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Special Education Law
DECISIONParent PrevailedIHO Case No. 192044

New York City Department of Education, Impartial Hearing Decision

August 10, 2020·Aristargos (Harry) Christodoulou Impartial Hearing Officer

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

CASE NUMBER: 534601 - NYC: 192044

NEW YORK STATE EDUCATION DEPARTMENT IMPARTIAL DUE PROCESS HEARING

STUDENT, a minor, by and through his/her Parent(s),

Petitioners,

- against - Case No.: 192044

SCHOOL DISTRICT Aristargos (Harry) Christodoulou Impartial Hearing Officer

Respondent.

FINDINGS OF FACT AND DECISION

REDACTED PROCEDURAL HISTORY

Petitioners (“petitioners” / “parents”) are the parents of student (“student”), a REDACTED school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). His eligibility for special education supports and services is not in dispute.

On or about January 09th, 2020, petitioners filed a due process complaint (“DPC1”) against the school district (“district” / “respondent”) and on July 1st, 2020 a second due process complaint (“DPC2”) pursuant to IDEA. I was appointed to preside over DPC1 on June 24, 2020 and as a result thereof, appointed on July 14th, 2020 in terms of New York State regulations1, to make a written determination on consolidation of DPC1 ( ) and DPC2 (case number 195463).

1 200.5(j)(3)(ii)(a).

On July 20th, 2020, an order of consolidation was granted on the record consolidating the two cases into . A closed due process hearing on the consolidated cases was held on July 27, 28 and 29, 2020.

JURISDICTION

A decision in this matter is being rendered, pursuant to the IDEA2, and its implementing regulations3, and the New York State Education Law4, and its implementing regulations5.

ISSUES

The issues to be determined are as follows:

Petitioner:

Petitioners’ representative asserts that the respondent failed to provide the student with a substantive and procedural free and appropriate public education (“FAPE”) for the 2019-2020 school year (DPC1) and the 2020-2021 school year (DPC2). Further, that the November 4, 2019 IEP is not appropriate to meet the student’s individualized needs and is not reasonably calculated to confer educational benefits on him (DPC1) and also is procedurally and substantively inappropriate to provide the student with FAPE for the 2020-2021 school year (DPC2). The petitioners are seeking an order:

  • • Directing the Committee on Special Education (“CSE”) to defer the student’s IEP to Central Based Support Team (“CBST”) for placement in an appropriate ABA-based Non-Public School (“NPS”) specializing in children with diagnosis of Autism Spectrum Disorders (DPC1);

2 20 U.S.C. § 1400 et seq.

3 34 C.F.R. § 300 et seq.

4 Educ. Law Art. 89 § 4404 et seq.

5 8 NYCRR § Part 200.

  • • Directing the New York City Department of Education (“DOE”) to place the student in an appropriate NYSED-Approved NPS-Day program where the student’s educational needs can be met consistent with the recommendations set forth in the student’s neuropsychological evaluation (i.e. an appropriate educational placement for the 2020-2021 school year) (DPC2);
  • • Directing the DOE to provide the student with: (i) a home-based program consisting of 1:1 ABA therapy for no less than 10 hours per week and supervised by a BCBA (DPC1 & DPC2); and (ii) no less than 5 hours of 1:1 PROMPT SLT per week (DPC1);
  • • Directing the DOE to provide the petitioners with a P-1 or Nickerson letter that would allow the parents to place the student in any NYSED approved day NPS of their choice for one year in the event that the CBST fails to provide the student with an appropriate placement within 30 days from the date of the IEP (DPC1); In the event the DOE is unable to provide the student with a placement in an appropriate NYSED-Approved NPS-Day program, the petitioners be entitled to prospective or retrospective direct tuition funding for the cost of the student’s placement an appropriate non-approved private school (DPC2);
  • • Directing the DOE to provide the student with compensatory education services for the denial of FAPE during the 2019-2020 school year (DPC1) and twelve months of compensatory education program consisting of:(i) ten (10) hours per week of individual 1:1 ABA therapy supervised by BCBA at the prevailing market rate; and (ii) three (3) hours per week of individual SLT by a provider of the parents’ own choosing at the prevailing market rate (DPC2);
  • • Costs and fees (DPC2);
  • • Any other and further relief as this Hearing Officer deems just and proper (DPC 1 and DPC 2).

Respondent:

The respondent’s representative asserts that the March 2020 reevaluation was withdrawn by the student’s mother in writing and that there was a valid IEP in place, namely the November 2019 IEP (transcript: pg. 257; lines 20-22). Accordingly, the respondent’s position is that I should deny the parents’ claim for the 2019-2020 school year (transcript: pg. 259; lines 19-22) and that the DOE’s position is the same for the 2020- 2021 school year (transcript: pg. 260; lines 7-10).

CASES PRESENTED

Lists of documents admitted into evidence and persons who appeared are appended. The respondent presented the testimony of Witness 1. The petitioners presented the testimony of Expert Witness and the testimony of the student’s mother.

FINDINGS OF FACT AND DECISION

After considering all the evidence, as well as the arguments of both parties’ representatives, this Hearing Officer’s Findings of Fact and Decision are as follows:

  • • The last IEP that was developed for the student is dated November 4th, 2019.
  • • There were conflicting versions in the evidence as to what the impetus for the March 2020 IEP meeting was.
  • • Witness 1 testified about it being a triannual evaluation (transcript: pg. 62, lines 11-25; pg. 63, lines 1-5; pg. 96, lines 13-15).
  • • Respondent’s representative asserted in closing argument that in March 2019 (sic) (referring to March 2020) there was a request for a reevaluation (transcript: pg. 256, lines 21-22).
  • • When I asked clarification from the student’s mother as to what she understood the purpose of the March 2020 meeting was, she testified that it was to recommend the right placement for the student. She also testified that it was initiated by the school at their behest (i.e. not at her request) (transcript: pg. 220, lines 19-25; pg. 221, lines 1-11).
  • • Petitioners’ representative asked clarification questions from the student’s mother to clarify the further evaluation she was pursuing. The student’s mother testified that as the evaluation that she was obtaining privately would not be ready for the November 4th, 2019 IEP meeting, she was told that the IEP team would complete the IEP (referring to the November 4th, 2019 IEP), and that when she received the evaluation she could bring it back and the IEP team could reconvene the IEP meeting. Once she obtained the neuropsychological evaluation, she provided the report to the school-based support team and they scheduled the March 12, 2020 IEP meeting (transcript: pg. 227, lines 12-25; pg. 228, lines 1-7).
  • • During the hearing, petitioners’ representative requested respondent’s representative to provide a copy of the notice sent to the petitioners calling for the March 12, 2020 IEP meeting (transcript: pg. 232, lines 8-18), which she provided.
  • • A copy of the said notice is dated February 14, 2020 addressed to the petitioners specifying the purpose of the March 12, 2020 IEP meeting (DOE Exhibit 6) being to “Review the results of the reevaluation, determine your child's continued eligibility for special education services and develop an Individualized Education Program (IEP)”.
  • • This notice is recorded on the SEISS document (DOE Exhibit 4) as a “'Notice of IEP Meeting: Reevaluation/Annual Review'”.
  • • It is noted that on the November 4th, 2019 IEP the projected date for annual review is recorded as November 4, 2020 (Petitioners’ exhibit E).
  • • It is also noted that the petitioners had initiated a due process complaint in January 2020, prior to the March 12, 2020 IEP meeting being scheduled, claiming inter alia that the November 4th, 2019, IEP was not appropriate to meet the student's individualized needs and seeking the relief set out in DPC1 (transcript: pg. pg. 216, lines 9-25; pg. 217, lines 1-4).
  • • Witness 1 testified that she participated in the March 12, 2020 IEP meeting in her capacity of REDACTED who would have a high degree of knowledge regarding the school services and curricula (pg. 92, lines 10-18).
  • • Witness 1 further testified that leading up to the March 12, 2020 IEP meeting part of her preparation for that meeting was to review the last written IEP, which she testified that she did. In addition, she testified that she reviewed any of the tests that took place with the school psychologist, and any of their classroom observation notes, and any notes that might have pertained to concerns coming from the parent (transcript: pg. 93; lines 5-18).
  • • During cross-examination Witness 1 clarified some of the tests that she reviewed. These, she testified, were informative assessments, classroom notes, a SANDI, and a FAST test. There also was a test that was done by the school psychologist. Witness 1 testified that although she read these tests/assessments, she did not know the names of those testing or assessments offhand (transcript: pg. 94, lines 1-12).
  • • Witness 1 testified that there was a recommendation made at the March 12, 2020 IEP for the student’s mother to take a look at a school recommended by the school-based support team, namely the Recommended school (transcript: pg. 114, lines 1-5).
  • • The respondent recorded an entry on the respondent’s SEISS document (DOE Exhibit 4) that records a recommendation that the respondent made to the petitioners and their response, namely:
  • • 03/19/2020 Thu, 10:19 AM, 2019-20 User: REDACTED - “I spoke with REDACTED today. As per our meeting last Thursday on 3/12, they have denied our suggestion for REDACTED. They believe it is too restrictive. They were supposed to visit REDACTED however due to the current events, they were unable to.”
  • • When questioned about this entry, Witness 1 testified that typically during IEP meetings there are several placements they consider and not just one type of placement. She further testified that it is typical that they bring up each of those placements for consideration. Then the parent, the school-based support team, or the team itself, can either say it is or is not beneficial for the student. She also testified that they would make a notation as to whether those placements are beneficial or not, or appropriate or not appropriate (transcript: pg. 116, lines 18-25; pg. 117, lines 1-6).
  • • A recommendation from the respondent that was raised for consideration at the March 12, 2020 IEP meeting by the petitioners, which was in fact considered and rejected by the petitioners, was whether a Recommended placement would be appropriate for the student (transcript: pg. 195, lines 6-25; 196, lines 1-25; pg. 197, lines 1-8).
  • • When questioned by petitioners’ representative that at the end of the meeting, the IEP team is required to recommend a specific program and specific placement whether the parents agreed with it or disagreed with it, Witness 1 testified that it is typical, if they had come to a conclusion. She further testified that they had suggested that the student’s mother visit the Recommended school, and that they were hoping that she would be able to visit that day, although she was not able. She stated that the student’s mother asked for consideration of a week so that she would have the opportunity to go and that they took that into consideration (transcript: pg. 117, lines 7-21).
  • • When questioned by petitioners’ representative whether proper procedure would dictate first finalizing the IEP recommending a change from Current program at the Attending school to REDACTED, and then deferring the case to the CBST to provide the petitioners with a list of REDACTED, including Recommended placement and any other programs, Witness 1 conceded that it was proper procedure but stated that it would be followed through to the school-based support team (transcript: pg. 114, lines 6-25, pg. 115, lines 1-3).
  • • When questioned why the school-based support team failed to take that step and finalize the IEP from March 12th, 2020 with a recommendation change in the students program, Witness 1 testified that it was because of the student’s mother’s request that they wait a week to get back to them about how she wanted to proceed.
  • • Witness 1 testified further that once that week came, the student’s mother then said that she didn't get a chance to go into the school building, and she then requested to wait until the school building opened again before they move forward, which were both requests from the student’s mother (transcript: pg. 115, lines 4-17).
  • • On April 2, 2020 the student’s mother sent an email to the respondent stating that she is withdrawing her request for re-evaluation of the student and that she will put in a new request for re-evaluation when the school re-opens (DOE exhibit 5). It is not contested that this email was sent by the student’s mother to the respondent.
  • • Detailed evidence was presented by the petitioners as to the events leading up to the email in question being sent, alleged representations made to the student’s mother that led her to write the email and even assertions that the wording of the email was provided to her by an employee of the respondent. Although this evidence is controverted, it is irrelevant for purposes of determining the issues.
  • • Accordingly, it was unnecessary to make a credibility finding as to the truth of the assertions made by the parties pertaining to the student’s mother’s email dated April 2, 2020.
  • • It is uncontested that an IEP was not generated either during the March 12, 2020 IEP meeting or subsequent thereto.
  • • Witness 1 stated that she did not think that they finalized the IEP only because they were still “in limbo” waiting for the student’s mother to visit the school and get back to them (transcript: pg. 68, lines 1-8).

Denial of FAPE:

  • • A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits6. If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits7.
  • • The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE8. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"9.

6 Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].

7 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].

8 20 U.S.C. § 1415[f][3][E][i].

9 Rowley, 458 U.S. at 203.

  • • School districts are not required to "maximize" the potential of students with disabilities10, but must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'"11. The IEP must be "reasonably calculated to provide some 'meaningful' benefit"12.
  • • School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement13. Since this case does not involve a unilateral placement/tuition reimbursement claim (same having been reserved but not pursued in the due process hearing), the DOE has the burden of proof on all FAPE issues.
  • • Whatever circumstances had changed for the student that resulted in him not wanting to attend school, it was clear that the November 4th, 2019 IEP was not an IEP that was "reasonably calculated to provide some 'meaningful' benefit", if it did not overcome the difficulties that the petitioners were experiencing getting the student into the school classroom. Without catering for that, the IEP would not “likely produce progress” and would also not “afford the student with an opportunity greater than mere 'trivial advancement'".
  • • I therefore find that the support services contained in the November 4th, 2019 IEP are inadequate to assist this student to attend school so that he can benefit educationally from the personalized instruction he is meant to receive under his IEP.
  • • It is not proper for the respondent to hold the position that their responsibility only begins when the student steps onto the bus, in circumstances where the student’s mother is asking for help to get her son to school (transcript: page 105, lines 7-9).

10 Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.

11 Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.

12 Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.

  • • The respondent can neither abdicate its responsibility to develop an IEP based upon the unique circumstances of the student14, nor neglect its responsibility to do so. If a district knows or has reason to believe that a student will require certain services, it must evaluate the student's needs and offer appropriate supports in a timely manner15.
  • • The respondent was aware that the November 4th, 2019 IEP was not appropriate based upon the student’s almost complete lack of attendance, save for two occasions, one of which required trickery on the part of the school staff and the parent to get him into the school building (transcript: pg. 180, lines 20-25; pg. 181, lines 1-13).
  • • Even if the student’s mother sent the email dated April 2, 2020 with the intention to withdraw the reevaluation without any persuasion from the respondent, the respondent was still under an obligation to complete the IEP and make an appropriate recommendation as to related services and as to placement. To do nothing and fall back on the November 4th, 2019 IEP that the respondent knew was inadequate for the student’s needs, would only exacerbate the situation for the student.
  • • As stated above there is no dispute that the student requires special education services, and this is not a case where the parent has withdrawn consent for services.
  • • It is common cause that the student’s mother wanted to first see the Recommended school before continuing and that she was not convinced that the more restrictive Recommendation placement was appropriate for the student.
  • • The fact however that the respondent got to the place, after all reviewing all the tests that were reviewed by Witness 1, where it was comfortable making a more restrictive placement recommendation, to my mind demonstrates that the respondent had reevaluated the student and determined that the current less restrictive environment was inadequate to provide the student with FAPE, otherwise it would not have been able to responsibly recommend the more restrictive Recommended placement.

14 In re: Student with a Disability New York State Educational Agency (51 IDELR 295) 08-026 (108 LRP 34384)

(2008).

15 In re: Student with a Disability New York State Educational Agency.

  • • The reevaluation having been conducted (thus the IEP meeting notice – Exhibit DOE 6 - stating to “review the results of the reevaluation”) and becoming aware that the student’s mother was seeking to put her investigations into the Recommended school on further hold until the school reopened, it was incumbent upon the respondent to comply with its affirmative obligation and finalize the IEP for which the March 12, 2020 IEP meeting had been scheduled and particularly the placement determination for the student as well as appropriate related services.
  • • A CSE is required to include the parent16. However, a CSE may proceed without a parent in attendance and the CSE may make decisions in the parent's absence if a school district is unable to convince a parent to attend, so long as the school district maintains a detailed record of its attempts to secure a parent's participation17.
  • • The respondent’s SEISS notes (Exhibit DOE 4) demonstrate its efforts in this regard and that the respondent was respecting the IEP timeline until the letter of withdrawal, whereupon the respondent merely decided to “fall back” upon the November 4th, 2019 IEP that it knew was inadequate.
  • • The respondent had an affirmative obligation to offer the student a FAPE18. With certain exceptions, a student's IEP is required to be reviewed periodically, but not less frequently than annually, and revised as appropriate19. The November 4th, 2019 IEP having been reviewed and determined as inadequate necessitated its revision.
  • • Although there is no obligation to accept an evaluation or its recommendations, the respondent is obligated to consider evaluations obtained by the petitioners at their expense in any decision made with respect to the provision of FAPE, provided the evaluation meets the agency criteria20.

16 34 C.F.R. § 300.321; 8 NYCRR 200.3.

17 34 C.F.R. § 300.322[d]; 8 NYCRR 200.5[d][3]&[4]; Application of a Child with a Disability, Appeal No. 05-059;

Applications of a Child with a Disability and the Bd. of Educ., Appeal Nos. 04-050 and 04-052).

18 (20 U.S.C. § 1400[d][1][A]; Schaffer, 546 U.S. at 51; Rowley, 458 U.S. at 180-81; Frank G., 459 F.3d at 371).

19 (20 U.S.C. § 1414[d][4][A]; 34 C.F.R. § 300.324[b][1][i]; see also Educ. Law § 4402[2]; 8 NYCRR 200.4[f].

20 34 C.F.R. § 300.502(c)(1); 8 NYCRR 200.5(g)(vi).

  • • Witness 1 testified that she does not recall the neuropsychological evaluation obtained by the petitioners (transcript: pg. 108, lines 14-25; page 109, lines 1-18) and there is no evidence in the Record that it was considered or rejected as not meeting agency criteria.
  • • Based on the foregoing, I find that the respondent failed to meet its burden of proving that it provided the student with a FAPE during the 2019-2020 school year, in particular by failing to revise the IEP to include appropriate related services and to provide a placement that could implement that revised IEP with regard to elements critical to enable the student to make meaningful gains.
  • • Further, the respondent cannot justify its failure to develop an appropriate IEP for the upcoming 2020-2021 school year based upon the student’s mother’s withdrawal email and then fall back on the clearly inadequate November 4th, 2019 IEP, perpetuating the untenable situation the petitioners find themselves in for yet another school year.

IEP and Placement:

  • • The petitioners are seeking ABA methodology to be used at home and in a school setting, including BCBA supervision. The need for those services is well supported by the testimony and evaluation report of the petitioners’ Expert Witness, based upon his interviews, review of documentation provided to him by the petitioners and also upon extensive neuropsychological testing (transcript: pg. 141, lines 7-10). His testimony was convincing.
  • • The student has a variety of maladaptive behaviors and other underlying symptoms that impact his cognitive, social-emotional, behavioral, motor, and adaptive functioning. These do interfere with his ability to function in the classroom, benefit from instruction, and to access the curriculum.
  • • Based on the testimony of petitioners’ Expert Witness, I find that the student requires REDACTED and supplemental ABA support requested by the petitioners (transcript: pg. 169, lines 22-25; pg. 170, lines 1-6).
  • • The more restrictive Recommended placement option, would not appropriately meet the student’s needs. Based on the Record before me, the appropriate program that will enable the student to make meaningful progress at this time is a REDACTED (transcript: pg. 153, lines 22-25; pg. 154, lines 1-9).
  • • The remedy of the "Nickerson letter"21 was intended to address the situation in which a child had been referred to the CSE and had not been evaluated within 30 days or placed within 60 days of referral22.
  • • In this matter, more than sixty school days have passed since the student was referred to the CSE, without an appropriate placement recommendation. As such, the student is entitled to a P1 Nickerson Letter for placement at REDACTED at the DOE's expense.

Compensatory Services:

  • • The petitioners are seeking compensatory education or compensatory services for the district’s failure to provide the student with a FAPE for the 2019-2020 school year and twelve months of compensatory education program (DPC1 and DPC2).
  • • A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE23.
  • • An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA24.

21 Jose P., 79 C 270, EHLR 553:303, Appendix, Exhibit 1.

22 Application of a Child with a Disability, Appeal No. 00-092.

23 P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].

24 P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].

  • • A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach.
  • • Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation).
  • • Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).
  • • The student experienced a FAPE deprivation and denial of appropriate services for almost the entire 2019-2020 school year. Since the respondent’s opposition was based on the assertion that it had provided the student with a FAPE, it did not take any specific position with respect to the type or scope of compensatory education that would be appropriate in the event that a FAPE deprivation was found.
  • • The respondent’s position regarding the services being requested by the petitioners (other than that its assertion that FAPE was provided), is that the student does do well in a school setting and is sociable, pointing towards the appropriateness of the Current placement. The respondent’s representative also questioned the petitioners’ Expert Witness as to whether the recommended services, especially the recommended ABA services, were the only services that would work for the student.
  • • The former position, although it may have had merit in past times when the student was going to the Attending school, fails to address the problem currently being experienced, namely that the student is refusing to attend school. It is also inconsistent with the respondent’s recommendation of the more restrictive Recommended placement.
  • • Based on the petitioners’ Expert Witness’ testimony and detailed evaluation report (petitioners’ exhibit D), I find that the requested ABA therapy is an appropriate form and amount of compensatory education for the student’s FAPE deprivation.
  • • The petitioners’ Expert Witness’ testimony was credible and convincing and was based on detailed and comprehensive testing of the student. It was not controverted by any expert testimony or other documentary evidence. As such, the petitioners’ request for compensatory education is being granted.
  • • A compensatory education award should be calculated with consideration for the reasonable opportunity for the district to correct its FAPE denial. Since the November 4th, 2019 IEP meeting was the time when appropriate related services and placement recommendation should have been incorporated into the student’s IEP, that is the time from when compensatory services is being calculated.
  • • Given that the respondent has taken the position that the November 4th, 2019 IEP is valid and appropriate to provide FAPE, that therefore is also the IEP in place under which the student is meant to receive services for the 2020-2021 school year.
  • • Since the student has not yet been deprived of FAPE for the full 2020-2021 school year (although the November 4th, 2019 is inappropriate to provide the student with FAPE for the 2020-2021 school year), I find that the qualitative approach is the correct approach in the circumstances to achieve two objectives, namely, to correct the past deprivation of FAPE that occurred in the 2019-2020 school year and the FAPE deprivation that will be ongoing in the 2020-2021 school year, until the district can reasonably put in place an appropriate IEP, taking into consideration the expert recommendations contained in the petitioners’ neuropsychological evaluation and any other relevant reports and considerations.
  • • I do not find any equitable factors that warrant a reduction or denial of the anticipated award. In particular, the student’s mother’s failure to visit the Recommended school was not willful. She was prevented from doing so due to the school closing because of the pandemic.
  • • The respondent had an opportunity to correct the November 4th, 2019 IEP in March 2020, thereby limiting the negative impact on the student. Instead, it is standing by that IEP for the balance of the 2019-2020, as well as for the 2020-2021, school years.

Costs:

  • • The IDEA does not authorize an administrative officer to award attorneys' fees or other costs to a prevailing party; and entitlement, if any, to costs must be determined by a court of competent jurisdiction25. Only a court can determine who is entitled to attorneys' fees and I would be exceeding the scope of my authority by determining that the petitioners are the prevailing party entitled to costs.

ORDER

Based upon the above Findings of Fact, it is hereby ordered:

  • • ORDERED that, the CSE shall convene a review meeting within 21 (twenty-one) days to consider the report and recommendations set out in the neuropsychological evaluation obtained by the petitioners (petitioners’ exhibit D) and to prepare a new IEP that at a minimum: (i) comprehensively describes the student and includes appropriate related services and goals, including specific related services in home designed to encourage the student to return to school; (ii) provides for ABA methodology during the school day; (iii) provides for parent counseling and training; and (iv) defers the student’s placement to the CBST for placement in an appropriate ABA-based REDACTED specializing in children with diagnosis of Autism Spectrum Disorders.

25 20 U.S.C. § 1415[i][3][B]; Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 [2d Cir. 2005]; see also Application of a Student with a Disability, Appeal No. 08-008; Application of a Child with a Disability, Appeal No. 06-109.

  • • IT IS FURTHER ORDERED that, the DOE shall provide the petitioners with a P-1 or Nickerson letter that would allow them to place the student in any REDACTED of their choice for one year in the event that the CBST fails to provide the student with an appropriate placement within 30 (thirty) days from the date of the new IEP.
  • • IT IS FURTHER ORDERED that, the DOE shall provide and fund the following compensatory services for the student:
  • • A home-based program consisting of (i) 1:1 ABA therapy for 10 (ten) hours per week and supervised by a BCBA at the provider’s regular rate (i.e. “an enhanced rate”); and (ii) 5 (five) hours of 1:1 PROMPT SLT per week by a provider of the petitioners’ own choosing at the provider’s regular rate (i.e. “an enhanced rate”);
  • • This home-based program shall be provided for a period of 8 (eight) months; and
  • • The 8 (eight) month period of the home-based program ordered in #3b. of this Order shall be extended by the equivalent period of time beyond the 21 (twenty one) day grace period afforded the CSE in #3a. of this Order, that it takes the CSE to convene and propose the new IEP that complies with the requirements detailed in #1 above of this Order.

SO ORDERED.

DATED: August 7th, 2020

AHC (Signed Electronically) Impartial Hearing Officer

Aristargos (Harry) Christodoulou

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.

APPENDIX A – PERSONALLY IDENTIFIABLE INFORMATION

STUDENT v. SCHOOL DISTRICT

Student’s Name

REDACTED

Date of Birth

REDACTED

Student’s I.D. Number

REDACTED

Attending school

REDACTED

Recommended school

REDACTED

Student’s mother

REDACTED

Witness 1

REDACTED

Petitioners’ Expert Witness

REDACTED

Current placement

REDACTED

Recommended placement

REDACTED

Petitioners’ representative

REDACTED

Respondent’s representative

REDACTED

APPENDIX B – ADMITTED EXHIBITS

STUDENT v. SCHOOL DISTRICT

EXHIBIT NUMBER

DATE

DESCRIPTION

NO. OF PAGES

Petitioners’

Exhibits:

A 1/9/20 2019-2020 School Year Due Process Complaint (IHO Case 192044) 5 B 7/1/20 2020-2021 School Year Due Process Complaint (IHO Case 195463) 5

C 2/27/20 2/27/20 Social History 3

D 12/6/19 Neuropsychological Evaluation 18

E 11/04/19 Individualized Educational Program (IEP) 23 Respondent’s Exhibits:

DOE 1

11/04/19

OMITTED (Duplicate – Parent Ex E)

-

DOE 2

11/04/19

Attendance

1

DOE 3

11/13/19

Prior written notice

5

DOE 4

Various

Dates

SESIS events

7

DOE 5

04/02/20

Parent letter to withdraw evaluation

1

DOE 6

02/14/20

Notice of IEP meeting

3

IHO Exhibits:

HO 1

7/06/20

Pre-hearing conference order ( )

4

HO 2

7/22/20

Pre-hearing conference order, incorporating the consolidation order (Consolidated )

8