New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 167817

Student’s Name:

Date of Birth:

-- District:

Hearing Requested By: Parent

Date of Hearing: November 29, 2017

January 12, 2018

June 26, 2018

July 19, 2018

Actual Record Closed Date: July 24, 2018

Hearing Officer: Linda S. Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 29, 2017

via Advocate — Parents

telephone

Chairperson Designee, — DOE

CSE • Region I — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 12, 2018

Advocate (via telephone) — Parents

Chairperson Designee, — DOE

CSE • Region I — District

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

Advocate — Parents

Father — Parents

via Chairperson Designee, — DOE

telephone CSE • Region I — District

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 19, 2018

Advocate — Parents

Parents

via Speech and Language — Parents

telephone Therapist

via Clinical Director - — Parents

-

telephone

Chairperson Designee, CSE — DOE

On August 1, 2017, I was designated by the New York City Department of Education (“DOE”) as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415 and Article 89 of the Education Law of the State of New York in the matter of . and the parent through his advocate who initiated this hearing on August 1, 2017. The advocate amended the impartial hearing request on April 25, 2018. Hearings were held on November 29, 2017, January 12, 2018, June 26, 2018 and July 19, 2018. The parties moved to extend the compliance date in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing memoranda. The requests for extensions of the compliance dates were granted and the required documentation provided to the parties (Tr. at 4-8;21;35-37;91; Exhs. I-IX). The current record close date is July 24, 2018 and the decision due date is August 7, 2018. Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

This proceeding arose under Article 89 of the New York State Education Law and Commissioner’s Regulations as set forth in Part 200 of Title 8 of the New York Code, Rules and Regulations ("NYCRR"). Specifically, Section 200.5 of the Regulations provides the mechanism whereby a parent may challenge the validity of the recommendation made by a public school district’s Committee on Special Education ("CSE"). The hearing was initiated the parent of ., who challenges the refusal of the CSE supervisor to provide funding for the placement at and provide payment

- vouchers for the mandated at-home related services (Exh. A at 10).

-

BACKGROUND

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. is a -year-old boy diagnosed with autism (Exh. E at 1) The parent seeks a finding that the DOE failed to offer . a free and appropriate public education ("FAPE") for the 2018-2019 as the CSE failed to provide a recommendation for

- and for the 2018-2019 school year and seeks an order directing the DOE to fund special education teacher support services ("SETSS") for ten hours per week at the rate of $135.00 per hour; as well as home-based speech and language therapy ("SLT") for two hours per week at the rate of $135.00 per hour and to provide the parent with related service authorizations for home-based individual physical therapy ("PT") for one hour per week and home-based individual occupational therapy ("OT") for two hours per week and OT once per week for 30 minutes as well as all the mandated services per the IEP dated November 11, 2017 for the 2018-2019 school year (Exh. A at 12-14; Tr. at 65; 85).

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On November 15, 2017, the CSE met and classified . with autism and recommended that . be placed in a New York State approved non-public school for the education of students with autism in a special class with at staffing ratio of 8:1:3 and recommended SETSS for ten hours per week and recommended related services of individual counseling once per week for 30 minutes in school; individual OT twice per week for 60 minutes per session in a separate location; individual OT once per week for 30 minutes in a separate location; parent counseling and training once per month for 30 minutes in school; individual PT once per week for 60 minutes per week in a separate location; individual SLT three times per week for 30 minutes per session in school; SLT twice per week for 30 minutes per session in a group of two in school; and individual SLT twice per week for 60 minutes per session in a separate location. The IEP recommended a daily full-time crisis management paraprofessional and assistive technology in the form of a Dynamic display speech generating device for a-12 month program (Exh. B at 22). The IEP indicated that had first grade reading and math skills (Exh. B at 25).

THE DOE'S CASE

The DOE's representative did not submit any witnesses or evidence to support its position that a FAPE was offered for the 2018-2019 school year and did not dispute any of the allegations contained in the amended due process complaint and did not contest the reasonableness of the parent's relief (Tr. at 85).

THE PARENT’S CASE

The parent's case was presented in the testimony of the Clinical Coordinator of and the Speech Therapist. - The Clinical Coordinator testified that she possessed a Master's degree in special education and held a School Building leader certification in NY and that she has observed a dramatic decrease in

- -

.'s negative behavior since he has been attending the classroom at for the past year (Tr. at 48). She stressed that . used his

- communication device to provide clear answers and that . had improved his independence and was working on activities of daily living ("ADL") skills and on the vocational skills (Id.). She noted that . progressed with his IEP goals (Tr. at 49). She described the staffing ratio in .'s class room was eight students and a head teacher and a teaching assistant and two behavior specialists or 8:1:3 (Tr. at 50), and opined that

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was an appropriate placement for . for the 2018-2019 school year (Tr. at 56). - She further opined that . was grouped appropriately in his class (Tr. at 59), and that met .'s school-based needs by applied behavior analysis ("ABA"), the only - scientifically-proven method to teach children with autism (Tr. at 60).

The Speech Therapist, a NYS certified speech pathologist and a holder of an

-- ASHA certificate, testified that she was employed as a speech pathologist for ten year (Tr. at 68). She stated that she provided speech and language skills to . since he was five years old and that she provided speech and language services to . at home to focus on communication, and to increase self-regulation and to promote generalizing skills from the school to the home (Tr. at 69-70). She explained that .'s aggressive behavior was the result of his frustration with his inability to communication or to selfregulate (Tr. at 72). She related that decreased his aggression and increased his language with her services and that she was able to help him understand the demands placed on him with ABA (Tr. at 75). She described the physical and visual prompts that she used with . included tapping to gain his attention, linking arms and showing him pictures of items like a store, or shopping cart so he was able to organize his environment (Tr. at 77). She opined that . progressed with her sessions this year in his ability to regulate himself in the community and in his ability to tell time and in his ability to communicate. She stressed that . progressed from no ability to verbally request to use up to three words to communicate his wants and needs (Tr. at 80). She explained that she supplemented the skills that received from the school speech pathologist because . had a lot of difficulty with in generalizing skills and that he needed direct instruction in school and at home by structured ABA methodology in order to communicate his needs (Tr. at 82-84).

FINDINGS OF FACT AND DECISION

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances…." and "a student offered an educational program providing 'merely more than de minimis progress' from year to year can hardly be said to have been offered an education at all" (Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 [March 22, 2017]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in Case No. 167817 the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy" or "guarantee any particular level of education" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted).

In Application of the New York City Dept. of Educ., Appeal No.12-087, the SRO held that an "appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i];Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "'results of the initial evaluation or most recent evaluation'" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), 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 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9)."

The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

The legal standard applicable to a request of reimbursement for educational services, such as in this case, is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate; (2) the services selected by the Parent are appropriate; and (3) equitable considerations support the Parent’s claim (School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 [1985]).

I find the DOE representative presented no witnesses and did not dispute any claims of the parent that FAPE was not offered for the 2018-2019 school year (Tr. at 65). I find that without a DOE witness testimony to explain how .s deficits are addressed within the IEP and other DOE documents the DOE is unable to meet their burden. The SRO has found that allegations that are left unchallenged are deemed as true. (See Application of a Student with a Disability, 01-044). Accordingly, I find the district failed to establish that FAPE was provided during the 2018-2019 school year.

Therefore, I find the district failed to establish that FAPE was provided during the 2018-2019 school year as I find CSE failed to offer an appropriate program for the 20182019 school year.

Because I find that FAPE was not offered the parent prevailed on the first prong. When a public school system has failed to provide FAPE, the program and services chosen by the parent are "proper under the Act" if the education provided is ''reasonably calculated to enable the child to receive educational benefits." Carter, 510 U.S. at 14. Although the parents bear the burden of proof with regard to the services obtained by the parents for the student, they are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364. "Ultimately the issue turns on whether a placement…is 'reasonably calculated to enable the child to receive educational benefits.' [internal citations omitted] …", Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of Case No. 167817 a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

Testimony adduced at the hearing established that s current class at

- in special class with a 8:1:3 ratio with a head teacher, a teacher assistant and two behavior

- specialists experienced in ABA supported his language and his behavior difficulties. I credit the testimony of the Clinical Coordinator and find that improved his ability to communicate and decreased his negative behavior (Tr. at 48). I find that . increased his independence and this ADL skills and I find that that the ABA methodology and the head teacher, assistant teacher and behavior specialists met unique school based needs (Tr. at 56;60). The evidence presented from the parent (Exhs.O-W) established that

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.'s unique special education needs were met by the placement.

I find that the SLT provider helped

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. generalize skills and decrease his aggression and increase his language by using ABA to improve his communication skills, (Tr. at 75) and I find that the SLT provider used physical and visual prompts to help organize and increase his language. I find that 's unique special education needs were met by the SLT provider. I also find persuasive the unrebutted opinion that . needed the SETSS at the rate of $135.00 per hour and the services of the SLT at the rate of $135.00 per hour.

The third prong of the test for tuition reimbursement/prospective is whether the equities favor the parent's position. I find that the parents established the third prong.

ORDER

Therefore, it is hereby ordered that the DOE shall continue to fund the following:

(1) the placement at for the 2018-2019 school year; (2) SETSS for ten hours per

- week at the rate of $135.00 per hour; (3) home-based SLT for two hours per week at the rate of $135.00 per hour. It is further order that the Dept of Education provide the parent with related service authorizations for home-based individual PT for one hour per week and home-based individual OT for two hours per week and OT once per week for 30 minutes as well as all the mandated services per the IEP dated November 11, 2017.

Dated: August 1, 2018

Linda S. Agoston, Esq. gc

LINDA S. AGOSTON, ESQ.

Impartial Hearing Officer

LSA:gc

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 26, 2017

I Decision on extension, 9/20/17, 1 p. IHO

II Decision on extension, 10/25/17, 1 p. IHO

III Decision on extension, 11/1/17, 1 p. IHO

IV Decision on extension, 11/29/17, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 12, 2018

V Decision on extension, 1/12/2018, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 26, 2018

A Amended Impartial Hearing, 4/25/18, 15 pp. Parent

B IEP, 11/1/17, 26 pp. Parent

I Decision on extension, 9/20/17, 1 p. IHO

II Decision on extension, 10/25/17, 1 p. IHO

III Decision on extension, 11/1/17, 1 p. IHO

IV Decision on extension, 11/29/17, 1 p. IHO

V Decision on extension, 1/12/18, 1 p. IHO

VI Decision on extension, 2/26/18, 1 p. IHO

VII Decision on extension, 3/28/18, 1 p. IHO

VIII Decision on extension, 4/9/18, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON JULY 19, 2018

A Amended Impartial Hearing Request, 4/25/18, 15 pp. Parent

B IEP, 11/1/17, 26 pp. Parent

C Initial Impartial Hearing Request, 8/1/17, 15 pp. Parent

D omitted

E omitted

F omitted

G Educational progress report, 10/26/17, 4 pp. Parent

H Speech and language progress report, 11/17, 4 pp. Parent

I Counseling progress report, 10/17, 1 p. Parent

J omitted

K omitted

L omitted

N Special Education Annual Review, Home-Based SETSS,

3/27/18, 6 pp. Parent

O School progress report for counseling, 3/18, 2 pp. Parent

P Speech and language progress report, home-based services,

4/2/18, 1 p. Parent

Q Occupational therapy progress report, home-based services,

4/10/18, 4 pp. Parent

R Speech and language progress report, home-based services,

5/1/18, 2 pp. Parent

S classroom progress report for speech, 6/18, 1 p. Parent

T - classroom progress report, 6/18, 2 pp. Parent

U - speech and language report, 7/18, 4 pp. Parent

V -

Educational report, 7/11/18, 3 pp. Parent

W Speech and language progress report, home-based services,

7/11/18, 1 p. Parent

IX Decision on Extension, 7/19/18, 1 p. IHO