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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 9, 2013
January 9, 2014
January 14, 2014
Actual Record Closed Date: February 14, 2014
Hearing Officer: Rona Feinberg, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 9,
2013
District Representative Department of
(via telephone) Education
Attorney — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 9, 2014
District Representative Department of Education
Attorney Mother — Parents
SEIT — Parents
(via telephone)
Physical Therapist — Parents
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 14, 2014
District Representative Department of Education
Attorney Mother — Parents
ABA Supervisor of SEIT Program — Parents
(via telephone) Therapist — Parents
INTRODUCTION
On September 9, 2013, January 9, 2014, and January 14, 2014, I conducted an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1), regarding the education program of a school-aged child, (“the child”). The hearing commenced at 11:15 a.m., 10:00 a.m. and 11:00 a.m., respectively and was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.
BACKGROUND
The student is . He is currently receiving Special Education Itinerant Teacher (“SEIT”) services and the related services of and physical therapy in a home program pursuant to an Order of Pendency dated filed on September 11, 2013.
In a request for an impartial hearing dated August 15, 2013, the child’s parents, by their attorney Lindsay Bernstein, Esq., of the law offices of , alleged that the Department of Education did not provide the child with a Free and Appropriate Education (“FAPE”) for the 2013-2014 school. The parents asserted that the child’s last agreed upon placement, based on a Notice of Eligibility for Partial Services dated February 7, 2013, provides for 25 hours of home-based SEIT services, five 60-minute sessions of individual and two 45-minute sessions of individual physical therapy. They maintained that those services are appropriate for the child and asked that the Department of Education be ordered to provide the child with that program for the 2013-2014 school year (Parents’ Ex. A). The Department of Education did not file and Answer.
I was appointed as the Impartial Hearing Officer in this case on August 21, 2013 and the original compliance date was October 29, 2013. A pendency hearing was held on September 9, 2013. On September 17, 2013 at the request of both parties for the availability of witnesses, the compliance date was extended to November 28, 2013 and hearing dates were scheduled for October 30, 2013 and November 4, 2013. On October 31, 2013 at the request of the parent for the availability of witnesses and without objection by the District, the compliance date was extended to December 28, 2013, a control date was scheduled for December 19, 2013 and hearing dates were scheduled for January 9, 2014 and January 14, 2014. On December 19, 2013 at the request of the parents for the availability of witnesses and without objection by the District, the compliance date was extended to January 29, 2014. The hearing was held on January 9, 2014 and January 14, 2014. At the conclusion of the hearing on January 14, 2014 at the request of the parents and without objection by the District, the compliance date was extended to February 28, 2014 for the receipt of the transcripts and the issuance of a Decision and Order.
All of the extensions in this case were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations.
THE PARENTS’ POSITION
, Esq. of the Law Offices of , represented the parents at the hearing. She alleged that the Department of Education did not provide the child with a FAPE for the 2013-2014 school year, that the child’s home program as detailed on the February 7, 2013 Notice of Eligibility for Partial Services was appropriate, and that the equities of the case support the parents. Ms. asked that the Department of Education be ordered to pay for the child’s home program for the current school year.
THE DEPARTMENT OF EDUCATION’S POSITION
represented the Department of Education at the hearing and he maintained that the Department of Education provided the child with a FAPE for the 2013-2014 school year. Specifically, Mr. stated that the IEP meeting was completed in a timely manner, that the placement recommendation of the Shield Institute was made in a timely manner and that the school had a seat for the child both at the beginning of the school year and at the time of the hearing. The Department of Education did not present any witnesses but submitted documentary evidence.
ISSUES TO BE RESOLVED
1) Whether the Committee on Special Education (“CSE”) reconvened in a timely manner to offer a placement for the child after it deferred placement to the Community Based Support Team (“CBST”) following the June 13, 2012 Individualized Education Program (“IEP”) meeting; 2) Whether the CSE provided the child with FAPE by offering an appropriate placement for the 2013-2014 school year; and 3) If the Department of Education did not provide the child with a FAPE, whether the evidence at the hearing was sufficient for the hearing officer to fashion a remedy for that failure.
FINDINGS OF FACT
I.
is the child’s mother. When the child he did not respond to his name, did not make eye . He cried incessantly, had challenging ” to ( 139-140). The parents consulted a after which the child was diagnosed with ( 141-142). The child began receiving Early Intervention and at one point received 20 hours of SEIT, about five hours of , three hours of occupational therapy and two or three 45-minute sessions of physical therapy (SS: 142).
When the child was about two years nine months old he transitioned to the Education (“CPSE”) and for the 2011-2012 school year he began attending (“ ”), a center based program with and physical therapy. He also received several hours of related services outside of school ( 143-144). The child continued in that program at the beginning of the 2012-2013 school year. After about five months the parents, staff and administration of and the CPSE agreed that the child was not making the “progress and gains that were hoped for” and determined that the child should leave the school and have a 1:1 intensive program (SS: 144-145). The child began that program at home pursuant to the Notice of Eligibility for Partial Services dated February 7, 2013. The program consisted of 25 hours of home-based SEIT services, five 60-minute sessions of individual and two 45-minute sessions of individual physical therapy ( 148; Parents’ Ex. B, C).
For the 2013-2014 school year the child transitioned out of the CPSE. The child’s parents participated in the “ ” meeting on June 13, 2013, as did , the child’s SEIT Applied Behavioral Analysis (ABA) supervisor and , the child’s SEIT, who participated by telephone (DOE Ex. 2 at 12; : 109; : 44). Ms. wrote most of the academic goals on that IEP ( : 30-31, 44-45; DOE Ex. 2). The CSE team discussed the kinds of educational services that would be appropriate for the child for the 2013-2014 school year. The CSE representative who directed the meeting agreed that the child had made “monumental gains” in the home program compared to where he had been when he left not even four months earlier (SS: 150; see DOE Ex. 2 at 3). While that person agreed that the program using the strategies of ABA were beneficial for the child, she stated that she was “not allowed” to offer a program for him and that the “best she could do” was offer a 6:1:1 program and defer the case to the CBST (SS: 150; Gelber: 110-113; DOE Ex. 2 at 7). At the time of the June 2013 meeting the child was four years six months old and, depending on the area of development, was functioning at a 20 to 24 month level and Ms. and Ms. did not believe the child was ready for such a program (Gelber: 111; : 36-37; Parents’ Ex. I). Ms. recommended that the child continue with the services he was receiving at that time, including the 25 SEIT hours of intensive instruction ( : 37).
looked at non-public schools (“NPS”) in the tri-state area and was interested in a particular non-public Applied Behavior Analysis (“ABA”) school. She contacted the CSE and asked if they could relate her request to the CBST. Two weeks later the CSE contacted SS and told her that the CSE was still gathering information for the child’s packet to send to the CBST (SS: 151-153). When the parents did not receive any notification from the CBST in July contacted , the CBST case manager, to find out whether the CBST received the packet and whether the child was approved. Subsequently, Mr. told the parents that the CBST had received and accepted the packet the parents were given a list of NPS schools, some of which SS had already visited (SS: 153). Mr. told that she should continue to look at schools but that ultimately she had the choice of where the child would get his education; SS was told “a number of times” that she could “file her due process rights” (SS: 153-154).
On August 28th or 29th received a voicemail stating that the CSE would contact her to set up a securement meeting to discuss a recommendation for the and that if she did not agree with the placement she could follow her due process rights ( : 154). visited for about two hours and was expecting the CSE to schedule a formal review about the proposed placement (SS: 154-155). However, shortly after her visit received a call from a CSE representative asking whether she was going to visit the school. When told her that she had been to the school, the representative asked what she “thought about it.” told her that she did not believe the school was appropriate because the class being offered was an using the TEACCH method with students who had varied disabilities, and that the setting using the TEACCH method had been unsuccessful for the child. : 154-157, 164). S also noted that on the day she visited the school the teacher was absent and the class was covered by an assistant rather than a licensed teacher (SS: 156).
The child is currently in his home based program receiving 25 hours of ABA SEIT, five hours of speech and language therapy and two 45 minute sessions of physical therapy ( : 157-158). believed that the program is appropriate for the child based on the significant progress he has made in the program compared to his functioning when he left Central Park in the middle of the 2012-2013 school year (SS: 158-164). II.
Ms. first met the child about two and a half years ago during when she was filling in for another supervisor. She met the child again after contacted her agency in January 2013 looking for an ABA team to work with the child ( : 84-85).[1] At that time the child displayed the characteristics of a child disorder and there “wasn’t a huge difference” from when she met him ( 85).
Ms. supervises the child’s SEIT program and she developed the ABA program that the teachers implement. Ms sees the child a minimum of once a month. On those occasions she observes the teachers and assesses both how they are implementing strategies and how the child is responding. Much of the child’s program is based on her observations of the child. Ms. explained how the program was developed and how it is revised on an ongoing basis. She detailed the methods and strategies used with the child and explained how the teachers have essentially taught the child how to learn (Gelber: 9293, 95-105).
Ms. is currently the child’s SEIT.[2] She began working with the child in February 2013 and she provides him with 25 hours of ABA therapy in his home each week ( : 25, 28).
When Ms. first began working with the child in February 2013 he presented as a child with moderate to . In particular, the child was functioning on a six to twelve month developmental level. For example, he avoided any interactions with others, did not allow anyone to be near him, was uncooperative, did not follow directions, was easily frustrated when any demands were placed on him, did not show recognition of labels or other features, had and did not seem to be aware of his surroundings. The child was also nonverbal and relied on crying and “pulling” if he wanted something. He was not toilet trained and he presented with such as lining up toy figures, rolling a vehicle back and forth at eye level and sometimes running back at forth. At the time the child was not “testable” ( : 25-27; 86).
Ms. works with the child on specific goals taken from the June 2013 IEP, the goals included in her December 20, 2013 Progress Report and goals based on her ongoing daily assessments. She described the method by which she teaches skills to the child using discrete trial instruction ( : 30, 48-50; Parents’ Ex. K). Ms. believed that at the current time the child’s home is an appropriate service setting, noting that a lot of extraneous factors can be controlled and specific strategies can be implemented so that skills can be taught in a “very systematic manner” that may not be possible in a less restrictive environment ( : 28).
At the time of the hearing Ms. was working with the child on increasing his receptive skills, including following one-step directions. The skill was being taught systematically so that he needed to follow instructions from various people. Another goal was to increase the child’s receptive vocabulary in terms of being able to identify objects by label. For visual performance skills, Ms. was working with the child on sequencing pictures, objects and category. Recently, the child’s expressive skills have been emerging to the point that he is able to label familiar items and pictures. Pre-academic skills include learning numbers, which is embedded into other activities during the day, such as the number of “pennies” on the token board that Ms. uses for reinforcement. In this way the child has learned the numbers from one to ten and Ms. is now exposing the child to letters ( : 31-32). She was also working on engaging the child in tabletop activities such as teaching him to look and color by holding a crayon in an appropriate grip and increasing the amount of time he will do so ( : 32-33). The child has expressed some interest in cutting and tracing and those skills are worked on as well since they are embedded into other activities. The child’s strength is visual performance and he “relies heavily on visual cues.” Imitation skills are initially being taught in a discrete trial manner where they are broken down into minute sectors and taught systematically. The child was beginning verbal imitation ( : 33-34).
Ms. explained that she noticed that the when . She implemented a strategy that has resulted in the child producing sounds, which has progressed to the child verbalizing the beginning sound of words that she is now pairing with items that the child wants. A major goal is to expand the child’s verbal skills including his ability to express his needs and wants in a more appropriate manner ( : 34-35).
The goals she is working on with the child are included in Progress Reports and she keeps a program book in which she tracks data daily on each specific skill. She then graphs the data and reviews it every day to track the child’s progress. The Progress Report dated May 10, 2013 is a quarterly report that updated the child’s progress on his IEP goals and documents his level of functioning at that time ( : 35-36, 49; Parents’ Ex. H).
At the time of the impartial hearing the child was continuing to make “dramatic improvement" particularly in his communication skills. The child’s level of development increased to about a and he was continuing to show progress on a weekly basis. The child had about 20 word approximations to request items and activities that he prefers. This ability has in that he is than before. The child’s attention span for attending to instructions also improved “dramatically” in that at the time of the hearing he was able to sit at a table for about 15 to 20 minutes using reinforcements to maintain motivation. He was also able to complete simple programming activities independently such as puzzling, threading beads and stacking. The child was also showing some progress in following directions. However, he to keep because he still ( : 38-39, 45-46). The child’s is with his receptive and expressive skills related to following directions. He is not able to follow here” unless accompanied by additional cues and prompts ( : 46-47).
The child goes to a music class once a week for 45 minutes. There are four other children in the class who are approximately one or two years younger than the child. He also visits a recreational center near his house once a week where he has “free play” for about 20 or 30 minutes. During both sessions the child and and maintain attention ( : 39-40, 42).
Ms. previously worked in a center based setting. Based on her experience she opined that the child is still missing a lot of the foundation skills that would make him ready for a center based 6:1:1 program. She explained that the child is still “highly distracted” and that he has been able to make progress because he is in a very controlled environment. A classroom setting with its accompanying noise would have a negative impact on his progress and might cause regression. Moreover, the child still requires a “lot of support” in terms of cues, prompts and different strategies that are “very, very specific to him and his way of learning” ( : 40-41, 50).
Ms. and Ms. opined that the child’s current program with the 25 hours of ABA SEIT is appropriate for him for the remainder of the current school year since he has shown “marked improvement” with this type of intervention in a short period of time ( : 42-43, 55; : 112). Ms. testified that the data shows that the discrete trial instruction by the teachers has had very positive results. She stated that it was important that the child continue with that type of instruction for the 2013-2014 school year ( : 105-106).
is a physical therapist at , a pediatric outpatient sensory gym that provides occupational therapy, for children from early intervention through school age ( : 58).[3] Ms. met the in the fall of 2011 when he was just turning three years old. 4 At that time he was receiving and his special education needs were .” He did not appear to have any words and the sessions were a “struggle.” In the spring of 2013 was the child’s physical therapist at and she developed the related service student progress report dated June 20, 2013 (Parents’ Ex. N). Ms. read the report when she became the child’s physical therapist in September 2013 ( : 59-61). The report indicated that the child’s needs were similar to those in 2011 when he began While he was “ ” what his age appropriate peers were doing, the report indicated that the child seemed to be making “slow and steady progress” in his physical therapy goals. The recommendation at that time was for two 45-minute sessions of individual physical therapy each week, and Ms. believed that that mandate is currently appropriate for the child, noting that since it can take the child ten or 15 minutes to adjust to a session he was getting 30 minutes of “pure treatment.” If the mandate was reduced it would limit the time that Ms. could address his : 61-62).
Using the equipment in the sensory gym, Ms. is working with the child on the goals of improving his overall strength, his climbing, his jumping and his balance and coordination. She is also working with him on negotiating the stairs and motor planning so that he can complete obstacle courses in order to improve his safety and body awareness for him to navigate outside his natural environment. gym has equipment that supports those specific goals ( : 62-63).
The child’s progress is measured by a certain percentage of time or length of time it takes for him to complete a task or the amount of trials it takes to complete a task. At this time the child does not have the skills required for standardized testing ( : 65-66, 7071). Ms. will be writing an annual progress report based on her session notes ( 66).
Ms. opined that the child’s current program is “most appropriate” based on the child’s progress since he has been in that program. She testified that the child would not be able to function at this point without the 1:1 support. Ms. also stated that at this time the child cannot process the motor planning necessary to navigate in a classroom ( : 6668).
has been the child’s since November 2011 when he was in the program at Central Park.[5] At that time the child’s : 167, 169). He was not able to identify common objects or : 170). Ms. trained and was specifically hired to increase the child’s ; she worked on increasing the child’s gestures and vocalizations to communicate ( 168). During the time that the child Park his academic a progress with Ms. was “ ” and it was “extremely difficult” for the child to ” ( : 169). She worked with the child until April 2013 when the parents decided to focus on his ABA and home school program ( : 170171).
Ms. began working with the child again in November 2013 after he had been “consistently receiving a home based : 170-171). At that time the child showed “unbelievable” positive changes and gains since the prior April in that his academic and communication skills “improved by leaps and bounds.” She is now able to work with the child sitting at a table using a behavioral approach with a lot of positive reinforcement. The child gains skills from “week to week” and is now able to follow one and two step directions within his environment. He is aware and responsive to his environment, is able to manipulate his environment through verbal means, can identify a variety of objects and can label a variety of objects. None of these behaviors or skills were present when she worked with the child while he : 171-172).
Ms. works with the child on specific goals using strategies and interventions, including reinforcers that he responds to ( 174-177, 179-180). She assesses his progress on the goals through clinical observation, clinical judgment and by taking data after each session ( : 176-177). Based on those assessments the child has made a “huge amount of progress” this school year ( : 177-178). For example, the child interacts with his environment, and members ( : 177-178).
The child’s speech and language needs are still “extensive.” Ms. noted that the child regresses if he is without speech for a week or two weeks and she recommended that in order to progress further and maintain the skills that he has achieved the child needs to continue to have daily 60 minute intensive speech therapy sessions with a PROMPT trained therapist ( : 173-174).
Ms. did not believe that the child has the ability to function well in a group setting, noting that he shows progress only when “distractions are extremely limited, when the environment is modified for him and when academic tasks and structured tasks are provided in a one to one environment” ( : 180).
CONCLUSIONS OF LAW and DISCUSSION
The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to is to ensure that students with disabilities have available them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). 20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir. 2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program. 20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347; Rowley at 181-182. 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.
I begin by stating that I credit all of the witnesses who testified at the hearing.
A. The Department of Education did not provide the child with a FAPE for the 2013-2014 school year.
Except for program recommendation, the propriety of the June 13, 2013 IEP is not in dispute. The Department of Education did not present any evidence to refute the parents’ contention that the 1 program was not appropriate for the child. It did, however, claim at the hearing that the offer of a placement at the Shield Institute was timely and that it provided the child with a FAPE for the 2013-2014 school year. This claim fails for several reasons.
When a case is referred to the CBST for placement in a NPS the Department of Education must arrange for such services within 30 school days of the recommendation. 8NYCRR §200.4(e). Here, the IEP meeting was held on June 13, 2013 and on that date the case was recommended to the CBST for an NPS. When the child’s mother spoke to the CSE two weeks after the IEP meeting, she was told that the CSE still had the case and was putting together the child’s “packet” to send to the CBST. In a letter dated July 27, 2013, , the CBST case manager, advised the parents that the CBST had received the child’s packet and that the case would be reviewed. A Notice of Securement dated August 27, 2013 indicated that a placement for the child had been secured at the Shield Institute. That document stated that the “CSE must reconvene an IEP meeting to finalize the IEP” (Parents’ Ex. H). No Final Notice of Recommendation (“FNR”) was ever issued and the CSE never reconvened to finalize the IEP. Thus, the Department of Education did not offer a placement to the child in accordance with the prevailing law.
In any event, while the Department of Education maintained that provided a FAPE for the child, it did not present any witnesses or documents to support that claim. In fact, the evidence established that the did not even meet the mandate of the program on the child’s IEP. Specifically, , who presented the only testimony related to the Shield Institute, testified that she visited the school and that the program offered for the child was an class, not the mandated on the IEP.
Finally, it is clear from the evidence and testimony presented at the hearing that a program would not have provided the child with a FAPE for the current school year in that he would not have benefitted educationally from that program. The child did not make any progress in the program that he attended at for the 2011-2012 school year and almost half of the 2012-2013 school year. Uncontested testimony established that the child’s program was changed from to the home based program at the recommendation of the teachers and administrators and by the CPSE. Notably, the child’s June 13, 2013 IEP that recommended the program was developed not more than seven months after the program had been deemed inappropriate for the child. Indeed, the June 13, 2013 IEP acknowledges that: “Attempts to educate [the child] from age two to four, in a specialized school program have not been successful, and that “[s]ubstantial progress has only begun to occur within the last few months, with the implementation of individual services, utilizing discrete trial instruction, shaping and natural environment learning, as well as behavior management strategies” (DOE Ex. 2 at 3). Moreover, all of the teachers and therapists who work with the child testified that he would not make progress in a group center-based program.
For the reasons stated above I find that the Department of Education failed to meet its burden of demonstrating that it provided the child with a FAPE for the 20122013 school year.
B. The child’s home program pursuant to the Notice of Eligibility for Partial Services dated February 7, 2013 is an appropriate remedy for the Department of Education’s failure to provide the child with a FAPE.
The burden of proof in an impartial hearing is on the Department of Education 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]; Application of a Student With a Disability, Appeal No. 11-053. Here, the parents did not unilaterally place the child in a private school and they are not asking for tuition reimbursement. Rather, the parents are asking the Department of Education to provide different services from those on the June 13, 2013 IEP, namely the continuation of home instruction that the child received pursuant to the February 7, 2013 Notice of Eligibility for Partial Services and that he continues to receive pursuant to an Order of Pendency (Parents’ Ex. C). Under this circumstance, the parents are not required to prove that the services sought for the student are appropriate. Rather, the hearing officer must determine what remedy is appropriate based on the evidence presented at the hearing. Application of a Student With a Disability, Appeal No. 11-053. I find that the evidence presented by the parents supports a finding that the child’s current home program is an appropriate remedy for the Department of Education’s failure to provide the child with a FAPE.
As stated in the Findings of Fact indicated above, the evidence showed that the child did not progress after being in group setting for the 2011-2012 school year and almost half of the 2012-2013 school year, and that the school staff, the CPSE and the parents agreed that the child’s should no longer but should instead receive a . Testimony by , the child’s mother, Ms. the supervisor of the ABA SEIT program, Ms. , the child’s SEIT provider, Ms , the child’s physical therapist, and Ms. , the child’s speech and language therapist, left no doubt that the child made extraordinary progress within four months of the initiation of the home based program in February 2013 and that he continues to do so during the current school year. In particular, the child’s SEIT testified that the use of ABA, and in the home program have resulted in the child progressing from a developmental level of six to twelve months in February 2013 when he first began the program, to a developmental level of 20 to 24 months by June 2013 and to a developmental level of 24 to 28 months at the time of the hearing in January 2014 ( : 26, 36-38). For example, when the child began the home program in February 2013 he was non-verbal, unable to communicate with his parents and others and could not sustain attention for any period of time. Testimony at the hearing established that, among other things the child now has about 20 word approximations to request items and activities that he prefers, can communicate verbally with family members and is able to sit at a table and do independent activities such as puzzles, stacking and threading beads for about 15 to 20 minutes with the use of reinforcements to maintain motivation. In addition, the child can identify and label a variety of objects and follow one and two-step directions and ( : 38-39; : 171-172).
Based on the testimony and evidence provided at the hearing I find that having the Department of Education continue to provide the child with his home based program --
25 hours of ABA SEIT services a week, individual five times a week for 60 minutes and individual physical therapy twice a week for 45 minutes -- is the appropriate remedy for the failure of the Department of Education to provide the child with a FAPE for the 2013-2014 school year.
I also note that even if my determination in this case was governed by the threeprong Burlington/Carter analysis, which would require the parents to demonstrate that the “placement” they provided for the child was appropriate and a finding that the equities favor the parents, Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359, 369-370; Application of a Student With a Disability, Appeal No. 11-053, the result would be the same. For the reasons that I find the appropriate remedy to be the current home-based program, I find that that the parents met their burden of showing that the program is appropriate for the child for the current school year in that it is “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 207, Frank G., 459 F.3d at 364. I also find that the parents cooperated with the CSE in that they attended all meetings, provided documents to the CSE, permitted the CSE to evaluate and observe the child at home and visited various programs, including the Shield Institute (SS: 149-152). Indeed, the Department of Education does not contend otherwise. Thus, the equities favor the parents.
ORDER
In light of the above findings of fact, it is hereby ordered that for the 2013-2014 school year: The Department of Education is to continue to provide the child with: 1) Special Education Itinerant Teacher (“SEIT”) services 25 hours a week; 2) Individual therapy five times a week for 60 minutes; and 3) Individual physical therapy twice a week for 45 minutes. Dated: February 24, 2014
________________________
RONA FEINBERG, ESQ.
Impartial Hearing Officer RF;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
Department of Education:
Exhibit 1 Classroom Observation dated pages
June 7, 2013, 2 pages
Exhibit 2 Individualized Education Program
dated June 13, 2013, 12 pages
Exhibit 3 The Placement Response Form
dated August 9, 2013, 1 page
Exhibit 4 Memorandum of Notice of
Securement dated August 27, 2013, 1
page
Parent:
Parents’ Exhibit A Request for Impartial Hearing dated
August 15, 2013, 5 pages
Parents’ Exhibit B Notice of Eligibility for Partial Services dated February 7, 2013, 1
page
Parents’ Exhibit C Preschool Individualized Education Program dated January 31, 2013, 16
pages
Parents’ Exhibit D Omitted as duplicative
Parents’ Exhibit E Letter from CBST Case Manager dated July 24, 2013, 1 page
Parents’ Exhibit F Omitted as duplicative
Parents’ Exhibit Social History Update dated June 7,
2013, 2 pages
Parents’ Exhibit H SEIT Quarterly Progress Report dated May 10, 2013, 3 pages
Parents’ Exhibit I SEIT Age Out Report dated June 1,
2013, 6 pages
Parents’ Exhibit J SEIT Quarterly Progress Report dated August 28, 2013, 3 pages
Parents’ Exhibit K SEIT Quarterly Progress Report dated December 20, 2013, 2 pages
Parents’ Exhibit L Letter from Physical Therapist dated
January 2, 2014, 1 page
Parents’ Exhibit M Letter from dated January 2, 2014,
2 pages
Parents’ Exhibit N Physical Therapy Progress Report dated June 20, 2013, 2 pages
Hearing Officer
The hearing officer did not enter any documents into evidence.
Footnotes
[1] Ms. has a Master’s Degree in early childhood special education, advanced coursework in administration and supervision and has taken several professional development workshops and trainings in ABA as well has having been trained in ABA when she worked at a preschool agency. Ms has extensive experience working in ABA with children who and in supervising ABA programs (Gelber: 77-84).
[2] is a New York State certified special education teacher and has Master’s Degree in education ( 22-23). She has worked with children on the for 25 years and worked for 13 years in a classroom with students who required ABA services ( : 25, 50-51, 54-55).
[3] Ms. has a doctorate in physical therapy and has been working with the Making Milestones agency since 2007 ( 57).
[5] Ms. has a Master’s Degree therapy and is currently the owner and speech and language pathologist at ( : 166).