New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: October 9, 2015

October 21, 2015

Actual Record Closed Date: November 10, 2015

Hearing Officer: Elise Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 9, 2015

Parents

Parents

Impartial Hearing Representative — DOE

Impartial Hearing Representative — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 21, 2015

Parents

Parents

(via telephone) — Student

Impartial Hearing Representative — DOE

Impartial Hearing Representative — DOE

INTRODUCTION: — DOE

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC § 1400 [f][1] and Part 200 of the Regulations of the New York State commissioner of Education. This matter was brought by and ., the Parents (“Parents”) on behalf of , the student (“Student”), by filing a Due Process Complaint dated July 20, 2015.

The Parents are alleging that their son, , was denied a free and appropriate public education (“FAPE”) for the 2015-16 school year and are seeking

.

There were two (2) days of hearings in this matter. Hearings were conducted on October 9, 2015 and October 21, 2015. Extensions were granted in this case making the final compliance date November 20, 2015.^[1] A list of Exhibits is attached as Exhibit A.

The Parents and the District submitted exhibits.

BACKGROUND:

This case involved a year old student. During the 2015-16 school year, attended .

With respect to the 2015-16 school year, an Individualized Education Program (“IEP”) was developed on June 22, 2015 2. D-3. Pursuant to the June 22nd IEP, the following recommendations were made:

2. , , , times per week for each time;

3. , , , times per week for each time;

4. , , times per week for each time;

1 The Parties moved to extend the compliance date in this matter two times during the course of the hearing. In considering these requests, I weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly requests for extensions of the case compliance date were granted on September 3 and October 9.

2 A meeting took place on April 17, 2015 and an IEP was developed at that time. P-3. The IEP dated June 22, 2015 amended the April IEP.

5. , , times per year for minutes each time;

6. , , time per week for minutes each time;

7. , , times per week for minutes each time;

8. , , times per week, for minutes each time;

and

9. , , , and .

The Parents filed a Due Process Complaint on August 1, 2015. D-1. I was appointed as an Impartial Hearing Officer on August 1, 2015.

POSITION OF THE PARTIES

Parents’ Case

The Parents called three (3) witnesses, the mother, , and the father, and placed three (3) documents in evidence. P-A – P-C.

The first witness was the mother. She stated that her son was first diagnosed with at age . He started at in terms of

, , , and

. He received , times a month at first, then

, and , , and . Tr.

110. At years of age, he went to which had a program. The

Parent indicated that despite slow improvement, the Board of Education provided them with Ms. , a , a week, at , during the 2014-15 school year. Tr. 112.

She stated that when he became of school age and they had an IEP meeting in April 2015. She stated that they only talked about his and and nothing about for the 2015-16 school year. She stated that the Student was seen by a who recommended that the Student work with a , and . Tr. 112. After that, he began seeing Ms. and started to make progress.

As a result of his evaluation from in March of 2015, they stated that

”. Tr. 113, D-C. They indicated that he was a good candidate for an program since there were no and that he required a . Tr. 113. The mother testified that he cannot presently participate at , , etc. His because he is .

and will his . Tr. 114. At the June IEP meeting, these issues were discussed and they advised that they do not provide based services and they feel they can make provision for in school. The mother, however, testified that the school has not demonstrated their ability to help him. Tr. 115. She stated that . The mother indicated that when she applied to it was rejected by because it is not a issue and requires a . Tr.

116.

On cross examination, the Parent testified that the CSE was aware that the Student was receiving but they did not have any other documentation or reports at the April IEP meeting. Tr. 119. The second IEP meeting in June was to discuss the and but no additional evidence was presented or asked for between the April and June meeting. Tr. 120. The mother was only present for part of the meeting and she presented evidence from the doctor. Tr. 121. She said that the Student does not have issues and that Ms. is a specialist in . Tr. 123. The mother testified that the was listed on the Student’s CPSE IEP for the 2014-15 school year. Tr. 125. It was also her understanding that Ms. ’ services were paid by the Board of Education. Tr. 127. The mother further stated that at the time of the IEP meetings she wasn’t aware that they had no program at because they said they could meet his needs. Tr. 129. When speaking to Ms. , she advised the mother that she is not allowed to to the Student. Tr. 135.

The next witness was . She is a board certified specialist and a licensed . Tr. 147.

She testified that there are approximately 200 board certified specialists in the country. Tr. 157, 163. She has worked in the field for 40 years and sees approximately kids a week and have difficulties including children on the with . Tr. 169. She testified that needs to continue with her service in addition to receiving from the District in school. Tr. 150. She testified that has which is a . He does not and and . His . Tr. 150-151.

Ms. worked with the Student and the Parent for a week for the 2014-15 school year at through August 31, 2015and was hired by from the Board of Education. Tr. 152. She was paid through the Board of Education vendor portal. Over the course of the year she changed the using a program to help him . She has put

, ,

, , ,

. Tr. 154. The Student was , ,

, , etc. They worked on and

. Tr. 155. Ms. stated that the must be done with

. Tr. 157.

Ms. testified that needs to be able to and so that he can . Tr. 159. She stated that it becomes an educational problem because he cannot and . Tr. 159. She stated that the has put out a position paper on working on in the schools and she stated that it should be on the Student’s IEP. Tr. 159. She stated that it is not strictly a but a of that interferes with his participation in the . Tr. 159. She believes that part of the reason for this issue was the when he was younger. Tr. 159.

Ms. testified that although Ms. , the in ’s

school participated in a seminar on skills in a few years ago, she is not qualified to provide the Student with .

Tr. 161. She said she would not refer a child to Ms. because she had a course but Ms. believed that she could work with her to develop the appropriate techniques for in school provided there is also the key component at

. Tr. 163.

Ms. testified that if a child has , they will only learn to through . Tr. 166. She stated that it is unfortunate that he was not provided with the appropriate level of service and only through on the part of his parents, the school and a who is an expert and can guide the Parents in the skills will he improve.

Tr. 167. He has shown improvement, going from , but he needs more and more in school and at at this time. Tr. 167.

Ms. testified that during the 2014-15 school year there was coordination with ’s school through visits, communication by phone, e-mail and video. Tr. 169.

On cross examination, Ms. stated that the research does not bear out success with using . Tr. 179. She also stated that in order for “to fully participate in an educational program he needs to be

…”. She indicated that his taking him out of his academic time that he should be . Therefore, She stated that “it interferes and limits his activities that are important to his student school day experience”.

Tr. 181. With respect to , Ms. testified that if you and the way you would another child of years of age, will not . In addition, he requires and depending on the , the amount and number of will be limited. Tr. 183.

Ms. testified that neither a , nor a

, without being a , can work with in school

or at on his needs to help the Parent. Tr. 193. In an academic setting, Ms.

testified that the should be guiding the Parents, the staff and the teachers on how best to facilitate and improve skills for leading towards age appropriate skills in every parameter, , , and . They should also be facilitating communication with the Parents.

Ms. testified that when she was paid during the 2014-15 school year she received direct deposit from the Board of Education vendor portal. Tr. 196.

The final witness was the father. He testified that at the June 22nd 2015 IEP meeting when the parties were talking about feeding , he suggested they call Ms.

, however, they weren’t able to get in touch with her. Tr. 204. He had no recollection of who discussed ’s needs and goals at the meeting; however, there was no from or from the District, and no appearance by Ms. at said meeting. Tr. 204. He indicated that the present school has not continued with educationally at the level where he left off at and therefore, there is no improvement. Tr. 211. The Parents just started getting communications in the communication notebook from the school and have not received information about his progress in . Tr. 212. Last year he was receiving a program at in school as well as the on the for hour. Tr. 212.

District’s Case

The District called one (1) witness, , and placed ten (10) documents in evidence. D-1 – D-10. She has a Master’s degree in and a license as a Teacher of ( ), an license, and

a

. She has been employed as a for the Board of Education for the past 24 years. She is at three days a week and two days a week. Tr. 47. She provides as per IEP specifications, evaluates and observes students, communicates with classroom teachers on students’ progress and how to support their goals in the classroom. Tr. 47. She also participates in IEP meetings and annual reviews where goals are altered. Tr. 47.

She has received some training with students with and has worked with many populations and received continuing education units. Tr. 48. She stated that the District does not provide . Tr. 48. She stated that there are that are experts (known as experts) but she is not one of them. Tr. 48; Tr. 50.

Ms. stated that a can generate goals to address based on review of documents, observations of students, parent interview and speaking with teachers and involved with student. Tr. 50. She stated for an child has to do with including , , etc. Tr. 50.

Ms. stated that she sees “

”. She stated that she has not introduced any . She indicated that he has and it is difficult for him because he has and . Tr. 53. She stated that “even during times, when [she’s] trying to would improve, he is a and and to ”. She stated that she would predict that he has but doesn’t know because she hasn’t . Tr. 53. She also stated that it states in his IEP that he needs services in order to “ ”. Tr. 54, D-3. She said that she doesn’t specialize in but is a . Tr. 55.

Ms. sees times a week for at . She stated that ’s is at times because of the that he exhibits , the and also the . Tr.

57. She stated that pertains to

. She stated that if you are not , you need , and the strategies she uses don’t usually involve . She indicated that there is a lot done without including , , , etc. leading up to it. Tr. 58. They keep running records to track progress with the students. Tr. 59. She said that in terms of communicating with ’s Parents, she saw them once before school started to discuss and twice in the hallway in passing. Tr. 60. She has not met with the Parents as of today. Tr. 67. For his sessions, which are minutes each time, she does not do specific but she takes him with his and oversees that he doesn’t , that he’s and that he is and instructs the what to do on the other days. Tr. 60. She stated that there is also and infused in these sessions. In essence, with respect to , Ms. stated that she’s “just managing that he’s and ” Ms. discussed the model of services as it pertains to . She stated that the model would deal more with the , and in the model they deal with as it pertains to the to support the academic goals. Tr. 64.

She stated that they are dealing with . Tr. 65,

When is seen in a times a week, they are working on his , and delays. Tr. 66. They are trying to expand

his and his

Ms. stated that has made progress. He has become more . He is and is able to

. In a he is

. He and and . Tr. 68. At the beginning of the year, he wasn’t and now he is . Tr. 68. He is, however, only . Tr. 69.

On cross examination, Ms. stated that his improvements could be tied to his . Tr. 74. In clarifying the model of Ms. stated that Ms. uses the model because she is an expert and would deal with and and the and the . Tr. 81. In the academic setting, she ensures that the Student is . Tr.

82.

With respect to the goal indicating that will improve his “

”, Ms.

says she doesn’t have the same to do what Ms. does, so she is based. Tr. 83. She said if she were to , it would have to come from . Tr. 84.

FINDINGS

Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual 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.

1499[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]).

The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. 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 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]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck

Cent. Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b)

significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H.

v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. Of

Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent.

Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir.

Aug. 19, 2008]).

A school district offers 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

v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; 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 produce progress, not regression,’ and …affords 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, P. v.

Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 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 (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; 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 education begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (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), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 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 Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Childwith 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 New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

The Parents’ Due Process Complaint alleges that the failure of the District to provide a for the Student for the 2015-16 school year was a denial of FAPE.

The District has the burden to establish that the program it offered was appropriate and has not met that burden. In this matter, the District called one witness, Ms. , who was not present at either the April 17, 2015 IEP meeting nor the June 25, 2015 IEP meeting. Therefore she could not testify as to what evaluations and reports were considered at the meetings and why a determination was made to remove as a service from the IEP. She was also not aware of how the goals were determined for the 2015-16 school year. It is also clear from the Parents’ testimony that Ms. , the was not present at either the April or June IEP meeting and no reports from Ms. were presented yet the services were removed from the IEP. I credit the Parent’s testimony that the CSE team was aware that he had been receiving from the District for the 2014-15 school year and indicated to the Parents at the meeting that they do not provide services. Tr.

119.

The June 2015 IEP provides in the “Present Levels of Performance and Individual Needs” section of the IEP that “[ ] continues to have difficulties with and

”, “he is beginning to to help improve his

…[ ] needs to continue to work on his

…”, and “[ ] continues to have

.” P-3.

With respect to , there is a goal which states, “By

September 2016, [ ] will improve his skills through to increase and

, and ,

”

It should be noted that Ms. stated that the District does not provide (Tr. 48), and that she is not a expert. Although she stated that she predicts that he has a , she never tried with him, despite the goal with respect to this. Ms. stated that when she with the times a week, she is using that time to make sure he is and . As it pertains to , she testified that she is dealing with as it pertains to the , and goals in the classroom. Tr. 64. Ms. testified that Ms. is the expert and would deal with and and the . Therefore, it is clear from her testimony, that she was not addressing ’s and .

Based upon the foregoing, the District has not met its burden in showing that the Student was provided with FAPE for the 2015-16 school year. I credit the testimony of Ms. and her expertise in . Through her testimony, it was shown that is required for at this time, and there should be continuous communication between the and the school regarding ’s needs and skills. She testified that simply addressing ’s needs through and will not provide opportunities for improvement, and only through on the part of the Parents, the school and a , will the Student improve. Tr. 167. She also stated that ’s diagnosis of “interferes and limits his activities that are important to the student’s school day experience” (Tr. 181) and that a , not trained in , like Ms. , is not qualified to provide for this Student. There was also testimony from both Ms. and the Parents indicating that he had been making progress with Ms. ’s , though additional was needed. Ms. stated that part of his issue is and involves which interferes with his participation in . Tr. 159. In this regard, in addition, the Parent testified that and will increase and will influence his which is needed for him to progress in school. Tr. 114.

In the Evaluation from , it states that “[ ] is set to begin in September 2015. If he does not receive and improve his skills, he will not be able to during the school day. He will not . His will affect him . He will also not be able to if he is still .” P-C.

Therefore, at this time, is required in order to meet ’s individualized needs and provide him with educational benefit.

In view of the above, , by a qualified with an expertise in , preferably Ms. , if available, or another qualified provider, should be added to the Student’s IEP, as a related service, for a period of minutes each time, time per week, , through an RSA at the prevailing market rate for such service for the 2015-16 school year. The IEP shall also include language mandating that there be communication between the , the Parents, the Student’s teachers, the and the other service providers regarding the Student’s needs on a weekly basis to ensure continuity and progress.

ORDER

Based upon the foregoing, it is hereby ordered that the Student be provided with , by a qualified with an expertise in , preferably Ms. , if available, or another qualified provider, for the 2015-16 school year as a related service, for a period of minutes each time, time per week, at , through an RSA at the prevailing market rate for such service. In addition, there shall be communication between the , the Parents, the Student’s teachers, the , and the other service providers regarding the Student’s needs, on a weekly basis to ensure continuity and progress.

Dated: November 17, 2015

ELISE B. KESTENBAUM, ESQ.

Impartial Hearing Officer

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

PARENTS’ EXHIBITS

No. Date Document Pages

A. 9/28/2015 Letter from Dr. 1

B. undated Letter from Ms. 2

C. 3/24/2015 Evaluation 5

for

DISTRICT’S EXHIBITS

1. 7/20/2015 Due Process Complaint 1

2. 4/17/2015 IEP 13

3. 6/25/2015 IEP 13

4. 3/13/2015 Social History Update Report 2

5. 3/6/2015 teacher Interview and 7

Observation

6. 3/9/2015 Psycho-educational Update 5

7. 3/9/2015 Classroom Observation 1

8. 6/8/2015 Notice of IEP Amendment/Reconvene 3

9. 4/22/2015 Prior Written Notice 4

10. 6/29/2015 Prior Written Notice

Footnotes

[1] , , , times per week for each time;