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T.P. v. Mamaroneck Union Free School Dist.

May 10, 2007


The opinion of the court was delivered by: Brieant, J.

Memorandum and Order

Before the Court is an action initiated under the Individuals with Disabilities in Education Act, 20 U.S.C. §1400 et. seq. ("IDEA"). Plaintiffs filed a motion (Doc. No. 15) for a "modified de novo review" and summary judgment reversing the underlying administrative decision of the State Review Officer ("SRO"), which affirmed the decision the Impartial Hearing Officer ("IHO"). Defendant ("District" or "School") also moves for summary judgment (Doc. No. 12). The administrative record on appeal was received by the Court in February 2007.

The June 26, 2005, administrative decision of IHO Christine Moore and the September 29, 2005 decision of the SRO Paul F. Kelly held that the Individualized Education Plan ("IEP") implemented for Plaintiffs' child, S.P. (the "child") for the 2004-2005 school year was reasonably calculated to provide the child with a free and appropriate public education ("FAPE"). Plaintiffs claim that the District failed both procedurally and substantively to provide the child with a FAPE, that the supplemental Applied Behavioral Analysis ("ABA") services and speech services that petitioners secured for the child were appropriate and reasonably calculated to provide the child with a meaningful benefit, and that there are no compelling equitable circumstances sufficient to preclude or diminish a reimbursement award. Plaintiffs claim inter alia that the District engaged in impermissible predetermination because "the most important aspects of [the child's] IEP were, for all intent and purposes, a 'done deal' when [his] parents walked into the IEP meeting room," that "no amount of participation by [his] parents could have changed a thing," and that the Parents were accordingly deprived of the right to meaningful participation in the IEP development.

Plaintiffs' minor child, S.P., was born August 21, 1998, and is now approximately 8 years old. In November 2000, at age two, he was diagnosed by the McCarton Center for Developmental Pediatrics, with a "pervasive development disorder, not otherwise specified" ("PDD-NOS"), and at age four he was additionally diagnosed with an auditory processing disorder, fine and gross motor delays and an expressive and receptive language disorder. The child's current classification by the Committee on Special Education ("CSE") as "autistic" is not in dispute.

In his preschool year, the child received 40 hours of ABA, which included 20 hours of 1:1 discrete trial training, and attendance in a preschool accompanied by a special education itinerant teacher (SEIT) for 121/2 hours per week. He also received speech-language therapy and occupational therapy ("OT"). SRO at 1-2.

For the 2003-2004 school year the child was referred to the District's CSE, which recommended placement in a non-integrated 8:1 special kindergarten class, and afternoon mainstreaming with a 1:1 aide, as well as some speech-language therapy and OT. The parents disagreed with the CSE recommendations and the parties entered into a settlement agreement, the terms of which are not part of the record in this case, but the child apparently received 30-35 hours of ABA therapy per week at home; 5 hours of ABA supervision per week; speech language therapy four times per week; and occupational therapy two times per week. The child also attended a regular education preschool class with a full time 1:1 behaviorally-trained teacher for 10 hours per week. SRO at 2.

The CSE convened for a review of the child's program in January 2004, at which time the child was reported as demonstrating progress in interacting with peers and making progress in language use, although the ABA service provider noted that the child was scripting at a high frequency throughout the day. Scripting was defined by the use of perseverative language not on topic with the language occurring at that time in the environment, for example, language from television shows used as a calming or an avoidance technique. SRO at 2.

During the summer of 2004, the child attended a special education camp for a few hours a day and also received 30 hours of ABA therapy per week; occupational therapy three times per week; and speech therapy five times per week. See IHO at 7.

In May and June of 2004, the Child was reevaluated by the McCarton Center, which recommended, inter alia, that the child receive: ABA 1:1 services at least 25 hours per week at home; 2 hours per week of parent training with an ABA specialist, at least 3 hours per week of ABA supervision, individual speech-language therapy five times per week; individual occupational therapy five times per week; and enrollment in a structured, language-based special education kindergarten class with a behaviorally trained aide and low student to teacher ratio. See Dist. Exh. 9.

In May and June of 2004, several District consultants also conducted evaluations: Susan Varsames Young, M.A..Ed, conducted an Education Evaluation ; Lisa Barone Kovac, M.A., CCC, SLP, conducted a Speech and Language Evaluation on May 3, 2004; Michael Fox, PhD., conducted a Psychological and Educational Evaluation on June 3, 2004; Jill Greenberg, OTR/L, conducted an Annual Review and Related Service Report Occupational Therapy Report.

The "Speech and Language Evaluation" dated May 3, 2004, reported that since the child was originally evaluated by Dr. McCarton at the age of two and given the diagnosis of PDDNOS, he had been receiving speech/language therapy since August 2002 from Diane Happas as part of a home-based program, focusing on the child's deficits in play, socialization and communication skills. The District's consultant recommended placement in a small structured special education class with children of similar needs, but thought that the child did not need the intensive instructional services typically provided to children with autism, despite noting, inter alia, that he had delays in auditory processing; that if there were auditory or internal distractions, the child needed repeated directions or gestural prompts; and that his expressive language was limited and included scripting.

The District's June 2004 evaluator found that the child's cognitive potential was not known, and that his use of verbal reasoning was minimal. He was found to require a good deal of external direction for the performance of tasks, but exhibited average number knowledge and his letter and work recognition skills were in the high average range. The evaluator recommended that the child would benefit from a small group kindergarten placement.

A language therapy summary was also conducted in June 2004 by the child's private speech-language therapist. The therapist noted advancements in the child's word utterances and ability to sustain play interactions. The therapist recommended placement in a special education kindergarten class that targeted among other goals, social and communication skills.

The District's CSE convened on June 11, 2004 for an annual review and recommended an IEP, which included placement in a 12:1 special class; 30 minutes of group speech therapy three times per week; 30 minutes of individual OT two times per week; 30 minutes of individual speech therapy one time per week; access to a slant board, and adaptive seating.

At the request of the Parents, the CSE reconvened on July 16, 2004, with the stated purpose to review the McCarton evaluation, and other information. The parents there expressed concern for the child's transition from a 1:1 program to a full-day school program, and requested: a 1:1 full-time aide for the child; an extended day of service after school; and permission for the ABA home instructor to be able to accompany him to school for part of the day.

By letter dated August 25, 2004, Parents notified the District that it had not yet offered their son an education plan and placement for the 2004-2005 school year and that they would be providing him with an appropriate placement and seeking reimbursement. By letter dated September 2, 2004, Parents indicated that in an effort to help the child's transition into the District's full day classes, they intended to have the child leave the District's school early on Wednesdays and Fridays, and that his progress would dictate when he could attend on a full time basis.

The District did not mail the IEP to the parents until September 1, 2004, and parents claim that they did not receive it until after the school year had commenced on September 8, 2004. The committee's recommendation was: placement in a 12:1 special class during which time the child would receive 10 hours per week of discrete trial instruction (similar to ABA), two sessions of occupational therapy per week; individual speech therapy one time per week; group speech therapy three times per week; and parent training one time per month in a group. Other technology services and devices remained the same as in the June 2004 IEP.

By letter dated September 22, 2004, the Mother indicated that the Parents' acceptance of the IEP was done on a "without prejudice" basis. See IHO at 7, SRO at 6; District Exh. 13. In September of 2004 and through the school year, the Child continued to receive, at the Parents' expense, approximately 20 hours of ABA therapy at home as well as speech and language therapy twice a week for thirty minutes. Transcript at 1930-34. From September 15 - October 15, 2004, the Child bit people in the classroom six times.

The Parents requested an impartial hearing by letter dated November 1, 2004 and the IHO was appointed on November 4, 2004. The Parents complained, inter alia,that the District: failed to provide extended day ABA instruction and support; failed to consider a full continuum of services for the child; failed to address adequately the child's performance levels; failed to develop specific supports for school personnel; failed to provide staff with appropriate training; failed to issue frequent progress reports; failed to give written notice for rejecting the Parent's requests; and failed to provided sufficient and appropriate related services. Parents specifically sought reimbursement for 25 hours of ...

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