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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: November 21, 2013
February 6, 2014
February 10, 2014
February 12, 2014
February 28, 2014
Actual Record Closed Date: March 12, 2013
Hearing Officer: Diane Cohen, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21,
2013
ESQ., Attorney (Via Telephone) — Student
Representative (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 6, 2014
District Representative
Attorney for Parents
Mother
Father
(T) School Psychologist — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10,
2014
District Representative
Attorney for Parents
Mother — Parents
(T) Physical Therapist — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 12,
2014
District Representative
Attorney for Parents
Mother
(T) Special Education Teacher — Parents
(T) Special Education Teacher — Parents
(T) Occupational Therapist — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 28,
2014
District Representative
Attorney for Parents Associate of Attorney for Parents
Mother
(T) Therapist — Parents
On August 28, 2013, I was appointed hearing officer pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), in this matter. The parties agreed in a series of emails as to what constituted pendency and I issued a pendency order on September 19, 2013. A hearing was scheduled for October 9, 2013. However, the Parents were not available and I agreed to adjourn that date. We rescheduled the hearing for November 14, 2013 and both parties requested an extension of the decision date. I granted that request after weighing the appropriate factors.
On November 8, 2013, the Parents submitted a subpoena for my signature The district representative requested an adjournment of the hearing scheduled for November 14, 2013 and sent an email stating that collecting the requested subpoena information would require significant legwork. The Parents joined in the request for an adjournment of the hearing date. Since the DOE had made the request and since the Student was on pendency and both parties agreed that the adjournment was in the interest of due process, I felt that the factors weighed in favor of granting the adjournment. I granted the parties’ joint request to extend the decision date, and extended the decision date for 30 days to December 12, 2013.
The hearing was rescheduled for December 3, 2013.
A pre-hearing conference call was held on November 21, 2013. On the call, I expressed concern about the delays in the hearing. I asked for an explanation as to why subpoenas were first being submitted in November. The attorney for the Parents indicated that there were delays based upon attempts at resolution and settlement. The district representative agreed (T. 4). The attorney for the Parents indicated that there was not enough time for the DOE to comply with the subpoena before the scheduled December 3 hearing date. I wanted to find dates that would not end up being adjourned and that we could stick to. Ultimately, we agreed to schedule two dates during the winter break for the hearing. I was concerned that these dates would prove impossible for the DOE witnesses, but they were the first available dates and I thought it would be prudent to try to use them if possible so as to avoid further delay.
On November 26, 2013, the district representative informed me that the witness would be on vacation on the scheduled hearing dates. Ultimately, we were unable to find hearing dates in January. Calendars fill up far in advance and especially in January after the winter break it is unusually difficult to find commonly available dates. This particular year was unusually busy for all. Even finding dates in February was difficult. However, I insisted that we schedule a multitude of dates in February and that the hearing be completed that month to avoid any further delay. It would have been impossible at that point to find the requisite number of days in December and January. The parties jointly requested an extension of the decision date on November 21, 2013. I granted that request for the reasons set forth above after weighing the appropriate factors and extended the decision date for thirty days to January 11, 2014.
On December 31, 2013, the Parents requested an extension of the decision date. I granted that request for the reasons set forth above and after weighing the appropriate factors and extended the decision date for thirty days to February 10, 2013.
Initially, we scheduled hearing dates for February 6, 2014 and February 28, 2014. However, I persisted in insisting that we add additional dates. On January 17, 2014, I added February 7, February 10, February 11, February 12, February 13 and February 14 to the calendar. I ultimately added February 21, February 25, February 26 and February 27, 2014.
We convened for the first day of hearing on February 6, 2014. The DOE called its only witness and completed its case. The parties jointly requested an extension of the decision date. I granted that request after considering the appropriate factors and extended the decision date for thirty days to March 12, 2014.
We convened on February 10, 2014, February 12, 2014, and February 28, 2014 for the Parents’ case. On February 28, 2014, the parties jointly requested an extension of the decision date so that I would have time to receive the transcript of the final hearing date before writing my decision. I granted that request and extended the decision date for thirty days to April 11, 2014. I received the transcript of the last hearing date on March 12, 2014 – which is the record close date -- and so my decision is due on March 26, 2013.
ISSUES
The Parents requested a hearing in this case to challenge the program offered for the 2013-2014 school year. Specifically, they disagreed with the reduction of speech and language therapy, occupational therapy and physical therapy services and Special Education Itinerant Teacher (“SEIT”) Services on both procedural and substantive grounds. They request an increase in SEIT/Special Education Teacher services and the reinstatement of the former mandate of related services. The Parents also request reimbursement for the cost of an independent evaluation.
APPLICBLE STANDARDS
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982)). 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 Individualized Education Program (IEP) developed by its Committee on Special Education (CSE) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005)). "'(A)dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998), quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch.. Dist., 554 F.3d 247, 253 (2d Cir. 2009)).
The IDEA directs that, in general, a hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415(f)(3)(E)(i)). 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, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker 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 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 T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); 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). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008)).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student)), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)), and provides for the use of appropriate special education services (see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see also 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 burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010)).
FINDINGS OF FACT
The Student is girl who has been classified as having a impairment.
The Student’s provider wrote a letter, dated February 10, 2013, in which she stated that it would benefit the Student to have a special educator in the home to teach her how to acquire skills necessary for (Exh. I).
The Student’s special education teacher wrote a letter, dated February 12, 2013, indicating that the Student evidences in all areas of functioning. She states that it is evident that she is able to make progress when taught information in an intensive and consistent manner, with repetition of information, re-teaching, and breaking down on skills. It states that she can not afford to have “down time”. It is imperative that she be practicing constant structured and repetitive ADL and communication skills at this time, while she is experiencing a growth spurt in social and cognitive development. Consistency and repetition are necessary and these skills must be addressed in all settings so that what she learns in school can be generalized and seen at home. It reiterates that she will benefit from at home special education services to address her delays. She requires this systematic learning to increase at skills in order to meet her goals in these areas, and for her to become more independent in her adaptive functioning (Exh. G).
The Annual Review, dated February 13, 2013, from the Student’s provider, indicates that home based are strongly recommended as this will provide the opportunity for the Student’s family and caregivers to be involved and implement carryover techniques during daily routines within her home environment (Exh. L, p. 2). The provider submitted a request for home-based special instruction, dated February 13, 2013, indicating that the Student would benefit from home based special instruction to properly address the Student’s pragmatic language abilities in her natural home environment so that she can acquire these social skills, initially, with familiar people and her siblings before peers within the classroom environment (Exh. M).
The Parents obtained an independent evaluation from in February 2013 (the “ evaluation”). The evaluation includes a variety of recommendations. Among these recommendations is that the Student should receive occupational therapy 3 X 60 weekly (1:1) with an emphasis on skills. Another recommendation is that the Student should receive physical therapy 3 X60 weekly ( ) for gross motor skills, balance and coordination. Another recommendation is for special education with a trained Applied Behavior Analysis (ABA) therapist after school for 10 hours weekly. The Student is significantly delayed and required help utilizing ABA methodology that can break learning activities down in small steps that can be mastered and then built upon (Exh. 4, p. 8).
On March 13, 2013, the Committee on Preschool Education convened and recommended a special class with a staffing ratio, SEIT services three hours per week, speech language therapy three periods per week for 30 minutes, individually, occupational therapy two periods for 30 minutes individually, and physical therapy three periods for 30 minutes individually. In addition, they recommended occupational therapy one time per week for 60 minutes individually, physical therapy two times per week, for 60 minutes, individually, and speech therapy one time per week for 60 minutes, individually (See Exh. C).
On April 11, 2013, the Committee on Special Education (the “CSE”) convened and recommended a school age program. The CSE recommended a 12:1+1 special class with adapted physical education, occupational therapy two times per week for 30 minutes, individually in the provider’s office, occupational therapy one time per week for 30 minutes in the classroom, physical therapy three times per week for 30 minutes individually, speech language therapy three times per week for 30 minutes and a full time paraprofessional for orientation and mobility (Exh. 1, p. 8). The CSE did not recommend the dual mandate of related services after school or the SEIT services.
testified that she attended the April 2013 IEP meeting and that the team would have considered additional related services if the Parent had requested that (T. 79). They recommended additional occupational therapy services based upon the Parent’s request for home based occupational therapy and would have considered more in-class services
(T. 79-80).
Ms. testified that different services were recommended for the school-age program starting September 2013 than were recommended for the pre-school program because the school program is a different kind of program. The program at l07 was more academically oriented. It’s a language based program that does a lot of language enrichment in addition to (T. 109). When she visited the pre-school for one and one half hours there was a lot more playing and not so much academics (T. 110). However, she did not know enough about the pre-school program to say whether it was a languageenriched program (T. 121-122).
She testified that she would have recommended two additional sessions of speech language therapy as a push-in service in school which would be the equivalent of what she had been getting at home (one hour) (T. 111). She would have agreed to recommend two additional thirty minute sessions of physical therapy in the classroom (T. 112). Upon cross-examination, she clarified that she would have recommended them as a push-in in the gym (T. 124). She testified that she based her recommendation for special education services on the reports she had. She testified that the teacher mentioned that the Student was the lowest functioning child in the class. She was making slow progress (T. 129). She testified that if the teacher had recommended additional services like a SEIT or SETSS, they would have met with the team and discussed it at the meting. It could have possibly led to additional services at the school level. Probably SETSS services, “typically once a day for thirty minutes” possibly in the classroom (T. 131-132). They would typically start with one period per day and if it is not enough, then they would amend it (T. 132). She testified that if the pre-school teacher has said that she had the potential cognitively, to gain the academic support and improvements in academics, then she would have given it (T. 133). She testified that if the teacher had said that the Student were making good academic progress, then she would have recommended SETSS because she would have liked the progress to continue. (T. 136).
The Parents submitted an occupational therapy progress report, dated November 24, 2013, in which the occupational therapist states that the Student continues to need the same level of occupational therapy that she is currently receiving, 1 X 60 session at home and 3 X 30 sessions at school to address her fine motor delays and visual motor skills as well as her sensory processing difficulties (Exh. H)
The Parents submitted a progress report, dated December 13, 2013, from the Student’s special education itinerant teacher. She indicates that the Student is able to complete homework with SEIT support. The SEIT assists the Student to learn not to put dangerous items in her mouth. She indicates that it is vital for the Student to generalize skills to the home (Exh. J).
, the Student’ physical therapist, testified for the Parents. He has been treating her for 2 and one half years. Last year, he provided both in school and after school services. He currently provides after school services two times per week for 60 minutes.
(T. 155-156). He testified that the Student is functioning at the 12 to 18 month age in the gross motor area (T. 157). He testified that she has mild low resting muscle tone (T. 158) which would affect her posture and her movements and therefore her education (T. 159). She has general muscle weakness which will also affect her posture and movements and therefore her education (T. 159). It will affect her ability to grasp and hold pens (T. 160). Mr. testified that the recommended physical therapy services in school (3 X 30) would not be sufficient for the physical therapist to work on the physical therapy goal on the IEP (See T. 183). He testified that the Student could receive appropriate physical therapy in the school but it would be better to have specialized equipment (T. 185-188).
He testified that she is making very slow progress with the 3 X 30 in school and the 2 X 60 after school (T. 196).
, the Student’s SETTS teacher testified for the Parents. She provides three hours of SETSS to the Student per week (T. 280). She is working on her expressive and receptive language, classifying simple objects. She has matching skills. She is able to match simple objects with one to one correspondence, same color to same color. They are currently working on a little . She is working to help . She has a “ appropriately so they work and things that ability. They work on to improve her and to reduce distractibility (T. 281). She has and needs and . Ms. works on social skills, such as asking a question (T. 282). She helps (T. 283). She (T. 285). She requires hand over hand to paper (T. 287).
She testified that the Student needs to carry over what is doing in school (T. 293). She testified that she needs more than three hours per week. There are things that she has to generalize into the home -- appropriate (T. 293). She testified that the Student requires two hours per day to work on , to , to , to they are working on in school, to work on language, to work on simple academic skills (T. 294). She testified that she has been progressing in language skills – labeling objects, identifying objects (T. 295). She has seen a little progress in regard to attention (T. 296).
The Student’s pre-school teacher testified. The pre-school program was 8:30 to 1:30 five days per week (T. 331). She testified that if she had been asked whether the Student needed the additional services at home she would have said “absolutely”. (T. 333). She requires “tons” of repetition in a setting in order to really learn and retain what she learns. There is “no way” that the school program alone could take care of all the things that she needs (T. 334). She agreed that she stated at the IEP meeting that the Student is the lowest in the class but that she has made a great deal of progress (T. 337). She testified that the Student made progress with the in school and after school services last year (T. 338). She testified that she made a lot of progress physically. She wasn’t really walking in the beginning and now she was running down the hall (T. 338). “She really made a lot of progress” (T. 338). She testified that generally, when a child changes schools and environments they need more services not less (T. 343). She assumed that there was less individual time in the school age program and she would “think” she would need more services at home than she did last year (T. 344). She testified that she is not going to understand everything she learns in school and she needs somebody at home to explain it and to break it down (T. 345). She testified that she felt the Student needed a minimum of five hours per week of special education teacher services at home, one hour per day (T. 374). To provide less would be a waste of a growth spurt (T. 375).
The Student’s after school occupational therapist testified that the Student has difficulty performing all types of fine motor skills including grasping and manipulating objects and visual motor skills such as puzzles and block design and matching (T. 382). Without these fine motor skills she has participating in most classroom activities (T. 382). She has a lot of and is very (T. 383). She starts the session with sensory input which helps her (T. 383). She also works on adaptive behavior – (T. 383). She testified that the Student has made slow progress. Her a little better and can hold on to a writing utensil for longer amounts of time (T. 395). She testified that 3 X 30 in school and 1 X 60 at home is appropriate. (T. 395). She testified that the occupational therapy at home includes a kind of parent training so that she can get an idea of how to work on the days she is not there. It also gives the Student the idea that she can be more independent when she comes home and has to do her homework when she is not there. The Parent needs weekly updates on how to work with the Student at home. She is taught how to train children and how to teach them how to become more independent based on what activities they are doing with them (T. 402-403).
The Student’s therapist testified that she has been working with her since she was six months old. She currently sees her once per week for 60 minutes (T. 420). She recommended that she continue with at least the 1 X 60 at home and as much as 5 X 60
(T. 436-437). She testified that the Parents need to see exactly what they are doing (T. 437-438).
DECISION
The Parents requested a hearing because the CSE had removed the home-based related services and SEIT services which the Student had been getting in pre-school. The district’s witness gave very little reason for the removal of these services, testified that she would have provided additional related services in the classroom if the Parents had requested them; and would have provided SETSS if the pre-school teacher had recommended them. It is, however, the duty of the CSE to find out what the Student needs and not wait for the parents or the teacher to request them. Moreover, the district’s reasoning – that she would have provided SETSS if the teacher had indicated that the Student could make progress -- is concerning. The purpose of special education is to enable a student to progress. If a student is not progressing, the student requires additional services, not fewer. In fact, the district had no reason to believe that this student could not make progress. The Preschool teacher interview and classroom observation, dated March 18, 2013, indicates that the Student “is making slow but steady progress” (Exh. 3, p. 1). It states that she “has made good progress” in behavior (Exh. 3, p. 1). The special education teacher testified that she appeared briefly on the phone at the CSE meeting and stated that the Student was the lowest functioning in the class but had made a great deal of progress
(T. 337). The IEP developed on the date in question notes that the Student “continues to show growth in both the receptive and areas” (See Exh. N, p. 1). It notes that the Student “responds well to praise and encouragement” (See Exh. N, p. 1). Her pre-school IEP indicates that there had been “an increase in her awareness of things in her environment” (Exh. C, p. 3). It notes that “ span has increased during playtime” She was now in the “parallel play” stage” (Exh. C, p. 3). In physical development, it notes that the Student “is now ambulatory” (Exh. C, p. 4). These noted improvements make it clear that the CSE had information from which to conclude that the Student was able to make progress.
A teacher report dated the day after the CSE meeting, February 12, 2013, made clear what the Student’s needs were and that she had the ability to progress. While this report was dated the day after the CSE meeting, it indicates what the teacher believed and what was or would have been transmitted to the team at the CSE meeting. If the team did not have this information or sufficient information to develop an appropriate program on February 11, 2013, they should have reconvened with the participants who could have shed light on the Student’s needs and after gathering any additional data and assessments. In the report, the special education teacher indicates that the Student “is able to make progress when taught information in an intensive and consistent manner, with repetition of information, re-teaching, and breaking down of skills.” (Exh. G).
I also note that to the extent that the DOE witness determined that the Student could not make progress based upon her scores on intelligence testing, that reliance is concerning. The notes specifically that the Student’s performance on the Stanford-Binet Intelligence Scale -5th Edition and the Bayley Scales of Infant and Toddler Development, 3rd Edition should be interpreted cautiously as an because these were standardized on typically developing children who had none of the Student’s disabilities or behavioral challenges (Exh. 4, p. 4). Moreover, it is clear that the evaluator who conducted this testing had expectations that the Student could make progress with appropriate services. She notes that the Student requires in order to learn new skills and ongoing practice in order to master them (Exh. 4, p. 7). She notes specifically that the Student requires help utilizing ABA methodology that can break learning activities down in small steps that can be mastered and then built upon (Exh. 4, p. 8).
The testimony indicates that the CSE did not have a basis for eliminating the home-based services. The testimony of the providers indicates that the Student continues to need the home based related services in order to make progress and to provide appropriate parent training as well as to help the Student become independent with her homework.
I will leave all the related services in place until the CSE performs updated evaluations and meets with all appropriate participants and providers to assess what the Student needs in order to continue to progress. I will also increase the after-school special education teacher services to five periods per week based upon the testimony of the preschool teacher who testified that that was the minimum she needed. Although the Student had been making progress with the set of services she was getting in pre-school, Ms. noted that it was unlikely that the Student would receive as much one to one attention in the school environment in kindergarten as she had been receiving in pre-school (T. 344). I note that the Student was recommended to attend a class for kindergarten (Exh. 1, p. 7) and had been attending a class in pre-school (See Exh. C, p. 1). Thus, there is a basis for Ms. ’s assumption. While the evaluation recommends ten hours per week, this does not necessarily set forth the minimum that the Student requires to make educational progress. I credit the opinion of the pre-school classroom teacher who worked with the Student daily. The evaluation determines her “educational and therapeutic needs” (Exh. 4, p. 1) and there is no reason to believe that it provided for the minimum legal requirements that the DOE must follow. Nor am I persuaded by the testimony of Ms. that the Student requires ten hours of special education services in the home. Ms. testified that she included generalization into the home environment as part of her instruction, including appropriate play skills with siblings (T. 293). The State Review Officer has held in more than one decision that school districts are not required as a matter of course to design educational programs to address a student’s difficulties in generalizing skills to other environments outside of the school environment. See Appeal No. 12-099, 12-204 and 11-031. Moreover, the testimony of a provider who is likely to profit from the recommendation is less persuasive than the testimony from the school teacher. The home-based provider is less likely to be recommending the minimum that the Student requires in order to progress.
The Student is due for an annual review in April, and the CSE must reconsider all of these services as part of that review. However, if they determine that a reduction is any service is warranted, any such reduction should be based only upon a finding that the Student can continue to make meaningful progress without whatever services may be eliminated. That determination should be based upon concrete evidence and an analysis of her needs, functioning and rate of progress.
The Parents request reimbursement for the evaluation. The hearing request does not allege that the Parents had told the DOE that they disagreed with an evaluation by the school district or that they had requested an evaluation and that the district failed to perform it prior to the time they obtained evaluation. . The evidence at the hearing did not indicate that the Parents had requested a new evaluation prior to obtaining the private evaluation from Center in February 2013. The only evidence that they requested a new evaluation was a handwritten note on the final notice of recommendation, dated June 17, 2013, several months after evaluation was obtained.
The Regulations of the Commissioner of Education provide that the Parents have the right to obtain an independent educational evaluation at public expense each time the school district conducts an evaluation with which the Parent disagrees (See 8NYCRR§200.5(g)). In this case, however, the DOE had not conducted an evaluation. If the Parents wished the DOE to conduct an evaluation, they should have so requested. I see no basis for ordering payment of the evaluation obtained by the Parents. Moreover, there is no evidence that a new evaluation was needed prior to the date that the Parents obtained the evaluation in February 2013. The Parents did not assert that the pre-school IEP developed in March 2013 was flawed or that the DOE should have conducted new evaluations at that time. Rather, they hold that IEP as a model from which the DOE departed in developing the school age IEP in April 2013. I therefore see no reason to conclude that new evaluations were needed prior to the date of the pre-school IEP. The Parents’ assertion that new evaluations were required before a reduction in services does not mean that new evaluations were required for a continuation of services.
I THEREFORE ORDER that the Student shall continue to receive the following until the CSE meets and makes a new recommendation:
(a) Individual Special Education Teacher Services, five hours per week;
(b) , one time per week for 60 minutes, individually;
(c) , one time per week for 60 minutes, individually; and
(c) , two times per week for 60 minutes, individually. Dated: March 18, 2014
Diane Cohen mv
DIANE COHEN, ESQ.
Impartial Hearing Officer DC ;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 PRIOR TO FIRST
HEARING DATE
Parent Exhibits Date of Exhibit No. of Pages
A. Hearing Request 8/28/13 4
B. FNR 3/13/13 1
C. IEP 3/13/13 13
D. Proposed Order prepared by Undated 3 Attorney for Parents and attached to email to IHO and district rep on 9/11/13; and approved by district rep. on 9/11/13 IHO Exhibits Date of Exhibit No. of Pages
I. Emails among Parties and IHO 8/29/13 – 9/17/13 8
II. IEP 4/11/13 14
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 6, 2014
DOE Exhibits Date Number of Pages
1. IEP 4/11/13 14
2. Social History Update 3/19/13 2
3. Preschool Teacher Interview and 3/18/13 8 Classroom Observation
4. Evaluation – 2/19/13 11 Parent Exhibits Date Number of Pages
E. FNR 6/17/13 2
F. IEP meeting notice 3/20/13 1
G. Letter from 2/12/13 1
H. O/T Progress Report 11/24/13 1
I. Letter from 2/10/13 1
J. Student Progress Report 12/13/13 2
K. Progress Report 1/7/14 10
L. Annual Review 2/13/13 2
M. Request for Home-Based Special Instr. 2/13/13 1
N. IEP 4/11/13 20
O. Parent’s Notes from IEP Meeting Turning Five Mtg. 3
P. Invoice from 2/19/13 1
Q. Proof of Payment Various dates 5
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 28, 2014
Parent Exhibits Date Number of Pages
R. Progress Report 1/29/14 2
DOCUMENTATION GENERATED DURING HEARING PROCESS
IHO Exhibits Date Number of Pages
III. Order on Pendency 9/19/13 6
IV. Subpoenas 11/21/13 2