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FINDINGS OF FACT AND DECISION
Case Number: 184016
Student's Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: July 19, 2019
September 9, 2019
December 6, 2019
December 20, 2019
January 30, 2020
February 25, 2020
March 17, 2020
March 19, 2020
March 25, 2020
April 3, 2020
Record Closed Date: May 11, 2020
Hearing Officer: Dora M. Lassinger
The parent of requested an impartial hearing on June 28, 2019 challenging the Committee on Special Education’s (“CSE’s) recommendations for the 2019-2020 school year and seeking various forms of relief, including pendency placement at (“ ”). or a substantially similar private school, and an unspecified amount of in school push-in supports (such as 1:1 ABA, in an unspecified amount, vision and/or hearing services) and at-home ABA. (Par. Ex. A).[1] ' I was designated to hear this matter on July 1, 2019. The student carries a diagnosis of , a genetic disorder characterized by cognitive delays, as well as hearing deficits. He is fed through a feeding tube and participates in a feeding therapy program at . He also has heart defects and chronic respiratory failure. He has attended since he was __ years old, in a classroom with a staffing ratio of 6:1:2. (Tr. pp. 385-386; Par. Ex. J).
Prior Proceedings
The student was the subject of a due process complaint dated April 1, 2018. Following a hearing, which concluded on April 8, 2019, IHO issued a decision on May 22, 2019, finding that the student was denied a FAPE and awarded various evaluations, a one-to-one nurse for travel and during school; various compensatory services (for deprivation of services during the 2016-2017, 2017-2018, and 2018-2019 years) including a bank of 384 hours of feeding therapy, a bank of 460 hours of toilet training, parent training, BCBA or LBA supervision, and an order for the reconvene to develop an JEP which contains the following services:
a. Placement at
b. OT (Occupational Therapy) 3x30 1:1;
c. PT (Physical Therapy) 3x30 1:1;
d. Speech/Language Therapy (“ST”) 3x30 1;1;
e. ST, 2x30 5:1 f. Vision Services 2x60 1:1 via an RSA until a provider who can service in school is found;
g. Toilet training at home and/or at school for five hours per week by a provider of the Parents’ choosing;
h. One hour per month of parent training for toilet training by a provider of the Parents’ choosing;
i. One hour per month of BCBA supervision for parent training by a provider of the parent’s choosing;
j. Feeding therapy 3x60 1:1 to be funded at reasonable market rate;(if becomes unable to provide feeding therapy);
k. FM Unit;
1. Extended 12-month school year;
m. Special Education Transportation with a 1:1 nurse for bussing to and from school;
n. Full time 1:1 nurse during school.
There is no indication in IHO *s decision that the parents requested ABA services, except for the five hours per week of toilet training, which was granted (together with a bank of 460 hours of toilet training). (Par. Ex. B).[2]
IHO ).
June 13, 2019 IEP
The CSE reconvened on June 13, 2019 to develop an IEP which incorporated all of the provisions of IHO ’s order, through the end of the 2018/2019 school year. (DOE Ex. 8)
June 25, 2019 IEP
On June 25, 2019, the CSE reconvened to develop another IEP for the 2019-2020 school year. This IEP continued OT, PT, one-to-one nursing services (including during travel), ST, and Vision Education Services previously awarded, but included no provision for ABA_ toilet training, parent training (one hour per month), BCBA supervision or feeding therapy. The IEP includes a recommendation for an FM Unit, and a recommendation for Specialized
Transportation. It does not include a Behavior Intervention Plan. (““BIP”’). (DOE Ex. 10).
Pendency Hearings
A pendency hearing was held before me on July 19, 2019. On that date, by agreement of both parties, I ordered that effective June 28, 2019, and during the pendency of all due process proceedings, the Department of Education shall continue to provide the student with the following program and services: l. Placement at ; 2 OT (Occupational Therapy) 3x30 1:1; 3 PT (Physical Therapy) 3x30 1:1;
4. ST (Speech/Language Therapy) 3x30 1;1;
5 ST(Speech/Language Therapy) 2x30 5:1
6 Vision Services 2x60 1:1 via an RSA until a provider who can service in school is found;
7. Toilet training at home and/or at school for five hours per week by a provider of the Parents’ choosing;
8. One hour per month of parent training for toilet training by a provider of the Parents’ choosing;
9. One hour per month of BCBA supervision for parent training by a provider of the parent’s choosing;
10. Feeding therapy 3x60 1:1 to be funded at reasonable market rate;
11. FM Unit;
12. Extended 12-month school year;
13. Special Education Transportation with a 1:1 nurse for bussing to and from school;
14. Full time 1:1 nurse during school.
On September 24, 2019, the student was accepted at[3] (“ ”),
*for placement in a class with a staffing ratio of 12:1:4, and related services of ST, three times per week, individually; PT, once per week individually, and OT, three times per week individually. (IHO Ex. HI). The parent never received formal notification from the Department of Education (“DOE”) that her son could attend there. (Tr. p. 37).
On October 9, 2019, a Second Amended due process complaint was filed seeking as relief placement at , as well as other relief previously sought in the initial Due Process Complaint. The parent alleged that the IEP team rejected the recommendation for an ABA program, made by the student’s ABA provider. The parent continued to request placement at the , aS a pendency placement. (Par. Ex. D; IHO Ex. II).[4] * By the conclusion of the hearing, the parents were requesting that the student remain at , and argued that it was an appropriate placement for him. (IHO Ex. XI).
On October 29, 2019, the parent requested another pendency hearing seeking a change of placement to the , during the pendency of due process, stating that
* A first amended due process complaint was also filed on September 11, 2019. (IHO Ex. V). could no longer meet the student’s needs, and that is substantially similar to the prior pendency placement. (Tr. pp. 39, 61; [HO Ex. IV; IHO Ex. XII).
A second pendency hearing was held on December 6, 2019. At the hearing, Ms. ., the student’s mother testified that her son has which affects his hearing, sight, feeding, heart and breathing. He is and nonverbal. He is small for his age, and is fed from a G-tube. (Tr. pp. 24-26).[5] (Tr. p. 25). His class at has a staffing ratio of 6:1:2. (Tr. p. 61).[6]
As of the December 6, 2019 hearing date, the student was receiving one-to-one nursing services; vision services, toilet training, parent training for the toilet training and BCBA supervision for the toilet training; all funded by the DOE. (Tr. pp. 29-30).
Ms. _ testified that in September 2019, she was contacted by Ms. at the Central Based Support Team (“CBST”’) and was told to visit , which was a suitable placement for her son. Ms. went _ to see . At the end of September, she informed Ms. that she wished for her son to attend . She testified that she preferred to , because it has additional facilities which she felt were desirable for her son; including an on-site medical clinic and various therapies offered out of doors. (Tr. pp. 33-34). She testified that could handle her son’s G-tube. (Tr. p. 34). She testified that although her son was assigned a one-to-one nurse at , he did not always have one. When he did not have a nurse assigned; she would have to go to the school if the student pulled his G-Tube out by accident. (Tr. pp. 34-35).
At the second pendency hearing, Mr. , the Principal of , testified that the student came to visit with his parents, and was accepted to the school. He testified that the school could provide occupational therapy, physical therapy and speech/language therapy, in the amount provided in the first pendency order, except that group ST would be provided in a maximum group size of three. (Tr. pp. 42-43, 49-50). Students in grades kindergarten through two are placed in classes with a staffing ratio of 12:1:4. (Tr. p. 45). was accepted for a 12:1:4 class (rather than a 6:1:2 class); based upon observations of school staff, as to which setting would be appropriate for him. (Tr. p. 52). In order for him to be enrolled in the school, the student’s IEP would have to be changed from 6:1:2 to 12:1:4. (Tr. p. 52). The school did not provide vision services; but would permit vision people into the school, if funded by the DOE.
(Tr. p. 43). He testified that feeding therapy is included with speech therapy; and toilet training is provided by the classroom teachers. He testified that the school provides parent training for toilet training. (Tr. pp. 43-44). The school was willing to offer three periods per week of ST (not the five periods per week which the student was then receiving. (Tr. p. 55). The school has a building, where daily living skills (cooking, cleaning, washing, making a bed; putting clothes away) are taught. (Tr. p. 46).
In the alternative, the student could be placed in a 6:1:2 class; however, a variance would be required, as the children in the class are aged nine through eleven, and has just turned . (Tr. p. 58). The DOE argued that the program offered at is not substantially similar to the program provided in the original pendency order. (Tr. p. 64). The parent argued that notwithstanding the change in staffing ratios, the program provided by is substantially similar to the student’s current program; and that is, in fact, a better school. (Tr. pp. 61, 63-64). Counsel represented that the parent secured feeding therapy through her private insurance, and noted that could provide toilet training. (Tr. pp. 63-64)
By decision dated December 11, 2019, I denied the parent’s request for a change in the student’s pendency placement, because it would not provide a substantially similar placement to what was previously recommended; and because it would not maintain the status quo, while the dispute was being resolved. The first Interim Order on Pendency therefore remained in effect during the pendency of due process. (Par. Ex. H).
Subsequent IEP’s, Complaints and Consolidations
After I issued my order denying the parent’s request for pendency at , the CSE reconvened on January 9, 2020 to develop an IEP changing the recommended staffing ratio to 12:1:4; removing one-to-one nursing, reducing recommended ST and eliminating Vision
Services, all with the purpose of facilitating a placement at . (DOE Ex. 15, 16, 19). The resultant IEP triggered another complaint (Case No. ). In the new complaint, the parent specifically requested placement in a 6:1:2 classroom ; 35 to 40 hours per week of at school ABA support and 5 to 10 hours of at home services. (Par. Ex. E). By decision dated February 3, 2020, I consolidated Cases 184016 and ). (Par. Ex. F).
After the January 9, 2020 meeting, the parent wrote to the CSE specifically challenging the elimination of vision services. (DOE Ex. 17). On January 15, 2020, the parent’s counsel requested that the CSE reconvene; and provided it with a neuropsychological evaluation and an ABA assessment. (Par. Ex. U). On January 29, 2020, the parent’s counsel formally revoked the parent’s consent to a change of placement. (Par. Ex. V).
Another IEP meeting was held on February 11, 2020; (DOE Ex. 24); however, on the advice of counsel, the parents did not attend. (Tr. p. 427 ). At this meeting, the CSE reviewed the new reports provided by the parents; and continued the recommendations from the January 9, 2020 IEP. (DOE Ex. 24). This meeting triggered another due process complaint ( ) filed on March 11, 2020. By order dated March 13, 2020, I consolidated with Case No. 184016. (IHO EX. VI).
Evidence at Hearing on the Merits
DOE
On January 9, 2020, at the request of the parent, the CSE met to develop a program for the student which would enable him to attend. (DOE Ex. 2, 15, 16, 19). The student was classified with Multiple Disabilities. Reference was made to a psychoeducational evaluation dated February 14, 2019 performed by Dr., the school psychologist at (Tr. p. 279). It was reported that the student was. He was also diagnosed with hearing loss. It was reported that he was prescribed hearing aids, which he refuses to wear. At school, the student demonstrated stereotypical behaviors that appeared to be self-stimulatory. It was further noted that his visual and hearing impairments prevented true incidental learning. The student understood his daily schedule; he received systematic instruction provided in functional steps for some activities, and he participated in one-to-one activities and small group activities with his teachers’ support throughout the day. He was unable to perform activities requiring a choice, without teacher assistance. The student communicated through his behaviors., but it was unclear if he understood communication given by his teachers.
Given the student’s vision loss, a formal test of cognitive ability could not be performed.
His adaptive behaviors were all in the extremely low range. He demonstrated some ability to say hello, or goodbye to look at others’ faces, pay attention to lessons with prompting and occasionally follow his schedule; but generally relied upon his teacher. At school he showed respect for teachers and peers, and occasionally cleaned up after himself with support and participated occasionally in classroom cleanup. He benefited from teacher support during transition periods. He required teacher support for all activities related to self-care. Dr.
wrote that students like the subject student, with significant visual issues, can demonstrate behaviors resembling those of children diagnosed on the Autism Spectrum. She wrote that direct teaching is important for children who are both and visually impaired. She recommended an educational program that includes Signs and spoken English, as well as behavior modification strategies.
She recommended that the student be placed in a special needs school program, with direct teaching, in a staffing ratio of 6:1:2. (DOE Ex. 4).
In a Triennial Progress Report dated February 15, 2019, his speech/language therapist reported that the student doesn’t demonstrate any functional use of language; and often resists attempts to use hand-over hand guidance to sign. It was reported that the student presents with a moderate hearing loss in the right ear and a moderately severe hearing loss in the left; and that he presents with vision difficulties. She wrote that he has been observed exhibiting behaviors during sessions including self-injury, pulling others hands, grabbing and vocalizations. His visual communication and sign language skills were assessed at the birth to 12 month range.
(DOE Ex. 5 at 2).
An OT evaluation was performed on March 8, 2019. It was reported that the student was making slow progress towards his goals . His goals included improving fine motor skills, tripod grasp, dynamic wrist movement and proximal stability; improving sensory regulation and modulation skills; demonstrate age appropriate visual perceptual and visual motor skills. (DOE Ex. 6) A Physical Therapy Report was issued on June 18, 2019. It was reported that the student could engage in a_ variety of gross motor activities, including ambulating independently and running. His balance was reported to have improved overall. It was reported that he frequently tends to engage in self-stimulatory behaviors (hitting himself, flapping). (DOE Ex. 9).
A CSE review was conducted on January 9, 2020, with the participation of the teacher, various staff from , Mr. , the principal of , the parent, as District Representative, and Dr. , a BCBA from the agency providing ABA toileting services to the student. The student’s teacher reported that he required constant repetition and hand over hand promptings to do his work in and out of the classroom. It was reported that he could complete simple puzzle pieces with support. He required intense modeling, repetition and prompting to complete tasks; and one-to-one instruction to learn new activities. With respect to his physical development, it was reported that he may participate in routine activity, as tolerated, with nurse supervision. He communicated by pulling and /or grabbing the hands of an adult. As part of his management needs, it was reported that the student needs the supervision of a nurse, throughout the school day, to address his feeding needs and respiratory issues. (DOE Ex. 15 at 7). It was reported that the student had a BAHA hearing aid. It was further reported that the student will resist and refuse to move whenever he doesn’t want to participate in an activity. (Id. at 4).
The student’s January 9, 2020 IEP does not include a behavioral intervention plan ( “BIP”) or parent training. (Id. at 8, 21) The IEP includes goals for matching pictures, scribbling, using pre-writing materials, using pre-math materials, goals addressed to his visual needs, goals for turn taking and eye contact, using sign language to communicate five needs, gross motor goals, goals for visually tracking and focusing, and a goal for manipulating all environmental stimuli included in the toileting process in a sequential and functional manner (with short-term objectives of indicating the need to use the toilet, and following a sequence of three sequential steps in the toileting process). There are no goals for feeding . The CSE recommended placement in a class with a staffing ratio of 12:1+4. The CSE maintained the level of OT and PT in the June 25, 2019; but eliminated two group sessions of ST, Vision Therapy, and changed the school nursing recommendation from one-to-one to “as needed”. Placement was recommended a New York State approved non-public school, with 12 month programming. A one-to-one nurse was maintained for transportation to and from school. The JEP includes additional transportation accommodations (Air- Conditioning, Curb to Curb, LTT Standard on Route with Fewer Students, 2 Seats Large). (DOE Ex. 15).
In the minutes of the meeting, it was reported that the student’s current nurse administers feeding through a g-tube up to an hour; nebulizer treatments, and eye drops; and that she assists with toilet training. It was noted that a consensus was reached that the student does not need
Vision Services. It was further noted that the CSE could not recommend home instruction
SETSS, to continue the 5 hours of ABA which the student was receiving. (DOE Ex. 16).
, a school psychologist who served as the District Representative for the disputed CSE reviews, testified that due to his multiple disabilities, the CSE felt that (where the teachers are focused on ) was not qualified to work with him; and that he required a different setting and his case was referred to the Central Based Support Team ( “CBST”), to locate a more appropriate school. (Tr. pp. 223-224). She testified that the purpose of the January 9, 2020 IEP meeting was to determine whether was an appropriate placement for the student. (Tr. p. 225). She testified that the ABA Assessment performed in September 2019 (Par. Ex. O, described below) and the parent’s independent neuropsychological evaluation (Par. Ex. J) , were not available to the team at the time of the review. (Tr. pp. 229-230).
She testified that the representative from stated that it could not provide the 6:1:2 classing ratio previously recommended for the student; and that it could provide a 12:1:4 staffing ratio. She testified that all of the participants agreed that the student to adult ratio would remain the same in a 12:1:4 setting, and agreed with the change. (Tr. p. 234). The team also determined that the student’s vision needs (tracking, photo enlargement) could be addressed by the classroom teacher. (Tr. pp. 235-236). It was further determined that within the setting, ’s nursing needs, as described by the parents, would not require a one-to-one nurse, and that his needs could be met by the school nurse. The parent was asked to provide medical documentation, with doctors’ orders, so that the student’s nursing needs could be reexamined; but did not do so. (Tr. pp. 237, 310-311). Ms. testified that the medical information previously provided in May 2018 (Par. Ex. BB) needed to be updated each year, because conditions change. (Tr. p. 303).
According to Ms. , the team reduced the students ST mandate to three periods per week, based upon the recommendation of his speech provider at . (Tr. p. 237); however, no document was produced to support this assertion.
Ms. testified that the parents were pleased with the recommendation, including the change of placement to ; except that they were concerned about the elimination of vision services. (Tr. p. 238). She testified that they were fine with not having a one-to-one nurse at . (Tr. p. 315).
According to Ms. , the level of the student’s functioning described in the January 9, 2020 IEP was similar to his functioning in the June 25, 2019 IEP; although goals were added to the January 9, 2020 IEP. (Tr pp. 275-276). No new evaluations were performed between the two IEP’s; however, there were updated reports from teachers and providers. (Tr. p.
278).
On January 10, 2020, the parents wrote to the CSE requesting that vision therapy remain on the student’s IEP to assist the student with scanning, adapting classwork and obtaining any low vision equipment which would be beneficial to him. (DOE Ex. 17).
On January 13, 2020, the DOE sent the parents prior written notice with a general summary of the January 9, 2020 IEP meeting. A school location letter, was sent on the same date. (DOE Ex. 19).
On January 15, 2020, the parent’s counsel requested that the CSE reconvene; and provided it with a neuropsychological evaluation and an ABA assessment. (Par. Ex. U).
Another meeting was scheduled for January 29, 2020. The parents came and the meeting was supposed to happen, however their attorney participated by telephone and “would not allow it to go on”.[7] The meeting was _ then rescheduled to February 11, 2020, for parents’ counsel to participate in person. (DOE Ex. 22, 23; Tr. p. 243). The parents received notice of the February 11, 2020 meeting; but did not attend upon the advice of counsel. The meeting occurred, however in their absence. (Tr. p. 243).
This meeting included Ms. , a teacher, the Intake Coordinator, who was also a school psychologist. The CSE reviewed the parent’s independent neuropsychological evaluation and an ABA Assessment performed on September 18, 2019. The recommendation
(Par. Ex. V). from the January 9, 2020 meeting remained the same, except that parent counseling and training (group service, twice per month, duration and location not specified) and Hearing Assistive Technology (“HAT”) were added to the students IEP. The nature of the HAT was not described.
The February 11, 2020 IEP does not include a BIP. Goals were added for following a photographic activity schedule, and for the family to communicate with the staff to help transfer skills learned to school to the home environment. There is no goal for feeding, and the toilet training goal remained the same. The transportation accommodations were maintained from the January 9, 2020 IEP. (DOE Ex. 24). According to Ms. , the new reports did not provide new information regarding ’s needs or functioning. The school stated it could meet the student’s needs; except it was still trying to reach the parents to obtain doctor’s orders for the nurses. (Tr. pp. 244, 261). She testified that the recommendations made in the February 11, 2020 IEP are appropriate, and that the IEP could be implemented at . (Tr. p. 245).
At the hearing on the merits, , the Principal of , described as a school for children with special needs, aged 5 to 21, including children with severe medical and physical involvement. Mr. met the student, when the family came to look at the school, and subsequently participated in in an IEP meeting on January 9, 2020, after the student was accepted into the school. (Tr. pp. 142-144). He testified that would be able to implement all of the services and programs recommended in the January 9, 2020 IEP. (Tr. p.
146). The only qualification was that the school’s nursing department would need to review doctors’ scripts, to determine whether the student needed his own private nurse; however, those documents were not available at the meeting. (Tr. p. 147).
He testified that the parents were requesting a one-to-one nurse to address three medical needs; administration of eye drops, ventilation, and tube feeding . He testified that the school had five nurses, that could take care of these needs, including tube feeding once per day for 30 to 45 minutes. He testified that the nurses at school could not address the needs of a student who requires continuous monitoring for tube feedings, a tracheotomy or seizures. (Tr. p. 149).
Mr. testified that the student would fit into a 12:1:4 class at . He stated that he would be placed in a class where there are a lot of sensory activities, a visual schedule and gross motor activities. He would also receive art therapy and music therapy; as well as a beginners’ reading and math curriculum. (Tr. p. 151).He testified that the school could not provide vision services; because it has not been successful in hiring one; and that as a New York City student, he would not be eligible to receive services through BOCES. (Tr. p. 152).
Parent’s Case
The student’s father testified that the student has and autism. . His breathing is also affected. The student cannot speak, and is not toilet trained. He has chronic respiratory failure. His one-to-one nurse continually checks his breathing for ay signs of distress, and helps him with a nebulizer. At night, he is on a continuous oxygen machine. (Tr pp. 385-386). He testified that the student has a hole in his heart, which results in shortness of breath if the student exerts himself. The nurse monitors his breathing, and applies pressure to calm him down. (Tr. p. 387).[8] He testified that the student is * With regard to the student’s medical needs; the parents placed into evidence three documents from 2018. Ina letter dated March 14, 2018, Dr. , wrote that the student is under her care for the treatment of Chronic Respiratory Failure, Reactive Airway Disease, Mild Obstructive Sleep Apnea. She wrote that he requires 1:1 skilled nursing care during school and during transportation to do continuous cardiopulmonary assessment throughout the day, to assess the student’s skin color, quality and rate of respirations, assess his lung sounds, treat him according to his medication plan and notify her office of any abnormal findings. The nurse was also directed to assess for early signs of respiratory distress and to intervene immediately to prevent a worsening of his condition. (Par. Ex. and lacking in peripheral and depth perception. (Tr. p. 387). He receives eye drops during the day, to keep his eyes moist. He is fed through a G-tube six times per day; including two times per day at school. (Tr. pp. 388-389). He recently received an eight week program, as an inpatient at , of feeding therapy. He progressed in his ability to eat through his mouth, but is still totally dependent on his G-tube for nutrition. (Tr. pp. 389-390).
The student’s father testified that the student began receiving ABA toileting training in March 2019; and has progressed in his ability to go to the bathroom, pull down his underwear and urinate, pull up his underwear and wash his hands; with physical prompts. Prior to that time, he used a diaper. (Tr. pp. 391-392., The father attended the June 25, 2019 IEP meeting. He testified that despite the CSE’s recommendations, the student still required toilet training (ABA)
and feeding training. (Tr. p. 394). The parents were told that the student’s case would be deferred to the CBST for a recommendation. (Tr. p. 395).
The parents were referred to , and went to visit the school with Dr.
, the student’s ABA instructor; and they loved the school. (Tr. p. 396). The school serves students with multiple disabilities. It provides a medical center and instruction in activities of daily living, in a mock house. (Tr. p. 399). The parents were disappointed that their request for a change in the pendency placement to was denied. (Tr. p. 400).
The parents subsequently attended the January 9, 2020 IEP meeting, which was convened for the purpose of placing the student at . (Tr. p. 403). The father testified that the CSE removed services from the IEP which said it could not provide. Specifically, the CSE removed vision therapy, and one-to-one nursing from the IEP, and reduced speech therapy from AA). In a separate letter dated May, 2018, Dr. wrote that the student’ needs one to one nursing care in school and on the bus, during the 2018-2019 school year. (Par. Ex. BB). In a letter dated March 9, 2018, Dr. , anurse practitioner, wrote that the student was followed in her office for GT maintenance and nutrition management. She wrote that if the student’s GT were to accidentally dislodge, it must be replaced within 30 minutes, to prevent the site from closing. (Par. Ex. CC). five sessions per week to three sessions per week. (Tr. pp. 407, 409). The class size was also changed to 12:1:4. (Tr. p. 413) The parents agreed to the changes, because they were happy with the change of school. (Tr. p. 408). They wrote to Ms. on January 10, 2020, disagreeing with the removal of the vision therapy from the IEP. (Tr. p. 417; Par. Ex. T). In addition, while the parents initially agreed to the removal of the one-to-one nurse from the IEP; they subsequently revoked their consent to the changes, and requested that the CSE reconvene.
(Tr. p. 420; Par. Ex. U).
Another meeting was scheduled for January 29, 2020, however no IEP was created as a result of the meeting. The parent’s attorney participated in the meeting by telephone; however due to difficulties in communication, the meeting was rescheduled for her to appear in person.
(Tr. pp. 422-424). At the meeting, the parents submitted the reports of Dr. and Dr . (Par. Ex. O and J).
The father testified that his wife received an email rescheduling the meeting, with the Notice of IEP meeting attached; but that he did not attend upon the advice of his attorney. (Tr.
pp. 427, 434; DOE Ex. 22).’,"°[10]
The parents are asking to keep all of the services in the student’s prior IEP including the one-to-one nurse; and to add ABA instruction at home and at school, with parent training, and a class size of 6:1:2. (Tr. p. 430). The student’s father described his son’s progress at as very slow; but noted progress in his fine and gross motor skills. He testified that his teachers communicate with the student by guiding him or using hand-over-hand. (Tr. pp. 435-436).
” The email was in fact addressed to both parents. (DOE Ex. 22). '© At the hearing, parent’s counsel stated that she informed the CSE that the parents were not interested in a meeting. (Tr. p. 433).
On December 2, 2019, Dr. conducted a neuropsychological evaluation of the student. He wrote that the student received Early Intervention services, and various related services as a preschool student. At years, he was enrolled at ; and subsequently at , where he remained at the time of hearing.
The parents reported to Dr. that the student has made progress at , a school which services children; but that his needs are more extensive than those of students typically served at the school. (Par. Ex. J2). At the time of the evaluation, the student was participating in an eight week feeding therapy program at program, and was absent from school. (Par. Ex. J3).
Dr. reported that the student engages in self-directed and self-stimulatory behavior that affects his ability to participate in many tasks and that he lacks formal and functional communication skills. He diagnosed the student with Autism Spectrum Disorder with intellectual impairment, and recommended placement in a specialized school setting, with a staffing ratio not greater than 6:1:1, with full day applied behavior analysis (ABA) and support of a Board Certified Behavior Analyst (BCBA). He also recommended at-home ABA services, parent training, hearing services including training in sign language and a full-time sign language interpreter, an FM Unit, a full-time one-to-one paraprofessional; assistive technology and a speech generating device, vision training, feeding therapy, speech therapy five times per week, a full-time nurse at school and for transportation, and continuation of OT and PT. (Par. Ex. J).
At the hearing, he testified that Autism is often associated with . (Tr.
p. 331). He stated that the student needs a very small, structured classroom, due to the severity of his needs. (Tr. p. 335). He stated that a classroom with a staffing ratio of 12:1:4 would be visually overstimulating; as well as having too many bodies in the room. (Tr. p. 350).
He testified that ABA can be taught through touch; and is adaptable to the methodology in which the child learns. (Tr. p. 337). He recommended that the student receive ABA throughout the school day (seven hours) and at home, under the supervision of a BCBA or LBA; with parent training one hour every other week. (Tr. p. 34). He testified that the student requires sign language training, an interpreter, assistive technology and the use of an FM unit. (Tr. p.
341). He testified that the student requires vision therapy. He also requires speech, five times each week; including speech therapy to address his feeding issues. (Tr. p. 343). While the student receives nutrition through his G-tube, feeding therapy is focused on getting him to tolerate pleasure feedings, which is positive stimulation of his mouth. (Tr. p. 352). He stated that behavioral strategies are utilized in the feeding program; but without a sign language interpreter.
(Tr. p. 354).
He testified that the student could learn and make significant progress, with support; but that his progress has been extremely limited, because he has no functional ability to communicate or participate without significant one-to-one support. (Tr. pp. 349, 360). Dr.
did not have the opportunity to observe the student in the classroom, as part of his evaluation. (Tr. p. 359). Nor did he communicate with any of the student’s teachers. (Tr. p. 360).
He stated that parent training would teach the parents how to manage certain behaviors, including reducing the avoidance and self-stimulatory behaviors that he demonstrates. (Tr. p. 351.)
A SETSS-ABA Assessment was performed by Dr. in September 2019.
As part of the assessment, an interview with the student’s teacher (who was also his teacher during the prior school year) was performed with a sign language interpreter. She reported that the student engages in behaviors including crying and hitting his eye. He communicates by reaching/grabbing items, or leading her to an item. She reported that the student can follow very few one-step directions delivered through manual sign language. She stated that the student does not interact with peers or engage in functional play. She stated that the student would benefit from 1:1 ABA services at school, and that she would be open to an ABA teacher coming to the classroom. She stated, however, that he needed it more in the prior school year, than the current school year; because there are only three students in the classroom with three adults (the teacher and two other adults). She stated that the student would benefit from additional 1:1 ABA services in the home. No token economy was observed in the classroom.
The student’s speech therapist reported that the student was learning to communicate through a picture exchange system. The student’s nurse reported that the student will stiffen his body to indicate refusal; that he often lays on the floor, and touches his private parts in public.
Dr. recommended intensive one-to-one SETSS-ABA services in school and at home (30 to 35 hours at school and 5-10 hours at home); under the supervision of a Licensed Behavior Analyst/Board Certified Behavior Analyst. (2 hours per month). He recommended that a formal Functional Behavior Assessment be performed and a Behavior Intervention Plan be created by an LBA/BCBA, to be implemented at school and at home, to ensure decreases in problem behavior across multiple environments. It was further recommended that the parents receive two hours of parent training per month by an LBA/BCBA. (Par. Ex. O).
At the hearing, Dr. testified that he has been a BCBA since 2004. He is also the founder, president and executive clinical direct of ABA services at 5a private autism agency. He is also an approved special education itinerant teacher, and special education teacher support services provider. (Tr. pp. 459-460). Dr. works with Ms.
, another BCBA, in providing the student with toilet training. (Tr. pp. 464-466). He described the student’s progress in following some of the steps of the toileting process with slight to minimal prompting.(Tr. p. 467). The student has not yet been toilet rained for defecation. (Tr. pp. 467-468). The ABA sessions also focus on functional play with toys that have multiple steps, which will later help the student with toilet training and dressing. (Tr p.
468).
The student’s progress was described in a progress report dated December 30, 2019. (Par.
Ex. P).
Dr. participated in the June 25, 2019 IEP meeting to argue that ABA was essential for the student to toilet himself and to learn. (Tr. p. 470). In an earlier toilet training assessment, performed in March 2019 (Par. Ex. M); Dr. recommended five hours per week of toilet training, one hour per month of BCBA supervision and one hour per month of parent training; however, the CSE did not adopt his recommendations. (Tr. pp. 471-472)."'[11]
He testified that he later recommendeda full day of one-to-one ABA therapy, 35 hours at school and 10 hours at home (plus two hours per month of ABA supervision and two hours per month of parent training) , because the student had not made progress up to that point. He also recommended a small class, with a staffing ratio of 6:1:2. (Tr. pp. 473-474). The recommendation for home services includes the five hours per week that the student is now receiving. (Tr. p. 498). He testified that the student had zero skills when he first met him, and that he is learning with ABA. (Tr. p. 489). Contrary to Mr. testimony, during his October 2019 observation of the student at (which lasted less than two hours); he did not observe the student to know any signs. (Tr. pp. 499-500). He testified that he observed the teachers using full manual guidance or physical prompting with the student; with no 'l These recommendations were, however, the basis for IHO °s order, which was continued during the pendency of these proceedings. communication system in place in the classroom. The student responded to the physical prompts. (Tr. p. 501).
The student’s current ABA therapist is certified in American Sign Language (“ASL”) .
The student is being taught to communicate his toileting needs through sign language and through the use of pictures. As the student is unable to vocalize, it is important he be given the ability to communicate through both ASL and Picture Exchange. (Tr. pp. 476-477, 496). Dr.
recommends continuation with an ABA therapist who is also trained in ASL. (Tr. p.
497). He testified that the rate for the ASL trained ABA therapist is $135.00 per hour. The rate for a BCBA (to perform supervision and parent training) is $240.00 per hour. (Tr. p. 505).
Dr. also attended the January 9, 2020 IEP meeting. (Tr. p. 478). He testified that the purpose of the meeting was to place the student at ; but that this would require giving up services. (Tr. pp. 482-483). He testified that Ms. stated that if the parents still wanted vision services, they would have to consider a different school. (Tr. p. 484). The parents were also told that they would have to give up a one-to-one nurse; because had a medical room of nurses, which would meet the student’s needs. (Tr. p. 486). He testified that nobody mentioned ABA services or feeding training. Dr. did not raise the issue of toilet training, because he assumed it would continue. (Tr. pp. 487-488). He stated that he voiced his disagreement with the recommendation to eliminate vision education services, which he felt were crucial. (Tr. pp. 491-493). He testified that the student has just started discriminating between differences and similarities of stimuli; and that vision services will help him attends to social and instructional stimuli. (Tr. p. 494).
, a BCBA, testified that she is employed by . She described
Applied Behavior Analysis (“ABA”) as a scientific method of learning for the developmentally disabled, which targets behaviors of social significance. ABA consists of selecting behaviors to target, collecting data, and designing a treatment plan using behavior analytical principles. Ms.
has, in conjunction with an ABA therapist (who collects data and implements the plan)
been providing toilet training to the student, using ABA, from June 2019 up until the time of hearing. Ms. observes the student, and reviews and monitors the data., for one hour per month; and provides parent training to the parents one hour per month. (Tr. pp. 447-448, 454).
According to Ms. , the student has progressed from having no toileting skills to (using manual guidance and partial physical prompts) urinating in the toilet about 50 % of the time. He pulls his underwear up and down, goes toward the toilet, gets off the toilet, walks to the sink and turns on the faucet on and off independently. She described his progress as significant.
She testified that prompts have been faded from full manual guidance to partial physical prompts. (Tr. pp. 448-449). Toilet training is delivered in the student’s home, three days per week, in sessions of one and one-half or two hours. (Tr. p. 455). She testified that there is more work to do in toilet training the student, and that he should continue to have the hours he currently has and possibly even more hours. (Tr. p. 456).
The toilet training includes fine motor activities to help the student perform the tasks required to toilet. He is also taught American sign language related to these tasks. (Tr p. 451).
The training also includes pictures, which the student can match. (Tr. p. 452). She testified that the student has learned, and can continue to learn with ABA. (Tr. p. 453).
, the supervisor of special needs at , testified that he has a Master’s Degree in special education and in school building leadership, and certification. (Tr pp. 362-363). He described ’s level of as severe to profound. (Tr. p. 366). At , the student is placed in a 6:1:2 classroom and receives OT, PT and ST, 12 month programming an FM unit (which the student resists). The student has a one-to-one nurse, who is provided by the DOE. Vision services are not provided by the school; and must be provided independently by the school district. (Tr. p. 369). He testified that the school can accommodate ABA services, a sign language interpreter, feeding training and toilet training. (Tr. p. 370).
Mr. attended the January 9, 2020 CSE review. He understood that the purpose of the meeting was to change the student’s placement from to ; and testified that changes were made to the student’s services, based upon what was able to provide. (Tr pp.
372-373). He testified that is an appropriate school for the student, with necessary supports (nurse and vision services to be provided by the DOE; and restoring ST to five times per week). (Tr. pp. 373-374).
Mr. testified that this is the student’s third year at . He testified that he makes slow progress. He has improved in his ability to attend to tasks, attend to his teacher, and to remain seated. He attributes this to the small class size and the dedication of the teachers. He testified when he first came, the student had some mild self-injurious behaviors that have mostly dissipated. (Tr. p. 376). He testified that the student would benefit from having an ABA provider. (Tr p. 377). He explained that the need for a sign language interpreter arises from the fact that (Tr. p. 379). The student’s knowledge of sign language is limited to some receptive signs for sitting and eating. The school wants him to increase his use of sign. (Tr. p. 380). He has learned signs through tactile and visual cues, as he sees out of one eye reasonably well. (Tr. p. 381).
OT and PT are taught one-to-one, through modeling and hand over hand.
Speech/communication is also taught this way. (Tr. p. 380 ).
Findings of Fact, Conclusions of Law and Order
The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). To meet its substantive obligation under the IDEA, a school district must offer an IEP reasonably calculated to make progress appropriate in light of the child’s circumstances. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). A program which allows the student to make more than de minimis progress from year to year is not sufficient. Nor must an IEP provide a program which the court regards as ideal. Id.
For the following reasons, I find that the DOE failed to meet its burden of proving the appropriateness of its recommendations, in any of the challenged IEP’s.
A. The Recommended Class Size is Inappropriate
All of the experts who evaluated who the student, including Dr. _ , the school psychologist at ; recommended that the student be educated in a very small class of no greater than six students. Dr. explained that the recommended 12:1:4 would be overstimulating for the student, who is diagnosed with Autism, in addition to many other disabilities.
At the December 6, 2019 pendency hearing; the parents argued, that the 12:1:4 program at was substantially similar to the 6:1:2 program previously recommended. They changed their position, however, after Dr. completed his evaluation; and now request a finding that the student be educated in a class with a staffing ratio of 6:1:2. (IHO Ex. XI). I previously ruled that the two programs were not similar, and that continues to be my judgment. Within the 12:1:4 program, one teacher is responsible for twelve students; and the ratio of adults to children is 5:12. Within the 6:1:2 program, one teacher is responsible for only six students, and the adult to student ratio is 3:6. Within this small class setting, the student was receiving direct instruction from his teacher; although the record indicates that his progress was limited, and that he would be able to make progress more consistent with his ability, with additional one-to-one ABA instruction.
For all of the foregoing reasons, I will direct the CSE to change the recommended class size from 12:1:4 to 6:1:2.
B. Failure to Conduct a Functional Behavior Analysis and Develop a BIP: Need for ABA Instruction; Other Requests for Evaluations[12]
8 NYCRR 200.4(d)(3)G@) provides that the CSE shall: (1) in the case of a student whose behavior impedes his or her learning or that of others, consider strategies, including positive behavioral interventions, and supports and other strategies to address that behavior that are consistent with the requirements in section 200.22 of this Part; 8 NYCRR 200.2 (b)(1) provides that: (1) The CSE or CPSE shall consider the development of a behavioral intervention plan, as such term is defined in section 200.1(mmm) of this Part, for a student with a disability when: (1) the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroomwide intervention.
I find that all of the challenged IEP’s are deficient to the extent that they do not include a behavior intervention plan. The record is clear that the student exhibits self-stimulatory and other inappropriate behaviors which impede his learning. These behaviors warranted a Functional Behavioral Assessment (“FBA”) and development of a BIP. The student has progressed in his gross and fine motor skills, and in his ability to attend and participate and classroom activities, while at ; and his self-injurious behaviors have decreased. His communication skills , however, are extremely limited, and must be developed further. An assistive technology evaluation should also be performed, as recommended by Dr. I note that HAT was recommended in the most recent February 11, 2020 IEP; but the nature of the technology was not described.
The recommendation of the parent’s experts for continuation of the student’s one-to-one ABA toileting program, with additional ABA services at home and at school, is also consistent with Dr. _’s evaluation, in which she recommended that the student receive direct instruction and a program of behavior modification. The student’s progress in developing toileting skills through ABA instruction is impressive; and demonstrates that he is reasonably likely to develop additional crucial skills he is currently lacking, with additional ABA instruction.
I find that the student should continue to receive five hours per week of ABA instruction for the purpose of developing his toileting skills, and an additional five hours of at home ABA instruction; for a total of 10 hours per week of home ABA services.
Although Dr. recommended full-time ABA services at school; he did not observe the student at school, or communicate with his teachers. Dr. performed a limited observation of the student at school, and failed to acknowledge that while the student’s progress has been limited, he has derived benefit from his program and services at _In determining an appropriate amount of one-to-one ABA support to be provided at school, I have also considered the requirement that the student be educated in the least restrictive environment.
See Application of a Student with a Disability, Appeal No. 17-047.
The extent of support which will be required to implement a behavioral program at will not be fully known until an FBA is performed and a BIP developed.
Nevertheless, I find that the student should receive a minimum of fifteen hours per week of ABA services at school, with a provider who is ASL certified; or if such provider is not available, the ABA provider should be accompanied by a sign language interpreter."[13] Parent Training: BCBA Supervision
In the most recent IEP, the CSE recommended two sessions per month of parent training, which is the same amount requested by the parent in these proceedings. Although the February 11, 2020 IEP recommends that this be provided in a group, I find that it should be provided individually; given the unique constellation of the student’s needs. I also find that the parent’s request for two hours per month of BCBA supervision is reasonable and warranted.
B. Other Related Services
1. SLT and Vision Education Services
The record indicates that the one area in which the student has made the least progress is in his communication. The CSE”’s recommendation to reduce the student’s ST mandate from five sessions per week to three sessions per week is not supported by the record.
In her report, Dr. explained the impact of the student’s significant visual deficit. Dr.
recommended vision training in his report. Dr, testified that he voiced his disagreement with the recommendation to eliminate vision education services, which he felt were crucial. He testified that the student has just started discriminating between differences and similarities of stimuli; and that vision services will help him attends to social and instructional stimuli. Based upon the foregoing, the CSE’s decision to eliminate vision therapy from the student’s IEP is not supported by the record.
Therefore, I will direct the CSE to reconvene to restore ST and Vision Therapy, at the levels previously recommended.
2. One to One Nurse
THO ordered that one-to-one nurse be provided to the student, and the service has been maintained during the pendency of due process. On January 9, 2020, the CSE recommended a change in the delivery of nursing services from one-to-one, to “as needed”. In the minutes of the meeting, it was reported that the student’s current nurse administers feeding through a g-tube up to an hour; nebulizer treatments, and eye drops; and that she assists with toilet training. The decision to eliminate the one-to-one nurse form the student’s IEP appears to have been made in the context of an anticipated change of placement to , which has a nursing department with five nurses.
Mr. , the principal of testified that the school’s nursing department would need to review doctors’ scripts, to determine whether the student needed his own private nurse; however, those documents were not available at the meeting. He stated that the school’s nursing department could provide tube feeding once per day for 30 to 45 minutes. In March 2018, the student’s doctor reported that he required 1:1 skilled nursing care during school and during transportation to do continuous cardiopulmonary assessment throughout the day, assess the student’s skin color, quality and rate of respirations, assess his lung sounds by treat him according to his medication plan and notify her office of any abnormal findings. The nurse was also directed to assess for early signs of respiratory distress and to intervene immediately to prevent a worsening of his condition. More current information regarding the student’s need for a one-to-one nurse was never provided to the CSE, or at the hearing.
The record indicates that the existence of a nursing department with multiple nurses was one of the reasons that the parents preferred to , and previously sought a change of placement. Nevertheless, based upon Mr. ’s testimony, could not even address the student’s need for feeding through a g-tube of up to an hour. Moreover, the DOE did not meet its burden of proving that the program which was offering, a 12:1:4 class, was appropriate. In the absence of more current information, and taking into account the student’s medical history; the student’s one-to-one nurse should be restored to his IEP. The parents should provide current medical information to the CSE.
3. Special Transportation
January 9, 2020 and February 11, 2020 IEP’s contain all of the transportation accommodations requested in the parent’s closing statement.
4. Feeding Therapy
Contrary to the assertions of Ms. , feeding therapy is not a medical service, as it does not need to be administered by a physician. See 34 C.F.R. 300.34(c)(5). Indeed, Mr.
testified that feeding therapy is provided at , through Speech Therapy. Clearly, the student, who relies for nutrition upon a G-tube needs feeding therapy, and goals should be developed for him to develop skills in this area. No evidence was presented as to the amount of feeding therapy the student requires, through the school district. [HO ordered that the student receive feeding therapy, 3x60 1:1 to be funded at reasonable market rate if S becomes unable to provide feeding therapy.
By agreement with the DOE, the service was ordered to be continued, during the pendency of due process. While these proceedings were pending, the student received inpatient feeding therapy at ; and the parent’s attorney stated that it was being funded through their private insurance. In her closing argument, however, the parent requests feeding therapy twice per week for forty minute sessions.
As I am unable, on this record, to determine an appropriate amount of feeding therapy for the student, I will direct the CSE to reconvene to develop goals for the student’s feeding needs; and to recommend an appropriate amount of feeding therapy, at least twice per week, to meet those goals.
C. Compensatory Education
In P. v. Newington Board of Education, 546 F. 3d 111 (2d Cir. 2008), the Second Circuit held that upon a finding of a denial of FAPE, a hearing officer may fashion an appropriate remedy, including compensatory education to make up for a denial of FAPE. Citing Parents of Student W. v. Puyalluip Sch. Dist. 31 F. 3d 1489 (9 Cir. 1994), the Second Circuit stated that “appropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA”. P. v. Newington Board of Education, supra. | Compensatory awards should place children in the position they would have been in but for the violation of the Act. See Application of a Student with a Disability. No. 18-010. As compensatory education is an equitable remedy, any award should take into account the parent’s role in the student’s receipt of services. See Application of the Board of Education of the Mount Vernon City School District, Appeal No. 17-042
In these proceedings, much of the relief requested consisted of restoring to the student’s IEP services which were removed in the June 25, 2019 and January 9, 2020 IEP meetings. The DOE was directed, however, to continue to provide all of these services, pursuant to Orders of pendency, and no evidence was presented that it did not do so. Although, in her Second Amended Complaint, the parent requested a change of placement to ; as of the time of hearing, the parent was asking for the student to remain at , in a 6:1:2 class.
The only services which the parent requested, but the student did not receive during the 2019-2020 school year (pursuant to pendency), was increased home ABA therapy and school based ABA therapy; an additional session per month of BCBA supervision and an additional session per month of parent counseling and training.
In determining an appropriate compensatory award, I have taken into account the parent’s role in the CSE’s review of her request for additional ABA services. Although Dr.
’s assessment is dated September 2019, it was not provided to the CSE until January 15, 2020. Dr. ’s evaluation was also provided at that time. The CSE initially attempted to review those reports, on January 29, 2020; however, the meeting had to be rescheduled to February 11, 2020, due to communication difficulties between the CSE and the parent’s counsel. When the CSE reconvened on February 11, 2020, the parents did not participate. I have also considered the fact that, even in the absence of an ABA program, the student did demonstrate some progress at , due to the very small class size (three students to three adults), during the 2019-2020 school year, and the dedication of his teachers.
I have also considered the fact that Dr. | recommended a behavior modification program in February 2019; and that the CSE never conducted an FBA or developed a BIP, in any of the challenged IEP’s. Clearly, the lack of a systematic program to manage the student’s behaviors has affected his ability to participate in the classroom and progress.
Based upon the foregoing, it is my judgment that the student should receive 150 hours of compensatory ABA services, 10 hours of compensatory BCBA supervision, and 5 hours of compensatory parent counseling and training, to be used within three years from this decision.
For all of the foregoing reasons, it is hereby ordered that the CSE shall reconvene within 15 days of this order to amend the February 11, 2020 IEP to provide the following services on a twelve month basis:
1. 10 hours per week of home ABA therapy (which shall include ABA toilet training);’
2. 15 hours per week of school based ABA therapy, with a therapist who is also certified in ASL;"4
3. 2 hours per month of BCBAsupervision;
4. 2 hour per month of Parent Counseling and Training, with a BCBA, to be provided on an individual basis;
5. ST, five thirty minute sessions per week, at least three of which shall be provided individually;
6. Vision Education Services, twice per week, for sixty minute sessions individually;
7. Placement in a class with a staffing ratio of 6:1:2, at > orif should become unavailable, at another appropriate New York State approved non-public school;
8. The new IEP shall maintain the existing levels of PT and OT, and transportation accommodations, as set forth in the February 11, 2020 IEP;
9. One-to-one nurse throughout the day at school and during transportation to and from school;
10. Goals shall be developed for feeding therapy, and an appropriate amount of feeding therapy shall be recommended, at least twice per week.
It is further ordered as follows:
1. The DOE shall fund 150 hours of compensatory ABA therapy, 10 hours of BCBA supervision, and 5 hours of parent training with a BCBA, to be used within 3 years of this order;
2. The CSE shall arrange for an FBA to be conducted by a BCBA or LBA within 30 days of this decision; or if the evaluation can not be conducted due to school closure; within 30 days following the re-opening of the schools. The CSE shall reconvene within 15 days following the receipt of the FBA to develop a BIP, with the participation of the student’s BCBA, who shall be compensated for his/her services, in developing the BIP, at the rate customarily charged by said BCBA.
3. The CSE shall conduct an assistive technology (“AT”) evaluation within 30 days of this decision; or if the evaluation cannot be conducted due to school closure; within 30 days following the re-opening of the schools. The CSE shall reconvene within 15 days following the receipt of the Assistive Technology evaluation to review it and make appropriate recommendations.
Dated: May 25, 2020 Dora M. Lassinger
DORA M. LASSINGER, ESQ.
Impartial Hearing Officer
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
School District
Date Name of Documents # of Pages
Exhibits
1. Dates SESIS Events Log Various 20 pages DOE
2. Dates Emails Re: New School for Student Various 3 pages DOE
3. Audiological Evaluation 1/22/2019 2 pages DOE
4. Psycho-Educational Evaluation 2/14/2019 12 pages DOE
5. Speech and Language Therapy Progress Report 2/25/2019 3 pages DOE
6. Occupational Therapy Evaluation 3/8/2019 5 pages DOE
7. Meeting Notice Committee on Special Education 6/6/2019 3 pages DOE
8. IEP w/ Attendance Page 6/13/2019 22 pages DOE
9. Physical Therapy Progress Report 6/18/2019 1 page DOE
10. IEP w/ Attendance Page 6/25/2019 23 pages DOE
11. IEP Meeting Notes 6/25/2019 3 pages DOE
12. Acceptance Letter from 9/24/2019 1 page DOE
15. IEP w/ Attendance Page 1/9/2020 29 pages DOE
16. IEP Meeting Notes 1/9/2020 2 pages DOE
17. Email from Parent 1/10/2020 1 page DOE
18. Prior Written Notice (Notice of Recommendation) 1/13/2020 4 pages DOE
19. School Location Letter 1/13/2020 2 pages DOE
20. District Brief 1/14/2020 7 pages DOE
21. Meeting Notice Committee on Special Education 1/21/2020 3 pages DOE
22. Email Re: IEP meeting on 2/11/2020 1/30/2020 1 page DOE
23. Meeting Notice Committee on Special Education 1/30/2020 3 pages DOE
24. IEP w/ Attendance Page 2/11/2020 32 pages DOE
25. IEP Meeting Notes 2/11/2020 2 pages DOE
26. Prior Written Notice (Notice of Recommendation) 3/2/2020 4 pages DOE
27. School Location Letter 3/2/2020 2 pages DOE
PARENT'S EXHIBITS
A. Due Process Complaint 184016 June 28, 2019 16 pages
B. Findings of Fact and Decision May 22, 2019 13 pages
C. THO Exhibit: IEP 6/13/19 21 pages
D. Second Amended Due Process Complaint 184016 October 9, 2019 18 pages
E. Due Process Complaint January 31, 2020 8 pages
F. Order of Consolidation February 3, 2020 2 pages
G. Order of Pendency July 19, 2019 3 pages
H. Second Order of Pendency December 11, 2019 7 pages
I. Dr. CV undated 8 pages
J. Neuropsychological Evaluation December 2, 2019 22 pages
K. Dr. 1 CV undated 4 pages
M. Toilet Training Assessment March 25, 2019 2 pages
N. Ex.PP to hearing March 25, 2019 2 pages
O. ABA Assessment October 6, 2019 9 pages
P. ABA Treatment Data December 30, 2019 3 pages
U. Request to Reconvene January 15, 2020 I V Revocation to Ms. January 29, 2020 I W Revocation to Ms. January 30, 2020 I X Revocation to Mr. of CSE January 30, 2020 I
Y. Mr. *s CV undated 2 pages
Z. Ms. *s email changing February 26, 2020 2 pages
pendency
AA Medical letter March 14, 2018 BB Request for Medical Accommodation | May 2018 CC Medical Record re Gtube March 9, 2018
Impartial Hearing Officer
I. Interim Order on Pendency, 7/19/19, 3 pp.
II. Second Amended Due Process Complaint, 10/9/19, 16 pp.
III. Letter from , 9/24/19, 1 p.
IV. Email correspondence from , various dates, 4 pp.
V. Amended Due Process Complaint, 9-11-19, 17 pp.
VI. Order Granting Consolidation, 3-13-20, 2 pp.
VII. Subpoena, 2-28-20, | p.
VIII. Extensions, various dates, 8 pp, IX Letter, Brief, 1-14-20, 3 pp.
X District’s Closing Brief, undated, 5 pp.
XI Parent’s Closing Brief, 4-30-20, 21 pp.
XII. Request for Change in Pendency placement, 10-29-19, 1 p.
Footnotes
[1] is a New York State approved public school. (Tr. p. 19). The student has attended since 2015, and remained enrolled there at the time of hearing. (Tr. p. 30).
[2] The award of toilet training, one hour of parent training and one hour of BCBA supervision was based upona toilet training assessment performed by Dr. on March 25, 2019. Par. Ex. M herein; (Par. Ex. PP in the hearing before
[3] is also a New York State approved non-public school. (Tr. p. 19).
[4] A first amended due process complaint was also filed on September 11, 2019. (IHO Ex. V).
[5] At the time of the second pendency hearing, the student was participating in an eight week, full-time program at (funded through the family’s private insurance) The program commenced on October 24, 2019 and was anticipated to end on December 24, 2019. (Tr pp. 27-28).
[6] On the same date as the second pendency hearing, Mrs. _ wrote to at the CSE; requesting that the CSE reconvene to develop an IEP which would allow placement at . She wrote that CSE would be ideal for the student because it was close to their home; had multiple modern sensory rooms well equipped for OT and PT, a very large speech department; students with similar symptoms to the student, and an onsite medical clinic. (DOE Ex. 2).
[7] On the evening of January 29, 2020, the parent’s counsel formally revoked the parent’s consent to a change of placement. She wrote to Ms. that the parents requested the January 29, 2020 reconvene for the purpose of revoking the January 9, 2020 IEP and discussing a new one; but that Ms. refused to discuss the issue. She wrote that the parents will not appear at any future reconvene unless Ms. committed, in advance, to discussing the revocation.
[8] With regard to the student’s medical needs; the parents placed into evidence three documents from 2018. Ina letter dated March 14, 2018, Dr. , wrote that the student is under her care for the treatment of Chronic Respiratory Failure, Reactive Airway Disease, Mild Obstructive Sleep Apnea. She wrote that he requires 1:1 skilled nursing care during school and during transportation to do continuous cardiopulmonary assessment throughout the day, to assess the student’s skin color, quality and rate of respirations, assess his lung sounds, treat him according to his medication plan and notify her office of any abnormal findings. The nurse was also directed to assess for early signs of respiratory distress and to intervene immediately to prevent a worsening of his condition. (Par. Ex.
[10] At the hearing, parent’s counsel stated that she informed the CSE that the parents were not interested in a meeting. (Tr. p. 433).
[11] These recommendations were, however, the basis for IHO ’s order, which was continued during the pendency of these proceedings.
[12] In their closing statement, the parents also request new OT and PT evaluations. This request was not part of any the complaints; and I do not find that the request is warranted. An OT evaluation was performed on March 8, 2019. A Physical Therapy Report was issued on June 18, 2019. The record contains updated information about the student’s OT and PT needs, and he has been progressing in both areas.
[13] According to Mr. , the sign language interpreter is needed so that the ABA instructor can communicate with the student’s teacher.
[14] If the DOE (or parent) is unable to locate an ABA therapist who is also certified in ASL, an ASL interpreter must accompany the therapist, so that the therapist can communicate with the student’s teachers.