Impartial Hearing Decision

FINDINGS OF FACT AND DECISION Case Number: 184622 Student’s Name: _ Hearing Requested By: Parent Hearing Officer: Martin J. Kehoe III, Esq. Actual Record Close Date:12/4/2020

Introduction

on _ This document constitutes the Decision and Order of the undersigned, the duly designated ao me Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with , Disabilities Education Act (IDEA) and the New York State Education Laws. The School District . will be referred to as District, the parent as Parent and the student will be referred to as Student. The complaint notice in this matter is dated July 1, 2019. A hearing was held on September 25, . - 2019, December 17, 2019, March 3, 2020, April 1, 2020, and April 7, 2020. At first, the case was under investigation for the settlement (T. 8), but it did not settle, and the Parent submitted evidence and proceeded with their case on the April 7, 2020 hearing date. This case relates to the 2019-2020 school year. ee During the course of this hearing the Student was first was receiving pendency through an order I issued on February 27, 2019 relative to this case for the 2017-2018 & 2018-2019 school years Pk | (Case # , Ex. A)!. That case was filed on January 11, 2019 and litigated to a disposition. ae _ The decision was signed on July 3, 2020 superseding the pendency decision. The fact that the two ‘The following order of pendency became effective on January 11, 2019: : “{P]endency is found in the findings of fact of IHO | (# ) dated April 30, 2018, which is as follows: 1.15 hours per week of 1:1 ABA at an enhanced rate not to exceed $150/hr. Bo - 2. 1 hour per week of Parent training and Counseling conducted by a BCBA at an enhanced rate not to exceed 3. Speech and Language Therapy 2x30 in a group of three. ra 4. 1:1 Speech and Language Therapy 1x30 5.4 Occupational Therapy 2x30 _:6. 1:1 Counseling 1x30 ‘.~ 7, Counseling services in a group of three 1x30 8. Special Education transportation 12 months school year

“cases were pending at the same time, together with the similar remedies being sought and the fact ) that this decision is being written at a date following the decision from the earlier years, may cause | some confusion. In the pages that follow I shall attempt to clarify this circumstance. - Specifically, because the earlier litigation (# ) has addressed basically the same relief sought | in this case (#184622), the relief that flows from my finding in this case that the District failed to - offer a FAPE for the 2019-2020 school year, is significantly reduced. There are two reasons. # irst, the earlier decision included a comprehensive award of compensatory services (which covered the period of a past denial of FAPE (2017-2018 & 2018-2019) right through to the date I - issued that order (July 3, 2020). Second, regarding the programming sought in the complaint ‘ notice, I find that the issues are substantially moot in so far as the school year in question has 7 ‘alteady passed and, in any event, the same relief going forward has recently been provided by the _ order in case #

Parent’s Position

In the complaint notice, dated July 1, 2019, the Parent alleged that the District denied the Student - . Free and Appropriate Public Education (FAPE), for the 2019- 2020 school year. The Parent is - seeking placement in the non-public school; services; (Ex. 1); a continuation of the Student’s Regarding the programming, I find that the issues are substantially moot in so far as the school year in question has already passed and, in any event, the same relief going forward has recently been provided in the order in case # . “*A case becomes moot when interim relief or events have eradicated the effects of the defendant’s act or : ~“ omission, and there is no reasonable expectation that the alleged violation will recur.’” F.O. v. New York City Dept. of Educ., 899 F.Supp.2d at 254, citing Yandow v. Kronau, 474 Fed. Appx. 797, 799 (2d Cir. 2012). Thus, “[t}he voluntary cessation of allegedly illegal conduct usually will render a case moot.” Lillbask, 397 F.3d 77 at 88 (school . districts voluntary cessation of attempt to place student in a private school outside the public school system rendered claim moot).

current program for the 2019-2020 school year; and the relief requested in the complaint notice (T. 44). Namely, a final order that includes an IEP that offers FAPE and a program that includes : -. the following: The District to fund a placement at an appropriate non-public school (approved or non- approved) that utilizes: a. Research based, behavioral modification methodologies, or an equivalent program through the provision of full-time push-in 1:1 ABA instruction and related services; b. 12 Month Extended School Year; ¢. 35 hours per week of in school and at home 1:1 ABA at an enhanced rate; d. 1 hour per week of Cognitive Behavioral Therapy by a New York State Licensed Psychologist; 2 hour per month of Parent Training & Counseling conducted by a BCBA at an enhanced market rate; 2 hours per month of BCBA supervision by a BCBA at an enhanced market rate; Individual Speech & Language Therapy twice per week for forty-five minutes; Speech & Language Therapy in a group of 2 for forty-five minutes per session; Individual Counseling once per week for 30 minutes; Counseling Services twice per week for 30 minutes in a group of three; Individual Occupational Therapy twice per week for 30-minutes; and Special Education Transportation with Limited Time Travel. (Ex. A) @

maoPeEggbh District’s Position

- The District did not submit any evidence or call any witnesses or cross-examine the Parent’s ee witnesses. The District’s position is that they did not put on case because of witness ~- unavailability (T. 41).

Student History

The Student has a disability classification of Autism (Ex. F, Ex. L). The Student has diagnoses of Autism Spectrum Disorder, without accompanying intellectual impairment, with accompanying language impairment, associated with another neurodevelopmental mental or behavioral disorder; language disorder, receptive and expressive language delays; specific learning disorder with impairment in reading; specific learning disorder with impairment in written expression; developmental coordination disorder; attention deficit hyperactivity disorder (ADHD), and combined presentation (Ex. C). The Student’s language functioning is presented to be within the : very low to severe range of functionality(Ex. I). The Student exhibits problem behavior at home and at school, including non-compliance and throwing objects (Ex. J). The Student has demonstrated progress with SETSS/ ABA (Ex. K, Ex. N).

Legal Background

’ The IDEA is a comprehensive statutory framework established by Congress to aid the states in , providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)1). “A [FAPE] is available to all children with disabilities residing in the state between the 7 ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and ‘related services that: = (A) have been provided at public expense, under public supervision and direction, and without charge, - _ (B) meet the standards of the state educational agency, . = (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and ©. - (D) are provided in conformity with the individualized education program required under ~ § 614(d) ofthis title. 20 U.S.C. § 601(9).7 “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, mee ‘in hospitals and institutions, and in other settings; and (B) instruction in physical education. ‘The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation

A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school ) _ district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute ... is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, * . 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs . of a disabled child and the specially designed instruction and related services to be employed to ’-meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee ~ on special education (“CSE”), whose members are appointed by the board of education or trustees | of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005). . The IDEA provides numerous procedural safeguards to protect the due process rights of disabled ; children and their parents. See generally 20 U.S.C. § 615. These procedures include the , opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)()) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). | Any such complaint is resolved through an “impartial due process hearing” in which parents of _ disabled children have “an opportunity to present complaints with respect to any matter relating to | . the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] ‘to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. - Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002). | counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes . only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

_In New York State, “[t]he board of education or trustees of the school district or the state agency tesponsible for providing education to students with disabilities shall have the burden of proof, _ Including the burden of persuasion and burden of production, in any such impartial hearing ...” _ _ N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 US. at 537. - The District did not call any witnesses to defend their position. Nor did they submit evidence, although the Parent did submit the operative IEPs from the school year at issue (Ex. F and/or L). The Parent asserts that the IEPs did not offer the Student an appropriate program for the 2019- 2020 school year, that the program recommendation could not meet the Student’s needs, inter alia. The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. (‘SRO No.”) 16-028; 13-200; SRO No. 11-091: SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the . burden of proof is on the District). See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016). In this case the District did not demonstrate that their program was appropriate for the Student. Rather I am left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the deliberations that may or may not have contributed to a final recommendation.

- The District failed to demonstrate why a 12 month 12:1:1 special class and specialized school is appropriate for the Student. They did not call any witnesses to demonstrate that the IEP was appropriate or how it would be implemented in the District school and failed to demonstrate that a they provided a FAPE. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS _ 9239. As for the allegation that witnesses were unavailable, I find that excuse to be unpersuasive. I, therefore, rule for the Parents and find there was no FAPE for the 2019-2020 school year.

Recommendations

The record in this cased has been updated since the files used in the 17-18 & 18-19 school years case (Case # ). As would be expected, the records are consistent and support significant services for the Student. The Neuropsychologist who evaluated the Student again recommended an educational day treatment center or non-public school, that has the resources to address the Student’s difficulties ce and can provide counseling, a Behavior Intervention Plan (BIP), or adaptive behavioral analysis, and related services. “He requires...a small classroom setting that provides intensive individualized : é ee ‘attention and support throughout the day, through a remedial approach to teaching with special education teachers who are trained to work with children with autism, emotional, and learning . disabilities” (Ex. C). The Neuropsychologist recommends a class size no more than 6:1. He specified that the classroom: “Must be language-based, where a special education teacher is able . to adequately tailor instruction to children with severe high functioning autism, emotional , . behavioral difficulties, language deficits daily and throughout all parts of the day”.

He also recommended, “an updated and comprehensive speech and language evaluation; an updated functional behavior analysis, or adaptive behavioral analysis by a board-certified behavioral analyst (BCBA), an assistive technology evaluation, evidence-based reading program, and systemic phonic instruction”. He further recommended that, ““While the Student is waiting for ‘placement in a new school, he receive the support of a 1:1 fulltime push-in special education/ ABA therapist in his current setting” (Ex. C). The evaluator for the assistive technology assessment recommended a Google-Pixel book with read and write literacy software by Text Help; FastForWord; Google Docs; Co-Writer Universal; Webspuration Classroom; Google Keep; Audio Recorder Pro; and 36 hours of Assistive ~ Technology (AT) training (Ex. H). The Speech and Language pathologist who evaluated the Student recommended individual _ speech/language therapy 2x45 and 1x45 in a group of two; specialized reading instruction by a - certified reading specialist; daily independent reading for 30 minutes; a complete audiological evaluation to rule out hearing loss; an auditory processing evaluation, and compensatory services in the form of a bank of 280 speech and language hours (based on the two years the Student did not receive speech and language services in the appropriate provision: 2017-2018 and 2018-2019%) (Ex. Tj. * I note again that this relief was recently awarded in case #

The ABA providers recommended continuing the Student’s current SETSS services of 15 hours ~ per week at home and 35 hours per week (of compensatory hours) at school (Ex. N). The BCBA-D who supervises the Student’s ABA program recommended a full-day program of _ 1:1 ABA at school for 35 hours per week and 5 hours per week of ABA at home; 2 hours per - month of Parent training; and 2 hours per month of BCBA supervision push-in services at school and a formal behavior intervention plan. He testified that the Student requires a “full-time 1:1 ABA - program to address his global delays across all noted domains, his problem behavior and the | learning difficulties that are interfering with acquiring academic skills and meaningful social behaviors as well as self-help, adaptive skills required for pre-teens his age" (Ex. O).

Compensatory Education

, Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” . because the courts act in equity when remedying IDEA violations and must “do equity and. . . . mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 US. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.NLY. 1997]. - . I must reiterate that I just issued a comprehensive award of compensatory services (which covered the period of a past denial of FAPE (2017-2018 & 2018-2019) right through to the date I issued that order (July 3, 2020). In review of the earlier order I notice that I did not address the issue of counseling, whether that was an oversight or the claim was abandoned I do not know. But the Parent had persisted in the instant case to pursue counseling. exception is the issuance of

- compensatory hours for counseling services. On the one hand I am persuaded by the Affidavit of the Psychologist (Ex. O) who prescribed these counseling services. Historically these related : services were also available per the District IEPs (Exhibits F& K). On the other hand the counseling may be incorporated into the Student’s current substantial programming that has been ' exquisitely crafted as per the previous litigation. -. In the complaint notice, the Parent was seeking an hour a week of cognitive behavioral therapy, individual counseling, and group counseling (in addition to the other therapies granted in the previous case, ). Although the Neuropsychologist recommended a school placement that provides counseling, the Neuropsychologist did not specify a particular type of counseling or the amount. The BCBA did not address the issue of counseling in his affidavit. As an abundance of caution, I order the District to evaluate the Student to determine if the Student would benefit from ‘couriseling. Notwithstanding, I believe that further evaluations are warranted. This Student with complicated needs is quickly approaching the 2020-2021 school year (# '). It is therefore ORDERED ‘The District to evaluate the Student to determine if the Student would benefit from counseling as a related service and return this matter to the CSE to determine if such services should be mandated on the Student’s IEP. Dated: December 4, 2020 aH 4 <b = AZMartin J. Kehoé III, Esq. ImpartiaVHearing 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.