New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 184860

NYS Identifier Number N/A Student’s Name: [“Confidential”]

Date of Birth: [“Confidential”]

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 01/29/20 & 06/05/20

Actual Record Close Date: 10/27/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] DOE Representative DOE 01/29/20 06/05/20 (T)

[CONFIDENTIAL] Witness DOE 01/29/20

[CONFIDENTIAL] Attorney PARENT 01/29/20

[CONFIDENTIAL] Attorney PARENT 06/05/20 (T)

[CONFIDENTIAL] Mother PARENT 01/29/20

06/05/20 (T) [CONFIDENTIAL] Pediatric Neuropsychologist PARENT 06/05/20 (T)

DOCUMENTATION ENTERED INTO RECORD

DOE EXHIBITS

1. Indvidualized Education Plan (IEP) 01/10/2019 DOE

2. CSE- Minutes 3 Nie} ASKidaut oS 5 06/30/20 Closing Statement 01/10/19 DOE

PARENT EXHIBITS

A. NUMBER | DATE DOCUMENT No. Of Pages Hearing Request fe) 7/2/19

B. Bill for Neuropsychological Services 4/18/19 1 page

C. Speech and Language Evaluation 5/3/19 15 pages

D. Neuropsychological Evaluation Email to CSE: 5/24/19 15 pages

E. Request for Services 6/6/19 1 page

F. Ten Day Notice Email from DOE 6/14/19 2 pages

G. Re: IEP and Evaluations Email to DOE 1/20/19 40 pages

H. Re: Request to Reschedule IEP Meeting 10/10/19 1 page

I. | Affidavit of Testimony: Dr [Confidential] 5/13/20 8 pages

J. Affidavit of Testimony: [Confidential] 6/3/20 2 pages

K. Affidavit of Testimony: [Confidential] 6/4/20 4 pages

L. Closing Statement 06/29/20 20 pages

N/A N/A N/A IHO N/A

On October 17, 2019, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a (__) year old student attending a private school and the New York City Department of Education (“DOE”) - District: |, concerning the student’s special education program. I was appointed after the recusal of at least one other IHO. After adjournments were granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on January 29, 2020 and June 5, 2020. The parties opted to submit written closing statements. The Parent's written closing statement was received on June 29, 2020. (P-L) The DOE’s closing statement was received on June 30, 2020. (D-5) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2019-2020 school year. At the impartial hearing, the Parent seeks the following relief: (a) A determination that the DOE denied the student a FAPE for the 2019-2020 school year; and (b) Direct funding for (20) hours a week of home/community-based ABA and 5x45 a week of home/community-based speech and language therapy that utilizes a PROMPT approach to address her speech production and oral-motor weaknesses; and (c) Any additional relief such as the IHO determines is appropriate.

THE DOE’S CASE

The DOE called (2) witnesses to testify on its behalf via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f] and submitted (5) documents into evidence. (D-3 & D-4) The Parent did not object to the DOE’s documents being received in evidence. (T-18) The Parent cross examined only (1) of the DOE’s affiants. (T-30-92 & 97-8) In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

The Parent called (3) witnesses to testify live on her behalf, via affidavit pursuant to 8 NYCRR 200.5{j|[3][xii][f], (P-l, P-J & P-K), and submitted (12) documents into evidence. The DOE did not object to any of the Parent’s documents being received in evidence. (T-23) The DOE cross examined only (2) of the Parent’s witnesses. (T-108

14 & 117-9 In sum, substance and relevant part, the testimony and documentary on behalf of the Parent is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (2) 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] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA.

(See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. (See 20 U.S.C. §

141 5[fI[S][EIlii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 20 U.S.C. § 1415/f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (See 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." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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.” (See 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] and Grim, 346 F.3d at 379)

Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132) Nonetheless, a school district must provide "an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.” (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some ‘meaningful’ benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment ( “LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4{[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No.

07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and

SRO No. 08-087)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim.

(See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419)

A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000])

"Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [dlistrict's placement is appropriate should be considered in determining the appropriateness of the parents’ placement...." (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents’ unilateral placement is appropriate, "[uJltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina

City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child." (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They 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. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. §

1412[a][10][C][iii][l] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision.

(See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07

133; 07-120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition 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, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)

The DOE argues that it produced a procedurally and substantively sound IEP that offered the student a FAPE for the 2019-2020 school year. (D-1) The student in this case is designated to receive service on a 12-month basis. (Id.) It is well settled that at the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in [its] jurisdiction." (See 20 U.S.C. § 1414[d][2][A]; 34 C.F.R.

§ 300.323[a] and Cerra, 427 F.3d at 194 (".. . the District fulfilled its legal obligations by providing the IEP before the first day of school."). Federal regulations specifically direct that a school district must have an IEP in place at the beginning of the school year. (See 34 C.F.R. § 300.323[a]) Accordingly, the DOE was charged with having a procedurally and substantively sound IEP in place for this student, prior to the beginning of his 2019-2020 12-month school year, beginning in July of 2019. The IEP in this case was prepared on January 10, 2019. As such, it was timely prepared for the student’s 2019-2020 school year.

Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student: (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) 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, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who _can_interpret_the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) 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; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having

Knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.

Here, the student's CSE team on January 10, 2019 was composed of a related service provider/special education teacher, the Parent, a district representative, an IEP coordinator, the student’s private school principal and her private school special education teacher. (D-1) The CSE team on January 10, 2019, did not include a “Parent Member.”

The "Parent Member” is there to facilitate the Parent's participation in the meeting. It is the duty and responsibility of the CSE to ensure that a Parent can effectively participate at the CSE review. SRO Decision 02-013 provides relevant analysis in this regard:

It is well settled that an IEP prepared by an invalidly composed CSE is a nullity (Application of a Child with a Disability, Appeal No. 99-27; Application of a Child with a Disability, Appeal No. 95-8). Respondent argues that petitioner did not raise the issue of a parent member of the CSE at the hearing. I note, however, that petitioner's attorney inquired of respondent’s witnesses whether a parent member was present.

The law requires that an additional parent member participate in the CSE meeting unless the student’s parents have affirmatively requested that the additional parent not participate (Educ. Law § 4402[b][1][a][viii]). | disagree with the hearing officer that the parent effectively waived the presence of a parent member simply on the basis of attending the meeting with an advocate, and because she failed to complain at the meetings or at the hearing. A parent must affirmatively request that the parent member not attend the meeting in order to waive the requirement, which is otherwise mandatory (8 NYCRR 200.5 [c][2][v]; Application of a Child with a Disability, Appeal No. 01-096; Application of a Child with a Disability, Appeal No. 01-079)....There is nothing in the record to suggest that petitioner requested in writing that the parent member not attend the 2001-02 annual review....

Respondent argues that the role of the parent member was filled by the parent's legal advocate, especially since she resided in the district and had a child with a disability. I do not find this argument persuasive, as it is the school district's responsibility to have a properly composed CSE, including a parent member appointed by the Board of Education. Since there was no parent member of the CSE present any of the three annual review meetings, the 2001-02 IEP was not prepared by a validly composed CSE and is a nullity. I therefore do not need to discuss the other procedural and substantive issues related to the IEP.

While I do not disagree with the holding in SRO No. 02-013, | decline to apply it to this case. Pursuant to 8 NYCRR § 279.12, the decision of the SRO shall be binding upon the parties and the State Education Department with respect to the provision of special education to the student with a disability involved, but shall not constitute binding precedent in any judicial action or proceeding or administrative appeal in any forum whatsoever. Additionally, while school districts are required to comply with all IDEA procedures, it is also true that not all procedural errors, such as the failure to include a Parent Member in this case, render an IEP legally inadequate under the IDEA. (See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE.

(See J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000))

The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is ‘likely to produce progress, not regression” and if the IEP affords the student with an opportunity greater than mere "trivial advancement.” (See Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), In other words, the IEP must be likely to provide some "meaningful" benefit. (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y.

2006]) Here, the Parent did attend and participate in the CSE meeting and was supported by members of the student’s private school. (D-1) Accordingly, I do not find that the absence of a Parent Member invalidates the IEP.

However, as also indicated above, an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs and provides for the use of appropriate special education services. (Supra) Here, the January 10, 2019 IEP does not reference any evaluations that were used at the meeting to identify the student’s needs. (D-1) In sum, substance and relevant part, the DOE special education teacher testified as follows:

3. | participated in [STUDENT NAME]'s IEP meeting on January 10, 2019 and wrote the minutes that were taken. I have worked with the for the last 3 years. | collected the reports from the school, which were proposed goals, FBA/BIP, progress reports and a draft. We also looked at the 2/12/18 IEP.

4. We started the meeting with parent's concerns. She stated that she had an outside psychosocial evaluation and a speech and language report but did not have it to submit at that time. It was noted on the notice of meeting to submit all outside reports by 1/4/19. CSE informed her of her right to ask for a re-evaluation to review those documents when submitted. Parent did not request any outside providers to participate in the meeting when CSE asked.

Parents’ main concerns were behavioral and verbal expression. She felt that [STUDENT NAME] gets frustrated, as she is not able to express herself. (D3)

The failure to review any evaluative materials, and specifically not to review the Parent’s psycho-social evaluation and speech language report, is fatal to the DOE’s argument that it offered the student a FAPE. Even if the Parent did not follow the instructions and provide the evaluation and report, there were still approximately (6) months before the beginning of the student’s 12-month 2019-2020 school year in July of 2019, and the DOE had sufficient time to file a DPC and seek an order requiring the Parent’s cooperation. In this regard, it is important to note the Parent’s following testimony:

15. | provided the DOE with multiple reports confirming [STUDENT NAME] needs the requested ABA and speech therapies. Exhibit C, D and E. To my knowledge, the DOE has never addressed or refuted these findings. (P-J)

Having found the DOE deficient on this substantive ground, I now turn towards whether the relief sought by the Parent is appropriate. Here, the Parent need only demonstrate that the placement and/or services sought provide educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from instruction. (See Gagliardo & Frank G., supra)

In sum, substance and relevant part, the speech Pathologist that testified for the Parent stated that following:

7. In May of 2019, I conducted a speech and language evaluation for [STUDENT NAME] to determine her strength and weaknesses and to recommend appropriate educational and treatment planning. What has been marked in the Parent’s evidence as Exhibit C is a correct and accurate copy of the report that | drafted after my review of [STUDENT NAME]’s records and subsequent testing.

8. In addition to reviewing [STUDENT NAME]’s educational records, | used both formal and informal measures to determine her individual needs.

9. With regards to formal assessment measures, | administered the Oral and Written Language Scales II (OWLS Il); the Kaufman Speech Praxis Test for Children (KSPT); the Receptive One Word Picture Vocabulary Test (ROWPVT); and Expressive One Word Picture Vocabulary Test (EOWPVT).

10. With regards to informal assessment measures, I reviewed several home videos provided to me by [STUDENT NAME]’s mother, [PARENT'S NAME], which demonstrated some of the ways [STUDENT NAME] attempts to communicate. Other informal assessment measures | used included: (1) object identification with 3D objects; (2) verb identification with objects; (3) verb identification with pictures; (4) two-word comprehension and expression; (5) non-verbal communication patterns; (6) three-word comprehension and expression; (7) comprehension and expression of attributes; (8) language sample/pragmatic use of language; (9) response to declarative language; (10) relatedness skills; and (11) self-help and functional skills checklist.

11. While [STUDENT NAME] demonstrated limited use of single words, her vocabulary, comprehension and expression are notably restricted. These language weaknesses directly impact her ability to interact safely, effectively or meaningfully with those around her.

12. Based on the testing | administered as well as my observations of her, it is my professional recommendation that [STUDENT NAME] receive daily speech and language therapy from a licensed therapist with substantial experience working with students classified with Autism. (P-K)

The DOE did not cross examine the speech pathologist. (Supra) While she makes no specific recommendations in her affidavit, the speech pathologist's report was received in evidence and recommends goals for the student, as well as the following specific recommendations: [STUDENT NAME] should receive speech and language therapy 5x45 minutes weekly in the after-school time frame provided by a licensed SLP with at least 5 years’ experience working with children with autism spectrum disorder. The SLP should have significant training in teaching functional speech, language and communication skills within the home and community settings.

[STUDENT NAME]'s parents should receive training in fostering speech, language, and communication skills in the home setting from the SLP, 5 hours initially and then 1.5 hours monthly.

Family members, home and school staff should attend a team meeting once monthly for 60 minutes to discuss developments at home and school and generalization of skills into each environment.

An after-school, home program which incorporates a pragmatic, hands-on approach to learning language and communication skills within the home and community is at the core of [STUDENT NAME]'s educational needs.

Inventory specific to her language, relatedness, self-help, academics, activities of daily living and community awareness skills should be taken to determine a starting point for therapy. It is important that speech and language targets are chosen specific to [STUDENT NAME]'s involvement in life. (P-C)

In sum, substance and relevant part, the Pediatric Neuropsychologist that testified for the Parent via affidavit stated the following:

14. Over the past 40 years, several thousand publications have demonstrated that children on the Autism spectrum demonstrate increases in positive social behavior and decreases in interfering behaviors when provided with appropriate ABA services.

16. [STUDENT NAME] was referred to me for a neuropsychological evaluation in April 2019. A true and correct copy of the report that | authored as a result of my evaluation from [STUDENT NAME] has been previously disclosed by Parents as Ex. D.

18. My evaluation of [STUDENT NAME] consisted of both qualitative and quantitative procedures. Qualitative procedures consisted of: Children’s developmental history questionnaire; review of records; an observation of [STUDENT NAME] at NYCLI; interviews with [STUDENT NAME]'s parents and teachers; and, observations of [STUDENT NAME] during her evaluation sessions. Quantitative procedures consisted of direct testing of [STUDENT NAME] as well as providing questionnaires to [STUDENT NAME]'s parents and educators. For a full list of quantitative procedures utilized, please see ex. D.004.

21. [STUDENT NAME]'s full-scale |Q was not able to be accurately and reliably assessed at the time of her evaluation with me given her significant language comprehension and communication delays and deficits as well as her attention and self-regulation difficulties. However, [STUDENT NAME]'s intellectual skills across verbal and nonverbal measures varied across domain indices. Therefore, a more accurate picture of [STUDENT NAME]'s intellectual strengths and weaknesses is found by examining these individual areas of intellectual functioning.

26. As a result of my evaluation of [STUDENT NAME], I was able to arrive at the following DSM-5 diagnosis: Autism Spectrum Disorder (ASD), at a Level 3 ("Requiring very substantial support”) in both Social Communication and Restricted, repetitive behaviors. For a more detailed discussion of [STUDENT NAME]'s diagnosis, please see ex. D.009.

27. As aresult of my evaluation of [STUDENT NAME], I was able to arrive at recommendations regarding an appropriate educational program for her. | deemed that in order for [STUDENT NAME] to make necessary and appropriate gains in her development, it was critical that she receive specific interventions and support via highly specialized ABA instruction geared toward those diagnosed with ASD. More specifically, specialized ABA-based school placement and supplemental ABA services (20 hours per week, including on weekends) within the home and community settings were deemed necessary in order to improve upon her ability to communicate effectively, address her sensory, attention and accompanying behavioral difficulties (which present as more pronounced outside of school, including instances of elopement and self-injurious behavior), and focus on academic, social, and adaptive skill acquisition across settings.

30. In addition, [STUDENT NAME] requires daily speech and language therapy that utilizes a PROMPT approach given her significant weaknesses in speech production and oral-motor output; access to an augmentative communication device to facilitate communication; as well as occupational therapy with access to a sensory gym to address her motor coordination and self-regulation deficits.

32. [STUDENT NAME] requires all programming and services on a 12-month basis, as she is susceptible to significant regression over school vacations and even weekends. (P-l)

On cross examination, the witness conceded that she is not a BCBA. (T-110)

However, she has had experience clinically with working under BCBAs during her graduate school experience, and currently as a neuropsychologist, she has worked closely with colleagues with different BCBAs. (T-111) She believes that the student needs additional ABA support within the home setting. (T-112)

The witness’ cross examination did not controvert her testimony on direct. Based on the record before me, as indicated above, I find that the relief sought by the Parent is appropriate for the student and will provide her with an educational benefit. There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. Therefore, I find that equitable considerations do not bar an award of tuition reimbursement and/or funding to the Parent.

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. (See 20 U.S.C. § 1401[26], see also 34 CFR 300.34/a], [c][16]) In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” (See Educ. Law §§ 4401[1], 4402/[4][a], see also Educ. Law § 4401[2] and 8 NYCRR 200.1[ww]) Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. (SRO No. 03-053) If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. (See Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1 [ww])

The State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate.” (See “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005]) Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. (See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997] and Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997])

When reviewing the transportation provisions made for a student by a district, the relevant question is whether the transportation arrangements are appropriate to meet the student's needs. (SRO No. 03-054)

In this case, there is no indication in the hearing record as to the student's need for special transportation during the 2019-2020 school year or any indication that special transportation was previously requested. However, the student’s IEP dated January 10, 2019 does recommend the student for special education transportation. Accordingly, the hearing record does support a finding that the student should receive special transportation.

This does not constitute a determination regarding the student's entitlement to transportation as available to regular education students or suitable transportation as available to students attending nonpublic schools “for the purpose of receiving services or programs similar to special education programs recommended’ by the CSE. (See Educ. Law 3635; 4402/4][[d]) If the DOE has not done so already, it should provide the student with special transportation during the 2020-2021 school year in accordance with the above.

NOW therefore, it is hereby

ORDERED that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student’s receipt of (20) hours a week of home/community-based ABA and 5x45 a week of home/community-based speech and language therapy that utilizes a PROMPT, at a rate not to exceed the reasonable and fair market rate cost for such services in New York City, for the entirety of the student’s 12-mnoth 2019-2020 school year; and it is further

ORDERED that the DOE shall also conduct a re-evaluation of the student in all areas of her suspected disabilities, not evaluated within the last two years, for the 2020-2021 school year; and it is further

ORDERED that the CSE shall forthwith reconvene after the completion of the student's evaluations and consider all of the student's evaluations and any other relevant information and produce a new IEP for the student’s 2020-2021 school year; and it is further

ORDERED that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: November 1, 2020

New York, New York Edgar De Leon - IHO

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. (Rev. 07/09/20)