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FINDINGS OF FACT AND DECISION
Case Number: 179317
Student’s Name:
Date of Birth:
District:
Hearing Requested by: Parent
Date of Hearing: October 4, 2019
Actual Record Closed Date: April 23, 2020
Hearing Officer: Michael Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 5, 2019
For the Student:
Attorney
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 6, 2019
For the Student:
NONE
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 4, 2019
For the Student:
Attorney
parent
parent
For the Department of Education:
District Representative
On the Due Process Complaint designated above, the matter of the above student came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.
The parent brought this complaint to challenge the Student’s IEP and program for the 2016-2017, 2017-2018, and 2018-2019 school years, alleging a variety of FAPE violations. As a remedy, the parent requested a wide variety of relief. Upon the joint application of the parties, multiple timeline extensions were granted in this case. For each such extension, I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(i1) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District.
FINDINGS OF FACT
The Student is a who is eligible for services as a student with Emotional Disturbance. He is diagnosed with autism spectrum disorder and Hyperactive type ADHD (Ex. R, p. 6; Ex. P, p. 13; see also Ex. C, p. 3). The Student performs below grade level in reading and math, although his foundational academic skills appear to be within normal limits and his intellectual functioning intact (Ex. C, p. 3; Ex. P, p. 12 & 14). He has difficulty with peer interactions, interpreting social cues, initiating social interactions, and emotional behavioral regulation per an independent neuropsychological evaluation conducted in April 2019 by , a NYS Licensed Clinical Psychologist (Ex. P, p. 13). The Student’s language is limited and he demonstrates some echolalia of speech and can be impulsive, hyperactive, and inattentive (Ex. P, p. 13).
According to the hearing record, the Student needs a wide variety of accommodations and supports in school, including an ABA school placement in a class size no larger than six students and a full-time 1:1 paraprofessional who is trained in ABA (Ex. II, p. 2); a multisensory curriculum with individualized attention (Ex. P, p. 14); speech therapy and occupational therapy with a therapist who is trained and experienced with children on the autism spectrum (Ex. P, p. 14); group counseling to practice social skills as well as individual counseling (Ex. P, p. 14); a Functional Behavioral Assessment (“FBA”’) and Behavior Intervention Plan (“BIP’’) conducted by a Board-Certified Behavior Analyst (““BCBA”) (Ex. P, p. 14-15); an elopement plan (Ex. II,
p. 2); parent counseling and training at home; teacher check-ins/repetition of information; and a visual scheduled (Ex. P, p. 15).
The Student spent two years in preschool under the Committee on Preschool Education and received a total of five IEPs while in preschool. The Student’s preschool IEPs provided no specialized instruction, but the first IEP, dated June 8, 2016, provided a 9:1:3 special class integrated setting and speech-language therapy three times a week individually (Ex. I, p. 8). The April 20, 2017 IEP provided a 10:1:1 special class integrated setting, speech-language therapy three times a week individually, and occupational therapy twice a week individually (Ex. H, p. 17). Parent counseling and training were not provided. The June 13, 2017 IEP added a 1:1 paraprofessional (Ex. G, p. 1 & 14). The July 21, 2017 IEP provided the Student with a 12:1:2 special class with speech-language therapy twice a week individually, once in a group; occupational therapy twice a week individually; and counseling services once a week individually (Ex. F, p. 1). On January 29, 2018, group counseling services were added (Ex. E, p. 1-2 &19).
The Student’s first kindergarten IEP dated March 20, 2018 provided him with a 12:1+1 special class in District 75 with counseling services twice a week, once individually and once in a group; occupational therapy once a week individually; parent counseling and training in a group once a month; and speech-language therapy twice a week, once individually and once in a group (Ex. D, p. 7). Due to difficulties in the 12:1+1 setting, the Student’s June 18, 2018 provided the Student with an 8:1+1 special class with counseling services twice a week, once individually, once in a group; speech-language therapy twice a week, once individually, once in a group; occupational therapy once a week individually, and parent counseling and training once a month in a group (Ex. C, p. 6). No specialized instruction was provided to the Student in kindergarten. The Student made insufficient progress during these school years, while his behavior deteriorated (Ex. C, p. 3), necessitating a major change in the Student’s educational program.
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
A FAPE is offered to a student when (a) the District 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. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. 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. 20 U.S.C. Sect. 1415()(1)(E)G); 34 C.F.R. Sect. 300.513(a)(2). A free appropriate public education “must include ‘special education and related services’ tailored to meet the unique needs of a particular child, and be ‘reasonably calculated to enable the child to receive educational benefits.’ ’ Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted). While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. 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. 20 U.S.C. Sect. 1415((1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
The Department of Education did not present any witnesses or evidence, and did not make an opening or closing statement. (Tr. @ 13-14). As a result, I find that the Department of Education has not met its burden, and the Student was denied a FAPE the 2016-2017, 2017-2018, and 2018-2019 school years.
REMEDY
Where school districts have failed to offer students a FAPE, courts have wide discretion to ensure that students receive a FAPE going forward. As the Supreme Court has stated:
The statute directs the court to “grant such relief as [it] determines is appropriate.” The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be “appropriate” in light of the purpose of the Act. As already noted, this is principally to provide handicapped children with “a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.
School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359, 371 (1985).
The parent seeks that the Student be placed in a more specialized school program in an appropriate nonpublic school, along with payment for *s April 2019 neuropsychological evaluation (Ex. P), independent occupational therapy and speech-language evaluations, an autism skills assessment by a BCBA, an independent assistive technology evaluation, an independent FBA and BIP by a BCBA, and a reconvene meeting of the Committee on Special Education.
The parent also seeks compensatory education. Compensatory education is an available option under the Act to make up for denial of a free and appropriate public education. While the Circuit has previously enunciated a “gross violation” standard in this connection, Garro v. State of Connecticut, 23 F.3d 734, 737 (2d Cir. 1994), this standard is at odds with the standards in most jurisdictions. In P. v. Newington Bd. of Educ., 546 F.3d 111 n.13 (2d Cir. 2008), the Circuit signaled that the Garro approach is only applicable where Students are over 21. In so analyzing this issue, the court referenced the seminal compensatory education case of Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). In Reid, the D.C. Circuit explained that compensatory education should be fashioned without a “cookie cutter approach” and that compensatory education must 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. Id., 401 F. 3d at 524; see also Friendship Edison Public Charter School v. Nesbitt, 532 F. Supp. 2d 121, 125 (D.D.C. 2008) (compensatory award must be based on a "qualitative, fact-intensive' inquiry used to craft an award ‘tailored to the unique needs of the disabled student"). Additionally, there is authority in this jurisdiction for a “quantitative” approach to compensatory education. Application of a Student with a Disability, Appeal No. 14-172 (reducing a quantitatively determined award of additional services based upon evidence in the hearing record demonstrating that the student received some special education services and received some degree of benefit therefrom).
The parents are requesting funding for an assessment by a special education teacher, 1:1, private, compensatory ABA services, speech-language therapy, occupational therapy, counseling services, social skills training, and ABA therapy (Ex. A, p. 11-12). The Petitioner provided testimonial affidavits from five witnesses in support of this proposition (Ex. II, Ex. JJ, Ex. KK, Ex. LL, Ex. MM), and there was no objection from the Department (Tr. @ 17).
The parents are requesting compensatory services as follows: a) 690 hours of ABA by , @ $126 per hour; b) 69 hours of BCBA supervision by , @ $150 per hour; c) 138 hours of Parent Counseling/Training by , @ $126 per hour; and d) 103.5 hours of counseling/social skills training by , @ $150 per hour.
Given my above finding of denial of FAPE, I find that the Parent’s proposal for the Department to place the child in an approved nonpublic school by the Department’s own Central Based Support Team with direction to find a placement in a NYS approved non-public school as outlined and supported in the evaluations, is appropriate and supported by the record herein. Though the relief requested is extensive, there is no objection at all from the Department, and the record reflects that the parents have submitted credible testimonial affidavits in support of every such demand. Under the circumstances, the hearing officer is constrained to grant the relief requested.
ORDER
As aresult of the foregoing, I order the following:
1. The Department shall promptly fund the Neuropsychological evaluation already completed by in the amount of $5,000; a Speech/Language evaluation by in the amount of $1,200; an Occupational Therapy evaluation by in the amount of $1,200; an Assistive Technology evaluation by in the amount of $1,850; an ABA skills assessment by in the amount of $1,000; an FBA by in the amount of $1,500; and a BIP by in the amount of $450;
2. The Department shall convene the Committee on Special Education within fifteen business days of this order to address the Student’s individual learning needs to immediately change his classification from Emotional Disturbance to Autism, to create measurable goals, and to develop an JEP that specifies a tailored program for the Student in a 12-month program; place the Student in a more specialized school program in an appropriate nonpublic school; by its own Central-Based Support Team for placement by a recommendation of nonpublic school in this IEP.
3. The Student shall receive: 690 hours of ABA by , @ $126 per hour; 69 hours of BCBA supervision by , @ $150 per hour; 138 hours of Parent
Counseling/Training by , @ $126 per hour; and 103.5 hours of counseling/social skills training by , @ $150 per hour.
Dated: April 23, 2020
MICHAEL LAZAN, ESQ.
Impartial Hearing Officer
ML:
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.
DOCUMENTATION ENTERED INTO THE RECORD
STUDENT
A Request for due process, 11/8/18, 14 pages
B Due process response, 11/16/18, three pages
C IEP, 6/18/18, 11 pages
D IEP, 3/28/18, 13 pages
E IEP, 1/29/18, 19 pages
F JEP, 7/21/17, 20 pages
G IEP, 6/13/17, 18 pages
H JEP, 4/20/17, 21 pages
I IEP, 6/8/16, 13 pages
J Consent, 11/17/18, two pages
K TEE request, 11/7/18 two pages
L Email correspondence, 5/21/18, four pages
M recommendation 20 letter, 4/23/19, one page
N Teacher letter, 6/5/17, two pages
O OT rationale, 12/1/16, one page
P Neuropsychological evaluation, 4/12/19, 18 pages
Q Psychoeducational evaluation report, 4/27/19, seven pages
R Pediatric evaluation, 3/27/18, six pages
S Classroom observation, 2/7/18, eight pages
T Social evaluation, 2/2/18, three pages
U Speech and language review, 1/23/18, four pages
V OT evaluation, 1/10/19, three pages
W 12-month rationale, 5/26/17, two pages
X OT evaluation, 3/10/17, four pages
Y Psychological evaluation, 4/11/16, five pages
Z Preschool evaluation summary report, 4/11/16, two pages
AA CPSE social history, 4/11/16, two pages
BB Speech evaluation, 12/3/15, five pages
CC Counseling report, 1/9/18, five pages
DD Educational report, 1/5/18, three pages
EE Progress report 2017/18, 11/6/17, three pages
FF Progress report, 4/14/17, four pages
GG Progress report, 2/1/17, three pages
HH Early intervention progress notes, 8/22/16, two pages
II affidavit, 5/6/19, three pages
JJ affidavit, 4/29/19, one page
KK affidavit, 4/26/19, one page
LL affidavit, 9/26/19, one page
MM affidavit, 10/4/19, one page