NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number 190233
Student’s Name
Date of Birth
District
Hearing Requested By Parent
Date of Hearing April 8, 2020
May 8, 2020
June 8, 2020
July 2, 2020
August 10, 2020
September 17, 2020
Record Close October 20, 2020
Hearing Officer Sharyn Finkelstein Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 8, 2020
FOR THE STUDENT
Attorney
FOR THE DEPARTMENT OF EDUCATION
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 8, 2020
FOR THE STUDENT
Attorney
FOR THE DEPARTMENT OF EDUCATION
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 8, 2020
FOR THE STUDENT
Attorney
FOR THE DEPARTMENT
District Representative
NAMES AND TITLES OF PERSON WHO APPEARED ON JULY 2, 2020
FOR THE STUDENT
Attorney
FOR THE DEPARTMENT
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 10, 2020
FOR THE STUDENT
Attorney
FOR THE DEPARTMENT
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 17, 2020
FOR THE STUDENT
Attorney
Parent
Witness
Interpreter
FOR THE DEPARTMENT
District Representative
I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of (” ” or “Student") for the academic years of 2011-2012, 2012-2013, 2013-2014, 2014-2015, 2015-2016, 2016-2017, 2017-2018, 2018-2019 and
2019-2020. There were several status hearings and it was determined that the case had to go forward. The hearing went forward in its entirety on September 17, 2020. The parties chose to submit written closings.
The parties moved to extend the compliance date on several occasions in light of anticipated settlement. In considering the requests. I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution in this matter. Accordingly, the joint requests for extension of the compliance dates were granted.
Attached to the record are lists of persons who appeared and evidence submitted into the record. The record was closed on October 20, 2020.
BACKGROUND
is a - year old student who had been classified as a student with a learning disability. In May 2018 he was classified as a student with autism. (Exhibit N)
He currently attends high school at
. He is currently recommended for an 8:1:1 classroom in a State-approved nonpublic school, with one session of counseling and four sessions of speech-language therapy. (Exhibit F)
The parent had filed a due process complaint on October 18, 2019 alleging the denial of Free Appropriate Public Education (FAPE) for the school years from 2011-2012 up and through the 2019-2020 school year. (Exhibit A) The DOE conducted evaluations as part of a resolution agreement. On August 5, 2020 the case was deferred to a State approved nonpublic school. He is currently recommended for an 8:1:1 classroom in a State-approved nonpublic school, with one session of counseling and four sessions of speech-language therapy. (Exhibit F) The parent brings this hearing for compensatory education in the form of Applied Behavior Analysis (ABA) services and Speech and language services as well as a social skills group. They request that the student be provided with an extended period of time to receive the compensatory services until either all services become available or until the student reaches the age of twenty-five.
They request that the DOE’s obligations under IDEA should continue until the student reaches the age of twenty-five or earns a local diploma.
DEPARTMENT OF EDUCATION’S CASE
The Department of Education (DOE) was represented by . They did not submit any evidence at the hearing and presented no witnesses. They submitted a written closing in which they did not dispute any of the allegations contained in the parent’s due process complaint. They objected to the tolling of the statute of limitations.
They maintain that the student is not entitled to extended eligibility under IDEA
PARENT’S CASE
The parent and student were represented by their attorney . It is their position that the statute of limitations is an affirmative defense and does not apply in this instance. They maintain that the student is entitled to compensatory services in light of the denials of FAPE over a period of many years. It is their position that the student is entitled to ABA services as well as speech language services. They argue that the student is entitled to receive the services after the age of twenty-one and is entitled to receive annual review until the age of twenty-five.
DR. is the Director of ABA at
. She submitted an affidavit. (Exhibit LL) She explained that utilizing the principles of ABA improves outcomes across many domains, including adaptive living skills, social skills, academic skills and academic development. She described ABA as an intensive therapeutic support. She described the numerous reports that she had reviewed in order to determine the number of hours the student required for compensatory services. She estimated that the student should have received ten hours per week of ABA support including hours dedicated to parent training, supervision and program development. She recommended 920 hours of 1:1 ABA therapy and no less than
92 hours of parent training by a BCBA and no less than an hour a week for supervision for program development. She opined that this would put him as close to where he would have been had he had received appropriate services. (LL-3)
On cross examination she stated that she had no contact with either the student or his school prior to making their recommendation. She agreed that the hours that she recommended can be provided by any ABA therapist who possesses the appropriate licensure in New York State. (Tr. 55) Her rate of $300 an hour encompassed parent training and supervision as well as program development. (Tr. 55)
is the student’s father. He testified that prior to 2018 no one from the DOE suggested that student had autism. He stated that the student had no communication skills. He has poor social skills and does not know how to communicate with people. His language is and the DOE communicates with him in English.
Only at the 2018 IEP meeting was there an interpreter. He is requesting ABA services and wants his son to have language proficiency so that he will be able to communicate.
He wants social skills group outside of the home so that his son can communicate. He opined that the student could participate in compensatory services during the summer except for a family week vacation. He is also requesting extended services after the age of twenty-one. (Tr. 59-71)
submitted an affidavit. (Exhibit MM) She is a licensed psychologist in New York State. She owns a pediatric neuropsychology practice where she conducts testing of children and adolescents. She conducted a neuropsychological assessment of on January 8, 2020, February 4, 2020, February 26, 2020, and March 4, 2020 for approximately eight hours altogether. She described all the documents she had reviewed. During both the informal observation and formal testing the student exhibited language deficiencies.
Her recommendation was consistent with Dr. ’s recommendation of ABA to address the development of social, vocational, and functional academic skills.
She opined that the recommendation of 920 hour “seems reasonable” She opined that student did not receive adequate speech language therapy. She opined that he should have been receiving at least three sessions of speech language a week to address his language and communication deficits.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The purpose of the IDEA is to ensure that students with disabilities have a free, appropriate public education that emphasizes services designed to meet their unique needs, and prepare them for further education, employment and independent living. 20 USC 1400(d)(l)(A)-(B).
A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.
(Application of a Child with a Disability, Appeal No. 04-046;. The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).
Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.
The appropriate education mandated by the IDEA does not require states to “maximize the potential of handicapped children”. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998) (citing Rowley), An appropriate public education under IDEA is one that is “likely to produce progress, not regression” Id.
(citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. 118 F. 3d 245 248 (3d 245, 248, (3d Cir. 1997).
The burden of proof is on the school district during an impartial hearing, except that parents seeking tuition reimbursement for unilateral placement have the burden of proof regarding the appropriateness of such placement. Educ. Law 44049l09c); M.P.G. v.
New York City Department of Education (SDNY 2010).
STATUTE OF LIMITATIONS
The DOE, having asserted that the statute of limitations bars some of the parents’ claims, bore the burden of proving that assertion. This is because: (1) the statute of limitations is an affirmative defense on which the defendant bears the burden of proof; and (2) New York State law explicitly places the burden of proof on school districts in IDEA due process hearings.
As a general matter, “[a] statute of limitations provides an affirmative defense, and the burden is on the defendant to establish when a federal claim accrues.” Gonzalez
v. Hasty, 651 F.3d 318, 322 (2d Cir. 2011) (citing Fed. R. Civ. P. 8(c)). Furthermore, in the context of IDEA due process hearings, New York State law explicitly places the burden of proof on the school district, “including the burden of persuasion and burden of production,” for all issues other than the appropriateness of a private school placement selected by the parents. N.Y. Educ. L. § 4404(1)(c).
The Second Circuit Court of Appeals, the U.S. District Courts for the Southern and Eastern Districts of New York, and the New York State Review Officer (“SRO”)
have all found that the IDEA’s statute of limitations constitutes an affirmative defense.
See Somoza v. New York City Dep’t of Educ., 538 F.3d 106, 111 (2d Cir. 2008)
(characterizing the statute of limitations as an affirmative defense); M.G. v. N.Y.C. Dep't of Educ., 15 F. Supp. 3d 296, 304 (S.D.N.Y. 2014) (“The IDEA’s statute of limitations is an affirmative defense rather than a jurisdictional prerequisite.”); K.H. v. N.Y.C. Dep't of Educ., No. 12-CV-1680 (ARR) (MDG), 2014 U.S. Dist. LEXIS 108393 (E.D.N.Y. Aug.
6, 2014) (“‘The IDEA’s statute of limitations is an affirmative defense.’” (quoting
M.G.)); SRO Appeal No. 16-006, at 11 n.6 (noting that “the IDEA’s statute of limitations is an affirmative defense” (citing M.G.)).
Parent’s attorney points out that statute of limitations is an affirmative defense and the district bears the burden of proof and must demonstrate that the statute of limitations bars the parent’s claim. There is no question that the school years at issue fall outside of the two-year statute of limitations for IDEA claims. However, there are exceptions to the two-year statute of limitations which addresses what the parents “knew or should have known” about the alleged actions that formed the basis of the claims. The parent testified that in spite of asking for a interpreter at the IEP meetings there was none provided until recent meetings. The documents were not provided in .I find that this precluded the parent from being able to properly participate and fully understand what was being provided to the student. The DOE did not assess the student for an Autism Spectrum Disorder until May 2018 and did not conduct a speech-language evaluation of the student for any of the years covered by the due process complaint. Most of the relief is specific to speech and language and the classification of autism. The parent cannot be barred from relief because of the DOE’s failure to properly evaluate the student. I find that the DOE would have failed in their defense even had it demonstrated their position.
With respect to the allegations of a denial of FAPE from 2011-2012 through
2019-2020 school year, the DOE did not put on any case or attempt to defend their program for any of the years in question. In addition, they did not refute any of the claims that were put forth in the due process complaint. The due process complaint specifically addresses each year in question and specifics as to how the DOE failed to provide a FAPE to the student. I find that the DOE failed to provide a FAPE to the student from
2011-2012 school through the 2019-20 school year.
REMEDY FOR DENIAL OF FAPE
COMPENSATORY EDUCATION
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wagner v. Canasota, 979 F. Supp. 147 [N.D.N.Y. 1997])
Compensatory education can be awarded to whatever extent is necessary to make up for the denial of FAPE and it is not necessarily limited to the two-year limitations period. G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d. 601 (3d Cir.2015)
Given the circumstances, the only remaining issue for the hearing officer is the matter or relief. The DOE’s burden of proof and persuasive applies to every contested issue in the hearing, including the appropriateness of compensatory relief.
With respect to the number of hours a one-to one calculation is not required and most courts seek to ascertain the child’s needs at the time the relief is sought. See, e.g., Reid ex rel. Redi V. District of Columbia, 401 F.3d 516 (C.A>D.C. 2005).
Any award of compensatory services made to the student can be available to him not just during his continued period of IDEA eligibility but also beyond, so long as the remedy is “‘appropriate’ in light of the purpose of the Act.” Burlington, 471 U.S. at 369.
The record is replete with evidence that the denials of FAPE directly resulted in the student being behind far more than his intellectual capacity. I find that the student is entitled to compensatory service.
ABA SERVICES
I find that the student is entitled to ABA services. I do not question the sincerity or credibility of the witness but I note that she does have an interest in the amount of services recommended. The DOE is not required to provide the maximum amount of recommended services. I find that the 920 hours should include the supervision and or program development. The rate is the same for all three services and the parties may decide how to allocate the hours.
Dr. testified that their rate “is based on the usual and customary rates for 60 minutes of ABA by a BCBA and the rates of BCBAs with comparable levels of training and experience in the New York City market.” She further testified that they had been authorized to provide 1:1 ABA, parent training, and supervision services through the New York City Impartial Hearing Office as recently as July 2020. The DOE did not attempt to refute the rate. I find that the rate is appropriate.
SPEECH AND LANGUAGE THERAPY
The DOE did not conduct a speech and language evaluation of since prior to 2011 and until after the parents filed their due process complaint. (Exhibit A)
They never provided the student with individual speech-language therapy, and only once provided any speech-language therapy in a group smaller than 5 students. (Exhibits N, S, U, Y, AA, HH, JJ,KK )
Dr. evaluated the student and endorsed compensatory individual speech and language therapy “to focus on vocabulary development, formulation, comprehension, and pragmatic language skills”. (Exhibit MM) The student should have been receiving at least three sessions of individual speech language therapy to address his language and communication deficits.”
The parents request 324 hours of individualized speech and language therapy which represents an hour a week of compensatory speech therapy per year (based on 36 weeks) for the denial of FAPE. Again, The DOE made no objection to the amount of requested services nor did they offer any plan. In this case I find that their failure to provide any individual speech and language services contributed to the denial of FAPE each year. I find that the student is entitled to the requested hours of therapy provided by a New York licensed speech-language pathologist of their choosing at a reasonable market rate.
SOCIAL SKILLS TRAINING
The parents alleged that did not receive appropriate services to address his social-emotional needs, including social skills training, and the DOE did not rebut these allegations. There was testimony that ABA included social skills training. The parent requests that the DOE find and provide a social skills group. I find that any social skills training could be covered in the ABA sessions.
EXTENDED ELIGIBILITY OF COMPENSATORY SERVICES
In general, I find that the amount of compensatory services needs to be balanced with the student’s need to socialize and have free time. In addition, the student will be attending school and dealing with the demands of a new school and program. Between the speech and language therapy and the ABA award the student will be receiving approximately 1244 hours of additional services. This amount is related to the number of years of a denial of FAPE. The DOE did not dispute the amount of services that were requested. The DOE argues that even with a gross violation by the DOE it does not necessarily follow that the student is entitled to extended period of time for services.
They point out that the student has several years until they reach twenty-one in order to receive the services. It is not my intention to over burden the student with the services that they are entitled to receive. Parent’s witness had recommended 10 hours a week of ABA. I find it is reasonable for the student to use the compensatory hours of ABA and speech and language therapy within a three-year period. The student can use more of the hours during vacation or in the summer or in any manner that works best. I find that it is appropriate to extend the period when they can receive services but not to the degree as requested by the parent.
DOE’S OBLIGATION TO PROVIDE IEP BEYOND AGE OF 21
The DOE in its closing argues that the Parent’s request for the DOE to continue providing an IEP for the student beyond the age of twenty-one is not ripe . They point out that the student is only years old with 36.66 credits and 6 waived
1313 regents. They assert that the student has time from now until he turns 21 to receive support and receive credits. I agree with the District’s position. The student will be attending a non -public school. A new IEP will be created from updated evaluations. If the parent is not satisfied with the program for 2020, they may file a due process complaint. The student will be receiving compensatory services to make up for the denials of FAPE. I find no grounds to extend the period of eligibility.
ORDER
The DOE shall fund 920 hours of ABA to be provided by a BCBA chosen by the parent with a rate not to exceed $300.00 an hour. The hours shall include parent counseling and training and program development. It is up to the parent and provider to determine how many hours should be allocated to counseling and program development.
The DOE shall fund 324 hours of speech-language therapy, to be provided by a licensed speech-language pathologist of the parent’s choosing at market rate.
The compensatory services will be available for three years after the receipt of my decision.
The DOE shall fund transportation in the form of a metro card for the student for any compensatory services that are not received at his home.
The request for the DOE to continue its IDEA obligations after the age of twenty-one is denied.
The request for the DOE to find and fund a social skills group is denied.
Sharyn Finkelstein October 30, 2020
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the PublicSchool District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
1515
EVIDENCE ENTERED INTO THE RECORD
A Due process complaint October 18, 2019 17
B Due process response October 24, 2019 3
C Partial resolution agreement January 13, 2020 2
D Report card 2019-2020
August 28, 2020 1
E Report Card 2019-2020
August 18, 2020 1
F IEP August 5, 2020 18
G Confidential neuropsychological
Evaluation March 4, 2020 24
H Speech and Language evaluation February. 11, 2020 9
I Level 2 vocation assessment May 6, 2020 2
J Student transcript July 23, 2019 1
K Report card February 18, 2019-
June 26, 2019 1
L P-1 Nickerson letter May 22, 2019 2
M Email between Parent and Ms.
May 22, 2019 2
N IEP May 23, 208 5
O Prior written notice May 29, 2018 5
P Psychoeducational evaluation
Report May 2, 2018 10
Q Level 1 vocational assessment May 2, 2018 4
R Social history update April 25, 2018 2
S IEP October 20, 2017 18
T Prior written notice October 13, 2017 18 U IEP June 5, 2017 18
V Prior written notice June 7, 2017 7
W Waiver of IEP meeting to
Amend the IEP September 1, 2016 2
X Prior. Written notice September. 2, 2016 5
Y IEP May 24, 2016 14
Z Prior written notice May 31, 2016 5
AA IEP June 5, 2015 18
BB Prior written notice June 22, 2106 5
CC Bilingual psychoeducational
Evaluation April 15 13
DD Student progress report May 27, 2014 1
EE IEP April 7, 2014 17
FF Waiver of IEP meeting to amend
IEP 2013 3
GG Waiver of IEP meeting to amend
The IEP 2013 3
HH IEP April 10, 2013 16
II Updated social history April 24, 2012 3
JJ IEP April 20, 2012 17
KK IEP April. 6, 2011 15
LL Affidavit of Dr. July 27, 2020 4
MM Affidavit of
Ph.D. September 16, 2020 7
NN Closing Brief 17
1717
DEPARTMENT OF EDUCATION 1
None
IHO
DOE Closing October 2, 2020 4 pages
1818 1919
Footnotes
[1] DOE submitted a written closing in word format. I submitted it as my exhibit in PDF form. I relied on the closing in my decision. I sent the DOE’s word document and PDF document to the “evidence department”