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FINDINGS OF FACT AND ORDER
Case Number: 186392
NYS Case Identifier Number: N/A Student’s Name: Date of Birth:
District:
Hearing Requested by: Parent
Date of Hearing: 9/17/19
12/10/19
1/17/20
2/26/20
4/6/20
5/4/20
Record Close: 5/14/20
Hearing Officer: Nancy M. Lederman, Esq. Findings of Fact and Order
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 17, 2019
For the Student:
Attorney
For the Department of Education:
District representative
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 10, 2019
For the Student:
Attorney
For the Department of Education:
District representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 17, 2020
For the Student:
Attorney
For the Department of Education:
District representative
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 26, 2020
For the Student:
Attorney
For the Department of Education:
District representative
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 6, 2020 *
For the Student:
Attorney
parent
For the Department of Education:
District Representative
school Psychologist
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 4, 2020 *
For the Student:
Attorney
parent
parent
special Education Teacher
For the Department of Education:
District Representative
* All parties appeared via telephone.
This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1). ( yisa -year-old child whose parents, and (Ms. ,Mr. _, parents or parent) have brought the instant hearing, arguing that the DOE had failed to provide with a free appropriate public education (FAPE) for the 2019-2020 school year. Ex. A.
A pendency hearing convened on September 10, 2019. The hearing reconvened on December 10, 2019, and continued on January 17, February 26, April 6, and May 4, 2020. Extensions of the deadline for decision were granted in accordance with regulations, resulting in a final compliance date of June 14, 2020, and the record closed upon receipt of the transcript and documents on May 14, 2020.
DISTRICT AND PARENT POSITIONS
The parents’ due process complaint notice (DPCN), dated September 3, 2019, claimed that the district failed to offer a free appropriate public education (FAPE) for the 2019-2020 school year. It argued that an IEP meeting held on April 9, 2019, was not duly constituted, did not conduct or rely on sufficient evaluative measures, failed to review goals or management needs with the parent, citing goals and management needs as insufficient. The DPCN argued that the district had recommended placement in an inappropriate program, failed to provide a specific placement location for the 2019-2020 school year. As remedy, the parents sought continued funding for ’s program and services at the _ Ex. A.
At hearing on April 6, 2020, the district representative indicated that she was not contesting the related services being provided for the child. She asked that if the finding was to be that the IEP was not appropriate, that payment continue to be at a reasonable rate. This was the district position taken at the pendency hearing, when the district had agreed to the charge of $94 per hour as reasonable. Tr. 33. Asked if she was objecting to the appropriateness of for the child, she stated that she didn’t think was aconcern. Tr. 33-34. The parent attorney confirmed that the course was $94 per hour, an amount that was not contested at the pendency hearing. Tr. 35. At hearing on May 4, 2020, the district representative repeated her request, that if payment for a SEIT was ordered, that payment be at a rate of $94 per hour. Tr. 214.
FINDINGS
Ms. _ testified that has shown great abilities from an academic and intelligence perspective, but with struggles in interactions with peers. At a very early age, in preschool, his teachers suggested that he be evaluated. Tr. 187-189. He was eventually diagnosed with autism. The neurodevelopment evaluation conducted in November 2017, when the child was less than years old, noted a diagnosis of autism spectrum disorder (ASD), Level I, formally known as Asperger’s syndrome. The recommendation was for continuous 12 month program of intervention, including the summer months, and a mainstream nursery school program with special education itinerant teacher (SEIT) support to effectively manage behaviors and facilitate his ability to participate in classroom activities and interact with peers. The recommendation was for a special educator with behavior modification training. Ex. H. was receiving 18 hours of SEIT in preschool, as ordered by the IEP. Tr. 189-190; Ex. 2. had been placed at , and approved special education provider for preschool children, by the CPSE. , the SEIT at , began work with in September 2018. Ms. holds permanent teaching certificate in early childhood and special education. She described as an inclusive school, explaining that she has worked with one-on-one, working on his IEP goals, as well as a plan of support for the curriculum at . Tr. 122-124. In the previous 2018-2019 school year, there were 11 students in his class, with two teachers and one assistant teacher, and a total of three SEITs. The class was mostly three-year-olds, and was one of the students in the room, from 3 to 5 years. Tr. 141-142. He was receiving 12-month services. Tr. 156. , Whose earlier evaluation was with Dr. at , was reevaluated right before the IEP meeting. Tr. 190. The February 2019 neurodevelopmental evaluation, conducted as a follow-up evaluation to aid in defining his educational and therapeutic needs, repeated the diagnosis of ASD and repeated the recommendation for a continuous 12-month program of intervention, including the summer months. It also recommended that he attend the integrated prekindergarten class of with the support, noting that he benefited from the specialized teaching environment and the ongoing exposure to typical peers for social and language model. It actually recommended an increase of SEIT to 20 hours weekly, noting that he was going to be attending school for more hours to semester. Ex. G.
Ms. , who as SEIT worked with in the 2018-2019 and 2019-2020 school years, described as a self-directed learner in areas such as math and literacy, with extremely strong interests. He is diagnosed with autism and severely delayed, however, in social emotional development, with a need for one-to-one supports navigating different social interactions and helping him acquire skills to engage in interactions with peers. He has and continues to have difficulty in age-appropriate play, and pretend play and open-end play are areas in which she worked with . He also need continuous support to increase his flexibility in developing coping skills in uncomfortable situations, which has been an area of focus. She also noted sensory integration as an area of need, as has often shown to be going to different arousal states throughout the day. Tr. 125-126. J. Ms. confirmed that he doesn’t have many academic weaknesses, but definitely has need in pragmatic language and expressive language skills. Tr. 173-174. , aschool psychologist and state licensed psychologist, testified that as part of the process, he did some testing of , aclassroom observation, and a teacher interview, as well as helping to facilitate the IEP meeting. Tr. 51. Dr. described as having a broad range of needs. He was diagnosed with autism, had a majority of needs in the adaptive functioning social emotional domain, and was receiving related services of speech, occupational therapy and physical therapy. Tr. 68.
Dr. described testing administered to , Stating on the Stanford-Binet, his full-scale score was in the superior range, verbal high average and nonverbal very superior. In the Woodcock Johnson tests of achievement, he earned scores consistently in the superior to very superior range across measures of math, language, and reading. Tr. 52. Ex. 1. The two tests were conducted on April 8, 2019, the day before the IEP meeting. He confirmed that the results of the Stanford-Binet evaluation were not located in the educational evaluation report, although they were included on the child’s IEP. Tr. 66-68; Ex. 3. Asked about assessing the child in terms of his functioning as a student on the autism spectrum, Dr. noted the teacher interview he had conducted. The teacher interview was also not included in the report, but was a separate document in the DOE’s SESIS (Special Education Student Information System) and incorporated into the IEP. Tr. 69-73. He stated the purpose of conducting the evaluation was that the parents needed an updated educational evaluation as they were applying to an ASD program sponsored by the DOE. Tr. 69. He stated that he didn’t do any additional assessments, because he felt the provider reports offered a better description, and had more to say than would be revealed in 10-minute standardized assessments. Tr. 75. Dr. mentioned two neuropsychological evaluation of , although the most recent was submitted after the IEP meeting. It wasn’t provided to him, but uploaded into SESIS after the meeting but prior to the start of the school year. Tr. 60, 91-92.
The IEP meeting was held on April 9, 2019. He confirmed the signatures on the attendance page, although he did not have an independent recollection of their attendance. Dr. stated that he wrote a lot of the IEP, with information from various source documents. Programs discussed the meeting included a self-contained class of 12 students, with a teacher and a teacher’s assistant, and integrated co-teaching. The recommendation was for an integrated coteaching (ICT) class with a paraprofessional for the child. Dr. stated that all the documents suggested had a very well-developed academic skills and cognitive skills. His difficulty comes with socialization and sometimes his ability to convey his skill acquisition. It was therefore felt that a small class of 12:1:1, the students wouldn’t be on the same skill level as , and the ICT offered opportunities for socialization with nondisabled peers, as well as the support of two full-time teachers in the classroom. In addition, it was thought that the extra paraprofessional support would help when he became overwhelmed or need assistance with socialization or transitioning. Tr. 55-57.
According to Dr. , management needs on the IEP were carried over from his prekindergarten IEP, because it seemed had made a lot of progress. He noted the needs reflected in the verbal and visual cueing, positive reinforcement, preferential seating, which were the same as on the pre-K IEP, stating that these could be met with the ICT in paraprofessional support. Tr. 58. The goals in the IEP were taken from the provider reports in the preschool IEP. He stated that the CPSE IEP that had been developed a few days earlier was not available, but the committee had an IEP from a couple of months earlier. The document in evidence, which had a date of January 18, 2019, was also the document that was updated as the child’s CPSE IEP on April 5, 2020. Tr. 83-85; Ex. 2. Dr. stated they went through the goals, agreeing that in the earlier IEP there were a number of goals and short-term objectives focused on social, language, and functioning in the classroom. Tr. 85-86. He confirmed that there were fewer goals in the IEP created for the 2019-2020 school year, but stated they seema little bit broader. Asked who would be working on the goals, noting specifically a goal about using socially appropriate language, Dr. stated that it would be the special education teacher in conjunction with the paraprofessional. At the time of the meeting, was working with a SEIT on those domains, part of the time. Asked about the skills and training of a paraprofessional, specifically a health paraprofessional as recommended for , Dr. stated that the level of training is based on the student’s needs, in ’s case, the health paraprofessional was recommended due to severe food allergies, pragmatic language, and difficulty with transitions, so would be given training to support the student in those needs in the classroom. He cited DOE professional development, without further elaboration. He confirmed that the minimum requirement for paraprofessionals was a high school diploma. Tr. 86-90.
’s parents were concerned about him going into larger class. Dr. said that assigning a paraprofessional would enable him to have continued support throughout the day and assist him in that transition into the larger class. He stressed that being around nondisabled peers, with supports, and related services would accomplish the goal of educating him in the least restrictive environment possible to help him reach his potential. Tr. 57-58, 80. He also stated he thought the parents didn’t believe the paraprofessional recommendation was sufficient, although he wasn’t sure of the basis for that opinion. He knew that they wanted a SEIT to continue, but that wasn’t an option for kindergarten as it’s not a service that the DOE offers. He noted the different spectrum of services that are offered at the school age level. Tr. 80-82. Dr. stood by the recommendation, stating that had showed significant progress, and was developing; he was academically strong, and the main concerns were really the social issues in the transition issue. Tr. 59.
Ms. _ stated that she did not specifically provide the evaluation to the team, although it had been provided for his application to an ASD- program, which included , the school psychologist on the IEP team. Scores from the evaluation were incorporated into the IEP. Tr. 191. Asked again whether there was evaluation at the meeting, she conceded that she didn’t think it was discussed at the meeting. Tr. 203-205.
She testified that they discussed at the meeting the level of one-to-one support and training behind the support that needed. The recommendation of continuing a preK classroom SEIT support was not discussed at the meeting; the only thing that came up with the level of support by a trained professional but not the full program. They talked about the fact he was still requiring a lot of the one-on-one support, noting that he was making progress, but he wasn’t really where he needed to be from a developmental and maturity level perspective. Tr. 192-194. She stated that the full-time health paraprofessional made her partly happy as she had extreme anxiety about Ss , but it wasn’t really relevant as it was the type of support that he needed from a person with a different educational level who could focus on his special education needs. Tr. 194-195. Ms. _ stated that it was her understanding that the health professional was justified because of his . Tr. 201-202. She also noted concerns about the size of the classroom, coupled with the lack of one-to-one support, and the absence of focus on the social area despite social and emotional development being his biggest area of need. Tr. 195-196.
Ms. participated in the IEP meeting. At the meeting, the child’s profile was discussed, and Ms. stated that she spoke with the school psychologist, who had conducted an observation of , and she provided a detailed report to the team prior to the IEP meeting. During the meeting, the child’s profile was discussed, and they had the detailed report, although they were not many questions related to his profile. She stated that she recommended that he be in a structured program with typically developing peers, with individualized supports focusing on his areas of need, and continuation of services that he was receiving. Tr. 128-129; Ex. 1.
The CSE recommended an integrated co-teaching class for . They also offered supports of the one to one health paraprofessional, and a small group, speech session for the child. Tr. 130. Ms. stated that her opinion was that it didn’t really align with what she recommended. She noted the absence of a clear and consistent plan for offering social supports, which wasn’t present, and wouldn’t been very present in an ICT class. There was no individualized support of the special education teacher who would be able to work with him oneon-one and address those areas of need. She also thought the class size would be overwhelming for . She noted that they offered a one-to-one health paraprofessional, as opposed to somebody to work with him one-on-one on his particular needs, and she felt that that wouldn’t have been working with him very close in what he needed. There was also no plan for a social group where he could practice social interactions under the guidance of somebody, furthering his pragmatic language skills and applying them in the classroom. Tr. 131-132. She noted the difference between her work as a SEIT working individually with the child, organizing and implementing a plan of supports in his area of need, and focus on developing particular skills, as different as somebody ensuring he is safe or healthy while attending school. Tr. 134-135. She felt that a paraprofessional, without the educational background to know about ASD, might have been questionable. She also noted that she didn’t feel having someone became a full-time basis was necessarily the correct goal, as opposed to somebody teaching in particular skills, which he can then use within the classroom independently. At the meeting, Ms. asked about social supports and if there was no independent social group could be involved in. They didn’t make any changes, however, just offering the paraprofessional support near the end of the meeting. Tr. 136-137. She also stated that she thought he continued to need 12-month services, stating that consistent services were beneficial for him. Tr. 157.
Ms. _ testified that she didn’t receive the school location letter sent by the DOE, but she did find out. He was recommended to go to . Tr. 196; Ex. 5. She said it was not the same thing as a placement notice, just a result of the inquiry, but she did visit the kindergarten classrooms at , Sitting in the ICT class. She stated that from an academic perspective he was signed, but during the time she was there they practiced sight words and math exercise as a group, and there just wasn’t time for the social emotional growth needs. She asked the teachers about how much time they had for that, and it was a very short time during the day. She said that was her primary focus for , She didn’t think the program had much opportunity for that. Tr. 197-198.
For the 2019-2020 school year, continued at . Ms. stated that she incorporated a lot of social thinking curriculum into work with , saying it was very beneficial for him to have those particular activities to help further social skills. She worked on pragmatic language skills, practicing them together and then they would go back into the classroom, and she would scaffold particular interactions using the language in small groups, sometimes just with another peer, sometimes in a group of four. Tr. 138-139. She explained creating social stories for him to better understand pragmatic skills, such as making eye contact with taking turns in conversation, starting one-on-one reading and talking about a story before going into the classroom, where she would provide visuals and help him with particular steps. Tr. 164-166. The class is a 21:2:1 ratio, and inclusive classroom, with a mixture of general education and students with IEP’s, five SEITs in the class. Tr. 140-141. The classroom had two lead teachers and one assistant teacher, as well as five SEITS working with individual students. Ms. was working with 18 hours a week, approximately three to four hours a day. She stated that that was just a part of the day, as he was attending a full day of preschool at , and she would be with him primarily during the morning hours, leaving after lunch. Tr. 132-134. She stated that in the morning hours, which incorporates meeting time and whole group get-togethers, there were different activities, including physical play, work time and open play with students having the choice of activities, after which there was another large group meeting. It was during work time that some small group activities occurred. That was followed by reading, and then after lunch and a period of rest, the schedule was pretty much repeated. Tr. 144. She did most of the work with in the classroom, although during the last period, which is about 45 minutes, that was a good time to take him out of the class and do some work with him. Tr. 144.
Ms. stated that has progress in all his goals, showing the things he could do without any supports at all. Most of those were in the areas of following directions, and being able to follow the routines the classroom. He also fully achieved a lot of his language goals, expressive language goals and receptive language. As example, she stated that he showed the ability without prompting to talk n large group settings such as a morning or afternoon meeting, sharing details of his weekend, sharing stories, and engaging in play. She also noted a lot of speech and language skills he used during whole group meetings without prompting, goals that were achieved. He showed the ability to answer a lot of why questions or more open ended questions without support, recalling details from stories and expressing them after being asked questions. Tr. 147-148; Ex. E. Asked how he performs academically, Ms. stated that in the areas of interest, particularly math, he performs wonderfully, remaining focused and enthusiastic to perform a task. Tr. 163. She stated that she thought was a very suitable program for . Tr. 148-149. He was also receiving speech language therapy at , 45 minutes weekly. Tr. 169-170.
Ms. also discussed the current school year, noting the progress he had made in the program, having learned to play with students. She attributed his progress to work on tactics such as ask to join a small group. He still has a lot to do socially, but was the right place for the current school year. Tr. 199. is currently involved in a remote learning program. Ms. has devised a remote learning plan for him, which includes videoconference classroom meetings every day for about 30 minutes in which she is also in attendance. His learning plan also includes videoconference meetings with her two days a week for an hour duration, with another 30 minute session recently added. She explained they are trying to continue what they are doing with peers joining, getting into practice the pragmatic language skills in the sessions. She also noted that he is getting a music class, clicking online, as well as video recordings of particular special classes that were offered and available. Tr. 152-153. She said that is doing his best within the sessions, working on similar goals that they were working on that were not achieved, and he is happy to see his peers and participate in activities that are set up. Tr. 155. Ms. _ testified that remote instruction was a struggle, getting a -year-old to sit in front of the computer, whenever you joined in the sessions. She stated that exhibits attention and participation, while there are other moments when it’s hard for him to focus, and he needs to get up and do movement breaks. Tr. 199-200.
CONCLUSIONS OF LAW
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)(1); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY 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. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.
I find that he district failed to sustain its burden on regard to providing with a FAPE in the 2019-2020 school year. To begin, I credit the parents’ claims concerning the IEP team was not appropriately constituted. Dr. identified the names on the IEP, and it was noteworthy that there was no general education teacher included on the list, despite the recommendation for an ICT class. I also credit the parent’s testimony that no location notice was received by the parent, although Ms. _ did visit the school. These particular failures, by themselves, would not necessarily amount to a failure to provide a FAPE for In addition, although Dr. used the recent neurodevelopmental evaluation when drafting the IEP, it was not before the participants at the meeting held to develop an IEP, which would ordinarily add to the district’s failures. However, I discount the parent’s claim that the IEP did not rely on sufficient evaluative measures, as it was the parent’s failure to provide the evaluation to the team for consideration at the meeting. Nor did the parents bring it up in discussion at the meeting.
In addition, I don’t agree that an ICT class was inappropriate for , noting that it was undisputed that the child had no academic deficits, and should be in a classroom setting around nondisabled peers with support. That was the recommendation in the neurodevelopmental evaluation, citing the need for socialization opportunities with peers and participation in developmentally appropriate activities. Ms. similarly stated he should be in a structured program with typically developing peers, as did Dr. in defending the district’s ICT recommendation.
Where the opinions differed, however, and where the district failed to make a case for its recommendation, was in the support to be provided in an integrated co-taught class and the size of the class for this child. It was also undisputed that the main concerns were really the child’s social emotional issues, issues which were significant and needed significant support. I find that it was not appropriate to provide the additional support he needed through a health paraprofessional who was primarily designated because of his . The child needed at least the part-time support of an education teacher on an individual basis, but that was not provided.
Of particular note was Ms. *s statement that the child didn’t need someone there full time, and in fact hadn’t had someone with him full time at . | credit her testimony that rather than someone on a full-time basis, he needed someone to teach him particular skills in pragmatic language, which he could then use in the classroom independently. That this was not the program recommended or even considered for was clear. Further support for the insufficiency of the recommended program was that the goals did not sufficiently address his primary need in the social emotional and language domains. Physical therapy and occupational therapy goals were adopted from the previous CPSE IEP. Yet despite nine goals related to communication and peer interaction in the earlier CPSE IEP developed only days before, there were only three goals addressing those areas in the IEP for the 2019-2020 school year. Exs. 1, 2. I also note there was no explanation from the district proffered as to why the child’s extended year program was not continued, thus failing to meet its burden on that issue as well.
In sum, I credit Ms. ’s apt summary of the district’s failures, in declaring her concerns to be about the size of the classroom, coupled with the lack of one-to-one support, and the absence of focus on the social area, despite social and emotional development being his biggest area of need.
As there was no objection to the appropriateness of , I will be ordering the child’s attendance at for the 2019-2020 school year, at the $94 rate, which the parent had requested, and to which the district had no objection. I also note there was no objection to continuation of related services for the child.
ORDER
1. The DOE shall provide with the following services for the 2019-2020 school year, on an extended school year 12-month basis:
a. Special education itinerant teacher (SEIT) services 18x60:1, to be provided at a cost of $94 per hour, b. Speech therapy 2x45:1,
C. Occupational therapy 2x45:1; and d. Physical therapy 2x45:1.
IT IS SO ORDERED.
Dated: May 26, 2020
Nawcl M. Lederman
NANCY M. LEDERMAN
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 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 either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An Appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
EXHIBITS
DEPARTMENT OF EDUCATION EXHIBITS
1. IEP, 4/9/19, 12 pages DOE
2. CPSE IEP, 4/5/19, 23 pages DOE
3. Educational evaluation report, 4/8/19, 3 pages DOE
A. Prior written notice, 5/7/19, 4 pages
5. School location letter, 6/17/19, 5 pages DOE
6. ASD program student observation report, 5/29/19, 3 pages DOE
PARENT EXHIBITS
Impartial Hearing Request, 9/3/19, 4 pages
7wUr>mNaD
Final Notice of Recommendation, 4/5/19, 1 page
Affidavit, , 7/26/19, 1 page
SEIT Evaluation, 11/26/18, 5 pages
IEP Review Summary, 3/2-3/13/20, 13 pages
Email, Ms. _, 3/4/19, 1 page
Neurodevelopmental Evaluation, 2/4-2/11/19, 13 pages
Neurodevelopmental Evaluation, 11/13-11/20/17, 12 pages
THO EXHIBITS
None