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FINDINGS OF FACT AND DECISION
Case Number: 190572
Student’s Name: ,
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearings: November 25, 2019 and
February 14, 2020
Hearing Officer: Michael Kennedy Lloyd
Record Close Date: March 3 , 2020
NAMES AND TITLES OF PERSONS WHO APPEARED
November 25, 2019
Esq. Attorney District Representative NYCDOE Parent
NAMES AND TITLES OF PERSONS WHO APPEARED
February 14, 2020
Esq. Attorney Parent
Parents
Parents
PhD Psychologist District Representative NYCDOE Parent
HEARING OFFICERS FINDINGS OF FACT AND DECISION
The matter of came before me on November 25, 2019. The date of my designation as Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. s. 1415(f)(1) was November 4, 2019. This hearing was convened at the request of the parent, which was received on November 1, 2019. The hearings were held on November 25, 2019 and February 14, 2020. The Parties have not made any request to submit post-hearing memorandum and have not done so. The compliance date is extended. Appended to the record are the lists of persons in attendance and the evidentiary submissions.
The Parent files this action alleging failures of FAPE (free and appropriate public education) in violation of the IDEA (Individuals with Disabilities Education Act) for the 2018 -2019 and 2019 - 2020 school years complaining; (1) failure to recommend an appropriate program for this identified autistic student; (2) failure to follow Regulations in creating annual goals to meet the student’s needs resulting from its disability in both years complained of ; (3) failure to provide a reading specialist or program to address known reading and writing deficits; (4) failure to evaluate the student in all areas of suspected disability (5) failure to provide a legally sufficient IEP team composition in years 2018 - 2019 and 2019 - 2020 (6) failure to assess the student’s behavior management needs and thereafter provide appropriate supports in both above cited years (7) failure to evaluate the student in all areas of suspected disability specifically in areas of occupational therapy ; (8) failure to provide the student with appropriate speech and language services despite student’s known and demonstrated deficiencies in both claimed years; (9) failure to notify/include Parent when instituting an IEP change thereby preventing Parent from participating in the student’s IEP development; (10) failure to fund requested independent evaluations upon Parent request or in the alternative filing for an impartial hearing to defend its own evaluations (11) failure to provide an appropriate qualified one-to-one paraprofessional; (12) failure to provide Parent Counseling to Parents for the known autistic student ; (13) failure to provide an assistive technology evaluation despite known significant communication delays (14) failure to provide student progress reports or indicate criteria for measuring student progress; (15) Parent alleges the NYCDOE has failed to produce to Parent complete educational records upon request thereby impeding Parent participation in the ability to participate in the educational development of the student. See Exhibit A.
THE PARENT CASE
The student is years old in the second grade (having repeated first grade) and is classified as a child with autism (Exhibit G and AA; Tr.p. 45) having been initially classified within the Georgia public school system on its prior IEP of 2017 (Exhibit H). Upon arriving in in New York the 2018-2019 school year the student was tested and confirmed as autistic. A Georgia private assessment (7/23/15) had determined the student was definitely autistic with global developmental delays and offered several recommendations (parent counseling speech therapy and occupational therapy) including applied behavioral analysis (Exhibit X). This is a student of average intelligence yet autistic capable of educational development. Upon arrival in New York City for the 2018-2019 school year the NYCDOE initially programmed the student for SETSS with speech therapy and a placement in a general education class. By mid-October 2018 the NYCDOE conducted several evaluations (psycho-educational evaluation and occupational and speech language evaluations) and a classroom observations each indicated the student was not well placed/programmed. Tr.pgs. 51-53; Exhibit R. Scores obtained indicated the student was performing below grade level and indicated low scores across multiple domains and clinically significant indications of developmental delays and autism. The subsequent IEP (Exhibit G) restructured the student’s program and placement implementing a 12 month educational program with related services of occupational and speech therapy with assignment to a 12-1 program in a NYCDOE specialized school ( ) but rejected any behavioral assessments or behavior supports/interventions, notwithstanding known/demonstrated significant behaviors, self-directed activities with perseverations\tantrums. Quarterly Parent training were programmed as well. In March of 2019 Parent rejected this prior agreed upon program and services determined by the IEP of November 2018 (Exhibit J). The student having been prescribed occupation therapy has not received any services as of yet. Tr.pgs. 89-90.
Parent makes a case/demand for (1) 800 hours of compensatory ABA services (applied behavioral analysis) with 80 hours of BCBA (board certified behavioral anaylist) supervision and 12 hours of annual Parent counseling/training. Parent also asserts an entitlement to 100 sessions of occupational therapy (previously prescribed but undelivered) covering both challenged school years. Parent indicates that a FBA and BIP be funded for independently Parent selected provider as the NYCDOE in its IEPs (Exhibits F-4 and G p.5) determined the student did not need any behavioral supports notwithstanding significant known behavioral issues (Exhibits V, W and AA). Lastly Parent requests that this matter determine and Order the NYCDOE upon receipt of independent evaluations ordered/completed during the pendency of this matter be reviewed at the next scheduled IEP meeting determine to recommend a non-public placement able to closely meet the homogeneous classroom teacher-student ratio as recommended by the independent neuro-psychological evaluation (Exhibit CC-20).
Upon obtaining an Order for above services Parent agrees to withdraw any further claims contained within its demand for an impartial hearing.
THE NYCDOE CASE
The NYCDOE acknowledges a failure of FAPE (free and appropriate public education) in both the 2018 - 2019 and 2019 - 2020 school years. Tr.pgs. 44-45. Parties acknowledge having conferred with each other such that Parent has adjusted/reduced it demands for delivery of compensatory services in substantial ways. Tr.pgs. 76-77. The NYCDOE having acknowledged its failure of FAPE does not have a case to present and additionally determined not to crossexamine any witnesses or offer any rebuttal.
FINDING OF FACTS AND CONCLUSIONS OF LAW
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir.
2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4] [ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] affid, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, but " 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 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 C.F.R. §§ 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]; Walcezak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][11i1]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4/d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404/1 ][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).
I find as a fact that the student was not provided a FAPE in either the 2018- 2019 or the 2019- 2020 school years by the admission of the NYCDOE.
It is hereby So Ordered (1) the student is to be funded by the NYCDOE as/for compensatory educational services 800 hours of ABA therapy (at a rate not to exceed $126 per session) by a provider of Parent’s choosing. The frequency and location of service delivery to be determined between Parent and provider but classroom assessment and therapy as well as home services are permitted on weekends holidays and vacations. (2) It is So Ordered that 80 sessions of BCBA supervisory services are to be funded by the NYCDOE in conjunction with the above apportioned ABA services (rate not to exceed $150 per session). It is understood that these compensatory services be consumed by June 2022.
It is hereby So Ordered that (3) the NYCDOE fund 12 sessions per year (2 years) of Parent counseling and training (rate not to exceed $150 per session) commencing April 2020 concluding April 2022.
It is further ORDERED (4) the NYCDOE fund 100 sessions of compensatory occupational therapy services (rate not to exceed $150 per session) to Parent selected independent service provider. Frequency and location of services delivery to be determined between Parent and provider evenings weekends and holidays permitted. These compensatory services are to be consumed by June 2022.
The NYCDOE is So Ordered to (5) fund Parent selected independent provider for an FBA (functional behavior assessment) at a rate not to exceed $1500. Said provider shall be a qualified BCBA.
Lastly should the above FBA indicate that the student requires a behavior intervention plan (BIP) the NYCDOE is So Ordered (6) to fund a BIP at a rate not to exceed $450 by a qualified provider of Parent choosing.
The NYCDOE is So Ordered to include Parent obtained independent evaluations with considerations to be given to the recommendations contained therein in its determinations at the next IEP meeting to formulate an IEP program and placement for the 2020 - 2021 school year.
Parent and its selected providers are responsible to provide documentation (attendance records encounter sessions progress notes and evaluation reports) as required by the NYCDOE for provider payment.
DATED: March 16, 2020
Michael Kennedy Lloyd
Michael Kennedy Lloyd, [HO
PLEASE TAKE NOTICE
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DOCUMENTATION ENTERED INTO RECORD
FOR THE NYCDOE
1. None
FOR THE PARENT
Number Exhibit Date of Pages
P-A Demand for Due Process Hearing 11/01/19 12
P-B IEE Request Letter/Confirmation 10/11/19 2
P-C M.S. ED., BCBA Affidavit 11/12/19 2
P-D , OTR/L, SIPT 11/08/19 1
P-E , Ph.D., Affidavit 11/06/19 2
INDIVIDUALIZED EDUCATION PROGRAM
P-F IEP 11/12/19 16
P-G IEP 11/29/18 14
P-H IEP 12/04/17 4
COMMITTEE ON SPECIAL EDUCATION & SCHOOL CORRESPONDENCE
P-] Prior Written Notice 11/27/19 3
P-J Parent Email Correspondence Re; Placement Options 03/22/19 1
Consent for Initial Provision of Services 03/14/19
P-L Prior Written Notice 01/10/19
P-M School Location Letter 12/14/18
Prior Written Notice 12/14/18
P-O Consent for Evaluations 09/21/18
P-P Prior Written Notice 09/13/18
P-Q Notice of Social History 09/13/18
EVALUATIONS & REPORTS
P-R Psychological Evaluation 11/05/18
P-S Occupational Therapy Evaluation 10/28/18
Speech-Language Evaluation 10/18/18
P-U Occupational Therapy Teacher Checklist 10/12/18
P-V Social History Evaluation 09/21/18
Classroom Observation 09/21/18
P-X Psychological Evaluation 07/23/15 13
REPORT CARDS & PROGRESS REPORTS
P-Y Teacher Progress Report 11/2018
P-Z Teacher Progress Report 09/2018
ADDITIONAL DOCUMENTATION
P-BB. Skills Assessment 01/26/20 17 Speech Language Evaluation 02/4/20 8 pages
P-CC. Neuropsychological Evaluation 02/7/20 23 pages
P-DD. Occupational Therapy Evaluation FOR THE IHO None Please Note the Numbering of the Exhibits of both the NYCDOE and the Parent may have been adjusted/reconfigured for the clarity of the Record. 01/10/20 14 pages