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Special Education Law
DECISIONParent PrevailedIHO Case No. 528946

New York City Department of Education, Impartial Hearing Decision

April 23, 2020·or the DOE and the parents as

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

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 on September 3, 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 by its failure to provide an appropriate educational program for Student for such school year, particularly in its determination to reduce Student’s Special Education Teacher Support Services (SETSS) from 8 periods to 5 periods per week and, additionally, by the failure to have in place a qualified SETSS instructor to provide even the 5 periods of SETSS that it recommended. Parent seeks continuation of the previously received 8 periods of ABA-based

SETSS as the appropriate educational placement for the 2019/20 school year, to be provided at the enhanced rate of $110.00 per hour. Parent also seeks that such services be provided on a 12-month basis to prevent regression.

The undersigned was appointed as Impartial Hearing Officer on September 6, 2019. A Pendency Hearing was held on October 10, 2019; an Order on Pendency was issued on October 11, 2019 (HO Ex. I). Thereafter, hearings were held on November 13, 2019, January 9, 2020, February 11, 2020, March 5, 2020 and April 8, 2020. During all such hearings, the DOE was represented by and the Parents were represented by The undersigned 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 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 17, 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 was, at the beginning of the 2019/20 school year, an child with a DOE classification of Autism. According to the most recent psychoeducational evaluation dated February 7, 2019 (DOE Ex. 2), Student, according to the Wechsler Intelligence Scale for Children — Fifth Edition (WISC-5), Autism Diagnostic Observation Schedule — Second Edition (ADOS-2), and Vineland 3, Student was determined to be in the low-average range in the areas of Block Design, Similarities, Matrix Reasoning, Visual Spatial Index, Fluid Reasoning and Full Scale IQ, and was determined to be borderline in Vocabulary, Picture Span and Verbal Comprehension Index. In various subtests, she scored Low in receptive language, written expression, daily living skills, community/socialization skills, interpersonal relationships, play/leisure time activities, coping skills and adaptive behavior composite skills. Additionally, according to the SEIT progress report dated May 20, 2019 (Parent Ex. C), Student presents with cognitive, attention span and basic concept defects, as well as delays in the areas of organization and study, receptive instructions and social/emotional/behavioral. She additionally presents with delays in reading, non-verbal communication, expressive/receptive language skills, written expression, transition and social interactions. The progress report notes significant improvement and progress through the use of ABA therapy at the present level of 8 hours per week (as is being provided presently under the aforesaid Pendency Order).

PARENT?’S POSITION

The Parents allege that Student has been denied a FAPE for the 2019/20 school year on the grounds that the IEP dated May 21, 2019, which provided for 5 periods of SETSS, failed to adequately and appropriately address Student’s educational needs in light of her particular circumstances. Parent further contends that the appropriate placement for Student is 8 periods of ABA-based SETSS, together with the related services included in the IEP, with which Parent agrees, but notes that, despite the IEP providing for 1 hour per week of speech/language therapy, no provider has been made available by the DOE, nor has Parent located her own SETSS provider, and therefore seeks Related Service Authorizations (RSA’s) for the provision of such therapy, as well as compensatory speech/language therapy to make up for services not received.

Parent seeks the requested SETSS services of 8 periods per week to be authorized at an enhanced rate of $110.00 per period on the grounds that the DOE has failed to make a SETSS provider available for even the recommended 5 periods per week, and the Parent has been unable to locate a qualified SETSS provider willing to work at the DOE standard rate. Finally, Parent seeks that all SETSS and related services to be awarded to be based on a 12-month school year to prevent

Student’s regression.

DISTRICTS POSITION

With respect to the recommendation of 5 periods of SETSS for the 2019/20 school year, the District claims that such placement recommendation as contained in the May 21, 2019 IESP constituted an appropriate placement for Student and one which provided her with a FAPE for the 2019/20 school year.

With respect to Parent’s request for an enhanced rate authorization for the provision of SETSS, the District did not present any evidence or witnesses to establish that it had in place a provider to implement even the 5 periods of mandated SETSS at the beginning of the 2019/20 school year, or that such a provider was available to Student at the DOE standard rate to implement the mandated SETSS at the beginning of the 2019/20 school year. Nor did the DOE challenge either the qualifications of Parent’s provider or the appropriateness of such provider.

The DOE further contests that any services awarded be on a 12-month basis.

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)(i11).

An appropriate educational program begins with an JEP 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 needsTM of the student]), establishes annual goals ttt 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][1i1]), 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)G); 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 IEP 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][1][A][iJ[1]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). 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][iii][b]; see 20 U.S.C. § 1414[d][1][A ][i] [11]; 34 C.F.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; (ii) 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; (viii) 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 IEP 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)()-HUV), (d)(3)(A)G)-Gv), 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 JEP 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 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]).

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)(i1)-(ii1). 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.

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: (1) 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)(1)(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.

(11) 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)).

Pursuant to the provisions of NYCRR 200.6 (k):

Twelve-month special service and/or program. (1) Eligibility of students for 12-month special services and/or programs. Students shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression, if they are: (1) students whose management needs are determined to be highly intensive and require a high degree of individualized attention and intervention who are placed in classes in accordance with subparagraph (h)(4)(i1) of this section; (11) students with severe multiple disabilities, whose programs consist primarily of habilitation and treatment and are placed in special classes in accordance with subparagraph (h)(4)(111) of this section; (111) students who are recommended for home and hospital instruction whose special education needs are determined to be highly intensive and require a high degree of individualized attention and intervention or who have severe multiple disabilities and require primarily habilitation and treatment; (iv) students whose needs are so severe that they can be met only in a seven-day residential program; or (v) students who are not in programs as described in subparagraphs (i) through (iv) of this paragraph during the period from September through June and who, because of their disabilities, exhibit the need for a 12-month special service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression as determined by the committee on special education.

(2) All programs as described in paragraph (1) of this subdivision and offered during July and August shall have been approved by the commissioner in the first year in which the program is offered and periodically thereafter.

(3) The commissioner shall establish tuition reimbursement rates for the special education and related service programs approved for July and August.

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 "[alppropriate 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

In addressing first the question of what constitutes the appropriate number of hours of SETSS instruction for Student for the 2019/20 school year, testimony was first provided by _, school psychologist who conducted the IESP meeting at issue. The witness testified that the recommendation was made, in part, based on information furnished by both Student’s SETSS provider as well as a psychological evaluation conducted February 7, 2019 (DOE Ex. 2), and that such recommendation was believed adequate to meet her needs (Tr. p. 68-69). However, on cross examination, the witness acknowledged that neither she nor any other DOE participant from the IEP meeting had either met, evaluated or observed Student prior to the meeting (Tr.

p.99), and further acknowledged that Student’s SETSS provider, also present at the meeting, believed continuation of the previous program of 8 periods of SETSS remained appropriate for the 2019/20 school year, as did the recommendation contained in the SEIT progress report (Tr.

p. 100-101). She further testified that, with regard to the recommendation at the meeting of 5 periods of SETSS in a group of up to 8 students, no discussion occurred during the meeting as to whether or not group SETSS (as contrasted with individual SETSS being provided at Student’s school) would be the appropriate setting (Tr. p.110-111). The witness also could not recall whether or not Student’s classroom teacher participated during the meeting or whether an effort was made to secure her participation, nor whether the IEP team considered said teacher’s letter recommending continuation of individual SETSS of 8 hours per week, without which Student would be unable to participate in the mainstream classroom (Tr. p. 111-112), and further acknowledged Parent’s objection to the decrease in services on the grounds that Student was making meaningful progress with the receipt of 8 periods of individual SETSS (Tr. p. 113). See

8 NYCRR 200.3, which provides, in part, the required participation and consideration of the opinions of the special education teacher and other persons having knowledge or special expertise regarding the student, including related services personnel as appropriate. The witness next testified that, based on the February 7, 2019 psychoeducational evaluation, Student was determined to meet the criteria for autism, a diagnosis not previously assigned to Student but that, contrary to the recommendations contained in a previous psychological evaluation conducted by the same evaluator (Parent Ex. E), substantial parts of which were merged with the DOE’s evaluation report, and which recommended the provision of ABA services, ABA was not recommended on the IESP at issue (Tr. p. 126-127). The witness testified that such recommendation was not made, as specific methodologies are not placed on IEPs in order to not “lock in” providers to one particular method of teaching (Tr. p. 130).

The burden rests on the DOE to fully and adequately establish the correctness of an educational program recommendation. Here, the hearing record fails to support the determination to reduce services from 8 periods of SETSS to 5 periods, particularly given Student’s newly-designated classification of autism, the recommendations of her SEIT provider and classroom teacher’s judgment (those individuals with the most instructive information of how Student functions in the classroom) that 8 periods of individual SETSS allowed Student to participate in a mainstream, unrestrictive classroom environment, the apparent failure to consider the opinions and judgments of those that had direct contact with Student in the classroom setting, and the lack of mitigating evidence that would support a decrease in services. Finally, it is noted that Applied Behavior Analysis (ABA) has been recognized as a unique educational approach addressed specifically for students with autism, based on the results it achieves with many children. This is particularly true in cases where a student has achieved positive results with ABA and/or where specific recommendations have been made for such services as appropriate and even necessary for a child to benefit educationally. See Parent Ex. C, D and J, all attesting to the positive results of ABA and recommending continuation of such services. In the instant case, although the DOE witness testified that the CSE team did not want to “lock” a teacher into a particular methodology, no testimony or evidence was presented to establish that ABA was even a possible methodology for Student in its recommendation, or that a DOE SETSS provider was qualified to provide such methodology if he/she deemed it appropriate. ABA is so widely recognized as a unique educational tool for students with autism that school policies which reject the implementation of ABA therapy have been held improper. See Deal v. Hamilton Cnty. Bd.

of Educ., 392 F.3d 840, 42 IDELR 109 (6" Cir. 2004), in which the court emphasized the IDEA’s goal of enabling children to obtain self-sufficiency and condemned any unofficial policy of always rejecting ABA services. See also A.M. v. New York City Dep’t of Educ., 845 F.3d 523, 69 IDELR 51 (2d Cir. 2017), upholding an ABA program and rejecting an IEP that offered a 6:1:1 program but failed to call for continuing ABA services and 1:1 support as failing to provide an appropriate education. See also P.K. v. New York City Dep’t of Educ., 819 F. Supp.

2d 90, 57 IDELR 139 (E.D.N.Y. 2011) (holding that termination of ABA therapy and other services denied child with autism appropriate education), aff’d, 526 F. App’x 135, 61 IDELR 96 (2d Cir. 2013). Additionally, a recommendation of group SETSS, as was made here, would seem to preclude ABA therapy as an option for Student, which would ordinarily and necessarily need to occur in a one-on-one setting in order to provide such individualized instruction to address behavioral issues, and therefore cannot be held, under the circumstance, to be an adequate educational placement. See R.K. v. New York City Dep’t of Educ., No. 09-CV—4478, 2011 WL 1131492, 56 IDELR 168 (E.D.N.Y. Jan. 21, 2011), which found that a proposed program with limited 1:1 time and TEACCH methodology inadequate when evidence supported the need for high levels of ABA and 1:1 time), adopted, 2011 WL 1131522, 56 IDELR 212 (E.D.N.Y. Mar. 28, 2011), aff'd sub nom. R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 59 IDELR 241 (2d Cir. 2012).

Therefore, for the above stated reasons, it is determined that the DOE, in the creation of its May 21, 2019 IESP, has failed to provide a FAPE for Student for the 2019/20 school year.

The appropriateness of 8 periods of SETSS with ABA is established through the testimony of Parent’s witnesses and documentary evidence.

Testifying first for the Parent was _ , Student’s SETSS provider, who testified that she’s worked with Student for the past two and one-half years at her school, where she continues to struggle academically and socially. The witness further testified that she believes Student continues to require 8 periods of SETSS because, particularly due to her diagnosis of Autism Spectrum Disorder, Student has nevertheless progressed significantly since receiving[8] hours of SETSS, and will regress if such services are reduced. The witness also testified that it was the opinion of the classroom teacher that Student required continuation of the previously authorized

With regard to Student’s tendency towards regression, the witness stated that, following school breaks, Student has shown regression, particularly in her behaviors. When asked whether she believes Student requires 12-month services to prevent regression over the summer, the witness stated that she did, citing areas of regression from other breaks from school (Tr. p. 51).

Parent testified that she disagreed with the reduction of SETSS services from 8 periods to 5 periods because Student was learning with the provision of 8 periods of SETSS, allowing her to remain in a mainstream classroom and that, although she continues to struggle, she would fall even further behind with a reduction of SETSS periods. The Parent stated that no person from the CSE that made the recommendation to reduce SETSS services ever met Student or observed her in the classroom, whereas the classroom teacher and SETSS provider believed that SETSS should not be reduced to 5 periods per week, believing it crucial that the services remain at 8 periods (Tr. p. 139-140). Parent also testified to progress from the 8 periods of SETSS, in areas of Student’s greater independence, initiatives in choosing books to read, increased reading comprehension skills, confidence and socialization, and her opinion that continuation of 8 speech/language therapy is included in Student’s IESP, she has been unable to locate a provider, and that Student has therefore not received any speech/language therapy during the entire

2019/20 school year (Tr. p. 146).

Finally, Student’s uncontested Progress Report dated February 7, 2020 (Parent Ex. J) demonstrates academic progress through the implementation of ABA therapy, particularly in the areas of behavior (spelling, vocabulary, writing, reading), cognition, academics, concept understanding and socialization). The Progress Report recommends continuation of the 8 periods of SETSS as the appropriate educational placement for Student for the 2019/20 school year.

For the above reasons, therefore, it is determined that the appropriate educational placement for Student for the 2019/20 school year is 8 periods of SETSS per week.

With regard to the rate of the SETSS provider, the DOE is responsible for ensuring that the mandates of and IEP are provided. See 8 NYCRR 200.4(e)(3), cited above. See also Education Law §3602-c[2][a], which provides for the services of a student in a non-public school 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], with the further mandate that 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”. No evidence was presented by the DOE to establish that it made available to Parent, even for the 5 periods of SETSS recommended for the 2019/20 school year, a qualified SETSS provider. Nevertheless, Parent testified as to the efforts to locate a SETSS provider for the 2019/20 school year from the DOE list, having contacted numerous providers, and the unavailability of any such provider (Tr.

p.143; Parent Ex. G). Pursuant to the provisions of Educ. Law §3602, cited above Parent has credibly established entitlement to the enhanced rate authorization that she seeks for Student’s SETSS, in the absence of a showing by the DOE that any such qualified provider was made available to Parent, not only at the beginning of the school year, but at any time during the school year. Accordingly, the Parent is determined to be eligible for an enhanced rate P-3 SETSS provider for the 8 periods of SETSS awarded. Additionally, as judicial notice is taken as to the market rate for monolingual SETSS being in the range of $80.00-120.00 per session, Parent’s request for a rate of $110.00 is determined to be reasonable and within the market rate for such services.

With respect to Parent’s request that such services be provided on a 12-month basis, the Parent’s SETSS provider, as noted above, testified to regression over periods of non-attendance at school. Additionally, as per the uncontested findings set forth in the aforementioned Progress Report, significant regression was noted in the areas of social and academic development during periods of school vacation, during which time Student lost the ability to communicate effectively and appropriately with her peers, was unable to adequately understand and answer questions following reading passages in a book, and was unable to master skills previously learned before breaks in school, such as in the areas of creative and cohesive writing, typically taking several weeks to regain such skills previously learned before school breaks. The uncontested opinion of Student’s instructor was that Student required summer services to ensure retaining mastered goals and skills in order to effectively perform in the classroom setting. Pursuant to the provisions of NYCRR 200.6 (k), cited above, as Parent has demonstrated the need to prevent substantial regression, it is determined that a 12-month program is the appropriate program for Student for the 2019/20 school year.

With respect to Parent’s request for RSA’s for the provision of speech/language therapy as contained in the IESP at issue, the DOE did not raise any objection to such issuance to ensure that Student receives the related services agreed upon.

Finally, with respect to compensatory services, as all parties agree to the provision of 1 hour per week of speech/language therapy for the 2019/20 school year, and as Student has, without contest, not received any such services due to the unavailability of a provider, Student shall be entitled to a “bank” of compensatory hours for speech/language therapy, to be used within 12 months of the date of the issuance of this Decision, to be utilized as the speech/language therapy provider sees fit, in the best interests of Student to address her educational needs. It is noted, however, that Parent has advised that, while she is seeking a finding that the 12-month school year is the appropriate placement for Student, Parent is not seeking compensatory services for the summer portion of the 2019/20 school year; instead, Parent is seeking only compensatory services for that portion of the 2019/20 school year beginning in September, 2019.

ORDER

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

HEREBY ORDERED THAT THE DOE PROVIDE STUDENT EZ THE FOLLOWING:

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, and upon proof of services rendered, an enhanced rate of $110.00 per hour for SETSS services in the amount of 8 periods per week, based on a 12-month extended school year.

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 12-month 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 October 11, 2019.

4. The DOE shall issue Related Service Authorizations for the following related services, retroactive to the beginning of the 2019/20 school year, and continuing throughout the 2019/20 school year, a. Speech/language therapy, 2x30, individual service.

5. The DOE shall create a “bank” of related service hours equal to the number of speech/language therapy hours not received by Student since the beginning of the 2019/20 school year, based on a 180-day school year, 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.

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 9/3/19 (3 pages)

B. IESP, dated 5/22/17 (7 pages)

C. Progress Report, dated 5/20/19 (4 pages)

D. Teacher Letter, undated (1 page)

E. Psychological Evaluation, dated 8/7/18 (10 pages)

m Parent Letter to CSE, dated 8/20/19 (3 pages)

Parent Outreach, various dates (6 pages) cm Affidavit of Services, dated 2/5/20 (1 page)

— Provider Certification, undated 2/8/18 (1 page)

— Progress Report, dated 2/7/20 (5 pages)

IESP, dated 5/21/19 (13 pages)

Psychoeducational Evaluation Report, dated 2/7/19 (12 pages)

DPC, dated 9/3/19 (3pages)

Order on Pendency, dated October 11, 2019 (10 pages)

I. Extension of Compliance Dates, various dates (6 pages)

Ii. Attendance Sheets, various dates (5 pages)

Footnotes

[8] periods of SETSS (Tr. p. 41-42). The witness described the SETSS instruction as both push-in and pull-out, sometimes in a group, sometimes one-to-one, all provided in Student’s school. As for methodology, the witness stated that she breaks everything down into very small increments to make it clear to Student for her to understand what’s being targeted, including reading comprehension and understanding differing perspectives, both in academics (math, writing, reading, history, science and organization) as well as social situations (Tr p. 44-46). The ABA methodology specifically breaks down a specific skill into very small increments, with instructions clearly provided, and is repeated until the skill is mastered it, at which time Student can progress to the next higher-level skill. The witness stated that she believes ABA to be appropriate and beneficial for Student because she has observed growth as a result of ABA, as documented by data taken on a daily basis, which has shown Student’s progress in the areas of her tendency towards “resistance”, an area in which Student otherwise tends to “shut down’, as well as progress in math, writing and being able to figure things out on her own (1.e., worksheets and understanding and following directions) (Tr. p. 46-48). With respect to goals that are being worked on, the witness testified that reading goals include perspectives in reading, inferencing in reading, and understanding main ideas; in math, goals are adjusted based on what is being taught in the classroom at any particular time, where math concepts generally are broken down in simpler forms so that she can understand the periods of SETSS is appropriate (Tr. p. 144-145). Parent also testified that, although concepts, such as in the areas of percentages, fractions and problem-solving; in writing, goals are provided to enable Student to be cohesive and organized in whatever she wants to express in written form, plus goals for the basics of writing, including capitalization, punctuation and grammar. The witness further stated that, since the beginning of the 2019/20 school year, Student has made significant progress, which the witness attributes to the 8 periods of SETSS support she has been receiving, and that she believes that Student continues to require such support for the remainder of the school year (Tr. p. 48-40).