Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No. 177506

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates Of Hearings: May 30, 2019

July 9, 2019

August 15, 2019

September 24, 2019

November 19, 2019

Record Closed Date: January 27, 2020

Hearing Officer: Susan C. Lushing, Esq.

Introduction

I was appointed as the Impartial Hearing Officer pursuant to the IDEA on September 14, 2018 after the parent filed a request for an impartial hearing. The impartial hearing commenced on May 30, 2019 after a delay to permit the completion of a parallel case for two later school years ( ). This case continued on July 9, August 15, September 24 and November 19, 2019. . appeared for the DOE and . appeared for the parent. A list of witnesses and exhibits is appended to this decision. The compliance date was extended several times at the joint request of the parties with a current date of February 11, 2020. The record close date is January 27, 2020.

DOE’s Case:

The DOE called one witness and presented 23 documents in evidence as Exhibits 1-23 in support of its IEP for the 2016-2017 school year. (Ex. 3).

was the school psychologist and District representative at the IEP meeting on March 29, 2016 held to plan for the student's placement in September 2016. Prior to the meeting she reviewed the material available to the : assorted documents that included a social history, psychological, speech and language and OT evaluations, prior IEP’s and OT, PT and teacher reports. (T. 54-60; Exs. 9, 10, 11, 17, 19 and 20). She decided that no additional formal testing was necessary (T. 126-127) and arranged for a notice of meeting dated March 1, 2016 to be sent to the parent. (Ex.4). A second notice changed the date to March 29, 2016.

(Ex.5). Present on that date were the mother and grandmother, , an OT supervisor and the student's teacher by telephone. (T. 48; Ex. 3-15).

At the meeting the previous documents were discussed as well as a recent classroom observation performed on March 8, 2016. (Ex.8). The mother described the student as . (T. 72). In the school observation she was seen to . (T. 52-53; Ex. 8). According to the documents and her teacher, she was about

_(T. 74). Although she spoke with a . (T. 76).

The team classified her as having a learning disability based upon delays in did not recall if any other classification was considered. (T.

80-81). Since the student was reported as doing very well in her integrated program with — children and adults, the recommendation was for an class. Both the parent and the teacher raised concerns about less support with only two teachers in the room but the program would enable her to have interaction with typically-developing peers as well as the support of general and special education teachers who would break down the class for . The team felt that a self-contained class with all special needs students would be too restrictive. (T. 81-86). Based upon input from the OT supervisor who had visited the student in her school, both OT services in the classroom and at a separate location were recommended. (T 87-88).

Parent's Case:

The parent called two witnesses and introduced 17 documents in evidence as Exhibits A-D, F, H-K, R-T, DD-HH in support of her request for compensatory education services for the denial of FAPE during the 2016-2017 school year.

The mother testified that her daughter was first diagnosed on the autism spectrum ( ) in May 2018 after a new pediatrician referred her to a developmental specialist who in turn sent . (T. 227-228; Ex. A). Her daughter attended at through the summer of 2016. (T.

243-244). As part of the process, the mother signed a consent form for reevaluation at the request of the director of the .(T.

244-245; Ex. 13). Her first contact with DOE personnel was at the IEP meeting on March 29, 2016. (Ex. 3).

The meeting lasted about 20-30 minutes; there were no documents, including a draft IEP, reviewed at the meeting; there was no discussion of any goals. (T. 252-253, 265-268). They told the mother that it would be aclass of | plus students in her zone school with integrated program.

The mother knew that the ratio was not the same as there were students in the class with adults in the classroom. (T.

254-255). She repeatedly talked about her daughter's at : that every day it could take an In the morning, that the . The mother told them she would check out a for 30-40 minutes. (T. 258-262).

During , the parent had filled out a survey that highlighted (T. 270-277; Ex 15). had given the mother a copy of the report that was essentially accurate in its description as to . (Ex. 9). It mentioned the need for predictability in the classroom. Similarly at home her daughter would have a Also at home she could be . She would have . The teacher would talk to her to 280-290). She could . (T. 291). She was a and _ (T. 301-303).

The student attended and the teacher provided a progress report in April 2017. (Ex. T). The student had no services during the summer of 2017 and she

In October 2017 the parent asked for a reevaluation. (T. 321-325).

During she would have (T. 335-344).

The parent arranged in July 2019 for , a PhD-level and a certified special education teacher with classroom experience, to review evaluations and IEPs, interview the parent and her instructors and observe the student . (Ex. HH §§ 15-18). She noted . (Ex. HH §§ 19-21). Behaviorally she displayed

_ (Ex. HH §§ 22-23).

characterized the student as (Ex. HH § 26). It is her professional opinion that at the time of the IEP meeting, the DOE, at a minimum, should have referred the student for an evaluation to determine if she met the criteria for Some of her (Ex. HH § 29; T. 512-515, 536-537). As a result her disabilities were not adequately addressed during the 2016-2017 school year. (Ex. HH § 27). Because she is for six hours per day during that school year. (Ex HH § 30 and T. 500).

began providing ABA services to the student at hours on November 13, 2019 — one week prior to her testimony. She is ina with teacher and aide. observed . (T. 460-470).

Findings of Fact and Decision

The purpose of the IDEA is to “ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. §1400(d)(1)(A). State and local education agencies are required under federal laws to identify children with disabilities and develop annual IEPs for each child. 20 U.S.C. §1414. The IEP is a comprehensive document developed by a team consisting of parents, teachers and other school administrators. It outlines the goals of a student and the special education and related services needed to meet those goals. Id. A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its through the IDEA’s procedures is reasonably calculated to enable a student to receive educational benefits. Bd. Of Educ. v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

The IDEA requires that a FAPE be tailored to the unique needs of the disabled child by means of an IEP prepared at a meeting between a qualified representative of the local educational agency, the child's teacher and the child's parents or guardian. The IEP consists of a written document containing: (1) a statement of the present levels of educational performance of such child; (2) a statement of annual goals; (3) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs; (4) the projected date for initiation and anticipated duration of such services; and (5) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. 20 U.S.C. §1414(d). In developing a particular child’s IEP, a is required to consider four factors: (1) academic achievement and learning characteristics; (2) social development; (3) physical development; and (4) managerial or behavioral needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107- 08 (2d Cir. 2007).

In evaluating whether the DOE has complied with the procedural requirements of the IDEA, a hearing officer must consider whether the alleged procedural violation either: (1) impeded a student's right to a FAPE; (2) significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of a FAPE; or (3) caused a deprivation of educational benefits. 20 U.S.C. §1415(f)(3)(E)(ii); See also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415 (S.D.N.Y. 2007); Application of a Child with a Disability, Appeal No. 07-

007. While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. 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); Application of a Child with a Disability, Appeal No. 07- 046. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits.

See, 20 U.S.C. § 1415] fI[3][E][ii]; 34 C.F.R. § 300.513 [a][2]; see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F.Supp.2d 415, at 419 (S.D.N.Y. 2007).

Moreover, the Second Circuit has determined that “a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is ‘likely to produce progress, not regression” and if the IEP affords the student with an opportunity greater than mere ‘trivial advancement.

Cerra v. Pawling Cent. Sch. Dist., supra, quoting Walczak v. Florida

Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); in that it is likely to provide some ‘meaningful’ benefit, Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997). ). To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”. Endrew F. v. Douglas Cty. Sch. Dist, 137 S.Ct. 988, 995—96 (2017). However, a school district is not legally obligated to develop an education plan that maximizes the potential of a student with a disability. Bd. Of Educ. v. Rowley, supra; See, Grim v. Rhinebeck Cent. sch. Dist., supra; Walczak, supra. The Hearing Officer must additionally consider whether this educational program places the student in the least restrictive environment. Carlisle Area School v. Scott P., 62 F.3d 520, 535 (3d Cir. 1995).

The parent here raises both substantive and procedural issues in her challenge to the IEP for the 2016-2017 school year. There were actually two versions entered into evidence - Exhibit 1 dated October 7, 2016 and Exhibit 3 dated March 29, 2016. The only difference is a recalibration of the periods of the OT recommendation from twice weekly for 15 minutes to once for 30 minutes to comply with regulations. This revision has no effect on the issues under determination and the IEP meeting of March 29, attended by the parent and composed of the legally mandated complement of professionals including the teacher, will be considered the operative event.

First the parent claims that the evaluations were insufficient to properly classify the student. testified that she made the decision that existing evaluations supplemented by teacher reports and a classroom observation were sufficient and decided not to arrange for any others despite consent from the parent. Specifically through the testimony of the parent argues that inconsistencies and specific issues highlighted in the existing evaluations strongly suggested the possibility of and should have led to additional exploration.

singled out as inconsistent with (T. 512-515, 536-537).

Based on the record, I do not find that the DOE failed to perform all evaluations that were necessary to properly address the needs of this student. reviewed thereof. admitted in her testimony that it was possible from the evaluations at that time to conclude the student had a combination of a .(T.

518). Also given the of the student, it was not unreasonable to wait because of the possibility that many of the Finally and most significantly there is the nature of the student's called it “unique” and it is certainly unusual.

noticed possible signs of observed as being able to make with peers (Ex 8, T. 53). In fact despite an intelligent and very involved parent, there was no definitive diagnosis until May 2018. Apparently the child’s original pediatrician did not consider the need to explore the possibility of and according to the mother, it took a new doctor two years later to make the connection and issue a referral. Many of the signs apparently became more . For instance described by any witness or document. Thus I find that in March 2016 it was not sufficiently obvious that was a likley to fault the DOE for not exploring it further.

Second the parent argues that the recommended placement of an class was not appropriate to meet the student's needs and I find that the parent's claim has merit. There were also related services of OT and PT on the IEP not being challenged by the parent. There is no dispute that in March 2016 the student presented with in many domains. The IEP listed her . (Ex. 3-1). Her teacher recommended continuation of an integrated program and this was supported by her age and socialization skills and the requirement in the IDEA of least restrictive environment.

As testified the options are different and specifically do not have the same ratio.

However the teacher who knew her best in a classroom setting urged additional adult support beyond the two teachers in the classroom and I find that the nature and extent of the student’s deficits fully justified this request. At a minimum a paraprofessional was necessary to be constantly available for learning. The IEP should have included a paraprofessional for these purposes regardless of the student's ability to . Itis irrelevant that some classes in fact have additional adults in the room as testified (T. 82) as R.E. requires the student's own IEP to address all her needs. Thus I find that the DOE failed to provide the student with FAPE for the 2016-2017 school year. It is therefore unnecessary to address the parent’s numerous claims of serious procedural violations amounting to a denial of FAPE as well as deficiencies under Section 504.

Finally the student received 12-month services through her IEP including the summer of 2016. The parent’s request for a finding that FAPE required 12-month services for the summer of 2017 is not supported by the evidence in the record (T. 183-184, 192) and is denied.

Although the mother testified about year.

Compensatory education is an equitable remedy for students who have been denied a FAPE. E. Lyme Bd. of Educ., 790 F.3d at 457: P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008); Streck v. Board of Educ. of the East Greenbush Central School Dist., 408 Fed.

Appx. 411 (2d Cir. 2010) (citing Burr v. Ambach, 863 F.2d 1071, 1078 (2d Cir.1988);. A compensatory remedy must be “appropriate in light of the purpose of the Act.” E. Lyme Bd. of Educ, supra.

As an equitable remedy it is left to the impartial hearing officer to determine the appropriate quantity of services to be awarded. The theory is that a compensatory award should aim to place the student in the position he or she would have been in but for the violation of the IDEA.

Draper v. Atlanta Indep. Sch. Sys. 518 F.3d 1275, 1289 (11th Cir. 2008).

Of course in practice such an inquiry is difficult if not impossible. Hence there are two accepted methods of calculating relief: (a) an hour-for-hour return, or (b) an award to “be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.”

| agree with the parent that some compensatory services are warranted here to help the student make up for the loss of additional support in the classroom. It is impossible to quantify what benefits a paraprofessional would have provided but at a minimum she or he would have likely shortened the duration of the morning tantrums and been helpful in keeping the student focused on the lessons. | reject the parent's claim that it is fair to compensate for the entire six-hour school day. Instead I will award^[180] hours calculated as one hour per day for

NAMES AND TITLES OF PERSONS WHO

APPEARED ON: May 30, 2019

For the Student:

For the Department of Education:

Parent, Esq. Attorney

Cousin

Esq. Attorney

NAMES AND TITLES OF PERSONS WHO July 5, 2019

APPEARED ON:

For the Student:

For the DOE:

Esq.,, Esq.

Parent, Psychologist

NAMES AND TITLES OF PERSONS WHO August 15, 2019

APPEARED ON:

For the Student:

For the DOE:

Esq., Esq.

parent

parent

Zjana Ray, Uncle

NAMES AND TITLES OF PERSONS WHO September 24, 2019

APPEARED ON:

For the Student:

For the DOE:

Esq., Esq.

parent

Cousin

NAMES AND TITLES OF PERSONS WHO

APPEARED ON November 19, 2019

For the Student:

For the DOE:

Esq., Esq.

, BCBA

ww Gp Departmentof Education

RICHARD

RTMENT UCATI IT LIST

CARRANZA

Chancellor

Howard Friedman

Student: General Counsel

Case Number: 177506 131 Livingston St.

Date: Rm, 402 Brooklyn, New York 14201

718-935-5033

Hearing Date: May 30, 2019 direct dial 718-935-5142 fax

Dept Attorney:

Exhibit | Date Title/Name Pages a I 10/07/2016 IEP revised 16

2 10/07/2016 Prior Written Notice 4

3 03/29/2016 IEP 16

4 03/01/2016 Notice of Meeting 5

5 03/15/2016 Notice of Meeting 5

6 03/31/2016 Prior Written Notice 7

7 05/09/2016 School Location Letter 5

8 03/08/2016 Classroom Observation _ !

9 01/11/2016 | Community Ed. Services- 3

10 01/07/2016 Community Ed. Services — OT Report 2

1} 12/30/2015 Community Ed. Services — PT Report 2

12 03/08/2016 Post Observation Teacher interview 4

13 01/13/2016 Consent for Reevaluation

|

14 01/20/2016 Request for Release of Records

I

1S Undated Parent Survey l

16 02/09/2015 | Child Outcomes Summary Form e)

17 Various Assorted CPSE documents

30

18 03/29/2016 Child Outcomes Summary Form 2

19 Various

16

20 10/05/2015 21 Various — Final Notice Recommendation 22 Various SESIS Events Log 23 09/29/2016 Waiver of IEP mecting form

} if, fig tase No. 177506

LIST OF

EXHIBITS

f. Exhibit | Description Date Pages [IA Neuropsychological Evaluation April and 24

JA. AB Letter from | §/4/2018 2 pages

a. > Le [ Summary and Recommendations 5/25/2018 2 pages

on. D Neurodevelopmental Evaluation Referral Undated 6 pages

E. WITHDRAWN 2017-2018 2 pages

F. Due Process Complaint 9/7/2018 13 pages

G. WITHDRAWN 4/3/2017 6 pages

H. 1/12/2015 8 pages

I. 12/16/2014 4 pages

Jj. 11/21/2014 5 pages

K. L WITHDRAWN Various Dates | 17 12/16/2014 6 pages

M. WITHDRAWN N WITHDRAWN Various Dates | 10 Undated 3 pages

O. WITHDRAWN 3/18/2016 2 pages

P. WITHDRAWN 3/18/2016 2 pages

Q. WITHDRAWN 1/16/2018 3 pages

R. Undated 45 pages

S. 8/14/2018 17 pages

T. 4/3/2017 6 pages

U. WITHDRAWN 1/11/2016 3 pages

Vv. WITHDRAWN 9/6/2017 2 pages

Ww OMITTED

X WITHDRAWN Undated 2 Y OMITTED 4/3/2017 6 Z OMITTED 1/11/2016 3 AA OMITTED 9/6/2017 2

BB OMITTED

CC WITHDRAWN 2017 Update | 136 DD

Print Date 4 from Internet

TWAS

EE

5/3 2019 6 FF Undated 14 GG 10/01/2019 6

HH

11/18/2019 6

Footnotes

[180] school days to be divided as the parent wishes between ABA and tutoring services.. THEREFORE IT IS FOUND that the DOE did not provide a FAPE for the 2016-2017 school year and IT IS ORDERED that 180 hours of supplemental ABA and/or tutoring services are appropriate as compensatory services. January 30, 2020 /s/ Susan C Lushing PLEASE TAKE NOTICE The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.