Impartial Hearing Decision

190712

FINDING OF FACT AND DECISION Case Number: Student’s Name: Hearing Requested By: Hearing Officer: ARCD: 11/5/2020 190712 Redacted Parent Martin J. Kehoe HI, Esq.

Introduction This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (JHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student. In the complaint notice, dated November 6, 2019, the Parent alleged that the District failed to provide a free appropriate public education (FAPE) for the 2017-2018; 2018-2019; and 2019- 2020 school years. On December 17, 2019, the Parties entered into a partial settlement in which the District agreed to fund an independent neuropsychological evaluation ( an IEE) at a rate not to exceed $5,000. The District also agreed to conduct a Functional Behavioral Assessment and develop a Behavior Intervention Plan, if needed. I issued an interim order on January 9, 2020 for the District to fund independent speech-language, occupational therapy, and physical therapy evaluations. A hearing was held on March 25, 2020 and June 25, 2020 wherein the evaluative results from the various IEEs were considered. It was the District’s position that it would not be appropriate to defend FAPE (T. 26). The District did not object to the requested compensatory relief (T. 26). The District also did not object to the compensatory hours of ABA being used as a full-time ABA program for the Student (T. 31). In that context and to expedite services, I issued a second interim order on June 25, 2020 for the District to provide the Student with:

e 1,035 hours of compensatory Applied Behavioral Analysis (“ABA”), e 103.5 hours of compensatory Board Certified Behavior Analysist (““BCBA”) supervision, e 368 hours of compensatory speech-language therapy, e 310 hours of compensatory occupational therapy, e 103.5 hours of compensatory counseling, and e 138 hours of compensatory parent counseling and training. Parent’s Position The Parent was seeking placement in an appropriate state-approved, nonpublic school by the Central Based Support Team (CBST). The plan was ambitious and complicated. As the hearing progressed the advocates agreed to a flexible approach that allowed for significant independence in programming without the delineation of each service on an IEP. (Tr. 31) Now that the record is closed the Parent simply seeks a finding that FAPE was denied ( a point conceded by the District), a reaffirmation of the interim order granting services that was made on June 25, 2020 and the direction for a final IEE in the area of assistive technology. Student History The Student has a disability classification of autism (Ex. U, Ex. B). The Student has diagnoses of autism spectrum disorder, level I, requiring substantial support with deficits in social communication and restrictive behaviors without intellectual impairment; attention deficit disorder; and disorder of written expression (Ex. V). The Student presents with moderate — severely delayed language skills across domains (Ex. J). The Student also presents with poor balance, decreased core and gross poor bilateral coordination, difficulty remaining attentive to task, decreased sensory processing abilities, and poor postural stability (Ex. K) Background of the Case The Parents sent a letter to the District, dated June 4, 2019, requesting a psychoeducational evaluation for the Student and an IEP meeting (Ex. I). Ina letter dated October 15, 2019, the Parent requested independent educational evaluations for the Student (Ex. H). Recommendations The Neuropsychologist who evaluated the Student recommended “an educational program with a homogenous group of students with similar learning profiles so that instruction will target his specific needs such as ASD, language processing, social deficits and difficulty in self-regulation. [The Student] requires 1:1 intensive instruction implementing a research — based structured program of Applied Behavioral Analysis (ABA) which has been shown to be effective for children with autism... It is recommended that [the Student] receive 10 hours of ABA at home and 15 hours of ABA at school. With 15 hours of ABA as a push in basis in school, [the Student] could be in a small (12:1:1) self — contained, structured classroom setting in a community school tailored to the needs of students with ASD without intellectual impairment. If the ABA component cannot be accomplished in the community school, [the Student] will need a 12:1:1 special education program in anon—public school which specializes in the education of children of average intelligence with ASD (Ex. V). The Neuropsychologist also reeommended a bank of compensatory hours for 1:1 ABA at 35 hours per week on a 46 week basis to be used on a push-in basis in school and after school or on weekends; a bank of compensatory hours for instruction in writing; an FBA by a

LBA/BCBA; a BIP; a 1:1 crisis intervention paraprofessional; parent training and counseling two hours per month in implementing the BIP in the home; direct and individualized instruction for social skills and a bank of hours of social skills training; a 12 month program; training for staff under the supervision of an LBA/BCBA, a structured writing program, instruction in typing and keyboarding; voice activated software; and educational accommodations (Ex. V). The Owner and Director of the Private Agency testified that based on his review of the Student’s evaluations, he recommends 368 hours of compensatory speech/language services and 310.5 hours of occupational therapy services (Ex. X). The Speech Language Therapist who evaluated the Student recommended 1:1 speech language therapy 2x30 and therapy in a group of three 2x30 (Ex. J). The Occupational Therapist who evaluated the Student recommended 1:1 sensory — based occupational therapy 5x30 (exp. L). The Physical Therapist who evaluated the Student recommended 1:1 physical therapy 3x30 (Ex. K). The BCBA who is the Director of the Private Agency testified by affidavit that based on the Student’s record, she recommends an “all — day every day ABA classroom environment of no more than eight students that utilizes ABA throughout the day to facilitate academics, language skills, social skills, motor skills and daily living skills. If a placement cannot be found, then the Student will require 30 hours of push — in ABA services in school by a trained ABA provider.” (Ex. T). She also recommends a 12 month school year program, an FBA and a BIP conducted by a BCBA/LBA, a total of 1035 hours of one-to-one ABA outside the school day to make up for inappropriate services during the 2017-2018; 2018-2019; and 2019-2020 school years, 103. 5 hours of BCBA/L BA supervision of the ABA program, 138 hours of Parent counseling and training delivered at home and in the community (Ex. T). Legal Background The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(1). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as 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, or secondary school education in the state involved, and - (D) are provided in conformity with the individualized education program required under § 614(d) ofthis title. 20 U.S.C. § 601(9).! A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute ... is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, ' “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26). 6

546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005). The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(D) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “‘an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002). Procedural Standard Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5 Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); JG. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987). The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998). Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Jd. For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982), that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held, “... the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176. In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s 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(H(3)(E)(id); see also, Matrejek v.

Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application ofa Child with a Disability, Appeal No. 07-007. Substantive Standard The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley) This straightforward obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR200.6fa][1]) Analysis The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. (“SRO No.”) 16-028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016). The District did not defend FAPE (T. 26). They did not submit any evidence or call any witnesses. They also agreed to the Parent’s request for compensatory services. I credit the experts who evaluated the Student and who reviewed the Student’s record as to the appropriateness of the Parent’s request for compensatory services for the Student. They demonstrated that the Student requires such services and will benefit from these services. I therefore rule for the Parent. Compensatory Education Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . . 10 mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger'v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]. The District in this case did not submit any evidence or call any witnesses to defend their program for the school years at issue. The District also did not take a position regarding the Parent’s requested relief (T. 39). The Parent argued that the District failed to provide a FAPE for the 2018- 2018, 2018-2019, and 2019-2020 school years. The Parent maintains that the Student’s program and placement were inappropriate for those school years and he failed to make meaningful progress. The Parent also alleges that the District ignored her concerns. It is the Parent’s position that the District failed to provide appropriate speech language therapy; occupational therapy; physical therapy; parent counseling and training; and social skills training for the school years in this case, and the Student continued to have deficits in these areas, based on the independent evaluations. The Parents also assert that the District failed to provide an appropriate FBA or develop a BIP. As a remedy for lack of FAPE the Parent is seeking compensatory education and compensatory related services. Based on the record, I find that the District did not provide the Student a FAPE for the 2017-2018, 2018-2019, and 2019-2020 school years. I credit the testimony of the Parent’s witnesses and their evaluations that the Student has many areas of deficit and requires remediation to make progress. I therefore rule for the Parent. 1 therefore Order 1. The District to fund: ¢ 1,035 hours of compensatory Applied Behavioral Analysis (“ABA”) at the rate of $126 per hour; 11 e 1063.5 hours of compensatory Board Certified Behavior Analysist (“BCBA”) supervision at the rate of $150 per hour; e 103.5 hours of compensatory counseling at the rate of $126 per hour; e 138 hours of compensatory parent counseling and training at the rate of $126 per hour; e 368 hours of compensatory speech-language therapy at an enhanced market rate; 310 hours of compensatory occupational therapy at an enhanced market rate; and e 207 hours of compensatory physical therapy at an enhanced market rate’. e These hours of compensatory services are to include hours of service that have been previously utilized under the interim order of services dated June 25, 2020. These hours must be used within four years of June 25, 2020 or they will be forfeited. (T. 24-25, 31). 2. The District shall also fund an independent assistive technology evaluation by Career and Employment Options (“CEO”) at the rate of $1,850 upon invoice. Dated: November 4, 2020 ef Martin Jf Kehéé III, Esq. Impartial Hearing Officer * This number was based on the recommendations of the independent Sensory Freeway evaluation in which it was recommended that the Student receive physical therapy 3 times per week for 30 minutes (1.5 hours per week x 46 weeks x 3 school years). 12

NOTICE OF RIGHT TO APPEAL Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act, If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed. An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. 13

CERTIFICATION OF IMPARTIAL HEARING OFFICER In the Matter of: (Name of Student) Hearing Dates: 3/25/20; 6/25/20 I, Martin Kehoe , Impartial Hearing Officer in this matter DO HEREBY CERTIFY that the attached Evidence and attached Index of Exhibits itemize the entire record before me in the above entitled matter as of this date. | FURTHER CERTIFY that the materials submitted herewith are either the original or true copy of the original documents submitted in this matter. A [4A 11/04/2020S VU y Signature of imdartial Hearing Officer Date Signed Comments/Notes:

Parent Exhibit List New York City Exhibit Number Number Exhibit Date of Pages P-A Demand for Due Process Hearing 11/06/19 16 INDIVIDUALIZED EDUCATION PROGRAM P-B IEP 06/22/18 17 P-C IEP 04/26/17 21 P-D IEP 04/13/16 13 P-E JEP 02/24/15 22 P-F IEP | 01/22/14 16 COMMITTEE ON SPECIAL EDUCATION & SCHOOL CORRESPONDENCE P-G Prior Written Notice 10/23/19 3 P-H IEE Request Letter/Confirmation 10/15/19 3 P-I Parent Request Letter Re; Open IEP 06/04/19 $1 EVALUATIONS & REPORTS P-] Speech-Language Evaluation 01/20/20 8 P-K Physical Therapy Evaluation 01/20/20 7 P-L Occupational Therapy Evaluation 01/20/20 15 P-M Behavior Intervention Plan 06/14/19 5 P-N Psychiatric Evaluation 02/14/17 7 P-O Psychological Update 06/09/16 7 P-P Developmental Pediatrics Evaluation 05/11/16 6 P-Q Quarterly Report 04/13/16 2 P-R Classroom Observation 03/24/16 2 P-S Behavior Intervention Plan 12/21/15 2 ADDITIONAL DOCUMENTATION P-T Affidavit of , M.S. ED., BCBA, LBA06/15/20 = 5 P-U IEP 04/24/20 30 P-V Neuropsychological Evaluation 04/05/20 28 P-wW FBA 03/02/20 35