Impartial Hearing Decision

DECISION ORDER Case Number: 184626 Student’s Name: Redacted Hearing Requested By: Parent Hearing Officer: Martin J. Kehoe II, Esq.

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (THO) 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. A pendency hearing was held on July 25, 2019 and I issued a pendency order. A hearing was held on October 29, 2019; December 11, 2019; February 4, 2020; April 2, 2020; April 22, 2020; April 27, 2020; May 14, 2020; and May 29, 2020. Parent’s Position In the complaint notice, dated September 1, 2019, the Parent alleged that the District failed to provide the Student with a Free Appropriate Public Education (FAPE) for the 2019-2020 school year. The Parent alleged that the District failed to appropriately evaluate the Student, provide him with an appropriate placement, develop an appropriate Individual Educational Program (IEP) for the 2019-2020 school year, and failed to conduct a Functional Behavior Assessment (FBA) or a Behavior Intervention Plan (BIP). The Parent is seeking an IEP and a program in an appropriate non-public school that provides full day 1:1 ABA; 15 hours of 1:1 home — based ABA; three hours per week of supervision by a Board Certified Behavior Analyst (BCBA); two hours per month of ABA training by a BCBA; a 1:1 paraprofessional; related services; and compensatory services. (Ex. A).

District’s Position The District did not submit any evidence or call any witnesses. Student History The Student has a diagnosis of autism spectrum disorder, with accompanying language impairment and intellectual disability — severe. The Student presents with impairment in social communication and reciprocal social interaction, and also restricted and repetitive patterns of behavior (Ex. C). The Student has a disability classification of autism (Ex. B). The Student is non—verbal. He requires one to one supervision and prompting in order to do activities of daily living (Ex. O). Background of the case A Committee on Special Education (CSE) meeting was held for the Student on January 4, 2019. The [EP recommended a 6:1:1 special class; related services of occupational therapy three times per week for 30 minutes on an individual basis; parent counseling and training in a group one time per month; physical therapy one time per week for 30 minutes on an individual basis; physical therapy in a group of two one-time per week for 30 minutes; speech language therapy four times per week for 30 minutes on an individual basis; a full time health paraprofessional; program modifications and accommodations; individual special education teacher support services (SETSS) at home for 10 hours per week for two hours daily; and assistive technology of a dynamic display speech generating device (Ex. B). The Parent enrolled the Student in the Private School for the 2019-2020 school year (Ex. O).

Legal Background

The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (““FAPE”). 20 U.S.C. § 612(a)(1). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that: - (A) have been provided at public expense, under public supervision and direction, and without charge, - (B) meet the standards of the state educational agency, - (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and - (D) are provided in conformity with the individualized education program required under § 614(d) ofthis title. 20 U.S.C. § 601(9).! A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an 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 ' “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005). The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(1)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). 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). Procedural Standard Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); BE. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5" Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); 2G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).

The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998). Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id. For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982), that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held, “... the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176. In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415()(G)(E)Gi); see also, Matrejek v. Brewster Cent. Sch. Dist.,471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application ofa Child with a Disability, Appeal No. 07-007.

Substantive Standard

The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2TM Cir. 1998). Neither the IDEA nor Article 89 of the New York State Education Law requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), 8.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UF SD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley). This straightforward obligation of the District is underscored by the obligation to demonstrate the appropriateness of the program recommended by its CSE. To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982). The recommended program must also be provided in the least restrictive environment. 34 C.F.R. § 300.550(b); 8 NYCRR 200.6(a)(1).x

Analysis

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). The District did not present a case to defend their program. They did not submit any evidence or call any witnesses. In essence they have acquiesced to the relief sought. Moreover, I credit the Parent’s evidence and the testimony of the Parent’s witnesses regarding the Student’s needs and that the Private School and the home based ABA have afforded him an appropriate private education where he has made progress, I therefore rule for the Parent. Recommendations The Psychologists who evaluated the Student recommended continued classification of autism on his IEP and placement “within a small school setting specialized for children with ASD that can provide him with the structure and support that he will need to make appropriate progress academically and socially. His school setting needs to have integrated behavioral support guided by the principles of Applied Behavior Analysis (ABA), and there should be opportunities for [the Student] to work one — to — one with trained professionals who have extensive experience working with students with ASD and intellectual disability... [The Student] should be placed in a classroom with peers who have approximately the same cognitive and language abilities. In addition, [the Student] requires an educational setting that will comprehensively address his social — emotional and adaptive development.” (Ex. C). The Psychologists also recommended related services of daily speech language therapy; occupational therapy multiple times per week; physical therapy to improve gross motor abilities; an FBA by a BCBA and a BIP; a 12 month program; — home and center — based ABA with parent training; and continued functional communication training. (Ex. C). The Physical Therapist recommended two 30-minute sessions of physical therapy per week (Ex. J). The Occupational Therapist recommended three 30-minute sessions of occupational therapy per week (Ex. L). The Speech Language Therapist originally recommended four 30- minute sessions of speech language therapy per week (Ex. K) but changed the recommendation to five 45-minute sessions each week (Ex. O). The Comprehensive Program Supervisor recommended continuing the Student’s home — based ABA. “[The Student’s] afterschool program is an integral part of his overall program and this program is necessary for him to make progress. The significant number of deficits [the Student] has requires additional therapy, time and repetition to address. He also needs systemic opportunities for generalizing across settings.” (Ex. O). For the Student’s school program, he recommended “. . . a full — day 1:1 program utilizing the methodology of ABA which includes OT, PT and Speech as well as a team that collaborates with a home ~ based ABA program.” (Ex. O). The BCBA A/ABA Supervisor at the Private Agency recommended 15 hours per week of SETSS — ABA services. She stated the Student “needs instruction at home in order to learn basic behaviors and skills that are needed for him to be able to have a more fulfilling life, (e. g. communicative skills, receptive language skills, play skills) that he didn’t present prior to implementation of his services.” (Ex. P). The Physical Therapist wrote a letter requesting that the Student’s PT mandate should be changed back to twice per week for 30 minutes on an individual basis. She explained that the Student attempts to elope during PT sessions and it would not be safe to work with the Student and another student at the same time. She added that none of the other students in the school the school are mandated for group physical therapy (Ex. Q). The Parent testified that the Student began attending the Private School on July 15, 2019. She said that she provided transportation for the Student to and from the school until September 23, 2019, and the costs of transportation were $190. The District provided special education transportation starting on September 24, 2019. The Parent testified by affidavit that the Student “made substantial progress in many areas” at the Private School. For example, he had a decrease in self — injuring behaviors, aggressive behaviors, and had increased tolerance to sitting and attending to tasks. The Parent also testified that the Student made progress with his home — based ABA therapy. “[The Student] showed increased tolerance at a table, he also had a decrease in self — injury behaviors and he was at the beginning of trying to make vocal approximations.” (Ex. 8S) Since schools were required to close in the middle of March because of the coronavirus, the Parent said that the Private Agency has been providing 1:1 SETSS/ABA services through Telehealth services and the Private School is providing daily 1:1 speech language therapy, occupational therapy and physical therapy through Telehealth services as well (Ex. S). The Parent stated that since the Student has not been in his full day 1:1 ABA program, his maladaptive behaviors have returned (Ex. S). The Parent is requesting reimbursement for the costs of transportation before the District provided transportation to the Student and make up hours of speech and language therapy for the speech services the Student did not receive at the recommended mandate (Ex. S).

The Private School The Comprehensive Program Supervisor at the Private School described the school as a “clinic — based treatment center that provides educational services for individuals with special needs through Applied Behavior Analysis (ABA), Speech Therapy, Occupational Therapy, and Physical Therapy. [The Private School] provides full — day comprehensive service programs that provide educational services in an ABA — based model with related services provided using transdisciplinary methods.” (Ex. O). The Student’s Progress The Student has been receiving individual physical therapy two times per week for 30 minute sessions. The therapy addresses the Student’s core stability, overall muscle strength, balance, and motor planning ability (Ex. O). The Student made progress with his physical therapy goals (Ex. J). The Student has been receiving individual occupational therapy three times per week for 30 minutes. The sessions address the Student’s sensory processing, self — regulation skills, and fine motor and visual motor skills (Ex. O). The Student made progress in his occupational therapy goals (Ex. O). The Student has been receiving individual speech language therapy four times per week for 30 minutes (Ex. O). The Student’s speech therapy was given to improve his receptive, expressive and pragmatic language skills, his play skills, and motor speech. The Student made progress in his speech language therapy goals. He had emerging skills in using his speech generating device, he was learning to use American sign language, and he received PROMPT therapy. (Ex. K). The Student has been receiving 10 hours per week of 1:1 ABA therapy at home.

The ABA therapy given to improve the Student’s generalized imitation skills, echoic/vocal demanding skills, ability to form receptive and expressive associations, develop appropriate play skills, following a self — reinforcing photographic activities schedule independently to complete five — six consecutive activities, and developing communication and play skills with the Student’s Parents and siblings (Ex. P). The BCBA/ABA Supervisor at the Private Agency testified by affidavit that the Student is “making progress across his cognitive, pre-academic, ~ speech/communication, social-emotional, behavioral and adaptive domains." (Ex. P). The Student made progress in his SETSS/ABA goals. He mastered one goal and showed “some improvement” on all the other goals (Ex. N). For example, the Student “has learned to imitate with various objects and increased his ability to imitate gross motor and fine movements, increased his ability to imitate oral movement and sounds. He is able to sit at the table and stay on task for up to five minutes before earning his reinforcer using a token system during various nonpreferred activities and trials. [The Student] has increased his ability to visually discriminate similar objects and is learning to play appropriately with a variety of toys such as puzzles, balls, pegs, etc. [The Student] has learned to independently perform five — six age — appropriate activities following a photographic activity schedule within an embedded self — reinforcing motivational system while at home.” (Ex. N). The BCBA/ABA Supervisor at the Private Agency testified that she has visited the Private School and school staff have observed the agency’s 1:1 ABA sessions at the Student’s home. She considers the Private School an appropriate program for the Student. She communicates with the Private School and the Registered Behavioral technician who is also providing 1:1 ABA therapy to the Student. She also communicates with the Parent on a regular basis (Ex. P). The Comprehensive Program Supervisor at the Private School testified that the Student has shown improvement in transitions from his work area to other areas at the school, is able to sit at a desk for longer periods of time, and has had a decrease of his interfering behaviors. (Ex. O). The Comprehensive Program Supervisor testified that he collaborates with the Student’s Case Manager, a BCBA and supervises her in the Student’s programming and behavior intervention tactics and communicates with her daily about the Student’s overall programming. He also communicates with the Student’s Home — Based BCBA and communicates with the Parent daily. The Private School offers parent training as needed, parents can observe each therapy once a week, and home visits are scheduled as needed . (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 USS. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]. In conclusion, I issue the following orders: 1. That the Committee on Special Education promptly convene to address the Student’s individual learning needs create meaningful and measurable goals to address the Student social, emotional, behavioral, and academic deficits, and develop an IEP to specify a program to address his individual needs in a twelve-month non-public school program, inclusive of related services. The Student’s IEP shall also include fifteen hours of home-based individual ABA per week, eight hours of BCBA supervision per month, and four hours of individual parent counseling and training per month; Special Education Transportation with Limited Time Travel in an air-conditioned vehicle. If the District cannot achieve the limited time travel mandate, then a car service to transport the student to and from school and home. An individual 1:1 transportation paraprofessional; Individual occupational therapy, three times per week for thirty minutes-1:1 3x30; Individual speech and language therapy, five times per week for forty-five minutes- 1:1 5x45; Individual physical therapy two times per week for thirty minutes-1:1 2x30; The District must provide and/or fund AT supports and services as appropriate to assist the Student with learning and developing his language, communication, motor, ADL, and other functional skills. 2. That the CSE defer the Student’s case to the Central Based Support Team for non- public school placement consistent with the record in this case and the directions to the CSE above; 3. The Parent may utilize providers of her choosing for all services awarded in the Final Order, so long as the individuals are qualified and charge reasonable rates; 4. In the event that the District cannot ensure an LBA(s) to provide ABA services to the Student, the District must fund 1:1 instruction with behavioral support until such time as the DOE locates an LBA? 5. Ifthe Parents incur any other debts or extend any funds with respect to the Student’s education for the 2019-2020 SY, evaluations, transportation or compensatory education, their debts should be satisfied, or they should be reimbursed upon presentation of proper invoices for same. Dated: October 7, 2020 So Ordered, Martin J. Kehoe HI, Esq. Impartial Hearing Officer * NYSED has implemented new licensure requirements for ABA providers. All ABA providers who are not employed by a school district or school must be certified by NYSED as a Licensed Behavior Analyst (“LBA”).

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 Educatin 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 hitp://www.sro.nysed.cov.

CERTIFICATION OF IMPARTIAL HEARING OFFICER

In the Matter of: (Name of Student)
Hearing Dates: 10/29/19:12/11/19;2/4/20;4/2/20;4/22/20; 4/27/20; 5/14/20;5/29/20

I, Martin Kehoe , Impartial Hearing Officer in this matter DO HEREBY CERTIFY that the attached Evidence and attached Index of Exhibits itemize the entire record before me in the above entitled matter as of this date. | FURTHER CERTIFY that the materials submitted herewith are either the original or true copy 10/07/2020 Signature of Impartial Hearing Officer Date Signed ( Comments/Notes:

IMPARTIALHEARINGOFFICE Pleasesubmitform and evidence to:. IHOEvidence@schools.nyc.gov PARENT EVIDENCE Student’s Name:Case Number; 184626 Date of Hearing: 05/29/2020(useseparatesheetforeachdateofhearing) Enter Exhibit No. . wg we Number DateDateDate Marked forID* Brief Descriptionof Exhibit of Pages | Offered Admitted Withdrawn See Attached Parent exhibits: marked with uppercase letters(A-Z); Joint “i, & Department of Education exhibits: marked with lowercase letters (a-z) I certifythat theevidence “a Aen ond°Wile ImpartialHearing Officer: March2020 &/o /, r withdrawnon thedateindicatedabove. f / ly ? natures. rr Date: 10/07/2020

DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK IMPARTIAL HEARING OFFICE

In the Matter of

LIST OF EXHIBITS

Exhibit | Description Date Pages A Due Process Complaint 07/01/2019 19 B Individualized Education Program (IEP) 01/04/2019 20 C Developmental Evaluation 01/2019 - 16 02/2019 D ABA Goals and Progress Report 08/2019 6 E SIB Functional Behavior Assessment 08/2019 4 F Elopement Functional Behavior 08/2019 4 Assessment G Agressions Functional Behavior 08/2019 4 Assessment H Mouthing Functional Behavior 08/2019 3 Assessment I Behavior Intervention Plan 09/2019 6 J Physical Therapy Goals and Progress 12/2019 4 Report K Speech Therapy Goals and Progress 12/2019 5 Report L Occupational Therapy Goals and Progress 12/2019 6 Report M ABA Goals and Progress Report 12/2019 7 N SETSS-ABA Progress Report 03/13/2020 11 O Affidavit of Undated 12 Fo atest ot ple €