Impartial Hearing Decision

DECISION-ORDER Case Number: 181089 Student’s Name: Redacted Hearing Requested By: Parent Hearing Officer: Martin J. Kehoe IIT, Esq.

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (DEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student. The complaint notice in this matter is dated January 11, 2019. J was appointed after the recusal of one or more previously appointed hearing officers. A pendency hearing was held on February 27, 2019, and I issued an order on consent, the same day. A hearing was held over the course of several days including a prehearing telephone conference on March 14, 2019 and various other dates at the convenience of the parties: June 13, 2019; June 18, 2019, July 16, 2019; September 25, 2019; January 23, 2020; and April 1, 2020. The Parent submitted a closing dated April 28, 2020.( Ex. THO 1). Parent’s Position In the complaint notice (Ex. A) the Parent alleged that the District failed to provide a Free Appropriate Public Education (FAPE) for the 2017-2018 and 2018-2019 school years. The Parent was seeking a new placement in a non-public school that uses research based methodology; 1:1 ABA instruction and related services; and an JEP that includes the following: 25 per week of 1:1 ABA at an enhanced rate; 2 hours per week of parent counseling and training by a BCBA at an enhanced rate; 2 hours per month of BCBA supervision; individual counseling 1x30 and counseling in a group of 3, 2x 30; 1:1 occupational therapy 2x30; 1:1 speech language therapy

1x30; speech/ language in a group of 3, 2x 30; special education transportation with limited time travel; a 12 month school year; and compensatory educational services at an enhanced rate. District’s Position The District did not submit any evidence or call any witnesses, but they did cross-examine the Parent’s witness. Student Profile/History The Student is an ll-year-old boy diagnosed with Autism Spectrum Disorder (ASD), Developmental Coordination Disorder, and Attention-Deficit/Hyperactivity Disorder, Combined Presentation. (Ex. C). He presents with deficits in nonverbal communicative behaviors used for social interaction and deficits in developing, maintaining, and understanding relationships, requiring substantial support. Ex. C-23. The Student also presents with deficits in restricted patterns of behavior, interests, or activities, including stereotyped or repetitive motor movements and the use of objects or speech. He maintains and insistence on sameness, an inflexible adherence to routine and displays ritualized patterns of verbal or nonverbal behavior and highly restricted, fixated interests that are abnormal in intensity or focus. Lastly, he exhibits hyper-or hypo-reactivity to sensory input or unusual interest in sensory aspects of the environment thus requiring very substantial support. (Ex. C-23). The Student exhibits significant learning and behavioral deficits consistent with his diagnosis of Pervasive Developmental Disorder and Attention Deficit Hyperactivity Disorder. These behaviors include a significant delay in expressive and receptive language, inconsistent eye contact and response to his name, the need for maximal redirections to orient him back to tasks or to initiate/terminate activities. (Ex. C). The Student attends a 12:1:1 Special Class at a charter schoo! within the District. Ex. A. When the Student came under the jurisprudence of the District’s Committee on Special Education (“CSE”) at the age of 5 he exclusively attended 12:1:1 special class placements at the charter school. This placement was attributed to the Student’s intensive academic, social emotional and behavioral needs. The 12:1:1 special class placement at the charter school did not provide sufficient supports for the Student’s needs. (Ex.s A & B). Pursuant to a Findings of Fact and Decision (“FOFD”) issued on April 30, 2018; the District was directed to provide the student with 15 hours per week of 1:1 SETSS/ABA instruction in school and independent educational evaluations for Speech & Language Therapy, Assistive Technology and a Functional Behavior Assessment. Ex. B 19-20. Ex. B. Pursuant to the FOFD issued, the Student began to receive 13 hours of 1:1 push-in SETSS/ABA service in school and 2 hours of 1:1 SETSS/ABA in a home program. (Ex. M). The Student made incremental progress with the implementation of this program. (Ex. M-8). Legal Background The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(1). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as 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, or secondary school education in the state involved, and - (D)are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9). A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an JEP. 20 U.S.C. § 614(d). The “core of the statute ... is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005). The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(1)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). ' “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002). In New York State, “|t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing ...” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537. Analysis The IDEA ensures that “all children with disabilities have available to them a FAPE and “that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. §1400(d)(1)(A)(B). A FAPE must meet a student’s “unique needs and prepare them for further . . . independent living.” 20 U.S.C. §§1400(d)(1)(A)-(B), 1412(a)(1). A FAPE is offered 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 a student to receive educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-181, 20201(1982). A child’s IEP must be evaluated based on the child’s ability to make appropriate progress and be ambitious in light of the child’s unique circumstances. Endrew F. v. Douglas County School District, 580 U.S. , 14 (2017). Each child should have the chance to meet challenging objectives. ld. The progress contemplated by the IEP "must be appropriate in light of the child’s circumstances," be more than de minimus and include academic and functional progress. Endrew F., 580 U.S. , 11 (emphasis added). In this case the District bore the burden to establish that it provided the Student with a FAPE as well as all other issues alleged in the DPC (Ex. A). N.Y. Educ. Law §4404(1)(c); See SRO Nos. 16-028; 13-200; 11-091; 11-053. See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016). When the District fails to introduce evidence in a compensatory education case, the burden of proof as to both liability and remedy falls on the District. See SRO Nos. 14-014; 16-033. The District is not permitted to simply oppose the relief being requested by the Parent and, where relief is unrebutted, the SRO has ordered the requested remedy. Further, | deem factual allegations in the complaint notice to be admitted where, as here, the District has failed to address them. See SRO Nos.15-011; 14-179; 01-044. The District did not meet its burden on any of the issues. The District did not provide any evidence demonstrating that they provided the student with a FAPE on a substantive level for any of the school years (“SYs”) at issue. Here, the District did not present any witnesses, did not proffer an Opening statement and did not submit any evidence onto the record. Thus, I find that the District failed to provide the Student with a FAPE for the 2017-2018 and 2018-2019 school years. The District also failed to rebut any of the Parent’s evidence or contest any of the relief she seeks. In light of the above, I deem the allegations in the complaint notice to be admitted and true (see, e.g., SRO Nos. 01-044, 14-179).

Compensatory Education

Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . . mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]. Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation 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 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]. Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... .

compensatory education is an available option under the Act to make up for denial of a [FAPE}"]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]). Likewise, SROs 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 (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO 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 the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]). In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for” a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award 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"|; Parents of Student W.v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]lompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour- by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Parents of Student W. vy. Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014.

Based upon the record in this case I find that the District failed to provide the Student with a FAPE for the 2017-2018 and 2018-2019 school years. Nevertheless. I have reduced requested award regarding the requests for large “banks” of compensatory hours for three reasons. One, I am confident in the CSE and their ability, guided by the Neuropsychological Evaluation and the other evaluations developed over time, and that are included in this record can make good decisions about the Student’s programming needs and related services going forward. Two, I am persuaded by testimony that the Student who is now in the proper learning environment, called for in my order, will be able to make progress. Three, I recognize there are a finite number of hours per week, and the demands of the Student’s school year along with significant hours of tutoring, may be daunting. Inherent limits of stamina, pace, concentration and the like could easily place an unintended burden on the Student and the family. I attempt to mitigate these unintended consequences with my order. it is therefore ORDERED 1) The District provide a legally valid TEP that comports with the procedural aspects of the IDEA and includes but is not limited to the following services: a. 35 hours per week of 1:1 ABA services or 1:1 behavior support to be pushed-in to the Student’s current District placement; b. 1 hours per week of BCBA supervision at the Student’s current placement; c. 5 hours per week of 1:1 home-based ABA or 1:1 behavior support; d. 1 hour per week of home-based Parent Training; e. Occupational Therapy Services in school 2x30 in a group of 2

f. Individual Speech and Language Therapy 2x45 weekly; g. Speech and Language Therapy in a group of 2 1x454 weekly; h. 12-month extended school year services; and i. Special Education Transportation with “Limited Time Travel” j. Assistive Technology Equipment/Hardware/software: ¢ Google Pixelbook * Google Pixelbook Pen * Sleeve for Google Pixelbook * Moshi USB-C to USB-A Adapter * Logitech Bluetooth Mouse * Bose-QuietComfort 35 Wireless Headphones II. k. Assistive Technology Software: * Read and Write literacy software by Texthelp * Fast For Word ° Google Docs ¢ Co-Writer Universal ¢ Webspiration Classroom « Google Keep * Audio Recorder Pro 2) Independent Audiological evaluation 3) Independent Auditory Processing Evaluation 4) 36 hours of Assistive Technology Training 5) Behavior Intervention Plan created by BCBA of parent’s choosing based upon previously FBA conducted 6) A bank of 600 hours of 1:1 ABA or 1:1 behavior support and 60 hours of parent training (for the period beginning July 1, 2017 until the issuance of this order) to be utilized over the course of the next two years. 7) A bank of 180 speech and language hours calculated by the clinical provision of weekly SLT services over the course of the next two years. The Parent may utilize providers of her choosing for all services awarded in this Final Order, so long as the individuals are qualified and charge reasonable rates.

Dated: July 3, 2020 Martin Y-feetiog iH Esq. Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL 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 a 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 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.

CERTIFICATION OF IMPARTIAL HEARING OFFICER in the Matter of: - (Name of Student) Hearing Dates: 6/13/19;6/18/197/16/19;9/25/19; 1/23/204/1/20 I, Martin Kehoe , Impartial Hearing Officer in this matter DO HEREBY CERTIFY that the attached Evidence and attached Index of Exhibits itemize the entire record before me in the above entitled matter as of this date. | FURTHER CERTIFY that the materials submitted herewith are either the original or true copy of the original documents submitted in th atter. iS 07/03/2020 ety a C7 Signature of !mpartial Hearing Officer Date Signed Comments/Notes:

The Law Office DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK IMPARTIAL HEARING OFFICE In the Matter of Case No. 181089 LIST OF EXHIBITS Exhibit | Description Date Pages A Due Process Complaint 1/11/2019 A5 B Finding of Fact and Decision, Case No. 4/13/2018 23 C TEP 8/03/2018 2 D TEP 2017/2018 16 E Prior Written Notice 8/07/2018 3 F Functional Behavior Assessment from 5/15/2019 14 G | SETSS ABA Progress Report 5/31/2019 9 H Assistive Technology Evaluation from 2/05/2019 7 I Speech and Language Evaluation from 2/05/2019 {2 J Physical Therapy School Function Evaluation 8/2/2018 J Tracking Form K Physical Therapy School Function Evaluation 8/2/2018 4 L Educational Evaluation Report 8/2/2018 2 M Neuropsychological Evaluation 8/15/2017 33 N Affidavit of 06/12/2019 9 O Affidavit of 08/17/2019 8

IMPARTIAL HEARING OFFICE Pleasesubmitform and evidence to: IHOEvidence@schools.nyc.gov IMPARTIAL HEARINGOFFICEREVIDENCE 181089 Student’s Name: z Case Number: Date of Hearing: 07/03/2020 (useseparate sheet for each date of hearing) Enter Exhibit No. . gs we No. of Date DateDate Marked forID" Brief Description of Exhibit Pages Offered Admitted Withdrawn 1 Parents Brief 23 = | 04/28/2020 | 04/28/2020 * ImpartialHearingOfficerExhibits: marked with Roman numerals (I,Il, Hill...) y ittéd, Or withdrawnon thedateindicatedabove. | certify thattheevidence listed herein was offéred, ady Impartial Hearing Officer: 07/03/2020 “ " Usignatuge) "NDate: March2020