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FINDINGS OF FACT & DECISION
Case Number: 174227
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearings: July 25, 2018
October 12, 2018
November 1, 2019
March 6, 2020
May 14, 2020
Actual Record Close Date: July 2, 2020
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 25, 2018
For the Student:
ESQ., Attorney
For the Department of Education:
District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 12, 2018
For the Student:
ESQ., Attorney
For the Department of Education:
District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 1, 2019
For the Student:
ESQ., Attorney
For the Department of Education:
District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 6, 2020
For the Student:
ESQ., Attorney
parent
Ph.D.
Ph.D., Co-Di
Co-Director, (via
via teleph
telephone
For the Department of Education:
District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 14, 2020
For the Student:
ESQ., Attorney (via telephone)
For the Department of Education:
District Representative, CSE (via telephone)
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 June 29, 2018. 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 2018/19 and 2019/20 school years (Exs. P-A, PC).!
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 8§ 200.5(h)-(1).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such
‘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), (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 § 200.5Gq)(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(j)(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 the undersigned to serve as the IHO in this matter on July 2, 2018.
See 8 NYCRR § 200.5(G)(3)G). Ata hearing held on July 25, 2018, the parent moved for an interim order on pendency (R. 5-6; Ex. P-A at 8-9). See 20 U.S.C. § 1415); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). The DOE did not oppose the parent’s motion (R. 6-7). In an Interim Order on Pendency dated September 11, 2018, the undersigned directed the DOE to maintain the student at his New York State-approved nonpublic school placement, along with home-based ABA/SETSS and related services, at public expense for the duration of these proceedings (Ex. IHO-I at 7-8). On July 24, 2019, the parent filed an amended due process complaint (Ex. P-C). See 8 NYCRR § 200.5()(7)(i).. In an Interim Order dated November 27, 2019, the undersigned directed the DOE to fund an independent functional behavioral assessment (“FBA”), a behavioral intervention plan (“BIP’’) and a transitionalvocational assessment (Ex. IHO-III at 2). Hearings on the merits of the matter were held on: October 12, 2018; November 1, 2019; March 6, 2020; and May 14, 2020. 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).?[2]
Hl. FACTUAL BACKGROUND
At the time of the July 24, 2019 amended due process complaint, the student was ( ) years old and has been diagnosed with autism, , amood disorder, a seizure disorder and oral apraxia (R. 67-69, 88; Exs. P-A at 2, P-C at 2, P-G at 1, P-J at 1, P-K at 1, P-L at 1, P-M at 1, SD-7 at 1). During the 2018/19 and 2019/20 school years, the student attended instruction at the on (R. 87, 95; Exs. P-A at 2, P-C at 2, P-H at 1, P-I at 1, P-K at 1, PL at 1). has been approved by the Commissioner of Education as a nonpublic school with which public school districts may contract to instruct students with disabilities (R. 87, 95; Ex. P-L
C.F.R. § 300.515(c); 8 NYCRR § 200.5G)(5). at 1). See 8 NYCRR §§ 200.1(d), 200.7. 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 at 2, P-C at 2, SD-1 at 1). See 8 NYCRR § 200.1(zz)(1).[3]°
The student displays a variety of pervasive deficits and interfering behaviors; these involve delays in the behavioral, academic, communication, social, and physical domains (Exs. PG, P-H, P-I, P-J, P-K, P-L, P-M, SD-1, SD-2, SD-3, SD-4, SD-5, SD-7). The student has weaknesses in the areas of expressive and receptive language, cognition, focus, attention, eye contact, behavior, socialization, activities of daily living (“ADL”), and gross and fine motor development (Exs. SD-2 at 1, SD-7 at 1-2, 10-11, P-G, P-H, P-I, P-J, P-K). In addition to delays and deficits in speech and language skills, the student demonstrates deficits in his overall oral motor skills, feeding abilities and oral sensory integration; and his diagnoses of Oral Apraxia and Apraxia of Speech rendered him unintelligible (Exs. SD-1 at 2, SD-2 at 1, SD-7 at , P-G).
The student uses an Alternative Augmentative Communication Device (“AAC”) for communication purposes (Exs. SD-1 at 2, SD-2 at 1-2, SD-7 at 12, P-G).
The student also presents with significant self-stimulatory, aggressive, disruptive, noncompliant, dangerous, self-injurious behaviors (“SIB’’), and escape behaviors that interfere with his learning and functioning (R. 63-64; Exs. P-H at 1, P-M at 1, 14). The student’s behaviors are significant in school, in the community and at home (R. 88-90; Ex. P-M at 1).
Moreover, he mouths non-edible items constantly as a result of and is at risk for SD-2 at 2, P-K at 1, P-M at 3, 6-7, 12).
The Parent asserts the DOE failed to provide a FAPE to the Student for the 2018/19 and 2019/20 school years due to an array of substantive and procedural violations, the most significant of which is the DOE’s failure to develop a new IEP for the student since 2016 (R. 92;
Exs. P-A, P-C, SD-1). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE did not present any witnesses, documentary evidence, or arguments in response to the parent’s claims. The DOE did not attempt to defend against any claims nor did the DOE rebut any of evidence presented by the parent.
B. The Parent
The absence of an IEP since 2016, and the limited options accessible to , has left the parent with limited choices (R. 94). The parent’s most pressing concerns relate to the student’s worsening behaviors. The student’s SIBs have increased in recent years (R. 66-67, 104; Ex. P-M); yet, the DOE has not conducted an updated FBA or BIP. The DOE has also failed to reassess the student’s academic goals or service needs; a prerequisite to developing a new IEP.
The parent therefore requests a finding that the DOE violated the student’s rights under IDEA and Section 504, and an order for funding of additional services and evaluations, along with an order requiring the DOE to develop a new and appropriate IEP (Exs P-A, P-C).
NYCRR§ 200.1(zz)(1).
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: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) 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; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); 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). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1,580 U.S. _, 137 S. Ct. 988, 999 2017). 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]Jultiple 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, H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 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)Gi); 34 CFR § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)G1); 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); ELH. 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 [HO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C.
§ 1415(£)(3)(E)(i). 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. The "IDEA, [however,] does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walcezak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 1378S. Ct. at 1001. 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 Endrew F., 1378S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances’’); 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)@), 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)(4), (2)()(A); 8 NYCRR § 200.4(d)(2)(ii1), 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. Development/Transmittal/Receipt of IEP
The Parent asserts the DOE failed to provide a FAPE to the Student for the 2018/19 and 2019/20 school years due to an array of substantive and procedural violations, the most significant of which is the DOE’s failure to develop a new IEP for Jacob since 2016 (Exs. P-A, P-C).
A school district is required to have an IEP in effect for each student with a disability at the beginning of the school year and provide a copy of the IEP to the parents. See 34 C.F.R.
§§ 300.322(f), 300.323(a); 8 NYCRR §§ 200.4(e)(1)(a1), (e)(3)(iv); Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 450-451 (2d Cir. 2015) (“a FAPE cannot be offered unless an IEP is issued’’); Cerra, 427 F.3d at 193-94 (holding that a school district "fulfill[s] its legal obligations by providing the IEP before the first day of school"); B.P. v. New York City Dep't of Educ., 841 F.
Supp. 2d 605, 614 (E.D.N.Y. 2012).
“A school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-239 (2009). Failure to provide a finalized IEP before the beginning of the school year may result in a finding that the school district failed to offer the student a FAPE if the violation (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)(Gi); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5G)(4)(i1); G.B. v. New
York City Dep't of Educ., 145 F. Supp. 3d 230, 246 (S.D.N.Y. 2015) (finding the failure to provide the IEP before the first day of school was a procedural violation that did not significantly impede the parents' participation in the CSE process); K.M. v. New York City Dep't of Educ., 2015 WL 1442415, at *1 (S.D.N.Y. Mar. 30, 2015) (same); but see C.U. v. New York City Dep't of Educ., 23 F. Supp. 3d 210, 225-27 (S.D.N.Y. 2014) (finding the failure to provide a copy of the IEP before the beginning of the school year impeded the provision of a FAPE to the student).
The evidence contained in the hearing record reflects that the student’s most recent IEP and BIP were developed by the DOE in 2016 — four (4) years ago (R. 92; Exs. SD-1, SD-8, SD-9.
The DOE did not provide the student with an IEP, or an appropriate school placement, for the school year at issue. The DOE’s conduct, including failing to offer the student appropriate IEPs and refusing to convene CSE meetings for the student, year-after-year, denied the student any chance to receive a FAPE and denied the parent the right to participate in the IEP process. The DOE’s omissions effectively shifted the burden onto the parent to arrange for a FAPE for the student.
C. 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 Bad. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA).
Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Reg’ Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Jd. at 526.
There is no evidence contained in the hearing record that the CSE convened to develop an IEP for the student for either the 2018/19 or 2019/20 school years, nor is there any evidence that the DOE offered the student an educational placement for either school year. I therefore find that the student is entitled to compensatory additional services to remedy the denial of FAPE and shall apply a qualitative approach in fashioning a remedy for the student.
1. Development of IEP & BIP
Given that the DOE has abdicated its legal obligations to the student and parent for the last several years, the CSE will be directed to conduct a meeting and develop a new IEP and BIP for the student. The IEP shall include the pendency and additional services ordered herein, shall include appropriate goals for school and home services, shall include transition/vocational services and goals, and shall include a BIP that addresses behaviors at school and home in a consistent and coordinated manner. The student’s current program, as set forth in the September 11, 2018 Interim Order on Pendency (Ex. IHO-I at 7-8), shall continue until a new IEP is developed.
2. Additional ABA
The DOE will be directed to increase the student’s ABA services by five (5) additional hours per week of 1:1 provided by a qualified ABA/LBA selected by the parent (R. 63-64, 97; Ex.
P-M at 16). The additional 1:1 ABA will be arranged for (dates, times, and locations) by the parent, with consultation by stakeholders from the student’s school and homebound programs, and the DOE shall fund these services at a reasonable market rate sufficient for the services to be provided (at least until such time as the parties agree on a new IEP for the student). The additional 1:1 ABA services, and goals for these services, shall be placed on the student’s next IEP (for a total of 20 hours of ABA).
3. Transitional/Vocational Services
The student is now ( ) years old and requires transitional/vocational services and supports. The DOE, however, has neither assessed the student’s transitional needs nor addressed his vocational needs, even after being specifically directed to do so by IHO in her December 22, 2017 FOFD in Case No. (Exs. SD-1 at 22, P-B at 5). The DOE’s failure to address the student’s transitional/vocational needs or include transitional/vocational goals is particularly problematic here, given the student’s age and deficits. The parent arranged for a vocational placement for the student several years ago, during which time the student displayed the potential to develop vocational skills and eventually learn to work independently (R. 97).
During the hearing, the parent obtained an independent transitional assessment which recommended life skills training, for eight (8) hours per week in both the home and community, and transition coordination, for six (6) hours per month (Exs. P-L at 24, P-M at 16). The DOE will therefore be directed to fund these services for the student at a reasonable market rate sufficient for the services to be provided (at least until such time as the parties agree on a new IEP for the student). The DOE will also be directed to fund the student’s school-based 1:1 paraprofessional, so that individual may accompany the student to vocational work sites during the school day. Lastly, the DOE will be directed provide transportation for both the student and his 1:1 para to and from vocational work sites, consistent with the student’s special transportation needs.
4. Assistive Technology
The DOE will be directed to provide, or fund, a MotivAider for the student, as per Dr.
*s recommendations (Ex. P-M at 14). This shall be incorporated into the student’s next IEP in a manner necessary to ensure it is provided and/or implemented. The DOE will also be directed to conduct an AAC assessment of the student (at school and at home) to ensure that the student receives an AAC device and services individualized to his needs, at school and at home.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
The parent’s claim that the student was denied a free appropriate public education (FAPE) for the 2018/19 and 2019/20 school years is SUSTAINED; IEP: Within thirty (30) days of the date of this Order, the DOE shall convene a CSE and develop a legally valid IEP that incorporates the services set forth below. The IEP shall include the pendency and additional services ordered herein, shall include appropriate goals for school and home services, shall include transition/vocational services and goals, and shall include a BIP that addresses behaviors at school and home in a consistent and coordinated manner; Continued Services: Until such time as the CSE develops a legally valid IEP, the student’s current program and services shall continue, as follows:
= Twelve month placement at ; a Full-time 1:1 crisis management paraprofessional at school, selected by the parent (in collaboration with ) and funded by the DOE at a reasonable market rate; c. Special Education transportation; d. Transportation paraprofessional (0.5); e. Applied Behavioral Analysis-Special Education Teacher Support Services (““ABA- SETSS”): fifteen (15) hours per week of home-based ABA-SETSS, at an enhanced rate; f. Counseling Services: two (2) times per week for sixty (60) minutes per session on an after school-basis, at an enhanced rate; g. Occupational Therapy (“OT”): four (4) times per week for thirty (30) minutes per session on an after-school basis, at an enhanced rate; h. Physical Therapy (“PT”): two (2) times per week for thirty (30) minutes per session on an after-school basis, at an enhanced rate; i. Speech-Language Therapy (“SLT”): eight (8) times per week for thirty (30) minutes per session on an after-school basis, at an enhanced rate; j. A 52-week school year with respect to the after school ABA-SETSS, PT, OT, SLT and counseling; k. Twelve-month (12), fifty-two (52) week school year for the after-school SETSS, OT, PT, and SLT; Outstanding Pendency Payments: Within thirty (30) days of the date of this Order, the DOE shall issue funding for any of the aforementioned services provided from June 29, 2018 until the date of this decision, which have not yet been paid - including, but not limited to, pendency services provided remotely. Should the DOE require any additional information and/or documents to process any payments, the DOE shall provide notice of the specific information and/or documents needed to process payments for pendency services within fifteen (15) days of the submission of the invoice for said services; Unimplemented Pendency Services: Within forty-five (45) days of the date of this Order, the DOE shall authorize funding for any pendency services that were not provided during the 2018/19 and 2019/20 school years; Additional 1:1 ABA: The DOE will provide the student with five (5) hours of 1:1
ABA/LBA funded at a market rate sufficient for the services to be provided, with a qualified provider located by the parent, until such time a new IEP has been developed for the student. If the DOE is unable to locate a licensed ABA within thirty (30) days of this Order, the parent may choose an individual(s) to provide 1:1 instruction with behavioral support, until such time as appropriately credentialed ABA provider(s) are located. These services shall be provided in addition to the student’s continued services (as set forth above), and shall be added to his next
IEP;
Life Skills Training and Transitional Coordination services: The DOE shall provide the student with eight (8) hours per week of Life Skills Training and six (6) hours per month of Transition Coordination with a provider and location chosen by the parent, at a reasonable market rate sufficient for the services to be provided (at least until such time as the parties agree on a new IEP for the student). These services shall be provided in addition to the student’s continued services (as set forth above), and shall be added to his next IEP;
AT/AAC: Within thirty (30) days of the date of this Order, the DOE shall provide, or fund, an individual MotivAider for the student to use as part of his educational program; and within thirty (30) days of the student’s return to school, the DOE shall conduct an AAC assessment, in consultation with his parent, school, and home providers, to determine an AAC device and services consistent with the student’s individual needs; and BIP: Within fifteen (15) days of the date of this Order, the DOE shall complete a BIP for the student consistent with the recommendations of the independent FBA, to address his behavior at school and home, developed in consultation with the parent and homebased providers. The DOE shall provide the BIP to the student’s school, parent, and homebased providers upon completion.
Dated: July 16, 2020
/s/ Jeffrey J_ Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 40 days of the date of this decision, the parent and/or the public school district has a right to appeal the decision to the State Review Officer ("SRO") of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the either party plans to appeal the decision, a notice of intention to seek review Shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENTS
Due Process Complaint Notice/Impartial Hearing Request, 6/29/18, 11 pgs.
TOaAmZMmTEMoOZaVw>MP
Findings of Fact & Decision (Case No. ) THO , 12/22/17, 7 pgs.
Amended Due Process Complaint Notice/Impartial Hearing Request, 7/24/19, 8 pgs. , BCBA, Fee Schedule, 2019/20, 2 pgs. , BCBA, Resume, 2019, 9 pgs.
PT Proposed Transitional/Vocational Assessment Invoice, 10/2019, 1 pg.
Annual Speech & Language Progress Report, 6/17/18, 2 pgs.
Educational Progress Report, 6/19/18, 4 pgs.
Occupational Therapy Progress Report, 6/1/18, 1 pg.
Physical Therapy Progress Report, 8/6/18, 2 pgs.
BCBA Report, 1/23/18, 3 pgs.
Transitional Assessment, 2/20/20, 42 pgs. . Functional Behavioral Assessment (FBA), 2/27/20, 16 pgs. , Curriculum Vitae, 1/2020, 16 pgs. , LBA, Curriculum Vitae, 1/2020, 2 pgs.
DEPARTMENT OF EDUCATION
Individualized Education Program (IEP), 6/15/16, 28 pgs.
CRADNMRWNS
Annual Speech & Language Progress Report, 6/1/16, 3 pgs.
Occupational Therapy Progress Report, 6/14/16, 2 pgs.
Physical Therapy Progress Report, 6/8/15, 3 pgs.
Educational Progress Report, 6/5/16, 3 pgs. [Reserved]
Neuropsychological Evaluation, 7/4/14, 12 pgs.
Functional Behavioral Assessment (FBA), 6/15/16, 12 pgs.
Behavior Intervention Plan (BIP), 4/2/16, 5 pgs.
IMPARTIAL HEARING OFFICER
I. Interim Order on Pendency ( ) IHO Jeffrey J. Schiro, 9/11/18, 10 pgs.
II. Signed Subpoena, 1/2/19, 3 pgs. IT. Interim Order ( ) IHO Jeffrey J. Schiro, 11/27/19, 2 pgs.
8 as a result and requires close monitoring at all times to keep him safe (Exs.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evide nce 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 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. 10-11, 18-19, 34-35, 120-121). See 34
[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) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[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).