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Special Education Law
DECISIONParent PrevailedIHO Case No. 510498

Impartial Hearing Decision

November 27, 2019·Jeffrey J. Schiro·Hearing Req ested by: Parent

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT & DECISION

Case Number: 171372

Student Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearings: April 29, 2019

Actual Record Close Date: October 27, 2019

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 29, 2019

For the Student:

ESQ., Attorney

parent

IEP Coordinator & Teacher Trainer (via telephone)

For the Department of Education:

None

I]. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (““IDEA”’), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the attorneys for the student and the parent in a due process complaint notice dated December 7, 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”’) for the 2017/18 and 2018/19 school years (Ex. 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 (“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 §§ 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

‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted 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 (“IHO”’) 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), (xii). 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()(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

The DOE appointed me to hear this matter on December 11, 2017 following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)G). In a due process response dated March 9, 2018, the DOE denied each and every allegation contained in the parent’s due process complaint (Ex. P-C). See 8 NYCRR § 200.5(4)(4). On July 2, 2018, the parent filed an amended due process complaint (Ex. P-D). See 8 NYCRR § 200.5(4)(7).

On January 12, 2018, the parent moved for an interim order on pendency (Exs. IHO-I at 2, P-D at 7). The DOE did not oppose the parent’s motion (Ex. IHO-I at 2). In an Interim Order on Pendency dated March 8, 2018, I directed that the DOE to provide the student with special education itinerant teacher (“SEIT’’) services and related services (including transportation) for the duration of these proceedings (Ex. IHO-I at 6-7). See 20 U.S.C. § 1415q); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m).

A hearing on the merits of the matter was thereafter held on April 29, 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 § 200.5(j)(5)(v).

Hil. FACTUAL BACKGROUND

At the time of the July 2, 2018 amended due process complaint, the student was ( ) years old and has a long history of medical issues and severe delays in all developmental areas.

The student has previously been diagnosed with autism spectrum disorder (“ASD”), (“ ”), a language disorder, an intellectual developmental disorder and a feeding disorder (R. 42-43, 56; Exs. P-D at 2, P-I at 8, P-J at 4). He also suffers from severe . The student vomits at unpredictable times and is at risk for gagging and choking when he eats. The student is underweight and not developing and growing as expected for his age. The student is severely allergic to all nuts, shell fish, chick peas, sesame seeds and eggs (R. 56-57; Exs. P-D at 2, P-I at 1). The student also suffers from I

“Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the 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. 73-75; Exs. IHO-II - IHO-XX). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(4)(5). and exhibits symptoms of sleep apnea, snoring and gasping for air when he sleeps. The student's eligibility for special education and related services as a student with multiple disabilities is not in dispute in this hearing (Ex. P-D at 2). See 34 C.F.R. § 300.8(c)(8); 8 NYCRR§ 200.1(zz)(8).[3]

The student is non-verbal and communicates primarily using a communication device (R.

57). His expressive, receptive, and pragmatic language skills are extremely delayed. The student exhibits persistent self-stimulatory behaviors — he tends to pace and run back and forth, twirl until he makes himself dizzy, and run to the door repeatedly to open and close it (R. 42).

The student is very self-directed and has a lot of difficulty staying focused and on task. He often gets distracted by various environmental factors, such as a door in his classroom, noise, movement, and voices in a hallway (R. 42, 57). The student is a sensitive child and can get overwhelmed in loud and noisy settings. He requires constant redirection and visual, verbal, and sometimes physical prompting to remain on task. He requires a lot of repetition with many opportunities for generalization, as well as daily maintenance, to learn new skills. The student does not play or interaction with other children (R. 42-44; Ex. P-D at 2).

The student’s fine and gross motor skills are very delayed. The student has significant difficulties in his ability to move safely and to manage classroom tools and materials. The student’s activities of daily living (“ADL”) skills are significantly delayed as are his sensory processing skills (R. 42-43, 57-58; Exs. P-D at 2, P-L at 7, P-M at 5). He needs adult assistance with almost everything, including dressing, feeding, and hygiene (R. 57-58; Ex. P-D at 2). He

3 Multiple disabilities means concomitant impairments (such as intellectual disability-blindness, intellectual disability-orthopedic impairment, etc.), the combination of which cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness. 8 NYCRR § 200.1(zz)(8). continues to eat pureed food prepared by his mother because of his difficulties with biting, swallowing, and chewing age-appropriate food textures (Ex. P-D at 2-3).

During the 2014/15 school year, the parent requested an administrative hearing against the DOE alleging a FAPE denial for that school year. The parent prevailed and, pursuant to a Findings of Fact and Decision issued in Case No. , the student continued to receive special education services mandated by his preschool IEP, specifically twenty (20) hours of individual SEIT services, three (3) thirty (30) minute session of speech and language therapy, four (4) thirty (30) minutes sessions of occupational therapy, and two (2) thirty (30) minute sessions of physical therapy (Ex. P-B at 7). At all times, SEIT services were provided using the Applied Behavior Analysis (“ABA”) methodology. AIl services were provided to the student at , located in New York (Ex. P-D at 3).

In May 2016, the student underwent a neuropsychological evaluation. Testing indicated that performance on intelligence domains scored in the Extremely Low range. Academic achievement also scored in the Extremely Low range with deficient, significantly below gradeexpected performance on spelling, reading and math tasks. A comparison of intelligence test results and achievement test results indicated that the student’s academic achievement was largely comparable to verbal cognitive abilities; highlighting the need for assistance and support with reading, spelling, math, and expressive and receptive language (Ex. P-I at 8).

On July 28, 2017, the CSE convened (without the parent present) to develop an IEP for the student for the 2017/18 school year. The CSE recommended that the student receive the majority of his instruction in a 12:1+(3:1) special class setting in a specialized ( ) school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: specialized transportation; individual occupational therapy, three (3) times per week for thirty (30) minutes per session; individual physical therapy, two (2) times per week for thirty (30) minutes per session; individual speech/language therapy, three (3) times per week for thirty (30) minutes per session; a group paraprofessional for health and feeding; and a group transportation paraprofessional (Ex. P-F at 19-20, 23-24, 26).

Although the implementation date of the IEP was September 7, 2017, the DOE failed to recommend any school placement for the student until November 2017. On November 9, 2017, the DOE issued the parent a school location letter stating that the student’s recommended program would be implemented at ( yin (R.

61; Ex. P-G at 1). The DOE then stopped paying for special education services that the student was receiving at (R. 54, 56). As a result of the DOE’s refusal to pay for the student’s special education and related services at , the student was dismissed from that school on or about November 21, 2017 to mid-to-late January 2018 (R. 66). In late January 2018, readmitted the student after this case (i.e., ) was filed and pendency requested (Ex. P-A at 6). The DOE, however, failed to provide the student with transportation to and from until May 2018 (R. 71).

The CSE failed to reconvene prior to the beginning of the 2018/19 school year and make an appropriate program recommendation for the student. The DOE also failed to offer any sitespecific placement for the student for the 2018/19 school year (R. 69; Ex. P-D at 3).* This hearing ensued.

IV. POSITIONS OF THE PARTIES

A. The DOE

The DOE did not appear for the duly noticed hearing held on April 29, 2019.[2]

B. The Parent

The DOE denied the student a FAPE for the 2017/18 and 2018/19 school years. The CSE developed an IEP for the student for the 2017/18 school year in the parent’s absence and failed to timely offer the student a school placement. The DOE improperly discontinued funding of the student’s special education and related services at during a portion of the 2017/18 school year, which resulted in the student’s academic regression. Even after resuming such funding, the DOE failed to provide the student with specialized transportation for the period January 2018 through May 2018. The CSE also failed to develop an IEP or recommend a school placement for the student for the 2018/19 school year.

The parent seeks an Order requiring the DOE to: (1) conduct a functional behavioral assessment (“FBA”’’) and an evaluation of the student’s ASD by a board certified behavior analyst (“BCBA”); (2) have the CSE reconvene to develop an appropriate IEP and behavior intervention plan (“BIP”’) for the student; (3) directly pay for all special education and related services the student received at during the 2017/18 and 2018/19 school years; (4) reimburse the parent for out-of-pocket transportation expenses incurred between January 2018 and May 2018; (5) authorize the student’s receipt of compensatory additional services; and (6) continue provision of door-to-door transportation with a matron until the CSE reconvenes and makes appropriate program recommendations for the student (Ex. P-D at 7-8).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”’) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ.

of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[5]

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 JEP 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)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(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; 4.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(f)(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." 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 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)(1), (2)()(A); 8 NYCRR § 200.4(d)(2)(i1i), 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. Requested Evaluations — FBA & Autism Evaluation by BCBA

The DOE failed to conduct appropriate and necessary evaluations of the student, specifically an FBA and an evaluation of the student’s ASD by a BCBA.[6]

The evidence contained in the hearing record demonstrates that the student exhibits extreme self-directed behavior, distractibility and restlessness which impedes his ability to function in the classroom (Exs. P-P at 2, P-Q at 3, P-T at 3, P-V at 3-4, P-AA at 3, P-BB at 4, P°Functional behavioral assessment means the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment. The functional behavioral assessment shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. 8 NYCRR § 200.1(r). DD at 4). For example, the August 2017 SEIT progress report notes that the student “‘is still constantly getting distracted by the doors in the classroom. He loses focus in the middle of programs to look at the doors and he tries to get up very often to open and close them” (Ex. PGG at 4). During the September 2016 occupational therapy evaluation, the therapist noted that “before the evaluation began, [the student] was running around the room and going in and out of treatment rooms... even when in the room, [the student] was constantly in motion. During the evaluation, [the student] was unable to sit and attend to the evaluator without maximal verbal/tactile cues for redirection” (Ex. P-L at 2). The parent also described the student as having a “very, very short attention span, and he’s very, very easily distracted” (R. 57).

Additionally, Dr. , who completed a neuropsychological evaluation of the student in May 2016, recommended that he be provided with an “evaluation of autism spectrum symptoms and challenging behaviors by a behavior analyst” (Ex. P-I at 9).

The DOE will therefore be ordered to conduct an FBA and an evaluation of the student’s ASD symptoms by a BCBA.’ The DOE will be further ordered to develop an appropriate BIP for the student based on the results of those evaluations.

C. Direct Payment for SEIT & Related Services at A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S.[7] 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471

(Ex. P-B at 4). U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).

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).

1. Public Program — 2017/18 School Year

Based on the analysis set forth below, I find that there were significant violations of the student and parent’s procedural safeguards which served to deny the student with a FAPE for the 2017/18 school year.

First, the hearing record reflects that the parent was not present for the July 28, 2017 CSE meeting. The IDEA and the federal and State regulations set forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child." See 20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.501(b)(1)(), Gi); 8 NYCRR § 200.5(d). Parents of a student with a disability are mandated team members of a CSE. See 8 NYCRR § 200.3(a)(1)(i); see also 34 C.F.R. §

300.321(a)(1). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's CSE meetings or are afforded the opportunity to participate. See 34 C.F.R. § 300.322(a); 8 NYCRR § 200.5(d); see also Mr. M v. Ridgefield Bd. of Educ., 2007 WL 987483 (D. Conn. Mar. 30, 2007). If neither parent can attend a CSE meeting, the school district must use other methods to ensure parent participation, including individual or conference telephone calls. See 34 C.F.R. §§ 300.322(c), 300.328; 8 NYCRR §§ 200.5(d)(1)(iii), (d)(7). A CSE meeting may be conducted without a parent in attendance if the school district is unable to convince the parents that they should attend. See 34 C.F.R. § 300.322(d); 8 NYCRR § 200.5(d)(3). The school district must keep a record of its attempts to arrange a mutually agreed upon time and place, such as telephone call records, correspondence, and detailed records of visits made to the parents' home or place of employment and the results of those visits. See 34 C.F.R. § 300.322(d); 8 NYCRR § 200.5(d)(3) - (4).

Here, the CSE reconvened on July 28, 2017 and recommended a program for the student without including the parent as a member of the team (R. 60-61; Ex. P-F). The CSE did not invite the parent to the July 2017 meeting and subsequently failed to send the parent a copy of the IEP that was developed at that meeting (R. 61). As a result, the parent was unaware that the July 2017 meeting had taken place until November 2017 (R. 61). The DOE failed to present any record of its attempts to arrange a mutually agreed upon time and place for its CSE meeting before proceeding in the absence of the parent. See Application of the Bd. of Educ. of the Valhalla Union Free Sch. Dist., Appeal No. 09-124 at 26 (SRO Dec. 24, 2009). This violation rose to the level of depriving the student a FAPE for the 2017/18 school year and I find that the July 2017 IEP is a nullity because it was prepared by an invalidly composed CSE. See

Application of a Child with a Disability (New York City Sch. Dist.), Appeal No. 01-079 (SRO Sept. 3, 2002).

Second, the hearing record reflects that the DOE failed to provide the parent with prior written notice of its proposed program for the student, a copy of the July 2017 IEP or notice of the particular public school site to which the DOE assigned the student for the 2017/18 school year. In general, the IDEA and State regulations require that a school district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability.

See 34 C.F.R. § 300.323(a); 8 NYCRR § 200.4(e)(1)(i); see also Cerra, 427 F.3d at 194; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff'd, 530 Fed. App'x 81, 2013 WL 3814669 (2d Cir. July 24, 2013); B.P. v. New York City Dep't of Educ., 841 F. Supp. 2d 605, 614 (E.D.N.Y. 2012).[8] Although not explicitly stated in federal or State regulation, implicit in a school district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an the IEP, a school district must notify parents of the bricks and mortar location of the special education program and related services in a student's IEP. See Tarlowe, 2008 WL 2736027, at *6 (stating that a school district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year). While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation—for example, by a school location letter which was the mechanism adopted by the DOE in this case—it nonetheless must be shared with the parent before the student's IEP may be implemented (Ex. P-G at 5). See Application of the New York City Dep’t of Educ., Appeal No.

14-083 at 13 (SRO Jan. 8, 2015).

Here, the parent testified that she did not receive either a copy of the July 2017 IEP, a prior written notice of the CSE’s program recommendation for the student, nor the DOE’s school location letter until November 2017, which was well after the start of the 2017/18 school year (R.

61; Exs. P-F, P-G at 1, 5). Further, there was no testimony offered by the DOE in this case of its routine office practice with respect to the mailing of IEPs, prior written notices or school location letters to invoke the presumption (under New York Law) of mailing and receipt by the addressee.

Cf Nassau Ins. Co. v. Murray, 46 N.Y .2d 828, 829 (1978); News Syndicate Co. v. Gatti Paper

Stock Corp., 256 N.Y. 211, 214 (1931). Taken together, I find that the CSE’s failure to secure the parent’s attendance at the July 2017 meeting, and failure to provide the parent with prior written notice of its proposed program for the student, a copy of the July 2017 IEP or notice of the particular public school site to which the DOE assigned the student until November 2017, significantly impeded the parent’s an opportunity to participate in the decision making process regarding the provision of a FAPE to the student. See 20 U.S.C. § 1415((3)(E)(ii).

2. Public Program — 2018/19 School Year

The evidence contained in the hearing record reflects that the CSE failed to reconvene prior to the beginning of the 2018/19 school year and make appropriate program recommendation for the student. The DOE also failed to offer any site-specific placement for the student for the 2018/19 school year (R. 69; Ex. P-D at 3). As noted above, the IDEA and State regulations require that a school district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability. See 34 C.F.R. § 300.323(a); 8 NYCRR§ 200.4(e)(1)(1i). Having failed to fulfill this basic obligation, I find that the DOE denied the student a FAPE for the 2018/19 school year on both procedural and substantive grounds.

3. Appropriateness of Services Delivered at Given my finding that the DOE failed to provide the student with a FAPE during the 2017/18 and 2018/19 school years, I turn to the appropriateness of the parent’s private program. With respect to the second criterion for an award of reimbursement, a parent must show that the private services obtained for the student were appropriate to meet his special education needs.

See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.

In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walezak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Jd. at 364; see also Gagliardo, A489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).

Based on the evidence entered into the hearing record, including the credible testimony of Ms. and the parent, I find that the SEIT and related services provided to the student at were appropriate for the student because they provided him with specifically designed, individualized instruction to meet his unique educational needs. is a school and center for children with autism and other developmental disabilities that offers a broad spectrum of evidence-based education and therapeutic programs (Ex. P-HH at 1). Ms.

testified that has provided the student with ABA-based one-to-one instruction since 2014 (R. 40). For the 2017/18 and 2018/19 school years, Ms. testified that the student’s teacher was Ms. (R. 44, 52). Ms. testified that Ms.

holds a master’s degree in both general education and special education and has been trained in ABA therapy at (R. 46). For both years, Ms. ’s work was supervised by Ms. , who also holds a Master’s degree in both general education and special education, and is a BCBA (R. 46, 53). The school provided the student with related services of occupational, physical and speech and language therapies, all by licensed, New York State-approved therapists (R. 48, 54). The student’s speech provider was also certified in feeding therapy (R. 49). The school provided training and ongoing professional development, including ongoing ABA training, under oversight by a BCBA (R. 46). Progress was tracked through the use data collection and quarterly assessments (R. 47-48).

The student received one-to-one ABA instruction at (R. 41).

Academically, he was working on pre-academic early math sequencing skills, early writing skills, and labeling pictures using two-word sentences (R. 41). He had significant difficulty with attention and focus and required a lot of repetition and generalization which he received in a oneto-one setting (R. 42). The student also worked on a number of adaptive daily living skills, particularly self-care and feeding (R. 43). Socially, he worked on turn-taking and general social awareness (R. 45). He also benefitted from the sensory gym at that was used to address his sensory processing disorder (R. 43).

Although largely nonverbal, the student made a significant amount of progress in terms of communication through the use of his AAC device (R. 50; Ex. P-P at 1). He progressed from forming two-word sentences to forming three-word sentences (R. 50, 52). He is now able to receptively identify over 50 words on his AAC devices, has mastered typing the letters of the alphabet, and can now identify body parts and colors (R. 53; Ex. P-P at 3). Socially, he is better able to tolerate sitting next to a peer and is working on sustaining eye contact (R. 53). However, even in this highly-structured setting, the student requires one-to-one support to remain focused and stay on task (Ex. P-P at 3). The Student has a number of self-stimulatory behaviors that interfere with his learning, such as running back and forth in the classroom and opening and closing doors (R. 42). Moreover, due to the student’s propensity to try to escape from his chair and run to the door of the classroom, he requires constant supervision to ensure his safety (Ex. PT at 3). Ms. testified that was able to address the student’s behaviors within the one-to-one setting and through the use of the ABA methodology (R. 47).

4. Relief

Given the denial of FAPE for the 2017/18 school year and the DOE’s abrupt termination of funding of the student’s program at in summer 2017, the DOE shall be ordered to directly pay a total of $17,210.00 due for the services it rendered to the student that academic year, broken down as $12,350 due for 1:1 SEIT/ABA instruction and $4,860 due for the related services of speech and language, occupational and physical therapies (Exs. P-OO at 1, P-PP, P-QQ, P-RR).

Likewise, given the FAPE denial for the 2018/19 school year, the DOE shall also be ordered to directly pay for 1:1 SEIT/ABA instruction and speech/language, occupational and physical therapies delivered to the student for the twelve month 2018/19 school year, which total $146,500.00 (Ex. P-LL at 1). The DOE’s obligation shall be offset by any payments it made pursuant to the undersigned’s March 2018 Pendency Order (Ex. IHO-I).

D. Reimbursement of Transportation Expenses

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. See 20 U.S.C. § 1401(26); 34 C.F.R. §§

300.34(a), (c)(16). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs." N.Y. Educ. Law §§ 4401(1)-(2); 4402(4)(a); 8 NYCRR § 200.1(ww). Even where a disabled student’s needs do not require specialized transportation, the student is entitled under State law to transportation to and from a nonpublic school located within fifty (50) miles of the student's home if the student attends the nonpublic school "for the purpose of receiving services or programs similar to special education programs recommended" by the CSE. See N.Y. Educ. Law § 4402(4)(d).?

The student was entitled to transportation to and from during the 2017/18 and 2018/19 school years. The CSE recommended that the student receive specialized transportation in both the May 8, 2015 IEP and the July 28, 2017 IEP (Exs. P-B at 3, P-F at 23).

Even absent such recommendations, the hearing record reflects that is within fifty (50) miles of the student’s residence (Exs. P-A at 1, P-F at 4, P-R at 1). The DOE however, abruptly stopped providing the student with specialized transportation to and from Generally, a nondisabled student parentally placed in a nonpublic school is entitled to transportation to and from the nonpublic school only if the school is located within fifteen (15) miles of the student's home. See N.Y. from January through May of 2018 (R. 69-71). While the parent first tried to take the student to school via subway, he could not tolerate the crowds due to his severe anxiety (R. 69).

The parent was then forced to hire cabs to take to the student to and from school, for approximately three (3) weeks, at a cost of approximately $75 per day (R. 70). After that three (3) week period, the parent was able to secure transportation for the student through (R. 71). The DOE resumed providing the student with door-to-door transportation in May 2018.

The DOE will be ordered to reimburse the parent for out-of-pocket transportation expenses she incurred during the period January through May 2018.

E. Compensatory Additional Services

Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time.

See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).

State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before

Educ. Law §3635). 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. /d. at 526.

Upon issuing the November 9, 2017 prior written notice, the DOE stopped paying for the student’s special education and related services at (R. 54, 66). As a result, the student was discharged from (for nonpayment) and failed to receive any services from the period of November 21, 2017 to mid-to-late January 2018 (R. 66). During this period, the student suffered substantial regression of skills (R. 66-67). To remedy the denial of FAPE for that part of the 2017/18 school year when the student received no specialized instruction and related services, the DOE will be directed to authorize the student’s receipt of the following compensatory additional services.

1. Compensatory Speech/Language Therapy

The period of time between late November 2017 and mid-January 2018 during which the student was at home without services or instruction was thirty-five (35) school days or seven (7) weeks (R. 31). According to IHO ’s Decision from Case No. , the student was entitled to three (3) thirty (30) minute sessions of individual speech/language therapy per week (Ex. P-B at 6). The student missed twenty-one (21) sessions of speech/language therapy. To remedy this denial of service, the DOE will be directed to authorize the student’s receipt of twenty-one (21) thirty (30) minute sessions of compensatory speech/language therapy at a rate of $75 per thirty (30) minute session by a provider of the parent’s choosing.

2. Compensatory Physical Therapy

The period of time between late November 2017 and mid-January 2018 during which the student was home without services or instruction was thirty-five (35) school days or seven (7) weeks (R. 31). According to THO ’s Decision from Case No. , the student was entitled to two (2) thirty (30) minute sessions of individual physical therapy per week (Ex. P-B at 6). The student missed fourteen (14) sessions of physical therapy. To remedy this denial of service, the DOE will be directed to authorize the student’s receipt of fourteen (14) thirty (30)

minute sessions of compensatory physical therapy at a rate of $75 per thirty (30) minute session by a provider of the Parent’s choosing.

3. Compensatory Special Education Instruction

The evidence contained in the hearing record reflects that the student requires one-on-one, individualized instruction and intensive ABA therapy to develop language, communication, cognitive and social skills (R. 36-56). The period of time between late November 2017 and midJanuary 2018 during which the student was home without services or instruction was thirty-five (35) school days or seven (7) weeks (R. 31). According to the IHO ’s Decision from Case No. , the student was entitled to twenty (20) sixty (60) minute sessions of SEIT services per week (Ex. P-B at 6). The student missed 140 sixty (60) minute sessions of SEIT during that time period. To remedy this denial of service, the DOE will be directed to authorize the student’s receipt of 140 hours of compensatory SEIT at a rate of $125 per hour, by a provider of the Parent’s choosing.

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

1. The parent’s claim that the student was denied a free appropriate public education (FAPE) for the 2017/18 and 2018/19 school years is SUSTAINED;

2. Within thirty (30) days of the date of this Order, the DOE shall initiate a Functional Behavioral Assessment (FBA) of the student;

3. Within thirty (30) days of the date of this Order, the DOE shall authorize an evaluation of the student’s autism spectrum disorder (ASD) symptoms by a board certified behavior analyst (BCBA) of the parent’s choosing at a reasonable market rate;

4. Within thirty (30) days after completion of the aforementioned FBA and ASD evaluation, the Committee on Special Education (CSE) shall reconvene to develop an appropriate individualized education program (IEP) and behavior intervention plan (BIP) for the student;

5. The DOE shall continue to fund all services order in the undersigned March 2018

Pendency Order (Ex. IHO-I) until the CSE reconvenes to develop an appropriate IEP as referenced in paragraph (4) above;

6. Within thirty (30) days of the date of this Order, the DOE shall provide direct payment of $17,210.00 to , which represents the outstanding balance for the services that the student received there during the 2017/18 school year;

7. Within thirty (30) days of receipt of adequate proof-of-payment, the DOE shall reimbursement to the parent for out-of-pocket expenses associated with the student’s transportation between his home and during January — February 2018 (four weeks);

8. Within thirty (30) days of the date of this Order, the DOE shall provide direct payment of $146,500.00 to for the cost of special education and related services provided to the student during the twelve (12) month 2018/19 school year (Ex. P-LL at 1);

9. Within thirty (30) days of the date of this Order, the DOE shall authorize the student receipt of the following compensatory additional services by providers selected by the parent:

a. 140 hours of one-to-one special education instruction at the rate of $125 per hour, b. 21 individual 30-minute sessions of speech/language therapy at the rate of $75 per session;

c. 28 individual 30-minute sessions of occupational therapy at the rate of $75 per session;

d. 14 individual 30-minute sessions of physical therapy at the rate of $75 per session; and

10. The DOE shall provide the student with special education transportation, door-to door with a matron.

Dated: November 10, 2019

/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, 12/7/17, 8 pgs.

CATKYNAEPOSVDMXOZAEUAK

Findings of Fact & Decision (Case No. ) THO , 1/4/16, 11 pgs.

Due Process Response, 3/9/18, 3 pgs.

Amended Due Process Complaint Notice/Impartial Hearing Request, 7/2/18, 9 pgs.

Email to from , 7/16/18, 3 pgs.

Fax to from CSE © w/ 7/28/17 IEP & meeting minutes, 11/17/17, 26 pgs.

Prior Written Notice (Notice of Recommendation), 11/9/17, 5 pgs.

Signed Consent for Evaluation, 4/5/17, 1 pg.

Neuropsychological Evaluation, 5/31/16, 10 pgs.

Initial Speech & Language Evaluation, 9/6/16, 5 pgs.

Comprehensive Pediatric Feeding Assessment, 9/15/16, 6 pgs.

DOE Occupational Therapy Evaluation, 9/6/16, 7 pgs.

Physical Therapy Evaluation, 9/6/16, 7 pgs.

DOE Assistive Technology Evaluation, 5/4/17, 10 pgs.

DOE Assistive Technology Evaluation Addendum/Follow-Up Report, 6/19/17, 4 pgs.

SEIT Progress Report, 2/25/19, 4 pgs.

Speech Progress Report, 2/2019, 4 pgs.

Occupational Therapy Progress Note, 2/2019, 1 pg.

Physical Therapy Progress Notice, 2/26/19, 2 pgs.

SEIT Progress Report, 11/2018, 4 pgs.

Occupational Therapy Progress Note, 11/2018, 1 pg.

Speech Progress Report, 11/2018, 4 pgs.

Physical Therapy Progress Report, 11/13/18, 2 pgs.

Occupational Therapy Progress Note, 8/2018, 1 pg.

Speech Progress Report, 8/2018, 4 pgs.

Physical Therapy Progress Report, 8/10/18, 2 pgs.

SEIT Progress Report, 8/13/18, 3 pgs.

Speech Progress Report, 6/2018, 4 pgs.

Physical Therapy Progress Report, 6/15/18, 2 pgs.

Speech Progress Report, 2/2018, 4 pgs.

Physical Therapy Progress Report, 2/2018, 2 pgs.

SEIT Progress Report, 4 pgs.

Fax to from CSE —_w/ attached Aug. 2017 Progress Reports, 11/17/17, 9 pgs.

Program Description, undated, | pg.

Student Schedule, 2018/19, 1 pg.

Attendance Record, 2018/19, 2 pgs.

Enrollment Agreement (2018/19), 9/14/18, 3 pgs.

Tuition Affidavit (2018/19), 4/22/19, 1 pg.

Student Schedule, 2017/18, 1 pg.

Attendance Record, 2017/18, 2 pgs.

Tuition Affidavit (2017/18), 4/22/19, 1 pg.

PP. SEIT Invoices, 10/2/17, 9 pgs.

QQ. SEIT Invoices, 12/1/17, 3 pgs.

RR. Related Services Invoices, 7/2017 — 11/2017, 19 pgs. SS. 2017 U.S. Individual Income Tax Return, 4/19/18, 2 pgs.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I. Interim Order on Pendency ( ) THO Jeffrey J. Schiro, 3/8/18, 8 pgs.

II. Confirmation of Extension, 2/18/18, 1 pg. IT. Confirmation of Extension, 3/19/18, 1 pg.

IV. Confirmation of Extension, 4/23/18, 1 pg.

V. Confirmation of Extension, 5/21/18, 1 pg.

VI. ~~ Confirmation of Extension, 6/19/18, 1 pg. VU. Confirmation of Extension, 9/19/18, 1 pg.

VII. Confirmation of Extension, 10/12/18, 1 pg.

IX. Confirmation of Extension, 11/18/18, 1 pg.

X. Confirmation of Extension, 12/18/18, 1 pg.

XI. Confirmation of Extension, 1/17/19, 1 pg.

XII. Confirmation of Extension, 2/16/19, 1 pg. XIU. Confirmation of Extension, 3/18/19, 1 pg.

XIV. Confirmation of Extension, 4/17/19, 1 pg.

XV. Confirmation of Extension, 5/17/19, 1 pg.

XVI. Confirmation of Extension, 6/16/19, 1 pg.

XVII. Confirmation of Extension, 7/16/19, 1 pg. XVIII. Confirmation of Extension, 8/15/19, 1 pg.

XIX. Confirmation of Extension, 9/14/19, 1 pg.

XX. Confirmation of Extension, 10/14/19, 1 pg.

Footnotes

[1] References to the hear ng transcr pt are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”

[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the 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. 73- 75; Exs. IHO-II - IHO-XX). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(4)(5).

[3] Multiple disabilities means concomitant impairments (such as intellectual disability-blindness, intellectual disability-orthopedic impairment, etc.), the combination of which cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness. 8 NYCRR § 200.1(zz)(8).

[4] During the 2018/19 school year, the student continued to attend where he received all of the special education and related services mandated in the March 2018 Pendency Order (R. 46, 53; Ex. IHO-I).

[5] 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.

[6] Functiona behavioral assessment means the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment. The functional behavioral assessment shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. 8 NYCRR § 200.1(r).

[7] ’T note that an FBA/BIP was previously ordered by IHO in his Findings of Fact & Decision in Case No. , but it appears that the DOE failed to comply with that component of IHO ’s Order

[8] 5In New York State, the school year is defined as the “period commencing on the first day of July in each year and ending on the thirtieth day of June next following.” N.Y. Educ. Law § 2(15).

[9] Generally, a nondisabled student parentally placed in a nonpublic school is entitled to transportation to and from the nonpublic school only if the school is located within fifteen (15) miles of the student's home. See N