NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: January 10, 2014
January 23, 2014
February 11, 2014
February 20, 2014
Actual Record Closed Date: March 21, 2014
Hearing Officer: Daniel Ajello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 10, 2014
Advocate — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 23, 2014
Advocate — Student
No Appearance. — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 11,
2014
Advocate — Student
Attorney — DOE
Director of Education, — DOE
School for Autism (Via Telephone) — DOE
Social Worker (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 20,
2014
Advocate — Student
SETSS Teacher (Via Telephone) — Student
Parent (Via Telephone) — Student
Attorney — DOE
INTRODUCTION
On December 20, 2013, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.
On January 10, 2014 a pendency hearing was conducted. Order on Pendency was issued January 10, 2014. (IHO Ex II)
Hearing date of January 23, 2014 was adjourned. Parent advocate appears, however, Department of Education (DOE) representative did not appear. It is uncharacteristic of the DOE representative, JP, not to communicate any problems with the IHO. IHO and parent advocate went on the record to note the attendance and the fact that the hearing would be rescheduled.
Hearing was conducted. Appended to the record are lists of persons in attendance and the documents received in evidence.
On February 20, 2014 both parties joined in a motion to extend the compliance date in order to allow time to obtain a written transcript and submit written closing statements. Motion was granted and compliance date was extended through April 04,
2014. (IHO Ex III)
BACKGROUND
This matter was instituted by the impartial hearing request dated December 19,
2013. (Ex A)
Parent alleges the Individualized Education Program (IEP) of May 29, 2013 is inappropriate by failing to continue Special Education Teacher Support Services (SETSS) services as previously recommended, in the amount of 10 hours weekly. (Ex A 2)
Parent seeks retroactive Related Services Authorizations (RSAs) from July 01, 2013 throughout the 2013-2014 school year, enhanced rate Applied Behavior Analysis Special Education Teacher Support Services (ABA SETSS) services from July 02, 2013 throughout the 2013-2014 school year, and a reconvene of the Committee on Special Education (CSE) to develop an IEP containing the following services: placement in a class at the New York City School for Autism, a full time , 10 hours of enhanced rate SETSS services at $100.00 per hour, RSAs for individual services of speech 3x30, OT 2x30, and PT , and an I Touch Prolo Quo to Go for use at home and at school for the 2013-2014 school year. (Ex A 3-4)
Party’s confirmed there is no dispute over the student’s current placement at The ( ) and that the IEP meeting of 210/02/2013 resolved some issue that were included in the parent’s hearing request, including related services. (T 20-21)
The only remaining issue is the sought after 10 hours of ABA SETSS services at an enhanced rate of $100.00 per hour. (T 21)
PARENT POSITION
, advocate, presented the parent’s case.
PARENT WITNESS
) set for the his professional and educational background and testified as the student’s ABA, SETSS teacher. (T 139-140)
began working with the student in September of 2011 through January 2013, starting again this past October of 2013. (T 141-142)
believes during the time he did not provide service to the student, the student received services from another party. (T 156)
Upon commencing services in October of 2013, IL did not review any data regarding the time he did not provide service. (T 158)
IL works for 4 to 5 hours weekly with the student. (T 142)
Another provider services the student for the remaining hours to make up ten hours weekly. (T 142-143)
is in touch with the other ABA SETSS provider and has spoken to someone from the three or four times this year. (T 143)
spoke to the regarding the student’s progress at home and to discuss the home and school program. (T 144)
Since this past October recalls someone from the visiting the home one time, while he was working with the student, for about an hour. (T 144-145)
IL recalls being told there was an increase in noncompliance at school and the student was in a pull up or diaper when at school. (T 151)
When returning in October 2013 notes that the student was less compliant, showed a , and a task. (T 146)
Goals worked on currently include increasing his ability to wait, increasing the length of time on a washing and accepting no to a desired object in preference for a less desired object. (T 146-147)
The school is working on the same goals. (T 147)
works on about ten programs with the student and programs are developed with the other SETSS teacher based on observing and working with the student. (T 164-166)
has seen some progress since October. “I've seen a progress in increasing the length of time that he spends on a task. I've seen progress on his compliance. I've seen reduction in noncompliant behaviors, maladaptive behaviors.” (T 147-148)
has not yet submitted any reports to the DOE. (T 148)
takes data, each day, when working with the student and shares date with the other SETSS provider. (T 151-152 & 164)
has communicated with the NYCA via email this year. (T 160-161)
sees the student two days a week for two to two and a half hour sessions, in the student‘s home. (T 162-163)
The other provider sees the student for three days weekly. (T 163)
PARENT WITNESS
) the student’s mother testified. (T 168)
reviewed the student’s educational history. He has been receiving a variety of service, including 10 weekly hours of SETSS, since 2007. (T 168-169)
is not aware of any new evaluations since 2007. (T 170)
attended the May 29, 2013 IEP meeting. (T 171)
was not asked for any reports, though she believes providers sent reports to the
DOE. (T 172-173)
When stopped providing services another party had provided services for a few months, however, was not satisfied with her qualifications and those services stopped after a few months. (T 173)
Regarding discussion of related services at the IEP meeting: “The Board of Education, the DOE, did not really want to discuss related services. Myself and my advocate, we tried to discuss the related services and the SETSS, and, if I could quote the right words, it was, we can't do anything about it at this point in this meeting.” (T 174)
PB states that she and her advocate raised the issue of a previous impartial hearing officer decision awarding the SETSS and the inclusion of these services on the previous IEP. The school did not participate in this discussion. (T 175-176)
is aware of what the SXETSS providers do with her child and is in attendance. (T 176)
PB speaks to the SETSS providers and is aware of the goals and objectives they work on with the student. (T 178)
Toileting has improved and the student is more focused at home. Behaviors are also worked on at home. (T 178-179)
staff have visited the home once this year, visits having been hampered by the weather. (T 179-180)
this year and is familiar with the programs they are running at the school. PB describes the school programs as similar to the home programs. (T 180-181)
There was a time when the student went without the home SETSS services, when a provider could not be found. Without the home . And . (T 181)
SETSS providers work on . We have been this year. We are trying to find--I think he's this year. So we are trying on every front to try to balance so he needs a lot, a lot, of work. So it's going a little slower, but he's better than without teachers here. Slowly, slowly getting back to a routine.” (T 181182)
Home teachers show what to do with the student at home. (T 182)
At times the SETSS providers would include siblings during service delivery. (T 183)
DEPARTMENT OF EDUCATION POSITION
) presented the DOE position.
DOE WITNESS
( ) presented her educational and professional experience and testified as the Director of education “As the Director of Education, I oversee student programming, staff training, any kind of student behavior intervention procedures. I'm a behavior analyst, and we as our teaching methodology. So I oversee and make decisions with staff, based on the data that we collect on student acquisition programs and student behavior reduction programs.” (T 23-24)
has worked with the student for the last three years. (T 24)
Student is currently in a , with a crises management paraprofessional. (T 25)
Generalization of skills from school to home is worked on in the program. Skills worked on are functional, self care skills in particular. Program includes going to the student‘s home as part of a home consultation program. (T 27-28)
Home consultation occurs about every other month and clinics are held monthly in the school for parents to train them on how to implement programs that are in place for carry over into the home. environment. (T 28-29)
The home consultant is on of the student’s teachers. (T 29)
“We are training mom had to go through those skills in the home environment.”
(T 29)
Home consulting services also train home care providers, which may include a SETSS provider. (T 59)
Programs worked on with the student include toileting, leisure skills, a schedule, puzzles, feeding, sorting, refraining , and dressing. (T 30-32)
Student goals and skills worked on are contained in Acquisition Program List. Some skills are for student to function in the home, such as dressing and use of leisure time. (T 32-34, Ex 4)
Student is and not yet able to have academic instruction. (T 34-35)
Student engages in . (T 35)
The number one priority with the student is to address behaviors. Student has a Behavior Intervention Plan (BIP). (T 35-36)
identified student progress report. (T 37, Ex 5)
Data is collected on all programs for the student. (T 37-38)
Current student programs are selected with parent input. Parents are invited, on a monthly basis, for clinics where they give input. Twice a year there are planning meetings for additional parent input. Program is also based on assessments. (T 45)
did not recommend services for the student after school. (T 46)
continued as to why: “We have got a ratio, and we have got our teaching methodology, which is behavior analysis. And, within that arena, we can encompass a number of areas of programming…we are talking about everything from remaining engaged for durations of time to being able to move through multiple step tasks to demonstrate a self-care skill…given our limitations as a school, I cannot imagine that someone without that level of supervision and expertise would be able to do better than what we are doing. And I certainly don't feel as if another individual would be able to provide…more of an ability to learn in our setting.” (T 46-47)
is aware of the student’s current home SETSS services. (T 47)
does not receive progress reports form the home service provider. (T 48-49)
The home SETSS provider was scheduled to come to NYCA, but that was canceled due to the bad weather of late. (T 50)
is not familiar with the goals addressed in the home program. (T 55)
describes the student’s rate of progress. “ (Student)is one of the more impaired individuals that I have ever worked with, and I have been doing this for 10 years. It takes him hundreds of opportunities to learn something very small. Though, we had talked about buttoning some of; thousands of opportunities he's able to demonstrate it. that his acquisition across skills is very, very slow.” (T 69)
“I think that the other factor that is really important to consider are the rates of challenging behaviors…If he's , and it results in a timeout procedure being implemented, then that's the period of the time that is not acquiring a skill…it takes a little bit longer to get back on track and have him working successfully. He needs frequent breaks.
Wherever he's
does not have any information indicating progress at home, though at school he had worked up to a 30 minute duration watching a show, and he was not able to do this at home. (T 70-71)
Student period at home. At school (T 72)
Regarding the drafting of the IEP, it is created based upon information provided by the present levels, goals and objectives, and transportation. (T 73)
The team makes the decision regarding related services. (T 76)
DOE WITNESS
presented her educational and professional experience and testified as a CSE social worker. (T 86-87)
IE participated as a social worker at the IEP meeting of May 29, 2013. (T 87)
IE reviewed the members present at the meeting. (T 88-89)
Team recommended continuation at in a program, and parent did not disagree. (T 89)
Team did not recommend SETSS. “SETSS wasn't really brought up. I remember that they talked about a home program. I was under the impression it was respite care as opposed to SETSS. The school doesn't--academics is done at the school, but the main focus is more on other areas, you know, functional areas, in terms of, like, behavior or self-help skills, communication. So the academics was mentioned in terms of, I believe, it was math, but I do not remember them talking about SETSS.” (T 90)
Witness referred to the home services as respite care, though noted incorrectly in the transcript at “rested care”. (T 91, line 9)
“helping him, you know, sort of like a continuation of some of the skills that he learns in school, like some of the generalization skills that he was learned and try to use across the board, and I thought it was sort of that type of program, a home program that would help him or encourage him to continue to use those skills.” (T 91)
IE was not sure who provides this service in the home. (T 91-92)
No information was at the IEP meeting regarding the SETSS provider. (T 92)
IE was not aware the student was receiving SETSS services at the time of the meeting. (T 93)
IEP recommendation was based on present levels of performance, self-help, self-care skills, vocational skills, life skills, language, and school provided goals and with the present levels of performance. (T 94)
No evaluations were conducted prior to the meeting. IE does not believe they were necessary. (T 94-95)
discussed at the meeting included toileting, brushing of teeth, dressing and use of a fork. (T 95)
The school does work on generalization of skills across different settings. (T 95)
does not remember a discussion regarding SETSS services. recommend SETSS services at home. (T 96-97)
identified the CSE review minutes, and stated that it contained her handwriting. Minutes contain a note that “home program when implemented steadily helps him as well.” (T 104, Ex 8-1)
states that she does not recall the student receiving SETSS, as removing it would result in a note regarding decertification for that service. (T 105)
states that SETSS is a part of a program recommendation while services like
OT and PT are related services. (T 107-108)
does not recall any parent disagreement at the meeting, and noted in the area of parent concern, none. ( 123-124, Ex 8-1)
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (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., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A student is offered a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
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. Dep't 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 enabling him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][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. 01095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). The burden /of proof is on the school district during an impartial hearing. (Educ. Law § 4404[1][c]).
IDEA directs that, in general, an impartial 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).
Parent alleges the IEP of 05/29/2013 is inappropriate by failing to continue Special Education Teacher Support Services (SETSS) services as previously recommended, in the amount of 10 hours weekly. Additional relief sought has been withdrawn as addressed by IEP of 10/02/2013. Challenge to the 05/29/2013 remains. (Ex A 2 & C)
DOE OFFER OF FAPE FOR THE 2013-2014 SCHOOL YEAR AND HOME
SETSS SERVICES
Parent, if successful in challenging the 05/29/2013 IEP, seeks relief of 10 hours weekly of home based SETSS services. (Ex A & 1)
Student has been receiving a variety of service, including 10 weekly hours of SETSS, since 2007. (T 168-169)
PB was not asked for any reports, though she believes providers sent reports to the
DOE. (T 172-173)
Regarding discussion of related services at the IEP meeting: “The Board of Education, the DOE, did not really want to discuss related services. Myself and my advocate, we tried to discuss the related services and the SETSS, and, if I could quote the right words, it was, we can't do anything about it at this point in this meeting.” (T 174)
speaks to the SETSS providers and is aware of the goals and objectives they work on with the student. (T 178)
staff have visited the home once this year, visits having been hampered by the weather. (T 179-180)
has been to this year and is familiar with the programs they are running at the school. describes the school programs as similar to the home programs. (T 180-181)
SETSS providers work on table manners “ there is a lot of behaviors that appeared this year. So we are trying on every front to try to balance his medication…he is very hyperactive, so he needs a lot, a lot, of work. So it's going a little slower, but he's better than without teachers here. a routine.” (T 181-182)
Home teachers show what to do with the student at home. (T 182)
Parent contends that the home SETSS services were not discussed at the IEP meeting. IEP does contain aspects of home instruction that parent includes as concerns. IEP includes the following information regarding the student::
“…programming is distributed across self-care leisure, prevocational, life skills and language domains.” (Ex 1-1)
“requires prompts to use the restroom and stay dry throughout the day.”
(Ex 1-1)
hands when receiving instructions from instructional staff” (Ex 11)
“currently learning…to brush his teeth.” (Ex 1-1)
“…also learning to use a ” (Ex 1-1)
“strategies are in place to prompt…to engage in place of address self-help skills, work behavior and ability to sustain attention to complete provided tasks.” (Ex 1-2)
“Fork use and sitting at the table during snack time is addressed.” (Ex 1-2)
Goals address self . Goals included in the IEP address, brushing teeth, food preparation, dressing and undressing,, sustained attention, and “improve self-care skills for greater independence in school and home environment. “ (Ex 1-4, 1-5 & 1-6)
Though the issue of SETSS may not have been discussed directly, all the concerns related to the home services are included in the IEP and addressed through services or goals contained therein.
IEP properly includes the extent to which parent counseling and training will be provided to parents, when appropriate (8 NYCRR 200.4[d][2][v][b][5]). State regulations further provide for the provision of parent counseling and training for the purpose of enabling parents of students with autism to perform appropriate follow-up intervention activities at home (8 NYCRR 200.13[d]). Under State regulations, the definition of "related services" includes parent counseling and training (8 NYCRR 200.1[qq]). Parent counseling and training is defined as "assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program" (8 NYCRR 200.1[kk]; see 34 CFR
300.34[c][8]).
IEP also contains parent training and counseling once monthly for a 60 minute session. (Ex 1-6)
Though the IEP contains OT, PT and Speech goals, no such services were included in the IEP. IEP of 10/02/2013 does include the related services of PT, PT and speech. (Ex 1-6 & C 7)
DOE presented two witnesses to support the IEP of May 29, 2013. (Ex 1)
has worked with the student for the last three years. Student is currently in a class, with a crises management paraprofessional. (T 24-25)
provided information regarding the appropriateness of the program, which includes generalization of skills from school to home. Skills worked on are functional, self care skills in particular. Program includes going to the student‘s home as part of a home consultation program which occurs about every other month and clinics are held monthly in the school for parents to train them on how to implement programs that are in place for carry over into the home. environment. Parent is train to go through skills in the home environment. Services also include training of home care providers which may include SETSS providers. (T 27-29, 45 & 59)
IE confirmed her understanding that the school does work on generalization of skills across different settings. (T 95)
Specifically notes two goals for which generalization is sought. In one instance the goal has been implement more successfully at school. At school the student had worked up to a 30 minute duration watching a show, and he was not able to do this at home. At home there has been more success with toileting. Student does stay dry for longer period at home. At school student urinates as an act of non compliance. (T 70-72)
confirms that toileting has improved and the student is more focused at home.
Behaviors are also worked on at home. (T 178-179)
School programs worked on with the student include toileting, leisure skills, a schedule, puzzles, feeding, sorting, refraining and dressing. (T 30-32)
Priority in school is to address behaviors. Student has a Behavior Intervention Plan (BIP). (T 35-36)
NYCA did not recommend services for the student after school. (T 46)
explained why she felt program was appropriate without after school services.
This included program class ratio, and teaching methodology, which is behavior analysis.
(T 46-47)
is aware of the student’s current home SETSS services but is not familiar with the goals addressed in the home program. (T 47 & 55)
does not have any information indicating progress at home, though at school he had worked up to a 30 minute duration watching a show, and he was not able to do this at home. (T 70-71)
notes slow student progress, at school. (T 70)
participated as a social worker at the IEP meeting of 05/29/2013. (T 87)
Team recommended continuation at the NYCA in , and parent did not disagree. (T 89)
explains SETSS was not brought up. Team did talk about a home program that which understood to be “was respite care as opposed to SETSS…helping him, you know, sort of like a continuation of some of the skills that he learns in school, like some of the generalization skills that he was learned and try to use across the board, and I thought it was sort of that type of program, a home program that would help him or encourage him to continue to use those skills.” (T 90-91)
No information was at the IEP meeting regarding the SETSS provider and IE was not aware the student was receiving SETSS services at the time of the meeting.
(T 92-93)
testifies that the IEP recommendation was based on present levels of performance, self-help, self-care skills, vocational skills, life skills, language, and school provided goals and with the present levels of performance. (T 94)
Self help skills discussed at the meeting . (T 95)
does not remember a discussion regarding SETSS services. did not recommend SETSS services at home. (T 96-97)
Confusion regarding the discussion of SETSS service relates in part to the perspective of IE which views the SETSS services as part of a program recommendation while viewing services like OT and PT are related services. (T 107 -108)
IEP, of May 02, 2012, where SETSS services were included, indicates SETSS as part of the program recommendation. (Ex D 5)
does not recall any parent disagreement at the meeting, and noted in the area of parent concern, none. ( 123-124, Ex 8-1)
I note that the home SETSS provider IL began working with the student in September of 2011 through January 2013, starting again this past October of 2013, and currently provides 4 to 5 hours of service to the student weekly, while another provider services the student for the remaining hours to make up ten hours weekly. (T 141-143)
states that he and the school are working on the same goals, including increasing student ability to wait, increasing the length of time on a task, compliance, reducing maladaptive behaviors, toileting, hand washing and accepting no to a desired object in preference for a less desired object. (T 146-147)
testifies that he takes data, each day, when working with the student and shares date with the other SETSS provider. (T 188, 151-152 & 164)
No data, written report, or any other written information is provided regarding the services provided to the student at home. No information is provided that distinguish the home services sought from the services addressed in the IEP that already address generalization and self-care skills acknowledges he is working on the same goals as the school. No evidence is presented that indicate the school is somehow deficient in addressing the goals which are duplicated at home. (T 146-147)
NYCA progress reports detail progress regarding life skills such as dressing, hand washing and independent leisure activities. (Ex 2-2, 5-2 & 5-3, & 4)
Several courts have held that the IDEA does not require school districts 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, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom (see Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 [1st Cir. 2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v.
Hendry County Sch Bd., 941 F.2d 1563, 1573 [11th Cir 1991]; see also K.L., 2012 WL 4017822, at *14 [upholding the determination that home-based ABA services provided to generalize skills and improve the student's custodial care are not a necessary component of a FAPE]; Application of the Dep't of Educ., Appeal No. 12-086; Application of a Student with a Disability, Appeal No. 11-068; , Appeal No. 11-031). For the 12-074;
Application of the Dep't of Educ., Appeal No. 12-052; Application of a Student with a
DisabilityApplication of the Dep't. of Educ. Appeal No. 11-031).
For the reasons discussed above, I find that, the evidence contained in the hearing record establishes that the goals addressed at home are the same as those at school, and the school has made progress in addressing those goals, namely to generalize progress he achieved in the day program to the home setting. Therefore, sought after services of 10 weekly SETSS hours are not required during the 2013-2014 school year in order for the student to be offered an IEP that was "likely to produce progress, not regression" and provide an opportunity for more than "trivial advancement" Walczak, 142 F.3d at 130 [2d
Cir.1998] [internal quotation marks omitted]; see M.H., 685 F.3d at 224).
I find that the IEP of May 29, 2013 was designed to meet their unique needs of the student and prepare this for further education, employment, and independent living.
IEP does offer the student a FAPE for the 2013-2014 school year. (Ex 1)
ORDER
1. Parent’s claim is dismissed.
2. This decision is subject to appeal and review by the State Review Officer. Dated: April 2, 2014
Daniel Ajello mv
DANIEL AJELLO, ESQ.
Impartial Hearing Officer DA;mv
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
ENTERED 01/10/2014
A Impartial Hearing Request dated 12/19/2013, 4 pages B Findings of Fact and Decision dated 11/8/12, 8 pages
ENTERED 01/23/2014
C IEP dated 10/2/13, 12 pages
ENTERED 02/20/2014
D IEP dated 5/2/12, 9 pages
DEPARTMENT OF EDUCATION
ENTERED 01/23/2014
1 IEP dated 5/29/13, 11 pages 2 Charter School Report dated 3/22/13, 4 pages 3 Charter School Intervention Plan dated 10/2/12, 3 pages 4 Charter School Updated Progress Report dated 10/7/13, 2 pages 5 Charter School Progress Rpt dated 9/27/13, 4 pages 6 Behavior Intervention Baseline Consent Form dated 10/11/13 2 pages 7 Behavioral Graph dated 10/13, 6 pages 8 CSE Review Meeting Minutes dated 5/29/13, 2 pages
HEARING OFFICER
ENTERED 01/23/2014
I E-Mail Sent to Parents dated 1/24/14, 3 pages II Order of Pendency dated 1/10/14, 9 pages
ENTERED 02/21/2014
III Grant of Extension of Timelines, 02/21/2014, 3 pages