 30, 2008).

The State Review Officer held, instead that the issue is whether the district has failed to comply with its obligation to offer the student an educational plan that was specially designed for the student and from which there is a reasonable likelihood that the student would receive some educational benefits. See Appeal No. 12-099 at 22-23.

There is evidence that the Student is making progress in school. The Student has been making progress in in school (Tr. 798). Dr. testified that the Student is making considerable progress in occupational therapy in school despite not having home services this year (Tr. 1114). testified that the Student is making progress in school, although the home-based services were discontinued in June 2013 (Tr. 714). testified that the Student has been progressing in reading skills, in math, in reduced frustration, in his ability to stay on task, socially, and even in the area of attention, despite not having home services this year (Tr. 1464-1465). The Mother agrees that the Student is progressing well in school (Tr. 1561-1562).

Where the Parents argued that additional services at home would benefit a student, the State Review Officer noted that:

“the evidence supports a finding that adding home-based services may provide greater opportunities for the student overall, however, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199;Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Instead, the evidence shows the district satisfied the more modest requirement of developing an IEP likely to produce "progress, not regression" (Walczak, 142 F.3d at 130).

Under the circumstances, while it is understandable that the parent, whose son has substantial needs, desires greater educational benefits through the auspices of special education (see Tr. p. 237; Parent Ex. FF ¶ 9), it does not follow that the district must be made responsible for them or to ensure that that appropriate custodial care of the student in the home is addressed through ABA services provided by the school district (see Luke P., 540 F.3d at 1152-53; Gonzalez, 254 F.3d at 353; Devine, 249 F.3d at 1293; Hendry County Sch. Bd., 941 F.2d at

1573; Application of the Dep't. of Educ., Appeal No. 12-086). The IDEA ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker, 873 F.2d at 567). Application of a Student with a Disability, Appeal No. 12-204 at

18-19.

While there is testimony that indicates that the Student has difficulty generalizing his learning (Tr. 701, 722-726, 910. e.g.), I note that in general, this is not a justification for home based services. Moreover, the testimony which indicated that in prior years the Student needed home based services due to a need to generalize to the home is inapplicable now that the Student attends the mainstream program where he has the opportunity to work on his goals in a more natural setting than he did in prior years (See Tr. 883). I also note that while testified that she “assumed” that he is not generalizing to the home, she also testified that she could not specifically talk about what is happening at home. (Tr. 910). There is no reason to believe that as he learns to generalize in a more natural setting, and then ultimately learns to generalize into a less structured setting, that such learning will not then transfer to other environments such as the home.

Beginning in the current school is providing a mainstreaming opportunity at the , specifically for the purpose of generalizing skills to a more natural setting. testified that the main area of focus in the mainstream setting was the generalization of skills (Tr. 883). She testified that the goal for this year is to have the Student be able to learn when it is not one to one (Tr. 898) and that “hopefully sometime in the near future he won’t need that” (Tr. 899). The work therefore is designed to move the Student to a place in which he will be able to function more easily in a natural environment and without one to one instruction. testified that the Student needs to learn to generalize his learning from the “more contrived setting” to a more natural setting such as . She testified that “(w)hile he needs to learn it in our setting, but he still has difficulty generalizing it to a more natural setting such as the yeshiva, which is a skill that he needs to work on...and he has difficulty specifically with peers.” (Tr. 827; 843).

In addition, The IEP includes goals for home and community safety (See Exh. EE, p. 12). The Occupational therapy include a goal to improve sensory processing skills to effectively interact with people and objects in school and home environments, to improve gross motor skills to enhance movement efficiency and functional participation in school and home activities, to improve shoulder, arm and hand control for better success with home and school activities, to demonstrate improved fine motor and visual motor skills for greater success in academic tasks, and to demonstrate improved self-care skills to greater success with dressing, feeding and daily hygiene (See Exh. W). The first three of these goals explicitly refer to both the school and home environments. The evidence therefore establishes is working on generalization goals to the home in the school setting in those areas. With respect to the improvement of fine motor and visual motor skills, there is no reason to believe that home services would be needed to achieve this goal. Nor is there any reason to suppose that the Student requires home services to generalize his ability to tie shoes or use a fork and knife independently in the home environment.

In the present case, there is also testimony from the Parent which indicates that part or all of the reason she requires home services is due to the fact that she is overwhelmed with the obligation to care for the Student at home with the other children she must care for. (See Tr. 1510-1511). She testified that the home instruction that was previously provided taught her how to talk to him. It was a type of parent training (Tr. 1564). She testified that she was provided with a plan to help her son, but that it was difficult to implement on her own (Tr. 1565), and she is unable to manage his behaviors (Tr. 1565). Although the Parent may need assistance at home, this is not the obligation of the DOE to provide. I note that where the Parent requires help in caring for a Student with a Disability in the home, the State Review Officer has stated:

“I encourage the parties to work cooperatively to assist the parent to utilize the resources through the district's CSE and/or with the help of a social worker or a case manager to identify available respite, residential habilitation, or other services and funding which may be available through the New York State Office of People with Developmental Disabilities or local municipal agencies that could provide support services with trained providers for the child when he is not receiving educational services (see, e.g., Application of the Bd. of Educ., Appeal No. 08-074; Application of a Child with a Disability, Appeal No. 07-050).”

Appeal No. 12-099 at 22-23.

I also note that the testimony supports a finding that the Student is not generalizing his learning to the home primarily for behavioral reasons rather than due to an inherent inability to transfer his learning to the home context. For instance, the speech language pathologist testified that the Student has difficulty generalizing skills with adults to skills with peers. When pressed regarding generalization to different adults, the witness testified “I don’t think as much across adults.” When asked again, she added: “I would say behaviorally that would interfere with his ability to produce the same whatever targets or whatever you want to see across other adults.” (Tr. 807).

The State Review Officer has held that a desire to facilitate supervision, custodial care, behavior and functioning in the home is not in itself a sufficient basis to require that home-based services be provided (Appeal No. 12-099 at 22-23). In so holding, the State Review Officer cited the following cases: (see K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *14 (S.D.N.Y. Aug. 23, 2012) (upholding the administrative determination that home-based ABA services that were desired to generalize skills and improve the student's custodial care in the home were not required), aff'd 2013 WL 3814669 (2d Cir. July 24, 2013); A.D. v. New York City Dep't of Educ., 2008 WL 8993558, at (S.D.N.Y. April 21, 2008); Application of the Dep't of Educ., Appeal No. 12086; Application of a Student with a Disability, Appeal No. 12-052; Application of a Student with a Disability, Appeal No. 11-068; Application of the Dep't of Educ., Appeal No. 10-123).

I further note that the speech language services that have been provided in the home have only partly focused on generalization. To a significant extent the services provide parent training and additional opportunities to work on skills in general, rather than skills that only generalize to the home (Tr. 1041). The home-based occupational therapy services provided in the past were focused on regulation (Tr. 507). It appears that the home-based instruction in occupational therapy which is being requested focused on the types of skills that the Student could be learning in a less restrictive setting in school, such as in the mainstream ; and during unstructured time, rather than at home (See Tr. 508). The home provider testified that after her provision of services, the Student was able to begin to recognize when he was dis-regulated and to ask for gum or a break (Tr. 521). It is not clear why these services needed to be provided in the home or whether they were provided as part of its program at , and if not, why not. Moreover, these skills appear to overlap with behavioral work by the ABA and communication work by the . The Student’s former provider of home-based ABA testified that she worked on the Student’s behavior at home (Tr. 448). She testified that she worked with the Student in the home and in the community, at the karate class (Tr. 450-451). It is not clear whether these are duplicative of the type of services being provided in school and if not, does not provide them. could take the child out into the community and has opportunities to work with the Student in less structured settings such as the mainstream setting . She testified that she set up a token economy for him. However, it is not clear why the Parent could not implement this system, and why the continuing presence of the ABA provider was needed (See Tr. 452; 1565). She also testified that she worked on academics at home with the Student. It was not clear, however, why this was necessary to do in the home (Tr. 455).

While the Parents should be receiving parent training, I do not believe that homebased speech language therapy, occupational therapy or ABA services are necessary for the Parents to receive parent training.

I find, for all the reasons set forth above, that the Student does not require home services in order to receive an appropriate education. I need go no further since I find the services are not necessary for an appropriate education. However, I note that equitable considerations might preclude the requirement that the DOE provide services over and above the services arranged for by the parents in a unilateral placement. I further note that equitable considerations might preclude the requirement that the DOE provide services for the generalization of skills where the Student has been attending an all day 1:^[1] program in a unilateral placement since 2010 in which there were, therefore, limited opportunities for generalization of skills.

I THEREFORE ORDER that an independent evaluation shall be provided in the following areas. The DOE may arrange for one comprehensive evaluation to be conducted covering all the areas, or may arrange for several separate evaluations covering all the areas; or some combination. Each such evaluation shall be conducted within 45 days of the date hereof. Each such evaluation shall also indicate a recommended level of service, including frequency, duration and staffing ratio. In addition, the evaluations shall consider the Student’s needs for socialization in making its recommendations. The evaluations shall cover the following areas:

2. evaluation

3. evaluation

4. evaluation

5. evaluation

6. An evaluation by a specialist in , and

7. A functional behavioral assessment. The FBA shall focus on all areas of need, including focus and attention, compliance, socialization, and any other areas of need; I FURTHER ORDER that, within ten days of the date hereof, the DOE shall directly pay the unpaid portion of the tuition , up to an amount no greater than $54,500; I FURTHER ORDER that the DOE shall provide door to door special transportation services to and from in an air conditioned mini van with limited time travel, not more than 30 minutes. Dated: January 6, 2014

______________________

DIANE COHEN, ESQ.

Impartial Hearing Officer

DC: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 RECORD ON AUGUST 13, 2013

Parent Exhibits Date of Exhibit No. of Pages

A. Hearing Request 7/1/13 10

B. /7/12 16

C. Letter to CSE 6/10/13 3

DOCUMENTATION ENTERED INTO RECORD ON SEPTEMBER 23, 2013

DOE Exhibits Date of Exhibit No. of Pages

1. IEP 1/11/13 33

2. Occupational Therapy Progress Report 12/21/12 9

3. Progress Report 12/12/12 12

4. FBA 1/11/13 2

5. BIP 1/11/13 1

6. Classroom Observation 12/5/12 2

DOCUMENTATION ENTERED INTO RECORD ON OCTOBER 18, 2013

Parent Exhibits Date of Exhibit No. of Pages

D. Enrollment Contact 7/1/13 4

E. RFTS Mission Statement Undated 1

F. RFTS School Calendar 2013-2014 1

G. Letter from 9/17/13 1

H. Evaluation 5/10/13 8

I. Educational Progress Report 5/7/13 5

J. Report 4/30/13 7

L. Affidavit of Payment 9/18/13 1

M. 2012 Tax Return 4/22/13 13

N. Letter to CSE 7/17/13 3

O. Affidavit of 11/6/12 2

P. Affidavit of 11/24/12 2

Q. Affidavit of 11/6/12 2

R. RFTS ABLLS – Revised 6/1/13 3

S. Incomplete Items Report 9/17/13 22

T. Complete Items Report 9/17/13 50

U. Evaluation 4/18/12 4

V. Daily Individualized Schedule October 2013 1

Y Resume of Undated 2

Z. Resume of Undated 2

AA. Letter to CSE 10/6/11 4

BB. Letter to CSE 4/11/12 2

CC. Letter to CSE 6/14/12 2

DOCUMENTATION ENTERED INTO RECORD ON OCTOBER 25, 2013

Parent Exhibits Date of Exhibit No. of Pages

DD. Resume Undated 3

EE. IEP – 2013-2014 40

Joint Exhibits Date of Exhibit No. of Pages a. CSE Minutes 1/11/13 2

DOCUMENTATION ENTERED INTO RECORD ON NOVEMBER 18, 2013

Parent Exhibits Date of Exhibit No. of Pages

X. S/L IEP Goals 2013-2014 10

DOCUMENTATION ENTERED INTO RECORD ON NOVEMBER 19, 2013

Parent Exhibits Date of Exhibit No. of Pages

K. Sensory Diet May 2013 2

W. Occupational Therapy IEP Goals 5/10/13 2

DOCUMENTATION ENTERED INTO RECORD ON NOVEMBER 25, 2013

Parent Exhibits Date of Exhibit No. of Pages

FF. Revised Affidavit of Payment 11/18/13 1

GG. Sensory Diet October 2013 1

HH. Resume of Undated 2

POST HEARING SUBMISSIONS

IHO Exhibits Date of Exhibit No. of Pages

I. Emails among parties and IHO 8/19/13-8/20/13 3

II. DOE’s Pendency Letter with 8/19/13 10 attachment

III. Closing Brief --- Parents’ 12/20/13 31

IV. Closing Statement – DOE Undated 3

Footnotes

[1] evaluation