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: September 4, 2013

December 19, 2013

February 25, 2014

Actual Record Closed Date: April 4, 2014

Hearing Officer: Linda S. Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 4, 2013

Attorney — Parents

Chairperson Designee, CSE District — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 19, 2013

Attorney — Parents

Dr. Chairperson Designee, CSE District — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 25, 2014

Attorney Mother — Parents

Head Teach Birch Family Services — Parents

Senior Curriculum Coordinator — Parents

Dr. Chairperson Designee, CSE District — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 4, 2014

Attorney Mother — Parents

SEIT — Parents

Dr. Chairperson Designee, CSE District — DOE

On August 16, 2013, I was designated by the New York City Department of Education ("DOE") as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York in the matter of ") and the parent through her attorney who initiated this hearing on August 16, 2013. On September 4, 2013, I scheduled a pendency hearing and ordered the DOE to fund the placement (" ") and with Special Education Itinerant Teacher ("SEIT") services for 5 hours per week and provide related services of individual twice times per week for 30 minutes per session in school and individual twice per week for 30 minutes per session in school and provide related services outside of school of individual twice per week for 45 minutes per session and individual a week for 45 minutes per session funded by the DOE for the pendency of this hearing. Hearings were held on September 4, 2013, December 19, 2013, February 25, 2014 and March 4, 2014. The parent challenges the March 11, 2013 "Turning Five" meeting (Exh. A at 3) and recommendation of the Committee on Special Education ("CSE") and to continue the program as outlined in the Committee on PreSchool Special Education ("CPSE") dated June 6, 2012 Individualized Education Program ("IEP") (Exh. B) for the 2013-2014 school year (Exh.A at 6) and the parent withdrew the request for outside of school related services of (trans. 91).

The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and to present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the joint requests for extensions of the compliance dates were granted (trans. 23; 54, Exhs. I-V). The last compliance date was extended as a result of the request for post-hearing submissions (trans 104). The parent's representative submitted her post-hearing brief on April 4, 2014 and the district’s representative declined to submit a post-hearing statement. Accordingly, the decision due date is April 18, 2014. Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

BACKGROUND

Alayna is a five-year-old girl with a history of delays in all areas of development (Exh. A at 2). The CPSE classified with a Disability on the IEP dated June 6, 2012 and indicated that her cognitive and communications skills were within the poor range (Exh. B at 2). The CPSE recommended placed in a special class with a student to staff ration of 10:1:2 or 10 students with a teacher and 2 assistants in a approved special education program (Exh. B at 14,15). The Authorization of the IEP Change dated August 14, 2012 (Exh.C at 1) indicated attend a preschool program at Birch in a special class with a staffing ratio 8:1:2 and outside of school.

attended the for the 2012-2013 school year and the SLT provider reported on December 7, 2012, when Alayna was 4 years and 8 months child that she required "(5+) requests to stay focused and on task" (Exh E at 1) and had difficulty generalizing information (Exh. E at 2). who used words with and who

On January 3, 2013, when reported that and responses make it difficult for her to function" (Exh. D at 1).

The SEIT provider from the submitted the agreement for 5 hours per week at $102 per hour for services from September 4, 2013 through June 27, 2014 (Exh. F).

On November 22, 2013, the quarterly progress report indicated was placed in a special class with a staffing ratio of 8:1:2 and received on twice per week for 30 minutes per session for a 12-month program (Exh. G at 1) and indicated demonstrated deficits in receptive and expressive language and required additional SLT goals (Exh. G at 2).

On November 27, 2013, the SEIT provider, reported was showing improvement in her , her language and communication development and her adaptive behavior and noted required "support to to increase her ability to complete tasks" (Exh. H at 4).

The District’s case was presented in the testimony of Dr. , CSE District representative who while not conceding that the District failed to provide a free and appropriate public education ("FAPE") for and stated she would not present a case and she did not present any witness or evidence to establish the District provided FAPE for the 2013-2014 school year (trans. at 20).

The parent's case was presented in the testimony of the parent, Ms. SEIT senior curriculum coordinator at special The parent maintained required a continuation of her program outlined in the IEP dated June 6, 2012 and required both the home-based SEIT services in addition to the school-based program to progress (Exh. A).

The parent testified that her daughter or and at the age she was evaluated and started to receive through early (Exh. 87). She stated that she attended on March 11, 2013, and she disagreed with the recommendation for a public school with a class size of as her daughter would not receive the correct services (trans. 89). She stated that she told the CSE team that her daughter could not cope with a public school with 500 kids and maintained that with the SEIT services improved (trans. 90). She opined that her daughter progressed in her ability to speak and socialize and was able to interact with other people and she attributed the progress to the (trans. 91).

Ms. a holder of a master's degree in early education and special education and licensed and certified in special education from early childhood to second grade and employed as a SEIT and a teacher in a class for the last 5 years, testified that she worked with children aged 3 through 6 (trans. 96). She stated that she worked through the as her SEIT since October 2013 (Id.). She stated that she provided 5 hours of SEIT services per week to to focus and stay on task (trans. 99). She progressed in her ability to engage and focus by a visual schedule and educational reinforcers (trans. 100). She stated that Alayna loved games and books so she placed these activities as a reward after learning letters, numbers and homework so Alayna was motivated to complete her work (Id). She explained that because of her strategies Alayna was now able to attend to 7 to 9 tasks and was able to attend for 2 hours (trans. 101). She opined her growth in terms of academics with reading, spelling and writing and could complete for homework from her Birch classroom teacher (trans. 102-103). She stressed need was her inability to regulate her body and focus (trans. 104).

Ms. curriculum , testified that she was a licensed and and language pathologist with a master’s degree in speech and hearing handicapped and obtained a certification in school building leadership (trans. 62). She stated -contained classrooms and 2 integrated preschool classrooms for 185 students (trans. 65). She stated was a New York State approved special education school for both CSE and CPSE students and all the teachers were certified special education teachers and all the related service providers and SLT were licensed and certified (trans. 68). She stated was placed in a special class with a staffing ratio of and stressed the staffing ratio of a head teacher and 2 assistant teachers as the school followed the TEACCH methodology and the extra staff allowed for daily instruction time to progress (trans. 72).

Ms. , testified that she had a dual master’s degree in special education and regular education and was licensed in special education from birth through second grade (trans. 34). She stated that she for the past 14 years and she provide direct instruction since September 2013, and the staffing ratio of her class was children, a head teachers, 2 teacher assistants and a paraprofessional for a student (trans. 36). She noted that her students were classified with disabilities aged 5 through 8 years old (trans. 37). She with a and opined that through her instruction (trans at 40). She explained entered her classroom in September 2013, she had skills in reading and math and now Alayna could recognize numbers 1 through 20 and identify lower and upper case letters which were Kindergarten skills (trans. 42). She opined improved her fine motor skills in cutting, drafting and coloring inside the lines (trans. 43). She further opined that progressed in her ability to socialize and take turns in science, social studies, art or cooking (trans. 44). She noted that she was working on improving s ability to focus and to follow directions and was now able to converse with 5 to 6 exchanges of communication (trans. 46). She maintained that she communicated with the parent through a log book and from the Unique curriculum and the Handwriting Without Tears curriculum and that as placed with students with similar abilities (trans. 52).

FINDING OF FACT, CONCLUSION OF LAW

The District must establish that it appropriately ascertained the child’s educational needs and prepared an IEP in accordance with the procedural and substantive requirements of federal and New York State Regulations. The parent asserted that the school district failed to offer a FAPE in that the CSE failed to offer an appropriate program for the 20132014 school year. The State Review Officer (SRO) has ruled on the issue of the type of procedural violation that would render an IEP invalid. The State Review Officer (SRO) has ruled on the issue of the type of procedural violation that would render an IEP invalid. In Appeal No. 09-096, the SRO ruled that ”While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).” The SRO in 06080 also ruled the Second Circuit held that “a school district fulfills its obligations under the IDEA if it provides an IEP that is “likely to produce progress, not regression” and if the student’s IEP affords him an opportunity greater than mere “trivial” advancement. Cerra v. Pawling CSD, 427 F.3d 186, 195, quoting Walczak v. Florida UFSD, 142 F.3d 119 130 [2d Cir. 1998] and that the student’s IEP is reasonably calculated to enable the student to receive educational benefits. Bd. Of Educ. v. Rowley, 485 U.S. 176, 206-207 [1982] Cerra v. Pawling CSD, 427 F. 3d 186, 192 [2d Cir. 2005] and the IEP is likely to provide some “meaningful” benefit to the student. Mrs. B. v. Milford BOE, 103 F.3d 1114, 1120 (2d Cir. 1997).” The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

The parent claims that the IEP is substantively and procedurally defective. I find the DOE’s acknowledged that a FAPE was provided for the 2013-2014 school year.

The Southern District ruled on the whether the Burlington/Carter analysis applied in a case procedurally analogous to this instant matter. M.N. and H.N. v. New York City Department of Education, 700 F.Supp.2d 356, 368 (S.D.N.Y). I find that the Burlington/Carter analysis is not necessary when the relief sought is not funding for a unilateral placement, but rather the continuation of approved non-public school, related services and SEIT services; however, I note that the parents provided substantial evident to establish that the at-home SEIT was qualified to provide appropriate services to meet her unique needs in terms of focusing, attending and communicating (Exhs. H, I and J). I find Ms. has extensive credentials in special education including experience teaching children aged and I credit her testimony had she is providing instruction individualized to to enable her to progress (trans. 97 to 103) I further credit the testimony of the special education teacher that she provided direct instruction to enable to progress in terms of her . Having reviewed documentary evidence submitted by the parent and the unrebutted and credible testimony of the witnesses of the parent, I find the record supports a finding that provided an appropriate program and and afterschool SEIT services was appropriate. Accordingly, I find the parent is entitled to 5 hours of homebased SEIT and a continuation of .

ORDER

Therefore, it is hereby ordered that DOE fund the placement at Services provide services for 5 hours per week and provide related services of times per week for 30 minutes per session in school and per week for 30 minutes per session in school funded by the DOE for the 2013-2014 school year upon proof of attendance and payment (the evidence of such payment must be acceptable to the Department of Education). Dated: April 16, 2014

________________________

LINDA S. AGOSON, ESQ.

Impartial Hearing Officer LSA:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 4, 2013

A Hearing Request, 8/16/13, 7 pp. Parents

B IEP, 6/6/12, 17 pp. Parents

C Authorization of IEP Change, 8/14/12, 2 pp. Parents

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 19, 2013

D OT report by Ms. /7/13, 2 pp. Parents

E , 12/7/12, 3 pp. Parents

F provider's Agreement, Undated, 1 p. Parents

I Decision on Extension, 10/28/13, 1 p. IHO

II Decision on Extension, 11/22/13, 1 p. IHO

III Decision on Extension, 12/19/13, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 25, 2014

G Services Quarterly Report, 11/22/2013, 4 pp. Parents

H Quarter Report, 11/27/2013, 4 pp. Parents

I SEIT Notes,1/6/2014 - 1/13/2014, 6 pp. Parents

IV Decision on Extension, 2/25/2014, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 4, 2014

J Second Quarter Report, 3/14, 4 pp. Parents

K Daily Schedule Family Services, undated, 1 p. Parents

L Attendance for Family Services 2013-2014, 1 p. Parents

IV CORRECTION: Decision on Extension, 1/27/14, 1 p. IHO

V Decision on Extension, 2/25/14, 1 p. IHO

VI Decision on Extension, 3/27/14, 1 p. IHO

POST HEARING SUBMISSION

VII Parents' Closing Statement, 4/11/14 6 pp. IHO