New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 504278 - NYC: 166592

DECISION ORDER

Case Number: Student's Name: District:

Hearing Requested By:

Hearing Officer:

166592 redacted redacted

Parent

Martin J. Kehoe Ill, Esq.

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (!HO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student. I was appointed as the Impartial Hearing Officer on July 13, 2017. A pendency hearing was held on July 24, 2017 and August 8, 2017; I issued a pendency order on July 24, 2017 and a corrected pendency order on August 31, 2017. (Ex. Q) A hearing was held on August 30, 2017; February 8, 2018; March 13, 2018; May 9, 2018; May 31, 2018; August 1, 2018; September 25, 2018; September 26, 2018; October 3, 2018; October 10, 2018; November 7, 2018; December 4, 2018; December 5, 2018; December 12, 2018; January 29, 2019; January 30, 2019; February 7, 2019; and March 6, 2019. I issued an interim order for independent educational evaluations (lEEs) on September 18, 2017. (Ex. R) The results of those evaluations are in the record as exhibits1

Parent's Position The Parent filed a complaint notice dated June 23, 2017 alleging that the District denied the Student a free, appropriate public education (fAPE) for the 2015-20162 and 2016-2017 school years. (Ex.

A) The Parent filed a second complaint notice on May 8, 2018 alleging that the District denied the Student a FAPE for the 2017-2018 school year. (Ex. UUU) The complaint notices were consolidated on May 10, 2018. (Ex. VVV) The Parent is seeking a new IEP; compensatory education services; and independent educational evaluations3 • (Ex. A, Ex. UUU)

District's Position The District's position is that they provided the Student with a FAPE for the 2015-2016; 2016- 2017; and 2017-2018 school years. It is also their position that the 2015-2016 school year was litigated and the Parent received the rcmedy4; therefore, that year should not be considered in the current complaint notice (T. 59).

Student History

At the time the initial complaint notice was filed, the Student was redacted (Ex. BB) The Student has diagnoses of Autism Spectrum Disorder, level three; REDACTED. (Ex. BB) The Student has also been diagnosed with Central Auditory Processing Disorder and Auditory Comprehension Disorder. (Ex. LLL) The Neuropsychologist who evaluated the Student noted that "[The Student] presented with a complex combination of attention, expressive language, comprehension, and social-pragmatic deficits that have a direct impact on his ability to complete tasks independently within the classroom setting. He struggled

(''SY" ). The Parent persists in her pursuit of the unresolved claim for compensatory relief by the lime period between the IEP meeting that took place on October 16, 2015 and the date of the resolution agreement (two months). See complaint notice pp.10-1 I; see also Ex. MM (October 2015 IEP) and Ex. C. Ultimately, I fmd for the Parent on this issue ai1d the reli e f is subsumed in the final order without differentiation.

3 The issue of IEEs was addressed by interim order " RR"

4 See footnote two (2) above, that identifies and distinguishes the resolution agreement from /2015 from a period not covered by the resolution agreement. l concur with the District that the Resolution satisfied the claims considered therein and any implementation issues regarding those issues are outside ofmy jurisdiction. to complete academic tasks in an age-appropriate manor, both due to a combination of underlying language and learning deficits. [The Student] also presented with pragmatic language weaknesses that effected his ability to express information." (Ex. III) The Occupational Therapist who evaluated the Student wrote that he "presents with significant visual perceptual processing and motor delays, fine motor delays, and delayed activities of daily living that impact functional skill development and acquisition in multiple domains-academic, social, community, and home." (Ex. JJ) The Student presents with receptive and expressive language delays (Ex. N).For a more particularized view of the Student see below and the recommendations in the record.

Background of the Case

2015-2016 School Year

A Committee on Special Education (CSE) meeting was held for the Student on October 16, 2015. The Teacher Assigned to the CSE testified about her participation in the Student's CSE meetings, starting in the 2015-2016 school year. Cr. 136,139) She remembered that the Parent wanted home services for the Student. CL 139-140) She said the CSE did not support the request for home services because the recommended Non-Public School (NPS) was working on the same goals. (T.

141) The Parent testified that the District representatives at the meeting "were not receptive to any documentation from the home service providers" and told her that the NPS could meet all the Student's needs (Ex. QQQ). The parties reached a partial resolution agreement and the Student received occupational therapy, physical therapy, speech language therapy, and vision therapy5 two times per week each, after school until. Tune 29, 2016. The home services ended in June 2016, per agreement (Ex. QQQ, Ex. C)

5 A provider was not secured. (Ex. QQQ) See FNs 2&4 above.

2016-2017 School Year

A CSE meeting was held for the Student on October 25, 2016. The IEP Team recommended ending afterschool home-based services (Ex. 1, Ex. 14). The Parent testified that she submitted reports from the home-based providers. She said that when the team asked if they wanted them to call the home service providers, she said they could call if they had any questions. According to the Parent, the CSE Team said the reason the home services were terminated was because the school can "meet all his needs". On January 12, 2017, the Student had bilateral tendon relief surgery and spent 35 days in a residential rehabilitation facility. The Parent testified that the Student received some instruction at the facility, but it was not sufficient and he experienced regression in his academic and functioning skills (Ex. QQQ).

The Teacher Assigned testified that during the October 2016 CSE meeting, the Parent again requested home services for the Student. (T. 153) She said the CSE still had the opinion that the home services were not needed because the school was working on the same goals. The NPS staff did not give an opinion about the issue. (T. 155) The Teacher Assigned said they added assistive technology to the IEP, but not home services. (T. 166-167)

The School Psychologist testified that she participated at the Student's CSE meeting, which was held as an annual review, and to address the assistive technology referral. (T. 208) She said the Parent asked to send a fax of the home services report to the CSE during the meeting, (T. 225-226) and they read the reports. CL 221-222) She spoke of goals that are "programmatic-" skills that are worked on during the school, but not necessarily as a specific goal. (T. 230-231) The School Psychologist said that the NPS assistant principal was not open to discussing the Student's needs. ("f. 237,239) She stated the District's position: "Our job is to make sure the school program meets the needs." (T. 240) Regarding outside services, she said, "you know, if we're not meeting a child's needs in school, okay, then let's look outside, but if we're meeting a child's needs in school..., isn't that our responsibility as an educational institution?" (T. 249)

The Teacher Assigned co-chaired the CSE meeting with the School Psychologist in the role of the Special Education Teacher. (T. 299) She said it is the District policy for two members of the CSE to be at the meeting for cases in litigation. (T. 299) When asked about the recommendations for continuing home physical therapy, she said the CSE team's response was that the school was working on the same goals. (T. 315) When asked if the CSE Team looked at the recommendations from the home PT Provider, she responded, "they always ask for more PT." (T. 322) She explained the CSE Team's process of developing an IEP "... [The NPS] providers include everything into a draft IEP, and the goals are there which we review, and then we looked at the outside providers and made sure that these goals were addressed in the IEP. (T. 328) She testified that the NPS assistant principal and the School physical therapist did not want to discuss the home services PT report. (T. 334) According to the Teacher Assigned, at the meeting, the assistant principal told the physical therapist not to comment about range of motion for the Student. (T. 335) She said the CSE reviewed the home provider report's goals but did not change the goals. (T. 356)

The School Psychologist offered a similar testimony about the reason for not recommending home based services testified that the CSE's role is to identify and address the Student's needs. (T. 517) She said they look at the school and home services reports to identify the goals that address the problem. (T. 517-518) She said if the home providers identify a goal, that the school-based did not, they discuss it to see if the school sees it as an issue. "So, if the school doesn't see the issues, there's no point in the goal... But just because anyone offers a goal,... it doesn't mean it becomes, you know, a goal." (T. 518-519) She said if there was in issue of whether a school-based program is insufficient, then they would consider whether the school program is meeting the student's needs. She explained that the problems at the meeting were caused by the Assistant Principal who did not want to discuss the Student's needs. (T. 538-539) She said that some physical therapy skills were addressed programmatically, (T. 547) and that the activities of daily living skills were also addressed "programmatically." (T. 547)

2017-2018 School Year

A CSE meeting was held for the Student on December 5, 2017. (Ex. 15) The Teacher Assigned testified that she was present at the meeting because the case was still in litigation and her role was to offer support and review the goals. (T. 396-397, T. 453) This meeting was a re-evaluation and an annual meeting. (T.400) The Team had a draft IEP from the NPS at the meeting. (T. 408) She testified that the NPS provided a draft IEP prior to the meetings for each of the school years. (T.

414) She said the goals provided by the home speech and language provider "matched what was in the... school or were not appropriate... " (T. 416). She added one goal. (T. 417) Regarding the denial of home-based related services, she said,"... this school has... PT and OT and so forth. So, the goals are met in school." Cl'. 442) She continued, "we think the level of FAPE being an appropriate public education is offered... in a mandate that's appropriate at school already." (T.

443) She later explained the District position, "... the school was doing -- completing the goals that the home providers were completing... And as far as carry over for home, like, l feel that's above a level of appropriateness... it's above the level of the District obligation of providing an appropriate level of service." (T. 456-457)

The School Psychologist 2 who participated at the December 5, 2017 CSE meeting (different from previous years School Psychologist), testified that they looked at the Student's current IEP and the draft IEP by the School, the teacher report related service providers report and the home report for PT from the Parent, (T. 570-571) (although she did not have any independent recollection of the meeting). (T.564) Assistive technology was added to the IEP. ('f. 574) The Parent testified that she told the team the Student needed his own wheelchair. She offered the assistive technology evaluation to the team, but one of the District representatives told them that she should send it to them later. The Parent said she expressed her concerns about the Student's safety-related behavior, but there was no plan to address it (Ex. QQQ). In the summer of 2018, the Student's therapy mandate was decreased. The Parent testified that he regressed significantly and can now barely walk and bas muscle spasms. According to the Parent, the Student was not provided with the AT equipment that he needed at home. (Ex. QQQ)

Recommendations Physical Therapy The Home- Based Physical Therapist testified about his affidavit. (Ex. HH) He recommended a twelve-month program in an outpatient setting, because he believes that the amount of time in PT services at school is not sufficient to address the Student's impairments. I le said the setting could be school-based or a sensory gym for pediatrics. (T. 636-637) Ile said it is important for the Student to have a customized wheelchair, cushioned seating, and leg rests. (T. 639) In a school setting, his head position would affect his learning and his social skills because he needs to be able to keep his head up to interact with his classmates and teachers. (T. 639-640) He recommended a positional stander and a gate trainer. (T. 644-645, T. 650) He said that the rented wheelchair at home is not helpful for the Student's positioning. (T. 651) He described how the Student's physical problems effected his education. For example, the Student's head posture would affect breathing, feeding, swallowing, make him unable to interact with peers, attend to lessons and activities, or work at a computer. (651-652 He added, there could even be issues with the Student's compliance, and he has to be transferred back into the wheelchair and brought to class. ('f. 655-656) He said the Parent doing stretching exercises with the Student could not be a substitute for home-based PT, as there are many other areas to be worked on, the Student needs lo have a skilled professional lo show the Parent what to do and there are "constant modifications that need to be made." (658-661)

The Owner / Clinical Director of the Physical Therapy Agency who evaluated the Student recommended a twelve month program to prevent regression; physical therapy 3x30 per week at school and 2x60 in an out patient facility or sensory gym setting for the 2017-2018, and 2018- 2019 school years. The Clinical Director also recommended an appropriate wheelchair and custom/ adaptive seating and positioning assessment and at home-positional stander, a gate trainer, and appropriate mobility device in the home (Ex. HHH).

Neuropsychologist The Neuropsychologist testified that he diagnosed the Student first by his history, and by administering the GARS-Parent Rating Scale and the ADOS-Direct Assessment of the Student's skills and behavior. (T. 686) He said the Student's temporary wheelchair is in poor condition and the back of the Student's chair collapses when he stiffens his body, and he goes into a reclining position. (T. 691-692) He said the Student needs assistive technology because of his fine-motor challenges and he could use it to help him achieve more academic goals and be independent. (T. 693-694) The Neuropsychologist recommended maintaining the Student's current classroom placement and fifteen hours per week of ABA to be supervised by a BCBA: parent training; continuation or occupational therapy, physical therapy, and speech language therapy; and assisted technology evaluation; and gave specific recommendations regarding attention and distraction including a structured behavior intervention plan (Ex. III). He recommended ABA for giving the Student independent behavior and pre-requisite skills for learning and reducing negative behavior. (T. 705) He recommended fifteen hours of ABA to be given as one hour a day at school and two hours a day at home. He said that language is the area that has the greatest possibility of improvement. He added that by improving the Student's language skills, it will allow him to access other academic skills. (T. 699-700) Academically, the Student is functioning on a kindergarten level or lower. (T. 701) He said the two reading goals are not sufficient. The Student needs "really structured phonological processing intervention" and to work on sound-symbol association. (T. 703-704)

Occupational Therapy The Occupational Therapist who evaluated the Student recommended individual occupational therapy five times per week for sixty minutes after school "to remediate delays, facilitate new skill acquisition and efficiency, address central nervous system sensory threshold concerns, increase generalization of functional skills and assist with ongoing assessment of needs for assistive technology, adaptive equipment, and wheelchair mobility. (Ex..T.T.J)

Auditory Processing The Speech Language Pathologist/Audiologist who evaluated the Student recommended classroom and testing accommodations, an FM system, an extended school year, specific software, support for postural positioning to assist in feeding and speech and language, and reevaluation in one year. (Ex. LLL)

Speech Language Therapies

AT provider The Speech Language Therapist/ AT Provider who evaluated the Student recommended changing the District hardware to match the technology the Student uses at the School; a full size iPad with a set of applications to develop literacy skills; blue tooth keyboard; wireless noise canceling headset; access to an air printer; specific application; 110 hours per year of AT services: two hours per week of AT provider direct and indirect home services for twelve months per year ( l 04 hours per year); six hours to participate in the Students IEP and / or annual goal review; and all the recommendations (Ex. X) in the 2017 assessment. (Ex. KKK)

Speech Language Pathologist The Speech Pathologist recommended individual s/1 therapy 5x 60 minutes per week to remediate delays and increase acquisition and generalization of functional skills. Also recommended are 2x 60 minute weekly feeding therapy for independence with feeding.(Ex. AA)

ABA

The BCBA-D who conducted the Student's independent ABA assessment testified by affidavit "[The Student] requires individual intensive home-based ABA instruction for fifteen hours per week to extend skills that are worked on at school to the home." The instruction should be supervised by a BCBA or a BCBA-D for an additional two hours per week and implemented by a registered behavior technician. She also recommends a VB-MAPP Assessment; a school-and home-based Functional Behavior Assessment (FBA) by a BCBA or a BCBA-D; at a Behavior Intervention Plan (BIP) to be implemented at home and at school with two hours per week supervision of its implementation in both settings by a BCBA or a BCBA-D; a functional communication training to be implemented by the BCBA / RBT in the home in collaboration with the Student's speech language therapist at school; an individualized token economy as part of the BIP and individual home-based parent training-counseling. (Ex. MMM)

Legal Background The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education ("FAPE"). 20 U.S.C. § 612(a)(I). "A [FAPEJ is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a)(l)(A). The IDEA defines a FAPE as special education and related services that:

• • have been provided at public expense, under public supervision and direction, and without charge,
• • meet the standards of the state educational agency,
• • include an appropriate preschool, elementary, or secondary school education in the state involved, and
• • are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).6 6 "Special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, tu meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education.

A FAPE is crafted through the collaboration of the disabled student's parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The "core of the statute... is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education ("CSE"), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law§ 4402(1)(b)(I) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an "impartial due process hearing" in which parents of disabled children have "an opportunity to present complaints with respect lo any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child." 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478,482 (2nd Cir. 2002).

The term "related services" is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

In New York State, "lt]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing... "

N.Y. Educ. Law§ 4404 (l)(c), modifying the rule enunciated in Schaffer where "[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief." Schaffer, 546 U.S. at 537.

Analysis

Substantive Standard The purpose of IDEA is to provide students with a "basic floor of opportunity" of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA nor Article 89 of the New York State Education Law requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services or match those services requested by a parent. Application ofa Child With a Disabilily (City School District of Bujfalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Mimi. l 998)(citing Rowley).

This straightforward obligation of the District is underscored by the obligation to demonstrate the appropriateness of the program recommended by its CSE. To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits. Ed of Educ. v. Rowley, 458 U.S. 176 (1982). The recommended program must also be provided in the least restrictive environment. 34 C.F.R. § 300.550(b); 8 NYCRR 200.6(a)(l).x

"basic floor of opportunity" The District did not demonstrate that it provided a FAPE to the Student for the years in question. The Student's progress reports, and independent evaluations support his need for after school services. It is recognized by IDEA that some students may need more services than can be provided during the school day. See Mr. & Mrs A. ex rel. A. v. Hartford Ed of Educ., 11----CV-138l(GWC), l 1----CV- 143l(GWC), 2016 WL 3950079, at 13-15 (D.Conn. July 19, 2016) (reversing and remanding IHO's denial of homebased services: "the IDEA recognizes that 'related services" maybe 'required to assist a child with a disability to benefit from special education,' quoting 20 U.S.C, §1401(26); Mrs. R. v. Milfhrd Bd of Educ., 103 F.3d 1114, 1122 (2d Cir.1997). The CSE team failed to include the Student's home­ based providers at the meetings; if they had been included, the CSE could have questioned them about their recommendations for continuing the home-based services, instead of concluding that they were unnecessary without any documentation that that was the case.

The chorus of recommendations leads to the conclusion that a home based program is not only appropriate but is necessary in this case. The Physical Therapist said the amount of physical therapy time the Student has is insufficient to address all of the Student's different impairments. The BCBA-D testified:"lThe Student] requires individual intensive home-based ABA instruction.(Ex.MMM) The Ncuropsychologist recommended 15 hours per week of ABA, five at school and ten delivered at home (Ex.s. BB; 111, & T. 699-700).

"maximize the potential vs. prevent regression"

Many of the goals in the IEPs were not appropriate or measurable. The District did not make appropriate changes to the draft IEPs so that the goals would be measurable and not duplicates of previous year goals. See 20 U.S.C. §1414(d)(l)(A)(i)(III); 34 C.F.R. §300.320(a)(2)-(3); N.Y.C.R.R. §200.4(d)(2)(ii). The

IEPs had to specify "evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal." N.Y.C.R.R. §200.4(d)(2)(iii)(b). FAPE is denied when, as here, goals are too advanced, not measurable and insufficient to address the areas of need. M.H. v. Department of Education, 685 F.3d 217 (2d Cir. 2012). Many of the goals on the 2015-2016, 2016-2017 and2017-2018 IEPs were either identical or substantially similar. During the hearing, the Parent testified, "His goals are the same over the years, and every year they read through the home services goals and dismiss them by saying they're the same as the school goals, and therefore he doesn't need services outside of school." (Ex. QQQ)

The Teacher Assigned during the 2016-2017 CSE meeting stated: "at every IEP meeting for [The Student], we have gotten home reports. We have looked over the home reports, and the goals from the home providers and, made sure that the goals were also addressed in school... He does not qualify for home services as the school is addressing his needs and the same goals." (T. 369)

The Parent, however, testified that the Student regressed without the home-based services; for example, he struggled with typing, holding a pencil, and sitting up in his seat (Ex. QQQ). Likewise the Speech Pathologist spoke of 'remediating delays" This was also consistent with the opinion of the Owner/Clinical Director of the Physical Therapy Agency who recommended a twelve month program to prevent regression by the Student (Ex. Z)

·"The fact that a residential placement may be required to al1cr a child's regressive behavior at home as well as within the classroom. or is required clue primarily to emotional problems. does not relieve the state of its obligation to pay for the program under federal law so long as it is necessary to insure that the child can be properly educated. See lvfcKenzie v. Smilh 248 U.S. App. D.C. 387. 771 F.2d 1527 (D.C. Cir. 1985) (requiring state to fund residential care for child wi1h severe emotional disabilities, where [**27] child required highly structured environment in order lo karn). If institutionali7.ation is r0quired due to a child's emotional problems, and 1hc child's emotional problems prevent the child from making. meaningful educational progress, the Act requires the state to pay for the costs of the placement. Id al 1534: Ahr1.1hamso11. 701 F.2d at 228. See also Vcmder Mc,1/e, 667 F. Supp. at I 039 ("As long as the child is properly educable only through a residential placement. when 1hc medical, social or emotional problems tha1 require hospitalin1tion crca1c or are imertwincd with the cclucational problem, the states remain responsible for the costs of the residential placement."). As the Third Circuit reasoned, "the concept of education is necessarily broad with respect to [such childrcnj." Kn1elle v. New Castle

County Sch. Dist., 642 F.2d 687. 693 (3d Cir. 1981). "Mrs. B. v. Mi(ford Bd. of Educ., 103 F.3d 1114, 1122 (2d Cir. 1997)

The Speech Language Therapist/AT Provider emphasized that District hardware was not consistent with the technology Student uses at the School. (Ex. X) According to the Physical Therapist, carry over of skills is the most important issue because "i r there is no repetition... you'll lose that skill...". He further explained that more repetition reinforces the skill and makes it a habit that would carry over into the home. Cf. 653)

Procedural Standard

Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R.

§§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with "extensive procedural rights and safeguards" in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); JG. v. Board of Education of the Rochester City Sch.

Dist., 830 F.2d 444,445 (2d Cir. 1987).

The United States Supreme Court has made it clear that the Act's procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998). Rather, the formality of the Act's procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act's procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id.

For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982), that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held, "... the importance Congress attached to these procedural safeguards cannot be gainsaid." 458 U.S. 176.

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student's right to a free and appropriate public education, 2) significantly impeded the Parent's opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y..Tan. 9, 2007), Application ofa Child with a Disability, Appeal No. 07-007.

"Procedural Problems" The District failed to re-evaluate the Student before removing after-school home-based services. (Ex. QQQ) A district's failure to reevaluate a child prior to making a significant change in the IEP services under Section 504 or the IDEA will annul the proposed change. See, e.g. Application ofa Child with a Disability, Appeal No. 99-041 (CSE's failure to perform au adequate evaluation or a child prior to recommending a change of placement may afford a basis for annulling that recommendation). Herc it appears, the District had never conducted an SLT, PT or OT evaluation of the Student, and his last psychoeducation evaluation was in 2012 (Ex. W).

Despite the Student's needs, the CSE failed to recommend an FBA or BIP during the 2015- 2016 school year to address the Student's behavior issues and did not recommend an assistive technology device. The IEP for the 2016-2017 school again did not recommend an FBA or BIP, and the District failed to consider the Student's progress with home-based services. The IEPs for the 2017-2018 school year also failed to address many areas of need for the Student, including his behavior, difficulties with activities of daily living, and need for assistive technology. Although the independent AT evaluation was available to the team during the meeting for the 2017-2018 school year, they failed to review it. When the Parent tried to give the evaluation to the CSE team, she was told that she was supposed to provide evaluations seven days before a meeting, and lo send it later. (Ex. QQQ)

The District did not fulfill their responsibility for developing the Student's IEPs. Instead, they allowed the non-public school to draft all the IEPs prior to the CSE meetings. For example, Teacher Assigned testified that she did not draft any of the IEP goals, as the goals were drafted by by the non-public school (T. 408) (except for a speech goal) er. 416). 34 C.F.R. §§300.146, 300.325(c) (stating that "[e]ven ifa private school or facility implements a child's!EP, responsibility for compliance" with the IDEA "remains with the public agency and the SEA"); see al\'O St Johmhury Acad v. DH, 240 F.3d 163, 171 (2d Cir. 2001) ("IDEA applies only to the State and other public agencies, not to private schools in which public agencies may place children.").

In addition, the District failed to include the Parent's input in the drafting of the IEPs, as they had already been drafted by the non-public school before the CSE meetings. For example, the CSE Teacher Assigned did not know whether the Parent was provided a draft of the IEP before any of the CSE meetings at issue in this case. (T. 415-416) The Parent testified, "At the IEP meetings I feel like they don't address my concerns. They just document them" (Ex. QQQ).

There are a number of substantive violations and procedural errors in this record that cumulatively constitute a denial of FAPE. For the above reasons, I find that the District denied the Student a FAPE for the 2015-2016; 2016-2017; and 2017-2018 school years. I therefore, rule for the Parent.

Compensatory Education

Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a "form of damages" because the courts act in equity when remedying IDEA violations and must "do equity and... mould each decree to the necessities of the particular case") (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (I 944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].

Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation 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 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Ed. of Educ., 175 F. Supp. 2d 375,387 LN.D.N.Y. 2001].

Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][l][B]; Educ. Law§§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there ha been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d al 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act lo make up for denial of a [FAPEJ"]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]).

Likewise, SROs 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 (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon tl1e school district's failure to provide those educational services to the student during home instmctionl; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disabiliiy, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application <Jfihe Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:I speech-language therapy in compensatory additional services]).

In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial ofa FAPE]; see also Reidv. Dist. of Columbia, 401 F.3d 516,524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed lo ensure that the student is appropriately educated within the meaning of the IDEA"]).

Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Jndep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation or the Act"]; Ed. of Educ. v. L.M, 478 F.3d 307,316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour­ by-hour compensation award, is more likely to address [the student's! educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of!DEA"];_Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 l"Therc is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application ofa Student wilh a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014.

I have reduced requested award regarding the requested compensatory education for three reasons. One, I am confident in the CSE and their ability, guided by the Neuropsychological Evaluation and the other evaluations in this record and developed over time, to make good decisions about the Student's needs and related services going forward. (Based upon the testimony from the District witnesses it appears that the reluctance to provide the home program was a combination of the reticence of the witnesses from the NPS and the mistaken belief that a home program" (She said the CSE still had the opinion that the home services were not needed because the school was working on the same goals. The NPS staff did not give an opinion about the issue. er. 155)) Two,

I am persuaded by testimony that the Student's placement in the proper learning environment, called for in my order (the existing NPS), will enable the Student to make progress. Three, I recognize there are a finite number of hours per week, and the demands of the Student's school year along with significant hours of tutoring and related services, may be daunting. Inherent limits of stamina, pace, concentration and the like could easily place an unintended burden on the Student and the family. I attempt to mitigate these unintended consequences with my order.

In conclusion, I issue the following orders:

It is therefore ORDERED

That a FAPE was not provided during October to December of the 2015-2016 school year, the 2016-2017 school year and the 2017-2018 school year.

• • the District shall pay for or reimburse the Parent for any travel she needs to include to transport the Student to services should that be necessary.

The District shall fund an independent swallow study.

Remand this matter to the CSE to develop an IEP which includes the following7:

Placement at the Private School (H.V.) with an extended year program; in-school related services of PT 3x30/week. (1:1), OT 3x30/week. (1:1), SLT 3x30 /week. (1:1), SLT consultation lx30 per month (1:1), Skilled Nursing Services (5xl 0) (1:1), teeding therapy (1:1) 2x60/week, vision therapy 2x30/week (1:1), and a 1:1 full time paraprofessional to assist with toilet training, feeding and mobility training and safety; Individual, intensive home-based 1:1 ABA instruction for 5 hours per week supervised by a BCBA or BCBA-D for an additional 2 hours per week implemented by a Registered Behavior Technician (RBT) by a provider of the Parent's choosing.

After-school/Home-based related services of SLT of2x60/week (1:1), OT 2x60/week (1:1), and PT 2x60/week (1:1) at reasonable market rates by qualified providers of Parents choosing; Air-amditioned bLL and limited travel time not to exceed 45 minutes with a car seat, door-to­ door transportation, bus attendant and a vehicle with a lift;

AT supports and equipment per the recommendations of the independent AT evaluator

A home and school-based gait trainer and stander;

A permanent wheelchair;

AT training for the Student, his Parents and the Private School and related services staff;

Individual, intensive home-based 1:1 ABA instruction for 10 hours per week supervised by a BCBA or BCBi\-D for an additional 2 hours per week implemented by a Registered Behavior Technician (RBT) by a provider of the Parent's choosing8;

The BCBA or BCBA-D should conduct a school- and home-based Functional Behavior Assessment (FBA) to determine the likely function of,interfering behaviors;

The FBA and consequent Behavior JnteIVention Plan (BfP) must be implemented across the home and school settings, with recommended supervision of the implementation of a BIP in both settings by aBCBA or BCBA-D for an additional 2 hours per week, initially;

FllllcrionaJ Communication Training (FCT) in order to more appropriately request preferred items or activities, and to express anxieties. PCT may be implemented both by the BCBA/RBT in the home, in collaboration with the Student's speech language therapist at school; Individual, home-based Parent Tmining to a,;;sist Parent in learning those effective skills for improved behavior management in the home and community seUings; after-school/home-based 1:1 special education teacher support. to work on homev,urk hdp and remediation; cla,<:,room and tes1ing accommodations need to include: preferential seating; extended time for testing; given in a quiet area, pre-teaching, study notes and guides ahead of lessons, a word bank;

FM System (personal unit) to address his poor discrimination and enhance his listening skills;

Teach self-advocacy skills to ask for repetition, clarification and slower presentation of information, when needed;

Toileting Training services and; Mobility training

Compensatory education to make up for school years 2015-2016. 2016-2017 and 2017-2018 The services should include but not be linlited to the following services delivered at home by private providers at a reasonable market rate or, at the Parent's option, delivered and ammged lor hy the DOE:

Feeding Therapy- a bank of 276 hours (2 hours / week x 46 weeks x 3 years= 276);

Assisted Equipment, Services and Software - a bank of 105 hours/ year x 3 years for an A I· Provider (A71>) at reasonable market rate of direct and indirect home services for tech set-up, problem-solving and Parent training and interacting v. th related service providers und education suppo1t services are coordinated across home and school.

The bulk of homs should be used to develop and refine home ba,;;ed AT program that has been neglected over several years and denied him access to his full curriculum and methodologies he needed to progress. five hours should be used to participate in IEP development and review;

ABA - a bank of 5 hours per week x 46 x 3 = 690 ABA instructional hours to be divided between home and school at the providers discretion;

ABA supervision by a BCBA 1 hours per week x 46 x 3 = a bank of 138 hours; Parent training/ counseling for behavior intervention l hours per week x 46 x 3 = a bank of 138 hours;

Vision Services - a bank of 1 hours per week x 46 x 3 = a bank of 138 hours;

Physical Therapy -The District shall determine missed related services of PT, OT and SIL and set up a bank of hours in a 1-1 correspondence to be utilized at the discretion of the providers and the parent

Compensatory hours shall not expire for at least three SYs from the date of issuance of the Order The Parent should be reimbursed, indemnified, and made whole for any actual or accrued costs associated with provision of education and services to the child during the time in question, including but not limited to reimbursement for transportation, related services, intensive PT, and evaluations; she will be permitted to submit receipts to the Implementation Unit upon request.

-

Da -

Martin Kehoe, Esq. Impartial He ing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the lndividuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention lo seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms arc available at http://www.sro.nvsed.gov.