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 14, 2013

November 20, 2013

November 21, 2013

January 16, 2014

January 17, 2014

Actual Record Closed Date: May 9, 2014

Hearing Officer: Roslyn Roth, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 14, 2013

Attorney — Student

Parent/Mother — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 20,

2013

Attorney — Student

Attorney — Student

Mother — Student

District Representative — DOE

Assistant Principal P-224 (Via Telephone) — DOE

2012-2013 Teacher (Via Telephone) — DOE

Proposed Special Ed Teacher (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21,

2013

Attorney — Student

Parent/Mother — Student

District Representative — DOE

School Psychologist (Via Telephone) — DOE

Speech Therapist (Via Telephone) — DOE

Occupational Therapist (Via Telephone) — DOE

Physical Therapist (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 16, 2014

Attorney — Student

Parent/Mother — Student

Principal (Via Telephone) — Student

Teacher (Via Telephone) — Student

DR., Developmental Behavior Pediatric Fellow (Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 17, 2014

Attorney — Student

Parent/Mother — Student

Occupational Therapist, (Via Telephone) — Student

Speech Therapist, (Via Telephone) — Student

Special Education Itinerant Teacher (Via Telephone) — Student

District Representative — DOE

PROCEDURAL BACKGROUND

This hearing was held pursuant to New York Education Law § 4404(1), 20 U.S.C. §1415(f), the Individuals With Disabilities Act (“IDEA”). In accordance with the Parents’ Request for the Hearing dated July 16, 2013, I was appointed to hear this matter. Timely extensions were given. Hearings were held over the following days: August 14, 2013, November 20, 2013, November 21, 2103, January 16, 2014 and January 17, 2014.

The Parent was represented by counsel, a District representative argued the District’s case. The Department of Education, “DOE”, called 7 witnesses: the Assistant Principal from the recommended school, the student’s 2012-2013 Teacher, the student’s proposed Special Education Teacher, the School Psychologist, the student’s 2012-2013 Speech Therapist, the student’s 2012-2013 Occupational Therapist and the student’s 2012-2013 Physical Therapist. The DOE also submitted 12 exhibits “1 through 12” in support of its position. The following 7 witnesses testified in support of the parent’s position: the Principal, the student’s teacher from , the student’s Developmental Behavior Pediatric Fellow, the student’s Occupational Therapist, the student’s Therapist, , the student’s home Special Education provider and the parent. The parent submitted 24 exhibits, “A”, “C through Y”. (See List of Exhibits annexed hereto as “Attachment A”).

DEPARTMENT OF EDUCATION’S POSITION

The Committee on Special Education, (“CSE”) met on June 23rd, 2013 and recommended that the student attend a special class with a student to staff ratio in a District specialized school with the related services of in a group of two once a week and individually two times, individual occupational therapy three times per week and physical therapy in a group of two twice weekly, a classroom paraprofessional, transportation paraprofessional and adaptive physical education five times a week. The DOE asserts that the CSE’s recommendation meets the student’s needs and provides the student with a free and appropriate public education, (“FAPE”).

PARENT’S POSITION

The parent asserts that the DOE failed to offer the student a free and appropriate public education (FAPE) for the 2013-2014 school year; (2) that the is an appropriate placement for Daniel; (3) that the equities in this case favor the parent, and (4) that the parent is therefore entitled to reimbursement and direct payment for the cost of tuition at the for the 2013-2014 school year.

FINDINGS OF FACT

The student is . His classification is not in dispute. By hearing officer decision dated August 21, 2012, the DOE was directed to provide 30 hours of at home applied behavioral analysis services, (“ABA”) and place the student in a NYS-approved nonpublic school, (“NPS”) that provides full day ABA instruction. (Ex A) As a result of the decision, the student was recommended for an NPS, however, the parent did not accept any of proposed schools and the student remained in the DOE’s self-contained school in a class. The student attended the District placement from 9/2011 until 6/2013. The Assistant Principal testified that the student made progress, that he was fully toilet trained and that some progress was noted towards his Individualized Education Program (IEP) goals as well as on the ABLLS and EPM. (TR 65) The witness described the student as verbal. She testified that the team recommended 10 hours of home based ABA, because according to the data they looked at the 30 hours of home based ABA, were not increasing the student’s skills. (TR 69) She testified that 10 hours of ABA was appropriate. (TR 71)

The student’s former teacher testified that the student was low functioning and that his ability to sit nicely and on task improved. (TR 103) She testified that his crisis paraprofessional assisted in redirecting him. The witness testified that she used edible prompts and a token board with the student. She testified that she used the TEACCH methodology and the student was able to visually see what was happening at every point of the day. She testified that in addition to using the TEACCH methodology, she used ABA with the student. (TR 104, 107, 118) She testified that the student’s ability to sit improved and he was able to sit for at least 5-10 minutes and that he learned the class routine. (TR 122)

The teacher testified that the mother was concerned that the student was not eating enough, but that the teacher reported eating was not a problem for the student in school. The teacher testified that when mother was present in the classroom, the student exhibited kicking and hitting behaviors that she had not otherwise seen. (TR 130, 131, 132) The teacher testified that 30 hours of home based ABA was inappropriate and that 10 hours would be sufficient. (TR 135) She testified that she coordinated with the student’s other therapists. The teacher also testified that the student’s language increased. (TR 142, 143)

In reference to the student’s IEP goals, the teacher testified that the EPM sheets are posted and that the student was given 15-20 minutes a day of ABA. She testified that she would have changed his IEP goals effective July 2013. (TR 180-3)

The teacher from the recommended class testified regarding the program. She testified that she uses TEACCH and ABA throughout the day. She testified that she uses repetition and reinforcers. She testified regarding the program and the daily activities. The teacher testified that she uses a multi-sensory approach and that the other students in the class and are in either grade chronologically. She testified that 3 of the students are and 2 are . She also testified that the program has an who trains the paraprofessionals. (TR 204-211)

The school psychologist testified that she participated in the 6/24/13 CSE meeting. She testified that she spoke to his teachers and those who saw him as a part of the District program. She performed a formal assessment of the student 2 years prior. (TR 246) She testified that the parent disagreed with the recommendation made on 6/24/13 because the parent believed the student required a full time ABA program and that the parent rejected 2 nonpublic schools that were offered. The witness testified that 30 hours of home services is excessive based on her experience and review of the data submitted by the home based service providers. (TR 262)

The therapist testified that the student was able to produce up to 4 word phrases with prompting and was able to follow single step directions. She also testified that the student was able to understand and respond to simple questions. (TR 268, 269) The witness testified that the student was able to be redirected to task by his individual paraprofessional and classroom teacher and that she observed the student being engaged in the classroom. She also testified that the student was approaching mastery on his speech goals and was able to independently use 10 action words. (TR 275-278)

The therapist testified that he had great difficulty sitting in a chair in September 2012, but through the use of positive reinforcement, the use of a token board, a visual schedule and his individual aide, he was able to sit in his chair for longer durations and was engaged in tasks for longer periods. She testified that he went from sitting for about 3-4 minutes to about 15 minutes. The witness testified that she collected data and collaborated with the classroom teacher. Additionally based on the student’s performance on the ABLLS he made progress and showed growth in all areas. (TR 283, 286, 292, 293)

The student’s occupational therapist testified regarding the student’s fine motor and sensory deficits. She testified that she used heavy workloads, hands on deep pressure, providing breaks wherein he engaged in movement activities. She testified that she addressed his , and items that the student could fell in order to give him maximum input into his system. She testified that he approached mastery on his goals. (TR 330, 335, 336) The witness testified that she observed him generalize his cutting and writing skills and that she tracked his progress and collaborated with his classroom teacher.

The physical therapist testified regarding the student’s gross motor goals. She testified that he needed visual support and that he was approaching mastery on throwing a ball. She testified that his physical therapy services was meeting his needs. (TR 370, 376, 378)

The administrator from the student’s private placement testified that the student was enrolled in the school since 7/2014. She testified that he has academic, and needs. She testified that when he began in the private school he spoke in 2 word phrases. She testified that he required 2 people with him in order for him to remain seated and that currently he is able to sit independently for 20 minutes. The school uses a token system and he is in a class with 5 students. She testified that the whole program is taught through discrete trial. She testified that the school uses the Brigance to create a program and that he has made academic and behavioral progress. (TR 418, 419, 420, 422, 424, 440, 443)

The administrator further testified that they are working on the goals listed on the student’s IEP as well as additional goals that the private school providers developed. She testified that the student receives 5 hours of instruction, which includes 2 hours of ABA in the morning and that he receives about 3 hours of ABA daily. (TR 477, 484, 506)

The classroom teacher testified that when the student first entered the school he had behaviors. She testified that there are 5 students in the class with varying levels and they each work with their paraprofessionals. He is working on toileting and he takes his diaper off. His participation in group activities has increased and he is given sensory breaks. The teacher testified that they are working on social questions, answering yes and no questions, identifying letters, counting objects, tracing letters, the days of the week, identifying emotions and labeling action pictures. She testified that the student has mastered some social questions and that data is taken to document his performance. She testified the student receives discrete trail training twice a day. (TR 522, 523, 527, 529, 530) The student’s progress reports reveal the student mastered some of his goals in labeling colors, reciting one day of the week, labeling and tracing upper and lower case letters with maximum assistance, identifying and counting numbers, in addition to others. (Ex V)

The student’s pediatric testified that she sees the student from every 3 months to every month depending on the treatment plan. She testified that he is diagnosed with an disorder and has a . She also testified that can be encompassed by the diagnosis by attention deficit disorder. She has been seeing him since 2/2012 and that because of his autism and intellectual disability it takes a lot of intense work with the student for him to learn new skills. She testified that he needs to be in an program with ABA as that has the strongest evidence of being effective for this student. She recommended between 25 to 30 hours of ABA with a trained behavioral therapist divided between school and home. She testified that over the last 6 months she has seen the student make some gains. (TR594-598)

The student’s testified that she provides 3 individual sessions of occupational therapy to the student. She testified the she is working on 5 specific goals with the student; she testifies that the primary area of focus has been working on his attention and focus. She testified that she works with him in completing various activities. She also testified that the student was making progress in his with his dominant hand, in completing puzzles and in his ability to cut circles with a scissor. (TR 616-621)

The student’s speech therapist testified that the student originally presented as a very active child and required redirection and close proximity for non-preferred tasks,. She testified that he and that he . The witness testified that in meeting with the student and observing him she saw the student needed to work on basic skills. She testified that she developed 4 goals to develop his skills to get him to attend to a task. She testified that the student is capable of sitting for 7 minutes and use a phrase or sentence with moderate to maximum assistance. The witness testified that the student has made progress and will show eye contact over one exchange and is able to follow 2 step directions with generally 2 repetitions. (TR 646-673)

The student’s home services provider testified that he sees the student for 5 hours a week. He testified that the student has shown improvement at home and will greet the teachers and say their names. He testified that the student did not respond to the TEACCH method and that he uses a strict discrete trial program. The witness testified that the student requires home services because he and is definitely on the lower end of The witness testified that the student exhibits that is a danger to himself and his family. (TR 706-708)

CONCLUSION

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482)3 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE)(20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S.Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d];4 see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were in adequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the child a FAPE (id.; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148).

The first step in analyzing a tuition reimbursement claim is to determine whether the district offered to provide a FAPE to the student (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra, 427 F.3d at 192).

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensure an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).

An appropriate educational program begins with an IEP that 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. 07-054; Application of the Bd. of Educ., Appeal No. 07-028; Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The evidence established that the student requires a full time ABA program to make meaningful educational progress. Accordingly, the recommendation for a District 75 school in a placement that does not provide a full time ABA program denies the student appropriate services.

The evidence established that the ABA program should be 25-30 hours per week in order for the student to make progress.

The testimony and evidence establish that the student’s current setting provides the student with a minimum of 15 hours of ABA instruction per week.

The evidence establishes that 10 hours of home services is appropriate.

ORDER:

Within 24 hours of receipt of this decision, the DOE shall directly pay for the student’s 2013-6/2014 attendance in The student shall receive 10 hours of home based ABA services effective immediately. Dated: May 20, 2014

Roslyn Roth mv

ROSLYN ROTH, ESQ.

Impartial Hearing Officer RR;mv

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

Parent

Department of Education Psychological Update dated 11/29/11 3 pages

A. IEP dated 8/27/12 30 pages

C. IEP dated 6/24/13 18 pages

D. Progress Report dated 9/12 to 6/13 2 pages

E. Letter dated 1/24/13 1 page

F. Receipt dated 7/13/13 1 page

G. Parental Guarantee Of Tuition 2 pages

H. New Student 30 Day S/L 2 pages

I. New Student 30 DayReview dated 9/12/13 3 pages

J. Student 30 Day Review dated 7/8/13 2 pages

K. 30 Day Review dated 9/12/13 1 page

L. Attendance 2013-2014 1 page

M. ABA Therapist Report dated 6/9/13 3 pages

N. SETSS Teacher Report dated 6/3/13, 7/8/13 4 pages

O. ABA Home Therapy Session Various dates

P. ABA Home Therapy Notes various dates 8 pages

Q. Home Therapy Session Notes various dates 20 pages

R. ABA Session Notes various dates

S. Ten Day Notice of Placement dated 6/25/13 3 pages

T. Report Card 1 page

U. Progress Report

V. IEP 9/3/13 to 6/20/14 19 pages

W. Report Card First Quarter dated 11/7/13 1 page

X. Behavior Intervention Plan dated 9/9/13 2 pages

Y. Functional Behavioral Assessment Undated 1 page

DEPARTMENT OF EDUCATION

1. Impartial Hearing Request dated 7/16/13 7 pages

2. IEP dated 6/25/13 21 pages

3. Prior Notice Package for Placement dated 6/25/13 5 pages

4. Final Notice of Recommendation dated 8/27/12 2 pages

5. IEP dated 1/28/13 22 pages

6. Final Notice of Recommendation dated 1/29/13 1 page

7. ABLLS Form various dates 38 pages

8. Adolescent Health Examination dated 6/6/12 1 page

9. Letter from dated 1/9/13 1 page

10. Final Notice of Recommendation dated 1/29/13 1 page

11. Letter from dated 3/8/13 1 page

12. Final Notice of Recommendation dated 6/24/13 1 page