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FINDINGS OF FACT & DECISION
Case Number: 166960
Student Name:
Date of Birth:
District:
Hearing Requested By: Parents
Dates of Hearings: March 15, 2019
Actual Record Close Date: March 19, 2020
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 15, 2019
For the Student:
ESQ., Attorney
For the Department of Education:
District Representative
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parents in a due process complaint notice dated June 30, 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 2017/18 school year (Ex. P-A).'[1] 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 (“IHO”’) typically conducts a trial 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)(1)(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5()(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 § 200.5(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 § 200.5g)(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 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] 8 NYCRR § 200.5(k).
Il. PROCEDURAL HISTORY
On July 6, 2017, the DOE appointed the undersigned to serve as the IHO in this matter. See[2]
8 NYCRR § 200.5G)(3)G). The parents moved for an interim order on pendency (Ex. P-A at 10-11).
The DOE did not oppose the parents’ motion (Ex. P-C at 2). In an Interim Order on Pendency, dated April 6, 2018, I directed the DOE to provide the student with: one-to-one ABA therapy in an appropriate 12:1+1 special class program for thirty-five (35) hours per week, with BCBA supervision, or in the alternative, thirty (30) hours per week of one-to-one ABA therapy at home; individual speech/language therapy, three (3) times per week for thirty (30) minutes per session; ten (10) hours per week of individual, after-school ABA therapy provided at the student’s home and special education transportation with limited time travel (Ex. P-C at 6). A hearing on the merits of the matter was thereafter held on March 15, 2019.7 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 § 200.5G)(5)(v).
Il. FACTUAL BACKGROUND
At the time of the June 30, 2017 due process complaint, the student was ( ) years old and has been diagnosed with autism, intellectual disabilities, a seizure disorder, speech and language delays, and an attention deficit hyperactivity disorder (“ADHD”) (Ex. P-A at 2). During the 2017/18 school year, the student attended the (“ ”), a specialized ( ) school operated by the DOE (Ex. P-A at 1). 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, P-F at 1). See 34 C.F.R.[3]
§ 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).*
The student’s educational history prior to the 2017/18 school year, as full set forth in the undersigned’s March 13, 2018 Findings of Fact and Decision in Case No. (Ex. P-B at 5-8), is assumed and will not be restated here.
On March 13, 2017, the CSE convened to develop an IEP for the student through March 2018. The CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class in specialized ( ) school on a twelve (12) month basis. The CSE also
C.F.R. § 300.515(c); 8 NYCRR § 200.5()(5).
8 NYCRR § recommended that the student receive related services of individual speech and language therapy, three (3) times per week for thirty (30) minutes per session, and monthly parent counseling and training (Ex. P-F at 7-8, 11-12).
The March 2017 CSE acknowledged that the student "work[ed] cooperatively with his ABA therapist to complete his classroom assignments" and the team agreed that the student was making progress with his push-in ABA services (Ex. P-F at 2). Nevertheless, the March 2017 CSE declined to include any ABA services on the student’s IEP which the parents attribute to improper internal policies and/or practices which prohibit DOE staff from recommending particular instructional methodologies, including ABA (Ex. P-A at 9). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE conceded that it did not provide the student with a FAPE for the 2017/18 school year and did not offer any evidence at the hearing (R. 9).
B. The Parents
The DOE denied the student a FAPE for the 2017/18 school year. The student was entitled to full-time one-to-one ABA services in-school, with BCBA supervision, along with home-based ABA and speech and language therapies. The DOE should be ordered to authorize the student’s receipt of compensatory additional services to remedy the denial of FAPE (R. 9-11; Ex. P-A).
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 FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, 200.1(zz)(1). 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[4]
U.S. 176, 206-07 (1982).*
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); 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).
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 vy. 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, MH, 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)(Q).
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)()(A); 8 NYCRR § 200.4(d)(2)(i11), 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. Recommended Public Program
At the hearing, the DOE conceded that it failed to offer the student a FAPE for the 2017/18 school year (R. 9). Accordingly, I find in the parents’ favor on that issue.
C. Compensatory Additional Services
The parents seek an Order directing the DOE to authorize the student’s receipt of compensatory additional services to remedy the denial of FAPE during the 2017/18 school year (Ex.
P-A).
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’! 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. Id. at 526.
Given my earlier finding that the DOE denied the student a FAPE for the 2017/18 school year, I now conclude that the student is entitled to compensatory additional services to remedy the denial of FAPE. In the prior proceeding concerning the 2016/17 school year (Case No. ), the undersigned relied on credible testimony of and to determine that the student should receive an increase of in-school, push-in ABA hours to thirty-five (35) hours per week, instead of thirty (30) hours per week, to make adequate educational progress and due to safety concerns (Ex. P-B at 13-18). From July 1, 2017 through March 13, 2018, however, the student only received thirty (30) hours per week of school-based ABA (R. 9).
Therefore, to remedy the denial of FAPE during the 2017/18 school year, the DOE will be directed to authorize the student’s receipt of 180 hours of one-to-one ABA therapy by a provider of the parents’ choosing at a reasonable market rate. The amount of additional service has been calculated by multiplying thirty-six (36) weeks (in the period July 1, 2017 through March 13, 2018)
by five (5) hours per week of service.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1. The parents’ claim that the student was denied a free appropriate public education for the 2017/18 school year is SUSTAINED;
2. For the 2017/18 school year, the student was entitled to receive:
(a) 35 hours per week of push-in ABA ina 12:1+1 program;
(b) in-school related service of speech/language therapy, three (3) times per week for thirty (30) minutes per session;
(c) 10 hours per week of after-school ABA;
(d) a twelve (12) month extended school year program to prevent substantial regression of skills; and
(ec) special education transportation.
3. Within thirty (30) days of its receipt of this Order, the DOE shall authorize the student’s receipt of the following compensatory additional services at public expense:
(a) 180 hours of ABA services from a provider of the parents’ choosing at a reasonable market rate.
Dated: April 2, 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, 6/30/17, 13 pgs.
GO>W
Findings of Fact & Decision (Case No. ) THO Jeffrey J. Schiro, 3/13/18, 20 pgs.
Interim Order on Pendency (Case No. 166960) IHO Jeffrey J. Schiro, 4/6/18, 8 pgs.
Order on Consolidation (Case Nos. 166960 & ) THO Jeffrey J. Schiro, 3/9/18, 3 pgs.
Home-Based ABA Instruction Progress Report, 6/8/16, 10 pgs.
Individualized Education program (IEP), 3/13/17, 13 pgs.
Memo to Central Based Support Team (CBST) Re: Consideration of Students for More
Restrictive Settings, 2/26/14, | pg.
Behavior Data Graphs, 1/2017, 43 pgs.
CBST Response for Consideration of a State Approved Non-Public School, 6/26/13,
1 pg.
J. Home-Based ABA Instruction Progress Report, 8/20/18, 26 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
Footnotes
[1] ‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted
[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 to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ 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. See 34
[3] 34Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision . A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.
[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)(3)(i). The parents moved for an interim order on pendency (Ex. P-A at 10-11). The DOE did not oppose the parents’ motion (Ex. P-C at 2). In an Interim Order on Pendency, dated April 6, 2018, I directed the DOE to provide the student with: one-to-one ABA therapy in an appropriate 12:1+1 special class program for thirty-five (35) hours per week, with BCBA supervision, or in the alternative, thirty (30) hours per week of one-to-one ABA therapy at home; individual speech/language therapy, three (3) times per week for thirty (30) minutes per session; ten (10) hours per week of individual, after-school ABA therapy provided at the student’s home and special education transportation with limited time travel (Ex. P-C at 6). A hearing on the merits of