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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 12, 2013
November 15, 2013
February 10, 2014
April 10, 2014
Actual Record Closed Date: July 17, 2014
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 12, 2013
ESQ., Attorney — Student
DR., District Representative, CSE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15, 2013
ESQ., Attorney — Student
Parents
ESQ., Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 10, 2014
ESQ., Attorney — Student
Parents
ESQ., Attorney — DOE
School Psychologist (via telephone) — DOE
DR., School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 10, 2014
ESQ., Attorney — Student
Parents
Speech/Language Therapist (via telephone) — Student
DR., ABA Supervisor — Student
ESQ., Attorney — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parent in a due process complaint dated August 21, 2013. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parent, and/or directly fund, certain home-based services to supplement the student’s instruction at a New York State approved nonpublic school for the 2013/14 school year (Ex. P-A).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
The DOE appointed me to hear this matter on August 22, 2013 following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). At a hearing held on September 12, 2013, the parent moved for an interim order on pendency (R. 7-8; Exs. IHO-I at 3, P-A at 2). See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). The DOE did not oppose the parent’s motion (R. 8; Ex. IHO-I at 3). In an Interim Order on Pendency dated October 15, 2013, I directed that the DOE provide the student with certain home-based instruction and services, effective August 21, 2013, until such time as the proceedings in this matter were concluded (Ex. IHO-I at 9). Hearings on the merits of the matter were thereafter held on: November 15, 2013; February 10, 2014; and April 10, 2014.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the August 21, 2013 due process complaint, the student was sixteen
(16) years old and had been . In addition, the student and (Exs. SD-2 at 2, SD-7 at 1, SD-10 at 3, 11, P-A at 2, P-B at 5, P-C at 1-2). For the 2013/14 school year, the attended a , New York as a day student on a twelve (12) month basis (Exs. SD-13 at 1112, 15, SD-15 at 11-12, 15, SD-16, P-A at 2-3, P-C at 15-16, 19-21). School has been approved by the Commissioner of Education as a nonpublic school with which public school districts may contract to provide special education instruction and services to students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with autism is not in dispute in this hearing (Exs. SD-13 at 1, 15, SD-15 at 1, 15, P-A at 1).[3] See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).
The student began preschool at age 3 and was reported to have difficulties typically making friends. Throughout her scholastic career, the student with academics, globally (Ex. SD-10 at 3). The student in from September 2006 through June 2012, when she aged out of the program (Exs. SD-7 at 1-2, P-B at 5). The student was provided home instruction by her parent during the 2012/13 school year, as the parent was unable to find an appropriate program for the student. The student’s home instruction was supplemented with twenty-five (25) hours of one-to-one discrete trial impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and that the reasons for the requested extensions were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 12-14, 61-62, 152-154, 253-255; Exs. IHO-II, IHO-III, IHO-IV, IHO-V, IHO-VI, IHO-VII, IHO-VIII, IHO-IX, IHO-X). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). ABA instruction, four (4) hours of weekly, , three (3) times per week for forty-five
(45) minutes per session (Exs. SD-2 at 1, SD-3 at 1, SD-7 at 1, SD-8, SD-9).
In March of 2010, the DOE conducted a psychoeducational evaluation of the student which included an administration of the Woodcock-Johnson III Tests of Achievement. The student’s academic achievement fell below the first percentile in all areas. Additionally, the student’s teacher at the time completed a Vineland Adaptive Behavior Scale to assess the student’s functional skills, and it was reported that her abilities fell below the first percentile across all areas (Communication SS 58, Daily Living Skills SS 57, Socialization SS 60). The report also mentioned that the student’s intellectual functioning was assessed during a triennial evaluation in November of 2008 in which she was administered the Stanford Binet - Fifth Edition. The report of those results indicated that her intellectual functioning at the time fell in the “moderate range of mental deficiency” (Exs. SD-9 at 1, SD-10 at 2).
The student’s mother provided a summary of scores from the Kaufman Test of Educational Achievement, Second Edition, administered by the student’s aide, at her home in January of 2012. Findings indicated that the student’s oral fluency was within the achievement (Ex. SD-10 at 2-3).
In order to reassess the student’s cognitive abilities, she was administered several subtests from the Wechsler Intelligence Scales for Children - Fourth Edition (“WISCIV”) in February of 2012 by Dr. . While several tasks of verbal reasoning were attempted, the the Comprehensive Test of Nonverbal Intelligence - Second Edition (“CTONI-2") to more accurately assess her intellectual functioning when language demands were reduced. This test measure assesses an individual’s ability to solve problems using analogies, classification skills, and logical sequences in the absence of oral responses, reading or writing demands, or object manipulation as the examinee simply points to their selected responses. The student demonstrated variable skills across each of the six (6) subtests presented, and her scores spanned from Well Below the average range to Below Average (Exs. SD-9 at 1, SD-10 at 8, SD-13 at 1-2).
Results of the Behavioral Assessment System for Children, Second Edition (“BASC-2") questionnaire completed by the student’s mother and ,a administrator revealed no concerns with . In contrast, both respondents indicated weaknesses in social skills and functional communication typically Ms. reported clinically significant concerns with respect to the , leadership, and study skills. The student’s mother shared similar concerns that fell in the At-Risk range, including hyperactivity, atypicality, withdrawal, adaptability, and carrying out activities of daily living. These behaviors were deemed consistent with the student’s diagnosis with autism (Ex. SD-10 at 9).
In a March 28, 2013 progress report, Dr. , a Board Certified Behavior Analyst, noted that: [The student] had shown steady and consistent progress across all programs. The student has a history of behaviors ( therapy utilizing the principles and strategies of Applied Behavior Analysis. In addition, during a typical 12 month school year, the student continued to progress toward all IEP goals, although she continued to work significantly instructional hours for 25 hours weekly, and 3 hours weekly of Board Certified Behavior Analysis therapy supervision/program oversight (Ex. SD-2 at 2-3).
In April 2013, the student was administered selected subtests of the Wechsler Individual Achievement Test - Second Edition (“WIAT-II”) by , a school psychologist employed by the DOE. On tasks that required reading skills, the student displayed great frustration. When given a list of increasingly difficult words to read, the student . She demonstrated limited ability to apply basic phonics skills to read these words, demonstrating skills below the first percentile within (Word Reading SS 57). While stated that the student “demonstrated better skills in the area of math, especially in math calculation,” the student achieved a standard score of 40 on the math problem solving subtest and a standard score of 46 on the numerical operations subtest. Although the student was the age of a high school sophomore at the time of this assessment, she was unable to write her date of birth correctly on a model form. concluded her assessment by noting that, “because of her limited ability to perform goal directed tasks in an [sic] low structured environment, [the student] continues to require a highly structured educational environment with additional adult support for redirecting, prompting and cueing as she learns” (Exs. SD-9, SD-13 at 1).
In a notice dated April 24, 2013, the parent was invited to attend a reevaluation IEP meeting scheduled for May 6, 2013 (Ex. SD-12). At the May 6, 2013 meeting, the CSE developed an IEP for the student for the 2013/14 school year. The CSE recommended that the student receive the majority of her instruction in a 6:1+3 special class in a New York State approved nonpublic school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: specialized transportation; adaptive physical education; , two (2) times per week for thirty (30) minutes per session; individual speech/language therapy at school, two (2) times per week for thirty (30) minutes per session; small group (3:1) at school, one (1) time per week for thirty (30) minutes per session; at a location other than school, five (5) times per week for sixty (60) minutes per session; a paraprofessional at school; and individual discrete trial learning, fifteen (15) times per week for sixty (60) minutes per session, at a location other than school (Exs. SD-13 at 11-12, 14-16, P-D at 15-16, 19-20).
As the parent claimed to have never received a finalized copy of the May 6, 2013 IEP, she wrote to the CSE on May 30, 2013 to request special education and related services for the student for the 2013/14 school year (Exs. P-D, P-Q). In a notice dated June 3, 2013, the parent was invited to attend another IEP meeting, which was scheduled for the following day, June 4, 2013 (Ex. SD-14). At the June 4, 2013 meeting, the CSE again recommended that the student receive the majority of her instruction in a 6:1+3 special class in a New York State approved nonpublic school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: specialized transportation; adaptive physical education; individual occupational therapy at school, two (2) times per week for thirty (30) minutes per session; individual speech/language therapy at school, two (2) times per week for thirty (30) minutes per session; small group (3:1) at school, one (1) time per week for thirty (30) minutes per session; individual speech/language therapy at a location other than school, five (5) times per week for sixty (60) minutes per session; paraprofessional at school; and individual discrete trial learning, fifteen (15) times per week for sixty (60) minutes per session, at a location other than school (Ex. SD-15 at 11-12, 14-16). In a Final Notice of Recommendation (“FNR”) dated June 4, 2013, the DOE informed the parent that the student’s recommended program would be implemented at (Ex. SD-16).
In an August 6, 2013 speech and language report, Ms. a pathologist, stated that home intervention including developing visual cues to support understanding of language continued to be necessary to help the student understand, organize, and follow sequential steps for the acquisition of independent recommended that the student receive homebased speech and language therapy three (3) times per week, for sixty (60) minutes per session, during the 2013/14 school year (Ex. P-H).
In a letter dated August 16, 2013, the parent wrote to the CSE to state that while she agreed with the recommended placement of the student at during the 2013/14 school year, she believed the student required more home-based services that what had been recommended by the CSE. The parent informed that the CSE that she would arrange to provide the student, at public expense, with twenty (20) hours per week of home-based ABA instruction; three (3) hours per week of ABA program supervision by a Board Certified Behavior Analyst; individual speech and language therapy, three (3) times per week for sixty (60) minutes per session; individual occupational therapy, two
(2) times per week for sixty (60) minutes per session; and transportation at the thencurrent IRS rate. This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The CSE’s recommendation of fifteen (15) hours per week of ABA for the student at home was appropriate. The student’s private providers are not entitled to an enhanced rate for services rendered (R. 72-74; Ex. IHO-XI).
B. The Parent
The student was entitled to specialized transportation to and School. The CSE erred in failing to recommend twenty (20) hours per week of home-based ABA and three
(3) hours per week of ABA supervision for the student for the 2013/14 school year. The student’s service providers at home are entitled to an enhanced rate for their services (Ex. IHO-XII).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free 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 (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[4]
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. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 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 procedural violations are 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. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; 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), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); 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).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 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." See 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, 142 F.3d at 130; 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." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See 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.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also 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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).
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 C.F.R. § 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 designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Transportation
The parent's request for reimbursement for transportation costs to and from the Devereux School during the 2013/14 school year is granted (Exs. IHO-XII at 13-14, P-A at 5).
The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. See 20 U.S.C. § 1401(26); 34 C.F.R. §§ 300.34(a), (c)(16). In addition, New York State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs." See N.Y. Educ. Law §§ 4401(1)-(2); 4402(4)(a); see also 8 NYCRR § 200.1(ww). Transportation as a related service can include travel to and from school and between schools; travel in and around school buildings; and specialized equipment such as special or adapted buses, lifts, and ramps. See 34 C.F.R. § 300.34(c)(16). Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. See Application of a Child with a Disability (Saratoga Springs City Sch. Dist.), Appeal No. 03-053 (SRO Sept. 19, 2003). The nature of the specialized transportation required for a particular student depends upon the student's unique needs, and it must be provided in the least restrictive environment. See 34 C.F.R. §§ 300.107; 300.305. If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. See Comment on Transportation, 71 Fed. Reg. 46,576 (Aug. 14, 2006); 8 NYCRR § 200.1(ww); Application of [Redacted] School District, Appeal No. 12-095 at 5 (SRO Aug. 14, 2012).
It is undisputed that the CSE recommended that the student receive specialized transportation to and from her twelve (12) month program at the Devereux School during the 2013/14 school year (Exs. SD-13 at 14-16, SD-15 at 14-16, P-D at 19-20). [5] Additionally, in my October 15, 2013 Interim Order on Pendency, I directed the DOE to provide the student with daily special education transportation to and from Devereux, or alternatively, reimbursement for such transportation, effective August 21, 2013, until such time as the due process proceedings in this matter were completed (Ex. IHO-I at 9). As the student was entitled to specialized transportation to and from her program at the Devereux School during the 2013/14 school year, the DOE shall be directed to reimburse the parent for any outstanding costs associated with such transportation.
C. ABA Supervision
The parent’s claim that the CSE erred in failing to recommend ABA supervision of the student’s home program is sustained (Exs. IHO-XII at 10-13, P-A at 5).
Dr. credibly testified that ABA supervision was a necessary component of the student’s discrete trial program at home during the 2013/14 school year. Dr. who has over twenty (20) years of experience in the field of special education, explained that a supervisor is responsible for reviewing program data to make program adjustments, monitoring changes, and ensuring that a child is learning (R. 192-194). Dr. Fiorile testified that where multiple providers are involved in a student’s program a “supervisor is essential for coordinating the case, for making sure that everyone is implementing instruction properly” (R. 193, 195).
Dr. supervised the student’s home program for two (2) hours per week during the 2013/14 school year (R. 200; Exs. IHO-I at 9, P-X). During that time, the student had four (4) ABA providers (R. 209). As the student’s ABA supervisor, Dr. determined which programs to implement, wrote programs, taught staff how run programs, and monitored data (R. 203). She also reviewed data, trained staff on implementing the student’s behavior plan, and ensured that everyone was consistently applying the program
(R. 203). Dr. rotated her schedule in order to meet with all of the student’s ABA providers (R. 204). In addition, she ensure home-school consistency (R. 219, 241).
Alternatively, while Ms. a school psychologist who chaired the June 4, 2013 CSE meeting, claimed that ABA supervision was not necessary because the student’s home providers were sufficiently experienced, Dr. credibly testified that a supervisor has a higher level of expertise in implementing programs, staff training, and managing data than ABA providers (R. 134, 193). Likewise, while Ms. cost of supervision should be borne by the ABA providers, analogized her role as an ABA supervisor to that of a principal in a public school, who provides continuity and consistency in instruction
(R. 135, 199-200, 203).
In my October 15, 2013 Interim Order on Pendency, I directed the DOE to provide the student with two (2) hours per week of ABA supervision effective August 21, 2013 until such time as the due process proceedings in this matter were completed (Ex. IHO-I at 9). While I acknowledge that the parent seeks, as relief, an Order directing the CSE to provide the student with three (3) hours per week for ABA supervision, I note that Dr. Fiorile’s February 2, 2014 progress report of the student’s home program reflects that the student has made meaningful progress toward her academic and behavioral goals (R. 213, 215; Exs. P-A at 5, P-X at 2). In that same recommended a continuation of ABA supervision of the student’s home program at a frequency of two (2) hours weekly (Ex. PX at 5). Consequently, I find that no award of additional ABA supervision is warranted at this time.
D. Amount of ABA Therapy at Home
The parent’s claim for an increase of ABA therapy at home from fifteen (15) to twenty (20) hours per week is denied (Ex. IHO-XII at 8-10, P-A at 5).
Beginning in July 2013, the student began attending a full-time special education program at approximately six (6) hours per day (R. 131-132; Exs. IHO-I at 9, SD-13 at 11, 15, SD-15 at 11, 15, SD-16, P-M, P-N, P-X at 1). provides a behavioral model of intervention for children with autism. In addition to academic instruction, it provided the student with pre-vocational training both in school and in the local community (Ex. P-V at 1). During that same time period, the student has received intensive home-based ABA instruction for fifteen (15) hours weekly, which was designed to further develop and generalize her basic skills (Exs. IHO-I at 9, SD-13 at 12, SD-15 at 12, P-X at 1). Dr. Fiorile credibly testified that the student made meaningful progress toward her academic and behavioral goals during the 2013/14 school year (R. 213, 215; Ex. P-X at 2).
Alternatively, as the parent’s claim for an additional five (5) hours per week of home-based ABA is premised on further generalization of the student’s skills (R. 206), I note 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 K.L. v. New York City Dep’t of Educ., 2008 WL 4017822, at *14 (S.D.N.Y. Aug. 23, 2012), aff’d, 530 Fed. Appx. 81; Application of the New York City Dep’t of Educ., Appeal No. 13-198 at 19-20 (SRO Dec. 13, 2013).
E. Enhanced Rates for Home-Based Services
1. ABA Providers
The parent’s claim for an enhanced rate of compensation for the student’s ABA providers at home is denied as moot (Ex. IHO-XII at 15). The record reflects that the DOE rate for ABA services is $45 per hour and the student’s private ABA therapists charge $90 per hour (R. 56, 80, 208). In my October 15, 2013 Interim Order on Pendency, I directed the DOE to provide the student with fifteen (15) hours per week of ABA instructional services through an RSA at a rate of $90.00 hour, effective August 21, 2013 until such time as the due process proceedings in this matter were concluded (Ex. IHO-I at 9). As the student and parent have already been granted what amounts to an enhanced rate for home-based ABA instructional services delivered during the 2013/14 school year through my October 15, 2013 Interim Order on Pendency, I find that this claim is now moot. See, e.g., Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 05-058; Application of a Child with a Disability, Appeal No. 04-027; Application of a Child with a Disability, Appeal No. 00037; Application of the Bd. of Educ., Appeal No. 00-016; Application of a Child with a Disability, Appeal No. 96-37.
2. ABA Supervision
The parent’s claim for an enhanced rate of compensation for ABA supervision of the student’s home program during the 2013/14 school year is granted. As noted earlier, the CSE erred in failing to recommend any ABA supervision services for the student’s home-program for the 2013/14 school year (Exs SD-2 at 3, SD-13 at 11-12, SD-15 at 1112). In my October 15, 2013 Interim Order on Pendency, the DOE was directed to provide the student with two (2) hours per week of ABA supervision through an RSA at a rate of $90.00/hour, effective August 21, 2013, until such time as the due process proceedings in this matter were completed (Ex. IHO-I at 9). Dr charges $190 per hour for program supervision (R. 207). The DOE shall be directed to reimburse the parent, and/or directly fund, the remaining costs of ABA supervision services delivered to the student during the 2013/14 school year within thirty (30) days of its receipt of adequate proof-of-payment or invoices for such services.
3. Pathologist
The parent’s claim for an enhanced rate of compensation for speech/language therapy services delivered to the student at home is granted (Ex. IHO-XII at 15). It is undisputed that the CSE recommended for the 2013/14 school year that the student receive individual therapy, five (5) times per week for sixty (60) minutes per session at a location other than school, i.e., at home (Exs. SD-13 at 11, SD-15 at 11, P-H).6
6 Likewise, my October 15, 2013 Interim Order on Pendency directed the DOE to provide the student with individual speech/language therapy services, five (5) times per week for sixty (60) minutes per session, at
Dr. a school psychologist, assisted the parent with locating providers that would take the DOE rate for services (R. 96-99). Dr. stated that in or around June of 2013, she sent related service authorizations (“RSAs”) to the parent for ABA and related services
(R. 98).[7] Dr. stated that the parent wrote a letter indicating that she was not able to locate a provider from the DOE’s approved list (R. 100, 232-233). Dr. Lope then called providers on the approved list and located both ABA and speech providers that were willing to go to the student’s home (R. 98-99, 101-104, 116). Dr. stated that she informed the parent during the summer that providers had been located (R. 101-104, 107108). The student’s parent disputed the point contacted her (R. 234). Since providers had reportedly been located, the DOE did not offer the enhanced rate that had been offered to the parent in the past (R. 104-105).
The student’s mother, however, credibly testified that she was unable to find an approved work with the student. The student’s mother stated that some of the providers on the approved list no longer participated in the program and that other listed providers had incorrect phone numbers (R. 232). Several providers would not work with seventeen year old students (R. 252). Others lacked the ability to come to the student’s home in the Bronx (R. 232, 252). The student’s mother also noted that the student’s twin sister is also diagnosed with autism and is receiving a home-program which greatly limited the parent’s ability to bring the student to a therapy office for services (R. 232-233).
After weighing the conflicting testimony the student’s mother, I conclude that the DOE failed to meet its requisite burden of proof and establish that it had secured a specific capable of delivering the IEP recommended service to the student at home when she was not otherwise being instructed at
Since September 2013, Ms. has provided the student with individual speech/language therapy sessions at home, two (2) times per week for sixty (60) minutes per session (R. 174; Ex. P-V at 1). Ms. is a licensed and pathologist, and hold her home, effective August 21, 2013, until such time as the due process proceedings in this matter were concluded (Ex. IHO-I at 9). certificate of clinical competence from ASHA (R. 162-163). She has over twenty (20) years of experience in the field of pathology (R. 162, 165). Ms. charges $150 per hour, which is comparable to the rates charged by other speech and language pathologists, whose hourly rates run from $120 to $250 (R. 175). The DOE shall be directed to reimburse the parent, and/or directly fund, the costs of services delivered to the student at home during the 2013/14 school year within thirty (30) days of its receipt of adequate proof-of-payment or invoices for such services (Ex. P-W).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
1. Within thirty (30) days of the date of this Order, the DOE shall reimburse the parent for any outstanding mileage (at the applicable IRS rate) and/or toll costs associated with transport of the student to and from during the 2013/14 school year;
2. Within thirty (30) days of submission of adequate proof-of- payment, and/or proof of services rendered, the DOE shall reimburse the parent, and/or directly fund, any outstanding costs for ABA supervision of the student’s home program delivered during the 2013/14 school year at an enhanced rate of $190/hour; and
3. Within thirty (30) days of submission of adequate proof-of- payment, and/or proof of services rendered, the DOE shall reimburse the parent, and/or directly fund, any outstanding costs for therapy provided to the student at home during the 2013/14 school year at an enhanced rate of $150/hour. Dated: August 1, 2014
Jeffrey J. Schiro, Esq. gc
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer JJS:gc
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 ON SEPTEMBER 12, 2013
PARENTS
A. Due Process Complaint/Impartial Hearing Request, 8/21/13, 5 pgs.
B. Findings of Fact & Decision, IHO Judith Schneider, 7/1/09, 21 pgs.
C. Individualized Education Program (IEP), 6/4/13, 23 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 15, 2013
PARENTS
D. Draft Individualized Education Program (IEP), 5/6/13, 23 pgs.
E. [Reserved]
F. [Reserved]
G. [Reserved]
H. Speech/Language Report, 8/6/13, 1 pg.
I. [Reserved]
J. Occupational Therapy Progress Report, 8/5/13, 3 pgs.
K. [Reserved]
L. Description, undated, 3 pgs.
M. Student’s Daily Schedule , 2013/14, 1 pg.
N. Attendance Record, July 2013 - October 2013, 4 pgs.
O. Letter to (CSE) from parent, 8/16/13,[1] pg.
P. [Reserved]
Q. Letter to (CSE) from parent, 5/30/13, 2 pgs.
R. Speech Service Provider Invoices, September 2013 - October 2013, 2 pgs.
DEPARTMENT OF EDUCATION
2. Progress Report of C. Fiorile, 3/28/13, 3 pgs.
3. Progress Report of C. Fiorile, 4/24/13, 2 pgs.
4. Related Services Progress Report (Speech/Language), 4/23/13, 2 pgs.
5. Occupational Therapy Report, 4/16/13, 2 pgs.
6. Physical Examination, 4/23/13, 3 pgs.
7. Social History, 4/15/13, 3 pgs.
8. Classroom Observation, 4/17/13, 2 pgs.
9. Educational Evaluation Report, 5/6/13, 3 pgs.
10. Evaluation, 3/9/12, 14 pgs.
11. [Reserved]
12. IEP Meeting Notice, 4/24/13, 3 pgs.
13. Individualized Education Program (IEP), 5/6/13, 18 pgs.
14. IEP Meeting Invitation, 6/3/13, 3 pgs.
15. Individualized Education Program (IEP), 6/4/13, 18 pgs.
16. Signed Final Notice of Recommendation (FNR), 6/29/13, 1 pg.
IMPARTIAL HEARING OFFICER
I. Interim Order on Pendency, 10/15/13, 12 pgs.
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 10, 2014
PARENT
S. Progress Report, 1/27/14, 21 pgs.
T. Program Review, November 2013, 1 pg.
U. Woodcock-Johnson III Score Report, 1/17/14, 5 pgs.
V. Report, 1/10/14, 5 pgs.
W. Service Provider Invoices, November 2013 - January 2014, 3 pgs.
X. Progress Report and Recommendations of , 2/2/14, 6 pgs.
DEPARTMENT OF EDUCATION
None
MPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 10, 2014
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
PARENT
None
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
II. Confirmation of Extension, 11/4/13, 1 pg.
III. Confirmation of Extension, 12/4/13, 1 pg.
IV. Confirmation of Extension, 1/3/14, 1 pg.
V. Confirmation of Extension, 2/3/14, 1 pg.
VI. Confirmation of Extension, 3/5/14, 1 pg.
VII. Confirmation of Extension, 3/24/14, 1 pg.
VIII. Confirmation of Extension, 4/24/14, 1 pg.
IX. Confirmation of Extension, 5/29/14, 1 pg.
X. Confirmation of Extension, 6/27/14, 1 pg.
XI. Closing Brief of Department of Education, undated, 9 pgs.
XII. Petitioners’ (Parents) Post-Hearing Memorandum of Law, 5/2/14, 18 pgs.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to allow them adequate time to present their available witnesses and post-hearing briefs, and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative
[3] Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied. 8 NYCRR § 200.1(zz)(1).
[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[8] NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). 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. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition
[5] Under New York State Law, the school year begins on July 1st and runs through June 30th. See N.Y. Educ. Law § 2(15).
[7] The hearing record reflects that "RSA" stands for related service authorization, which is a DOE-generated form entitling parents to obtain related services from private providers at public expense.
[1] Signed Assessment Planning Form, 3/7/13, 1 pg.