NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parents
Dates of Hearing: August 2, 2014
December 3, 2013
February 10, 2014
February 26, 2014
February 27, 2014
Actual Record Closed Date: May 5, 2014
Hearing Officer: Judith Schneider, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 2, 2013
Esq. Attorney — Parents
CSE Representative — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 3, 2013
Esq. Attorney — Parents
Mother — Parents
Father — Parents
CSE Representative — DOE
Dr. School Psychologist — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2014
Esq. Attorney — Parents
Mother — Parents
Father — Parents
MCC Educational Director — Parents
MCC Teacher — Parents
(via telephone)
CSE Representative — DOE
Dr. School Psychologist — DOE
(via telephone) Bengali Interpreter
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 26, 2014
Esq. Attorney — Parents
Mother — Parents
Father — Parents
Dr. Psychologist — Parents
(via telephone)
SEIT — Parents
CSE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 27, 2014
Esq. Attorney — Parents
Mother — Parents
Father — Parents
OT, MCC — Parents
(via telephone)
CSE Representative — DOE
On August 2, 2014, December 3, 2013, February 10, 2014, February 26, 2014 and February 27, 2014, I conducted an Impartial 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”).
The parents asserted that the DOE failed to provide a free appropriate public education (“FAPE”) for the 2013-2014 school year. When the complaint was filed the student was attending a DOE school but was subsequently enrolled in a (“MCC”), a private school which is not approved by the New York State Education Department as a school with which the DOE may contract for the provision of special education services. The parents, among other things, seek DOE funding for their unilateral placement as well as various after school services. (Exs. 1, IV)
Procedural History
The proceeding was initiated at the request of the parent by correspondence dated July 1, 2013 and filed July 2, 2014. I was appointed Impartial Hearing Officer on July 9, 2013. I was available to conduct a hearing within 14 days of appointment. A hearing limited to the parent’s request for issuance of an order concerning pendency entitlements was held on August 2, 2013. At a telephone conference with the parties conducted on August 14, 2013, the initial hearing was scheduled for September 24, 2013, the first mutually available date for the parties, their witnesses and the hearing officer. By correspondence dated September 12, 2013, the parents filed an amended hearing request and the DOE granted amendment on the same date. Consequently another resolution period commenced. On October 17, 2013, after the conclusion of that resolution period, December 3, 2013 was scheduled for the commencement of the testimonial phase of the hearing. (T. 34-35, Exs. A, 1, I )
Pursuant to the parents’ request and with no objection by the DOE, an interim order regarding pendency was issued on August 9, 2013. It provided from July 2, 2013 until the conclusion of this matter the following in addition to the daily instruction received at her local school:
1. Home program ABA for 20 hours per week at its usual and customary rate for that service;
2. A full-time paraprofessional 1:1 at the student’s public school;
3. School based - 3 30 minute sessions per week;
4. School based -3 30 minute sessions per week;
5. School based – 3 45 minute sessions per week;
6. Home based – 2 45 minute sessions at the rate of $67.60 per session;
7. Special education transportation with temperature-controlled and limited time travel no longer than 30 minutes;
8. Parent training and counseling. [1]
The parties also agreed that if not already provided pursuant to a prior Impartial Hearing Officer order, the CSE would conduct an Assistive Technology (“AT”) evaluation by September 30, 2013 Further, the parties agreed that if the AT evaluation failed to conduct that evaluation by that date the parents could apply for an interim order requiring an independent AT evaluation at DOE expense. The DOE conceded the need for the evaluation. 2 The parents’ request, on equitable grounds, for the provision of related services on a 52 week basis, including weekends, holidays and vacations, to prevent substantial regression during the pendency of this matter was denied as premature. (Ex. III)
The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing arguments. In considering the requests I weighed the cumulative impact of the 20 hours of home based ABA and two sessions of home based feeding therapy at MCC. . 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 written decisions were provided to the parties. (T. 39-40, 190, 205, 333, 388, 581, 784-787, Ex. II)
The current compliance date is May 5, 2014. The record closed on May 5, 2014, upon my receipt of the DOE’s agreement to the admission of Parents Exhibit Y and its notification that it was not submitting a closing memorandum. (Exs. V, VI)
Positions of the Parties
The parents assert that the DOE failed to provide a FAPE for the entirety of the 2013-2014 school year. With regard to July-August 2013, the parents claim that the program/placement provided by the CPSE was not appropriate. With regard to the program commencing September 2013, the parents claim that the September 12, 2013 IEP was procedurally and substantively defective, that the parents did not have an appropriate and timely notification as to the proposed placement and that that placement was not appropriate for this student. Further, they assert that the unilateral placement commencing September 2013 was appropriate and seek DOE reimbursement for tuition for that placement. They also seek additional services outside of school, including during vacations and school breaks (“a 52 week school year”), which they claim are necessary to be coupled with to provide a FAPE in view of this student’s needs. Further, they request that the DOE be ordered to provide appropriate transportation. The parents claim that equitable considerations provide no basis for the denial or limitation of DOE funding but rather support their request. (T. 249-251, Ex. IV)
The DOE asserts that it provided a FAPE for the 2013-2014 school year. With regard to the parent’s unilateral placement and proposed placement the sole claim made by the DOE is utilizes only one methodology and for that reason is not appropriate
There is currently no claim concerning the absence of an appropriate AT evaluation. (T. 56-57) placement. With regard to the equities, the DOE asserted no issues. (T. 246-247, 253) The DOE elected not to submit a closing memorandum. (Ex. V)
Background 3
The student received of teacher, (“ ”), (“ ”) and ”). (T. 643-645)
The CPSE convened on December 11, 2011 and made recommendations concerning the 2011-2012 school year which included home based ABA SEIT services. (Ex. B-3)
On June 1, 2012 the CPSE reconvened to develop a program for the 2012-2013 school year which recommended an 8:1:2 preschool public school program which did not include a 1:1 para or home based services. (Ex. B)
An independent Neuropsychological Evaluation completed in July 2012 had been obtained by the parents to determine the student’s needs. (Ex. E)
The parents filed a request for an impartial hearing concerning the student’s 20122013 school year program. Pursuant to pendency order in that matter, the student was entitled to receive, among other things,[20] hours weekly of SEIT ABA services from July 1, 2012. A decision was issued on February 6, 2013 which provided, among other things,
By letter dated May 24, 2013, the DOE recommended a public school placement to commence September 2013 (“the FNR”). (E. D)
By letter dated June 10, 2013, to the CSE, the parents acknowledged receipt of the FNR and stated, among other things, concerns about the appropriateness of the program proposed. (Ex. G)
The parents filed an impartial hearing request concerning the student’s 2013-2014 program on July 2, 2014. (Ex. A) A pendency order was issued on August 9, 2013 which from July 2, 2013, continued various services including 20 hours weekly of home based ABA SEIT and two (2) 45 minute sessions weekly of feeding therapy. (Ex. III)
By letter dated August 16, 2013, the parents informed the CSE that the student the student would be enrolled September 2013 absent an appropriate program and placement and that DOE funding would be sought. (Ex. F)
The student was enrolled on September 9, 2013. Pursuant to an enrollment contract executed the same day, tuition for the 2013-2014 school year (10 month program) is $99,833.33. (Ex. M)
By correspondence dated September 12, 2013, the parents filed an amended impartial hearing request seeking, among other things, tuition reimbursement for the MCC placement and afterschool services. (Ex. 1)
The parents visited the proposed placement on November 12, 2013, and by letter dated November 26, 2013 informed the CSE as to their conclusions concerning that school and that the student would remain at MCC. (Ex. K )
Cases Presented
Both parties submitted documents. Lists of documents submitted and persons who appeared are appended.
DOE
The DOE presented the testimony of one witness:
Dr. Anna Pomantty (“AP”)
AP’s testimony included the following:
She has been a DOE school psychologist for some 20 years and previously held a special education teacher certification and served as an educational evaluator. (T. 75-76,
118) She participated in the March 2013 CSE review as school psychologist and district representative. Other participants were a DOE special education teacher, a parent and the student’s classroom teacher. (T. 78) AP had conducted an observation on March 1, 2013 during which she had both observed the student and spoken with the teacher and one of the providers. (T. 77, 79, 80, 137-138, 141, Ex.6) The CSE considered that observation and the information provided by review participants as well as various reports which had been received including the Educational Progress Report. (T. 93, Ex. 3) The CSE did not consider or discuss any private evaluations and AP could not recall if she had been aware that any were done but she had not received any. (T. 144-145, 178) The CSE considered a 12:1:1 (D. 75) placement as well as Home Instruction but did not consider an NPS. (T. 179-180)
the student as autistic” with with and with awareness of her environment a major issue. She also had a . (T. 80-83, 85, 87) observation, the therapist could not work with her for a long period because . (T. 85-86) However, was informed that when . (T. 85)
tated that the para was to work on and , as would the provider, and would also provide support for transition and other school activities but would not provide instruction to the student. Instruction would be provided by the teacher and the class para and the amount of the student would receive would depend on the program. (T. 98, 185-186, 210-211, 215, 236) She stated with regard to the differences between an 8:1:2 preschool program and program recommended that they were essentially the same level on the continuum and, further, that the program was very therapeutic. (T. 140, 181-
184) stated that parent concerns were addressed with the addition of a feeding goal as a consequence of information provided by the parent and she also noted the addition of a 1:1 para. (T.89)
A BIP was developed for this student which addressed including following directions, non-compliance and , and was prepared at the review and based upon target behaviors from teacher reports. (T. 95-97, 115, Ex. 7-19) Management needs and various behaviors were also specified in the IEP. (T. 99-100)
testified that afterschool services were not mentioned at the review, that no reports were provided and that no requests were made. She acknowledged that afterschool services were not considered. (T. 150-151, 163) However, she stated that based upon discussions at her observation she was aware that the student had been receiving certain additional services and that the parents wanted to provide more services. (T. 150-155)
With regard to the appropriateness of afterschool services for this student, she opined that social integration in family activities and that she disagreed with a high level of services for any child with a . (T. 83-84) She believed that students should not be overwhelmed, that the best interests of an autistic child included providing opportunity for family integration and that 20 hours of at home instructional services in addition to the school program for any child was never in the child’s best interest because it prevented family integration. (T. 163, 168) Further, she stated that there was no relationship between the amount of services at home and the improvement of the child.
(T. 170) testified that the CSE could have recommended home based services but she disagreed with the provision of any home-based instructional service for low functioning autistic children. (T. 160-168) However, she acknowledged that during the observation she had told the student’s teacher that she was not permitted to give after school services or other home programs for kindergarten students. (T. 153-155)
With regard to generalization and parent training, stated that it was important to generalize from school to different locations and that parent training could have been specifically recommended but was not in this matter. (T. 171-172, 175)
Parents
The parents presented the testimony of the following witnesses:
Dr. ”)
is a clinical psychologist whose area of expertise is evaluations of relationships in children. (T. 392) Her patient base primarily is students (T. 395) In July 2012, she conducted an evaluation of the student. (T. 395-396, Ex. E) Her testing was because it was conducted principally in the student’s home because of the student’s discomfort in the office, and the inability to soothe her there. (T. 397, 448-449) The student was . (T. 399) Her adaptive daily living skills ( ), vocation skills, language abilities, social abilities . (T. 400, 404, 427-428) She had and also (T. 403) She was very active and moved very quickly and also . (T. 402-404) She . (T. 463) However, she although she did not was curious but . (T. 401, 449, 453) as well as her therapists believed that her than displayed but she was not available to participate in the test measures at that time. (T. 401, 452)
opined that the student required the most intensive student teacher ratio possible with a paraprofessional and ABA from a trained ABA specialist with ABA integrated into the program for the entire school day. (T. 406-409, 418, 455) She also opined that that the student and parents required in home ABA services in addition to that program at the highest level that could be provided because of the student’s need for consistency and her challenging behaviors. (T. 409-410) At that time, she concluded that the student required 10 hours of at home ABA in addition to an ABA program. (T. 412-414, 419) stated that research shows that curious and verbal children in a crucial developmental stage, as this student is, most benefit from and all life settings to reduce behavioral impediments to learning. (T. 420-421, 424) She also asserted that generalization of behavioral strategies was also required. (T. 425 opined that regression could result from lack of continuity and from a failure to provide services. (T. 427) She does not recommend ABA for all students with autism but recommends it for this student. (T. 446) She has recommended TEACCH for other students. (T. 447)
With regard to services outside of school, does not recommend at home ABA services for all students with autism but does for this one based upon her evaluation of student and parent needs. (T. 458-459) The ABA support at home is necessary to provide additional necessary ABA for the student and also as a model for the parents. (T. 460) With regard to services during the period when school is not in session, stated that when she made her July 2012 evaluation she believed that the student should have at home services particularly in view of her difficulties. (T. 462-464)
In Spring 2013, visited the school that the student was then attending during the 2012-2013 school year in obtain an update of her adaptive functioning skills and there was no testimony that changes in her recommendations and her conclusions was warranted. (T. 437, 456)
In November 2013, she also visited the school the parents informed her was recommended by the DOE and concluded based upon information provided by school staff that the methodology used was TEACCH and not ABA. (T. 431, 441)
(“the SEIT”)
The SEIT’s testimony included the following:
The SEIT has worked as a SEIT and SETSS provider in the home and school environment and has also been employed as a lead teacher working with children on the autism spectrum since 2002 and is a New York State certified special education teacher.
(T. 468-469, 530-531) She has received training in and utilizes ABA. (T, 468, 470) She is not a BCBA but her supervisor is. (T. 531, 573) She has provided at home ABA services to this student since May 2012 (T. 472, 495) These include creating and running ABA programs, conducting standardized assessments and collaborating with her other teachers. (T. 472, 474-477) The student is currently receiving 20 hours of ABA at home, from two providers including the SEIT who currently provides 10 of those hours.
(T. 473-474) ABA and feeding services are provided on most school days through 8:30 PM but the student appears alert and willing to work. (T. 563) She has been informed that the student does not generally get to bed until from 10 PM to 1 AM and fatigue does not appear to be an issue when receiving services. (T. 564)
The student currently is at between 18 to 30 months on the milestones assessment.
(T. 479, 481-482) She including objects and requires a lot of reinforcement and redirection in order to attend. (T. 482-483) Without a high level of reinforcement and redirection, the student will run away, , will not . The SEIT described the student’s as almost “ .” (T. 483-484)
Current at home programs include ADL skills labeling and numbers, requesting a . (T. 485-486) The home program submitted goals for the IEP and follows IEP goals provided . (T. 487, 491-493) Flash cards and a variety of objects are utilized and trial by trial data is collected, graphed and analyzed. (T. 491, 520) The SEIT reviews daily communications as well as the results of its assessments, has met staff and has with information about what is being done in the home program to foster generalization. (T. 492-494) The student is currently able to generalize because she is receiving coordinated school and home ABA in contrast to the situation prior to her attendance (T. 494, 500)
The SEIT stated that absent home services there would be no one able to carry over what she had learned in school. (T. 502) In prior periods when there was a gap or reduction in home services, the student has regressed. (T. 504-511) After the December 2013 break, it took 2-3 weeks to regain all pre-break skill levels. (T. 507-508) Whenever there has been a break re-teaching had to occur actively even though the student’s parent reported her attempts to use the techniques in those intervals. (T. 510-511) The SEIT opined that the regression would not occur and learning would be demonstrated if the student received services during the breaks and recommended 40 hours of ABA per week during school breaks. (T. 513, 516) She noted that the student is currently receiving a high level of ABA during the school day and that 40 hours at home during breaks would constitute a reduction in what was provided totally. (T. 516-517) The parent is present during the sessions at home and the SEIT engages in parallel talk to instruct and inform the parent which is necessary to help carry-over. (T. 517, 520) However, the parent needs ongoing reinforcement and guidance. (T 561-562)
When this SEIT began providing services in May 2012, the student was not in any school. (T. 494-499) In public school which she started in September 2012, TEACCH methodology was utilized but although an ABA approach was alleged no data was provided. (T. 499-500)
The assessments show that the student has progressed including in areas of table activities and child’s play and expressive language (T. 478, 522-523, 540)
The SEIT opined that 20 hours of at home ABA should be continued based upon progress recorded by data. (T. 523)
With regard to family time instead of ABA after school, the SEIT stated that the student needed to understand interactions with family and better communicate with them and that at this time, although family members are always present during the sessions, they do not know how to deal with the student’s behavior and she cannot communicate with them. (T. 564-565)
Mother
Mother’s testimony included the following:
Mother described the student as happy, affectionate and curious with transitioning challenges arising from not understanding what is happening around her, and sensory issues including an which . (T. 634-636) She has food and seasonal allergies, acid reflux and ongoing facial apnea and demonstrates a and when at home without 1:1 support . (T. 638-642)
The student hit all milestones until at about 14 months she stopped and started to regress. (T. 642-643) She was diagnosed with received through Early Intervention.
(T. 643-645) The student was evaluated by after the CPSE informed the parents that that would be necessary for the student to continue to receive ABA at home. (T. 646-
650) The CPSE had told the parents that the student did not have autism but rather a sensory problem and that and a small class program would be appropriate. (T. 649-650)
Mother characterized the progress she observed in the school year in which the student attended in the DOE preschool with 20 hours of at home ABA and additional feeding therapy as very very little. (T. 713) She stated that the independently as was expected in the TEACCH methodology utilized and, further, that the benefit of the afterschool program was limited because the by the different approaches and content.
(T. 713-714)
Mother has observed that when she does not , the student . (T. 655)
Progress since September 2013 has been demonstrated: she although inconsistent but mostly made noises and but is currently using some phrases and more words appropriately and is more patient and tolerant and she her needs, listening and increasingly attending, has improved social greeting and labeling and has reduced . (T. 637, 655, 661-671, 710)
are addressed somewhat in school but the student also receives 2 45 minute feeding therapy sessions per week at home from a . (T. 686) The student is progressing and has started to eat different textures but still needs lots of help. (T. 687-688)
The parent has attempted to pre-plan activities for long breaks without school and services and to utilize techniques learned from the ABA providers but that has not prevented regression. (T. 675-679) She opined that the student could maintain skills during the break with the provision of 20-30 ABA hours. (T. 681)
With regard to the March 12, 2013 CSE review, the parent testified that she had specifically asked AP concerning the provision of at home services and was told that AP was aware that the student was receiving them but that in order to get them she would have to do what she had done previously and file an impartial hearing request. (T. 692, Ex. 7) A paraprofessional was included after she expressed concerns about the student’s distraction and health and feeding issues. (T. 711) With regard to methodology, AP also said that she thought that most of public schools did not provide ABA but that, in any event, she could not recommend that kind of school and those kinds of services. (T. 691-692) Mother testified that she expressed disagreement with recommendations at the review. (T. 694) The parents received an FNR around the end of May 2013 but they were unable to contact the school despite repeated efforts over an extended period. (T. 698700)
The parents through a DOE school coordinator and visited it initially in July 2013. (T. 703, 712) However, although they were thereafter would accept the student and they had a favorable opinion concerning the school, they wanted to see the school recommended. (T. 704-708)
She believes is appropriate and testified concerning the school’s communications with the parents including before and during the breaks and a home visit and efforts to coordinate both programs and the student’s progress. (T. 709-710)
Father
Father’s testimony included the following:
Father stated that he was present and participated in the March 2013 CSE review although for reasons unknown to him his name was not on the attendance list. (T. 717-
718) After the FNR was received, Father made numerous unsuccessful attempts to contact the recommended school at all the telephone numbers provided in order to arrange a visit but received no response until he appealed to the prior CPSE administrator for assistance and got a call from someone who identified himself as a placement officer and told him that the principal would call him. (T. 720-721, 724-725, Exs. C, D) The principal called him at about the end of July and told him that the school was still under construction, that the parents could visit on August 27 and that he would receive a letter with the correct contact information since both the school telephone number and the school address specified were incorrect but he did not receive the promised letter and was therefore unable to make a visit on August 27 or before school started. (T. 722-724, 728729, 738-739) Various written communications also informed the CSE about the parents’ concerns about the program proposed, what the parents had learned about the placement and a failure to implement a hearing officer order. (T. 726-731, 735-736, Exs. C, F) The district was also informed about the student’s with a request for DOE funding, if an appropriate placement and program were not provided and no response was received. (T. 734, 752, T. 752) Ex. F) The parents visited the recommended placement on November 12th after they had been told the location at a resolution meeting in connection with the instant complaint, concluded that it was not appropriate and so informed the CSE. (T. 740-745, Ex. K) They also informed the CSE that it appeared that no placement was then available. (T. 748, Ex. K) No response from the DOE was received. (T. 752)
The parents signed an enrollment contract on September 9 and the student commenced attendance that date. (T. 775, Ex. M) It was the understanding of the parents that they would be responsible only for a pro-rated portion of the tuition and the $2500 deposit should the student be withdrawn after September 30 to accept a DOE placement and everything but the deposit would be refunded if that withdrawal were prior to September 30. (T. 776, Ex. M)
With regard to the parent testified that busing commenced about one month after the student started . (T. 752, 754, Ex. K) Further, although the parents had informed the Office of Pupil Transportation that the pendency order required transportation in a climate controlled minivan, only a school bus was provided and OPT could not confirm and did not allow Father to confirm that it was climate controlled. (T. 756) Although OPT was aware that limited time travel of no more than 30 minutes had been ordered, the trip varied from 30 minutes to about two hours. (T. 758) Father testified concerning delays caused by late bus arrival and breakdowns. (T. 758) Both the parents have filed OPT complaints and the CSE has been notified. (T. 759, 762, Ex. H) The student becomes agitated and/or motion sick from extended travel and the required medical documentation was submitted to the CSE for the review. (T. 769-772, Ex. W) Since January 2014, the bus exceeds a 30 minute trip about 3-4 times per week. (T. 773) For an extended period, the student lacked a suitable car seat/child seat for bus travel for this student and the parents were not permitted to provide one until the end of February 2014.
(T. 762-769, Ex. H)
Father stated that he has transported the student many times and the trip between the family home in Queens and the school at in , using the route with tolls, usually takes 35 to 40 minutes but if the traffic is bad may take closer to an hour. (T. 779-781)
Danielle Prissman (“the OT”)
The testimony of the OT included the following:
She is a New York State licensed and registered occupational therapist and has provided services to the student since September 2013. (T. 585-586) She sees her for two 30 minute sessions per week, a lunch consultation in the classroom and push in group session in the classroom once a week. (T. 586-587) She completed an assessment of the student’s using standardized instruments and goals were developed based upon the assessment, observations and parental input. (T. 588-590, 600-605, 623-6256, Exs. U, R) The student scored very poorly, the age equivalent of roughly 18-21 months, in all areas tested. (T. 591-592, Ex. U) Her present safety issues and she requires constant support to ensure safety. (T. 590) The which limit the use of physical prompts and is by any kind of (T. 597-598) , , . (T. 598)
working slowly to introduce and the student has shown improved tolerance which will increase her (T. 596-597) The school is also working on teaching the student to and the entire team works on the same plan. (T. 598-599) Progress in other areas has also been displayed. (T. 614) Data is collected daily and goals are reviewed every month and demonstrates that progress has been slow but steady. (T. 620-622)
Clinical team meetings with the parents are held every 6-8 weeks at which the parents are provided with progress reports and there are also email communications. (T. 607, 631) In order to ensure that the student’s needs are appropriately addressed throughout the day, a classroom teacher attends one session per week. (T. 607-608) During the push-in sessions each student has instructor present. (T. 609) For the lunch consults there are 6 children and three teachers in addition to the OT. (T. 609-611, 619) There is a sensory gym, fine motor areas as well as a quiet space for one student with an instructor. (T. 612-613) The student’s sessions focus on all her goals while the pushin group sessions focuses on sensory activity and also provides opportunity for socialization. (T. 616) The OT also visits the class almost every day. (T. 619) She is not aware as to what the student is working on at home with regard to self-care but has told the parents what she wants to be worked on which include the holding of fork and spoon and taking on and off shoes. (T. 628, 631-632)
Dr. (“the coordinator”)
The testimony of the coordinator includes the following:
The coordinator holds New York State certification as a special education teacher and for school supervision and administration and is a Board certified behavior analyst at the doctoral level with 18 years experience in the field of special education. (T. 254-258) Her duties include development of curricula and oversight of its implementation, direct observation of and assistance to staff, formulation of FBAs and BIPs and staff training. (T.259-260) She is familiar with this student through direct observation and work with the classroom teacher and classroom supervisor. (T. 261)
During the 2013-2014 school year, has 52 students in eight classes in a 12 month program with two class models: (the model) with typically 6 students and 6 adults who provide ABA instruction; with 8 students, lead teacher and ABA instructors.
(T. 261-262, 276) The population is principally on the autism spectrum although a few do not have that diagnosis. (T. 276) Lead teachers are responsible for decision making and student programming, all are New York State certified special education teachers and many are BCBAs; ABA instructors hold a minimum of a Bachelors degree and have experience working with students on or related developmental disabilities. (T. 262263, 276-277, 311) Classroom supervisors are all Board certified behavior analysts, and SL and OT providers all hold Masters degrees and have state certifications in their areas.
(T. 277) ABA is the primary philosophy but the school uses a trans-disciplinary model connecting OT and SL. (T. 263, 265-266)
Within a 6 hour school day, the students have individualized and group programming and are provided is not. (T. 263-264, 306) One of a student’s instructors/teachers attends one session of weekly to observe, record and facilitate carry over to the classroom throughout the school day and coordination and team planning among disciplines on various . (T. 264-269, 281-284) Extensive professional training is provided to all staff on an on-going basis. (T. 277-279) Numerous team meetings at various levels are held to discuss individual students. (T. 279-281) Parent education and training is provided through workshops and/or counseling sessions, emails and home visits and there is communication routinely with the home-based services supervisor and instructor and at home instruction for this student has been observed. (T. 311-313) There is a full-time nurse. (T. 319) The school follows, generally, the DOE academic calendar. (T. 322, 325-326, 330-331) The degree of regression, if any, a student experiences depends on the student and the amount of programming that student receives during the break and data is kept and that issue reviewed after the student has been in the school a year. (T. 325-328)
Curricula for each student is individualized based upon ABLLS assessments, and review of other assessments, IEPs, reports from other outside providers and parent feedback. (T. 270) Curricula utilized is either in-house developed or commercial curricula and are selected according to the student’s needs. (T. 271) Several different social skills groups are provided and children are grouped by their individual needs based upon a criterion based assessment and are moved to different groups as they improve (T. 271-273) There is also a pure play group and a variety of inclusion opportunities with typically developing peers for those students who could benefit from that. (T. 272-275) Discreet trial data is collected throughout the day, graphed each day and analyzed. (T. 295-296)
The coordinator was part of the team which reviewed the student’s application. The decision to admit her was made in August and was based assessments and review of other reports. (T. 284-285, 289) The coordinator described the student in Summer 2013 as having limited social interactions with adults and being for all intents and purposes in her own world with high rates as well as some very very limited ability to attend with difficulty even redirecting her to make (like “ ”), , concerns about safety and feeding issues and also requiring intensive level of varying reinforcement. (T. 288-289, 291, 294, 300, 301) The admissions team concluded that a class model was appropriate and that there would be an appropriate group with similar needs and behaviors. (T. 290, 317-318) A program including academic programing including preacademic skills was developed. (T. 292-293) Goals and objectives were created. (T. 294-295) This student requires frequent adjustments in learning strategies and frequent modifications are made. (T. 297) Feeding issues are addressed by the speech pathologist and the classroom staff. (T. 319) An FBA and BIP were created for the student.
Progress toward goals since September 2013 includes ability to sit for instruction more ready for learning, improvement on a demonstrating a very nice descending trend with some at zero or almost levels from 40 occurrences per day opening her up for learning opportunities, increased language skills and beginning to look at books appropriately and huge improvements with . (T. 300-301) However, the coordinator opined, the student continues to need instruction throughout the entire school day. (T. 304) Currently, she is a vocal/verbal communicator who requires visual supports. (T. 313-314)
The coordinator has experience with TEACCH methodology including recent observations in DOE schools and believes that this student would not be able to follow a TEACCH program. (T. 323-324)
(“the teacher”)
The testimony of the teacher includes the following:
The teacher is a New York State certified special educator and is a BCBA and she has been lead teacher for the student since September 2013. (T. 336, 339) The student’s ABA instructors include several who are currently in BCBA programs, are certified special educators and/or have Masters degrees. (T. 350-353) She conducted an ABLLS assessment in September and reviewed other reports. (T. 339) The student is in a class of similarly functioning students, all classified with autism. (T. 340-343) The teacher created the students goals and objectives for the 2013-2014 school year in collaboration with the classroom supervisor and based upon review of the assessment matters, the reports and the DOE IEP as well as input from the parents. (T. 344-346) Instruction for the student is provided by all adults and is always except at lunch and for leisure skills time when it is . (T. 352, 371) The student requires a lot of ABA tactics to meet shortterm objectives, a number of different prompts are utilized and there a differential schedules of reinforcement and reinforcing and she is generally reinforced after no more than two responses. (T. 353-354, 358, 360) Instructional programs correspond closely with goals and objectives. (T. 358) progress demonstrated includes in greeting, attending, listening skills, following verbal directions, in social skills, behaviors with some now at zero levels at school although reported to still occur at home, and in the fading out of prompts. (T. 364-368)
Findings of Fact and Conclusions of Law
The information specified in the Background section above is included herein as Findings of Fact. I find the testimony of the parents’ witnesses, as set forth above, credible. The reliability of the ’s testimony in this matter is discussed below. Record references are specified above unless specified below.
The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and Prong 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]
However, the parent has a burden only when payment is sought for a unilateral placement in a private school or the unilateral obtaining of services. Appeal No. 11-053. A parent’s request for additional services or increased frequency of services provided is not a basis for shifting the burden of proof to the parent. Id.
Impartial Hearing Officers have broad authority to grant such relief as they deem appropriate where there has been a violation of FAPE. 20 U.S.C. §§1412[a][1], 1415[i][2][C][iii]; Frank G. v. Bd. of Educ. 459 F.3d 356, 371 [2d Cir. 2006].
Services Offered by the DOE
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 procedures, 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 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. 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]).
Further, I note with regard to issues presented here that a FAPE includes special education and related services designed to meet a student’s unique needs and prepare them for further education, employment and independent living. 20 U.S.C.1400[d]. A FAPE must include any developmental and supportive service as may be required to assist a child with a disability to benefit from special education, including instruction conducted in the home. 20 U.S.C. 1401[26] [29]; 34 C.F.R. 300.39(a).
Claims Concerning the IEP and CSE Review
In this matter the parents have asserted substantive and procedural defect claims and also challenge the placement proposed by the DOE. (Ex. IV) [4]
It is well established that “[s]ubstantive inadequacy automatically entitles the parents to reimbursement.” R.E., 694 F. 3d at 190. R.E. v. N.Y.C. Bd. of Educ., 694 F. 3d 167 (2d Cir. 2012)
Further, 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 testimony of the parents’ witnesses with regard to the extent of the student’s needs at the time the IEP was created was consistent and persuasive. I note that testimony was not inconsistent with it and she too reported a high degree of deficit in all areas and of numerous behaviors which substantially impeded instruction.
The CSE recommended a class in a 12 month program full time health para. I conclude that there was insufficient support for a conclusion that that program would enable this student to make meaningful educational gains.
The evidence shows that in making that recommendation the CSE relied solely upon the reports/observations of participants as well as various reports. But for observation (Ex.
6) and the Educational Progress Report (Ex. 3), the reports were not identified. However, reports were prepared for the CSE turning -5 meeting and their contents referenced in the IEP and I conclude they were considered. (Exs. 2, 4, 5) There is no indication that any other evaluations or reports were reviewed. I note that there is no reference in those reports to any educational services being provided to the student other than those in the school and no indication that that was considered in creating the reports.
The reports describe deficits and areas in which it appeared that no or minimal progress had been made. I note for example that with regard to all “school-related ADL” skills the student still required “maximal” to “total” adult support (Ex. 4) and she demonstrated “minimal improvement” in the ability to comprehend and follow a therapeutic routine (Ex. 5). The reports did specify that certain progress had been observed since September 2012. However, I need not address whether those reports alone would have been sufficient support for the program recommended had the student’s program at the time the reports were issued been limited to an class with but no para.
During the entirety of that placement this student had been receiving weekly 20 ABA hours as well as feeding therapy after school funded by the DOE. I find that the evaluative material considered by the CSE cannot reasonably be determined to support the recommended program without appropriate consideration of the effect of the substantial at home program the student was receiving concurrent with the school based program and whether the student continued to require it. acknowledged that this was not done by the CSE which did not discuss or consider that.
The evidence shows that here, despite being aware that the student had a home services program, the CSE simply refused to consider them in making its determination. acknowledged that at the time of her observation less than two weeks before, she was informed that the student received at home services and that the parents wanted an after school program. The credible evidence shows that Mother sought after school services at the CSE review but was told by who was aware of the student’s services, that in order to receive them, the parents would have to do as they previously had and request an impartial hearing. I note with regard to this finding that acknowledged that during her observation she told the student’s teacher that she was not permitted to give after school services for kindergarten students and that the conversation at the review described by Mother is consistent with that testimony. To the extent that ’s testimony may be deemed to be inconsistent with the foregoing in this paragraph, I find it not credible.
Further, I find that the program proposed by the CSE was not appropriate for this student. credibly testified that the student required at home ABA services because of her need for generalization and consistency and the student’s . The at home service would also serve as a model for the parents, necessary in this case where the behaviors are substantially interfering. It is noteworthy does not recommend at home services for all students she evaluates nor does she always recommend ABA but made those recommendations based upon this student’s profile of strengths and deficits and her developmental stage. The SEIT credibly testified that at home the student required a high level of reinforcement and redirection because of and and the limits on the ability of the parents to respond appropriately despite substantial observation and modeling. The SEIT also described the student’s very limited school related ADL skills at the commencement of the 2013-2014 school year, consistent with DOE provider reports, which were also manifest at home.
I give no weight to the testimony the student required family integration opportunities and that afterschool services were not in the student’s best interests. I note that her testimony indicates that that opinion is based upon her general views about all severely autistic children and does not arise from consideration of this particular student’s needs. Further, it is contradicted persuasively by the testimony that with this profile require a very high level of ABA and that this particular student’s inability to attend and dangerous behaviors appropriately trained persons to ensure, among other things, consistency and appropriate carryover. Further, the SEIT persuasively testified that appropriate family interactions at this time were not possible for this student because she could not communicate with her family and the family did not know how to .
I conclude that the failure to provide home services in conjunction with the program it recommended was sufficient for a determination that a FAPE was not provided.
However, I also note that testified that his student this student required intensive ABA during her school program from a trained ABA specialist. It is noteworthy staff described that even within an ABA program the student needed constant readjustment of reinforcers and changes in program during the school day based upon data collection and observation. The recommendation of program has not been supported by any testimony as to how that program would function and how it could be expected to meet this student’s needs. There has been no claim regarding the methodology that would be utilized or its effectiveness for this student. Although testified that a para was added, she stated that that was solely to provide support and assistance with feeding and health issues, not instruction. The DOE has not demonstrated that program it recommended was reasonably calculated to enable this student to make meaningful educational gains.
Accordingly, the DOE has failed to establish that it provided a FAPE for the 20132014 school year. In these circumstances, I do not address the parents’ procedural claims with regarding the IEP.
Placement
The parents have also asserted various claims related to placement. In view of my conclusion that the IEP was a nullity, I do not address those issues. I note, however, that the testimony of the parents concerning the failure of the DOE to provide information enabling them to locate the school is credible and supported by uncontested documentary evidence. Further, I credit Father’s testimony as to what the parents observed and were told when they had an opportunity to visit it which is also uncontested. I also credit the testimony and the coordinator that a TEACCH methodology is not appropriate for this student and note that no testimony to the contrary has been presented.
Services Selected by the Parent
When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. Although the parents bear the burden of proof with regard to the services obtained by the parents for the student, they are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank
G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).
I find the testimony, set forth above, of the coordinator, the teacher and the credible. The evidence shows a methodology appropriate for this student and provides an individualized program specifically developed for her and based upon appropriate assessments which is constantly monitored by data collection and graphing to enable adjustments in view of the student’s responses and progress. It utilizes IEP recommended strategies and techniques. The student is appropriately grouped with others who have similar needs. Her instructors and related service providers are appropriately certified and/or qualified and substantial supervision is provided. Professional development and staff training activities are provided. Staff routinely communicate frequently and across disciplines. Parent training is provided and there is routine communication between the school staff and the parents and home providers. utilized, including a The student’s feeding issues are addressed. Further, the student has made significant progress in various areas including attention, reduction of language skills, social skills, following directions and self-management. (Exs. O, P, Q, R,T, U,V)
I note that was recommended by the CSE but is not provided However, it is well established that a parental placement need not provide every service specified in an IEP. The sole claim asserted by the DOE with regard that it utilizes only ABA methodology. However, the evidence shows that that is an appropriate methodology for this student. Further, I note that there is nothing in the record as to any other methodology that would be effective at this time.
I conclude that the parents have met their burden to establish reasonably calculated to enable the student to make meaningful educational gains. The student’s need for additional at home services is based upon the nature and degree of her needs does not provide support for a conclusion that the school is not appropriate.
At Home Services
It is well established that that a district is not required to provide all services necessary to maximize a student’s potential. Those considerations similarly constrain unilaterally selected parental programs. Gagliardo, 489 F.3d at 112; see Frank G. at 364365.
In this matter the parents assert that the student requires additional services at home to supplement program. I agree. As discussed above, I give no weight to the testimony of AP regarding the utility of at home services for children. The evidence, specifically the testimony and the SEIT as set forth above, shows that at home ABA sessions are necessary for this student to enhance generalization, to provide consistency essential in which not only impede learning both in school and at home but also adversely affect the student’s safety and also to provide necessary learning opportunities for the parents. I also note that the at-home services provide ADL instruction in skills necessary in the school environment. (Ex. 4) Further, I am persuaded by the testimony of the SEIT that the student’s behaviors are less controlled in the more unstructured home environment. However, program is a very intensive full day ABA program. It also provides instruction for the parent. I note that with regard to a program of that type, recommended an additional 10 hours. That the student would benefit if she received more does not support a claim of entitlement to it. I conclude that additional at home ABA is necessary to address the student’s educational needs and that 10 hours weekly is sufficient to appropriately do that.
With regard to feeding therapy, the evidence shows very substantial needs with regard to feeding issues resulting both from and various behaviors. is addressing that, I conclude that in view of the student’s global needs addressed and the , additional at-home service focused on this issue is required to make appropriate progress. Accordingly, two 45 minute sessions per week will be ordered. I note that the parents request continuation of services through a 7 day week. The student’s schedule shall be at the sole option of the parents.
The parents also allege regression during breaks and seek services during periods when the school is closed. I note that the Educational Progress Report prepared by the student’s teacher during the 2012-2013 school year also reported regression after a long break. (Ex. 3) The parents seek not only a continuation of existing at home services but an addition to make up to some degree for the lack of school services during that period and indicate that 30-40 hours are required. With regard to that claim, however. I note that the coordinator testified as provision of additional assistance in connection with breaks and Mother testified as to various efforts that the parents made. The consideration is not whether the student will continue to progress but rather the degree of regression. I conclude that regression will be sufficiently limited by the continuation of the at-home services provided during the school year through the break periods. Accordingly, the athome services will be provided on a 52 week basis.
I note that whether considered pursuant to my equity jurisdiction or applying the Prong 2 Burlington/Carter standard, the need for the above described services has been established by the parents.[5]
Equitable Considerations
The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. The DOE has the burden with regard to this issue.
In the instant matter, the DOE has not claimed, and the evidence would not support that claim, that the parent failed to cooperate in the development of the IEP or the DOE’s designation of a placement. Further, the evidence shows that the parents were willing to consider the DOE’s recommendations and promptly communicated their concerns and intentions to the CSE which was dilatory in such responses as it made.
In these circumstances, I find no basis for denying or limiting the reimbursement sought.
Transportation
The parents assert that the DOE failed to comply with the CSE transportation mandate for this student and seek an “appropriate” order. I do not have jurisdiction to consider claims regarding the implementation of a prior order. However, that IEP is a nullity. I conclude that the parents seeks a reconsideration of that issue.
Parents submitted a request for medical accommodation, alleged to have been submitted to the CSE, which states that the student requires a small temperature controlled bus and a trip not to exceed 30-60 minutes. (Ex. W) In this matter the parents have unilaterally selected a school in a different borough. Father testified that his trips to that school using the fastest route took from 35 to 40 minutes but with bad traffic could take up to an hour. Any expectation that DOE transportation could take less (30 minutes) is unreasonable and is not asserted by the physician to be necessary for this student. Further, it is to be expected that on occasion traffic conditions and vehicle malfunctions will impede compliance. The DOE will be ordered to provide a trip scheduled to take no more than one hour in normal traffic conditions.
Order
1. The DOE shall immediately reimburse the parents for tuition for the 2013- 2014 school year (September 2013-June 2014) in the amount of $99,833.33 upon receipt of evidence that the charge is the usual and customary charge for this student’s program and evidence of parents’ payment.
2. The student is entitled to receive for the 2013-2014 school year at the authorized rate the following at-home services on a 52 week basis: ten (10) hours per week of ABA services and two (2) 45 minute sessions per week of . The student received certain services pursuant to a pendency order in this matter. The scheduling of services during a 7 day week shall be at the sole option of the parents. The DOE shall immediately issue authorizations as specified herein for the period commencing with the issuance of this order. Compensatory services for what was not provided on a 52 week basis during that period have not been ordered.
3. Transportation to and shall be provided in a climate controlled minivan. The scheduled trip time in normal traffic conditions shall not exceed one hour. The student shall be provided during the trip with such equipment as is mandated by applicable regulations for student safety. Dated: May 22, 2014
Judith Schneider, Esq. gc
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer JS:gc
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.
DOCUMENTS ENTERED INTO THE RECORD
1 Amended Due Process Request, 9/11/13, 12 pgs. Department of Education
2 Report, 1/4/13, 6 pgs. Department of Education
3 Educational Progress Report, 1/7/14, 3 pgs. Department of Education
4 Report, 1/10/14, 3 pgs. Department of Education
5 Report, 1-18/13, 3 pgs. Department of Education
6 Clinical Observation, 3/1/13, 3 pgs. Department of Education
7 CSE IEP (“turning 5” IEP) 2013-2014, 20 pgs. Department of Education
8 WITHDRAWN
9 ID ONLY
A Impartial Hearing Request, 7/1/13, 8 pgs. Parents
B Finding of Fact and Decision of Linda Agoston, Esq., Parents
2/6/13, 19 pgs.
C Par. Let to CSE, 6/10/13, 5 pgs. Parents
D FNR: Annual Review or Re-eval., 5/24/13, 2 pgs. Parents
E Neuro-Psycho. Eval, Dr. , 7/2012, 10 pgs. Parents
F Par. Let to CSE with fax confirm, 8/16/13, 3 pgs. Parents
G Par. Let to CSE with fax confirm, 8/28/13, 3 pgs. Parents
H Par. Let to L. Descosta re Transport., 10/8/13, 1 pg. Parents
I Par. Emails with CSE, 10/4/13, 2 pgs. Parents
J Par. Let to Dr. & confirm, 10/7/13, 2 pgs. Parents
K Par. Let to CSE, 11/26/13, 6 pgs. Parents
L Program, 2013-2014, 6 pgs. Parents M Tuition Contract, 9/9/13, 2 pgs. Parents
N Affidavit of Payment, 1/31/14, 1 pg. Parents
O Individualized Schedule, 2013-2014, 1 pg. Parents
P Classroom Goals, 2013-2014, 6 pgs. Parents
Q Goals, 2013-3014, 2 pgs. Parents
R Goals, 2013-2014, 2 pgs. Parents
S Attendance Record, 9/30/13, 1 pg. Parents
T Educational Progress Rpt., 12/20/13, 4 pgs. Parents
U Eval. Rpt., 12/15/13, 6 pgs. Parents
V Progr. Rpts., 12/20/13, 2 pgs. Parents
W Req. for Medical Accommodations, 5/31/12, 1 pg. Parents
X Author. For Rel. of Health Info-HIPAA, 5/30/12, 1 pg. Parents
Y Updated Affidavit of Payment,4/23/14, 1 pg. Parents
I Prehearing Conference Memo Impartial Hearing Officer
II Compliance Date Extension Decisions Impartial Hearing Officer
III Interim Order on Pendency Impartial Hearing Officer
IV Parents Closing Memo Impartial Hearing Officer
V Emails re additional exhibit and DPE closing memo Impartial Hearing Officer
VI Email re record close date Impartial Hearing Officer
Footnotes
[1] The student was at that time enrolled in a DOE school and the order referenced services in addition to instruction at a “local school”. (Ex. III) In September 2013, she commenced attendance at the school unilaterally selected by the parents. There is no current claim that the DOE did not ultimately provide any services specified in the pendency order might have been interrupted or denied interrupted or denied by the DOE as a consequence of that change or for other reasons. (T. 56-57) The student has continued to receive
[20] hours of at home ABA SEIT services, 2 at home feeding therapy sessions weekly and an in-school 1:1 para. Ex. B) From September 2012, the student had attended a full day DOE 8:1:2 preschool program. She was also receiving, among other things, 20 hours per week of SEIT ABA services pursuant to pendency order. (Ex. B) The CSE convened on March 12, 2013 in a “ ” review to develop a program for the 2013-2014 school year, the year. In an IEP to be implemented on September 3, 2013, it classified the student as autistic, noted the student’s need for a 12 month program, and recommended a 6:1:1 full day program with related services of (“OT”), ” ) (three 30 minute sessions per week for each) and a l. (T. 77, Ex. 7) The contents of this Background section are included herein as Findings of Fact.
[4] With regard to July-August 2013, the parents in their impartial hearing request specifically claimed that a separate IEP was created for that period by the CPSE and that the program and placement were not appropriate and reiterated that claim in their closing memorandum. (Exs. 1, IV) That claim was not addressed by the DOE which submitted no evidence concerning the student’s July-August program, the final part of the student’s pre-school program. The DOE made no claims that consideration of the July- August 2013 program was barred as a consequence of the February 6, 2013 Finding of Fact and Decision. (Ex. B) Further, that decision does not specifically reference that period. However, in view of my findings and conclusions with regard to whether a FAPE was provided for the remainder of the 2013-2014 school year, I do not address that claim.
[5] In their hearing request the parents asked for consideration of an enhanced rate. No evidence concerning that has been submitted and that request has not been stated in the parents’ closing memorandum. I conclude that it has been abandoned. (Ex. 1)