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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parents
Dates of Hearing: September 12, 2013
October 7, 2013
November 18, 2013
January 6, 2014
Actual Record Closed Date: March 12, 2014
Hearing Officer: Judith Schneider, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER12, 2013
Katharine Giudice, Esq. Attorney — Parents
Administrator of Special Ed. — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 7, 2013
Esq. Attorney — Parents
Mother — Parents
Administrator of Special Ed. — DOE
School Psychologist — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18, 2013
Esq. Attorney — Parents
Mother — Parents
Teacher, — Parents
SEIT/ABA Therapist, a — Parents
(via telephone)
SL Pathologist, — Parents
Principal, — Parents
(via telephone)
Administrator of Special ed. — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 6, 2014
Esq. Attorney — Parents
Mother — Parents
Bookkeeper, — Parents
(via telephone)
Teacher, — Parents
(via telephone)
Administrator of Special Ed. — DOE
On September 12, 2013, October 7, 2013, November 18, 2013 and January 6,
2014, I conducted an Impartial Hearing at the New York City — DOE
(“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C.
§1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).
Procedural History
The proceeding was initiated at the request of the parents by correspondence dated August 30, 2013. (Ex. A) I was appointed Impartial Hearing Officer on August 30, 2013. I was available to conduct a hearing within 14 days of appointment. A hearing with regard to the parents’ request for issuance of an order concerning the student’s pendency entitlements was held on September 12, 2013. On September 19, 2013, after the conclusion of the resolution period a prehearing conference was held and a hearing was scheduled for October 7, 2013, the first mutually available date for the parties, their witnesses and the hearing officer. (T. 20-21, Ex. I)
On October 9, 2013, an Interim Order on Pendency was issued which provided for the period from September 1, 2013 through issuance of appropriate authorizations, the following:
1. pre-k special class (12 month program) at OTSAR Preschool;
2. para at school;
3. Therapy- 4x30 (1:1) at school;
4. Therapy- 3x30 (1:1) at school;
5. Therapy- 3x30 (1:1) at school;
6. Dual Recommendation Therapy 2x30 (1:1) home/office;
7. Dual Recommendation – SEIT/ABA provider 5 hours per week at home/office at the rate of $125 per hour.
(T. 20-24, Exs. V, D)
The parties moved to extend the compliance date various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing arguments. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and written decisions concerning the extensions were provided to the parties. (T. 41, 103-104, 247, 248, 274-275, 279-280, 437-438, Ex. II)
The current compliance date is March 27, 2014. The record closed on March 12, 2014. [1]
Lists of persons who appeared and documents in the record are appended.
Background 2
The student at the commencement of the 2013-2014 school year (10 month program). (Ex. C)
He has been , a 22. (T. 52, 397-398, Exs. C-2, P) He has associated with this condition including and . (T. 399) The student has also and his . (T. 401) He is small in stature, has , is not , is also for his age with a birthday which puts him further . (T. 52, 112-113, 262)
He received and teacher support. (T. 402-403) The student started in Summer 2011 when he was under 2¾ years old and was placed in by the CPSE. (T. 403-
404) The CPSE added the at home teacher services before his second year due to his needs and goals and continued them thereafter. (T. 404-405)
Pursuant to CPSE IEP issued July 12, 2012, the student attended a full-day 12:1:2 special education class (12 month program) ”) with at school services of Therapy (“SL”) 4x30 (1:1), (“OT”) 3x30 (1:1) and Physical Therapy (“PT”) 3x30 (1:1). He also was provided services outside of school of five hours per week of SEIT/ABA services and SL 2x30 (1:1). Transportation by minibus was also mandated. (Ex. B) is a school approved by the State Education Department as a school with which the DOE may contract for the provision of special education services (“NPS”). (T. 37-38) does not accept funding from parents and only students funded by a district are accepted (T. 227228)
The CSE convened on March 14, 2013 to develop a ” IEP for the 2013-2014 school year (September 2013-June 2014) (“the review”). (T. 46, Ex. C) Participants were the CSE school education teacher for the 2012-2013 school year, and the student’s mother. (T. 95-96) The CSE classified the student as . It recommended a kindergarten class in a community school, - for the entire day except lunch, and OT (2x30 (1:1)), PT (2x30 (1:1)) and SL (2x.30 (1:1) and 2x30 (3:1)). No home-based services were provided. No special education transportation recommendations were made. (Ex. C)
Prior to July 1, 2013, the CSE offered a placement at a community school located in Brooklyn. (T. 417, Ex. E)
The parent visited the recommended school and by letter dated July 18, 2013, she informed the CSE that she did not believe that it was an appropriate placement and also informed the CSE as to her objections to the reduced level of classroom support and the elimination of after school services. She requested information concerning other available programs and placements and informed the CSE that the student would continue to attend Otsar with reimbursement/funding to be sought from the DOE until one was provided.
(T. 418, Ex. E) No other program or placement was offered. (T. 419)
By letter dated August 30, 2013 the parents filed the instant impartial hearing request. (Ex. A)
Positions of the Parties
The parents assert that the March 14, 2013 IEP is procedurally and substantively defective. Further, they claim that the recommended placement was not appropriate. Accordingly, they assert that the DOE has failed to provide a FAPE. The parents assert preschool program and placement previously provided by the CPSE, is appropriate. The parents seek an order providing continuation for the entirety of the 2013-2014 school year of the placement and after school services previously agreed to and provided during the pendency of this action as well as appropriate special education transportation. (T. 35, Exs. A, II)
The DOE asserts that “the parents have not met their burden to establish that the DOE committed procedural and substantive errors that would lead to a deprivation of FAPE.”[3] Although not specifically asserting that the and the services provided are not appropriate, DOE claims included inadequacies in evaluating the student’s progress and the appropriateness of the goals addressed. (Ex. III)
Cases Presented
A. DOE
The DOE submitted no documents for admission into evidence. (T. 28) It presented only the testimony of the school psychologist who participated in the review (“the psychologist”).
Psychologist
The psychologist’s testimony included the following:
The psychologist was the only DOE member of the CSE. There was no general education teacher present because none was available opined that in view of the student’s delays she did not think it would have made a difference. (T. 62) The social worker who prepared documents considered at the review was not available and did not participate but the psychologist had discussed a with para recommendation with him prior to the review. (T. 86-88) The CSE considered a January 23, 2013 classroom observation conducted by the psychologist, a Social History update and a Preschool Inventory Scale-2nd Edition prepared by the DOE social worker in January-February 2013, written reports received from the student’s then current teacher (“ ”) as well as his
SL, PT an OT providers and information provided at the review by RP and the student’s parent (T. 47, 49, 56, 86, Exs. ). The prior CPSE IEP was not one of the documents considered at the review or reviewed prior by the psychologist and she was not aware that the student of the student receiving at home instruction or other at home services. (T. 5051, 71) She was, however, aware that the student had a . (T. 52) Further, she was aware that the student had a late birthday. (T. 52)
The parent stated at the review that the student was not ready for kindergarten and opined that an additional preschool year was required. (T. 49, 56, Ex. C) The psychologist informed the parent that she did not believe it was an option. (T. 78) She testified that that opinion was based upon her understanding that the recommended program was considered by director to be appropriate, which opinion she formed on the date of her observation. (T. 56-59, 78-82) Further, she stated that she had thereafter discussed the matter with her supervisor and believed that the CSE had the authority to recommend an additional preschool year if it was thought appropriate. (T. 83-85)
A draft IEP had been prepared prior to the review which included goals and that IEP was shown to the parent and some of the goals provided . (T. 69) She stated that the goals were discussed and that there was no objection or other response from the other participants. (T. 69) The acknowledged that toileting goals were overlooked but stated that the 1:1 crisis-management para was would also serve as a toileting para to address that need. (T. 67, 70) She stated that related services were discussed and individual SL sessions were included at the request of the parent at the review. (T. 72, 96-97) The psychologist believed that the related services provided were the same as in the CPSE IEP but stated that if the providers had a particular recommendation they include it in their reports and that reductions are appropriate when absence from the classroom affects performance. (T. 49-50, 73) Further, she believed that in view of the student’s then current functioning the services he would receive in the recommended program would be appropriate. (T. 75, 85)
Although acknowledging that the student needed a BIP, the psychologist stated that it was not developed because an FBA could not be conducted in preschool but could be done, with the assistance of the para, when the student entered the school. (T. 93, 95) She stated that there is a classroom behavior plan in the recommended school and development of a BIP, which would include behavior goals, would have been expedited for a student with a crisis para. (T. 92)
With regard to the reference in the IEP that the parent had expressed desires for a program that took her religious beliefs into account and the psychologist had informed her about bilingual Yiddish programs, the psychologist stated that she had no knowledge as to whether the parents spoke Yiddish but that the parent did not indicate objection to that kind of a program in the future. (T. 63-66)
The psychologist opined that the recommended program was appropriate and that she was familiar with the proposed class, that others had a late birthday and the student would fit in. (T. 52)
B. Parents
The parents submitted various documents for admission into evidence. A list of those documents is appended. They presented the testimony of the following witnesses: the student’s Otsar teacher for the 2012-2013 school year (“RP”); the student’s teacher for the 2013-2014 school year (“CW”) ; ’s Principal (“the principal”); the student’s current SEIT/ABA therapist (“the SEIT”); the student’s (“the ) ; the bookkeeper (‘the bookkeeper”); the student’s mother (“the parent”).
’s testimony included the following:
was the student’s head teacher for the entirety of the 2012-2013 school year and participated in the review. She is a certified special education teacher. (T. 110) She testified that the student’s principal challenge was , which impeded his ability to participate in the classroom. (T. 112-113) Although the student was the oldest in the class, he was compared to the others and did not appropriately interact with the other students. (T. 114-115) The class had 13 students with a head teacher, two assistant teachers and three 1:1 paras, including one for this student. (T. 115-116)
The student was working on pre-readiness for kindergarten skills. (T. 117) His progress in that school year had . (T. 118) Language had improved but by by the September 2013 beginning of the next school year, he continued to require constant prompting and encouragement for 1- and the . (T. 118-119, 134) The student had been assessed informally about twice a week but he required rewards to obtain his participation. (T. 135-137, 139)
With regard to the review, testified that she was not present throughout the entire meeting, she had not been informed of the recommendation prior to her departure and her opinion had not been solicited with regard to the recommendation or goals. (T. 120-123, 128) At the review, she had provided a general update with regard to academics, socialization and behaviors. (T. 121) With regard to the goals, she opined at the instant hearing that all but one, which had been mastered by September 2013, were appropriate.
(T. 121-124) She recalled no discussion at the review of at home SEIT services and opined that the student had needed them to develop social skills. (T. 128)
testified that she would not have at any time communicated approval of the recommended program because she believed the student could not deal with a community school setting in a kindergarten class as it was too advanced for him and she noted with regard to that opinion his immaturity for his age, his very small stature and the fact that he would be . (T. 128-129) She recommended another year of preschool. (T. 129-130, Exs. F, I) stated that the student and that although could do so after a couple of reviews. (T. 118)
The s testimony included the following:
She is licensed and certified by the State and has extensive experience working with children with disabilities. (T. 250-251) She has worked with the student since September 2011 and currently collaborates at , with whom she communicates almost daily, and each provide two 30 minute 1:1 sessions per week. (T. 252-253, 261-262) There is frequent communication between the student’s teachers and she has communicated with the home-based provider. (T. 263-264. 273)
The student resulting in a severely limited ability to control oral musculature voluntary movements which responds to PROMPT therapy. (T. 253-254) His grammatical system is currently “ and his vocabulary is very limited and he lacks pragmatic language skills. (T. 255) He has very , as measured by a formal standardized assessment instrument, in and is currently at below three years old, possibly (T. 256, 258, 266, Ex. J) When he in September 2011 he could not initiate voice and was not even babbling. By September 2012, had words together. (T. 254) By the end of the 2012-2013 school year, he was occasionally able to use three words and sometimes four.
(T. 254-255) skills have since his . (T. 262) The school based SLPs are working on while the home-based s utilizing PROMPT therapy to develop physical speaking ability and the clarity of the student’s speech. (T. 256, 268-269) The student has made slow and steady progress and can now initiate conversation and relate things but “enormous delays” continue and the not comfortable saying he was currently beyond level. (T, 256, 258, 264-265) The SLPs are working from goals specified on the student’s 20122013 CPSE IEP which continue to be appropriate even though some progress has been made. (T. 268-269, 271) Daily logs with regard to his progress are maintained. (T. 265)
The was not contacted with regard to the preparation of the CSE’s IEP and opined that the goals were deficient in that there was nothing related to apraxia and pragmatics and minimal relating to expressive and receptive language and, further, that the goals were not specific enough to be appropriately measurable. (T. 259) She recommends home- service, to work on clarity and other issues, because in view of the student’s deficits there is insufficient time during to school day to work on them as needed. (T. 268-269)
Principal
The principal’s testimony included the following:
She has been principal of since September 2013. (T. 208) She is a certified special education teacher (nursery through 12th grade) since 1981, has taught in a variety of programs and positions and was the director of a preschool for 19 years. (T. 206-207) is a State certified special education preschool which during the 2013-2014 school year had some students, approximately 3 to 5 years old with a range of disabilities, in 8 classes in a variety of class configurations and in 10 and 12 month programs. (T. 211, 214-216) All head teachers are certified in special education and all assistant teachers have the same professional qualifications as DOE paraprofessionals. (T. 209-210) Pursuant to various State requirements for approved special education preschools, staff training is provided and all students must have IEPs classifying them as preschoolers with a disability. (T. 210-211, 213) OT, PT and SL are provided as mandated from persons hired by the principal. (T. 212-213) Pre-K foundations from the common-core are utilized. (T. 230) Students are evaluated upon entrance with formal and informal assessments and class placement is based upon that. (T. 217, 229) Subsequent evaluation is informal, not necessarily based upon standardized tests and provided to the CPSE and CSE pursuant to requirements. (T. 231) A decision to place a child at the school is made by the CPSE upon being informed of availability. (T. 220) A determination that a student can be retained at the school for another year is made on a case by case basis. (T. 222-223) Parents may not private pay but must always go through the district. (T. 227228)
The principal had spoken with her predecessor who informed her that this student should continue in view of his developmental levels. (T. 221) She agreed and described his current class placement as “perfect”, both developmentally and in view of his size. (T. 224) With regard to his overall level of maturity, he does not present at all like a 5 year old, for example, communicating as a 3 year old might and with similar academic and social deficiencies (T. 224-225) The school is currently using goals prepared for the July 2012 IEP modified by teachers as the student has mastered material.
(T. 233, 244-245) The principal stated that although the CSE prepares its own goals based upon information provided to it, she believes its goals are generally consistent with the
CPSE’s. (T. 232-236, 239-240, 244-245)
s testimony included the following:
is a New York State certified special education teacher who is the student’s head teacher for the 2013-2014 school year. (T. 299-300) His class has 12 students, a head teacher and 2 class paras and the student has a para who refocuses him. (T. 300, 303,
358) The students are from . (T. 308, 324) The student is the oldest in the class but many much younger children act as peer models because he is below them in maturity, socially and developmentally. (T. 305, 307-308) There is a significant gap between his expressive language and that of the other students and as well as gaps with regard to receptive language. (T. 309) The student is he is aware of that and is uncomfortable about it which negatively affects interaction. (T. 309-310)
When the student entered her class in September 2013, she spoke with his prior teacher and conducted informal assessments. (T. 302) stated that his greatest difficulties were his “ and which his . (T. 302) Further, he spoke generally only one word at a time and not with phrases. (T. 338) The student had with and and (T. 314, 352-353)
She stated that progress has been made in all areas of development including a significant reduction in dangerous behaviors to only a couple of times a day, increased self-awareness of class requirements, development in forming peer relationships reduction is getting too close to and touching other children. (T. 304, 306-307, 311, 313,
357) He continues to have a hard time staying on task overall and being able to independently interact and follow class rules and difficulty in answering in more than 1-3 words. (T. 305, 312) He but only with adult prompting. (T. 344) He has greater and other but still requires reminders to carry out requirements. (T. 314, 352-353)
works toward goals specified on the CPSE 2012-2013 IEP which she stated are written broadly enough to continue to be appropriate. (T. 329-330, 332, 393 ) The student has made progress on those goals but has not mastered any. (T. 334- 351) She opined that the 2012-2013 goals remain appropriate. (T. 332-332) She measures progress with regard to goals through formal and informal observation, checklists and discussions with staff and records progress generally in periodic reports. (T. 369-387, 390) Behavioral supports utilized are the paraprofessional and refocusing, reinforcements and consequences and a behavior chart although this student responds better to praise. (T. 314-316, 387-389)
The student receives and those providers as well communicate with the teacher. (T. 320-323) Communications with the parents include daily notes. (T. 362) appropriate and that he could not handle a kindergarten program during the 2013-2014 school year due to his lack of maturity generally, small physical statute and the absence of necessary prerequisite skills including independence, ability to follow directions in a class setting, ability to interact with peers without significant supervision, ability to initiate, and the limits of his eating independently and asking for the bathroom or other necessary activities or objects. (T. 324-326) Further, she opined with regard to at home teacher services that the student required additional instruction because he is not generalizing skills at the rate that he should be or picking up enough at school with regard to prerequisite skills and requires additional one to one instruction. (T. 366)
SEIT
The SEIT’s testimony included the following:
She is employed and at the time of her testimony had provided at home services to the student for 3-4 weeks, 1 ¼ hours per day, Monday-Thursday. (T. 157, 158) She has a Masters degree in special education and has an initial certification from New York State. (T. 150-15, 188) The SEIT described the student as having a short attention span and requiring a lot of motivational activities, having difficulty expressing himself with oral language and difficulty following directions and occasionally demonstrating interfering behaviors. (T. 158-162, 163, 164, 178, 180) She had informally assessed the student when she started working with him, talked with his teacher and the parent, observed the parent with the student and reviewed the IEP created for the 2013-2014 school year. (T. 159-160, 165, 188, 191) In her work with this student she utilizes toys, books, token boards and works principally on speech activities including expressing himself, sequencing, and prepositions. (T. 162, 164, 165) She prepares lesson plans based on goals, principally speech, and writes progress notes after each session which are turned in (T. 165, 175, 181-182, 185, 194) Supervisory services are expected to be provided through home visits but have not yet commenced. (T. 166, 193-194) The SEIT opined that the student required additional at home services because he was very far behind his age. (T. 167) The SEIT is not providing ABA with this student although she uses certain ABA principles including techniques with regard to reinforcement, motivational activities and token boards. (T. 169-171, 192)
Bookkeeper
The testimony of the bookkeeper included the following:
The bookkeeper is employed . (T. 266) For the 2013-2014 school year, the “SEIT/ABA” services are provided by at the rate of $125 an hour for services actually delivered, which is the approved rate for those services for students who would otherwise be in kindergarten but are receiving services pursuant to pendency. (T. 287, 288, 291292, 295) However, when a student is in that situation refers to the service as ABA.
(T. 295) Supervision is not charged directly but is built into the $125 rate. (T. 293) The parents would be responsible for paying for any deficiency between that rate for services delivered and the amount paid by the DOE, whether by impartial hearing officer order or otherwise. (T. 291)
Parent
The parent’s testimony included the following:
The parent believed the student was not ready for kindergarten in the 2013-3014 school year and informed both the social worker who took the social history for the CSE and the CSE at the review. (T. 408, 410, 411, Ex. P) She noted that the student had not achieved his goals and stated his teachers believed another year of pre-k was required.
(T. 408) Although she was satisfied been willing to consider other programs no other pre-school programs were offered. (T. 419, Ex. E) She visited the placement offered and concluded that it was not appropriate. (Ex. E)
At the CSE review, the psychologist had said that she did not think it was possible to provide an additional year of pre-k but that she would inquire. (T. 410) The parent heard nothing further until she received the IEP. (T. 411, 416) With regard to the IEP’s reference to her concerns, the parent stated that the student is not Yiddish speaking and does not require a Bi-Y program and, further, that she had not requested it and that there is no Yiddish component that she is aware of in . She also stated not a religious program and that, in any event, she believed that the DOE adequately takes religious beliefs into consideration in all programs. (T. 414-415) Further, she stated that the student continues to need a minibus for transportation. (T. 421)
The parent stated that she observed progress since September 2013. (T. 420-421) There were delays in implementing the pendency order requirements for at home services as a consequence of paperwork issues as well as inability to locate an appropriate teacher.
(T. 422) Distractibility improved as well as pronunciation when the at home services were restored. (T 422- 423) Further, in addition to direct service to the student, the teacher services enable the parent to model activities. (T. 427)
Findings of Fact and Conclusions of Law
A. Credibility
I find the testimony of the parents’ witnesses credible and reliable. I note that that the witnesses testified consistently with one another and with the documentary evidence submitted. The testimony of the psychologist is discussed herein below. (Record references not included in the following section have been specified above.)
B. FAPE
An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The DOE has the burden of proof with regard to whether it provided a FAPE. Educ. Law 4404[1][c
The parents assert that that the DOE failed to provide a FAPE for the 2013-2014 school year. They claim that the program provided by the DOE was substantively defective in that it was not reasonably calculated to enable the student to make meaningful educational gains. I agree.
In developing an IEP, the CSE must consider the student’s “(1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105, 107-108.
The evidence shows that in each of these areas the student has very substantial deficits. The testimony of the parents’ witnesses as set forth above with regard to the student’s strengths and deficits is credible. At the time of the review, student was attending a special education preschool and was in a and Although he was the oldest in the class, the evidence shows that he was, among other things, compared to the others, did , required constant , did not which was very . His progress although steady had in addition to the school program, at home SEIT services. Both teacher at the time of the review and his provider testified that he was not ready to proceed to kindergarten for the 2013-2014 school year. That testimony was confirmed , his 20132014 teacher, and the principal both of whom opined that he lacked the necessary readiness skills in September 2013. It is noteworthy with regard to the reliability of the testimony concerning the student’s readiness for kindergarten in the 2013-2014 school year that credibly testified that even though the student is currently the oldest in his preschool special education self contained class, the youngest students continue to be appropriate models for him because he is below them in maturity, socially and developmentally. To the extent, that the DOE in its closing memorandum suggests that that information was unreliable because of alleged deficiencies in testing and/or evaluation in the preschool, I give that little weight. I find the witnesses credible and, further, note that a State approved facility and that the CPSE made the referral to that school and relies upon its reports, documentary and via staff participation.
It is noteworthy that the CSE, whose only DOE participant was the psychologist, relied principally on information from the school and providers. Although the psychologist consulted an observation, that was over a limited period and supported claims of deficiencies in various areas. (Ex. Q) The social worker’s Preschool Evaluation Scale and social history update are similarly not significantly inconsistent with the testimony of the parent’s witnesses. (Exs. K, P) I find those documents are not a sufficient basis for concluding that the student was kindergarten ready in the circumstances here.
Although the psychologist testified that the social worker supported her recommendation, I give that support little weight here where he did not testify and the evidence indicates that it was based upon his belief that the instructional and other staff also agreed, which as discussed below, I find not supported by the evidence. With further regard to the weight to be given to the psychologist’s opinion as to kindergarten’s appropriateness, I conclude that she relied substantially upon her understanding that school staff had concurred. However, I find that that has not been established. I note that testified credibly that she had not believed that and would not have recommended that. I conclude that the psychologist’s belief as to opinion was based upon a misunderstanding at the time of her observation or subsequent misrecollection of what occurred. I note that that observation did not include any reference to the alleged concurrence and also note the persuasive testimony of RP that she was not asked her opinion at the review and left before the CSE recommendation was indicated. In these circumstances, there is no basis for concluding that she was aware of the psychologist’s belief as to her views and did not timely dispute it. With regard to the concurrence of the former director, I conclude that the evidence shows nothing more than that individual merely indicated acceptance when she was incorrectly informed opinion. Further, the principal credibly testified that her predecessor informed her that the student was not kindergarten ready.
I also note that the limited progress the student had made in preschool was concurrent with at home services which undisputed testimony shows the student had been receiving pursuant to CPSE mandate after a conclusion that progress could not be appropriately made without them. The evidence shows that the psychologist was unaware of these services and therefore did not take student past reliance upon them into consideration in developing the IEP.
I note that it is the DOE’s burden to establish that the recommended program was supported by sufficient evaluative material. See 8 NYCRR 200.4[b][4][5][6] “Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 C.F.R. § 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).” Appeal No. 11-025. The DOE has not met that burden here.
Based upon the foregoing, I find that the DOE has failed to establish that the recommended program was reasonably calculated to enable the student to make meaningful educational gains. Therefore I find that the IEP is substantively defective and is a nullity.
Accordingly, I do not address parent claims concerning alleged procedural defects in developing the IEP or claims concerning the placement proposed.
The DOE having not established that it met its burden to establish that it provided a FAPE, I turn to the appropriate remedy.
C. Remedy
With regard to the appropriate program for this student, the parent asserts, and I agree, that in this matter in which the student has not been unilaterally placed, the DOE has the burden of proof with regard to all matters. Appeal No. 11-053, Appeal No. 12062; N.Y. Education Law §4404[1][c]. I also note that the DOE was on notice of this claim and had an opportunity to contest it but did not.
Under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). The parents seek an order directing placement at Otsar for the 2013-2014 school year with the services recommended in the CPSE program as well as after school instructional and SL services as previously provided by the CPSE. The student has received that program during the pendency of this matter.
In the instant matter, I note that Otsar is a State approved preschool in which the student had been placed by the CPSE. The student is in a class and is appropriately grouped with regard to ages and functional levels. A para is provided and the student receives all necessary related services from appropriately licensed providers. Further the evidence shows working on currently appropriate goals and there is no basis for concluding is not appropriate for this student at this time due to an absence of a current IEP. The student has . Although the DOE has made various claims , including with regard to assessment and evaluation techniques, I give that little weight. I note that the school is State approved, that the student’s functioning levels and deficits limit the standardized assessments that can be done reliably and that the testimonial evidence supports that the staff bases its conclusions upon appropriate observations by appropriately licensed/certified persons and adequately records them.
Further, the evidence supports the continuing need, as previously provided, for at home instructional services to reinforce and to assist in generalizing the school program as well as at home services to issues in view of the school providers necessary focus on communication in the limited time available there.
With regard to the payment rate for the at home instructional services provided, I note that the CPSE IEP specified a SEIT and did not specify that ABA was required to be utilized and the testimony does not establish that it was expected. (Ex. B) Further, the testimony of the bookkeeper, which has not been rebutted, establishes that the difference in the determination of the rate is a consequence of DOE mandate with regard to how payments must be charged when a student is “school age” even though receiving the same preschool services pursuant to pendency and includes supervision. Accordingly, the fact that the SEIT is not currently providing ABA, I conclude has not been shown to be relevant to the determination of pay. I find she is providing services as would have been provided by a SEIT to this student and there is no basis for altering the current rate of pay of $125 per hour for each instructional hour actually delivered.
The parents’ claims with regard to the need for special education transportation via minibus to not been contested.
I note that the parents also assert that even if the burden to establish the appropriateness of the program had been on the parents, it has been met, that there is no claim or evidence of parental failure to cooperate or any other equitable issue adverse to the parent and that therefore payment by the DOE for the program proposed is required pursuant to a Burlington-Carter analysis. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). I do not address those claims but note that the analysis suggested requires a unilateral placement by the parent and in the instant matter no such placement was possible which does not accept unilateral placements and would not have accepted the student at the parents behest.
ORDER
1. The DOE shall directly for the student’s attendance there with the related services as provided by the CPSE IEP through the Summer 2014 unless the parents have accepted another program which commences July 1, 2014.
2. The DOE shall issue authorizations for: five hours per week of after school instructional services at the rate of $125 per hour, including supervision, for services actually provided; two 30 minute sessions (1:1) per week for after school SL services from an appropriately licensed/certified provider.
3. The student is entitled to special education transportation by minibus to and from
Otsar.
4. CSE shall conduct evaluations as appropriate including nd evaluations and reconvene to consider them in order to develop a program for the 2014-2015 school year. The CSE may elect to rely upon such evaluations as may be obtained by the parent. Dated: March 24, 2014
Judith Schneider mv
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
DOCUMENTS ENTERED INTO THE RECORD
A Demand for Due Process and Pendency, august 30, 2013, 7 pgs. Parents
B NYC DOE IEP, July 12, 2012, 25 pgs. Parents
C NYC DOE IEP, March 214, 2013, 11 pgs. Parents
D Letter re SEIT/ABA Rate and , Sept. 17/Oct. 2, 2013 Parents
E Let.-Parent to & fax confirm, 3 pgs. Parents
F Special Ed. Progress Rpt. , May 15, 2013, 3 pgs. Parents
G - May 4, 2013, 2 pgs. Parents
H PT Annual Review, , April 30, 2013, 2 pgs. Parents
I Educational Update, , April 23, 2013, 2 pgs. Parents
J SL Progress , April 15, 2013, 4 pgs. Parents
K Preschool Evaluation Scale-2nd Ed.-DeUrquizaq, 2/14/2013, 2 pgs. Parents
L Quarterly Spec Ed Progr. Rpt Perlow, Feb, 2013, 1 pg. Parents
M Quarterly Speech Progr. Rpt , Feb. 2013, 1 pg. Parents
N Quarterly OT Progr. Rpt., , Feb. 2013, 1 pg. Parents
O Quarterly PT Progr. Rpt., , Feb. 2013, 1 pg. Parents
P Social History Update, January 29, 2013, 1 pg. Parents
Q Observation in Early Childhood Arena-J. Daily, Jan. 23, 2013, 2 pgs. Parents
R Resume, undated, 2 pgs. Parents
S Quarterly Spec. Ed Progr Rprt., Otsar, Nov. 2013, 2 pgs. Parents
T Quarterly Rprt., Otsar-Rupp, Nove. 2013, 2 pgs. Parents
U Quarterly rogr Rprt, Otsar, November 2013, `1 pg. Parents
V Quarterly PT Progr. Rpt., , Nov. 2013, 2 pgs. Parents
W Resume, Undated, 3 pgs. Parents
X Progress Rprt, , Dec. 2013, 2 pgs. Parents
I Prehearing Conference Memo Impartial Hearing Officer
II Compliance Date Extension decisions Impartial Hearing Officer
III DOE Closing Memorandum Impartial Hearing Officer
IV Parents’ Closing Memorandum Impartial Hearing Officer
V Pendency Order, October 19, 2013 Impartial Hearing Officer
Footnotes
[1] Parents’ date for submission of closing memorandum was extended due to attorney medical emergency. The contents of this Background section are not disputed and are included herein as Findings of Fact.
[3] The DOE misstates the applicable legal standard. As discussed herein, the burden is on the DOE to establish that it provided a FAPE. Educ. Law 4404[1][c]