New York City Department of Education, Impartial Hearing Decision

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education laws. The New York City Department of Education will be referred to as District or the DOE and the parents as Parents or and the child will be referred to as Student or

PROCEDURAL HISTORY

This hearing was requested by a Due Process Complaint dated July 2, 2019 by __, parent of student (Parent Ex. A). The nature of the complaint to be addressed in this decision concerns the Parent’s claim that the DOE failed to offer Student a FAPE for the 2019/20 school year in its failure to conduct an evaluation of Student and its subsequent failure to create an IEP for Student for the 2019/20 school year. Parent seeks continuation of the previous program, as set forth in a Findings of Fact and Decision dated June 25, 2019 (Parent Ex. B); 1.c., the “operative placement” for Student, consisting of SEIT, 20 hours per week, using ABA methodology, provided by a 1:1 SEIT instructor, BCBA supervision, 2 hours per week, speech/language therapy, 5 hours per week, individual, occupational therapy, 3x30, individual and physical therapy, 3x30, individual. Parent additionally seeks, as an appropriate component of Student’s educational program, parent counseling/training, two hours per month, and compensatory services for speech/language therapy not received due to the Covid-19 pandemic.

The undersigned was appointed as Impartial Hearing Officer on July 11, 2019. A Pendency

Hearing was held on August 9, 2019, and an Order on Pendency was issued by the undersigned on August 10, 2019 HO Ex. I). Thereafter, hearings were held on numerous dates. During all such hearings, the DOE was represented by and and the Parents were represented by , Esq. The undersigned presided at all hearings.

During the course of the proceedings, the parties moved to extend the case compliance date in this matter on the dates indicated in IHO Ex II, all in order to allow for an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (IHO Exhibit II). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

The hearing record was closed effective April 27, 2020.

Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

FACTUAL BACKGROUND and POSITIONS OF THE PARTIES

Student was, at the beginning of the 2019/20 school year, year, month old child known to the DOE as a child with a disability. While an IEP was created for Student for the 2018/19 school year, no such IEP was created by the DOE for the 2019/20 school year. The last appropriate educational program for Student, and therefore the current operative placement for Student, was created as the result of the aforementioned Findings of Fact and Decision which addressed the 2018/19 school year.

The Parents allege that Student has been denied a FAPE for the 2019/20 school year on the grounds that no IEP was created by the DOE for the 2019/20 school year. Parent seeks continuation of the educational program set out in the Findings of Fact and Decision dated June 25, 2019 pertaining to the 2018/19 school year, plus the provision of parent training/counseling and compensatory services, as appropriate.

The District, as noted above, did not create an IEP for Student for the 2019/20 school year, did not submit documentary evidence at the hearing, did not provide witness testimony, and offered no evidence whatsoever at the hearing to establish that it created an appropriate educational placement for Student for the 2019/20 school year.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ.

of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982) 1.

1. The term “free appropriate public education” means 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 school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

The IDEA requires a school district to have an Individualized Educational Plan (IEP) in effect for each child with a disability at the beginning of each school year. See 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a); see 71 Fed. Reg. 46682 [stating that the IDEA "is clear that at the beginning of each school year, each [district] must have an IEP in effect for each child with a disability in the agency's jurisdiction. Further, An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(ii1).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][1]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "academic, mt developmental, and functional needs" of the student]), establishes annual goals designed to meet ttt the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR

200.4[d][2][i11]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v)).

An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(ii1). See also 34 C.F.R. §§300.303-300.311, 300.315; 8 N.Y.C.R.R. § 200.4(f). All reevaluations shall be conducted by a multidisciplinary team, including a specialist in the area of the student’s disability.

8 N.Y.C.R.R. § 200.4(b)(4). Children must be assessed “in all areas of suspected disability” using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” 20 U.S.C. §1414(d); 34 C.F.R. § 10.

Additionally, 8 N.Y.C.R.R. § 200.4(b)(6) provides that every reevaluation must identify “all of the special education and related services needs, whether or not commonly linked to the child’s classification.” 34 C.F.R. § 303(c)(6).

Parents should be central members of IEP teams. See 20 U.S.C. §§ 1414(a)(1)(A), 1414(c), 1414(d)(1)(B)@); 34 C.F.R. §§300.15; 300.303. Further, regulations provide that the parent must have an adequate opportunity to participate in the development of the child’s IEP Cerra v. Pawling

Cent. School District, 427 F.3d 186, 192 (2d Cir. 2005, requiring that the Parent be properly notified of the IEP meeting and that such meeting be scheduled at a “mutually agreed upon time and place.” 34

C.F.R. § 300.322.

An JEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][J[A]GJM; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][ii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][i1i|[b]; see 20 U.S.C. § 1414[d][1][A]iJ[IT]; 34 C.E.R. § 300.320[a][3})

Pursuant to the provisions of 8 NYCRR 200.3: Committee on special education and committee on preschool special education: (a) Each board of education or board of trustees shall appoint: (1) committees on special education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely evaluation and placement of students. The membership of each committee shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (11) not less than one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (111) not less than one special education teacher of the student, or, if appropriate, not less than one special education provider of the student; (iv) a school psychologist; (v) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, provided that an individual who meets these qualifications may also be the same individual appointed as the special education teacher or the special education provider of the student or the school psychologist. The representative of the school district shall serve as the chairperson of the committee; (vi) an individual who can interpret the instructional implications of evaluation results.

Such individual may also be the individual appointed as the regular education teacher, the special education teacher or special education provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student when such member is determined by the school district to have the knowledge and expertise to fulfill this role on the committee; (vii) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (vill) an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years, if specifically requested in writing by the parent of the student, the student or by a member of the committee at least 72 hours prior to the meeting; (ix) other persons having knowledge or special expertise regarding the student, including related services personnel as appropriate, as the school district or the parent(s) shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual to be a member of the committee on special education;

and

(x) if appropriate, the student.

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S.

at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay

Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walcezak, 142 F.3d at 132).

However, in the recent decision of the United States Supreme Court, Endrew F. v. Douglas

County School District, 580 U.S. __, 14 (2017), argued January 11, 2017, and decided March 22, 2017, the Court held that, while Rowley declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act’, 458 U. S., at 202, it nevertheless still held that “‘a substantive standard was “implicit in the Act”. Rowley , 458

U. S., at 193, n. 15. It similarly held that “the statement that the Act did not “guarantee any particular level of education” simply reflects the unobjectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id.at 192. Rather, the Court in Endrew held that, “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances (emphasis added), as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”... In such case, the school is still required to ensure the student is given an JEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth”. §§1414(d)(1)(A)~G)()-(1V), (d)(3)(A)G)—(iv), and that “‘a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all’. The Court in Endrew further stated that “The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”. And although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created”. Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade. . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U.S. 176, 203, n. 25 (1982).

Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). The school district must provide special education and related services to a student with a disability in accordance with the student's IEP and must make a good faith effort to assist the student to achieve the annual goals and, if appropriate, short-term instructional objectives or benchmarks listed in the student's IEP. See 8 NYCRR 200.4(e)(7). With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way (T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S., 2011 WL 3919040, at *13; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir.

2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [Sth Cir. 2000]). In order to show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimis failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP (see Houston Indep.

Sch. Dist., 200 F.3d at 349; see also Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25 [3d Cir. 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho RV Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]). Accordingly, in reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" (A.P., 370 Fed. App'x at 205; see Van Duyn, 502 F.3d at 822 [holding that a "material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled [student] and the services required by the [student's] IEP"]; see also Catalan v. Dist. of Columbia, A478 F. Supp. 2d 73 [D. D.C. 2007] [holding that where a student missed a ‘handful’ of speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program]).

Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.” 29 U.S.C. §794(a). Section 504 and the IDEA are often seen as “complementary” statutes that, to a degree, mandate parallel requirements on schools to provide special education and related services.

See R.B. ex rel. L.B. v. Bd. of Educ. of City of New York, 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000) (citations omitted). The Section 504 regulations clarify the nature of the prohibited discrimination.

34 C.F.R. § 104.4(b)(ii)-Gii). In addition, the Section 504 regulations place similar and even parallel requirements on schools to provide a FAPE. See 34 C.F.R. §§ 104.33-104.37.

COMPENSATORY SERVICES

The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]. Compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student

W. v. Puyallup Sch. Dist., 31F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]; Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10- 052). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; S.A. v. New York City Dep't of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30, 2014] [noting that compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE" [internal quotations and citation omitted]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., A478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"|]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puyallup, 31 F.3d at 1497 [finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]; Application of a Student with a Disability, Appeal No. 13-168; Application of the Dep't of Educ., Appeal No.12-135; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g, M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996) (holding generally that subject to equitable adjustment, the “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem.”).

Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Reid, supra at 526.

ANALYSIS

As noted above, the DOE did not present any documentary evidence or witness testimony whatsoever to establish that it created an appropriate educational plan for Student for the 2019/20 school year, nor did it establish that any evaluations were conducted prior to the 2019/20 school year, nor that an IEP was created for Student, despite Student being known to the DOE as a child with a disability. Accordingly, it is determined that Student has been denied a FAPE for the 2019/20 school year.

Parent seeks continuation of Student’s operative placement as the appropriate educational placement for the 2019/20 school year; namely: SEIT, 20 hours per week, using ABA methodology, provided by a 1:1 SEIT instructor, BCBA supervision, 2 hours per week, speech/language therapy, 5 hours per week, individual, occupational therapy, 3x30, individual and physical therapy, 3x30, individual. Parent additionally seeks, as an appropriate component of Student’s educational program, parent counseling/training, two hours per month, and compensatory services for speech/language therapy not received due to the Covid-19 pandemic.

Support for the program sought by Parent was established by witness testimony and documentary evidence.

Testifying first for Parent was , Board Certified Behavior Analyst (BCBA), who testified as to Student’s continued need for 20 hours of SEIT per week due to his significant delays.

She testified that Student, diagnosed with Autism Spectrum Disorder (ASD), has trouble imitating simple gross motor actions, has non-emerged matching skills, cannot attend to his personal needs, has poor eye contact, has poor pointer usage, cannot attend to tasks and requires frequent tangible reinforcers, has extremely poor attention, and is very difficult to engage with work after breaks.

Additionally, Student exhibits self-stimulatory behaviors, such as throwing toys, to receive sensory input and feedback and lacks independent ADL skills, although some are emerging, with which progress is noted (Tr. p. 61-62). The witness further testified that placement in his current class of approximately 14 typically developing students, a non-restrictive environment, but with the support of 20 hours of ABA-based SEIT, is the most beneficial placement for Student, as he would unlikely progress in a classroom with similarly disabled children, as opposed to a classroom of typically developing children where, with the support of the SEIT and ABA intervention, Student is better able to generalize learned skills in the classroom (Tr. p. 64-66). The witness further testified that Student has been benefitting from receipt of his various related services (Tr. p. 66-67). As for progress, the witness testified that, at the beginning of the 2019/20 school year, Student had no play skills whatsoever, cried the whole day, maintained no eye contact, and had no motor skills or bodily control. He now displays control to complete certain tasks, can better feed himself, can match pictures, can grasp objects handed to him, completes eye contact and can match objects.

The witness further testified, without contest, that Student continues to require 20 hours of individual SEIT with ABA, two hours per week of BCBA supervision, and two hours per month of parent training/counseling (Tr. p. 67-71).

Also testifying for Parent was , student’s speech/language pathologist, trained in evidence-based approaches relating to children diagnosed with autistic spectrum disorder and apraxia, using PROMPT training and ABA methodology (Tr. p. 87-88). The witness testified that she began treating Student in April, 2019, at which time he was determined to be suffering from childhood apraxia of speech which, in combination with his autism diagnosis, affects every area of communication, including receptive skills, expressive skills and pragmatic skills, and additionally impacts his ability to imitate speech sounds/words and control oral movements as related to speech (Tr. p. 91). The witness stated that, to address those issues, she uses both ABA methodology for general teaching and, for his speech deficits specifically, PROMPT methodology and the Temporal and Tactile Cueing (DTTC) approach, both of which are evidence-based approaches to treating severe apraxia of speech. The witness described PROMPT as a philosophy and approach that's largely based on tactile kinesthetics which, unlike traditional speech therapy that focuses on imitating sounds, instead involves looking at movements in the vertical plane or jaw movements, the horizonal plane or labial facial movements and the anterior/posterior or lingual movements, as well as a combination of all movements across all the three planes.

Corrective information is provided through a tactile kinesthetic approach that delivers information to the student. While traditional speech therapy is based on imitation of sounds, the brains of children with apraxia are not able to imitate; PROMPT provides a system of tactile kinesthetic cues to manipulate the muscles responsible for speech production, including the jaw muscle, the base of the tongue, the lips and the facial musculature, so that spontaneous sound production from a child is paired to establish associations, which in turn allows for subsequent eliciting of new sounds, which the child then combines to make appropriate speech (Tr. p. 91-94). As for progress, the witness stated that when she first started working with Student, he had literally zero speech skills. After initial training to have Student sit in a chair and stay focused, and then desensitizing him to his face being touched, a requisite component of PROMPT therapy, and after assessing

Student’s spontaneous speech repertoire, associations were established between those speech sounds and a physical prompting. While Student struggled in the beginning, particularly due to his autism, which made associations between touch and sound difficult to establish, he eventually gained control over a few sounds within his phonemic repertoire. He can now say certain vowels and consonants, and even some words, adding new sounds to his repertoire. However, in order to proceed with progress using PROMPT therapy, the witness stated that her hand needs to be on Student’s face. Student is also working on independently producing sounds to expand his speech repertoire (Tr. p. 95-98). The witness further stated her opinion that Student requires continuation of 5 hours per week of speech therapy per week utilizing PROMPT methodology, as children with apraxia of speech, and Student __ specifically, tend to lose newly acquired skills easily and regress (Tr. p. 99-100).

The witness then testified that, due to the school closures at the onset of the Covid-19 pandemic, she has been unable to work with Student since on or about March 23, 2020. As PROMPT methodology requires a literal “hands-on” approach, she is in the process of training

*s Parent as a facilitator to apply the required methodology in conjunction with instruction provided by the therapist, but such parent training has not been completed as of the date of the witness’s testimony, but planned on beginning such parental instruction, and resumption of speech/language therapy using PROMPT, on or about May 1, 2020 (Tr. p. 100-101).

Documentation presented at the hearing included the Student’s Progress Report (Parent Ex.

C), which documented Student’s progress, authored by his SEIT instructor, in all domains. While

Student entered the school years with no discernible skills whatsoever, he has progressed in such areas as being able to match identical object to- object and identical picture-to-picture, with emerging progress in the area of matching picture-to-object. Progress is also noted in object imitation with learned targets, completion of a learned puzzle independently and completion an activity of 5-7 pegs, tracking of a therapist’s point on a table, tracking reinforcement at a distance of four feet, following certain commands, tolerating sitting in a group of children appropriately without screaming, learning how to use Picture Exchange Communication System (PECS), currently on phase 1, emerging ability to point to indicate his desires, eating independently and holding his water bottle independently, throwing a ball and scribbling with a crayon. However, because of significant deficits in most cognitive and social/emotional areas, as well in areas of Adaptive Living skills, he continues to require the SEIT services, with ABA, that he is currently receiving (Parent Ex. Cl-2). Documentation from Student’s occupational therapist indicates improved ability to attend simple tasks and demonstrated strengths with attending and completing a simple task and remaining on task for short intervals. However, because of delays in the area of attention span, prewriting/handwriting skills, Activities of Daily Living (ADL) skills, fine motor skills and sensory processing skills, Student continues to require the occupational therapy currently being provided to address all such needs (Parent Ex. C4-5). Documentation from Student’s physical therapist indicates improvement in transitioning from the classroom to the therapy gym, enjoyment in playing catch and an ability to climb steps on a ladder or stairway independently.

However, due to delays in the area of gross motor skills, an immature gait pattern, decreased knee flexion when ambulating, decreased trunk rotation with uncoordinated arm movements during walking and running, decreased trunk and extremity strength, gravitational insecurity, difficulty in jumping and balance, Student is recommended to continue physical therapy at the level currently authorized (Parent Ex. C7-8). Documentation from Student’s speech/language therapist indicates progress utilizing the PROMPT methodology to address Student’s apraxia of speech, as indicated above by the speech pathologist’s testimony noted above.

For the above stated reasons, it is determined that the appropriate educational placement for Student for the 2019/20 school year is comprised of SEIT, 20 hours per week, using ABA methodology, provided by a 1:1 SEIT instructor, BCBA supervision, 2 hours per week, speech/language therapy, 5 hours per week, individual, occupational therapy, 3x30, individual, physical therapy, 3x30, individual and parent counseling/training, two hours per month.

With respect to compensatory services, it is noted that speech/language therapy was appropriately provided using the PROMPT method to address Student’s apraxia of speech, which requires a hands-on approach from a speech/language therapist or, in the alternative, Parent, after being properly trained in such methodology. As a result of the gap in such service due to the Covid-19 pandemic, and as such service could not be immediately provided remotely until Parent obtained the requisite skill in PROMPT methodology, Student has lost approximately five (5)

weeks of such therapy, as of the date of issuance of this Decision, and will be awarded compensatory services accordingly. Additionally, as Parent is determined eligible for 2 hours per month of training/counseling, Parent shall be entitled to compensatory training retroactive to July, 2019, the beginning of the 2019/20 school year. Accordingly, Student shall be entitled to a “bank” of compensatory hours for speech/language therapy and Parent training/counseling in the appropriate amount of hours, to be used within 12 months of the date of the issuance of this Decision, and to be utilized as the individual provider sees fit, in the best interests of Student and Parent to address Student’s educational needs.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED:

1. The DOE shall provide to Student, as the appropriate educational placement for the 2019/20 school year, the following:

a. SEIT, 20 hours per week, individual, using ABA methodology;

b. BCBA supervision, 2 hours per week;

C. Speech/language therapy, 5 hours per week, individual service;

d. Occupational therapy, 3x30, individual service;

e. Physical therapy, 3x30, individual service;

f. Parent counseling/training, two hours per month.

2. The DOE shall create a “bank” of related service hours in the amount of 25 hours, which is equal to the number of speech/language therapy hours not received by Student, as of the date of this Decision, since the beginning of the closing of school during the 2019/20 school year due to the Covid-19 pandemic, until the expected date that such services resumed following Parent being trained to provide, in conjunction with instruction from the speech pathologist, the appropriate kinesthetic input to Student. Said compensatory bank of 25 hours of speech/language therapy shall be available to be utilized by Student for a period of one (1) year following the issuance of this Order, to be utilized by Student’s related service provider, as he/she may see fit, to best serve the needs of Student, said services to be provided at the market rate for such services. In the event that speech/language therapy does not commence on or about May 4, 2020, then the bank of compensatory hours shall increase by five (5) hours for each week in which such therapy does not occur.

3. The DOE shall create “bank” of hours in the amount of twenty (20) hours, which is equal to the number of parent training/counseling hours not received by Parent since July, 2019, the beginning of the 2019/20 school year, through the date of issuance of this Order. Such bank of hours shall be available to be utilized by Parent for a period of one (1) year following the issuance of this Order, to be utilized as the service provider sees fit, to best serve the needs of Parent and Student, said services to be provided at the market rate for such services. In the event that parent training/counseling does not commence on or about May 4, 2020, then the bank of compensatory hours shall increase by two (2) hours for each month in which such parent training/counseling does not occur.

4. The DOE shall comply in all respects with this Decision and Order.

Dated: May 1, 2020

BRUCE S. OLINGER, ESQ.

Impartial Hearing Officer

APPEAL RIGHTS

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 the 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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A. Request for Impartial Hearing, dated 7/1/19 (3 pages)

B. Findings

of Fact and Decision, dated 6/25/19 (8 pages)

C. Student’s Progress Reports for Annual Review, dated 2019/20 school year (8 pages)

D. Speech and Language Progress Report, dated 4/22/19 (6 pages)

DEPARTMENT OF EDUCATION

NONE

IMPARTIAL HEARING OFFICER

I. Order on Pendency, dated 8/10/19 (11 pages)

II. Case Extensions Granted, various dates (9 pages)

II. Hearing Attendance Sheets, various dates (8pages)