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NEW YORK STATE EDUCATION DEPARTMENT
IMPARTIAL HEARING
In the matter of
DECISION AND
-against- ORDER
Case #: 181451 New York City Department of Education
FINDINGS OF FACT AND DECISION
Case Number: 181451
Student’s Name:
Date of Birth:
Hearing Requested By: Parent
Date of Hearing: May 28, 2020
Actual Record Closing Date: July 3, 2020
Hearing Officer: Laurie B. Lee, Esq.
PROCEDURAL HISTORY
I was appointed to this case as hearing officer on February 4, 2019 via the Parents’ Due Process Complaint in case number 181451 dated February 1, 2019. (Ex. A). A second
Due Process Complaint was filed April 6, 2020 (Ex. PP) (originally numbered ), and the two cases were consolidated under 181451 on April 15, 2020. ( Ex. QQ)
A Pendency Hearing was held for the case on February 7, 2019, and a Pendency Order issued for the case dated February 20, 2019 which added 8 hours of SETSS to the Student’s previous school based services. ( Ex .RR) Pre Hearing conferences were held for the case on March 14, 2019, June 13, 2019 and March 11, 2020. (Ex. I) Status
Hearings were held for this case on March 28, 2019 and August 15,2019. (Ex. I) On April 18, 2019 an Interim Order was issued to fund Comprehensive Independent Evaluations to access the Student’s needs and functioning. (Ex. SS) A Hearing for this case was held on May 28, 2020. The issues in the case are if there was a denial of FAPE what the appropriate programming and remedy for the student should be.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1 ][A]-[B]; see generally Forest Grove v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (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 a procedural violation is 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 (20 U.S.C. §1415[f][3][E]
[i]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[}][4][ii]; see
Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; 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 (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; 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" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (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" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see 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" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).
The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][iJ, 300.116[a][2]; 8 NYCRR 200. 1[cc], 200.6[a][1]; see 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; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). A FAPE must meet a student’s “unique needs and prepare them for further education, employment, and (14 independent living.” 20 U.S.C. §§1400(d)(1)(A)-(B), 1412(a)(1). A FAPE must also “include an appropriate .. . elementary or secondary education in the state,” meet the “standards” of the state that apply to all children and be provided pursuant to an IEP. 20 U.S.C. §$1401(9), 1414(d)(2)(A). See also Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982).
The U.S. Supreme Court recently held that a child’s IEP must be evaluated based on the child’s ability to make appropriate progress and be appropriately ambitious considering the child’s unique circumstances. Endrew F. v. Douglas County School District RE-1, No. 15-827, 580 U.S. _, 14 (2017). 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(“[w]hen all is said and done, a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all.”’). See also, Letter to Clarke, 48 IDELR 77 (OSEP 2007)("educational performance" is not limited to "academic performance"). IEPs are supposed to “ensure access” to “the general curriculum” so that students have the opportunity to “meet the educational standards within the jurisdiction . . . that apply to all children.” 34 C.F.R. § 300.39(b)(3); 34 C.F.R. § 300.320(a)(1)(1). IEP goals and services have to be “aligned with State academic content standards for the grade in which [a student is] enrolled.’ Further, when a student’s “present levels of academic performance are significantly below grade level,” IEP goals and services should be “sufficiently ambitious to help close the gap” between the student’s skills and the standards. /d. at 5. The IDEA also requires each state to “have in effect policies and procedures to demonstrate that the State has established a goal of providing full educational opportunity to all children with disabilities, aged birth through 21, and a detailed timetable for accomplishing that goal.” 20 U.S.C. §1412(a)(2).
The IEP should be based on current and comprehensive multidisciplinary evaluations, progress reports, district-wide assessments, observations, and input from teachers, providers, and other individuals with knowledge of the child.”[5] Every child’s IEP must contain a statement of “special education and related services and supplementary aids and services,” and “program modification or supports for school personnel.” See 20 U.S.C. §1414(d)C1 )(AVG@AYV), 34 C.F.R. §§300.320(a)(4), 300.324(a)(2)(1).
While the IDEA defines the categories of services that must be offered, the list is not designed to be exhaustive. See 20 U.S.C. §1401(29). The types of services that must be prescribed on an IEP and/or considered by the IEP team include, but are not limited to 356 (4 special education services— defined as “specially designed instruction,” “related services,” supplementary aids and services for children during the school day as well as during any nonacademic and extracurricular activities, and Extended School Year (
“ESY” or 12-month school year).” To fulfill the IDEA mandate, the DOE was also required to adopt a “continuum of alternative placements” that must include, inter alia, regular class, special classes, special schools, instruction at home, and must make provision for “supplementary services.” 20 U.S.C. §1401(29); 34 C.F.R. § 300.115. Finally, the IDEA mandates that the DOE “establish and maintain procedures,” to ensure that parents and children are “guaranteed procedural safeguards.” 20 U.S.C. §§ 1414, 1415. The IDEA mandates that the Defendants provide due process rights, notices, and procedural safeguards. 10 There is a denial of FAPE on both “substantive grounds” and/or due to “procedural inadequacies,” in this case. The inadequacies impeded I.P.’s “right” to FAPE, “significantly impeded the Parents’ opportunity to participate in the decision making process” or “caused a deprivation of educational benefits.” Jd. 20 U.S.C. §1415()(3)(E).
The Second Circuit has found that certain procedural violations standing alone — and in combination - may cumulatively result in the denial of a FAPE even if the individual violations, standing alone, do not. L.O. v. New York City Dep't of Educ., 822 F.3d 95 (2d Cir. 2016).
BURDEN OF PROOF
The DOE bore the burden as to whether FAPE was offered N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal Nos. (“SRO Nos.”) 16-028; 13-200; 11-091; SRO No. 11-053. The DOE did not have any witnesses in this case; nor did they object to anything in the case that the Parent presented; nor did the DOE submit any of their own evidence or witnesses . The District was also given the chance to submit a written closing statement but did not produce anything. Absent the DOE's production of evidence, the deficiencies alleged in the IEP, along with all other allegations, should be deemed admitted. All allegations that are not disproved by the other party or inconsistent with the record. See, e.g., Application of a Student with a Disability, 01-044. I find that the DOE's failure to submit any evidence not also supplied by the parent, or witnesses of their own (or question witnesses of the Parent) whatsoever on its behalf or in support of its IEP and recommended programs and services amounts to an admission of the charges Parent made against them in the DPC.
Accordingly, I deem as true all Parent's allegations against the DOE as admitted, and consider all such allegations to be true for purposes of this Decision.
BRIEF DESCRIPTION OF THE “STUDENT”
isa -year old student (“student”) attending a special class in the , who is diagnosed with autism. ( Ex. A, Z, AA). There are facts regarding the Student reflected in the Evidence which are undisputed by the District. These facts were also brought out via Affidavits and at the hearing through witness testimony.
The important facts, as summarized by the Parents, are as follows:
*s autism entails delays in the behavioral, communication, social, and physical
14 domains. He also has weaknesses in cognition, focus, attention, eye contact, socialization, and expressive and receptive language. (Ex. A15). He can’t maintain a conversation. (Ex. Al6). He can’t tolerate loud noises or transitions from one activity to the next. (Ex. A 18-20). He elopes when he is agitated, for example on the subway. (Ex.
A 21-22). He has virtually no skills of daily living. (Ex. A 24-26). ’s verbal IQ is in the 1st percentile. (Ex. A 32). In academics, has delays in reading comprehension, language structure, verbal reasoning, and written expression. (Ex. R - 12, 13)
But has strengths as well. His non-verbal IQ is in the 21st percentile. He has a large vocabulary and strong non-verbal cognition. (Ex. A 30, 34). His non-verbal problemsolving skills indicate that he could understand and navigate the world around him. (Ex.
A 34). In addition, he has average to high average scores in block design, puzzles, matrix reasoning, pictorial categories, and geometric categories. (Ex. A 33). He has solid spelling skills. He has age-typical math skills. (Ex. R-12) is a child who can learn and who has a chance at post-secondary success. (Ex. R; Ex. R 7; Ex. L). In order to achieve academic and non-academic goals, however, he needs substantial supports. (Ex. R-13-16). But to date, his education has not been appropriate, as conceded by the DOE when it failed to defend this case. There is good reason for the default. ’s IEPs indicate that has not progressed past the fifthgrade instructional level in reading since 2016. (Ex G-11; Ex. E-18; Ex. J-27; Ex. K-26).
His level of math is reported variously, but the IEPs record it as fifth-grade. (Ex MM 22; Ex. II 42)”
TESTIMONY OF THE WITNESSES/ACCOMPANYING EVIDENCE
The first witness called by the Parents was Dr. . Dr. testified via affidavit (Ex. KK), and was available for cross examination; however, the District did not have any questions for this witness. Dr. was qualified as a witness, and his report regarding the student is in evidence as Exhibit R. The witness is licensed to practice in New York has and M.S. and Psy.D. in School Psychology from. . He also completed PostDoctoral Studies and and also at where he. Is currently employed as a Clinical Neuropsychologist. (Ex. KK)
Dr. thoroughly evaluated the Student on May 30, June 6 and June 13, 2019; each session lasting approximately 3 hours. (Ex R 1-4) and multiple tests and subtests (Ex. R)
The recommendations made by Dr. are set forth below. Again, it is notable that the District did not object to anything submitted as evidence; nor did they even have any questions for the witness who was available for questioning regarding both his statements in his affidavit and his findings in his report. The recommendations include:
* A highly structured school, with multi-sensory learning and evidence-based interventions;
* A school with the capacity to monitor *s academic, social and emotional progress;
* Until sucha school is found, should have a direct 1:1 qualified learning specialist to provide intensive education in reading comprehension and reading skills;
* A small special education classroom for intellectually capable children with A.S.D.
and/or language disorders; * The classroom should not contain children with behavioral or emotional problems;
* Intensive support in math and written expression;
* Speech-Language therapy;
* Occupational therapy;
* Assistive Technology;
* Counseling;
* Parent training;
* Ten hours per week of Applied Behavior Analysis (“ABA”) after school;
* Push-in 1:1 ABA/SETSS to his current school program until gains acceptance to a school that is able to meet his needs. (Ex. KK-13).
The next affidavit examined was that of Dr. which was entered into evidence as Exhibit JJ; this affidavit was notarized. The District reviewed the affidavit and said that they had no questions for the witness. Thus, although the witness had made himself available for cross examination, there was no need to call him as the District accepted the contents of the affidavit as straightforward fact. ( T. 114) Dr. is the C.E.O and Clinical Director at . He holds and M.S. in Early Childhood General and Special Education and a Ph.D. in Clinical Psychology, and is licensed to teach Early, General and Special Education.
He is also Board-Certified in Applied Behavior Analysis and has provided ABA services to children since 2003.
Dr. has been providing ABA to the Student for two and one-half years since November 2017. He has worked successfully with the student on emotional functioning, motor and daily living skills. In his affidavit, Dr. described the progress the student has made with ABA (Ex. V, W and Y) , and why the Student needs ABA in both school and at home to progress. (Ex.
JJ 4-9) His recommendation was consistent with Dr. . Dr. recommended that the student receive 20 hours of SETSS-ABA at school and 10 hours of ABA home instruction.
(Ex. JJ 9). He additionally recommended 2 hours/month of parent training by a BCBA in order to teach the family how to reinforce the Student’s goals remarking that “it is essential in his ABA program that there is consistency of services across settings.” (JJ 10)
The next witness, , also testified via affidavit (Ex MM) but was available for cross examination. Ms. has a B.A. in Speech-Language and Hearing and an M.A. in Communications Science, and is licensed in New York as a Speech-Language pathologist. She is also trained in Assistive technology. She works as the President of which both provides Speech-Language (“SL’’) and Assistive Technology (“AT”)
evaluations and training. Ms. conducted both a SL evaluation (Ex. NN) and a AT evaluation (Ex. GG) of the Student. The evaluations consisted of tests which were administered to the student (CELF-5 AND WIST for SL), classroom observation and interviews with both his teacher and family. Ms. noted that the Student “ is a student with complex communication needs”. (Ex. MM 5) She found that although he had a relative strength in spelling, he had significant areas of weakness in speech and language including literacy. (Ex.
MM 10) Based on the SL evaluations, Ms. recommended that the student receive: Two forty-five minute sessions per week of Speech-Language therapy (1:1) One forty-five minute session per week of Speech-Language therapy (2:1) * Specialized reading instruction using a multi-sensory, evidence-based methodology such as Orton Gillingham
* Thirty minutes daily of independent reading
* Social Skills group led by a Speech-Language therapist, social worker or school psychologist; * All services on a twelve month basis (Ex. NN 14) (Ex. MM, NN)
Based on the AT evaluation, Ms. found that the Student had would be “able to participate more deeply in his academics and be able to have more sophisticated communication with his family, teacher, and classmates” if he had access to AT. (Ex. MM 9) Based on the evaluations she recommended:
* An Ipad Mini with Proloquo2go application for communication
* A Google Pixelbook with mouse, headphones and printer
* 80 hours of training on these applications and devices
The District chose to cross examine the witness nor did she question any of these recommendations at the. Hearing. ( T 120)
The next witness called was , the occupational therapist whose affidavit is in Evidence as Ex. LL. Ms. is licensed in the New York State and also registered for the National Board for Certification in Occupational Therapy (Ex. LL 2) . In order to access the student, Ms. administered six tests, performed an observation and reviewed a Parent report. (Ex. T. 1) Based on these assessments, Ms. recommended that the Student recelve:
* Occupational Therapy 2x/week for 45 minutes in a small group of no more than 3 students
* Occupational therapy 1x/week for 45 minutes individually Again, the District did not choose to cross examine the witness; nor did they question or challenge any of the recommendations made by the witness. (T. 126)
The next witness to testify was the parent, .(T. 127) Again, direct testimony was via affidavit (Ex. HH), and the witness was available for cross examination; however, the District did not choose to cross examine the Parent regarding his testimony via affidavit. (T. 128)
The last witness testifying via affidavit was Dr. , whose testimony was given in a notarized affidavit. ( Ex. II) Dr. was not available for cross examination because she unexpectedly had to attend a funeral. The District was given the option of scheduling another date to cross examine the witness; however, they declined. (T. 130) The was given time to re review the affidavit before making their decision (they had received all of the evidence and copies of the affidavits 5 business days prior to hearing). ( T. 129) Dr. has an M.S. in Special Education and a Ed.M., M.Phil. and Ph.D. in Health and Behavior Studies with a major in ABA. She is also licensed in New York State as a special education teacher and BoardCertified Behavior Analyst-Doctoral. She has been accessing children and providing services for them in these areas since 2004, and has also published in her fields of expertise. (Ex. II) Dr.
conducted an Educational Evaluation and Functional Behavior Analysis of the Student.
Dr. observed The Student both at home and at school as part of her assessment. In her affidavit, Dr. noted that the student presents with “significant weaknesses in the following areas: he does not speak in full sentences, engages in echoic responses to questions that require a yes/no response, presents with deficits in sustaining attention which negatively impacted ’s ability to respond to questions presented in group format, and presented with additional deficits in reading comprehension for textual materials (which may have been negatively impacted by interfering behaviors”. (Ex. II 8) In her affidavit she referred to her
Educational Evaluation and the FBA/BIP for her extensive recommendations. (Ex. II 8, DD, EE)
As aresult of her evaluations, Dr. recommended:
* A school such as , , , or program, which can provide the following;
* A lower student to teacher ratio; (lower than 12:1:1 Ex.1)
* Fluency-based reading instruction as a related tutoring service;
* Intensive reading instruction;
* Individualized instruction;
* SETSS services for 3.5 to 4 hours per day, for all core subject matter;
* Ifasuitable non-public or private school is not available, an individualized instruction plan should be pushed into ’s classroom;
* Related services per the recommendations of their providers;
* Ten hours per week of home ABA;
* A Behavior Intervention Plan focusing on elopement and travel training; and * Two hours per week parent training.
The recommendations made are consistent with those made by the other witnesses/evaluators. Again, as noted before, the District did not question or challenge this witness, or anything contained in her evaluations.
Another evaluation that was done of the Student and not objected to by the District was a life and transition skills evaluation conducted by of . (Ex. CC) The evaluation concluded that the Student was lacking in all of these skills including: organization, maintenance and cleaning, mechanics and repairs, community travel, transportation, kitchen tools, food and meal planning, money management, shopping, problem solving, social interactions, skills living with others and interpersonal relationships and safety.
(Ex. CC) Since the Student is years old, the evaluation gave a recommendation for Life skills training of * 9-12 hours/week of Life Skills Training
* 6 hours/month of Transition Coordination
The District did not object to any of these findings. Additionally, the District did not object to the Parents’ request to provide translations of the Student’s records or to the provision of transportation to the student to and from school.
COMPENSATORY EDUCATION
The witnesses, through their testimony and evaluations, also explained and calculated amounts of compensatory education services that they felt the Student needed and was entitled to in order to make up for the lack of services provided to him referenced in the Complaint.
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); M.W., 2015 WL 5025368; 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); Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir.1994); Reid, 401 F.3d 516. A compensatory remedy must be “appropriate in light of the purpose of the Act.” E. Lyme Bd. of Educ, 790 F.3d at 454 (internal citations omitted). Compensatory education and equitable relief are also available for Section 504 violations. Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990).
The Second Circuit has adopted one of two methods of calculating relief: (a) an hour-for-hour return,”” or (b) based upon the analysis set forth in Reid, requiring 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.” 401 F.3d at See also Newington Bd. of Educ., 546 F.3d at 123; M.W., 2015 WL 5025368, at *4; E. Lyme Bd.
of Educ., 790 F.3d at 457.
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). The award must provide what the student “needs to elevate him to the position he would have occupied absent the school district’s failures.”
Reid, 401 F.3d at 524.
See also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994) (holding that "[alappropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"); Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007). While the IDEA does not compel a hearing officer to provide a day-for-day or hour-for-hour compensation for time missed, that type of relief is appropriate absent any evidence that it is “over compensatory.” Melvin By and Through Martell v. Town of Bolton School Dist., 100 F.3d 944 (2nd Cir. 1996) (it would be a rare situation where compensatory education would not be warranted).
When questioned by the [HO as to how they arrived at their calculations for the amount of services deemed necessary, the witnesses offered reasonable explanations for them calculations based on the amount of services they believed the student should be receiving over a two-year period. (T. 116-120, 124-127)
The amount of compensatory services requested include:
* A bank of hours to be calculated at 10 hours per week for 46 weeks for two school years for after-school SETSS/ABA (920 hours) minus any hours already paid under pendency;
* A bank of 1,840 hours of ABA/SETSS (2 years of failure to provide an appropriate program to be calculated at 20 hours per week for a 12-month school year (46-weeks x20 x 2 years, based on recommendations made by ’s evaluators) to be used during or after school at the Parents’ discretion; *K A bank of 276 hours of Speech-Language therapy;
*K A bank of 46 hours of occupational therapy;
*K A bank of 80 hours of AT training; Nothing was questioned or challenged by the District.
The credibility and expertise of the witnesses and the thoroughness of which they both conducted and explained their evaluations supports accepting their recommendations for the student. Additionally, the evaluations were consistent with each other.
The District did not object to or question any of the reports/evaluations/recommendations put into evidence; nor, did they question the witnesses/evaluators when given the chance.
Therefore, it is hereby ORDERED that: The Student’s IEP should be amended to include the following services and include goals listed in the evaluations of the witnesses admitted into evidence at the hearing, services include: l. A highly structured school, with multi-sensory learning and evidence-based interventions, such as Orton-Gillingham, and the capacity to monitor ’s academic, social and emotional progress; XS A special education classroom for intellectually capable A.S.D. students, without children with significant disruptive emotional or behavioral issues; Intensive reading, math and written expression instruction;
AR
Individualized instruction; Thirty minutes daily of independent reading; Tutoring in reading;
If such a school cannot be found among non-public and private schools, shall have Twenty hours SETSS/ABA per week on a push in basis (until is able to gain acceptance to such a school); Two forty-five minute per week Speech-Language therapy sessions (1:1); One forty-five minute per week Speech-Language therapy session (2:1);
10. A behavior intervention program which includes focus on elopement and travel;
11. Counseling;
12. 2 hours/week of Parent training;
13. Twelve-month school year;
14. Ten hours per week home ABA;
15. One session per week of Occupational therapy (1:1); *
16. Two sessions per week of Occupational therapy (2:1)*(small group no more than 3) dak oxtinviniie Bk Aidt Hinehodts eiAbadmimabhohnot limited to, IEPs, note to IEP meetings, Prior Written Notices, Report Cards, and Progress Reports;
22. Retommitting the DOE to the terms of the Special Transportation provision in the current IEP
A “bank” of compensatory services should be created that includes:
1. A bank of hours to be calculated at 10 hours per week for 46 weeks for two school years for after-school SETSS/ABA (920 hours) minus any hours already paid under pendency;
2. A bank of 1,840 hours of ABA/SETSS (2 years of failure to provide an appropriate program to be calculated at 20 hours per week for a 12-month school year (46-weeks x20 x 2 years, based on recommendations made by ’s evaluators) to be used during or after school at the Parents’ discretion;
3. A bank of 276 hours of Speech-Language therapy;
4. A bank of 46 hours of occupational therapy; of his IEP)
6. 460 hours of life skills training *
*(note: one year compensatory 46 weeks x 10 hours/week from __ years of age)
The Parent may waive rights to access funds in this account at any time.
All compensatory services should be authorized for enhanced rates and transportation costs as applicable/necessary to ensure that the Parents can find appropriate providers. The enhanced rate shall be at a reasonable MARKET rate (not to exceed what the maximum the DOE pays for similar services at Market rate which may be above the DOE rate) Such services can be used at any time, during the day, after school, during holidays, weekends, summers or other school breaks; (the hours in the bank will not expire). The parents may be obtain compensatory SLT, OT and SEIT services with any licensed SLT / OT provider, special education teacher or agency, at reasonable market rates, including rates paid by the DOE’s Office of Impartial Hearing Implementation unit for comparable services. Again, the rate shall not exceed the MAXIMUM rate that the DOE pays ANY provider for such services but may be above the DOE set rate. The hours can be used at any time, during the day, after school, during holidays, weekends, summers or other school breaks. The DOE should pay the providers DIRECTLY.
As a result of this hearing the DOE is ordered to meet and produce a legally valid IEP that includes all of the services above, incorporates appropriate goals proposed by the student’s teachers, providers, home instructors, and Parent, and is prepared in conformity with the IDEA and New York State law. The IEP meeting shall be held within 30 days of this Decision.
The assistive technology referred to in this order shall be done within 30 days pursuant to this order..
July 10, 2020
Laie
2. Lee
Laurie B. Lee
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.
Footnotes
[5] 80 hours of AT Training (note: the AT training hours are being placed in compensatory services to allow for more flexibility in getting the Student able to be able to use the Technology which should have been part