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FINDINGS OF FACT AND DECISION
Case Number: 166479
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: October 2, 2017
November 3, 2017
December 19, 2017
January 8, 2018
Actual Record Closed Date: August 23, 2018
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 2, 2017
ESQ., Attorney — Student
Parents
Sibling — Student
District Representative, — DOE
School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 3,
2017
ESQ., Attorney — Student
Parents
Sibling — Student
District Representative, — DOE
School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 19,
2017
ESQ., Attorney — Student
Parents
Sibling — Student
Occupational Therapist (via telephone) — Student
Board Certified Behavior Analyst (via telephone) — Student
District Representative, — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 8, 2018
ESQ., Attorney — Student
Parents
Sibling — Student
Speech/Language Therapist (via telephone) — Student
Psychologist (via telephone) — Student
Board Certified Behavior Analyst (via telephone) — Student
District Representative, — 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 originally requested by the attorneys for the student and the parent in a due process complaint notice dated June 15, 2017. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”) during the 2015/16, 2016/17 and 2017/18 school years (Exs. P-A, P-B, P-KKK).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 originally appointed me to hear this matter on June 19, 2017 following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). On June 27, 2017, the parent filed an amended due process complaint (Ex. P-B). See 8 NYCRR § 200.5(i)(7). A pre-hearing conference with the parties was held on August 22, 2017 to clarify the hearing issues, address the parent’s request for independent evaluations, and address the parent’s request for records (R. 1-8). See 8 NYCRR § 200.5(j)(3)(xi). On August 29, 2017, I ordered the DOE to fund several independent educational evaluations of the student (Ex. IHO-I). See 8 NYCRR §§ 200.5(g)(2), (j)(3)(viii). Later, on September 19, 2017, I issued a subpoena for records from the DOE (Exs. P-GGG, IHOII). See 8 NYCRR § 200.5(j)(3)(iv).
On August 31, 2017, the parent filed a separate due process complaint (Case No. 168275) asserting claims concerning the 2017/18 school year (Ex. P-KKK). In an Order
References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are on Consolidation, dated October 12, 2017, I directed that (concerning the 2015/16 and 2016/17 school years) be consolidated with Case No. 168275 (concerning the 2017/18 school year) in the interests of judicial economy and the interests of the student (Ex. IHO-III). See 8 NYCRR §§ 200.5(j)(3)(ii)(a)(2), (4). Hearings on the consolidated matters were thereafter held on: October 2, 2017; November 3, 2017; December 19, 2017; and January 8, 2018.[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
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At the time of the June 15, 2017 due process complaint, the student was ( years old and has been diagnosed with autism (Exs. P-A at 2, P-B at 2, P-R at 1, P-S at 1, P-X at 1-2, P-EE at 1, P-KK at 1, 3, 5-6, P-KKK at 2). During the 2017/18 school year, the student attended , a specialized school operated by the DOE (Exs. PKKK at 11, []). The student's eligibility for special education and related services as a student with autism is not in dispute in this hearing (Exs. P-A at 2, P-B at 2, P-N at 1, PO at 1, P-P at 1, P-Q at 1, P-R at 1, P-S at 1, P-T at 1, P-U at 1, P-KKK at 2). See 34
C.F.R. § 300.8(c)(11); 8 NYCRR § 200.1(zz)(1).[3]
On January 25, 2015, the student participated in a psychological evaluation noted as “Ex.”
conducted by the DOE. The Stanford-Binet Intelligence Scales - 5th Edition (“SB-V”) was administered to the student to assess this then-current intellectual functioning. The student received a Full Scale IQ of 40, placing him in the Low Severe range of mental retardation, which was consistent with his Non-Verbal IQ score of 42 and his Verbal IQ score of 43. On the Woodcock-Johnson III Tests of Achievement, the student scored significantly below grade level in reading and math. On the Vineland Adaptive Behavior Scale - 2nd Edition (“Vineland-II”), the student’s adaptive behavior composite scores of 64 (teacher interview) and 38 (parent interview) measured in the Low range of adaptive functioning (Exs P-X at 2, P-NN).
On May 6, 2015, the CSE convened to develop an IEP for the student through May 2016. The CSE recommended that the student receive the majority of his instruction in a 6:1+1 special class in a specialized ( school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: specialized (door-to-door) transportation; individual occupational therapy, one time per week for thirty (30) minutes per session; group (2:1) occupational therapy, one time per week for thirty (30) minutes per session; individual speech/language therapy, two (2) times per week for thirty (30) minutes per session; and group (2:1) speech/language therapy, two
(2) times per week for thirty (30) minutes per session (Exs. P-KKK at 3-4, P-R at 8-9, 1112). The student attended during the 2015/16 school year (Ex. P-KKK at 5).
On April 22, 2016, the CSE reconvened to develop an IEP for the student through April 2017. The CSE again recommended that the student receive the majority of his instruction in a 6:1+1 special class in a specialized school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: specialized (door-to-door) transportation; individual occupational therapy, one time per week for thirty (30) minutes per session; group (2:1) occupational therapy, one time per week for thirty (30) minutes per session; parent counseling and training, one time per month; individual speech/language therapy, two (2) times per week for thirty (30) minutes per session; and group (2:1) speech/language therapy, two (2) times per week for thirty (30) minutes per session (Exs. P-S at 3-4, P-KKK at 6). In September 2016, the student was transferred to (Ex. P-KKK at 8).
In March 2017, the DOE conducted a psychoeducational reevaluation at the parent’s request. The student’s cognitive functioning measured within the Moderately Impaired or Delayed range on the SB-V. Likewise, the student’s verbal skills and nonverbal abilities fell within the Moderately Impaired or Delayed range (VIQ: 43; NVIQ 48). On the Social Responsiveness Scales - Second Edition, used to measure autism spectrum disorder symptomology, the student received a T-Score of 69, falling within the Moderate range. On a readministration of the Vineland-II, the student obtained an adaptive behavior composite score of 41 (parent interview), which placed in the Low level of adaptive functioning. As measured by the Woodcock Johnson Tests of Achievement - Fourth Edition, the student’s academic skills (reading, mathematics, and writing) were in the Extremely Limited range for his grade (Ex. P-X).
The CSE reconvened on March 27, 2017 to develop an IEP for the student through March 2018. The CSE again recommended that the student receive the majority of his instruction in a 6:1+1 special class in a specialized (
• school on a twelve
(12) month basis. The CSE also recommended that the student receive related services of: specialized (door-to-door) transportation; group (2:1) occupational therapy, two (2) times per month for thirty (30) minutes per session; parent counseling and training; individual speech/language therapy, one time per week for thirty (30) minutes per session; and group (3:1) speech/language therapy, three (3) times per week for thirty (30) minutes per session (Exs. P-T at 16-17, 19-20, P-KKK at 10). The student continued to receive instruction at throughout the 2017/18 school year (Ex. P-KKK at 11).
From the parent’s perspective, the student is essentially non-verbal, regressing academically and behaviorally, and is increasingly aggressive at home (Ex. P-KKK at 11). At its March 27, 2017 meeting, the CSE stated that the student “is making slow, but steady progress in his current school placement, and chronic, daily, destructive, aggressive behavior evidenced at home is not being seen to such an extent at school” (Ex. P-T at 21). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE conceded that it failed to provide the student with a free appropriate public education for the school years at issue (R. 293).
B. The Parent
The DOE denied the student a FAPE for the 2015/16, 2016/17 and 2017/18 school years. The student’s IEPs for those school years were deficient on both procedural and substantive grounds. The student should be awarded compensatory additional services to remedy the denial of FAPE (Ex. P-KKK).
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 ir. 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 .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); 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).
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. Denial of FAPE - 2015/16, 2016/17 & 207/18 School Years
At the hearing, the DOE conceded that it failed to provide the student with a free appropriate public education for the school years at issue (R. 293). Accordingly, I find that the student’s school program was not designed to address his needs and help him make meaningful progress.
C. Compensatory Additional Services
Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Reg’l Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hourfor-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Id. at 526.
Having previously determined that the DOE failed to offer the student a FAPE for the 2015/16, 2016/17 and 2017/18 school years, I find that the student is entitled to compensatory additional services to remedy the denial of FAPE. Using the credible testimony offered by
, and
, , ,
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, I shall apply a qualitative approach in fashioning a remedy of additional services for the student.
1. ABA Services
, a Board Certified Behavior Analysis-Doctorate Level (BCBA-D),
, BCBA-D, and , a neuropsychologist with training in ABA all testified in support of the student’s need for one-to-one ABA. , and all observed the student in his home as well as at school (Exs. P-C, PD, P-UUU, P-VVV). , who conducted an ABA assessment of the student, recommended that he receive thirty-five (35) hours of one-to-one ABA to be utilized at home and pushed-in to his classroom (Ex. P-C at 7). and agreed with ’ recommendation regarding the student’s need for full-time, one-toone ABA (R. 383, 506-508).
In his March 2017 assessment of the student at home and at school, found that the student was very delayed. The student had trouble forming full sentences, had underdeveloped matching skills, did not have one-to-one correspondence with math skills, and communicated mostly by gesturing and leading (R. 554-555). also found that the student has several presenting issues in the home (R. 556).
noted that the student is non-compliant, does not follow a schedule, needs help with toileting and dressing, and presented with self-injurious behaviors including hitting himself on the sides of his head (R. 557).
With the thirty-five (35) hours of one-to-one ABA, recommended that that the student follow a schedule at home is to increase his independence (R. 57778). Training would start with lot of prompting to help the student follow an afternoon schedule; then the prompting would be gradually faded out until the student could follow the schedule on his own. Once the student made significant progress in the afternoon, then he would be trained to follow a schedule in the morning and then in the evening before bed (R. 578). The final step would be to have the schedules change from pictures with words to only words and still have the student follow them (R. 578-579).
Similarly, in school, the student would follow a token system and schedule in which he is rewarded with tokens or other reinforcers for completing tasks presented to him on the schedule (R. 579). Initially, the schedule would have pictures combined with words, but then it would simply have words. The goal, again, would be to increase the student’s independence.
next recommended that the student receive one hour per month of BCBA supervision so that there would be one person directing the student’s program across settings, providers, and the individuals in his life like his teachers and his parents
(R. 579-80; Exs. P-C at 6-7, P-D at 6-7). Furthermore, the BCBA would monitor the data tracking of the student’s goals and progress and help the ABA provider adjust his treatment as necessary (R. 580; Exs. P-C at 6-7, P-D at 6-7).
The BCBA would also provide two (2) hours per month of parent training so that the student’s parents and the student’s sister could help the student make progress when not in school and not with a provider, and help maintain consistency in his program (R. 580-81; Exs. P-C at 7, P-D at 6-7).
To compensate for the denial of FAPE for the school years at issue, the DOE will be directed to authorize the student’s receipt of a bank of 4,830 hours of one-to-one ABA, BCBA supervision, and parent training (calculated by multiplying thirty-five (35) hours per week, by forty-six (46) weeks, by three (3) school years), to be used at school, home, and the community at the parent’s discretion, provided by a BCBA of the parent’s choosing at a reasonable market rate.
2. Assistive Technology Training
conducted an assistive technology evaluation of the student in September 2017 (Ex. P-MMM). stated that the student requires assistive technology in order to communicate at home and at school (Ex. P-UUU). stated that data contained in the student’s IEPs from 2014 through 2017 demonstrated regression in his communication skills (R. 418, 441).
presented the student with low-tech, mid-tech, and high-tech systems to determine what would best fit his needs (R. 451). When provided with a speech generating device (“SGD”), the student was able to communicate his preferences, such as “I want pretzel,” and answer questions about his likes, such as “I like music,” and communicate social comments, such as “I love you” to his parents (Ex. P-MMM at 3).
found that the student demonstrated the necessary cognitive skills to use a dynamic screen SGD to communicate (Ex. P-MMM at 4). also found that without the use of an SGD, he is unable to fully participate in preferred activities such as talking with his family and peers and commenting on things in the environment while in the community, as a result of his expressive language difficulties (Ex. P-MMM at 3).
To compensate for the denial of FAPE for the school years at issue, the DOE will be directed to authorize the student’s receipt of a bank of forty (40) hours of assistive technology training by a licensed speech and language therapist.
3. Speech/Language Therapy
also conducted a speech and language evaluation of the student in September 2017 (Ex. P-OOO). evaluation and testimony outline the student’s significant delays in expressive and receptive language skills. recommended 690 hours of compensatory speech and language therapy. recommendation is based on the severity of the student’s deficits in several domains, his need for consistency in therapeutic intervention to establish his foundational language skills, and to give him the time in each session to have breaks between tasks while also making sure that a sufficient number of tasks can be completed during a session (R. 436437). advised that ideally the services should be provided in a school setting, but at home or in an out-patient setting if the school is unable to provide the services (R. 438).
To compensate for the denial of FAPE for the school years at issue, the DOE will be directed to authorize the student’s receipt of a bank of 690 hours (calculated by multiplying five (5) hours per week, by forty-six (46) weeks, by three (3) school years) of speech/language therapy to be used at school, home, and the community at the parent’s discretion, provided by a licensed speech and language therapist of the parent’s choosing at a reasonable market rate.
4. Occupational Therapy
conducted an occupational therapy evaluation of the student in September 2017 (Ex. P-NNN). Based on his evaluation of the student, found that the student exhibited severe impairments in developmental skills and a significant sensory disorder (R. 318). recommended that the student receive four (4) fortyfive (45) minute sessions of occupational therapy, at least three of which should be provided individually. recommended that these sessions should ideally be provided in a school setting, but that if the school cannot accommodate the space and equipment, it should be provided in a sensory clinic (R. 325-326).
To compensate for the denial of FAPE for the school years at issue, the DOE will be directed to authorize the student’s receipt of a bank of 16,560 hours (calculated by multiplying 180 hours of service, by forty-six (46) weeks, by three (3) school years; less those hours provided to the student per his IEPs - sixty (60) hours per week, by forty-six
(46) weeks, by three (3) school years) of occupational therapy to be used at school, home, and the community at the parent’s discretion, provided by a licensed occupational therapist of the parent’s choosing at a reasonable market rate.
D. Prospective Relief - Amendment of IEP
To the extent that the parent also seeks an amendment of the student’s IEP to include on a going-forward basis: individual speech/language therapy, five (5) times per week for sixty (60) minutes per session; individual occupational therapy, four (4) times per week for forty-five (45) minutes per session; thirty-five (35) hours per week of oneto-one ABA; two (2) hours per month of BCBA supervision; and one hour per month of parent training (Exs. P-A, P-B, P-KKK), I find that such prospective relief would not be appropriate under the circumstances of this case.
In accordance with its obligation to review a student's IEP at least annually, the CSE should have already revised and developed a new IEP for the student for the 2018/19 school year. See 20 U.S.C. § 1414(d)(4)(A); N.Y. Educ. Law § 4402(2); 34 C.F.R. § 300.324(b)(1); 8 NYCRR § 200.4(f). A CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing a student's needs, and it would be inappropriate to circumvent these statutory processes by suddenly ordering amendments to the student's IEP, especially in the absence of any material evidence regarding the annual review of the student's current needs or services conducted subsequent to the matters under review in this proceeding. See Student X, 2008 WL 4890440, at *16 (noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year").
Moreover, the evidence in the hearing record shows that, to the extent that the CSE may recommend a level of related services commensurate with years past (Ex. P-T at 16-17), those services, in combination with compensatory additional services ordered here and a prospective order directing the DOE to provide additional ABA, speech/language therapy and occupational therapy services, may not be feasible or in the student's educational interests. The appropriate course is to require the parties to come into compliance with the statutory process envisioned under the IDEA and to effectuate equitable relief to remediate past harms that have been explored through the development of an appropriate evidentiary record. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 15-075 at 17 (SRO Sept. 21, 2015). Therefore, the parent's request that the undersigned direct amendments to the contents of new IEPs going forward is denied.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
1. The parent’s claim that the student was denied a free appropriate public education for the 2015/16, 2016/17, and 2017/18 school years is SUSTAINED;
2. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of a bank of 4,830 hours of one-to-one ABA, BCBA supervision, and parent training to be used at school, home, and the community at the parent’s discretion, provided by a BCBA of the parent’s choosing at a reasonable market rate;
3. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of a bank of forty (40) hours of assistive technology training by a licensed speech and language therapist of the parent’s choosing at a reasonable market rate;
4. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of a bank of 690 hours of speech/language therapy to be used at school, home, and the community at the parent’s discretion, provided by a licensed speech and language therapist of the parent’s choosing at a reasonable market rate;
5. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of a bank of 16,560 hours of occupational therapy to be used at school, home, and the community at the parent’s discretion, provided by a licensed occupational therapist of the parent’s choosing at a reasonable market rate;
6. All compensatory additional services awarded her shall be paid for by the DOE by direct payment to the respective providers; and
7. The student and parent shall have four (4) years from the date of the Order to use the services.
All other requests for relief are denied. Dated: September 12, 2018 /s/ Jeffrey J. Schiro
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO THE RECORD
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 6/15/17, 10 pgs.
B. Amended Due Process Complaint Notice/Impartial Hearing Request, 6/27/17, 14
pgs.
C. SETSS-ABA Assessment, 3/24/17, 7 pgs.
D. School Observation Report, 5/15/17, 7 pgs.
E. Curriculum Vitae - , 4/2017, 5 pgs.
F. [Reserved]
G. [Reserved]
H. [Reserved]
I. [Reserved]
J. [Reserved]
K. [Reserved]
L. [Reserved]
M. [Reserved]
N. Individualized Education Program (IEP), 12/19/12, 11 pgs.
O. Individualized Education Program (IEP), 5/16/13, 16 pgs.
P. Individualized Education Program (IEP), 5/14/14, 13 pgs.
Q. Individualized Education Program (IEP), 2/2/15, 13 pgs.
R. Individualized Education Program (IEP), 5/6/15, 13 pgs.
S. Individualized Education Program (IEP), 4/22/16, 12 pgs.
T. Individualized Education Program (IEP), 3/27/17, 24 pgs.
U. Prior Written Notice (Notice of Recommendation), 3/27/17, 4 pgs.
V. IEP Progress Report, 2016/17, 6 pgs.
W. Report Card, 2016/17 (Term 2), 1 pg.
X. Psychoeducational Evaluation Report, 3/15/17, 16 pgs.
Y. Psychoeducational Evaluation Addendum, 3/27/17, 1 pg.
Z. Speech/Language Evaluation, 3/1/17, 2 pgs.
AA. Student Progress Report, undated, 3 pgs.
BB. Student Progress Report, 3/20/17, 2 pgs.
CC. Student Report Card, 2016/17 (Term 1), 1 pg.
DD. Classroom Observation, 3/9/17, 2 pgs.
EE. Occupational Therapy Evaluation, 3/16/17, 7 pgs.
FF. Occupational & Physical Therapy Parent Checklist, undated, 2 pgs.
GG. Vineland Adaptive Behavior Scales Parent/Caregiver Rating Form, undated, 19
pgs.
HH. Social History Update, 2/10/17, 3 pgs.
II. Level 1 Vocational Interview - Parent/Guardian, 2/6/17, 20 pgs.
JJ. Child Sensory Profile-2 Caregiver Questionnaire, 3/12/17, 8 pgs.
KK. Psychological Evaluation, 2/4/10, 11 pgs.
LL. Psychoeducational Report, 1/25/06, 3 pgs.
MM. Social History, 1/25/06, 3 pgs.
NN. Psychological Evaluation, 1/25/15, 5 pgs.
OO. School Work, 2017, 6 pgs.
PP. [Reserved]
QQ. Notice of Committee on Special Education (CSE) Meeting, 1/30/17, 3 pgs.
RR. Request for Reevaluation, 1/30/17, 1 pg.
SS. Letter to from parent, 3/29/17, 1 pg.
TT. IEP Progress Report, 2016/17, 10 pgs.
UU. Letter from parent, 1/29/17, 1 pg.
VV. Letter to parent from , 3/17/17, 1 pg.
WW. OSERS Dear Colleague Letter, 11/16/15, 7 pgs.
XX. NYSAA Website Printout, undated, 5 pgs.
YY. NYSAA FAQ, 9/19/13, 5 pgs.
ZZ. NYSAA Guidance for Students & Families, 12/2014, 2 pgs.
AAA. [Reserved]
BBB. [Reserved]
CCC. [Reserved]
DDD. [Reserved]
EEE. Graduation Requirements for Students Entering 9th Grade in 2015, 5/2015, 16 pgs.
FFF. High School Admissions for Families of Students with Disabilities, undated, 2
pgs.
GGG. Signed Subpoena, 9/19/17, 3 pgs.
HHH. Continuum, undated,[2] pgs.
III. [Reserved[
JJJ. Correlation, undated, 29 pgs.
KKK. Due Process Complaint Notice/Impartial Hearing Request (Case No. 168275),
8/31/17, 16 pgs.
LLL. Letter from , 10/16/17, 3
pgs.
MMM. Assistive Technology Evaluation, 9/16/17, 9 pgs.
NNN. Occupational Therapy Evaluation, 9/25/17, 8 pgs.
OOO. Speech/Language Evaluation, 9/16/17, 9 pgs.
PPP. Report Card, 2016/17 (Term 2),[1] pg.
QQQ. Communication Dictionary Information Form & Vocabulary Selection
Worksheet, 9/16/16, 4 pgs.
RRR. School Work, 2016, 45 pgs.
SSS. Behavior Data & Goals, 2015/16, 8 pgs.
TTT. Resume - , undated, 8 pgs.
UUU. Comprehensive Neuropsychological Evaluation, 9/28/17, 17 pgs.
VVV. Functional Behavior Assessment & Behavior Intervention Plan, 11/2/17, 26 pgs.
DEPARTMENT OF EDUCATION
3. Individualized Education Program (IEP), 4/22/16, 12 pgs. (double sided)
4. Individualized Education Program (IEP), 3/27/17, 23 pgs. (double sided)
5. [Reserved]
6. [Reserved]
7. [Reserved]
8. [Reserved]
9. [Reserved]
10. [Reserved]
11. Classroom Observation, 3/9/17, 2 pgs. (double sided)
12. [Reserved]
13. [Reserved]
14. [Reserved]
15. [Reserved]
16. Psychoeducational Evaluation, 3/10/17, 17 pgs. (double sided)
17. [Reserved]
18. [Reserved]
19. [Reserved]
20. Level 1 Vocational Interview - Parent/Guardian, 2/6/17, 4 pgs. (double sided)
IMPARTIAL HEARING OFFICER
I. Interim Order for Independent Evaluations, 8/29/17, 1 pg.
II. Signed Subpoena, 9/19/17, 3 pgs.
III. Order on Consolidation (Case Nos. 168275 & 166479) IHO Jeffrey J. Schiro,
10/12/17, 4 pgs.
IV. Confirmation of Extension, 9/12/17, 1 pg.
V. Confirmation of Extension, 10/9/17, 1 pg.
VI. Confirmation of Extension, 11/6/17, 1 pg.
VII. Confirmation of Extension, 12/13/17, 1 pg.
VIII. Confirmation of Extension, 1/8/18, 1 pg.
IX. Confirmation of Extension, 2/12/18, 1 pg.
X. Confirmation of Extension, 3/9/18, 1 pg.
XI. Confirmation of Extension, 4/9/18, 1 pg.
XII. Confirmation of Extension, 5/7/18, 1 pg.
XIII. Confirmation of Extension, 6/19/18, 1 pg.
XIV. Confirmation of Extension, 7/5/18, 1 pg.
XV. Confirmation of Extension, 8/13/18, 1 pg.
Footnotes
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses 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 impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 7-8, 142-143, 394-395, 632-633; Exs. IHO-IV - IHO-XV). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[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 engagements 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.
[1] [Reserved]
[2] [Reserved]