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FINDINGS OF FACT & DECISION
Case Number: 175053
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearings: December 14, 2018
February 14, 2019
Actual Record Close Date: November 9, 2020
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 14, 2018
For the Student:
ESQ., Attorney
For the Department of Education:
District Representative, CSE
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 14, 2019
For the Student:
ESQ., Attorney
parent
BCBA-D (via telephone)
Educational Director, (via telephone)
Behavior Analyst, (via telephone)
For the Department of Education:
District Representative, CSE
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 July 6, 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”) during the 2018/19 school year (Exs. P-A, P-B).[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 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 student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ as “Ex.” 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. §§
300.52 1(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (x11). The [HO 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 § 200.5q)(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 [HO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an THO 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 10, 2018.
See 8 NYCRR § 200.5(j)(3)G). On September 21, 2018, the parent filed an amended due process complaint (Ex. P-B). See 8 NYCRR § 200.5(1)(7)@). At a pre-hearing conference held on November 6, 2018, see 8 NYCRR § 200.5(j)(3)(xi), the parent moved for an interim order on pendency (R. 7-11; Exs. P-A at 17, P-B at 18), see 20 U.S.C. § 1415G); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). The DOE opposed the parent’s motion (R. 9). In an Interim Order on Pendency dated November 26, 2018, I directed the DOE to fund the student’s placement at his State-approved nonpublic school, i.e., School, with afterschool Applied Behavioral Analysis (“ABA”) and occupational therapies, at public expense for the duration of these proceedings (Ex. P-HH at 6-7).[2] On December 17, 2018, I directed the DOE to fund an independent school observation of the student at public expense (Ex. IHO-IV).
See 8 NYCRR § 200.5(G)(3)(viii). Hearings on the merits of the matter were held on December 14, 2018 and February 14, 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 September 21, 2018 amended due process complaint, the student was ( ) years old and has been diagnosed with an autism spectrum disorder (“ASD”’) since he was years old (R. 210; Exs. P-B at 2, P-L at 1, SD-2 at 1). At the beginning of the 2018/19 school year, the student attended the , a twelve (12) month special education program that utilizes principles of ABA. has been approved by the Commissioner of Education as a school with which public school districts may contract to
C.F.R. § 300.515(c); 8 NYCRR § 200.5(4)(5). provide special education and related services to student with disabilities (Exs. P-U at 1, P-HH).[4]*
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-B at 2, P-E at 1, P-F at 1, P-G at 1, P-H at 1, P-Iat 1, P-Jat 1). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).[5]
The student exhibits a variety of deficits and interfering behaviors. These behaviors are pervasive and they transcend behavioral, communication, social, and physical domains (Ex. PA). The student is non-verbal and engages in many behaviors that interfere with learning and daily living (Ex. P-E at 3). The student engages in maladaptive behaviors such as finger play, mouthing water, mouthing fingers, disruptive behavior including throwing himself on the floor, yelling and screaming (Exs. P-E at 3, P-M at 2). He also engages in and will (R. 185-186). He also plays with (R. 216).
When the student was years old, he was evaluated by Early Intervention (“EI”) and found to qualify for home- and center-based services (Ex. P-B at 5). The student received ABA therapy, four (4) hours per week, and speech and language therapy, five (5) times per week, through (R. 210; Ex. SD-2 at 1). Later, as a preschool student with a disability, the student received thirty (30) hours per week of one-to-one ABA/special education itinerant
8 teacher (“SEIT”) services through Ss (R. 211; Exs. P-B at 5, P-S at 1, SD-2 at 1).
In March 2015, the student participated in a psychoeducational evaluation. The Childhood Autism Rating Scale, Second Edition, was administered to the student with the aid of his teacher. He attained a T-score of 61 (86 percentile), which placed him in the Severe range of autism. On the Vineland Adaptive Behavior Scales, Second Edition (“VABS-IT’), the student attained an Adaptive Behavior Composite standard score of 44, placing his overall adaptive functioning across all domains in the Low range compare to peers at his chronological age (Exs.
P-J at 1, P-I at 1, P-W at 2).
The CSE convened on April 21, 2015 to develop an IEP for the student through April 2016. The CSE recommended that the student receive the majority of his instruction in a 6:1+3 special class in a New York State-approved nonpublic school on a twelve (12) month basis. The CSE also recommended that the student receive related services of specialized transportation and individual speech and language therapy, five (5) times per week for thirty (30) minutes per session. Parent training and assistive technology were also recommended (Ex. P-J at 7, 9-10).
Results of a March 2016 speech and language assessment conducted at depicted a student with significant speech, language and communication deficits (Exs. P-I at 1, P-U).
The CSE reconvened on March 11, 2016 to develop an IEP for the student through March 2017. The CSE recommended that the student receive the majority of his instruction in a 6:1+3 special class in a New York State-approved nonpublic school on a twelve (12) month basis. The CSE also recommended that the student receive related services of specialized transportation and individual speech and language therapy, five (5) times per week for thirty (30) minutes per
NYCRR§ 200.1(zz)(1). session. Parent training and assistive technology were also recommended (Ex. P-I at 9-10, 12).
On March 23, 2016, the CSE added special education teacher support services (“SETSS”’) and group (2:1) occupational therapy to the student’s recommended program (Ex. P-H at 11).
In December 2016, , Ph.D., BCBA-D, SAS, LBA conducted an independent observation and functional behavioral assessment (“FBA”’) of the student (Exs. P-L, P-P).[6] Dr. found that was not an appropriate placement for the student and that a review of documents authored by staff demonstrated that his behavior significantly deteriorated. In contrast, when the student was provided with instruction in a quiet setting in a one-to-one format under the direct supervision of a BCBA, he was able to respond to a more independent level, without the incidence of high rates of dangerous self-injurious behavior. Dr.
recommended the student’s placement in a full-day program offered one-to-one ABA instruction under the daily supervision of a BCBA or BCBA-D. Dr. also recommended that the student receive twenty-five (25) hours of home-based ABA supervised by a BCBA or a BCBA-D in addition to his school program. The student was also found to need a behavior intervention plan (“BIP”’) and related services of: feeding therapy, PROMPT therapy (to address his verbal apraxia), speech and language therapy, and occupational therapy (to address sensory integration) (Exs. P-B at 4, P-P).[7]
it. 8 NYCRR § 200.1(r).
8 NYCRR § 200.1(mmm).
The CSE reconvened on January 3, 2017 to develop an IEP for the student through January 2018. The CSE recommended that the student receive the majority of his instruction in a 6:1+3 special class in a New York State-approved nonpublic school on a twelve (12) month basis. That instruction was to be supplemented with ten (10) periods per week of SETSS. The CSE also recommended that the student receive related services of: specialized transportation, group (2:1) occupational therapy, two (2) times per week for forty-five (45) minutes per session and individual speech and language therapy, five (5) times per week for thirty (30) minutes per session. Parent training and assistive technology were also recommended (Ex. P-G at 11-12, 14-15).
In June 2018, the student participated in a psychological evaluation to assess his overall progress and assist in educational planning. On the Standard Binet Intelligence Scale — Fifth Edition (“SB-5”), the student received an ABIQ Standard Score of 47, falling below the first percentile and within the Moderately Delayed range. On the VABS-III, the student earned an Adaptive Behavior Composite of 25, which was classified in the Low range (Exs. P-E at 1, SD-2 at 6).
The CSE reconvened on August 8, 2018 to develop an IEP for the student through August 2019. The CSE recommended that the student receive the majority of his instruction in a 6:1+3 special class in a New York State-approved nonpublic school on a twelve (12) month basis. That instruction was to be supplemented with ten (10) periods per week of SETSS and a full-time individual crisis management paraprofessional. The CSE also recommended that the SWhile a March 8, 2017 IEP was produced by the DOE pursuant to a subpoena (Exs. P-F, IHO-I), the parent asserts that she was never invited to, or attended, a March 8, 2017 CSE meeting, nor received the March 8, 2017 IEP until disclosed by the DOE pursuant to a November 28, 2018 subpoena executed by the undersigned (Ex. P-B at 13). student receive related services of: specialized transportation, group (2:1) occupational therapy, two (2) times per week for forty-five (45) minutes per session and individual speech and language therapy, five (5) times per week for thirty (30) minutes per session. Parent training and assistive technology were also recommended (Ex. P-E at 17-18, 20-21). On August 24, 2018, the parent received prior written notice of the CSE’s recommendations for the student for the 2018/19 school year (Ex. P-C at 1-2).
IV. POSITIONS OF THE PARTIES
A. The DOE
On January 30, 2019, the DOE failed to appear at a duly noticed pre-hearing conference which had been specifically scheduled to discuss the DOE’s position with regard to this case (R.
37-38). Given that the DOE did not have any witnesses prepared for an earlier scheduled hearing date, that it failed to appear at the January 30, 2019 pre-hearing conference, and that the parent’s witnesses were prepared to participate in a February 14, 2019 hearing, the undersigned determined the DOE to be “in default of its obligation to demonstrate or meet its burden of proof” (R. 38-40).
B. The Parent
The DOE failed to offer and/or provide the student with a FAPE during the 2018/19 school year. The is an appropriate program for the student. The DOE should be directed to fund after-school ABA, speech and language therapy, occupational therapy and parent training for the student. The student is also entitled to compensatory additional services and independent educational evaluations (R. 66-72; Exs. P-A, P-B, P-lII).
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).[9]
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); R.E. 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)(11); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); 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); 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 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)(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).
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 (1993); School Comm. of Burlington v. Dep't of Educ., 471 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).
B. Denial of FAPE - 2018/19 School Year
Given that the DOE did not have any witnesses prepared for an earlier scheduled hearing date, that it failed to appear at a January 30, 2019 pre-hearing conference, and that the parent’s witnesses were prepared to participate in a February 14, 2019 hearing, the undersigned determined the DOE to be “in default of its obligation to demonstrate or meet its burden of proof’ (R. 38-40). Accordingly, I find that the student was denied a FAPE for the 2018/19 school year.
Alternatively, even if the DOE had not been defaulted, I would have found that it denied the student a FAPE during the 2018/19 school year based on the evidence contained in the hearing record. The parent credibly testified that, at the August 8, 2018 meeting, staff acknowledged that the student’s special class teacher quit in March or May of 2018, and that failed to provide the student with recommended occupational therapy or a one-to-one crisis management paraprofessional (R. 213-215). Dr. credibly testified that, based on a review of data, the student had not made meaningful progress since she last observed him two (2) years prior (R. 87-88; Ex. P-S). Lastly, Ms. credibly testified that, based on her three (3) separate observations of the student at , 1t was not meeting his educational needs or addressing his interfering, self-injurious behaviors (R. 202).
C. Appropriateness of the Given my finding that the DOE failed to provide the student with a FAPE during the 2018/19 school year, 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|Itimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Jd. at 364; see also Gagliardo, 489 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 Dr. , Ms. , Ms. and the parent, I find that the was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs (R. 152).
Dr. credibly testified that the student requires an intensive, full day program that follows all of the elements that are necessary in an effective ABA program and is under the daily supervision of a BCBA and/or BCBA-D. The student requires one-to-one individualized instruction to meet his needs (R. 104). Likewise, Ms. credibly testified that the student requires an intense one-to-one ABA program to meet his educational and behavioral needs (R.
202-203).
Ms. is a Board Certified Behavior Analyst (““BCBA”) and a Licensed Behavior Analyst (“LBA”) in New York State (R. 130-131). She is currently the Educational Director of the (“ ”). Ms. stated that is a one-to-one school where the only teaching methodology used is ABA (R. 132-133). is located in and serves students ages 5-21, all of whom have a diagnosis of autism (R. 138). Each student at is offered a very highly individualized curriculum based on their very specific needs and priorities (R. 132). Students work on community skills, academic skills, pre-academic skills, daily living skills, self-care and vocational skills (R. 132-133). also focuses on decreasing any interfering behaviors and all students receive an individualized functional behavior assessment and an individualized behavior plan (R. 133).
Nineteen students currently attend the . At , every student has their own teacher throughout the day and each student is on a team, for example, three students and three teachers or four students and four teachers and at 45- minute intervals, those teachers rotate to the next student to ensure that the students are mastering skills across a variety of people (R.
134). Each student has their own curriculum with programs designed for them and behavior plans being implemented based on the function of the behavior for that student throughout the day. Data is collected for both skills and behaviors. A system called Catalyst is used which is an online database system where instructors collect data throughout the day on iPads and the program creates the electronic graphs that can be analyzed (R. 135).
D. Relevant Equities
The final criterion for a reimbursement award is that the parent's claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; MC. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(i1); 34 C.F.R. § 300.148(d); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); MV. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff'd, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The relevant equities support an award of tuition reimbursement and/or direct payment for the student’s placement at the for the 2018/19 school year. There is also no evidence indicating that the parent was uncooperative with the CSE (Exs. P-C, P-E, P-F, P-G, P-H, P-I, P-J), see 20 U.S.C. § 1412(a)(10)(C)(i11), nor was the cost of the student’s tuition at the unreasonable given the severity of the student’s needs and services necessary to address those needs (R. 157-158; Ex. P-L, P-P, P-S, P-W, SD-2), see Carter, 510 U.S. at 16.
E. After-School Services
1. ABA/SETSS
Ms. , who is a BCBA and an LBA, is the founder and owner of (R. 176-179). is a group of providers who provide special education services as well as medical services to individuals who are primarily diagnosed with autism utilizing applied behavior analysis (R. 177). currently services approximately twenty (20) students, some of whom are funded by the DOE (R. 178).
provides the student with SETSS services using ABA methodology (R. 181-182). Ms.
consults with the student’s parent and special educator, creates and modifies programs as needed, monitors the intervention, and creates the behavior change procedures that are needed (R. 182).
The student’s case is funded by the DOE and he has been a student of since June of 2017 (R. 182-183). provides the student with ten (10) hours of SETSS as mandated by the August 8, 2018 IEP and the undersigned’s December 26, 2018 Interim Order on Pendency (R.
183; Exs. P-C at 20, P-HH at 6-7).
Ms. testified that the student is very low functioning and acquires skills at a very low rate (R. 183, 208). The student requires a lot of repetition as well as reinforcement (R. 183).
The student is non-verbal but starting to make some vocal approximations and uses an augmentative communication device (R. 183-184). The student engages in a lot of maladaptive, self-stimulatory and self-injurious behaviors such as clapping, rocking, spitting and biting himself. The student’s hands are disfigured from biting and some have calcification. The student engages in , which is (R. 184-185). Sometimes the student will bark when he puts objects in his mouth (R. 186). The student also engages in elopement, makes inappropriate vocalizations and is aggressive towards and may hit other people (R. 184-185). The student’s daily living skills are low. While he has mastered washing his hands and is learning how to brush his teeth independently, he does not dress himself, does not get his own meals, does not bathe himself, is not completely toilet trained (R. 186).
The ten (10) hours of SETSS that provides the student are typically utilized to work on his functional communication, to increase his fluency within his augmentative communication device and to work on ADL skills as well as increasing awareness of his environment and decreasing maladaptive behaviors (R. 186-187). The student usually receives services five (5)
days per week, two (2) hours per day on the weekdays (R. 187). The teacher providing services to the student at home is a special education teacher trained in ABA (R. 187-188). In the ten (10) hours that has worked with him, the student has made progress with hand washing, has acquired the first three steps to brushing his teeth, has learned to request using single word utterances on his Proloquo2Go device, and can use carrier words and phrases such as “please” and “thank you” on his device (R. 188). The behaviors have decreased significantly since started with the student and differential reinforcement has been used as well as self-management and self-regulation skills (R. 188-189). The student has also been able to label things in his environment using the device, as well as receptive identification (R. 189).
Ms. stated that ten (10) hours of SETSS is not enough for the student because there are additional things that need to be addressed for which there is no time (R. 189). There is not enough time to address behavior concerns with elopement, social skills, generalization of skills not in the primary learning environment to the natural learning, environment, life skills such as shopping, and community skills such as how to navigate and manage while out in the community (R. 189-190). Ms. stated that that 20-25 hours per week would be appropriate for the student after school so that skills could be worked on over the weekends (R.
190).
Likewise, based on her January 2019 assessment, Dr. recommended that the student receive twenty-five (25) hours of home-based instruction in addition to a full day program (R. 107-108). The student needs to learn to go out into the community where he lives, needs to learn how to interact with his siblings, needs to be able to shower independently and needs to learn some leisure activities at home to keep his hands busy to prevent the self-injurious behaviors (R. 108). Similarly, Ms. stated that the student needs at least twenty (20) hours of ABA/SETSS at home to reduce aggression and learn self-care skills (R. 158-159).
Based on the testimony offered by Ms. , Dr. and Ms. , the DOE will be directed to fund twenty-five (25) hours per week of one-to-one ABA/SETSS for the student, along with two (2) hours per week of parent training to assist in generalization of procedures used at home and in school (Ex. P-S at 16).
2. SLT & OT
As the does not does not provide related services as part of its program (R. 138-139), IEP mandated speech and language therapy and occupational therapy (Ex. P-C at 20) must be provided to the student after school. The DOE will be directed to fund 4x30 (1:1) SLT and 2x45 (1:1) OT at reasonable market rates by a provider of the parent’s choosing.
F. 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 the student becomes ineligible for instruction by reason of age or graduation. See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Reg’l Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem’’). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Jd. at 526.
At the hearing, the DOE failed to offer any evidence in support of its recommended program for the student for the 2018/19 school year. The DOE also failed to develop the hearing record to establish the appropriate amount of relief needed to remediate its failure to provide the student with FAPE for the 2018/19 school year. Cf Application of the New York City Dep’t of Educ. (Appeal No. 14-014) at 9 (SRO March 31, 2014).
Given the disparity between the educational services the student’s needed and what he received during the 2018/19 school year prior to the undersigned’s February 15, 2019 Order for Emergency Interim Relief, the DOE will be directed to authorize the student’s receipt of the following compensatory additional services:
- 25 hours per week of after-school ABA/SETSS for each week of the 2018/19 extended (twelve month) school year, less any hours provided to student pursuant to the undersigned’s November 26, 2018 Interim Order on Pendency;
- 2 hours per week of parent training to be calculated at 46 week school year from July 1, 2018 through June 30, 2019, less any hours provided to the parent pursuant to the August 8, 2018 IEP;
- A bank of occupational therapy to be calculated at 2x45 (1:1) for a 46 week school year from July 1, 2018 through June 30, 2019, less any service hours provided to the student pursuant to the August 8, 2018 IEP or the undersigned’s November 26, 2018 Interim Order on Pendency; and - A bank of speech/language therapy to be calculated at 4x30 (1:1) for a 46 week school year from July 1, 2018 through June 30, 2019, less any service hours provided to the student pursuant to the August 8, 2018 IEP.
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 2018/19 school year is SUSTAINED;
2. Having determined that the was an appropriate placement for the student, within thirty (30) days of the date of this Order, the DOE shall directly fund the student’s placement at the for the 2018/19 school year;
3. During the 2018/19 school year, the student was entitled to the following special education instruction and related services:
a. special transportation of a 1:1 transportation paraprofessional and limited time travel (under 60 minutes);
b. 2x45 (1:1) occupational therapy, provided on an after-school basis;
c. 4x30 (1:1) speech/language therapy, provided on an after-school basis;
d. 25 hours per week of after-school ABA/SETSS; and
e. assistive technology (iPad with proloquo2go);
4. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of the following compensatory additional services, from providers of the parent’s selection, at reasonable market rates:
a. 25 hours per week of after-school ABA/SETSS for each week of the 2018/19 extended (twelve month) school year, less any hours provided to student pursuant to the undersigned’s November 26, 2018 Interim Order on Pendency;
b. 2 hours per week of parent training to be calculated at 46 week school year from July 1, 2018 through June 30, 2019, less any hours provided to the parent pursuant to the August 8, 2018 IEP;
c. A bank of occupational therapy to be calculated at 2x45 (1:1) for a 46 week school year from July 1, 2018 through June 30, 2019, less any service hours provided to the student pursuant to the August 8, 2018 IEP or the undersigned’s November 26, 2018
Interim Order on Pendency; and d. A bank of speech/language therapy to be calculated at 4x30 (1:1) for a 46 week school year from July 1, 2018 through June 30, 2019, less any service hours provided to the student pursuant to the August 8, 2018 IEP; and
5. The DOE shall authorize the following independent educational evaluations of the student, at reasonable market rates:
a. Speech/Language Evaluation;
b. Verbal Apraxia Evaluation by a PROMPT trained speech/language therapist;
c. Occupational Therapy Evaluation;
d. Neuropsychological Evaluation; e. Functional Behavioral Assessment; and f. Behavior Intervention Plan.
All other requests for relief are denied.
Dated: November 11, 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/Impartial Hearing Request, 7/6/18, 19 pgs.
PTACKONVHEOMTXZPBSEM
Amended Due Process Complaint/Impartial Hearing Request, 9/21/18, 20 pgs.
Individualized Education Program (IEP), 8/8/18, 28 pgs.
Order on Pendency (Case No. ) THO Jeffrey J. Schiro, 8/17/18, 7 pgs.
Individualized Education Program (IEP), 8/8/18, 24 pgs.
Individualized Education Program (IEP), 3/8/17, 12 pgs.
Individualized Education Program (IEP), 1/3/17, 16 pgs.
Individualized Education Program (IEP), 3/23/16, 16 pgs.
Individualized Education Program (IEP), 3/11/16, 13 pgs.
Individualized Education Program (IEP), 4/21/15, 11 pgs. [Reserved]
Functional Behavioral Assessment (FBA), 1/4/17, 16 pgs.
Classroom Observation Summary, 9/25/18, 3 pgs.
Classroom Observation Summary, 11/15/17, 3 pgs.
Classroom Observation, 3/26/15, 2 pgs.
Independent Observation Evaluation, 1/3/17, 14 pgs.
Progress Summary, 2/5/19, 5 pgs.
Progress Summary, 10/23/17, 3 pgs.
Independent Educational Review Update, 1/17/19, 17 pgs.
Educational Progress Report, 3/16/16, 3 pgs.
Speech and Language Report, 3/17/16, 5 pgs. [Reserved]
Psychoeducational Evaluation, 3/27/15, 10 pgs.
Email Correspondence b/w & , 9/2018 — 10/2018, 1 pg. (double sided)
“Look What I Did Today” Reports, various dates, 22 pgs. School Staff Roster, 2017/18 & 2018/19, 1 pg. AA. — [Reserved] BB. [Reserved] CC. [Reserved] DD. _ [Reserved] EE. Statement of , undated, 2 pgs. FF, [Reserved] GG. Speech Therapy Attendance Records, 2018/19, 7 pgs. HH. Interim Order on Pendency (Case No. 175053), [HO Jeffrey J. Schiro, 5 pgs. (double sided) I. Closing Statement & Memorandum of Law, undated, 28 pgs.
DEPARTMENT OF EDUCATION
[Reserved]
BYeNST
Psychological Evaluation, 6/19/18, 6 pgs.
Prior Written Notice (Notice of Recommendation), 8/24/18, 4 pgs.
Central Response for Consideration of a State Approved Non-Public School, 9/14/18, 1 pg.
IMPARTIAL HEARING OFFICER
[. Signed Subpoena (CSE_ ), 11/28/18, 3 pgs. I Signed Subpoena ( School), 11/28/18, 3 pgs.
Il. Order on Consolidation (Case Nos. 175053 & ), 11/6/18, 5 pgs.
IV. Interim Order (Evaluation — School Observation), 12/17/18, 1 pg.
V. Order
for Emergency Interim Relief, 2/15/19, 1 pg.
Footnotes
[1] ‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted
[2] “At the hearing, ABA was defined as a method to determine variables within an environment and how they influence behaviors (R. 131, 181). Data is collected on everything, including skills that are being taught and on interfering behaviors to make sure that the skills and behaviors are moving in the desired direction (R. 132). If not, the environmental variables are manipulated so that the behavior is moved in the desired direction.
[3] 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 parent’s 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. 14, 27-28, 231-232). See 34
[4] ‘Ina February 15, 2019 Order for Emergency Interim Relief, I directed the DOE to fund the student’s placement at the (which is not a State-approved school) for the duration of these proceedings, based on the credible testimony of Dr. that a change in placement was necessary due to an escalation of the student’s self-injurious behaviors while at (R. 101-109, 215-216; Exs. P-S, P-Y, IHO-V).
[5] 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.
[6] 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
[7] Behavioral intervention plan means a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior.
[8] W hile a M arch 8, 2017 IEP was produced by the DOE pursuant to a subpoena (Exs. P-F, IHO-I), the parent asserts that she was never invited to, or attended, a M arch 8, 2017 CSE meeting, nor received the M arch 8, 2017 IEP until disclosed by the DOE pursuant to a November 28, 2018 subpoena executed by the undersigned (Ex. P-B at 13).
[9] The term “free appropriate public education” means special education and related services that — (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) ofthis title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.