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: 190862
Student’s Name: , (“ ”)
Date of Birth:
District:
Hearing Requested By: (“ :” or “the Parent”)
05/13/2020; 05/22/2020; 06/24/2020; Dates of Hearing:
07/23/2020
Actual Record Closed Date: 09/18/2020
Hearing Officer: Andrea Cohen, Esq
Parents Disclosure: Exhibits A-DD; Case 190862
Exhibit Number Number Exhibit Date of Pages P-A Demand for Due Process Hearing 11/13/19 18 P-B Affidavit of , M.S., BCBA, LBA-NY 05/13/20 2 P-C IEE Request Letter 10/11/19 2
INDIVIDUALIZED EDUCATION PROGRAM
P-D IEP 03/22/19 13
P-E IEP 03/23/18 13
P-F IEP 04/21/17 9
COMMITTEE ON SPECIAL EDUCATION & SCHOOL CORRESPONDENCE
P-G Prior Written Notice 04/08/19 2
EVALUATIONS & REPORTS
P-H Occupational Therapy Evaluation 01/29/20 13 P-I Neuropsychological Evaluation 01/24/20 22 P-J Speech-Language Evaluation 01/20/20 7 P-K Assistive Technology Evaluation 01/14/20 12 P-L Report 05/17/19 3 P-M Psychoeducational Evaluation 03/14/19 5 P-N Speech-Language Evaluation 03/05/19 4 P-O Classroom Observation 02/27/19 1 P-P Speech-Language Evaluation 03/15/18 9 P-Q Psychoeducational Evaluation 03/14/18 5 P-R Classroom Observation 01/26/18 1 P-S Occupational Therapy Evaluation 01/24/18 8 P-T Social History Evaluation 01/17/18 2
REPORT CARDS & PROGRESS REPORTS
P-U Report Card MP 2 2018-2019 2 P-V Preschool Quarterly Progress Report 05/24/17 2 P-W Preschool Quarterly Progress Report 05/19/17 2 P-X Preschool Progress Report 01/19/17 2
ADDITIONAL DOCUMENTS
P-Y Autism Skills Assessment 07/03/20 8
P-Z Affidavit of 07/15/20 3
P-AA Affidavit of , Ph.D. 07/06/20 5
P-BB Affidavit of 07/06/20 4
P-CC Affidavit of , MS, BCBA, LBA-NY 07/21/20 4
P-DD Autism Skills Assessment 07/03/20 8
NEW YORK CITYL HEARING OFFICE
IN THE MATTER OF
STUDENT A MINOR, IHO
BY AND THROUGH PARENT, FINAL DECISION AND ORDER
PETITIONERS,
- AGAINST –
ANDREA R. COHEN
NEW YORK CITY DEPARTMENT OF EDUCATION IMPARTIAL HEARING OFFICER
RESPONDENT. X
FOR PETITIONERS FOR RESPONDENT
Greetings:
This FINAL DECISION AND ORDER in the matter of Student (“Student” or ”Petitioner”) against the New York City Department of Education (“Respondent” or “DOE”) is rendered upon consideration of Petitioners’ Due Process Complaint, prior proceedings in this matter and the federal Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq. Jurisdiction is based on the state and federal statutes cited above.
PROCEDURAL HISTORY AND BACKGROUND
This Due Process Request for an Impartial Hearing (“Complaint”, Ex. A) was filed on behalf of Student, a child with a disability, on November 13, 2019. I was appointed as Hearing Officer in this matter on April 24, 2020.
On May 13, 2020, a Pre-Hearing Conference (“PHC”) was conducted by telephone. Hearing commenced on May 22, 2020. At that hearing, Student submitted a Motion requesting an Order be issued directing the DOE to fund an Autism Skills Assessment to be conducted by a Board-Certified Behavior Analyst (BCBA). I issued an Order granting Student’s Motion dated May, 25, 2020.
The matter was additionally heard on 06/24/2020 and 07/23/2020. Petitioners submitted a closing brief on August 6, 2020. No papers were submitted by the DOE.
All hearings were conducted remotely pursuant to Covid-19 protocols.
PETITIONERS’ POSITION AND RELIEF SOUGHT
Student was diagnosed with autism and received early intervention and CPSE pre-kindergarten services, including summer services in 2017 in a 9:1:2 setting. Student did well in those programs. The DOE advised parent that Student made great progress and Parent agreed to enroll Student in a general education Kindergarten. Student entered Kindergarten in September 2017 and immediately began to struggle, first in a charter school and then in an ICT class in a public school. The DOE then inappropriately evaluated Student, misclassified him and inappropriately placed him in an ITC classes for 1st Grade (2018/2019). Student continued to struggle, failed to make educational progress, and received a Promotion in Doubt Letter. In spite of his lack of progress over the prior two years spent in an ICT class, the DOE again placed him in an ICT Class for the 2019/2020 school year.
Parent seeks a determination that the District failed to provide Student with a FAPE during the 20172018, 2018-2019, 2019-2020 school years, and the following remedies:
1. The Impartial Hearing Officer will order the District to immediately send Student’s case to the Central Based Support Team for non-public school placement.
2. The Impartial Hearing Officer will order the Committee on Special Education to promptly convene to finally address Student’s individual learning needs creating meaningful and measurable goals to address Student’s social, emotional, behavioral, and academic deficits, and develop an IEP to specify a narrowly tailored program to address his individual needs in a twelve-month non-public school program, inclusive of related services. Student’s IEP will also include an autism classification, ten hours of home-based individual ABA per week, eight hours of BCBA supervision per month, four hours of individual parent counseling and training per month, 1.5 hours of occupational therapy per week, and 1 hour of speech-language therapy per week.
3. The Impartial Hearing Officer will order the District to fund a central auditory processing evaluation by at the rate of $2,300.
4. Compensatory Services. The Impartial Hearing Officer will order the District to fund 800 hours of 1:1 ABA by at the rate of $150 per hour to compensate for its failure to provide appropriate instructional services during 2017-2018, 2018-2019, and 2019-2020 school years. The District will also be ordered to fund 80 hours of compensatory BCBA supervision by at the cost of $225 per hour.
5. Related Services Compensatory services. The Impartial Hearing Officer will order the District to provide additional (compensatory, or make-up) services to remedy the failure to offer an appropriate program of related services from school years 2017-2018, 2018-2019, and 2019-2020 specifically, a bank of 276 hours of private 1:1 speech-language therapy to be provided by a provider of the Parent’s choosing, a bank of 207 hours of private 1:1 occupational therapy to be provided by an independent provider of the Parent’s choosing; and a bank of 80 hours of private 1:1 parent counseling and training to be provided by at the cost of $225
per hour.
6. The Parent seeks any further relief that the Hearing Officer may deem just and proper to ensure the provision of a free and appropriate education to Student.
THE DOE’S POSITION AND RELIEF SOUGHT
The DOE presented no case: no argument, no exhibits, no affidavit testimony and no witnesses. It posed no objections or rebuttals to Student’s allegations or arguments.
ISSUES
Whether or not:
a. The DOE provided Student with a FAPE for the 2017/2018; 2018/2019; and 2019/2020 school years;
b. The DOE appropriately evaluated Student;
c. The DOE appropriately classified Student;
d. The DOE should place Student in a non-public school
e. Compensatory services should be awarded
f. Equitable considerations support a reduction of any remedy awarded.
WITNESSES
DOE
None
PETITIONERS
, Speech-Language Pathologist, testified by affidavit dated 7/15/2020. (Ex. Z).
Her testimony as to her education and professional experience showed her to have the appropriate expertise and competency for testifying in this matter. conducted an evaluation of Student.
DR. , Clinical Psychologist, testified by affidavit dated 7/06/2020. (Ex. AA).
Her testimony as to her education and professional experience showed her to have the appropriate expertise and competency for testifying in this matter. conducted an evaluation of Student.
, Clinical Psychologist, BCBA, Owner of , Exh. CC. testified by affidavit dated 7/15/2020. (Ex. Z). Her testimony as to her education and professional experience showed her to have the appropriate expertise and competency for testifying in this matter.
conducted an evaluation of Student.
PARENT, testified by affidavit dated 7/06/2020. (Ex. BB).
EXHIBITS
DOE
None
PETITIONERS
Exhibits A-DD entered into evidence on July 23, 2020.
STATEMENT OF LAW
FAPE
FAPE - GENERALLY
The Individuals with Disabilities Education Act (“IDEA”) provides that a child with a disability is entitled to a free and appropriate public education (“FAPE”), and ensures that included special education and related services are designed to meet “their unique needs to prepare the child for further education, employment, and independent living.” 1 The FAPE providing this individualization must also conform to an individualized education program (“IEP”). [1]
The DOE bore the burden of production and persuasion to establish that it provided the Student with a FAPE for all of the school years at issue, as well as all other issues alleged in the DPC, except for the appropriateness of the private school, to which the Parent bore the burden of proof. [2]
A student is provided a FAPE when (a) the board of education complies with the IDEA’s procedural requirements, and (b) provides an IEP that is: “’likely to produce progress, not regression’ and if the IEP affords the student with an opportunity greater than ‘mere trivial advancement.’” 4; is substantively appropriate – i.e., it is reasonably calculated to enable the child to receive educational benefits.[3]
A district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan. [4]
Under the IDEA, a district may be required to consider special factors in the development of a student’s IEP, including whether behavior impedes his learning or that of others.[5] Where such behavior may impede learning, the district may consider having a functional behavior assessment (“FBA”)
20 U.S.C. § 1400(d)(1)(A).
4 Walczak, 142 F.3d at 130 (quotations omitted). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005) conducted and a behavioral intervention plan (“BIP”) developed for a student.[6] New York law provides that a CSE may consider whether there is a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading fluency skills, reading comprehension, mathematical calculation and/or mathematical problem solving; provided that effective on and after July 1, 2012, a school district shall not use the severe discrepancy criteria to determine that a student in kindergarten through grade four has a learning disability in the area of reading. [7]
The IEP must be reviewed periodically, but not less than annually, to determine whether the annual goals for the child are being achieved.[8] The IEP must be revised to address: 1) any lack of expected progress toward the annual goals and in the general education curriculum, if appropriate; 2) the results of any reevaluation; 3) information about the child provided to, or by, the parents; the child’s anticipated needs; or other matters. [9]
It is the DOE’s statutory obligation to provide appropriate placement and services recommendations in the IEP. Moreover, it is the DOE’s responsibility to procure the recommended services for the student and offer an actual spot in a specified classroom. [10]
The Supreme Court has found that, while deference is due to decisions of school authorities, “A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” [11]
An IEP, on its own, does not establish that a FAPE has been offered to a student; instead, “testimony may be received that explains or justifies the services listed in the IEP.”[12] A district does not meet its burden of proof to demonstrate that sufficient evaluative material was relied upon in creating the student’s educational program without testimony presented to that effect. [13]
The LEA must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals and to address the results of any reevaluation or information about the child provided to, or by, the parents. [14]
There are some circumstances in which children may receive services under an interim IEP or IFSP before the full evaluation and IEP development process is completed.[15] “Interim IEPs are not mentioned in the requirements found at 34 CFR §§ 300.340-300.349, and are not explicitly required under Part B. … .18 While the use of interim IEPs is permissible, they should only be used in special circumstances when such a measure is necessary. The requirement found at 34 CFR § 300.342(b)(2) states that an IEP must be implemented as soon as possible following the IEP meeting. A State cannot use interim IEPs to circumvent the requirement at 34 CFR § 300.342(b)(2).” Letter to Boney,[16] IDELR 537 , 18 LRP
1693 (OSEP 1991)
FAPE - EVALUATIONS
An evaluation means procedures used in accordance with 34 C.F.R. §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs.[17]
In conducting the evaluation, the district must use a variety of tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, to determine whether the child is eligible and, if so, the content of the child’s IEP.[18] The evaluation must be sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category. [19]
As noted above, under the IDEA, a district may be required to consider special factors in the development of a student’s IEP, including whether behavior impedes his learning or that of others. [20]
Where such behavior may impede learning, the district may consider having a functional behavior assessment (“FBA”) conducted and a behavioral intervention plan (“BIP”) developed for a student. [21]
The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.[22]
If the parent obtains an independent educational evaluation (“IEE”) at public expense, or shares with the public agency an evaluation obtained at private expense, the evaluation (1) must be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child; and (2) may be presented by any party as evidence at a hearing on a due process complaint under subpart E of this part regarding that child. 34 C.F.R. § 300.502(c)
A reevaluation must occur at least once every three years, unless the parent and the LEA agree that a reevaluation is unnecessary. 25 A reevaluation of a child with a disability must occur when conditions warrant or if the parent or teacher requests a reevaluation. [23]
The LEA must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals and to address the results of any reevaluation or information about the child provided to, or by, the parents.[24]
Under federal and state regulations, if a parent requests an IEE at public expense because the parent disagrees with the school district’s evaluation, the school district must, without unnecessary delay, either
(1) file a due process complaint to request a hearing to show that its evaluation is appropriate or (2) ensure that the requested IEE is provided at public expense, unless the district demonstrates at an impartial hearing that the evaluation obtained by the Parent did not meet the district’s criteria.28 Where the DOE fails to take any action, the parent has the right to seek reimbursement for the requested evaluations. [25]
8 34 C.F.R. § 300.303(b)(2); 8 NYCRR §200.4(b)(4).
8 NYCRR 200.5(g); see also 34 C.F.R. § 300.502; 20 U.S. C. § 1415 (b)(1) and (d)(2)(A).
A parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees. [26]
FAPE - TRANSPORTATION
In J.L. on behalfofJ.P., et al v. New York City Department of Education, 17-cv-1750, the Court noted that the DOE’s failure to implement IEP sanctioned transportation services “prevented Plaintiff’s children from attending school for several years, essentially rendering the IEP useless (emphasis added).” In Ross v. Disare, 500 F. Supp. 928, 934 (S.D.N.Y. 1977), the Court noted that “interruption of a child’s schooling causing a hiatus not only in the student’s education but also in other social and psychological developmental processes that take place during the child’s schooling, raises a strong possibility of irreparable injury … .”
RELIEF/REMEDIES
In any action brought under the IDEA, the trier of fact “shall grant such relief as the court determines is appropriate.” 31 The relief must be appropriate in light of the purpose of the Act. A court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies. 32
“In enacting the IDEA, Congress did not intend to create a right without a remedy.” 33 “Courts retain broad discretion in fashioning an award, restrained only by the Supreme Court’s directive that ‘the relief is to be “appropriate” in light of the purpose of the Act.’ ” 34
OSEP advises that, “based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary, inclusive of compensatory education, to ensure that a child receives the FAPE to which he/she is entitled.” 35 New York law provides that a state-approved nonpublic school is a permissible placement for a school district to make 20 U.S.C. § 1415(i)(2)(C)(iii). 32 Doe v. E. Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015) (internal citations omitted). 33 Streck v. Bd. of Educ. of the E. Greenbush Cent. Sch. Dist., 408 F. App’x 411, 415 (2d Cir. 2010). 34 L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 125 (2d Cir. 2016). 35 (Letter to Kohn, 17 IDELR 522 (OSEP 1991). See also Letter to Riffel, 34 IDELR 292 (OSEP 2000) (discussing a hearing officer’s authority to grant compensatory education services). on a student’s IEP upon a showing of, inter alia, detailed evidence of the student's lack of progress in previous less restrictive programs and placements. 36
COMPENSATORY REMEDIES
Where a school system fails to provide special education or related services to a disabled student, the student is entitled to compensatory education.37
“Because compensatory education is a remedy for past deficiencies in a student's educational program,” a finding as to whether a student was denied a FAPE in the relevant time period is a “necessary prerequisite to a compensatory education award.”38
A compensatory education “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.”39 A compensatory education award is an equitable remedy that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.”40
Compensatory education requires a flexible approach to determine the services and amount of services needed for remediation. 41
Case law in New York has applied a balancing of the equities in terms of reducing or eliminating an award in cases of net unreasonable parental conduct.42
36
8 N.Y.C.R.R. § 200.6(j)(iii)(c).
37
Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). 38 Peak v. District of Columbia, 526 F. Supp. 2d 32, 36 (D.D.C. 2007). 39 Reid, 401 F.3d at 524. 40 Reid, 401 F.3d at 518. See also Somoza v. New York City Dep’t of Educ., 538 F.2d 106, 109 n.2 (2d Cir. 2008) (“prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education”). The SRO has reached the same definition under the rubric of “compensatory additional services.” See, e.g., N.Y. SRO Decision No. 13-048 (Sept. 18, 2013); N.Y. SRO Decision No. 12235 (Sept. 3, 2013) (“an equitable remedy that is tailored to meet the Unique circumstances of each case,” citing Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997)). 41 Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005). See also Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007) (preferring “a flexible approach, rather than a rote hour-by-hour compensation award to remediate the student). 42 See, e.g., French v. New York State Educ. Dep’t, 476 F. App’x 468 (2d Cir. 2011); J. G. v. Kiryas Joel Sch. Dist., 777
F. Supp. 2d 606 (S.D.N.Y. 2011); N.Y. SRO Decision No. 11-027 (Apr. 29, 2011).
It is reasonable to determine that a child’s right to compensatory education begins when a school district knew, or should have known, that a child’s Individualized Education Program (“IEP”) did not provide FAPE. 43
Case law in New York has applied a balancing of the equities in terms of reducing or eliminating an award in cases of net unreasonable parental conduct.44
FINDINGS OF FACTS, AND CONCLUSIONS OF LAW AND DISCUSSION
The findings and conclusions set forth below are based upon my review and analysis of the testimony and exhibits presented and the relevant law.
All testimony and exhibits entered into the record were offered by Petitioners. The DOE presented no case: no argument, no exhibits, no affidavit testimony and no witnesses. The DOE posed no objections or rebuttals to Petitioners’ allegations, exhibits, witnesses, affidavits or arguments, although it was given opportunities to do so.
The Supreme Court has found that, while deference is due to decisions of school authorities, “A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” 45
An IEP, on its own, does not establish that a FAPE has been offered to a student; instead, “testimony may be received that explains or justifies the services listed in the IEP.” 46 A district does not meet its burden of proof to demonstrate that sufficient evaluative material was relied upon in creating the student’s educational program without testimony presented to that effect. 47
43 (The Third Circuit has addressed and upheld this view; see M.C. v. Cent. Reg’l School dist. 81 F.3d 389, 395, 396-397 (C.A.3 (N.J. 1996),( “An award of compensatory education may be available for the time when the District knew or should have known of a denial of FAPE.”).D.F. v. Collingswood Public Schools, USCA for Third Circuit No.11-2410 (12/9/2011)(Appeal from USDC NJ). 44 See, e.g., French v. New York State Educ. Dep’t, 476 F. App’x 468 (2d Cir. 2011); J.G. v. Kiryas Joel Sch. Dist., 777 F. Supp. 2d 606 (S.D.N.Y. 2011); N.Y. SRO Decision No. 11-027 (Apr. 29, 2011).
45 Endrew F., supra, at footnote 13. 46 R.E., supra, at footnote 14. 47 See L.O. v. supra, at footnote 15.
I Find that DOE failed to provide Student with a FAPE for the 2017/2018; 2018/2019; and 2019/2020 school years in that the DOE (a) failed to provide appropriate educational plans and (b) failed to sufficiently evaluate and appropriately classify
Student.
Student was born in . Parent testified that she noticed that he had developmental delays very early in his life. Ex. BB, ¶3. According to the Parent, he was not using language, did not make eye contact, lined up his toys, and perseverated on things. Id. The Parent explained that when the family was living in , Student was diagnosed with Autism. Id. I found no notation of this diagnosis in any of the DOE records entered by Student into evidence. Accordingly, I cannot discern if or when this information was provided to the DOE during the school years at issue. As will be discussed, below, in January 2020, Student was diagnosed with an Autism Spectrum disorder. Ex. I, p. 20.
When Student was two years old, the family moved to New York where Student received services through Early Intervention and then through the Committee on Preschool Education (“CPSE”). Ex. BB, p. 3. The CPSE classified Student as a student with a Learning Disability. Ex. D, p. 1.
Student attended Pre-School at the in Brooklyn. Ex. BB, ¶4. He was placed in a 12:1:2 Special Class and was provided with speech-language therapy. Id. Parent testified that she thought Student made much progress under this educational plan. Ex. BB, p.1.
On April 21, 2017, the CPSE held a meeting to develop an Individualized Education Plan (“IEP”) for Student. Ex. F. The District recommended a placement in a class with a lower number of students, 9:1:2, to commence July 1, 2017. The District also recommended extended school year services in a 9:1:2 class, noting “a 12 month program is recommended given the extent of [Student’s] delays and the risk of substantial regression during a prolonged break in service.” Ex. F, p. 5, 8. It recommended a placement with nine students, one teacher and two paraprofessionals (“9:1:2”) five hours per day, five days per week, with related services of individual speech-language therapy two times per week 30 minutes and group speech-language on a one-to-one (“1:1”) basis. Ex. F, p. 4.
The Parent testified that in April 2017, she also attended a separate CSE meeting as part of Student’s “ ” transition to Kindergarten. Ex. BB, ¶5. The Parent testified that at the meeting, Student’s teachers and providers “seemed to believe he was doing really well. At the meeting it sounded like [Student] no longer need [sic] special education services when he got to Kindergarten. I was thrilled that he had made so much progress. I agreed that he should start elementary school without special education services and let him go to Kindergarten like all other kids.” Ex. BB, p.2. A recommendation for placement in an integrated class is included in the May 2017 reports of the , Ex. V, p. 2; Ex. X, p. 2.
No IEP was issued for the 2017/2018 school year, Ex. BB, ¶7, indicating the DOE had declassified him as a student eligible for special education services.
For the 2017-2018 school year, Student’s Kindergarten year, the Parent placed him at , a charter school in Brooklyn. Ex. BB, ¶6. However, it quickly became clear that Student was unable to keep up with the academic and behavioral requirements there. Id. The Parent then transferred Student to , where he was enrolled in an Integrated Co-Teaching (“ICT”) class Ex. BB, ¶7. Parent testified that at that time, Student had no IEP. Id.
The Parent testified that Student continued to struggle in the ICT Kindergarten and that homework was difficult for him. Id. The Parent explained that Student would fidget and try to get out of doing his homework. Id. She also explained that Student was not learning to read, could not write his letters, and was having trouble with attention and behavior both at home and in school. Ex. BB, ¶7. Student’s Kindergarten teacher reported that Student was performing below grade level academically. Ex. T, p. 2. His teacher also reported that he required assistance with fine-motor skills, struggled with sight words and one-to-one number correspondence, and was easily distracted. Id. It was also noted that Student often needed redirection and prompting to refocus. Id.
In the fall of his Kindergarten year, 2017, Parent referred Student to the CSE. Id. What followed was a series of evaluations which uniformly noted that Student was struggling in class and falling behind, but recommended no services.48 The DOE offered nothing to ameliorate Student’s struggles
48
The evaluations and results are well summarized in Petitioners’ closing brief pages 4-5, attached hereto as an Appendix. P-O TheClassroom evaluations included:
Observation 02/27/19 P-P Speech-Language Evaluation 03/15/18 P-Q Psychoeducational Evaluation 03/14/18 P-R Classroom Observation 01/26/18 P-S Occupational Therapy Evaluation 01/24/18 P-T Social History Evaluation 01/17/18 between September 2017 and March 23, 2018, when the DOE held an IEP meeting. At the March 23, 2018 IEP meeting, the CSE classified Student as having a Learning Disability and recommended ICT Services continue, but now as an IEP placement. Ex. E. The DOE specified that Student was not eligible for 12 months services. Ex. E. p. 7.
I find this troubling. The DOE’s own records showed that for several years, and through the July/August summer session of 2017 the DOE had developed an appropriate IEP and provided appropriate mandated supports in a 12:1:2 and then a 9:1:2 classes that had successfully enabled Student to access his education and make strong, encouraging progress. The DOE’s own records show that when school resumed less than a month later, the supports were withdrawn and this promising Student immediately began to struggle and fall behind. The DOE’s own records showed the DOE knew what educational and related services were required to enable Student to access his education, i.e., to provide a FAPE. Indeed, the DOE had created such a plan as recently as April, 2017. Ex. F. The DOE’s own records showed that the DOE had provided those very services for several years and had withdrawn it to the immediate, obvious detriment to Student. Nevertheless, the DOE kept Student in the ICT class as a general education student, took several months to conduct evaluations, and then, in March of 2018, determined to place this still struggling Student in the same ICT placement for Kindergarten and to continue ICT placement for the 2018/2019 school year.
I Find the DOE failed to provide a FAPE for the 2017/2018 school year. There are some circumstances in which children may receive services under an interim IEP or IFSP before the full evaluation and IEP development process is completed.49 I find that that to be the case here. I find the DOE had sufficient information in its records to formulate an IEP that would have provided this known student with a FAPE for the 2017/2018 school year well before the final three months of that school year. This it failed to do.
I Find the March 23, 2018 IEP failed to provide Student with a FAPE for the 2018/2019 school year. As noted above, student is provided a FAPE when the board of education provides an IEP that is: “’likely to produce progress, not regression’ and … is reasonably calculated to enable the child to receive educational benefits.50 A district court in evaluating whether a district has met its obligation,
49
T.B. and E.B. v. Warwick Sch. Comm., supra at footnote 17. 50
Po,See footnotes 4, 5, 6, Supra.
must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan.51 I find there to be no objective evidence in the record to show Student was likely to progress, and not continue to regress in the ICT class. The DOE had no basis for its determination that placement in an ICT class was reasonably calculated to enable the child to receive educational benefits.
I Find the DOE did not conduct an evaluation sufficiently comprehensive to identify all of the Student’s special education and related services needs for the 2017/2018 and 2018/2019 school years. As noted above, an evaluation means procedures used in accordance with 34 C.F.R. §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs.52 The evaluation must be sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category. 53
It was clear to the DOE that, with the prior IEP mandated supports that the DOE had recently provided, this Student made notable progress during his early intervention and pre-school years through August 2017. Just weeks later, the supports were withdrawn and Student immediately started to struggle significantly and was unable to access or benefit from his education.
When the DOE’s evaluations disclosed no answers as to why Student was struggling, it was the DOE’s obligation to continue the process and to use the combined talents and experiences of the CSE team, and its own records, to identify Student’s disability and the nature and extent of his special education and related needs. This it did not do. Instead, the DOE effectively said: our tests came out negative, he’ll be fine.
Student continued in an ICT class for 1st Grade for the 2018-2019 school year where he continued to struggle. Ex. BB, ¶9. He continued to reverse his letters, his grades suffered and his behaviors worsened, and Parent was concerned Student may have dyslexia. Id. The Parent testified that Student even began hating school. Ex. BB, ¶9. She explained that she was concerned with Student’s speech, his behavior, and his difficulties with daily living skills. Id. ¶10.
51 See footnotes 4, 5, 6, Supra. 52 See footnotes 17, 18, 19 Supra. 53 See footnotes 17, 18, 19 Supra.
Parent’s concerns were mirrored by the DOE. In Student’s 2018/2019 report card, his teachers noted him to be “Far below standards” in all areas relating to reading, writing and math; that he was performing “below standards” and “well below standards” in science and social studies. Ex. U. Moreover, the DOE issued a Promotion in Doubt letter indicating that Student had not developed 1st Grade skills and was in danger having to repeat 1st Grade. Ex. BB, p. 10.
The Parent testified that in February 2019, she once again initiated a reevaluation. Ex. BB, ¶10.
Once again, the DOE commenced evaluations. Once again, the evaluations uniformly noted that Student was struggling in class and falling behind but, inexplicably, recommended no services. 54 For example, on February 13, 2019, the District conducted a speech-language evaluation. According to the evaluator, Student presented with poor lip rounding and tongue movements which impacted the clarity of his speech. Ex. N, p. 1. According to the evaluator, Student was unable to sequence five picture cards and omitted the names of characters and specific details in his narrative sample. Id. Significantly, the evaluator found that Student’s expressive language functioning had declined from Average to Borderline (39th percentile to 7th percentile) from 2018 to 2019. Ex. N, p. 3. Ex. P. The evaluator noted that Student. only spoke in the present tense, made errors of omission and substitution when repeating sentences, and used morphological markers inconsistently. Ex. N, p. 1. Despite these findings, the evaluator still did not recommend speech-language therapy. Ex. N.
I Find that for the 2019/2020 the DOE did not conduct an evaluation sufficiently comprehensive to identify all of the Student’s special education and related services needs for the same reasons noted above regarding the 2017/2018 and 2018/2019 school years.
On March 22,2019, the DOE developed an IEP. In this IEP, the DOE clearly noted Student’s lack of expected progress toward his annual goals after two years in an ICT class. Specifically, it noted, that, in the spring of his 1st Grade year, Student “has difficulty applying knowledge of letter sounds to successfully read, understand, and write words.” Ex. D. p. 3. The CSE noted his Fountas and Pinnell Reading Level was only at a Level B which was a Kindergarten level. Ex. D, p. 1. Moreover, the DOE
54
evaluations and results are well summarized in Petitioners’ closing brief pages 6-7, attached hereto as an Appendix. The evaluations included: P-M Psychoeducational Evaluation 03/14/19 P-N Speech-Language Evaluation 03/05/19 P-O Classroom Observation 02/27/19 had issued a Promotion in Doubt Letter. In spite of Student’s lack of expected progress toward the annual goals after two years in an ICT class, in this IEP the District continued to recommend ICT Services, this time seven periods per week for ELA and eight periods per week for Math. March 23, 2019 IEP, Ex. D, p. 7. The District added mere group Special Education Teacher Support Services three periods per week for ELA and two periods per week for Math. Id. Inexplicably, the CSE included unsupported and untrue entries that Student was functioning at 1st Grade levels in Reading and Math, (Ex. D. p. 11), totally at odds with the lack of progress expressed by his teachers. (see Ex. BB, p. 10, cited above)
I Find the DOE failed to provide a FAPE for the 2019/2020 school year. As noted above, student is provided a FAPE when the board of education provides an IEP that is: “’likely to produce progress, not regression’ and … is reasonably calculated to enable the child to receive educational benefits. 55 A district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan. 56 The IEP must be revised to address any lack of expected progress toward the annual goals and in the general education curriculum.57
I Find there to be no objective evidence in the record to show Student was likely to progress, and not continue to regress in the ICT class. The DOE had no basis for its determination that placement in an ICT class was reasonably calculated to enable the child to receive educational benefits. The CSE failed to revise Student’s March 2019 IEP to address his Student’s lack of expected progress toward the annual goals after two years in an ICT class.
I find Student to be a Student with an Autism Spectrum Disorder.
I Find the evidence and affidavit testimony provided by Student’s independent evaluators provides strong, credible support for the classification made therein. The testimony of each evaluator as to her education and professional experience showed her to have the appropriate expertise and competency for testifying in this matter. Each had conducted an evaluation of Student.
55
Po,See footnotes 4, 5, 6, Supra. 56
See footnotes 4, 5, 6, Supra.
57
34 C.F.R. § 300.324(b)(1)(ii); 8 NYCRR § 200.4(f)(2).
Between May 2019 and July 2020, Student underwent a third series of evaluations, resulting in the reports listed below: P-H Occupational Therapy Evaluation 01/29/20 13 P-I Neuropsychological Evaluation 01/24/20 22 P-J Speech-Language Evaluation 01/20/20 7 P-K Assistive Technology Evaluation 01/14/20 12 P-L Report 05/17/19 3 P-Y Autism Skills Assessment 07/03/20 8 The reports are well detailed in Student’s closing brief, attached hereto as Appendix A, and summarized below.
The Parent testified that Student continued to struggle throughout the 2018-2019 school year Ex. BB, ¶13.
On May 17, 2019, the Parent brought Student to the (“ ”) of to be assessed by . Ex. L. noted that Student’s teacher had reported that he was performing one-to-two years below grade level in all academic subjects. Ex. L, p. 1. Information provided by Student’s Parent and his teachers indicated scores that were elevated or significant for hyperactivity, impulsivity, learning problems, and executive functioning; inattention and difficulty with peer relations; defiance and aggression; Attention Deficit Hyperactivity Disorder (“ADHD”), Inattentive; ADHD-Combined Type; and Major Depressive Episode, Dysthymia (commonly known as a persistent mild depression); Autism Spectrum Disorder; motor tics, vocal tics, somatic symptoms, nocturnal enuresis, and encopresis. Ex. L, p. 1, 2.
also reported that Student’s adaptive skills were underdeveloped as he did not know how to clean after himself, how to brush his teeth properly, how to tie his shoelaces, or how to put on his clothes correctly. Ex. L, p. 2.
concluded by diagnosing Student with ADHD (Combined Type) and recommending additional testing conducted to “rule out” a diagnosis of Autism Spectrum Disorder. Ex. L, p. 3.
The Parent testified that Student continued to struggle throughout the 2018-2019 school year which prompted her to move Student to for the 2019-2020 school year. Ex. BB, ¶13.
On October 11, 2019, the Parent sent the District a letter disagreeing with the District’s evaluations, and requesting an independent neuropsychological evaluation by Dr. , an independent Central Auditory Processing evaluation and speech-language evaluation by , an independent occupational therapy evaluation by , an independent assistive technology evaluation by , and an independent Autism Skills Assessment by a BCBA of her choosing. Ex. C. Ex. BB, ¶14.
On November 13, 2019, Parent filed this action.
On December 9, 2019, January 9, 2020, and January 10, 2020, Dr. conducted a neuropsychological evaluation. Ex. I. observed Student to become irritable; have difficulty reading social cues; veer off-task and became tangential in his communication; and be self-directed, requiring significant one-to-one attention utilizing redirection and Applied Behavior Analysis (“ABA”) interventions. Id. . Ex. AA, ¶13. that, despite his strong cognitive ability scores on the WISC-V, Student was not learning as all of his academic achievement scores fell in the Borderline range, and at a Kindergarten level, except for the subtest of subtraction fluency. Ex. I, p. 11. Ex. AA, ¶16. also noted that Student’s delays in phonological processing were consistent with the early indicators of dyslexia; Ex. AA, ¶16; that his significant language deficits were consistent with a language processing disorder Ex. AA, ¶17; and that he presented with marked deficits in verbal and nonverbal social communication skills. Ex. AA, ¶18.
Based on her findings, diagnosed Student with:
• Autism Spectrum Disorder, Level 3; Specific Learning Disorder with impairment in reading; Specific Learning Disorder with weakness in mathematics; and ADHD, Combined Type.
Ex. I, p. 20. Ex. AA, ¶20.
I Find Student to be a Student with an Autism Spectrum Disorder. Moreover, I Find the DOE has twice failed to conduct evaluations sufficient to identify Student as having an Autism Spectrum Disorder and identify all of the child’s special education and related services needs.
I Find the recommendations made as a result of evaluations conducted between May 2019 and July 2020 to be required elements of an educational plan that will provide Student with a FAPE.
I Find the evidence and affidavit testimony provided by Student’s independent evaluators provides strong, credible support for the recommendations made therein. The testimony of each evaluator as to her education and professional experience showed her to have the appropriate expertise and competency for testifying in this matter. Each had conducted an evaluation of Student.
As noted above, between in May 2019 and July 2020, Student underwent a third series of evaluations, listed above.
As noted above, conducted a Neuropsychological Evaluation and diagnosed Student as having an Autism Spectrum Disorder. made several recommendations in her report, Ex. I, p. 21-22, which are also set forth in her affidavit. Ex. AA, ¶22-27. ’s recommendations include:
• Student be placed in a non-public school that specializes in the education of high functioning children with Autism, in a classroom with a small student to teacher ratio (6:1:1). Ex. I, p. 21.
• Student. receive intensive one-to-one instruction implementing ABA, a minimum of 20 hours per week in school and 10 hours per week at home, 12 months a year. Id.
• Student receive a program such as Orton-Gillingham. Ex. I, p. 21. Ex. AA, ¶25.
• A Functional Behavioral Analysis (“FBA”) be conducted by a BCBA, and a Behavior Intervention Plan (“BIP”) be developed by a BCBA to be implemented at school, in the home and in the community to decrease problematic behavior, to promote pro-social behavior and to enable generalization across multiple learning environments to ensure safety. Ex. I, p. 21. Ex.
AA, ¶24.
• Student receive individual speech-language therapy three times per week and group speech-language therapy one time per week with a highly skilled language pathologist and parent counseling and training one hour per month. Ex. I, p. 22. Ex. AA, ¶26-27.
On December 27, 2019, conducted an Occupational Therapy evaluation. Ex. H. The evaluator also found that Student presented with severe deficits in sensory modulation related to his behavior, endurance, inattention, distractibility, fine-motor skills, perceptual skills, and auditory processing. Ex. H, p. 12-13. The evaluator noted that Student demonstrated poor endurance, had difficulty assuming certain body positions on a mat, was distracted, and fidgeted a weak dynamic tripod grasp and presented with poor posture, visual-motor integration and fine-motor deficits, Ex. H, p. 4, 12. The evaluator also found that Student presented with severe deficits in sensory modulation related to his behavior, endurance, inattention, distractibility, fine-motor skills, perceptual skills, and auditory processing. Ex. H, p. 12-13.
At the conclusion of this evaluation, the evaluator recommended that Student receive:
• individual occupational therapy three times per week for 30 minutes using a sensory approach. Ex. H, p. 13.
On December 27, 2019, conducted a Speech-Language Evaluation. Ex. J.
The evaluator found that Student demonstrated mild-moderate delays in a wide spectrum of expressive and receptive language skills, phonemic awareness skills and auditory processing. Ex. J, p. 6.
At the conclusion of the evaluation, the evaluator recommended that Student receive:
• individual speech-language therapy two times per week. Id.
On January 14, 2020, the District conducted an Assistive Technology Evaluation. Ex. K. The evaluator found that when text was read aloud to him by either the evaluator or the e-text reader, Student was able to listen and follow Ex. K, p. 6; and that when provided with word prediction and auditory feedback, he was able to compose three sentences with the use of typing supports. Ex. K, p. 7.
The evaluator concluded the evaluation by recommending:
• that Student have a trial with a portable touchscreen tablet with an e-text reader application as well as technology to support his writing. Ex. K, p. 6-8.
In July 2020, BCBA conducted an Autism Skills Assessment pursuant to this IHO’s interim order. Ex. Y. Ex. CC, ¶15. The elements of this Autism Skills assessment included a comprehensive document review, three remote home observations, an interview of the Parent, and administration of the Verbal Behavior Milestones Assessment and Placement Program (“VB-MAPP”). Ex. Y, p. 3.
recommended:
• Student be placed in a non-public school setting with other high-functioning children, a small student-to-teacher ratio, and an ABA program. Ex. Y, p. 6. Ex. CC, ¶19.
explained that Student’s frequent and interfering behaviors were clearly preventing him from accessing his education. Id.
• Next, recommended that Student receive 10 hours of individual home-based ABA per week to decrease inappropriate behaviors and increase functional skills. Ex. Y, p. 6. Ex.
CC, ¶21. noted that the home program should be provided by a professional with experience and training in the methodology of ABA. Id. She also stressed the importance of having eight hour per month of BCBA supervision. Ex. Y, p. 7. Ex. CC, ¶23.
• Next, recommended four hours per month of parent counseling and training by a BCBA. Ex. Y, p. 6-7. Ex. CC, ¶22. stressed that parent counseling and training is vital in creating continuity and training parents to implement behavior plans. Id.
Parent agrees with all the recommendations set forth above, as do I. I Find that the recommendations set forth above to be necessary, integral parts of Student’s FAPE.
I find the DOE is to provide the requested Compensatory Services to Student.
I Find Student had made no meaningful educational progress in the three years since he left Preschool at age 4.4. Moreover, the DOE had twice failed to conduct evaluations sufficient to identify Student as having an Autism Spectrum Disorder and identify all of the child’s special education and related services needs.
The results of evaluations are eye-opening. At the time of evaluation, this 7 year old Student had spent three school years in ICT classes. evaluation disclosed that:
• Student was functioning at the developmental age of 30-48 months in cognitive, motor, and social/emotional skills. Ex. Y, p. 3-6; Ex. CC, ¶17.
I Find Student’s requests for compensatory services to be supported by testimony and exhibits.
I Find Student’s right to compensatory education began at least as far back as the fall of the 2017/2018 school year when the DOE knew, or should have known, that this recently de-classified, struggling Student continued to be a student with a disability entitled to a FAPE.
testified that Student’s program of ICT Services with SETSS was inappropriate and did not meet his academic, social, or emotional needs. Ex. Y, p. 6. Ex. CC, ¶18. testified that Student has been exhibiting and continues to exhibit interfering behaviors that have prevented him and will continue to prevent him from accessing his education including distractibility, perseveration and engaging in off-task behaviors, avoidance/escape behaviors and non-compliance behaviors. Ex. CC, ¶17. She also noted that he perseverated on topics and had trouble with turn taking during conversations. Id. Overall, determined that Student demonstrated severe skill deficits across many domains. Ex. CC, ¶17.
, a New York licensed bilingual speech pathologist testified regarding Student.’s speech-language needs. reviewed Student’s educational records and found them to show that, that since entering Kindergarten, Student had been exhibiting speech-language deficits; that the DOE did not provide him with appropriate speech-language services, Ex. Z, ¶9; and that the DOE’s failure to provide Student with appropriate speech-language intervention resulted in his inability make progress in his overall communication skills. Ex. Z, ¶14.
recommended that
• Student be provided with 276 hours of compensatory speech-language therapy. Ex. Z, ¶14,
16. explained that she based this on the recommendation of two hours per week multiplied by 46 weeks and then multiplied by three years (2017-2017, 2018-2019, and
2019-2020). Ex. Z, ¶16.
recommended:
• a remediation program of an additional 800 compensatory hours of ABA. Ex. Y, p. 7. Ex.
CC, ¶24. based this on 10 hours per week of instructional time per 10-month academic year, multiplied by 2 years. Ex. Y, p. 7. Ex. CC, ¶25. She explained that Student should have been receiving at least 2 hours of ABA per school day to address inappropriate behaviors and increase functional skills during the last two years. Id.
• 80 hours of BCBA supervision hours based on two hours per week of BCBA supervision over the course of a ten-month school year, multiplied by two years. Ex. Y, p. 7. Ex. CC,
¶26-27.
• Lastly, recommended 80 hours of parent counseling and training based on one hour per week over the course of a ten-month school year, multiplied by two years. Ex. Y, p.
7. Ex. CC, ¶28-29.
testified that the cost of ABA services through is $150 per hour, and $225 for BCBA supervision and parent counseling and training. Ex. CC, ¶30.
I find the types of services and the amounts of hours requested to be reasonably calculated to give Student an opportunity to make the progress he might have made if he had been appropriately classified and had all appropriate services had been timely provided. I note again that, at the time of the most recent evaluations, this 7 year old Student with an undiagnosed Autism Spectrum Disorder had made no meaningful educational progress since leaving pre-school at age 4,58 having spent three full school years struggling in ICT classes and having undergone two series of insufficient DOE evaluations.
Specifically, I FIND Student is to:
• Be classified as a Student with an Autism Spectrum Disorder.
• Be placed in a 12 month program in a non-public school that specializes in the education of high functioning children with Autism, in a classroom with a small student to teacher ratio (6:1:1).
Ex. I, p. 21.
• Be issued an IEP tailored to address his individual needs and which is to include ten (10) hours of home-based individual ABA per week; eight (8) hours of BCBA supervision per month; four
(4) hours of individual parent counseling and training per month; 1.5 hours of occupational therapy per week; and 1 hour of speech-language therapy per week.
• Be provided funding by the DOE for a central auditory processing evaluation by at the rate of $2,300.
• Be provided with a portable touchscreen tablet with an e-text reader application as well as technology to support his writing. Ex. K, p. 6-8. Student and Parent are to be provided with
58 The results of evaluation showed that this 7-year-old Student was functioning at the developmental age of 3048 months in cognitive, motor, and social/emotional skills. Ex. Y, p. 3-6.
appropriate 1:1 training to enable student to well utilize the tablet, the application and the technology;
• Be provided with a bank of hours of the following Compensatory Services to compensate for the DOE’s failure to provide appropriate instructional services during 2017-2018, 2018-2019, and 2019-2020 school years:
• 800 hours of 1:1 ABA by at the rate of $150 per hour and, additionally, the related BCBA services set forth immediately below;
• 80 hours of compensatory BCBA supervision by at the cost of
$225 per hour.
• 276 hours of private 1:1 speech-language therapy to be provided by a provider of the Parent’s choosing, a bank of 207 hours of private 1:1 occupational therapy to be provided by an independent provider of the Parent’s choosing; and a bank of 80 hours of private 1:1 parent counseling and training to be provided by at the cost of $225 per hour.
• To the extent Student must travel to receive any of the above compensatory services, such travel related expenses for Parent and Student are to be reimbursed by the DOE.
These costs would not be incurred but for the failure of the DOE to provide a FAPE for the school years in question.
I find that parent has been cooperative in all dealings with the DOE. Accordingly, I conclude equitable considerations support a full award of remedies sought.
FINAL ORDER:
The DOE is directed to
1. Classify Student as a Student with an Autism Spectrum Disorder;
2. Place Student in a 12 Month program in a Non-Public school that specializes in the education of high functioning children with Autism, in a classroom with a small student to teacher ratio
(6:1:1). Ex. I, p. 21. Such placement is to be made within 45 days of this Order;
3. Issue an IEP tailored to address Student’s individual needs and which is to include the
Classification and the Placement noted in Paragraphs 1 and 2, above as well as: ten (10) hours of home-based individual ABA per week; eight (8) hours of BCBA supervision per month; four (4)
hours of individual parent counseling and training per month; 1.5 hours of occupational therapy per week; and 1 hour of speech-language therapy per week;
4. Provide funding for a Central Auditory Processing evaluation by at the rate of
$2,300;
5. Be provided with a Assistive Technology as follows: a portable touchscreen tablet with an e-text reader application as well as technology to support his writing. Ex. K, p. 6-8. Student and Parent are to be provided with appropriate 1:1 training to enable student to well utilize the tablet, the application and the technology;
6. Provide Student with a bank of hours of the following COMPENSATORY SERVICES to compensate for the DOE’s failure to provide appropriate instructional services during 2017- 2018, 2018-2019, and 2019-2020 school years:
a. 800 hours of 1:1 ABA by at the rate of $150 per hour and, additionally, the related BCBA supervision services set forth immediately below;
b. 80 hours of compensatory BCBA supervision by at the cost of
$225 per hour;
c. 276 hours of private 1:1 speech-language therapy to be provided by a provider of the Parent’s choosing;
d. 207 hours of private 1:1 occupational therapy to be provided by an independent provider of the Parent’s choosing;
e. 80 hours of private 1:1 parent counseling and training to be provided by at the cost of $225 per hour.
7. THE SCHEDULING OF the COMPENSATORY SERVICES set forth in Paragraph 6 (a-e)
above, is to be within the sole discretion of Parent. Parent control includes, but is not limited to, frequency, spacing, and length of each session.
8. THERE IS TO BE no time limit within which the COMPENSATORY SERVICES set forth in Paragraph 6 (a-e) above, must be used. Services need not be provided during the school day and are not be provided during the time Student is entitled to receive such services from his current school placement.
9. UPON RECEIPT of timely notice from Parent to the DOE of Parent’s intent to commence the
COMPENSATORY SERVICES set forth in Paragraph 6 (a-e) above, THE DOE IS TO rapidly complete all administrative/bookkeeping procedures and issue all documents required (including, but not limited to, related service authorizations) to quickly implement these remedies.
10. To the extent Student must travel to receive any of the COMPENSATORY SERVICES set forth in Paragraph 6 (a-e) above, such travel related expenses for Parent and Student are to be reimbursed by the DOE.
This is a FINAL ORDER; this matter is resolved and is to be closed.
Dated this 22nd day of September 2020
___________________________________ By: Hearing Officer Andrea R. Cohen, Esq.
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.
(NYSED 07/09/2020)
APPENDIX
In the Matter of the Due Process Hearing Between
THE PARENT OF , A CHILD WITH A DISABILITY,
Parent,
And
NEW YORK CITY DEPARTMENT OF EDUCATION,
District.
Pursuant to the Provisions of Article 89 of the Education Law of the State of New York and
Section 1415 of the IDEA
PARENT’ S CLOSING STATEMENT
NYC
LAW OFFICES OF
, Esq. Attorneys for Parent
63 Kent Drive
Cortlandt Manor, New York 10567
(917) 673-4435
TABLE OF CONTENTS
I. FACTS .........................................................................................................................................3
STATEMENT OF PROCEDURAL FACTS ................................................................................................................. 3
STATEMENT OF FACTS .................................................................................................................................... 3
II. THE DISTRICT FAILED TO MEET ITS BURDEN OF PROVING THAT IT PROVIDED WITH A FREE
APPROPRIATE PUBLIC EDUCATION ................................................................................................... 13
III. THE DISTRICT FAILED TO PROVIDE WITH A FAPE ................................................................. 13
A. THE DISTRICT FAILED TO RECOMMEND AN APPROPRIATE PROGRAM AND PLACEMENT FOR THE 2017-2018, 2018-
2019, AND 2019-2020 SCHOOL YEARS ......................................................................................................... 13
B. THE DISTRICT FAILED TO PROVIDE WITH APPROPRIATE SPEECH-LANGUAGE THERAPY FOR THE 2017-2018,
2018-2019, AND 2019-2020 SCHOOL YEARS ................................................................................................ 15
C. THE DISTRICT FAILED TO PROVIDE WITH APPROPRIATE OCCUPATIONAL THERAPY FOR THE 2017-2018, 2018-
2019, AND 2019-2020 SCHOOL YEARS ......................................................................................................... 16
D. THE DISTRICT FAILED TO PROVIDE THE PARENT WITH APPROPRIATE PARENT COUNSELING AND TRAINING DURING
THE 2017-2018, 2018-2019, AND 2019-2020 SCHOOL YEARS ....................................................................... 16
IV. ADDITIONAL SERVICES ARE WARRANTED .................................................................................. 17
IV. AN IMPARTIAL HEARING OFFICER HAS THE AUTHORITY TO ORDER PLACEMENT IN A STATE-
APPROVED NON-PUBLIC SCHOOL ..................................................................................................... 20
V. CONCLUSION ............................................................................................................................ 22
I. FACTS
STATEMENT OF PROCEDURAL FACTS
1. On November 13, 2019, ., filed a due process hearing request with the District on behalf of the Parent, . The case was assigned to Impartial Hearing Officer (“IHO”) Andrea Cohen.
2. A prehearing conference was held on May 13, 2020. , Attorney for the
Parent, and , District Representative were present via telephone.
3. The hearing commenced on May 22, 2020. The Parent admitted Exhibits A-C into evidence including the affidavit testimony Board-Certified Behavior Analyst (“BCBA”) .
The Parent also made an application for an interim order directing the District to fund an independent Autism Skills Assessment. The District stated on record that it had no objection to this motion. Tr. 27.
4. On May 25, 2020, IHO Cohen issued an interim order directing the District to fund an independent Autism Skills Assessment by a BCBA of the Parent’s choosing at that providers normal and customary rate.
5. The hearing continued on July 23, 2020. , Attorney for the Parent, and
, District Representative were once again present via telephone due to the
Covid-19 mandates. The District indicated on the record that it would not be putting on a case and rested without admitting any exhibits or presenting any witness testimony. The
Parent admitted Exhibits D-DD into evidence including the affidavit testimony of Speech- Language Pathologist , Dr. , the Parent, and an additional testimonial affidavit of . The Parent then rested and the hearing concluded.
STATEMENT OF FACTS
6. The Student (“ ”) resides with the Parent in Brooklyn, New York. Ex. C.
7. was born on and is presently years of age. Id.
8. The Committee on Special Education (“CSE”) classified as a student with a Learning Disability. Ex. D, p. 1.
9. The Parent testified that she noticed that had developmental delays very early in his life.
Ex. BB, ¶3. According to the Parent, he was not using language, did not make eye contact, lined up his toys, and perseverated on things. Id. The Parent explained that when the family was living in , was diagnosed with Autism. Id. When was two years old, the family moved to New York where received services through Early Intervention and then through the Committee on Preschool Education (“CPSE”). Ex. BB, p. 3.
10. attended Pre-School at the in Brooklyn. Ex. BB, ¶4.
He was placed in a 12:1:2 Special Class and was provided with speech-language therapy. Id.
11. On April 21, 2017, the CPSE held a meeting to develop an Individualized Education Plan (“IEP”) for Ex. F. The District recommended a classroom with nine students, one teacher and two paraprofessionals (“9:1:2”) five hours per day, five days per week, with related services of individual speech-language therapy two times per week 30 minutes and group speech-language on a one-to-one (“1:1”) basis. Ex. F, p. 4. The District also recommended extended school year services. Ex. F, p. 5.
12. The Parent testified that in April 2017, she also attended a CSE meeting as part of “ ” and his transition to Kindergarten. Ex. BB, ¶5. The Parent testified that at the meeting, teachers and providers made it seem like he was doing so well that he no longer needed special education services. Id. In fact, the District actually declassified for Kindergarten. Id.
13. For the 2017-2018 school year, Kindergarten year, the Parent placed at , a charter school in Brooklyn, as she was very concerned with the District’s community school offering. Ex. BB, ¶6. However, his enrollment at was brief because he was unable to keep up with the academic and behavioral requirements. Id.
The Parent then transferred to , where he was placed in an Integrated Co-Teaching (“ICT”) class as a general education student. Ex. BB, ¶7. The Parent testified that continued to struggle in school and that homework was difficult for him.
Id. The Parent explained that would fidget and try to get out of doing his homework.
Id. She also explained that was not learning to read, could not write his letters, and was having trouble with attention and behavior both at home and in school. Ex. BB, ¶7. This prompted the Parent to refer to the CSE in the fall of 2017. Id.
14. On January 16, 2018, the District conducted a Social History Evaluation. Ex. T. In this social history, Kindergarten teacher reported that was performing below grade level academically. Ex. T, p. 2. His teacher also reported that he required assistance with fine-motor skills, struggled with sight words and one-to-one number correspondence, and was easily distracted. Id. It was also noted that often needed redirection and prompting to refocus. Id. The Parent reported that at home, resisted completing homework assignments and was constantly fidgeting. Ex. T, p. 2.
15. On January 24, 2018, the District conducted an extremely limited occupational therapy evaluation. Ex. S. The evaluator noted that had difficulty managing his clothing and fasteners, organizing materials, and identifying personal information. Ex. S, p. 2. The evaluator also noted that had difficulty writing, copying, taking notes, and organizing his writing on his page. Ex. S, p. 3. The evaluator reported that had difficulty completing his work on time and completing it independently. Ex. S, p. 5. However, with only minimal testing, the evaluator claimed that these issues did not “significantly impede function” and did not warrant occupational therapy services. Ex. S, p. 7.
16. On February 1st and 5th, 2018, the District conducted a psychoeducational evaluation. Ex. Q.
The evaluator found that Full-Scale IQ was Average. Ex. Q, p. 1. However, a closer look at composite scores on the IQ testing revealed a broad range in scores. Ex. Q, p.
1-2. For example, Processing Speed fell in the High Average range while his Visual Spatial fell in the Borderline range. Id. Despite this scatter of scores, the evaluator conducted no further evaluations and made no program recommendations. Ex. Q.
17. On March 13, 2018, the District conducted a speech-language evaluation. Ex. P. As part of this evaluation, the evaluator administered the Clinical Evaluation of Language
Fundamentals-Fifth Edition (“CELF”) which measured Receptive and Expressive Language functioning to both be within the Average range. Ex. P, p. 3-4. Despite
Average scores, the examiner noted deficits in performance on auditory tasks and comprehension questions. Ex. P, p. 4. Once again, with only limited testing, the evaluator did not recommend speech-language therapy and instead recommended a series of meaningless classroom-based academic interventions. Id.
18. The District held a CSE meeting on March 23, 2018. Alarmingly, nearly the entire IEP generated from this meeting was only information copied directly from the previously conducted evaluations. Ex. E, p. 1-3. Based on only this limited information, the District classified as having a Learning Disability but only recommended ICT Services ten times per week for ELA and ten times per week for Math. Ex. E, p. 7. The Parent was outspoken at this IEP meeting about increasing academic frustration and lack of self-confidence but was ignored. Ex. E, p. 2. Ex. BB, ¶8.
19. entered 1st grade for the 2018-2019 school year where he continued to struggle. Ex. BB,
¶9. He continued to reverse his letters, which concerned the Parent that he may be dyslexic.
Id. His grades suffered and his behaviors worsened. Id. The Parent testified that even began hating school. Ex. BB, ¶9.
20. The Parent testified that in February 2018, she once again initiated a reevaluation. Ex. BB,
¶10. She explained that she was concerned with speech, his behavior, and his difficulties with daily living skills. Id. The Parent also testified that around this time she had received a Promotion in Doubt letter indicating that was in danger of being left back. Id.
21. On February 13, 2019, the District conducted a speech-language evaluation at the Parent’s request. Ex. N. According to the evaluator, presented with poor lip rounding and tongue movements which impacted the clarity of his speech. Ex. N, p. 1. According to the evaluator, was unable to sequence five picture cards and omitted the names of characters and specific details in his narrative sample. Id. Alarmingly, the evaluator found that expressive language functioning had declined from Average to Borderline (39th percentile to
7th percentile) from 2018 to 2019. Ex. N, p. 3. Ex. P. The evaluator noted that only spoke in the present tense, made errors of omission and substitution when repeating sentences, and used morphological markers inconsistently. Ex. N, p. 1. Despite these alarming findings, the evaluator still did not recommend speech-language therapy. Ex. N.
22. On February 27, 2019, the District conducted a very brief classroom observation. Ex. O. The observer reported that was very distracted in the classroom, struggled with reading tasks, and had trouble retaining information. Id. The observer noted that was unable to independently recognized the sight words that the teacher presented on flash cards. Id.
also reportedly did not listen to the teacher as she spoke about letter sounds. Ex. O. According to the observer, needed to be prompted to look up at the teacher when she called his name and when the teacher asked to sound out a word, simply repeated the whole word after it was identified by another student. Id.
23. On March 6, 2019, the District conducted another psychoeducational evaluation. Ex. M. To assess academic functioning, the evaluator administered the Kaufman Test of Education Achievement which allegedly revealed that was functioning in Average range in Reading and Math, Below Average in overall Academic Skills, and in the Low range in Written Expression. Ex. M, p. 3-4. To assess behavioral functioning, the evaluator administered the Behavior Assessment for Children - Third Edition, Teacher Rating Scales -
Child, which revealed that was “At-Risk” in the areas of School Problems, Adaptive Skills, Attention Problems, Social Skills, Leadership, Study Skills, and Functional
Communication. Id. The evaluator noted that required help learning to recognize and utilize two-digit numbers; required auditory, visual, and tactile strategies to help him utilize knowledge of letter sounds; required help blending letter sounds to read and recognize words; required frequent prompting and redirection to help him attend to tasks; and needed tasks and instruction being broken down into small units to increase his ability to focus. Ex. M, p. 5.
Once again, despite these findings, the evaluator made no recommendations.
24. On March 22, 2019, the District held another CSE meeting. Ex. D. Once again, nearly the entire IEP generated from this meeting was information copied directly from the previously conducted evaluations and no specifics of detailed classroom functioning. Ex. D, p. 1-3. The additional information that was included was inaccurate as the District erroneously listed
Instructional/Functional Levels as “1st Grade” for both Reading and Math, despite assessment data showing that was actually performing much lower. Ex. D, p. 11. In fact, in another portion of the IEP, the District actually admitted that Fountas and Pinnell Reading Level was only at a Level B which was a Kindergarten level. Ex. D, p. 1.
Once again, the District only recommended ICT Services, this time seven periods per week for ELA and eight periods per week for Math. Ex. D, p. 7. The District added mere group Special Education Teacher Support Services three periods per week for ELA and two periods per week for Math. Id.
25. On May 17, 2019, the Parent brought to the of to be assessed by . Ex. L. noted that teacher had reported that he was performing one-to-two years below grade level in all academic subjects. Ex. L, p. 1. As part of her assessment, administered the Parents’ Conners 3 Short Form as well as the Teachers Conners Short Form. Ex. L, p. 2.
In response to the Conners, the Parent and teacher indicated scores that were elevated or significant for hyperactivity, impulsivity, learning problems, and executive functioning. Id.
Additionally, the Parent indicated scores that were significant for inattention and difficulty with peer relations. Id. The teacher indicated scores that were significant for defiance and aggression. Ex. L, p. 2. also administered both the Parent and Teacher
Symptom Checklists. Id. The Teacher Checklist was significant for Attention Deficit Hyperactivity Disorder (“ADHD”), Inattentive. Id. The Parent’s Checklist was significant for ADHD-Combined Type, Major Depressive Episode, Dysthymia (commonly known as a persistent mild depression), and Autism Spectrum Disorder. Ex. L, p. 2. The Parent further reported motor tics, vocal tics, somatic symptoms, nocturnal enuresis, and encopresis. Id.
also reported that adaptive skills were underdeveloped as he did not know how to clean after himself, how to brush his teeth properly, how to tie his shoelaces, or how to put on his clothes correctly. Ex. L, p. 2. concluded by diagnosing with ADHD (Combined Type) and recommended a “rule out” of Autism Spectrum Disorder meaning that additional testing would need to be performed to rule out this diagnosis. Ex. L,
p. 3.
26. The Parent testified that continued to struggle throughout the 2018-2019 school year which prompted her to move to for the 2019-2020 school year. Ex. BB, ¶13.
27. On October 11, 2019, the Parent sent the District a letter disagreeing with the District’s evaluations, and requesting an independent neuropsychological evaluation by Dr.
, an independent Central Auditory Processing evaluation and speech-language evaluation by , an independent occupational therapy evaluation by , an independent assistive technology evaluation by , and an independent Autism Skills Assessment by a BCBA of her choosing. Ex. C. Ex.
BB, ¶14.
28. On December 9, 2019, January 9, 2020, and January 10, 2020, Dr. conducted a neuropsychological evaluation. Ex. I. testified that during the evaluation, she observed to be irritable when pushed to do something; have difficulty reading social cues; veer off-task and became tangential in his communication; and be self-directed. Ex. AA, ¶13.
According to , required significant one-to-one attention utilizing redirection and Applied Behavior Analysis (“ABA”) interventions. Id.
29. To assess cognitive functioning, administered the Wechsler Intelligence Scale for Children – Fifth Edition (“WISC-V”). Ex. I, p. 8. Based on the WISC-V, found that cognitive functioning fell in the Average to High Average range.
Ex. AA, ¶2. Ex. I, p. 8. However, explained that, despite his strong cognitive ability, was not learning as all of his academic achievement scores fell in the Borderline range, and at a Kindergarten level, except for the subtest of subtraction fluency. Ex. I, p. 11. Ex.
AA, ¶16. also noted that delays in phonological processing were consistent with the early indicators ofdyslexia. Ex. AA, ¶16.
30. also found that demonstrated significant language deficits which she noted were consistent with a language processing disorder and affected his ability to use language socially, emotionally, heuristically, pragmatically, and effectively within an educational environment. Ex. AA, ¶17. In addition, found that presented with marked deficits in verbal and nonverbal social communication skills. Ex. AA, ¶18.
31. Based on her findings, diagnosed with Autism Spectrum Disorder, Level 3, requiring support with deficits in social communication and restricted behaviors; Specific Learning Disorder with impairment in reading; Specific Learning Disorder with weakness in mathematics; and ADHD, Combined Type. Ex. I, p. 20. Ex. AA, ¶20.
32. At the conclusion of her evaluation, made several recommendations. Ex. I, p. 21-22.
First, recommended that be placed in a non-public school that specializes in the education of high functioning children with Autism. Ex. I, p. 21. Ex. AA, ¶22.
went on to explain that also needs a small student to teacher ratio (6:1:1). Id.
33. Next, recommended that receive intensive one-to-one instruction implementing ABA, a minimum of 20 hours per week in school and 10 hours per week at home, 12 months a year. Id. recommended that receive a program such as
Orton-Gillingham. Ex. I, p. 21. Ex. AA, ¶25. Next, also recommended a Functional Behavioral Analysis (“FBA”) and a Behavior Intervention Plan (“BIP”) by a BCBA to be implemented at school, in the home and in the community to decrease problematic behavior, to promote pro-social behavior and to enable generalization across multiple learning environments to ensure safety. Ex. I, p. 21. Ex. AA, ¶24.
34. With regard to related services, recommended that receive individual speech-language therapy three times per week and group speech-language therapy one time per week with a highly skilled language pathologist and parent counseling and training one hour per month. Ex. I, p. 22. Ex. AA, ¶26-27.
35. The Parent testified that she agrees with ’s recommendations. Ex. BB, ¶16.
36. On December 27, 2019, conducted an occupational therapy evaluation. Ex.
H. The evaluator noted that although was cooperative, he demonstrated poor endurance, had difficulty assuming certain body positions on a mat, was distracted, and fidgeted. Ex. H,
p. 12. According to the evaluator, demonstrated a weak dynamic tripod grasp and presented with poor posture. Id. To assess visual-motor integration skills, the evaluator administered the Developmental Test of Visual-Motor Integration (“VMI”) which indicated that visual perceptual skills were Average while his motor coordination skills were Below Average. Ex. H, p. 4. The evaluator also administered the Bruininks-Oseretsky
Test of Motor Proficiency (“BOT”) which indicated that fine-motor control and upper limb coordination were mild-moderately delayed. Ex. H, p. 12. The evaluator also found that presented with severe deficits in sensory modulation related to his behavior, endurance, inattention, distractibility, fine-motor skills, perceptual skills, and auditory processing. Ex.
H, p. 12-13. At the conclusion of this evaluation, the evaluator recommended that receive individual occupational therapy three times per week for 30 minutes using a sensory approach. Ex. H, p. 13.
37. On December 27, 2019, conducted a speech-language evaluation. Ex. J.
The evaluator found that demonstrated mild-moderately delayed expressive and receptive language skills as well as moderate delays in phonemic awareness skills. Ex. J, p.
6. Receptively, the evaluator noted that demonstrated moderate delays processing auditory information. Id. She explained that as the length and complexity of information increased, performance quickly decreased. Id. With regard to his expressive language, the evaluator found that demonstrated mild-moderately delayed skills, including difficulty organizing and formulating sentences using age-appropriate morpho-syntactic structure. Ex. J, p. 6. The evaluator went on to explain that demonstrated significant deficits in phonemic awareness skills including difficulty segmenting, deleting, and substituting phonemes in words as well as difficulty producing rhyming words. Id. At the conclusion of the evaluation, the evaluator recommended that receive individual speech-language therapy two times per week. Id.
38. , a New York licensed bilingual speech pathologist testified regarding speech-language needs. Ex. Z. testified that she reviewed educational records and determined that since entering Kindergarten, had been exhibiting speech-language deficits including difficulties with word structure tasks and phonemic awareness yet the District did not provide him with appropriate speech-language services. Ex. Z, ¶9.
also concluded that the District’s failure to provide with appropriate speech-language intervention resulted in little progression in his overall communication skills. Ex.
Z, ¶14. As such, strongly recommended that be provided with 276 hours of compensatory speech-language therapy. Ex. Z, ¶14, 16. explained that she based this on the recommendation of two hours per week multiplied by 46 weeks and then multiplied by three years (2017-2017, 2018-2019, and 2019-2020). Ex. Z, ¶16.
39. On January 14, 2020, the District conducted an assistive technology evaluation. Ex. K. The evaluator found that presented with difficulties with reading and decoding words but when text was read aloud to him by either the evaluator or the e-text reader, he was able to listen and follow along with the text read aloud. Ex. K, p. 6. The evaluator reported that when provided with word prediction and auditory feedback, was able to compose three sentences with the use of typing supports. Ex. K, p. 7. The evaluator concluded the evaluation by recommending that have a trial with a portable touchscreen tablet with an e-text reader application as well as technology to support his writing. Ex. K, p. 6-8.
40. In July 2020, BCBA conducted an Autism Skills assessment pursuant to the IHO’s interim order. Ex. Y. Ex. CC, ¶15. The elements of this Autism Skills assessment included a comprehensive document review, three remote home observations1, an interview of the Parent, and administration of the Verbal Behavior Milestones Assessment and Placement Program (“VB-MAPP”). Ex. Y, p. 3.
41. The results of the VB-MAPP revealed that Mand repertoire was at developmental age of 30-48 months; tacting repertoire was in the range of 30-48 months listener responding repertoire was in the range of 30-48 months; visual performance was in the range of 18-30 months; play and social skills were in the range of 18-30 months range; motor imitation repertoire was in the range of 30-48 months; echoic repertoire was within the range of 30-48 months; intraverbal repertoire was in the range of 30-48 months; and reading, writing and math milestones were in the 30-48 months range. Ex. Y, p. 3-6.
1
The observations were conducted remotely due to Covid-19 restrictions.
42. testified that has been exhibiting and continues to exhibit interfering behaviors that have prevented him and will continue to prevent him from accessing his education. Ex.
CC, ¶17. explained that often engaged in off-task behaviors, was very distractible, and engaged in avoidance/escape, as well as non-compliance behaviors. Id. She also noted that he perseverated on topics and had trouble with turn taking during conversations. Id. Overall, determined that demonstrated severe skill deficits across many domains. Ex. CC, ¶17.
43. Based on her assessment, made several specific recommendations. Ex. Y, p. 6-7.
First, recommended that be placed in a non-public school setting with other high-functioning children, a small student-to-teacher ratio, and an ABA program. Ex. Y, p.
6. Ex. CC, ¶19. explained that given frequent and interfering behaviors that were clearly preventing him from accessing his education. Id. further explained that program of ICT Services with SETSS was inappropriate and did not meet his academic, social, or emotional needs. Ex. Y, p. 6. Ex. CC, ¶18.
44. Next, recommended that receive 10 hours of individual home-based ABA per week to decrease inappropriate behaviors and increase functional skills. Ex. Y, p. 6. Ex. CC,
¶21. noted that the home program should be provided by a professional with experience and training in the methodology of ABA. Id. She also stressed the importance of having eight hour per month of BCBA supervision. Ex. Y, p. 7. Ex. CC, ¶23.
45. Next, recommended four hours per month of parent counseling and training by a BCBA. Ex. Y, p. 6-7. Ex. CC, ¶22. stressed that parent counseling and training is vital in creating continuity and training parents to implement behavior plans. Id.
46. Due to the lack of appropriate academic placement by the District for the last two years, recommended a remediation program of an additional 800 compensatory hours of ABA. Ex. Y, p. 7. Ex. CC, ¶24. based this on 10 hours per week of instructional time per 10-month academic year, multiplied by 2 years. Ex. Y, p. 7. Ex. CC, ¶25. She explained that should have been receiving at least 2 hours of ABA per school day to address inappropriate behaviors and increase functional skills during the last two years. Id.
47. Additionally, recommended 80 hours of BCBA supervision hours based on two hours per week of BCBA supervision over the course of a ten-month school year, multiplied by two years. Ex. Y, p. 7. Ex. CC, ¶26-27. Lastly, recommended 80 hours of parent counseling and training based on one hour per week over the course of a ten-month school year, multiplied by two years. Ex. Y, p. 7. Ex. CC, ¶28-29.
48. testified that the cost of ABA services through is $150 per hour, and $225 for BCBA supervision and parent counseling and training. Ex. CC, ¶30.
II. THE DISTRICT FAILED TO MEET ITS BURDEN OF PROVING THAT IT
PROVIDED WITH A FREE APPROPRIATE PUBLIC EDUCATION
The District failed to meet its burden of showing that it offered a FAPE for the 2017- 2018, 2018-2019, and 2019-2020 school years by failing to present a case to defend its programs for the years in question. Education Law §4401 places the burden of proof and the burden of persuasion in impartial hearings on school districts, except where a parent is seeking tuition reimbursement for a unilateral parental placement. The District failed to provide any witness testimony or documentary evidence whatsoever. As such, the District has failed to meet their burden in this case.
III. THE DISTRICT FAILED TO PROVIDE WITH A FAPE
A. THE DISTRICT FAILED TO RECOMMEND AN APPROPRIATE PROGRAM AND
PLACEMENT FOR THE 2017-2018, 2018-2019, AND 2019-2020 SCHOOL YEARS
An IEP is “a written statement that ‘sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.’” D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507–08 (2nd Cir. 2006). Under the IDEA, for a child’s IEP to be adequate, it must be likely to produce progress, not regression, and must afford the student with an opportunity greater than mere trivial advancement. T.P. ex rel. S.P. v.
Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2nd Cir.2009). In Endrew F., the United States Supreme Court interpreted the scope of the “free appropriate public education” requirements under IDEA and heightened the responsibility of school districts from merely providing de minimis educational benefit:
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 “[i]ndividualized education program.
§§1401(29), (14) (emphasis added). 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)(i)(I)-(IV), (d)(3)(A)(i)-(iv). As we observed in Rowley, the IDEA “requires participating States to educate a wide spectrum of handicapped children,” and “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between.” 458 U. S., at 202, 102 S. Ct. 3034, 73 L. Ed. 2d 690.
Endrew F., 137 S. Ct. at 999 (2017). The Court’s holding from Endrew F. means that school districts must abandon their negligible and outdated measure of progress for educating special education students, i.e. “trivial" progress, and created a stricter substantive obligation for school districts. Under Endrew F, School districts must now customize an appropriate program designed specifically for their needs:
We will not attempt to elaborate on what “appropriate” progress will look like from case to case. It is in the nature of the Act and the standard we adopt to resist such an effort: The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created. Id., 137 S. Ct. at 1001.
During the years in question, the District failed to offer or consider an appropriate program and placement that was reasonably calculated to enable to make progress appropriate in light of his circumstances. Instead, the team offered inappropriate services, leaving to languish.
The District presented no evidence in this case to contest or rebut the Parent’s claim that has not been appropriately placed. However, the Parent did present evidence to support her claims.
Following her comprehensive neuropsychological evaluation, concluded that should be placed in a non-public that specializes in the education of high functioning children with autism. Ex. I, p. 21. Ex. AA, ¶22. went on to explain that needs a small student to teacher ratio (6:1:1). Id. also determined that should be placed in a non-public school setting with other high-functioning children, a small student-to-teacher ratio, and an ABA program. Ex. Y, p. 6. Ex. CC, ¶19.
In addition to his non-public school placement, both and determined that requires as part of his program: 10 hours of individual home-based ABA per week. Ex.
Y, p. 6. Ex. I, p. 21. stressed the importance of having eight hour per month of BCBA supervision for this program. Ex. Y, p. 7. Ex. CC, ¶23. Additionally, recommended four hours per month of parent counseling and training by a BCBA. Ex. Y, p. 6-7. Ex. CC, ¶22.
With regard to related services, the evaluators determined that requires individual occupational therapy three times per week for 30 minutes using a sensory approach and individual speech-language therapy two times per week for 30 minutes. Ex. H, p. 13. Ex. J, p. 6.
Lastly, the District’s own assistive technology evaluation recommended that be provided with a portable touchscreen tablet with an e-text reader application as well as technology to support his writing. Ex. K, p. 6-8.
The record clearly shows that the District failed to provide an appropriate placement for and that the only appropriate placement for him is a non-public school.
B. THE DISTRICT FAILED TO PROVIDE WITH APPROPRIATE SPEECH-LANGUAGE
THERAPY FOR THE 2017-2018, 2018-2019, AND 2019-2020 SCHOOL YEARS
The Record is replete with examples of speech-language deficits including difficulties with word structure tasks, phonemic awareness, and language composition. also found that demonstrated significant language deficits which she noted were consistent with a language processing disorder. Ex. AA, ¶17. testified that the District’s failure to provide with appropriate speech-language intervention resulted in little progression in his overall communication skills. Ex. Z, ¶14 lack of meaningful progress supports the Parent’s claim that the District failed to provide with appropriate speech-language therapy during the years in question contributed to him being denied a FAPE.
C. THE DISTRICT FAILED TO PROVIDE WITH APPROPRIATE OCCUPATIONAL
THERAPY FOR THE 2017-2018, 2018-2019, AND 2019-2020 SCHOOL YEARS
The record is also replete with struggles with managing clothing and fasteners, organizing materials, difficulty writing. Ex. S. has also struggled with motor coordination skills, fine-motor control, and upper limb coordination. Ex. H, p. 4, 12. has also presented with severe deficits in sensory modulation. Ex. H, p. 12-13. Despite these persistent issues, the District has failed to provide with appropriate occupational therapy services.
The District’s failure to provide with appropriate occupational therapy during the years in question contributed to him being denied a FAPE.
D. THE DISTRICT FAILED TO PROVIDE THE PARENT WITH APPROPRIATE PARENT
COUNSELING AND TRAINING DURING THE 2017-2018, 2018-2019, AND 2019-2020
SCHOOL YEARS
was diagnosed with autism at the age of two. Ex. BB, ¶2. Additionally, although determined that an autism diagnosis could not be ruled out in May 2019, the District failed to conduct any further testing to determine whether did in fact have autism. Ex. L, p.
3. Furthermore, in January 2020, was formally diagnosed with autism by . Ex. I, p. 20. Being that the District should have at least recognized that was exhibiting symptoms of autism for many years, the Parent should have been provided with appropriate and individualized parent counseling and training. Even after the District was formally put on notice in January 2020 that had been diagnosed with Autism, the District still failed to provide the Parent with any parent counseling and training.
The District’s failure to provide the Parent with appropriate parent counseling and training during the years in question contributed to being denied a FAPE.
IV. ADDITIONAL SERVICES ARE WARRANTED
Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). Courts have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); Student X v. New
York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); Board of Educ.
v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the 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 Reg’lSch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “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.” See 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. Id. at 526.
In the instant case, the Parent has presented evidence of needs and the hour to hour award that is appropriate. The District did not dispute the findings of the Parent’s providers who outlined need for compensatory services.
As a result of the District’s failure to provide an appropriate and supportive education, or any education that could reasonably access, recommended a remediation program of an additional 800 compensatory hours of ABA. Ex. Y, p. 7. Ex. CC, ¶24. based this on ten hours per week of instructional time per ten-month academic year, multiplied by two years.
Ex. Y, p. 7. Ex. CC, ¶25. She explained that should have been receiving at the very minimum, two hours of ABA per school day to address inappropriate behaviors and increase functional skills during the last two years. Id. Additionally, recommended 80 hours of BCBA supervision based on two hours per week of BCBA supervision over the course of a ten-month school year, multiplied by two years. Ex. Y, p. 7. Ex. CC, ¶26-27. testified that the cost of ABA services through is $150 per hour and BCBA supervision is $225 per hour. Ex. CC, ¶30.
In addition to this intensive academic remediation program, the record clearly shows that also requires intensive compensatory related services. also recommended that the Parent be provided with individual parent counseling and training to be trained in how to not reinforce problem behaviors. Ex. Y, p. 7. Ex. CC. According to , should have been receiving one hour of parent counseling and training per week. Id. As such, recommended 80 hours of parent counseling and training based on one hour per week over the course of a ten-month school year, multiplied by two years. Ex. Y, p. 7. Ex. CC.
Next, the independent evaluations conducted by clearly show a need for compensatory speech-language and occupational therapy services. testified that the District’s failure to provide with appropriate speech-language intervention resulted in little progression in his overall communication skills. Ex. Z, ¶14. As such, strongly recommended that be provided with 276 hours of compensatory speech-language therapy.
Ex. Z, ¶14, 16. explained that she based this on the recommendation of two hours per week (three times per week in a for 30 minutes and one time per week individually for 30 minutes)
multiplied by 46 weeks and then multiplied by three years (2017-2017, 2018-2019, and 2019- 2020). Ex. Z, ¶16.
With regard to compensatory occupational therapy services, the Parent provided substantial evidence as to need for occupational therapy services. Because the District presented no contrary evidence, should be awarded compensatory services based on the recommendations of . Based on the recommendations of the occupational therapy evaluation which specifically recommended individual occupational therapy three times per week for 30 minutes, should be provided with 207 hours of compensatory occupational therapy.
Ex. H, p. 13. This number is based on 1.5 hours per week x 46 weeks of school x three school years.
The District’s denial of FAPE and inability to defend any portion of their programs for the school years 2017-2018, 2018-2019, and 2019-2020 school years demand an award of compensatory services.
IV. AN IMPARTIAL HEARING OFFICER HAS THE AUTHORITY TO ORDER
PLACEMENT IN A STATE-APPROVED NON-PUBLIC SCHOOL
Ordering compensatory education is an equitable remedy available to a hearing officer or judge, “the ultimate award must be fact specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that would have accrued from special education services the school district should have supplied in the first place.” Reid v.
District of Columbia, 401 F.3d 516 (DC Cir. 2005), 524. Reid was later cited by the 2nd circuit in
P. v. Newington, in reaching its own conclusion that compensatory education is an option. Reid emphasizes that compensatory services are equitable relief; they are not a contractual remedy. P.
v. Newington, 546 F.3d 111 (2d Cir. 2008).
In Newington, the court stated unequivocally that compensatory education is an available remedy for Impartial Hearing Officers to award, stating that the “IDEA allows a hearing officer to fashion an appropriate remedy, and we [the Second Circuit] have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.”
P. v. Newington, 546 F.3d 111 (2d Cir. 2008) [internal citations omitted]. Additionally, the Supreme Court has held that the authority of administrative hearing officers in fashioning equitable relief is broad. Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 237 (2009).
Here, the Parent is simply requesting placement in an appropriate, state-approved non-public school. As outlined Supra, the Impartial Hearing Officer in this case should find that he has the authority to a fashion such an award. A state-approved nonpublic school is a permissible placement for a school district to make on a student’s IEP. 8 N.Y.C.R.R. § 200.6(j). The District’s
Central Based Support Team (“CBST”) locates and places students in New York State approved non-public schools when the District has failed to provide an appropriate placement or program.
Courts have held that compensatory services can take many forms, as the purpose is to provide services that will make the student whole, in response to the educational deprivation that the student has experienced. In Draper v. Atlanta, 518 F.3d 1275 (11th Cir. 2008), at 1284, the court concluded that “the provision of a public-school option does not preclude an award of placement in a private school by a court,” as compensatory services. The decision also explains that a “disabled student is not required to demonstrate that he cannot be educated in a public setting.”
Id., at 1285. The court further explained that whereas an educational program must be “reasonably calculated to enable the child to receive educational benefits,” quoting Rowley, 458 U.S. at 206- 07, when it comes to compensatory services, more than that is required; i.e., in the words of the Draper decision, “ࡕ compensatory awards must do more, - they must compensate...
Compensatory awards should place children in the position they would have been in but for the violation of the Act. [IDEA].” Id. at 1289.
Consistent with the cases cited Supra, the Parent respectfully requested that this IHO order a deferral to the CBST for non-public school placement to compensate and to make him whole, following years of an inappropriate education.
V. CONCLUSION
The Parent respectfully requests the Hearing Officer order the following items of relief in order to remedy the District’s failure to provide with a FAPE during the 2017-2018, 2018-2019, 2019-2020 school years.
1. The Impartial Hearing Officer will find that the District failed to offer a FAPE for the 2017-2018, 2018-2019, and 2019-2020 school years.
2. The Impartial Hearing Officer will order the District to immediately send case to the Central Based Support Team for non-public school placement.
3. The Impartial Hearing Officer will order the Committee on Special Education to promptly convene to finally address individual learning needs creating meaningful and measurable goals to address social, emotional, behavioral, and academic deficits, and develop an IEP to specify a narrowly tailored program to address his individual needs in a twelve-month non-public school program, inclusive of related services. IEP will also include an autism classification, ten hours of home-based individual ABA per week, eight hours of BCBA supervision per month, four hours of individual parent counseling and training per month, 1.5 hours of occupational therapy per week, and 1 hour of speech-language therapy per week.
4. The Impartial Hearing Officer will order the District to fund a central auditory processing evaluation by at the rate of $2,300.
5. Compensatory Services. The Impartial Hearing Officer will order the District to fund 800 hours of 1:1 ABA by at the rate of $150 per hour to compensate for its failure to provide appropriate instructional services during 2017-2018, 2018-2019, and 2019-2020 school years. The District will also be ordered to fund 80 hours of compensatory BCBA supervision by at the cost of $225 per hour.
6. Related Services Compensatory services. The Impartial Hearing Officer will order the District to provide additional (compensatory, or make-up) services to remedy the failure to offer an appropriate program of related services from school years 2017-2018, 2018-2019, and 2019-2020 specifically, a bank of 276 hours of private 1:1 speech-language therapy to be provided by a provider of the Parent’s choosing, a bank of 207 hours of private 1:1 occupational therapy to be provided by an independent provider of the Parent’s choosing; and a bank of 80 hours of private 1:1 parent counseling and training to be provided by at the cost of $225 per hour.
7. The Parent seeks any further relief that the Hearing Officer may deem just and proper to ensure the provision of a free and appropriate education to Based on the foregoing, the Impartial Hearing Officer should order the requested relief, as well as such further relief as the Impartial Hearing Officer deems appropriate. Dated: Cortlandt Manor, New York
August 12, 2020 Respectfully submitted,
Footnotes
[1] 34 C.F.R. § 300.320.
[2] N.Y. Educ. Law §4404(1)(c). M.H. v. New York City Dept. of Educ., 685 F.3d 217, 225 (2d. Cir. 2012).
[3] Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3f 186, 192 (2d Cir. 2005); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Rowley, 458 U.S. 176, 207).
[4] Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121.
[5] See 20 U.S.C. 1414(d)(3)(B)(i).
[6] See 8 NYCRR 200.4(d)(3)(i).
[7] See 8 NYCRR 200.4(j)(4)
[8] 34 C.F.R. § 300.324(b)(1)(i); 8 NYCRR § 200.4(f).
[9] 34 C.F.R. § 300.324(b)(1)(ii); 8 NYCRR § 200.4(f)(2).
[10] see Educ. Law 3602-c[1][a]). NYSED; State Review Office; March 31, 2014 No. 14-022; Justyn P. Bates, S.R.O.
[11] Endrew F., 137 S. Ct. at 1002.
[12] R.E., 694 F.3d at 185Id. at 185-86.
[13] See L.O. v. New York City Dep’t of Educ., No. 15-1019, 2016 WL 2942301, at *9 (2d Cir. 2016).
[14] 34 C.F.R. § 300.324(b)(1)(ii); 8 NYCRR § 200.4(f)(2).
[15] T.B. and E.B. v. Warwick Sch. Comm., 361 F.3d 80; see also: Letter to Boney, 18 IDELR 537 , 18 LRP 1693 (OSEP 1991) .
[16] Letter to Boney, 18 IDELR 537 , 18 LRP 1693 (OSEP 1991) .
[17] 34 C.F.R. § 300.15; see also 8 NYCRR § 200.1(aa).
[18] 34 C.F.R. §300.304(b)(1); 8 NYCRR §200.4(b)(1).
[19] 34 C.F.R. § 300.304© (6); 8 NYCRR § 200.4(b)(6)(ix).
[20] See 20 U.S.C. 1414(d)(3)(B)(i).
[21] See 8 NYCRR 200.4(d)(3)(i).
[22] 34 C.F.R. §§ 300.324(a)(1) and (2); see also 8 NYCRR §§ 200.4(d)(2) and (3).
[23] 34 C.F.R. §300.303(a); 8 NYCRR §200.4(b)(4).
[24] 34 C.F.R. § 300.324(b)(1)(ii); 8 NYCRR § 200.4(f)(2).
[25] See Evans v. Dist. No. 17 of Douglas County, 841 F.2d 824, 830 (8th Cir. 1988); Bd. of Educ. of Murphysboro Cmty. Unit Sch. Dist. v. Ill. St. Bd. of Educ., 41 F.3d 1162 (7th Cir. 1994); Breanne C. v. Southern York C’nty. Sch. Dist., 732 F.Supp.2d 474, 489 (M.D. Pa. 2010).
[26] 34 C.F.R. § 300.502(b)(5) 31