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FINDINGS OF FACT & DECISION
Case Number: 167857
Student Name:
Date of Birth:
District:
Hearing Requested By: Parents
Dates of Hearings: September 18, 2018
November 15, 2018
Actual Record Close Date: December 20, 2019
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SETPEMBER 18, 2018
For the Student:
ESQ., Attorney
For the Department of Education:
Representative
Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 15, 2018
For the Student:
ESQ., Attorney
(via telephone)
(via telephone)
For the Department of Education:
Representative
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 originally requested by the attorneys for the student and the parents in a due process complaint notice dated August 4, 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 and 2018/19 school years (Exs. IHO-I, IHO-II, P-A).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“JEP”), 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 §§ 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 as “Ex.” 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-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(G)(3)(v), (vii), (xil). 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 § 200.5(4)(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 NYCRR § 200.5(k).
Il. PROCEDURAL HISTORY
appointed me to hear this matter on August 4, 2017. See 8 NYCRR §
200.5(4)(3)(). Hearings on the merits of the matter were thereafter held on: September 18, 2018 and November 15, 2018.7 Appended to this decision are: a statement of appeal rights; a list of *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 the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5()(5)(v).
Hl. FACTUAL BACKGROUND
At the time of the July 6, 2018 (second) amended due process complaint, the student was years old and has been diagnosed with an autism spectrum disorder (“ASD”). The student is profoundly delayed in his academic and functional skills (Exs. P-A, P-C, P-D, P-G, PH, P-K, P-L, P-Q, P-S). For the 2017/18 and 2018/19 school years, the student attended school operated by (Exs. P-A at 1, IHO-I at 1, IHOII 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-C at 1, P-D at 1, IHO-I, IHO-II). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).[3]
The student’s educational history prior to the 2017/18 school year, as fully set forth in the undersigned’s February 8, 2018 Findings of Fact and Decision (Case No. ), will not be restated here. In that prior Order (concerning the 2015/16 and 2016/17 school years), the student was awarded compensatory SETSS-ABA services, BCBA program supervision, parent training, occupational therapy and speech/language therapy (Ex. P-B at 18-19). The student began receiving speech/language therapy in May 2018 (Ex. P-Q at 2) and occupational therapy in 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 (R. 19, 138-139; Exs. IHO-IV - IHO-XXVII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(4)(5).
8 March 2018 (Ex. P-P at 2).
During the school years at issue, the CSE recommended that the student be educated in a 6:1+1 special class on a twelve (12) month basis with one-to-one paraprofessional support. The CSE also recommended that the student receive related services of: specialized transportation; occupational therapy, two (2) times per week for thirty (30) minutes per session, and speech/language therapy, two (2) times per week for thirty (30) minutes per session (Exs. P-C at 17-19, P-D at 9-10). The parents objected to the sufficiency of the June 2017 and May 2018 IEPs developed for the student and this hearing ensued (Exs. P-A, P-C, P-D, IHO-I, IHO-II).
IV. POSITIONS OF THE PARTIES
A. The DOE
During the hearing, the DOE conceded that it failed to provide the student with a FAPE for the school years at issue (R. 31).
B. The Parents
The student was denied a FAPE for the 2017/18 and 2018/19 school years and is entitled to compensatory additional services. The student requires one-to-one ABA-based instruction, supplemental to his daily instruction in a 6:1+1 special class, in order to learn and progress (R. 31-39; Exs. P-A, THO-I, IHO-II).
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 NYCRR§ 200.1(zz)(1). 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 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_H., 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 v. 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)(1i1); 34 C.F.R. § 300.513(a)(2); 8 NYCRR §
200.5(j)(4)(Gi1); 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(H(3)(E)G). 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." Walezak, 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 U.S. 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)Q@), 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 IEP 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)(i); 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)(), (2)()(A); 8 NYCRR § 200.4(d)(2)(iii), 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 Programs
During the hearing, the DOE conceded that it failed to provide the student with a FAPE for the 2017/18 and 2018/19 school years (R. 31). 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 and 2018/19 school years (Exs. P-A, IHO-I, IHO-II).
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’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. Jd. at 526.
Given my earlier finding that the DOE denied the student a FAPE for the 2017/18 and 2018/19 school years, I now conclude that the student is entitled to compensatory additional services to remedy the denial of FAPE. Using the credible testimony of BCBA-D; ; , OTR/L; , M.S. CCC-SLP; and the student’s parent, I shall apply a qualitative approach in fashioning a compensatory remedy of additional services for the student. The DOE will be directed to provide home-based ABA services based on the denial of FAPE during the 2017/18 and 2018/19 school years.
1. Applied Behavioral Analysis (““ABA”’) Services
Ms. testified that she has been working with the student on his cognitive functioning, academics, speech and language skills, social and emotional functioning, fine and gross motor skills, and his adaptive functioning (self-help) skills. In addition, the SETSS-ABA program has been addressing the student’s elopement behavior by improving his communication skills, teaching him to attend to tasks longer, and having his participate in a weekend bowling program. The student’s program uses a motivation system, which includes use of a choice board, token economy and an activity schedule. The student has responded well to those reinforcement techniques and has made substantial improvement in all areas. The student is able to set for a longer time doing non-preferred activities, is able to communicate more effectively, has learned a number of new academic skills and is more independent with many of his ADL skills (R. 49-72; Ex. P-H at 2-8). Dr. noted that the student’s teachers at school have reported that he is more engaged and that his frustration tolerance has improved. The parent also testified (via affidavit) that SETSS-ABA has helped the student with his academic skills, his communication skills, his daily living skills and his behavior (Ex. P-S).
Ms. and Dr. credibly testified that the student requires fifteen (15) hours per week of SETSS-ABA services. He needs individualized support to work on building more skills and becoming more independent. The parent also testified (via affidavit) that the student needs SETSS-ABA services to address significant delays in academics, communication skills, and functional skills (Ex. P-S).
The DOE will therefore be directed to authorize the student’s receipt of 1,380 hours of SETSS-ABA, by a provider of the parents’ choice at a reasonable market rate. This award has been calculated by multiplying fifteen (15) hours of SETSS-ABA per week bya forty-six (46) week school year for two (2) school years (2017/18 and 2018/19).°
2. BCBA Program Supervision
Dr. credibly testified that the student requires two (2) hours per week of BCBA program supervision to ensure the consistency and efficacy of his program (R. 86-120). The DOE will therefore be directed to authorize the student’s receipt of 184 hours of BCBA program supervision by a provider of the parents’ choice at a reasonable market rate. This award has been calculated by multiplying two (2) hours per week of BCBA program supervision by a forty-six (46) week school year for two (2) school years (2017/18 and 2018/19).
3. Parent Training
Dr. also credibly testified that the student requires two (2) hours of parent training per month to also the parent to learn skills and techniques employed by the student’s SETSS-ABA provider(s) (R. 86-120; Ex. P-G). The DOE will therefore be directed to authorize the student’s receipt of forty-eight (48) hours of parent training by a provider of the parents’ choice at a reasonable market rate. This award has been calculated by multiplying two (2) hours per month of parent training by a twelve (12) month school year for the two (2) school years at issue (7.e., 2017/18 and 2018/19).
4. Speech/Language Therapy
Ms. , the student’s home speech/language pathologist, testified (via affidavit) that she is working the student on his expressive and receptive language skills, his intelligibility, and his ability to use his assistive technology (“AT’’) device (Ex. P-Q at 2). The student has made progress in his expressive language skills, both with his verbalizations and with his independent use of the AT device (Ex. P-Q at 3-4). The student continues to require support with building his word repertoire and the length of his utterances, appropriately answering questions, understanding questions and directions, and his articulation (Ex. P-Q at 2-5). Ms.
recommended that the student receive five (5) hours of speech/language therapy per week for the school years at issue (Ex. P-Q at 5). The DOE will therefore be directed to authorize the student’s receipt of 460 hours of home-based speech/language therapy by a provider of the parents’ choice at a reasonable market rate, less any hours provided by the DOE in school during the 2017/18 and 2018/19 school years. This award has been calculated by multiplying five (5)
hours per week of speech/language therapy by a forty-six (46) week school year for two (2) school years (2017/18 and 2018/19).
5. Occupational Therapy , the student’s occupational therapist, testified (via affidavit) that she works with the student on his fine motor skills, building his upper body and trunk strength, sensory processing skills, and ADL skills (Ex. P-P at 2). Although the student has made progress in these areas, he continues to require support (Ex. P-P at 2-4). Ms. recommended that the student receive three (3) hours of occupational therapy per week, in addition to those hours received at school, for the school years at tissue (Ex. P-P at 4). The DOE will therefore be directed to authorize the student’s receipt of 276 hours of home-based occupational therapy by a provider of the parents’ choice at a reasonable market rate. This award has been calculated by multiplying three (3) hours of occupational therapy per week by a forty-six (46) week school year for two (2) school years (2017/18 and 2018/19).[5]
D. Prospective Relief - Amendment of IEP
The parents also seck an amendment of the student’s IEP to include: fifteen (15) hours per week of home-based ABA services; two (2) hours per week of BCBA supervision; two (2) hours per week of parent training; speech/language therapy, five (5) hours per week; occupational therapy, four (4) hours per week; and special education transportation (limited time travel of not more than one hour) (Exs. P-A, IHO-I, IHO-ID.
Based on the circumstances of this case, the claim for prospective relief is denied. In accordance with its obligation to review a student's IEP at least annually, the CSE should have already revised and developed a new IEP for the student for the 2019/20 school year. See 20 U.S.C. § 1414(d)(4)(A); N.Y. Educ. Law § 4402(2); 34 C.F.R. § 300.324(b)(1); 8 NYCRR § 200.4(f). A CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing a student's needs, and it would be inappropriate to circumvent these statutory processes by suddenly ordering amendments to the student's IEP, especially in the absence of any material evidence regarding the annual review of the student's current needs or services conducted subsequent to the matters under review in this proceeding. See Student X, 2008 WL 4890440, at *16 (noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year").
Moreover, the evidence in the hearing record shows that, to the extent that the CSE may recommend a level of related services commensurate with years past, these services, in combination with compensatory additional services ordered below and a prospective order directing the DOE to provide additional ABA, BCBA supervision, parent training, speech/language therapy, and occupational therapy, may not be feasible or in the student's educational interests. The appropriate course is to require the parties to come into compliance with the statutory process envisioned under the IDEA and to effectuate equitable relief to remediate past harms that have been explored through the development of an appropriate evidentiary record. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 15-075 at 17 (SRO Sept. 21, 2015). Therefore, the parents’ request that the undersigned direct amendments to the contents of new IEPs going forward is denied.
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 and 2018/19 school years is SUSTAINED; and
2. 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) 1,380 hours of SETSS-ABA, by a provider of the parents’ choice at a reasonable market rate;
(b) 184 hours of BCBA program supervision by a provider of the parents’ choice at a reasonable market rate;
(c) 48 hours of parent training by a provider of the parents’ choice at a reasonable market rate;
(d) 460 hours of home-based speech/language therapy by a provider of the parents’ choice at a reasonable market rate, less any hours provided by the DOE in school during the 2017/18 and 2018/19 school years;
(ec) 276 hours of home-based occupational therapy by a provider of the parents’ choice at a reasonable market rate; and
(f) transportation for any services listed above that are not provided in the home.
All other requests for relief are denied.
Dated: January 3, 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
Second Amended Due Process Complaint/Impartial Hearing Request, 7/6/18, 13 pgs.
APTROOMSVOZAD“U>
Findings of Fact & Decision (Case No. ) THO Jeffrey J. Schiro, 2/8/18, 22 pgs.
Individualized Education Program (IEP), 6/19/17, 30 pgs.
Individualized Education Program (IEP), 5/2/18, 15 pgs.
Behavioral Intervention Plan, 5/2/18, 6 pgs. [Reserved]
SETTS-ABA Assessment Report, 10/17/16, 5 pgs.
SETSS-ABA Progress Report, 9/30/18, 9 pgs.
SETSS-ABA Progress Report, 6/30/18, 9 pgs.
SETSS-ABA Progress Report, 3/30/18, 2 pgs.
Speech & Language Evaluation, 4/5/17, 4 pgs.
Speech & Language/Assistive Technology Progress Report, 11/4/18, 4 pgs.
Note from Dr. , 11/1/18, 1 pg.
Occupational Therapy Evaluation, 4/5/17, 9 pgs.
Occupational Therapy Progress Report, 11/5/18, 6 pgs.
Affidavit of , 11/8/18, 5 pgs.
Affidavit of , 11/8/18, 5 pgs.
Testimony of (Case No. ), 6/9/17, 71 pgs.
Affidavit of 12/7/18, 10 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Due Process Complaint/Impartial Hearing Request, 8/4/17, 11 pgs.
II. Due Process Complaint/Impartial Hearing Request, 3/28/18, 10 pgs.
IT. Order on Consolidation (Case Nos. 167857 & 164076), 2/7/18, 3 pgs.
IV. Confirmation of Extension, 10/18/17, 1 pg.
V. Confirmation of Extension, 11/14/17, 1 pg.
VI. Confirmation of Extension, 12/17/17, 1 pg.
VU. Confirmation of Extension, 1/17/18, 1 pg.
VII. Confirmation of Extension, 2/12/18, 1 pg.
IX. | Confirmation of Extension, 3/19/18, 1 pg.
X. Confirmation of Extension, 6/15/18, 1 pg.
XI. Confirmation of Extension, 7/5/18, 1 pg.
XII. Confirmation of Extension, 9/13/18, 1 pg.
XIU. Confirmation of Extension, 10/9/18, 1 pg.
XIV. Confirmation of Extension, 11/9/18, 1 pg.
XV. Confirmation of Extension, 12/11/18, 1 pg.
XVI. Confirmation of Extension, 1/10/19, 1 pg.
XVII. Confirmation of Extension, 2/9/19, 1 pg. XVIII. Confirmation of Extension, 3/10/19, 1 pg.
XIX. Confirmation of Extension, 4/10/19, 1 pg.
XX. Confirmation of Extension, 5/10/19, 1 pg.
XXII. Confirmation of Extension, 6/5/19, 1 pg.
XXII. Confirmation of Extension, 7/9/19, 1 pg.
XXII. Confirmation of Extension, 8/8/19, | pg.
XXIV. Confirmation of Extension, 9/7/19, 1 pg.
XXV. Confirmation of Extension, 10/7/19, 1 pg.
XXVI. Confirmation of Extension, 11/6/19, 1 pg. XXVII. Confirmation of Extension, 12/6/19, 1 pg.
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 in order to allow for
[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 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) ofthis title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[5] While the parents also seek a bank of SETSS-ABA hours to compensate for missed instruction due to travel delays to and from the student’s District 75 school program (Ex. P-S at 9-10), I find that there is insufficient information contained in the hearing record to establish the extent of that missed instruction or whether the amount of missed instruction constitutes a denial of FAPE for which compensatory additional services is warranted.