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, the parents as Parents and the child will be referred to as Student.

PROCEDURAL HISTORY

This hearing was requested by a Due Process Complaint dated September 3, 2019 by , the parent of student (Parent Ex. A). There are three issues to be addressed in this decision: the Parent’s request for the provision of 10 hours of SETSS at home as an appropriate component of the 2019/20 school year program, an increase in the number of hours for the related services of occupational therapy and physical therapy, and an enhanced rate for such SETSS in the absence of a qualified DOE-based provider.

The undersigned was appointed as Impartial Hearing Officer on September 4, 2019 A Pendency hearing was held on September 27, 2019; a Decision and Order on Pendency was issued by the undersigned on September 28, 2019 (IHO Ex. I). Thereafter, hearings were held on November 7, 2019, December 20, 2019, January 3, 2019 and February 5, 2019. The Parent was represented by , Advocate, and the DOE was represented by . The undersigned Impartial Hearing Officer presided during 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 the 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 extension of time for such purposes was in accordance with the requirements of due process. Accordingly, the 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 February 15, 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

Student is a child with a DOE classification of Multiple Disabilities. He is diagnosed with Angleman Syndrome (a genetic disorder that mainly affects the nervous system, and whose symptoms include, among others, intellectual disability, developmental disability, speaking problems, balance and movement problems, seizures, and sleep problems) and is on the autism spectrum. In consideration of Student’s disabilities, the DOE created an IEP for the 2019/20 school year (Parent Ex. C) which provided for the following: 12:1+1 special class for academic subjects, occupational therapy, 3x30, individual, physical therapy, 3x30, individual and speech/language therapy, 3x30, individual, plus a fulltime para for health and ambulation. According to such IEP, Student’s cognitive functioning, based on the Stanford Binet Intelligence Scales, Fifth Edition (SB-V), is within the Moderately Impaired range. Both verbal and nonverbal scores fell in the Moderately Impaired range as well. He is unable to count, complete simple puzzles, replicate a picture using shapes or follow verbal instructions to locate items. His overall adaptive functioning ability, as measured by the Vineland Adaptive Behavior Scales – Third Edition (Vineland-3) was found to be Low, with communication skills, daily living skills, socialization and motor skills all found to be significantly lower than age-expectations. He has minimal language skills, is unable to identify numbers or letters, and is not toilet trained.

PARENT’S POSITION

The Parent alleges that Student has been denied a FAPE for the 2019/20 school year due to the failure of the District to create an appropriate IEP for the 2019/20 school year. While the IEP at issue provides related services and the provision of a fulltime para, Parent asserts that Student requires, in addition, 10 hours of in-home ABA SETSS, at an enhanced rate, together with an additional 2x30 physical therapy and 2x30 occupational therapy, essentially the same service received by Student during the 2018/19 preschool year, as mandated by his preschool IEP dated March 13, 2019. Parent asserts that such services are required for the current school year as well in order to provide Student with the appropriate educational placement to meet his unique needs.

DISTRICTS POSITION

The District presented no evidence or testimony to defend its IEP dated June 12, 2019 for the 2019/20 school year and presented no evidence or testimony to establish that Student’s current educational needs were significantly different from the needs that existed during the creation of the March 13, 2019 Preschool IEP, when Student received 10 hours of home-based SEIT and the additional related services that Parent seeks for the current 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.

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; 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'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see 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; v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 486 Fed. App'x 954 [2d Cir. 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; 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 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][i]; 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, developmental, and functional needs'" of the student]), establishes annual goals designed to meet 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][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

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 [5th 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 R-V 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, 478 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]).

Under New York State law, parents of a New York State resident student with a disability who is placed in a nonpublic school and who seeks to obtain educational “services” for his or her child may file a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law §3602-c [2]). Such “services” include “education for students with disabilities”, which means “special educational programs designed to serve persons who meet the definition of children with disabilities set forth in Education Law §4401(1); Education Law §3602-c[1][a], [d]. “Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent” (Education Law §3602- c[2][a]. In such circumstances, the district of the location’s CSE must review the request for services and “develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP]” (Education Law §3602-c[2][b][1]. The CSE must “assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district”. Additionally, unlike the provisions of the IDEA, section 3602-c provides that a parent may seeks review of the recommendations of the CSE pursuant to the impartial hearing and State-level review provisions of Education Law § 4404. See Application of the Board of Educ., Appeal No. 18-088.

8 NYCRR 200.4(e)(3) provides in part:

The school district shall ensure that the recommendations on a student’s IEP, including changes to the IEP made pursuant to subdivision (g) of this section, are implemented, including but not limited to:

(i) ensuring that each regular education teacher, special education teacher, related service provider, and/or other service provider, as defined in section 200.2(b)(11)(i)(a) of this Part, who is responsible for the implementation of a student’s IEP, is provided a paper or electronic copy of the IEP prior to the implementation of such IEP or shall be able to access such student’s IEP electronically. If the board of education or board of trustees adopts a policy that the student's IEP is to be accessed electronically, then such policy shall also ensure that the individuals responsible for the implementation of a student's IEP shall be notified and trained on how to access such IEPs electronically; (iii) ensuring that each regular education teacher, special education teacher, related service provider, other service provider, supplementary school personnel as defined in section 200.1(hh) of this Part, and other provider and support staff person has been informed, prior to the implementation of the IEP, of his or her responsibility to implement the recommendations on the student's IEP, including the responsibility to provide specific accommodations, program modifications, supports and/or services for the student in accordance with the IEP;

As provided in 8 NYCRR 200.6(e):

Related services shall be recommended by the committee on special education to meet specific needs of a student with a disability as set forth in the individualized education program (IEP).

(1) The frequency, duration and location of each such service shall be in the IEP, based on the individual student's need for the service.

(2) For students with disabilities determined to need speech and language services, the total caseload of such students for teachers providing such services shall not exceed 65.

(3) When a related service is provided to a number of students at the same time, the number of students in the group shall not exceed five students per teacher or specialist except that, in the city school district of the city of New York, the commissioner shall allow a variance of up to 50 percent rounded up to the nearest whole number from the maximum of five students per teacher or specialist.

(4) A student with a disability may be provided with more than one such service in accordance with the need of the student.

(5) Related services may be provided in conjunction with a regular education program or with other special education programs and services. 200.6 Continuum of services. (a) A student with a disability shall be provided with appropriate special education.

(1) Students with disabilities shall be provided special education in the least restrictive environment, as defined in section 200.1(cc) of this Part. To enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate, specially designed instruction and supplementary services may be provided in the regular class, including, as appropriate, providing related services, resource room programs and special class programs within the general education classroom.

(2) A student with a disability shall be provided the special education specified on the student’s IEP to be necessary to meet the student's unique needs.

(3) Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following:

(i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained.

(ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement.

(iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement.

(iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction.

(b) Staffing requirements pursuant to Part 80 of this Title.

(1) When a remedial service is included in the individualized education program, such service shall be provided by appropriately certified or licensed individuals.

(2) When a transitional support service is included in the individualized education program to be provided to teachers of a student with a disability, such service shall be provided by personnel appropriately certified or otherwise qualified in each area of service.

(3) Related services shall be provided by individuals with appropriate certification or license in each area of related service.

(4) Special education instruction shall be provided by individuals appropriately certified or licensed pursuant to Part 80 of this Title.

(5) An administrator or supervisor of special education programs serving more than 25 percent of his or her assignment in such capacity shall hold a certificate valid for administrative and supervisory service pursuant to Part 80 of this Title. (6) When specially designed reading instruction is included in the individualized education program, such instruction may be provided by individuals qualified under section 80-2.7 or sections 80-3.3, 80-3.7(a)(3)(iv) and 52.21(b)(3)(xi) of this Title as applicable. For purposes of this paragraph, specially designed reading instruction shall mean specially designed individualized or group instruction or special services or programs, as defined in subdivision 2 of section 4401 of the Education Law, in the area of reading and which is provided to a student with a disability who has significant reading difficulties that cannot be met through general reading programs.

(c) Transitional support services prescribed in the individualized education program (IEP) shall be provided for a teacher upon the recommendation of the committee on special education, and shall be specified in the student's IEP. When the provision of a transitional support service is under consideration by a committee on special education, the teachers of the student for whom the service is being considered shall be given the opportunity to participate in the meeting of the committee for the purpose of advising the committee of the extent to which such services are needed.

A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).

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., 478 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

Pursuant to applicable law, case law and regulations cited above, the burden is on the DOE to establish that it has provided the Student with a FAPE and that it has effectively and materially implemented the provisions of an agreed-upon IEP. The DOE did not present any documentary evidence at the hearing, nor did it present any witness testimony. Nor did the DOE present any evidence or testimony to establish that Student’s current educational needs are significantly different than those needs that existed at the time of the creation of the Preschool IEP, the last agreed-upon IEP that provided Student with 10 hours of home-based SEIT and the additional related services sought, nor that any new assessments or evaluations were conducted prior to the creation of the 2019/20 IEP with which Parent disagrees.

The appropriateness of home-based SETSS and an increase in occupational therapy and physical therapy is supported by witness testimony and documentation, discussed below.

Testifying first for the Parent was , Program Director of , the agency that is providing the home-based SETSS for Student pursuant to the aforementioned Order on Pendency dated September 28, 2019. testified to her own qualifications and those of , the SETSS provider who works with Student in the home (Tr. p. 37, 39-40). Provider is ABA-trained and receives supervision from the witness on a regular basis (Tr. p. 40). On cross examination, the witness testified that there is frequent and regular communication with the school staff and other providers to ensure collaboration, with progress tracked with daily session notes for every half hour of a session, all goal based while tracking the accuracy or consistency of how Student performs (Tr. p. 43-44). In terms of his progress, the witness testified that Student’s attention span has definitely improved, with an ability to remain focused and attentive to the sessions. He is showing improvement in color recognition and showing an ability to identify more pictures and making more sounds (Tr. p. 46-48).

Next to testify was the SETSS provider . In referencing her Progress Report (Parent Ex. I), the witness stated Student is now able to verbalize sounds as well as identify colors by matching, is able to communicate either by using sign language or by responding to yes or shaking his head no, and is able to follow simple directions as well as follows through with one-on-one games. He is showing recognition of shapes, and has just started identifying words and numbers and holding a writing implement correctly. She described his learning style as “hands on” and that he enjoys learning through playing educational games. With the use of an assistive technology device, Student learns through the use of apps colors and shapes. The witness additionally stated that her employing agency provides, among other things, workshops and ABA training (Tr. p. 52-54). The witness further testified that she is working on certain goals, including taking off his coat and hat by himself, holding onto the railing, alternating his feet going up/down the steps, understanding the concept of using the scissors, using dot-markers, learning color-matching games, turn-taking, and completing activities (Tr. p. 55-56). When asked whether she believes Student requires 10 hours of home-based SETSS, she replied that she did because it was important to have a carry-over at home what is occurring at school and to prevent regression from when he is not in school, and that the at-home SETSS will allow him to meet his goals as contained on the IEP (Tr. p. 57).

On cross examination, the witness stated that she communicates with Student’s outside teacher and school providers through the use of a “communication book” which is in Student’s bookbag (Tr. p. 60).

On direct questioning from the undersigned, the witness stated that Student has begun articulating sound to certain words to communicate his wants and needs, and in response to instructions given to him, and that by this initial attempt to speak words, he is gaining confidence and motivation to try to do and say more things (Tr. p. 64-66).

Next to testify for Parent was , Health and Special Education Coordinator at where Student attends the Academic Career Essential Skills (ACES) program. The witness described the ACES program as a 12:1:1 placement in a community school for children who have a DOE classification of Intellectual Disability which is an option for parents who are looking to remain in a community school setting, less restrictive than a setting, and therefore an alternative placement for such students (Tr. p. 81). The witness testified that she believes that ten hours of SETSS at home is appropriate for Student because he is making a transition this year from a preschool setting to a DOE setting, and that the support from the SETSS would be a very good transitional situation for him. She also stated that, with regard to the additional occupational therapy and physical therapy being provided outside of school, pursuant to the Order on Pendency (but which additional therapies were not included in the 2019/20 school year IEP), she believed that the additional therapies were appropriate, particularly in the area of occupational therapy where Student is transitioning to a new computer that requires dexterity in order to be successful, and that he has been making “tremendous strides” with it, making progress during the current school year (Tr. p. 83-84).

Next to testify was , occupational therapist at who has been working with Student for several years, including the current school year. testified that Student has made fairly good progress during the 2019/20 school year, especially considering his current medical diagnoses. He now points to things for his wants and needs, and communication is enhanced with the use of augmentative communication and an iPad device when he has issues completing other visual motor tasks. Also utilized is a sensory area and swing to improve upper extremity and trunk strength, weighted sand bags, pushing scooter boards, assorted chopsticks to improve fine motor dexterity, and ABC patterns and large beads to work on fine motor and visual perceptual skills. The witness further testified that he believed the additional periods of 2x30 occupational therapy outside of school should continue because Student has global delays in virtually every aspect of his life and is making significant progress, and needs as much therapy as he can to continue the progress. (Tr. p. 93-95). With respect to the physical therapy that Student receives at the same agency after school, the witness testified that Student is working on motor planning, sensory motor issues, and being safe while he's ambulating with greater control, particularly in the areas of his trunk and his hips to improve balance and stability as he walks. He further testified that he believes Student requires the extra 2x30 in physical therapy that he is currently receiving outside the school because of his medical diagnoses which cause global delays, that he needs as much therapy as he can get, and that he's making fairly good progress in the area of physical therapy, and that to stop the therapy would retard the progress (Tr. p. 96-97).

On cross examination, the witness testified that, historically, Student has made slow and steady progress, but in the last six months, there has been a significant jump in his progress. He now points to his want and needs, demonstrating “carryover” from one activity to another, has improved his grasp, is initiating what he wants to do, requiring much less cueing, demonstrates an ability in fine motor skills such as using a scissor, and continues to work on areas such as handwriting, bilateral hand coordination, independence in activities of daily living. He testified that all therapists are quite surprised and pleased by his level of progress (Tr. p. 99-100).

Testifying last was Student’s Parent. She testified that, during the IEP meeting in June, 2019, she requested the sought-after 10 hours of home-based SETSS, together with the additional 2x30 periods of after-school occupational therapy and physical therapy, as Student had made progress with those services and therapies during his preschool program (Tr. p. 106- 107). She further stated that all of the providers advised her that they feel Student has made significant and progress with the home SETSS and additional related services being sought for the 2019/20 school year, and that he eagerly embraces the instruction and therapies (T. p. 110).

In reviewing all of the evidence and testimony provided during the hearing, it is determined that the uncontested record establishes the need for home-based SETSS in the recommended amount of 10 hours per week, as well as an additional provision of occupational therapy and physical therapy, 2x30 each, to be provided outside of school. The testimony of the witnesses supporting both the home-based SETSS and additional related services was essentially uncontested, and the Progress Reports of the SETSS provider (Parent Ex. I) Physical Therapy Progress Report (Parent Ex. J) and Occupational Therapy Report (Parent Ex. N) all document slow but steady and significant progress in each area as Student has continued to receive the home based SETSS and additional therapies sought by Parent through the issuance of the Order on Pendency noted above.

With regard to the rate sought by the SETSS provider, Parent presented an affidavit of service from the provider agency (Parent Ex. G) requesting a rate of $125.00 per hour. Judicial notice is taken that such rate is within the fair market range of rates being charged for Students of similar needs and disabilities, and such rate is determined to be reasonable and appropriate in the instant case.

ORDER

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

HEREBY ORDERED:

1. The DOE shall provide to Parent’s SETSS provider, upon presentation of licensure and credentials, either by P-3 authorization or any other agreed upon payment method, an enhanced rate of $125.00 per hour for SETSS services in the amount of 10 periods per week, said service to be provided in the home.

2. Said payment authorization shall be retroactive to the beginning of the 2019/20 school year, upon verification by such provider (or by such provider’s Agency, as the case may be), by affidavit or otherwise, of such services provided, based on a 36-week school year, and continue throughout the remainder of the 2019/20 school year.

3. Such payment shall be reduced by any amounts already paid to such provider under the Pendency Order, noted above, dated September 28, 2019.

4. The DOE shall issue provide to Parent’s Related Service Provider

, upon presentation of licensure and credentials, either of by P-3 authorization or any other agreed upon payment method, a rate of $42.50 per half-hour for the following related services provided to Student outside of school:

a. Physical Therapy, 2x30, individual service;

b. Occupational Therapy, 2x30, individual service.

5. Said payment authorization shall be retroactive to the commencement of such services for the 2019/20 school year, upon verification by such provider (or by such provider’s Agency, as the case may be), by affidavit or otherwise, of such services provided, based on a 36- week school year, and continue throughout the remainder of the 2019/20 school year.

6. Such payment shall be reduced by any amounts already paid to such provider under the Pendency Order, noted above, dated September 28, 2019.

7. For any period of time in which either occupational therapy or physical therapy did not commence at the beginning of the 2019/20 school year, the DOE shall provide Student a “bank” of compensatory hours which, together with actual hours already provided, shall not exceed the 36-week school year. Student shall be entitled to utilize any such bank of compensatory hours for a period of 6 months from the date of this Order, as each related service provider sees fit and appropriate.

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

Dated: February 18, 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.

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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A. Due Process Complaint, dated 8/26/19 (8 pages) B. Preschool IEP, dated 3/13/19 (18 pages) C. IEP, dated 6/12/19 (19 pages) D. Parent Letter, dated 6/12/19 (1 page) E. Harvard Neuro Report, dated 10/15/18 (6 pages) F. Affidavit – , dated 12/20/19 (1 page) G. Affidavit – , dated 12/24/19 (1 page) H. Teacher Certification – , undated (1 page) I. Progress Report – , dated 11/11/19 (4 pages) J. Physical Therapy Progress Report, dated 8/31/19 (3 pages) K. Physical Therapy Certification – , undated (1 page) L. Outreach, dated September, 2019 (2 pages) M. Occupational Therapy Certification – , undated (1 page) N. Occupational Therapy Progress Report, dated 12/31/2019 (3 pages)

DEPARTMENT OF EDUCATION

NONE

IMPARTIAL HEARING OFFICER

I. Decision and Order on Pendency, dated 9/28/19 (11 pages) II. Subpoenas, dated 1/2/20 (2 pages) III. Extension of Compliance Period, various dates (4 pages) IV. Attendance Sheet, various dates (4 pages)