New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 167146

NYS Identifier Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date(s) of Hearing: July 12, 2017; October 18, 2017; May 30, 2018; September 26, 2018

Actual Record Close Date: August 9, 2019

Hearing Officer: Amy Lynne Itzla, Esq.

FINDINGS OF FACT AND DECISION

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding The hearing was convened at the written request of the Parent by letter dated July 3, 2017. (Exhibit A) A hearing was held on July 12, 2017; October 18, 2017; May 30, 2018; and September 26, 2018, at the Department of Education (“DOE”) offices located at 131 Livingston Street, Brooklyn, New York. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.

In scheduling the hearing date, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R.

§300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

BACKGROUND

is a diagnosed with autism. During the 2016-2017 school year, he attended a District 75 program referred to as 75 Q. 993. The Parent requested an impartial hearing for the 2016-2017 school year, which resulted in the Findings of Fact and Decision of , Esq., dated December 20, 2016. (Exhibit B). IHO ordered, in part, that the DOE provide 30 hours per week of school-based one-to-one (“1:1”) Applied Behavioral Analysis (“ABA”) and 10 hours per calendar week, not excluding school breaks, of home-based 1:1 ABA during the 2016-2017 school year.

The instant impartial hearing is based on the Parent’s impartial hearing request for the 2017-2018 school year. At the hearing on July 12, 2017, the Parent requested an order on pendency placement and/or program, as raised in the Parent’s request for the impartial hearing. The DOE agreed with the Parent’s pendency request. The following order regarding pendency was issued in an Interim Order:

The Parent’s request for pendency, pursuant to the Findings of Fact and Decision, issued by , Esq., dated December 20, 2016, is granted. The DOE shall provide the following to for the twelve-month 2017-2018 school year:

1. Ten (10) hours per calendar week of home-based one-to-one ABA therapy, not excluding school breaks;

2. Thirty (30) hours per calendar week of school-based one- to-one ABA therapy.

3. The therapy will be provided by a qualified provider; and

4. BCBA supervision hours may be substituted for direct services provided upon the agreement of the parties.

This order is retroactive to July 3, 2017, the date on which the Parent filed the impartial hearing request, and will continue in effect for the twelve-month

2017-2018 school year through the date this case is concluded either by a hearing officer’s decision or settlement agreement.

(Exhibit F)

The Parent has alleged that the DOE failed to offer a Free Appropriate Pubic Education (“FAPE”) to for the 2017-2018 school year; that the program of school-based and home-based direct ABA is appropriate; and, that the equities favor the Parent. The Parent is seeking a continuation of this program for the 2017-2018 school year.

POSITIONS OF THE PARTIES

THE DOE’S CASE

The DOE conceded that it had failed to offer a FAPE to for the 2017-2018 school years. (T.

36) The DOE did not offer any documents or witness testimony and chose not to present a case. The DOE did not state a position with regard to the appropriateness of the program that the Parent is seeking to continue. The DOE did not cross-examine , the pediatric neuropsychologist who conducted an evaluation of and made the recommendation for the ABA program of combined home-based and school-based services. The DOE also did not cross-examine , the Board Certified Behavioral Analyst who supervises the therapists providing ABA to Finally, the DOE did not cross-examine the Parent following her direct testimony. A review of the record establishes that there was no disagreement articulated by the DOE to the claims raised and the assertions made by the Parent in its request for an impartial hearing and in the presentation of its case at hearing. There was no challenge raised to the relief requested by the Parent. The DOE chose not to present an opening statement at the outset of the hearing, or to make a closing argument at the end of the hearing. There is nothing in the record to even indicate that the DOE did not agree with the Parent’s position. The DOE remained silent in that regard, although it had ample opportunity to take a position, to oppose the Parent’s position, or to otherwise actively participate in the hearing process, from the first date of hearing, July 12, 2017, through the last date of hearing, September 26, 2018.

THE PARENT’S CASE

The Parent presented the testimony of three witnesses: , pediatric neuropsychologist; , Board Certified Behavioral Analyst; and ., mother.

is a pediatric neuropsychologist, primarily in private practice. She conducted a neuropsychological evaluation of in the spring of 2016 and created a written report of the evaluation. She provided testimony in the previous impartial hearing before IHO . (T. 39; 44;

Exhibit C) described her evaluation, which, in part, included the tests she administered, a classroom observation, and communication with teachers. She also discussed her findings and recommendations for (T. 44-53) diagnosed with autism spectrum disorder, specifically, a “level three, which is requiring very substantial support with regard to his social communication skills. But also, he had deficits with regard to his behavior and being inflexible and self-directed.” determined that, based on deficits, 1:1 ABA instruction would be the appropriate methodology in order for him to learn. (T. 53-59) determined that required both home-based 1:1 ABA of 10 hours per week and school-based 1:1 ABA of 30 hours per week. She believed that, “It was very important for to have consistent support with ABA across settings.” She explained that the purpose of providing ABA in both settings is to “keep the consistency and to prevent regression that might happen over breaks.” The home-based program would “piggyback on what is being taught in school” and “will help generalize the lessons and content that he’s learning in school.”

also recommended that receive ABA services on a 12-month basis. believes that her recommendation continues to be appropriate for (T. 55-58)

is a licensed Board Certified Behavior Analyst with .

She testified that ABA is “the only treatment with scientific evidence backing its effectiveness.” She stated that started receiving services through in January 2017. She explained that the therapists “push-in to the school for 30 hours a week, six hours a day, to implement the behavior plan for him. And then we have ten hours at home, where we work on - we also have a behavior plan at home, but we work on a lot of other skills, communication, social skills, and try to generalize those skills to the school setting.” supervises all of the therapists working with She visits the school for two hours a week and the home for two hours a week. described cognitive abilities and delays. She also explained his social and emotional struggles, his communication and attention deficits, and his adaptive functioning needs. identified the progress has made. (T. 62-75) provided information about a typical day for , how the ABA discrete trial process works with , and how data is collected. (T. 75-86) explained the behavior plan that is used in both settings, which includes a token board and reinforcers. (T. 86-90) It is ’s opinion that requires 1:1 ABA in school and at home to progress. His program of 40 hours a week of 1:1 ABA has been “absolutely” appropriate for him. (T. 91-92)

. is mother. She described strengths and delays and problem behavior. She also described his early intervention and pre-school programs. In the spring of 2016, she decided to have evaluated by . She agreed with ’s findings and recommendations. The 2016- 2017 school year was kindergarten year. disagreed with the DOE’s recommended program and requested an impartial hearing, in which she prevailed. Pursuant to IHO ’s Findings of Fact and Decision, began receiving 1:1 ABA in January 2017 for 30 hours in school and 10 hours at home. According to , made “a lot” of progress from January through June of 2017. She

“absolutely” believes that still requires the 1:1 ABA program. (T. 102-109; Exhibit C)

testified that from July 1, 2016, through June 30, 2017, she responded to all requests from the CSE and in no way impeded the CSE’s processes. (T. 110)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a Free Appropriate Public Education (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v.

Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.

2005]).

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 parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S.

359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch.

Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The DOE conceded its failure to offer a FAPE to for the 2017-2018 school years. Therefore, an analysis and independent determination of whether the DOE offered a FAPE is unnecessary. The DOE did not meet its obligations under the IDEA. Therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent’s case. The DOE failed to offer a FAPE to for the 2017-2018 school year.

The Parent has the burden of establishing the appropriateness of the program they have provided to (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 [2d Cir.

2007]) The standard used to measure the appropriateness of the Parent’s placement is “not perfection.”

(M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 [2d Cir. 2000]) “The issue turns on whether a placement - public or private - is reasonably calculated to enable the child to receive educational benefits.”

(Gagliardo, 489 F. 3d at 112) The Parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])

I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. It must be noted that IHO previously found the Parent’s program to be appropriate for Her decision was based, in large part, on the unrebutted testimony of . The record only contains evidence to support the continuation of the program.

described, in detail, learning profile, weaknesses, and educational needs, and the methods that would be effective in helping him learn. She clearly recommended that the ABA program include 30 hours of school-based 1:1 ABA and 10 hours of home-based 1:1 ABA. testified as to how the program supported academically, socially, emotionally, and behaviorally. She also stressed the importance of the combination of the school-based and home-based components. ,

, and all provided persuasive testimony which strongly affirms the appropriateness of the program and demonstrates that it was reasonably calculated to allow to make meaningful progress and to address his individual needs. In fact, he made meaningful progress through his participation in the program.

The DOE has not challenged the evidence, the testimony, or the position presented by the Parent, in the hearing request or at the hearing, in any way.

I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.

The final criterion for an award of funding or reimbursement is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v.

Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v.

Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-

026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).

The DOE did not raise any equitable consideration that could affect an order in favor of the Parent. The record reflects the Parent’s continued communication and cooperation with the DOE. There is clearly no doubt that the equities favor the Parent.

ORDER

1. The DOE failed to offer a FAPE to for the 2017-2018 school year;

2. The DOE shall provide thirty (30) hours per week of school-based one-to-one ABA therapy to for the twelve-month 2017-2018 school year;

3. The DOE shall provide ten (10) hours per calendar week of home-based one-to-one ABA therapy, not excluding school breaks, for the twelve-month 2017-2018 school year;

4. The ABA therapy will be provided by a qualified provider and under the supervision of a

BCBA; and

5. BCBA supervision hours may be substituted for direct services provided upon the agreement of the parties.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 12, 2017

Esq. Attorney — Parents

(via telephone)

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 18, 2017

Esq. Attorney — Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 30, 2018

Esq. Attorney — Parents

Mother — Parents

Pediatric Neuropsychologist — Parents

(via telephone)

Board Certified Behavioral Analyst — Parents

(via telephone)

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 26, 2018

Esq. Attorney — Parents

Mother — Parents

Father — Parents

District Representative — DOE

DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EXHIBITS

IN THE MATIER OF THE IMPAllTIAI. HEARING

REQUESTED BY THE PARENT OF

AGAINST

DEPARTMENT Of EDUCATION ,,1116

HEARING DA'n: MayJQ. 20ll

NUMBER DATE DOCUMENT No. Of Paga

A 7/3/17 Hearing Request 9

8 12/20/16 Decision 13

Neuropsychological

C 3/31/16 15

Evaluation

COlfflpondence ABA

D 1/6/17 2

Selvm

Behavior Intervention

E 3/'15/17 4

Plan

F 7/19/17 lnlerim Ordft 5

Behavior lnllttYention

G 10/1/17 9

Plan

H 11/'29/17 ~Program 2

Rttqlir~

I 12/18/17 8

CdonPn,gnaa

-

Ra-rptive/ Exprelll'iW

J 1/11/11 8

Body Parts

-

Mand for MJNing

K 1/11/18 2

llmll

lntnaYfflJill What

L 1/'ll/18 QuestioN

r

M 1/'J0/18 3

N 2/D/18

0 Undaled 1

p Undaled 1

Q Undated UJlll«t (Anli •. ry

PYy) PNgnm

R Undated 1

s Undaled I

/ntm,,,J

T Undated 1

Program

u Undated

Mlndulg .

P. gram

-

V Undated igram l

On, w Undated

X Undaa.d Prt

y Undated l

AfaNWIIDIO-

,:

z Undated (M t

'

Mli11tmaa)"""

R«qltlY/E.11 ressn,e

AA Undated LdtnstJf*NpWd 3

Program

Rttq,11~

BB Undalled IDtJ/Am_.,. 2

Program

cc Undalled ~ 2

N11•6,m Program

iuaptnat ID Conrmffl 3

DD UndAlled

llaaProgrmn

Recq,t,;y '

ltlmtijia,Mr- fulldiofl

EE U.ldalled 1

a/UlnffllOftllms

Program

Behavioral

FF 3/7/18 6

Intervention Plan