New York City Department of Education, Impartial Hearing Decision

DECISION AND ORDER

Case Number 184767

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: August 22, 2019 (PHC), August 27, 2029

(PHC), October 3, 2019, December 10, 2029,

March 2, 2020, May 1, 2020, August 5, 2020,

September 23, 2020

Hearing Officer: Rona Feinberg, Esq.

Actual Record Close Date: November 27, 2020

WITNESSES

August 22, 2019 (PHC)

, Esq. Attorney Parent

District Representative Department of Education

August 27, 2019

, Esq. Attorney Parent (via telephone)

October 3, 2010

, Esq. Attorney Parent (via telephone)

District Representative Department of Education (via telephone)

December 10, 2020

, Esq. Attorney Parent (via telephone)

March 2, 2020

, Esq. Attorney Parent (via telephone)

District Representative Department of Education

May 1, 2020

, Esq. Attorney Parent (via telephone)

August 5, 2020

, Esq. Attorney Parent (via telephone)

, Esq. Attorney Department of Education (via telephone)

September 23, 2020

, Esq. Attorney Parent (via telephone)

, Esq. Attorney Department of Education (via telephone)

Findings of Fact, Decision and Order

INTRODUCTION

On August 22, 2019 (PHC), August 27, 2019, October 3, 2019, December 10, 2019, March 2, 2020, May 1, 2020, August 5, 2020, September 23, 2020 I held an impartial hearing in this case pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, The hearings on August 22, 2019 (PHC), August 27, 2019, October 3, 2019, December 10, 2019, and March 2, 2020 were held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. The hearings on May 1, 2020, August 5, 2020 and September 23, 2020 were held remotely due to the Covid-19 crisis. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.

BACKGROUND

is years ten months old and is classified as having Autism. He is unilaterally placed at school (“ ”), a private school in Brooklyn, New York.

The parents, by their attorney , Esq., of the , P.C., filed an Impartial Hearing Request on July 1, 2019. The parents alleged that the Department of Education failed to provide with a Free and Appropriate Education (“FAPE”) for the 2019-2020 school-year1s. Among other things, the parents alleged that the Department of Education failed to evaluate in all suspected areas of disability, failed to recommend an appropriate program and site-specific school placement, and failed to provide with PROMPT services or any other services that could address his Apraxia for the 2018-2019 school-year (Parents’ Ex. A).

As a remedy, the parent requested that the Department of Education pay the tuition and costs at for the 2019-2020 school-year, reimburse the parents for after-school PROMPT therapy during the 2018-2019 and 2019-2020 school-years, and fund independent evaluations by private evaluators at the customary rates, including a neuropsychological evaluation, a speech-language evaluation, an occupational therapy evaluation and a physical therapy evaluation (Parents’ Ex. A at 4).

Ms. filed another Impartial Hearing Request on August 5, 2020

(# ), again alleging that, for various reasons, the Department of Education failed to provide with a Free and Appropriate Education for both the 2018-2019 and 2019- 2020 school-years (Parent’s Ex. C). As a remedy the parents asked for an Order directing the Department of Education to fund a Functional Behavioral Assessment (“FBA”) by a private evaluator of the parents’ choosing at the customary rate and for reimbursement for a speech/language evaluation completed by on January 21, 2020. The parents also asked that the CSE reconvene an IEP meeting after the evaluations are completed to develop an appropriate IEP that addresses the parents’ concerns and includes 1:1 ABA instruction and after-school PROMPT therapy three times per week for 45 minutes at the market rate (Parent’s Ex. C at 5-6).

On August 12, 2020 I issued an Order Granting Consolidation of the two cases

(IHO Ex. I).

I was appointed as Impartial Hearing Officer in this case on July 10, 2019. The original compliance date was September 14, 2019. I extended the compliance date 15 times, initially because the case was accepted for settlement and the parties were engaged in settlement discussions. Subsequently, the case went forward and I granted extensions for the availability of witnesses, for the receipt of the transcript and Closing Briefs, and time to review the documents and issue a Decision and Order.

The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) the child was unilaterally placed in the school desired by the parent and receiving services pursuant to an Order on Pendency; (b) in accordance with due process the parties were entitled to time for settlement negotiations and after the case went to hearing, time for the parties to submit closing briefs and to have this hearing officer review the transcript, evidence and Closing Briefs and issue a Decision and Order; (c) there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) there was no prior delay in this case that impacted on the ’s education.

ISSUES REMAINING IN DISPUTE AT THE IMPARTIAL HEARING

The remaining issues in the case are whether the Department of Education provided with a FAPE for the 2019-2020 school year, and if not, whether the parent’s placement and services are appropriate, and if so, whether the equities of the case support the parents or the Department of Education. Also to be determined is whether the parents are entitled to various independent evaluations and whether the request for PROMPT therapy reimbursement for the 2018-2019 school-year is barred by res judicata based on a Decision and Order by IHO , Esq., dated June 12, 2019, addressing the issue of FAPE for the 2018-2019 school-year (Case # ) (IHO Ex. I at 3-4).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I.

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). A FAPE includes special education and related services designed to meet a child’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D)

34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Board of Education v.

Rowley, 458 U.S. 176, 179-81, 200-201 (1982). A school District offers a FAPE by developing an IEP and “providing personalized instruction with sufficient support servic es to permit a child to benefit educationally from that instruction.” Id. At 203; See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012). An appropriate placement is one that is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v.

Carter, 510 U.S. 7, 14 (1993); Frank G., v. Bd. of Educ. of Hyde Park, 450 F.3d 356, 364 (2d Cir.2006), cert. denied, ___ U.S. ___, 128 S.Ct. 436, 169 L.Ed.2d 325 (2007). At an impartial hearing the Department of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404[1][c].

To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child. Rowley, 458 U.S. at 188-189; 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. The IEP must and the program must be “likely to produce progress and not regression” and afford the student an “opportunity for greater than trivial advancement.” M.O. v. N.Y.C. Dept. of Educ., 793 F.3d 236, 23 (2d Circ., 2015), citing M.H. v. N.Y.C. Dept. of Educ., 685 F.3d 217, 224 (2d Cir.2012). In Endrew

F. v. Douglas County School District, 580 U.S. __, 137 S.Ct. 988, 197 L.Ed.2d 335 (2017), the Supreme Court’s unanimous decision on special education, the Court clarified that a school district must do more than provide a "merely more than de minimis" education program to a student with a disability. Rather a school district must offer a program that is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances " (emphasis added) and each child’s program should be “appropriately ambitious” in light of those circumstances and provide the child with “the chance to meet challenging objectives” in the LRE. Id. at 1000-1002.

An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the child's needs. In order to conduct adequate assessments upon which the base the IEP, the district must “use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information.” 20 U.S.C. §1414(b)(2)(A). The IDEA further requires that the district ensure that the evaluations being conducted are sufficiently comprehensive to identify all of the student’s special education needs, and to ascertain the cognitive, physical, mental, behavioral, and emotional factors that contribute to the suspected disabilities. 20 U.S.C. §1414(b)(2)(A); 8 NYCRR §

200.4(b)(1)(v), (b)(5)(iii), (b)(6)(xi).

The IEP must provide for the use of appropriate special education services to address the child's special education needs and must establish annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E, 694 F.3d at 175. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an individualized education program recognizing that “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between. Endrew F. 137

S. Ct. at 996, quoting Rowley, 458 U.S. at 202.

***

The Department of Education submitted documents into evidence, including an Affidavit by , the licensed speech/language pathologist who provided the with after-school PROMPT therapy during the 2018-2019 and 2019-2020 school-years (DOE Ex. 5; Parents’ Ex. P, Ex. Q). The Department of Education did not present any witnesses to testify at the hearing. , Esq., the attorney representing the Department of Education, conceded that that the Department of Education failed to provide with a FAPE for the 2019-2020 school-year (TR: 58). Thus, the Department of Education did not meet its burden under Prong I.

II.

Under the second criterion of the legal standard, a parent bears the burden of proof with regard to the appropriateness of the services that he/she obtained for for the school-year in question. N.Y. Educ. Law §4404[1][c]; M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 11-053.

In order to meet that burden, the parent must show that the educational services were "proper under the act" [IDEA]. Sch. Comm. of Burlington v. Mass. Dept. of Educ., 471 U.S. 359, 370 (1985) i.e., that the educational program is one which met the child’s special education needs. To qualify for reimbursement under the IDEA, parent need not show that a private placement furnishes every special service necessary to maximize their child's potential. Parents cannot be denied reimbursement because a private school does not meet the standards required for a state educational agency such as developing IEPs or employing faculty members that are state certified. Rather, the parents need only demonstrate that the placement provides "educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction” and that the placement is likely to produce progress and not regression. Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits."

Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G., v. Bd. of Educ. of Hyde Park, 450 F.3d 356, 364-365 (2d Cir.2006), cert. denied, ___ U.S. ___, 128 S.Ct. 436, 169 L.Ed.2d 325 (2007); Walczak v.

Florida Union Free Sch. Dist., 142 F.2d 119, 130 (2d Cir. 1998).

No one factor is dispositive of determining the propriety of a unilateral placement.

Rather, courts must consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. Frank G., 450 F.3d at 364-365.

While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parent are entitled to an award of tuition reimbursement. Rafferty

v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S, 231 F.3d at

105.

In lieu of direct testimony, the parents presented Affidavits by , a licensed speech/language therapist (Parents’ Ex. T) and , the Educational Director of (Parent’s Ex. V). ’ mother provided an Affidavit and also testified at the hearing (TR: 61-64; Parents’ Ex. W).

A.

was diagnosed with Autism when he was two years three months-old.

communicates primarily through pointing, moaning, pulling others toward objects in his environment. He has a communication device to express himself and can sometimes produce sounds, vocalizations, and word approximations. However, he is very inconsistent and it is difficult for his family members to know what he wants. He cannot get dressed or undressed by himself and needs adult assistance for many daily tasks

(Parents’ Ex. W at 1-2).

often engages in sensory seeking behaviors at home, such as biting his shirts, chewing on his pants, and putting inedible objects into his mouth. He is extremely sensitive to noise and bright lights and gets overwhelmed in environments with a lot of stimulation. has no “safety awareness” and has engaged in unsafe behaviors such as running out of the house into traffic and opening the car door on the side of traffic

(Parents’ Ex. W at 2).

From the ages of three to five years-old the Department of Education placed at the preschool. He remained at the school for kindergarten during the 2018-2019 school-year and the Department of Education paid the tuition pursuant to a Decision and Order by an impartial hearing officer. also attended the school for the 2019-2020 school-year (Parents’ Ex. B, Ex. W at 3).

Ms. is the Educational Director at , a private Applied Behavior Analysis (“ABA”) school in Brooklyn, New York. Ms. has a Master’s Degree in Behavioral Sciences. She is a Licensed Behavior Analyst (“LIB”) in New York State and a Board Certified Behavior Analyst (“BCBA”). She has a New York State professional certificate as a School Building Leader and has a New York State permanent certificate as a teacher of special education (Parent’s Ex. V at 1 -2).

The school-age program at has an enrollment of about 22 students from the ages of five to 14 years-old, all of whom have a diagnosis of Autism Spectrum Disorder (“ASD”) (Parents’ Ex. V at 2). Most of the classes have six students, one teacher and three teacher assistants (6:1:3). All of the teachers have Master’s Degrees in special education and are certified in New York State. The teacher assistants are certified by the New York City Department of Education and are pursuing post-secondary degrees in areas related to special education. There are four BCBAs at the school, including Ms. , who supervise the teachers and help develop the programs for each student (Parents’ Ex. V at 4). Ms. described the services and opportunities that are available at the school to address various skills, the professional development and training programs for the staff, and the interdisciplinary meetings held at least twice a month for each student (Parents’ Ex. V at 4-6).

Using ABA, the school develops individualized programs that break down tasks into small steps to enable the students to gain skills in their own way. The school day addresses both skill acquisition and generalization as many of the students have difficulty maintaining the skills that they mastered. The program includes social groups and thematic groups on topics that are relevant and meaningful for the students such as holidays, seasons, and the calendar. The school provides training for the students in different types of activities of daily living (“ADL”) skills to enable them to function and increase their independence in the community and at home. Training is offered to the parents to help them learn how to manage their children’s needs and help the children reach their full potential (Parents’ Ex. V at 3-4).

was seven years seven months old at the time of the impartial hearing. He has global delays in all developmental areas. is a largely nonverbal child with severe deficits in expressive, receptive and pragmatic language skills. He communicates using his augmentative and alternative communicative device (“AAC”) that is programmed with the “Proloquo” app. He also uses gestures and some verbal approximations. He struggles with sensory processing. Ms. observed the in the classroom multiple times during the school-year and discussed his progress with the classroom staff (Parents’ Ex. V at 6-8, Ex. W at 1-2).

During the 12-month 2019-2020 school-year was in classroom with six students, one special education teacher and three assistants (6:1:1). His teacher was , a New York State certified and licensed special education teacher who has a Master’s Degree in special education. received individual speech/language therapy three times per week for 30 minutes by , a licensed speech/language pathologist and a PROMPT trained therapist. He received individual occupational therapy two times per week for 30-minutes to address his fine motor, visual perceptual, sensory processing and self-care delays. His therapist was , a New York State licensed occupational therapist. received individual physical therapy two times per week for 30-minutes from , a New York State licensed physical therapist.

Two times per week he received art therapy from , a New York State licensed creative arts therapist (Parents’

Ex. V at 6-7).

struggles with sensory processing as he displays both hyper sensory and hypo sensory tendencies. To help him self-regulate the teachers implemented a sensory diet on a 30-minute schedule throughout the day targeting those needs. When he displayed sensory seeking behavior he received calming sensory input of deep pressure, calming music, brushing or sensory materials such as sand or beans for 30 seconds to one minute, followed by easy commands such as “sit down” or “quiet voice” to help him to self-regulate. During the 2019-2020 school-year required a high rate of reinforcement to maintain focus and motivation to respond. His reinforcers included an edible or a desired toy upon completion of every 1-5 learning units done appropriately. He required many opportunities when learning new skills with constant redirection and maintenance

(Parents’ Ex. V at 8).

exhibited maladaptive behaviors in school, including self-stimulatory and sensory seeking behaviors such as mouthing foreign objects, spinning on his knees, and running back and forth in the classroom, jumping off a chair or table and grabbing the teacher’s hands. He also failed to comply with demands. To decrease these behaviors the classroom staff gave a choice of a preferred activity as a reinforcer for complying with a demand given to him. Other behaviors included escaping from tasks and demands placed upon him. When he did not want to do a specific program or follow a command he would cry, throw himself on the floor and run around the classroom. To address those behaviors his teachers redirected him to his AAC device and prompted him to request for what he wanted. Ms. related how the classroom staff helped stay focused and motivated (Parents’ Ex. V at 9-10).

’s schedule included 1.5 to 2 hours per day of 1:1 ABA instruction to address verbal behavior, listening and speaking domains. During that time he was provided with discrete trial training to address his expressive, receptive and pragmatic language deficits.

He required intensive, individualized ABA based instruction due to his high distractibility, his difficulty with self-regulation and focus and his tendency to exhibit maladaptive and sensory seeking behaviors. He also required prompting, redirection and sensory breaks during the school day. required 1:1 instruction and discrete trial training to acquire new skills and successfully maintain mastered skills. The ratio of six students to four adults in the classroom enabled to receive 1:1 attention and support throughout the day. The schedule also included morning meeting, gym, sensory/art based centers, peer play, hematic groups, ADL skills, communicating training and developing preacademic skills as well as developing appropriate eating skills during lunch and snack time and during his occupational therapy sessions (Parents’ Ex. V at 10-12).

made progress during the 2019-2020 school-year in his communication and social skills. He learned to navigate through a new array of icons on his AAC device, to correct mistakes that he made when he requested food items and activities, and how to express when he wanted to take a break from work. mastered answering

“Hello+teacher’s name” on his AAC device. He mastered putting on and taking off his coat independently and he started learning how to do basic household chores such as sweeping the floor after lunch. improved in his ability to transition to and from the classroom for his therapies and he improved his endurance, coordination and balance

(Parents’ Ex. V at 11).

In pre-academics, learned to identify scenes on a picture card by labeling the gender of the person and the action the person was engaging in. He was able to categorize items on his AAC device for five categories including school supplies, clothing, body parts, toys and food, and to identify numbers 1, 2 and 3 in an array of 6 (Parents’ Ex. V at

11).

Due to Covid-19 the school closed from March 23 to June 26, 2020. The school provided special education services and therapies to students remotely via Zoom.

However, had a very difficult time attending to the screen as due to his focusing issue and need for “very high reinforcers” in order to participate (TR: 61-62; Parents’ Ex. V at 12-13, Ex. W at 6). After one or two weeks of attempts to get to engage in the live

Zoom sessions, ’s parents chose not to have him participate in those sessions. Instead, ’s speech/language therapist recorded video lessons for him and provided them to the family three times per week. In those sessions the therapist recorded select book readings from the website “Vooks.” Each video gave the opportunity to practice improving his listening comprehension and his attention span, and they were chosen specifically to include educational and speech therapy related material (TR: 62-63;

Parents’ Ex. J at 4, Ex. V at 12, Ex. W at 6). ’s occupational therapist also recorded video lessons for him and provided them to the family twice per week. She also provided the parent with suggestions of iPad apps to use with at home, such as “Memory,” to work on developing his visual memory and turn taking. The therapist also provided the family with specific coloring, cutting and pre-writing practice to facilitate his fine-motor skills. The parents declined physical therapy via teletherapy. ’s teacher communicated with the family weekly and sent educational materials to his home twice per week (TR: 63?DOE Ex. 4; Parents’ Ex. J at 4, Ex. V at 13).

When was “calm and relaxed,” his mother was able to work with him on a daily basis with the materials from the binder that she school sent home, specifically on matching, the days of the week, and seasonable things (TR: 62). She was also able to work with him on the videos sent home by the speech therapist and the occupational therapist. The BCBA at the school was in communication with the mother at least once a week and she sent the mother worksheets that she used to stimulate so that he would keep up with the progress he had made in school. The school provided constant support and guidance to her throughout that period (TR: 63-64).

Ms. opined that the program was appropriate for for the 2019-2020 school-year because it provided him with substantial individualized support, 1:1 ABA instruction, speech/language therapy, occupational therapy, physical therapy and art therapy to address his delayed language, communication, fine motor, gross-motor, sensory and social emotional deficits (Parents’ Ex. V at 13). ’s mother indicated that he made progress in following directions, making transitions, paying attention, and staying focused for longer periods of time. He also improved in his ability to use his AAC. She testified that did not regress or develop new maladaptive behaviors during that time and that when he returned to school six months later, he transitioned “right back into the classroom” (TR: 63; Parents’ Ex. V at ?, Ex. W at 6).

***

I find that the evidence and testimony at the hearing, detailed above, conclusively established that the 12-month program, ’s small class with one-one-one instruction throughout the day and his individualized program with ABA supports, provided him with educational instruction specially designed to meet his unique needs for 2019-2020 school-year. I also find that the instruction was supported by such services as were, and are, necessary to allow to benefit from instruction, as explained above. I also find that the program was reasonably calculated to enable to make progress in light of his circumstances. See Endrew F. v. Douglas County School District, 137 S. Ct. at 998-1002;

Rowley, 458 U.S. at 188-189, 207. Thus, I find that the parents have met their burden of demonstrating that provided with an appropriate education for the 2019-2020 school-year.

In his Closing Brief, the Department of Education’s attorney, , , Esq., does not dispute the appropriateness of for the child’s 2019 -2020 school-year. Rather, he contends only that because was not able to access the remote teaching sessions put into place after the school closed for the Covid-19 crisis, tuition reimbursement should be prorated and reduced to exclude that period (IHO Ex. II at 5-7).

, Esq., the attorney who wrote the Closing Brief on behalf of the parent, disputed this claim, arguing that the evidence and testimony demonstrated that the child benefitted from the program provided by the school (IHO Ex. III at 8-10).

Ms. , the Educational Director of the school, testified that school provided remote instruction during the Covid-19 crisis. Both Ms. and the parent explained that after a couple of weeks it became clear that was not able to participate in the remote program. As detailed above, the school developed an alternate program for in which it sent home relevant educational materials, including videos from his speech therapist and occupational therapist, and included frequent communication between the parent and the school, including one of the school BCBAs. The parent testified that when was “calm and relaxed” during each day she was able to work with him on his school “binder,” and the related service provider videos, and the materials and instructions to hone ’s pre-writing fine motor skills that the occupational therapist provided to her. The parent explained that the school staff provided guidance and support as needed throughout that period. She testified that neither developed any new maladaptive behaviors nor regressed during that period and that he was able to transition seamlessly when he returned to school six months later.

The testimony and evidence regarding ’s home program during the period of remote learning, consisting of worksheets, work from his binder and materials to practice pre-writing skills, among other things, belies Mr. ’s assertion that “at most the unilateral placement only provided, through videos, instruction to meet a small portion of the student’s needs.” Moreover, the fact that was only able to “sit still and to attend to the screen even for a duration of 2 minutes” during remote learning (Parents’ Ex J at 4; IHO Ex.

II at 6)), does not take into consideration the fact that the parent had all day to work with and was able to sit with him 1:1 during those videos as well as work with him on the concrete materials provided by the school and the parent’s frequent communication with ’s therapists, teachers and a BCBA throughout that period. See IHO Ex. III at 13-14.

In light of the testimony and evidence of ’s disabilities and numerous issues negatively impacting his ability to learn, it is not surprising that he was unable to participate in remote learning. However, the testimony showed that, under the circumstances – an unprecedented and unpredictable nationwide health crisis – the alternate program developed by the school was “specially designed” to meet his “unique needs” in light of his circumstances. Endrew F. 137 S. Ct. at 996. Therefore, I find no reason to reduce the tuition payment for the Covid-19 closure period.

B.

During the 2018-2019 school-year received PROMPT therapy at home from , a New York State licensed speech-language pathologist who has a New York State permanent certificate as a teacher of speech and hearing handicapped. She is

PROMPT trained on three levels and is in the process of obtaining PROMPT certification

(DOE Ex. 5 at 1, Parents’ Ex. W at 2). PROMPT therapy is a tactile-kinesthetic approach that uses touch cues to a patient’s articulators to manually guide them through a targeted word, phrase or sentence. The technique develops motor control and the development of proper oral muscular movements, while eliminating unnecessary muscle movements such as jaw sliding and inadequate lip rounding (DOE Ex. 5 at 1; Parents’ Ex. T at 2).

Ms. worked with in Early Intervention and again beginning in September 2017 (DOE Ex. 5 at 2). During the 12-month 2018-2019 school-year Ms.

provided with three 30 minute sessions of PROMPT therapy per week. The parents paid Ms. $80.00 per session. She continued to provide with PROMPT speech therapy during the 2019-2020 school-year. For July and August 2019 the parents continued to pay $80.00 per session and in September 2019 the rate was raised to $90.00 per 30-minute session. The sessions continued until mid-March 2020 due to the Covid-19 crisis (DOE Ex. 5 at 4; Parents’ Ex. W at 3). The parents paid Ms. approximately $10,800.00 for the 2018-2019 school-year and $10,440.00 for the 12-month 2019-2020 school-year (Parents’ Ex. P, Ex. Q, Ex. W at 3).

On January 14, 2020 , a New York State licensed speech-language pathologist and a PROMPT certified instructor, conducted a speech-language evaluation of (Parents’ Ex. T at 2). In her Affidavit, Ms. explained the evaluation and its results. Ms. concluded present with Childhood Apraxia of Speech (Parents’ Ex. T at 3-5). She stated that is aware of, and is able to interact with, others in his environment but is not yet able to access the motor speech skill necessary to use verbal language in a consistent manner. She stated that requires treatment that addresses and supports his motor-speech skills in order for him to reach his full potential. Ms. recommended a multi-sensory technique to help him develop functional, verbal language, and opined that PROMPT, a motor-based treatment approach, will help use his motor-speech skills in order to communicate his basic needs and wants, as well as map in a variety of vocabulary an language concepts to expand his overall language skills. PROMPT treatment will increase ’s phonatory and jaw skills so that he will learn to consistently initiate vocally in his environment. Ms.

noted that ’s errors and his positive response to PROMPT treatment during the evaluation indicated that systematic tactile-kinesthetic treatment has the potential to benefit hm as a component of his speech-language treatment. Specifically, Ms.

recommended “[i]ntensive, individualized PROMPT-based speech-language treatment three times per week” 1:1 for 45 minutes, in addition to his school-based speech-language therapy to improve his receptive and expressive language skills (Parents’ Ex. T at 6).

’s mother believed that he benefited from receiving the PROMPT therapy at home. She explained that before receiving PROMPT therapy was completely nonverbal and could not produce sounds. Once he began to receive PROMPT therapy at home, his needs improved as he learned to produce new sounds as well as a few word approximations (Parents’ Ex. W at 4).

The Department of Education attorney, Mr. , does not refute the parents’ claim that requires PROMPT therapy or that PROMPT therapy was appropriate for the 2018-2019 and 2019-2020 school-years. Rather, he contends that the claim for PROMPT reimbursement for the 2018-2019 school-year is barred by res judicata since the parent did not raise the PROMPT issue in a due process complaint that she previously filed for the 2018-2019 school-year and was litigated in a prior case (IHO Ex. II at 2-4).

Ms. argues in her Closing Brief that the issue of res judicata does not apply in this case (IHO Ex. II at 19).

The doctrine of res judicata precludes parties from relitigating issues that were or could have been raised in a prior proceeding. K.B. v. Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *4 (S.D.N.Y. Jan. 13, 2012); Grenon v. Taconic Hills Cent. Sch.

Dist., 2006 WL 3751450, at *6 (N.D.N.Y. Dec. 19, 2006). See Monahan v. N.Y. City

Dept. of Corr., 214 F.3d 275, 284–85 (2d Cir.2000). Res judicata applies when: (1) the prior proceeding involved an adjudication on the merits; (2) the prior proceeding involved the same parties or those in privity with the parties; and (3) the claims alleged in the subsequent action were, or could have been, raised in the prior proceeding. Monahan

v. N.Y. City Dept. of Corr., 214 F.3d at 285. Claims that could have been raised are described as "issues that emerge from the same 'nucleus of operative fact' as any claim actually asserted in" the prior proceeding. Malcolm v. Honeoye Falls Lima Cent. Sch.

Dist., 517 Fed. App'x 11, 12 (2d Cir. Apr. 1, 2013), quoting Interoceanica Corp. v. Sound

Pilots, Inc., 107 F.3d 86, 90 (2d Cir. 1997). Res judicata applies to administrative proceedings when the agency is acting in a judicial capacity and the doctrine has been applied to IDEA cases. K.B. v. Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *4.

See United States v. Utah Constr. & Mining Co., 384 U.S. 394 (1966); Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F.Supp.2d 529, 554 –55 (S.D.N.Y.2010); Grenon v. Taconic

Hills Cent. Sch. Dist., 2006 WL 3751450, at *6.

I agree with the Department of Education that the PROMPT therapy reimbursement claim for 2018-2019 is barred. On October 22, 2018 the parents filed an Impartial Hearing Request (“Request”) (# ) alleging that the Department of Education failed to provide with a FAPE for the 2018-2019 school-year when he was in kindergarten (DOE Ex. 1). The parents alleged that the Department of Education failed to evaluate in all areas of suspected disability during the Turning Five process and that it failed to recommend an appropriate program or site-specific placement for the 2018-2019 school-year (DOE Ex. 1 at 3-4). The Request noted that the parent had provided with home-based speech/language therapy by a PROMPT specialist during the 2017-2018 school-year but did not ask (DOE Ex. 1 at 2). However, the remedies requested did not include any request for payment for the PROMPT services that Ms.

had been providing to from at least since July 2018. The case went to a hearing and a Decision and Order was issued on June 12, 2019 (Parents’ Ex. B).

Based on the information in the October 2018 Impartial Hearing Request, the parents clearly could have raised the claim that they were entitled to reimbursement for the PROMPT therapy for the 2018-2019 school-year at that time. Specifically, as noted in that Request, had been receiving home-based speech/language therapy from a PROMPT specialist since the 2017-2018 school-year, and from Ms. since July 2018. The current 2018-2019 request for PROMPT reimbursement is grounded in a claim that the CSE failed to recommend PROMPT for that year or recommend any other service to address ’s Apraxia (Parents’ Ex. A at 4), a claim based on the “same nucleus of operative facts” as the October 22, 2018 claim of a failure to provide with a FAPE for that year in part because the CSE failed to evaluate to determine all areas of suspected disability (DOE Ex. 1 at 3). Thus, the parents had a full and fair opportunity to raise that issue in the prior case but did not do so.

Thus, under the facts of this case, the prior proceeding in Case # : 1)

involved an adjudication on the merits; 2) involved the same parties or those in privity with the parties; and 3) the claims alleged in the current action could have been raised in the prior proceeding, but were not. Therefore, I find that res judicata applies and the parents are precluded from raising the 2018-2019 PROMPT claim at this time.

I reject the parents’ argument that they did not raise the PROMPT issue in the prior Impartial Hearing Request because “the delivery of PROMPT services was still relatively new, and its effectiveness and appropriateness was not yet established” (IHO Ex. III at 20). As noted, according to the October 2018 Request had been receiving speech/language therapy at home from a PROMPT specialist during the 2017-2018 school-year. And, at the time that Request was filed Ms. had been providing with PROMPT therapy for three months. I do not find it credible that the parents were waiting to see if the therapy was “effective” before asking for reimbursement. I also do not find the reimbursement appropriate as compensatory relief.

Therefore, the parents’ reimbursement request for PROMPT therapy provided during the 2018-2019 school-year is denied and the parents are entitled only to reimbursement of the $10,440.00 that they paid to Ms. for the 2019-2020 school-year (Parents’ Ex. Q). I also find that, based on Ms. ’s evaluation (Parents’ Ex. T), must continue the after-school PROMPT therapy. The Department of Education is to continue to reimburse the parents for that therapy from the time that it resumed in June 2020 until the service is added to ’s IEP based on Ms. ’s $90.00 per 30-minute rate or her then-current rate. Beginning with the date of this Decision and Order the PROMPT therapy shall be increased from 30 minutes to three times per week for 45 minutes 1:1 (see IHO Ex. III at 23, 25).

C.

The parent is asking for reimbursement and/or payment for several independent evaluations. The Department of Education did not, and does not, object to these requests.

The parents allege that the Department of Education did not evaluate in all areas of suspected disability when he transitioned from the CPSE to the CSE (Parents’ Ex. A at 3). I note that for at least the past two school-years the parents have asked for independent evaluations in order to determine appropriate services and an appropriate IEP, but that as of the date of the impartial hearing no such evaluations were conducted (DOE Ex. 1 at 3,

7; Parents’ Ex. A at 3). The Department of Education did not refute this contention and did not respond to the parents’ request for independent evaluations by initiating an impartial hearing to establish that it conducted an appropriate evaluation. N.Y.C.R.R.

200.5([g][1][iv]. I find that the parent is entitled to the evaluations that they are requesting at public expense.

At the outset, the parents are requesting reimbursement for ’s speech/language evaluation in the amount of $385.00 (Parents’ Ex. O). I find this request to be reasonable and appropriate. The parents are also asking that the Department of Education fund an independent neuropsychological evaluation, an independent occupational therapy evaluation, an independent physical therapy evaluation and an independent Functional Behavioral Assessment (“FBA”) by a duly-licensed providers chosen by the parents at market rate (TR: ?; Parent’s Ex. A at 4, Ex. C at 5-6; IHO Ex. III at 25). Considering ’s severe and complex learning issues as described by the testimony and evidence at the impartial hearing and detailed above, as well as absence of any objection by the Department of Education to these evaluations, I find that these evaluations and the FBA are necessary and appropriate.

After the evaluations are completed the CSE is to reconvene an IEP meeting to develop an IEP consistent with the evaluation reports. Based on the evidence and testimony that , a 12-month ABA school, is providing with an appropriate education to meet his numerous and severe needs, the IEP is to recommend, among other things, a 12-month program that includes 1:1 ABA instruction. The IEP must also include three 45-minute 1:1 sessions of at-home PROMPT therapy per week as per Ms. ’s evaluation (Parents’ Ex. N, Ex. T at 6).

III.

The IDEA provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dept. of Educ., 758 F.3d 442, 461 (2d Cir. 2014); Application of a Student with a Disability, No. 17-004.

There is no evidence that the parents failed to cooperate with the Department of Education in any way. Indeed, the Department of Education does not contend otherwise.

In a 10-Day Notice letter dated June 17, 2019 the parent, by her attorney , Esq., notified at CSE , that, for enumerated reasons, the parents believed that the District 75 6:1:1 program recommended for was appropriate to meet his needs and that, in any event, the Department of Education failed to offer any placement for the 2019-2020 school-year (Parents’ Ex. X). There is no evidence that the Department of Education responded to the letter. Thus, I find that the equities of the case favor the parent.

Mr. asserts in the Department of Education’s Closing Brief that absent a finding under Prong II that a reduction in tuition reimbursement is required for the Covid-

19 period of the 2019-2020 school-year, a tuition reduction should be required under the equities of the case (IHO Ex. I at ?). For the reasons explained in Point II, supra, I find that tuition reduction is not warranted.

***

The parents’ income in 2019 was $168,000.00 and in 2020 the income was reduced due to the pandemic (Parents’ Ex S, W at 5-6) The tuition for the 2019-2020 school-year at was $138,000.00 (Parents’ Ex. S, Ex. V at 13). At the time of the impartial hearing the remainder of the tuition owed, after pendency payments, was

$34,500.00 (Parents’ Ex. H at 1, Ex. I at 1). Since the parents were entitled to have the tuition for the entire 2019-2020 school-year paid pursuant to the Order on Pendency issued on or about August 27, 2019 the Department of Education is to pay the remainder of the tuition directly to . The cost of the Ms. ’s speech/language evaluation was $385.00 (Parents’ Ex. O, Ex. W at 6).

ORDER

In light of the above findings of fact, it is hereby Ordered that:

1) Within 30 days of the receipt of proof of the student’s attendance at during the 2019-2020 school-year and proof of the tuition owed by the parent, the Department of Education is to pay the amount owed directly to the school. The total amount of payment shall not exceed

$138,00.00 and payment shall be reduced by any funds paid to the school pursuant to an Order on Pendency;

2) The parent must provide invoices for the at-home PROMPT therapy provided to the student during the 12-month 2019-2020 school-year.

Within 30 days of the receipt of those documents the Department of Education is to reimburse the parent for any monies paid in an amount not to exceed $10.4440.00;

3) Within 30 days of the receipt of relevant invoices, the Department of Education is to reimburse the parents for after-school PROMPT therapy from the time that it resumed in June 2020 until the receipt of this Decision and Order based on Ms. ’s $90.00 per 30-minute rate or her then-current rate;

4) Beginning on the date of this Decision and Order the Department of Education must pay Ms. directly for the PROMPT therapy which shall be increased to three times per week for 45 minutes 1:1. Those payments must be made within 30 days of the receipt of the invoices. If the parents choose to pay Ms. directly the Department of Education must reimburse the parents within 30 days of the receipt of the relevant invoices. Payments are to be made for 45-minue periods calculated based on Ms. ’s $90.00 per 30-minute rate or her then-current rate;

5) The parent must provide the Department of Education with the invoice for ’s speech/language evaluation of the student. Within 30 days of the receipt of that document the Department of Education is to reimburse the parent for that evaluation in an amount not to exceed

$385.00;

6) The parent is to provide the Department of Education with invoices for, and copies of, an independent neuropsychological evaluation, an independent occupational evaluation, an independent physical therapy evaluation and an independent FBA, all by duly licensed providers chosen by the parents, as well as evidence that the rates charged for those evaluations are within the market rates charged in New York City. Within

30 days of the receipt of those invoices and evaluations the Department of Education is to pay those providers for the evaluations;

7) Within 30 days of the receipt of the evaluation reports enumerated in (6)

above, the CSE is to reconvene, with all of the required members present as well as any persons the parent wishes to include who have relevant information about the student’s educational needs, to develop a new IEP for the student. The IEP team must consider all of the available information relevant to the student’s educational needs and must recommend a school program that includes 1:1 ABA and must include three 45-minute periods per week of after-school 1:1 PROMPT therapy.

Dated: December 7, 2020

__________________

Rona Feinberg,

Impartial Hearing Officer

EXHIBITS

DEPARTMENT OF EDUCATION:

EXHIBIT DOCUMENT DATE PAGES

1 DPC # 10/22/18 8

2 DOE Implementation 9/16/20 2

Unit Case File Report

3 OMITTED

4 Letter from Unilateral 7/1/20 1

Placement Regarding

Student’s Remote Learning

5 Affidavit of 9/19/19 4

PARENT:

(A) 7/1/19 Impartial Hearing Request with Delivery Confirmation (6 pp.)

(B) 6/12/19 Finding of Fact and Decision (10 pp.)

(C) 8/5/20 Impartial Hearing Request with Delivery Confirmation (7 pp.)

(D) 8/6/19 School Location Letter and Prior Written Notice (4 pp.)

(E) Undated Program Description of School (1 p.)

(F) 2019-2020 School Schedule (1 p.)

(G) 2019-2020 Attendance Record (3 pp.)

(H) 8/5/20 Tuition Affidavit (1 p.)

(I) 2019-2020 Enrollment Agreement (3 pp.)

(J) June 2020 Progress Reports (10 pp.)

(K) February 2020 Progress Reports (12 pp.)

(L) November 2019 Progress Reports (12 pp.)

(M) February 2019 Progress Reports (14 pp.)

(N) 1/21/20 Speech-Language Evaluation (3 pp.)

(O) 1/31/20 Invoice by (1 p.)

(P) 8/1/19 Invoice by (1 p.)

(Q) 8/28/20 Invoice by (1 p.)

(R) August 2020 Progress Report by (2 pp.)

(S) May 2020 Parents’ Income Information (3 pp.)

(T) 9/15/20 Affidavit of (6 pp.)

(U) 7/11/19 Stipulation of Settlement and Withdrawal in IHO Case# (8 pp.)

(V) 9/16/20 Affidavit of (14 pp.)

(W) 9/16/20 Parent’s Affidavit (7 pp.)

(X) 6/17/19 Ten-Day Notice with Delivery Confirmation (3 pp.) HEARING OFFICER:

EXHIBIT DATE DOCUMENT PAGES

I June 30, 2020 Order Granting Consolidation 3

II June 30, 2020 DOE Closing Brief 9

III July 1, 2020 Parents’ Closing Brief 26

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.