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FINDINGS OF FACT & DECISION
Case Number: 166731
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 27, 2019
Actual Record Close Date: March 16, 2020
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 27, 2019
For the Student:
ESQ., Attorney
parent
BCBA Staff Trainer/Classroom Supervisor (via telephone)
BCBA Supervisor (via telephone)
For the Department of Education:
Ph.D., District Representative, CSE
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 29, 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[1] education (“FAPE”) during the 2017/18 and 2018/19 school years (Exs. P-A, P-O).!
Whena 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 8§ 200.5(h)-(1).
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(1)(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 (“THO”) typically conducts a trial- ‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as 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)C1)(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(V), (vil), (xi1). 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 § 200.5q)(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 § 200.5G)(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 [HO 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).
Il. PROCEDURAL HISTORY
On July 30, 2017, the DOE appointed the undersigned to serve as the hearing officer in this matter. See 8 NYCRR § 200.5(j)(3)). In an Interim Order dated February 27, 2018, the undersigned directed that the DOE maintain the student at the (the “4 ”) and (“ ”) at public expense until such time as the due process proceedings in this matter are completed (Ex. IHO-I at 6). See 20 U.S.C. § 1415); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). On September 24, 2018, the parent filed an amended due process complaint notice (Ex. P-O). See 8 NYCRR § 200.5(4)(7). A hearing on the merits of the matter was thereafter held on March 27, 2019.* Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; anda list of the documents received into evidence. See 8 NYCRR § 200.5()(5)(v).
Il. FACTUAL BACKGROUND
At the time of the September 24, 2018 due process complaint, the student was ( )
years old and has been diagnosed with autism (Ex. P-O at 1-2). For the 2017/18 and 2018/19 school years, the student received specialized instruction and related services in-school and at home from / , which not been approved by the Commissioner of Education as schools and/or providers with which public school districts may contract to provide special education and related services to student 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 (Ex. P-O at 2).[3]
See 34 C.F.R. § 300.8(c)(1);[8] 8 NYCRR § 200.1(zz)(1).?
Due to his autism, the student displays a variety of interfering behaviors and delays in the academic, behavioral, communication, social, and adaptive domains. He has a short attention span and struggles with generalization of skills. The student also exhibits significant delays in the areas of expressive and receptive language (Ex. P-O at 2).
C.F.R. § 300.515(c); 8 NYCRR§ 200.5()(5). 3 Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age , 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 The student attended the (“ ”*)
from spring 2010, when he was a preschool student with a disability, through August 2015 (Ex. P-O at 2). In the fall of 2015, the parent enrolled the student in the program at the because the student was not making adequate progress in and the travel distance was too far.
specializes in educating children with autism and also offers options for inclusion. ; which is affiliated with the , provides the student with after-school ABA and speech services (Ex. P-O at 4). The student has received specialized instruction and services from / from fall 2015 through the present time.
On or about March 30, 2017, the CSE convened to develop and IEP for the student for the 2017/18 school year (Ex. P-O at 8). At the March 2017 meeting, the CSE told the parent that it lacked sufficient evaluative material to develop an JEP for the student and the meeting was adjourned. No IEP was ever developed for the student for the 2017/18 school year. No educational placement was ever recommended for the student for the 2017/18 school year (Ex. P-P at 9).
On or about March 28, 2018, the CSE reconvened to develop an IEP for the student for the 2018/19 school year. The CSE reportedly recommended that the student receive the majority of his instruction in an 8:1+1 special class in a ( ) school. The parent did not receive a copy of the March 2018 IEP until after the beginning of the 2018/19 school year (Ex. P-O at 9). The parent objects to the absence of a 2017/18 IEP and the contents of the 2018/19 IEP on both procedural and substantive grounds (Ex. P-O at 9-10). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
At the hearing, the DOE conceded that it failed to offer the student a FAPE for the 2017/18 and 2018/19 school years (R. 14-15).
8 NYCRR § 200.1(zz)(1).
B. The Parent
The DOE should be ordered to reimburse the parent, and/or directly pay, for the student’s unilateral placements at / for the 2017/18 and 2018/19 school years on a twelve (12) month basis. The student has made significant progress while placed at / . There are no equitable reasons to withhold or reduce reimbursement and/or direct payment for private educational instruction and services (R. 15-16; Exs. P-A at 9-10, P-O at 11).
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[4]
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); RE. 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); MH. 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).
"TA ]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.4Z., 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 vy. 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)G1); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5G)(4)(i1); 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((3)(E)().
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
USS. 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)(4), 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 JEP 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)(G); 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)(4), (2)G)(A); 8 NYCRR § 200.4(d)(2)(ii1), 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 secking 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. Tuition Reimbursement/Direct Payment 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 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).
1. Recommended Public Program
At the hearing, the DOE conceded that if failed to offer the student a FAPE for the 2017/18 and 2018/19 school years (R. 14-15). Accordingly, I find in the parent’s favor on those issues.
2. Appropriateness of the Given my finding that the DOE failed to provide the student with a FAPE during the 2017/18 and 2018/19 school years, I turn to the appropriateness of the parent’s private program. With respect to the second criterion for an award of reimbursement, a parent must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). A parent seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [dl]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. A parent need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65.
When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Jd. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the credible testimony of Ms. and the parent, I find that the was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs and sufficient support services to permit him to benefit educationally from that instruction (R. 20-60; Exs. P-C, ,P-D, P-E, P-F, P-G, P-H, P-I, P-J, P-N).
The student has attended the since September 2015. His classroom utilized a 2:1 ratio of eight (8) students, three (3) instructors, and one lead teacher. The school day at was a total of six (6) hours. The model of his classroom consisted of five (5) hours of individualized and curriculum based instruction in small and large group formats. As students demonstrated progress, individualized instruction was systematically faded. Opportunities to generalize skills learned through individualized instruction to lessons and activities presented in group formats and contexts were systematically increased. In addition, the student’s day consisted of one hour of a 4:1 ratio during instruction lunch and leisure skills. Data on the student’s performance toward his individualized goals were collected, graphed, and analyzed daily. Progress reports were provided two (2) times per year (Exs. P-D at 1, P-E at 1).
In addition to individualized instruction, the student received speech/language therapy and occupational therapy as related services at school. The student received two (2) thirty (30) minutes sessions of speech therapy in a one-to-one setting, one thirty (30) minute session for speech therapy in a two-to-one session, one group speech therapy session for thirty (30) minutes (.e., in a two-to-one setting), and one thirty (30) minute lunch consultation by a speech therapist. The student also received two (2) thirty (30) minute session of occupational therapy in a one-to-one setting weekly, one occupational therapy group session for thirty (30) minutes weekly (i.e., in a two-to-one setting), and one thirty (30) minute lunch consultation by an occupational therapist. Two (2) sessions of related services per week (i.e., one speech and one OT) were co-treatment sessions with one of the instructors or lead teachers from the student’s class, which functioned to collaborate and coordinate services across multiple disciplines (Exs. P-D at 1, P-E at 1, P-G at 1, P-H at 1, P-I at 1, P-J at 1).
In an effort to support and include families and ensure carryover and consistency between home and school, the program included, at a minimum: a clinical team meeting every eight (8) wecks, one hour per week for parent observation time in the classroom, a home visit twice per year, and a Parent Education Workshop Series once per month. Moreover, the scheduled additional clinical team meetings, parent observations, and home visits, when staff or the parent requested such additional services and/or believed them to be appropriate (Exs. P-D at 1, P-E at 1).
Appropriate goals and objectives were developed by the from the student from parent participation in the program, the student’s history of instruction, and results from a criterion-based assessment, the Assessments of Basic Language and Learning Skills - Revised. At the , the student received instruction in five domains: verbal behavior (receptive and expressive communication), social skills, academic skills, community of reinforcers (leisure skills and reinforcement), and self-management behaviors (Exs. P-D at 1, P-E at 1).
3. Relevant Equities
The final criterion for a reimbursement/direct payment award is that a parent's claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; MC. v. Voluntown Bad.
of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
The IDEA also provides that reimbursement and/or direct payment may be reduced or denied when parents fail to raise the appropriateness of an JEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(i1); 34 C.F.R. § 300.148(d); SW. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); MV. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff'd, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The relevant equities support an award of tuition reimbursement and/or direct payment for the student’s placement at the for the 2017/18 and 2018/19 school years. In a letter dated June 20, 2017, the parent provided adequate prior notice to the DOE of her intent to make a unilateral placement of the student at the at public expense (Ex. P-O at 9). There is also no evidence indicating that the parent was uncooperative with the CSE, see 20 U.S.C. § 1412(a)(10)(C)(qi), nor was the cost of the student’s tuition to the unreasonable, see Carter, 510 U.S. at 16.
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., MC. 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 hour-for-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. /d. at 526.
At the hearing, the DOE conceded that it failed to offer the student a FAPE for the 2017/18 and 2018/19 school years (R. 14-15). Therefore, I find that the student is entitled to compensatory additional services to remedy the denial of FAPE. I shall apply a qualitative approach in fashioning a compensatory remedy of additional services for the student.
1. Home-Based ABA
The student requires systemic instruction and fading of prompts and schedules of reinforcement in order to learn new skills. Generalization opportunities are required in order for the student to demonstrate learned skills across various contexts and environments. Increased practice opportunities and systematic instruction are required to address the global delays that the student exhibits. Verbal behavior and community-based skills present as weaknesses for the student.
Relative strengths remain in some areas of rote academics and self-management, however, he continues to present with deficits that require intensive instruction. The student’s home-based ABA goals were developed following information assessment, collaboration with the parents and collaboration with the school-based team (R. 82-102; Ex. P-R at 7).
Based on the student’s rate of progress and significant deficits, I find that he required, and that the DOE shall reimburse the parent and/or directly pay for, ten (10) hours per week of home-based ABA therapy on a twelve (12) month basis, delivered in a one-to-one setting through the at an enhanced rate, in addition to his full-time ABA-based school placement (Ex. P-R at 7).
2. After-School Speech/Language Therapy
As noted earlier, the DOE failed to offer any evidence in support of its recommended program for the student for the 2016/17 school year.
During the 2017/18 and 2018/19 school years, the student displayed deficits in receptive, expressive, and pragmatic language and play skills (Exs. P-I, P-J). The student received three, fortyfive minute sessions of speech therapy per week through the (Ex. P-L at 7). The student’s after-school speech goals were developed in collaboration with his parents and ABA case supervisor.
His after-school speech therapist collaborated with the ABA team on a regular basis via email, scheduled meetings and co-treatment sessions. The student made progress toward achieving his speech goals during the 2016/17 school year (Ex. P-M at 3).
Based on the student’s rate of progress and significant deficits, I find that he required, and that the DOE shall reimburse the parent and/or directly pay for, individual after-school speech therapy, three (3) times per week for sixty (60) minutes per session, on a twelve (12) month basis, delivered through the at an enhanced rate, in addition to his full-time ABA-based school placement (Ex. P-M at 3).
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 (FAPE) for the 2017/18 and 2018/19 school years is SUSTAINED;
2. Within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parent, and/or directly pay the for all costs, including related services, associated with the student’s placement there during the twelve (12) month 2017/18 and 2018/19 school years;
3. Within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parent, and/or directly pay the , for ten (10) hours per week of one-to-one, after-school ABA therapy, delivered to the student during the twelve (12) month 2017/18 and 2018/19 school years, at an enhanced rate;
4. Within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parent, and/or directly pay the , for individual after-school speech therapy, three (3) times per week for sixty (60) minutes per session, delivered to the student during the twelve (12) month 2017/18 and 2018/19 school years, at an enhanced rate; and
5. As the student was entitled to air-conditioned special education transportation, the DOE shall reimburse the parent for any out-of-pocket expenses associated with said transportation of the student during the twelve (12) month 2017/18 and 2018/19 school years within thirty (30) days of its receipt of adequate proof-of-payment.
All other claims for relief are hereby denied.
Dated: March 30, 2020
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
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 the State Review Officer ("SRO") of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for 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 are available at http://www.sro.nysed.gov.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENTS
Due Process Complaint Notice/Impartial Hearing Request, 6/29/17, 11 pgs.
TAOmZNMEOAWrSK
Findings of Fact & Decision (Case No. ) THO Jeffrey J. Schiro, 11/15/17, 19 pgs.
Functional Behavioral Assessment & Behavior Intervention Plan, 3/2018, 9 pgs.
Educational Progress Report, 1/2018 — 6/2018, 8 pgs.
Educational Progress Report, 7/2018 — 12/2018, 6 pgs.
ABA Progress Report, 12/2018, 6 pgs.
Occupational Therapy Progress Report, 1/2018 — 6/2018, 7 pgs.
Occupational Therapy Progress Report, 7/2018 — 12/2018, 5 pgs.
Speech/Language Progress Report, 1/2018 — 6/2018, 4 pgs.
Speech/Language Progress Report, 7/2018 — 12/2018, 3 pgs.
Speech Goals & Progress Report, 6/28/18, 6 pgs.
ABA Goals & Progress Report, 6/29/18, 8 pgs.
Speech Therapy Goals & Progress Report, 12/22/18, 4 pgs.
Functional Behavioral Assessment & Behavior Intervention Plan, 9/2018, 9 pgs.
Amended Due Process Complaint Notice/Impartial Hearing Request, 9/24/18, 12 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Interim Order on Pendency (Case No. 166731) IHO Jeffrey J. Schiro, 2/27/18, 7 pgs.
could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.
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 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. 103-104). See 34
[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
[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 § 200.5(j)(5).