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Special Education Law
DECISIONParent PrevailedIHO Case No. 194664

New York City Department of Education, Impartial Hearing Decision

April 1, 2022·Martin J. Kehoe III·New York City Department of Education

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

CASE NUMBER: 537927 - NYC: 194664

FINDING OF FACT AND DECISION

Case Number: 194664

Student’s Name: Redacted District: Redacted

Hearing Requested By: Parent

Hearing Officer: Martin J. Kehoe III, Esq.

Actual Record Close Date: April 1, 2022

Table of Contents

I. Introduction 2

II. Overview 2 a. Parent’s Position 3 b. District’s Position 5 c. Student History 5 d. Background of the Case 6 e. Legal Overview 7

III. FAPE Analysis 9 a. Did the District Fail to Present a Prima Facie Case? 9 i. Standard 9 ii. Analysis 10 iii. Conclusion 14

IV. Compensatory Education: What is the Appropriate Remedy for Denial of a FAPE? 14 a. Compensatory Education Legal Standard 14 b. Analysis 17 i. Student Progress 17 ii. Recommendations 18 iii. Student Transition Plan 20 c. Rationale for Reducing Award 22

I. Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student. The Parent filed the complaint notice on June 26, 2020. (Ex. A) A hearing was held across multiple dates.[1] I was appointed as IHO on November 12, 2020.

The scope of the impartial hearing is limited to the issues raised in the complaint notice. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Disst., No. 11 civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Issues and allegations not contained within the four corners of this complaint are not to be considered pursuant to the applicable case law and regulations cited above. Similarly, any claims set forth within the complaint notice that were not addressed at the hearing should not be considered as they are considered abandoned. Application of a Child With A Disability Appeal 08-037 and Application of a Child With A Disability Appeal 10-067, pg. 9, n. 9.

II. Overview

This claim relates to “compensatory education” for the Spring of the 2019-2020 and the entire 2020-2021 school years (SYs). Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and... mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]. a. Parent’s Position The Parent submitted exhibits (A-MM) and called four witnesses: the Parent, the Speech/Language Pathologist, the Board Certified Behavioral Analyst (BCBA), and the Transition Specialist. It is the Parent’s position that the Student is eligible to remain at the School until June of 2022. (T. 37) The Parent alleges that the District has failed to provide the Student with a Free Appropriate Public Education (FAPE) during the Spring 2020 and 2020-2021 SY. (Ex. A-18) The Parent is seeking a program offering the following services for the Student:

  • • Placement at the Public School with full-day 1:1 support and instruction; from a Special Education Teacher Support Services-Applied Behavior Analysis (SETSSABA) provider;
  • • 40 hours per week of SETSS/ABA instruction to use either in school, at home and/or in the community at an enhanced rate;
  • • 2 hours per month of parent training;
  • • 1 hour Board Certified Behavior Analyst (BCBA) supervision per month;
  • • 5x30 of 1:1 Speech-Language Therapy (SLT) per week at school or center-based;
  • • 5x30 of 1:1 Occupational Therapy (OT) per week at school or center-based;
  • • 4x30 of 1:1 Physical Therapy (PT) per week at school or center-based;
  • • 2x30 1:1 therapy at school or center-based;
  • • 12 month extended school year (ESY) services;
  • • Special transportation including limited travel time of 60 minutes, lift bus, air conditioning, adult supervision, wheelchair, two large seats;
  • • Transition services from a provider of the parent’s choosing at reasonable market rates;
  • • Full-time REDACTED services in school, at home and/ or remotely;
  • • Full-time daily REDACTED services; and
  • • An independent Functional Behavioral Assessment (FBA) and Behavioral Intervention Plan (BIP) to include an ecological assessment in order to address setting and stimuli in any new environment and expectations placed on him in a new setting (i.e. at home or in a transition program or volunteer position). (Ex. A-18, A-19)

The Parent also seeks a bank of hours consisting of compensatory education, additional and/or make-up and related services for the Student until he turns 21-years-old, based on the District’s denial of FAPE for the 2020-2021 SY, as well as compensatory education for the failure to implement the Finding of Fact and Decision (FOFD) of IHO Suzanne M. Carter, case #175098, dated September 28, 2019, including:

1. 1:1 ABA/SETTS instruction,

2. full-time REDACTED,

3. related services, including PT, OT, SLT and hearing,

4. transition services, social work services, rehabilitation services

5. Assistive Technology (AT) equipment and AT training.

Additionally, the Parent seeks an order for assistive technology (AT) offering the following:

1. iPad 9.7” REDACTED

2. Case for iPad 9.7” REDACTED

3. Mounting Arm for iPad Pro with Case (with Mounting Plate)(Model: REDACTED)

4. REDACTED Keyboard (REDACTED) with Keyguard

5. iPad USB Adapter

6. Printer/Scanner/Copier (Compatible with iPad)(Model: REDACTED)

7. REDACTED Subscription

8. REDACTED App

9. REDACTED

10. REDACTED

11. REDACTED

12. REDACTED (5 Books)

13. REDACTED App a.

14. REDACTED App

15. REDACTED App

16. REDACTED App

17. REDACTED

18. REDACTED App

19. REDACTED Intro to Letters App

20. REDACTED Functional Math App Bundle

21. REDACTED Intro to Math App

22. REDACTED Operations App The Parent further requests that should the school remain closed then such AT equipment shall be provided at home, and that the District should fund 20 hours of certified AT service to implement training and provide support on the above technologies by a provider of the Parent’s choosing at reasonable market rates.

The Parent also requests that the District provide compensatory funding for an agency or private provider to provide at least 5 hours per month of in-person and telephone interpretation and translation services with an interpreter who speaks REDACTED and understands special education terminology to be physically present at all meetings where the Parent is present and translation of all education-related documents, including but not limited to: notices, report cards, progress reports, evaluations, IEPs, and data tracking concerning the Student’s education that were created during the 2019-2020 SYs or will be created in any future year. Additionally, the Parent wants the District to fund and/or provide the Parent with the technology necessary to scan documents received from the District or providers to the interpreter. b. District’s Position The District did not submit any evidence, nor did they call any witnesses or cross-examine any of the Parent’s witnesses. c. Student History The Student enjoys going to the park and completing puzzles. (Ex. B-4) The Student was classified on the May 2020 Individualized Educational Program (IEP) with Multiple Disabilities.[2] (Ex. B-1) The Student is diagnosed with REDACTED.[3] (Ex. JJ-1) The Student is REDACTED, REDACTED, and uses REDACTED, which requires REDACTED. (Ex. JJ-1) The Student also wears a REDACTED and has a REDACTED. (Ex. JJ-1) To communicate, the Student uses a variety of REDACTED and some independent use of his device and gestures to communicate. (Ex. KK-4) If the Student is left alone, he will engage in maladaptive behaviors almost 100% of the time. (Ex. LL-7) The Student will also engage in maladaptive behaviors if he is unable to express himself or if too many demands are placed on him. (Ex. LL-7) The Student is severely inattentive and has great difficulty remaining on task during instruction. (Ex. LL-7)

In the Student’s Transition Assessment, every area which was assessed showed need. (Ex. MM-34) The Student’s Transition Assessment provided the following results:

The Student scored 25% competency in the Enderle-Severson Transition Assessment that broadly measures all transition domains, showing need in all areas with relative strength in the Social/Vocational category and relative weaknesses in Employment, Recreation, Home Living, Postsecondary Education, and Community Participation. His Casey Life Skills score showed a 36% average competency (or 64% deficient) overall, indicating critical need. Self-determination overall competency is 12%, with strengths in the area of preferencing. Employability was measured at 36% competency—strength in the area of task completion related to safety. While these scores are low, they are relative and show natural skill and emerging skill. (Ex. MM-34) d. Background of the Case

Since 2017, the Student has been receiving ABA services, SLT, OT, PT, and REDACTED services at the Public School. (Ex.s C, PP) The IEP team claimed they were unable to add ABA to the Student’s IEP’s, and the Parent has had to file for the same relief every year since. (Ex. IHO 1)

An IEP meeting was held for the Student on May 19, 2020, where the District recommended a program[4] (Ex. I-15; I-16) with transportation[5] (Ex. I-20) for the Student at a Public District Specialized School.

A previous decision was issued for the Student on September 28, 2019, where the IHO Suzanne M. Carter found the Student was denied a FAPE for the 2017-2018 and 2018-2019 SY’s and ordered inter alia the CSE to convene and amend the IEP.[6] (Ex. IHO 1) The Student’s technology was not provided until almost two years later, and the REDACTED has not been provided to date. (Ex. IHO 1)

The Student was REDACTED years-old when the complaint notice was filed. (Ex. A) On March 16, 2020, the Governor of the State of New York declared under Executive Order 202.4 that all schools statewide must be closed by March 18, 2020, and that the 180-day instructional requirement for students may be suspended. Schools remained closed at the time the complaint notice was filed. (Ex. A-13) During the months the school was closed, no alternative learning was offered by the District nor any available that the Parent was able to access for myriad reasons. (Ex. A-14) The Student’s limited attention and focus prevented him from attending to the screen during remote learning. (Ex. A-14) In total, the Student missed almost three months of school during the 2019 – 2020 and 2020 – 2021 SYs. (Ex. JJ-3) e. Legal Overview The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

  • • (A) have been provided at public expense, under public supervision and direction, and without charge,
  • • (B) meet the standards of the state educational agency,
  • • (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and
  • • (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).[7]

A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

III. FAPE Analysis a. Did the District Fail to Present a Prima Facie Case? i. Standard

IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “... offer a cogent and responsive explanation for their decisions...” Endrew F., Supra. ii. Analysis The District failed to present a prima facie case for the Spring of 2020 and 2020-2021 SY. The District did not call any witnesses to defend their position.

Regarding the 2019-2020 SY, the Parent raised the following concerns:

  • • Although there was a translator present at the April 3, 2019 CSE meeting, the Parent was not provided documents in English or REDACTED;
  • • On or about January 16, 2019 the independent OT, PT and SLT evaluations were provided to the District; however, there was no mention of these evaluations or the recommendations contained therein in the IEP nor were they considered during the meeting;
  • • The independent AT evaluation was provided to the District on March 7, 2019. There was no mention of this evaluation or the recommendations contained therein in the IEP nor was it considered during the meeting;
  • • Despite clear evidence that 1:1 ABA is benefitting the Student, as well as the BCBA’s strong and unrefuted recommendation, and the Parent’s request, the team did not include ABA-SETSS on the Student’s IEP;
  • • The team did not include the services because the District has blanket policies prohibiting IEP teams from recommending 1:1 instruction, ABA and home-based services on an IEP unless they are ordered by a hearing officer;
  • • The April 2019 IEP meeting and resulting IEP prepared for the Student were fraught with substantive and procedural errors, which denied the Student FAPE[8];
  • • The District applied blanket policies to decisions about his IEP and placement. Further, the District has substantially changed the Student’s placement without a reevaluation. The District has also violated his rights by failing to ensure that he has equal access to education in New York, compared to students without disabilities. The District has also committed systemic violations of the statute and regulations of the IDEA and Section 504;
  • • The District’s conduct in violation of Section 504 is gross, reckless, and intentional; and
  • • As a result of the District’s discriminatory and inappropriate practices and procedures, the Student has and will continue to suffer harm and deprivation of a FAPE. (Ex. A.10-13)

As for the 2020-2021 SY, the Parent alleged the following:

  • • The Student was placed in a more functionally appropriate class this year however his teacher does not know REDACTED and no REDACTED was provided despite the September 2019 FOFD;
  • • A discussion regarding transition centered around changing the Student’s goals to weigh more heavily on his ADL and functional skills and large concepts and less on academics;
  • • The Parent was told that someone from the school would call her to provide her with information regarding post-graduation programs and services; however, she never received a call;
  • • No transition services were addressed and transition planning was wholly inadequate;
  • • Despite clear evidence that 1:1 ABA is benefitting the Student, and the school’s concurrence as such and the Parent’s repeated requests, the team did not include ABA-SETSS on the Student’s IEP. The School Psychologist stated, as she did in previous IEP meetings, that ABA is “separate” and cannot be included on the IEP. She indicated that for ABA to continue the Parent needs to request a hearing and an Order from the IHO;
  • • The team did not include the services because the District has blanket policies prohibiting IEP teams from recommending 1:1 instruction, ABA and home-based services on an IEP unless they are ordered by a hearing officer;
  • • To date, the Parent has not received a copy of any IEP generated as a result of the May IEP meeting. She received an IEP Progress Report on or about June 24, 2020 indicating some of the goals; and
  • • The May 2020 IEP meeting was fraught with substantive and procedural errors, which denied the Student FAPE.[9] (Ex. A.15-17)

This is the backdrop in which I weigh the District’s recommendations, ever mindful that the District has the burden of proof. In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

The District bore the burden of both production and persuasion to establish that they provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. (“SRO No.”) 16-028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016).

In this case the District did not demonstrate that their program was appropriate for the Student. Rather I am left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the deliberations that may or may not have contributed to their final recommendations.

They did not call any witnesses to demonstrate that the IEP was appropriate or how it would be implemented in the District school and failed to demonstrate that they provided a FAPE. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. I, therefore, rule for the Parent and find there was no FAPE for the 2019-2020 and 2020-2021 SYs iii. Conclusion

Upon review, I find that the District failed to demonstrate that they provided the Student an IEP tailored to meet his individualized needs for the SY. I, therefore, rule for the Parent.

IV. Compensatory Education: What is the Appropriate Remedy for Denial of a FAPE? a. Compensatory Education Legal Standard

Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001].

Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]).

Likewise, SROs 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 (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO 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 the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]).

In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate 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"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]).

Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014. b. Analysis i. Student Progress

Parent – Testimony The Parent testified that remote learning was not effective for the Student. (Ex. JJ-4) The Student’s behaviors during remote learning consisted of “[throwing] himself on the ground and [having] tantrums or sometimes he jumped when [the Parent] tried to put him in front of the computer screen – or iPad. He hurts himself too.” (Ex. JJ-4) The Student’s report card also stated he was not able to navigate the technology recommended to support his at home learning. (Ex. JJ-4) The Parent said the Student “needs supervision all the time because of his behavior. These behaviors are not only dangerous and inappropriate but prevent him from learning. He made progress with his behavior until the school closed because of Covid-19.” (Ex. JJ-6)

When the Student started at-home services, the Parent stated the Student “was like a new person. His face changed and he was happy. He sits in his chair and likes to learn. He never understood why one day he was in school every day with other people and the next he was home for months with just his family.” (Ex. JJ-4)

The Parent also described the effectiveness of parent training: “Through parent training, I’ve learned different methods of how to try to control [the Student].... my family has also learned how to better communicate with him given his limited vision and hearing.” (Ex. JJ-5)

BCBA - Testimony The BCBA testified that “[u]pon restarting in-person services with [the Student] in July of 2020, I observed sharp increases in his maladaptive behaviors (aggression, SIBs, self-pleasure) and non-compliance to instruction.” (Ex. LL-14) In response to the severe aggression shown by the Student, the BCBA reduced the frequency of demands during session and increased the frequency of his breaks until there were decreases in his maladaptive behavior. (Ex. LL-14) The original direct service provider for the Student returned at the beginning of August 2020 and provided 35 hours per week of at home services for the Student. (Ex. LL-15) The BCBA said the following regarding the Student’s progress:

[the Student] has made meaningful progress with the current level of service, and as a result, his quality of life has increased as well. However, as noted in Exhibit FF, the March 2021 progress report, he has only received these services relatively recently in his educational career. Given that [the Student] will age out of the educational system soon, it is recommended that [the Student] receive at least an additional year of services after his age out, at the current frequency and duration, to further make progress and help remediate for the lack of these services earlier in his educational career. (Ex. LL-15) ii. Recommendations

Speech Language Pathologist - Testimony The Speech Language Pathologist testified that the Student exhibits maladaptive behavior that interferes with his learning. (Ex. KK-3) For instance, the Student “sits for only about five minutes at a time and has a limited attention span [and] engages in self injurious behaviors.” (Ex. KK-3) The Speech Language Pathologist also noted that the Student sometimes threw his keyboard when he got frustrated. (Ex. KK-3)

The Speech Language Pathologist said that the Student requires one-to-one instruction because he is easily distracted and requires constant refocusing to complete tasks. (Ex. KK-3) She also noted that the Student needs to be taught a more appropriate and functional means to indicate he is tired. (Ex. KK-3)

The Speech Language Pathologist stated that for the Student to make progress, the Student’s at home and school providers “should be pairing REDACTED with his use of the device and speech to the fullest extent possible to provide the Student with the opportunity to develop skills given modeling and communication partner pairing.” (Ex. KK-4) The Speech Language Pathologist also stated the Student needed “to increase his use of his REDACTED software as well as REDACTED to functionally communicate in any customary environments.” (Ex. KK-4) The Speech Language Pathologist also highlighted the need for training to be provided to the Student’s Support Staff:

Most of [the Student’s] staff and support team are still using his device to access language at the single word level and to indicate immediate wants and needs in the context of a familiar routine. In order for [the Student] to make functional gains and use his device to communicate, training must be provided that demonstrates the importance of consistent and ubiquitous use of his device in all customary environments. Prompting for device use should be provided using speech, sign and the device and [the Student] should be given credit for all expressive attempts whether through sign language or device use. (Ex. KK-5)

The Speech Language Pathologist recommendations included the following:

  • • Increasing SLT to 5x45/week to include transitional speech services, build in breaks and have sufficient tirals with the new device
  • • A full-time REDACTED in his classroom;
  • • An REDACTED at home during his ABA sessions;
  • • Ten hours of AT training to ensure new staff is trained on use of device and implementation of new strategies (Ex. KK-5)

BCBA – Testimony (Continued)

The BCBA said that the Student requires 40 hours per week of 1:1 ABA instruction due to the severe limitations in the Student’s skills and his serious behaviors. (Ex. LL-11) The BCBA also recommended the Student receive two hours per week of BCBA supervision/instruction because the Student “needs BCBA supervision to analyze, create treatment plans and train instructors to implement these plans, to address his severe presentation of the aforementioned behaviors. These behaviors are not only dangerous and inappropriate, but often interfere with his instruction.” (Ex. LL-12) The BCBA said the Student made progress during the BCBA instruction.

The BCBA also recommended that the Student continue to receive “two hours per month of parent training and counseling to help the family by providing them with insight in how to deal with [the Student’s behavior outside of instruction.” (Ex. LL-12) iii. Student Transition Plan

Parent - Testimony The Parent testified that she is very worried about the Student after he ages out of school, and that she has not had any discussion about the Student’s transition from school since completing a Level 1 Vocational Assessment in 2018. (Ex. JJ-2) The Parent stressed her need to figure out what benefits the Student may be entitled to and the need for a plan after he finishes school to maintain his dignity and quality of life. (Ex. JJ-2) More specifically, the Parent said the Student “will need some type of programming during the day after he graduates school.” (Ex. JJ-8)

Transition Assessment The Transition Assessment aimed to create a goal for the school and the Student’s family to “create a pathway for a quality of life for [the Student] that includes productive activity, continuous learning, socialization, community access, and life experiences that are enriching and that afford him opportunities to develop his skills and interests.” (Ex. MM-34) The Transition Assessment also acknowledged that the Student will likely require extensive supports for his entire life and will need safeguarding by all who care for him. (Ex. MM-34)

The Transition Specialist recommended a school-based program for the Student, and suggested the continuation of socialization, pre-vocational and functional academics that occur within the school-based context. (Ex. MM-34) The Transition Specialist also recommended the Student increases his focus on independence skills in every area with the expectation he will be more participatory. (Ex. MM-34) It was also recommended that real-world curricular is used in the Student’s transition because:

[the Student]... is less involved in academics and tracked, appropriately, toward work, living and life skills with a functional academic component. Real-world instructional domains include Community, Work, Domestic/Living, Recreation/Leisure with embedded skills that include social, motor, behavior, communication and academics. With these domains, teachers are preparing [the Student] for real life beyond school, and with the least amount of simulation and more natural context. These headings are suggested as IEP annual goals for [the Student’s] plan that will bring his adult preparations to fruition. Functional components should also include money management, health and safety, travel and mobility, and self-determination. (Ex. MM-35)

The Transition Specialist also recommended a priority in the Student’s transition plan should be to include work competencies, exploration, and Independent Living skills, as opposed to Postsecondary Education or Training. (Ex. MM-35) The Transitional Specialist said “[a] supported job or work activity post-secondarily or even in [the Student’s] last year of entitlement could eventually be central to his identity and could create a social relevance that is essential to his healthy development as he emerges into adulthood.” (Ex. MM-35) Additionally, the Transition Specialist reasoned that

[w]orking in a supported, inclusive setting could produce positive educational outcomes by naturally occurring opportunities for productivity, refreshing routines and meaningful work with high expectations, structure, a creative outlet and natural skill development. Work could also produce, in a non-programmatic manner, a sense of belonging that creates a measurable increase in [the Student’s] quality of life; all speak to [the Student’s] identified needs. (Ex. MM-35)

The Transition Specialist recommended that the Student receives ten hours a week of transition services[10] and two hours per week supervision for the provider. (T. 163-164) c. Rationale for Reducing Award

I credit the testimony of the Parent (Ex. JJ), the Speech/Language Pathologist (Ex. KK), the BCBA (Ex. LL), and the Transition Specialist (Ex. MM), about the Student’s special education needs and the services he requires to make progress.

I am reducing the requested award regarding compensatory education because first th3ered appear to be some overlap of services between the ABA provide3rs and the transition service provider. This redundancy the CSE create an appropriately ambitious program can add up to a very expensive award that is not justified in this record. Two, I recognize there are a finite number of hours per week, and the demands of the Student’s school year along with significant hours of services may be daunting. Inherent limits of stamina, pace, concentration and the like could easily place an unintended burden on the Student and the family. I attempt to mitigate these unintended consequences with my order.

Accordingly, I am ordering the CSE to reconvene and create an appropriately ambitious program given the circumstances of this Student, together with compensatory services as a remedy for the years the Student has not received a FAPE (spring of 2019-2020 SY and 2020-2021 SY).

Conclusion

Based upon the extensive record in this case, I find that the District denied the Student a FAPE for the Spring of the 2019-2020 SY and denied the Student a FAPE for the 2020-2021 SY.

It is therefore ORDERED:

  • • The District shall provide a legally valid IEP that comports with the procedural aspects of the IDEA and includes, but is not limited to, the following services:
  • • SLT (5x45 1:1);
  • • OT (3x30 1:1);
  • • PT (2x30 1:1);
  • • REDACTED Services (3x30, 1:1);
  • • Full-Time REDACTED;
  • • Full-Time REDACTED;
  • • 35 hours per week of 1:1 ABA to be provided by an ABA provider of the Parent’s choice at a reasonable market rate, the hours to be divided between home and school at the Parent’s discretion;
  • • 2 hours/week BCBA supervision;
  • • 5 hours per week of 1:1 transition services[11] provided either by the ABA or a separate certified transition specialist or a qualified SETTS teacher with transition and behavioral experience, the hours to be divided between home and school at the Parent’s discretion;
  • • 2 hours/ month Parent counseling and training;
  • • 10 hours of AT training per year
  • • AT in the form of REDACTED device and software
  • • 12-month extended school year for all services; and
  • • Limited travel transportation (maximum 60 minutes) with REDACTED and air conditioning.
  • • Compensatory education comprised of the following:
  • • A bank of 1:1 ABA/ transition hours (35 hours per week) and related services for the 12 weeks that the Student either did not receive due to the pandemic, or received only remote services, to be provided by a BCBA or certified transition specialist of the Parent’s choosing at a reasonable market rate;
  • • 12 weeks x 35 hours = 420 hours ABA;
  • • 12 weeks x 1 hour = 12 hours BCBA;
  • • 12 weeks x 1 hour = 12 hours each of SLT, OT, PT;
  • • 12 weeks x 1.5 hours REDACTED/ REDACTED services = 18 hours
  • • A bank of ABA during Summer 2020 due to unfulfilled ABA mandate = 30 hours;
  • • A bank of 1:1 ABA/ transition hours to be provided by a BCBA or certified transition specialist of the Parent’s choosing at a reasonable market rate, and related services, to be provided by a therapist of the Parent’s choosing at an enhanced market rate, for the failure to provide a FAPE for the 2020-2021 SY and insufficient related services, less services provided through pendency;

i. ABA/ transition services: 15 x 46 weeks = 690 hours ii. SLT: IEE recommendation 5x30 (x 46 weeks = 80.5) but was 3x30 (69 hours) = 11.5 hours iii. OT: IEE recommendation 5x30 (2.5 hours/ week) but was only 3x30

(1.5/ hours/ week) x 46 weeks = 46 hours iv. Additional REDACTED/ REDACTED services (to compensate for lack of REDACTED) of 3x30 = 1.5 hours x 46 = 69 hours The District shall calculate the number of missed sessions within 15 days of receipt of this Decision.

  • • A bank of hours for related services (1:1 OT, PT, and SLT 2x30/ week; REDACTED services 3x30/ week) and 1:1 ABA hours (35 hours per week) for the 4 weeks the Student missed school due to REDACTED, to be provided by providers of the Parent’s choosing at an enhanced/market rate;

i. 4 weeks x 35 hours = 140 hours of ABA ii. 4 weeks x 1 = 19 hours each of OT, PT, SLT iii. 4 weeks x 1.5 = 6 hours of REDACTED/ REDACTED services

  • • All compensatory services awarded should be paid for by the District by direct payment to the providers of the parents choosing;
  • • Compensatory hours shall expire if not utilized on or before the Student’s 23rd birthday;
  • • One year of extended eligibility for special education (eligibility through the 2023-2024 school year), and services including 35 hours/ week 1:1 ABA/ SETTS; 2 hours/ week BCBA supervision; 5 hours/ week 1:1 transition services (can be incorporated into ABA/ SETTS provided by either BCBA or certified transition counselor); 2 hours/month transition supervision; 2 hours per month parent training and counseling; full-time REDACTED; full-time REDACTED; 1:1 SLT 5x45/ week; REDACTED 3x30/ week; 1:1 OT 3x 30/ week and 1:1 PT 2x30/ week.
  • • Ten hours of AT training.
  • • The District to fund an agency identified by the Parent to provide five hours per month of translation of documents and/or interpretation by phone, text, email or in-person. Hours not to expire until July 30, 2024.
  • • Equitable and compensatory relief fund an agency identified by the Parent to provide ten hours per month of translation of documents and/or interpretation by phone, email or in-person.

Dated: April 1, 2022

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.

Footnotes

[1] A hearing was held on December 3, 2020; December 16, 2020; March 16, 2021; May 11, 2021; July 8, 2021; August 17, 2021; September 13, 2021; September 23, 2021; October 5, 2021; October 25, 2021; November 18, 2021; and December 8, 2021.

[2] NYCRR Part 200(zz)(8) Multiple Disabilities means concomitant impairments (such as intellectual disability-blindness, intellectual disability-orthopedic impairment, etc.), the combination of which cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness.

[3] REDACTED is an abbreviation for several of the features common in the disorder: REDACTED

[4] Adapted Physical Education (2x week); Special Class – Math, REDACTED (6:1+1, 5x week); Special Class – ELA, English (6:1+1, 5x week); Special Class – Social Studies, REDACTED (6:1+1, 5x week); Special Class – Sciences, REDACTED (6:1+1); REDACTED Services, Individual, English (3x30); OT, Individual, English (2x30); PT, Individual, English (2x30); REDACTED Services, Individual, English (Daily, Full Time 1:1); SLT, Individual, English, (2x30); AT – REDACTED.

[5] Vehicle and/or Equipment Needs - REDACTED

[6] IEP was to be amended to include: SLT (3x30, 1:1); OT (3x30 1:1); PT (2x30, 1:1); REDACTED Services (2x30, 1:1); REDACTED Services (2x30, 1:1); a full-time REDACTED and full-time REDACTED, as well as 40 hours per week of ABA; ABA, SLT, OT and PT not to expire; and ordered AT per an independent evaluation.

[7] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

[8] The Parent cited the following flaws: The District failed to recommend 1:1 ABA services; The District failed to recommend 1:1 instruction; The District failed to recommend home-based services; The District failed to appropriately reevaluate and failed to have sufficient evaluations to support the IEP recommendations; The IEP team pre-determined the IEP, program, and placement recommendation; The IEP team applied illegal blanket policies and practices with respect to the development of the Student’s IEP; The IEP team did not make decisions based upon the Student’s individual needs; The Parent was not permitted to add or review the draft IEP. Thus, the Parent was denied any input into the IEP development; No documents were provided to the Parent in her native language; The IEP team did not take into consideration the recommendations of the Student’s teachers in drafting the IEP goals and services; The IEP team was not properly constituted; upon information and belief, the team did not have required members and, if those individuals were present in name/title, they did not possess the required knowledge, training, or independence to properly formulate a legal IEP; The IEP did not include a sufficient description of the Student and his present levels of performance, strengths, and weaknesses across all domains, settings, and people. The present levels of performance in each area were not specific and therefore it would be impossible to measure progress; The IEP goals were not appropriate or sufficient to address all of the Student’s needs and the way in which his disability impacts his ability to learn and make progress in the general curriculum; further, the goals were vaguely written and did not include clear measurable targets and appropriate evaluation measures; The evaluation, IEP, and placement process did not meet the standards for providing FAPE to children with multiple disabilities as set forth by the NYS Education Department in the Commissioner’s Regulations Part 200.16; The IEP team failed to consider the functional grouping of the program it recommended and failed to include that information on the IEP; The Parent was not provided with adequate translation and interpretation services during the IEP meeting and throughout the IEP development process; The IEP team failed to evaluate, consider or recommend appropriate Assistive Technology for REDACTED, even though he has severe communication deficits and an independent AT evaluation was available but not considered; The District failed to recommend adequate AT and AT training at school and at home for the purposes of transition services; The goals and services failed to sufficiently address the myriad of ways that the Student’s disability impacts his academic performance. Further, they failed to adequately address his needs in other areas, including but not limited to ADL skills, behavior, focusing/attention, tantrums, social interaction, generalization, self-care skills, community integration, his ability to ascertain danger, and sensory integration; The IEP does not contain peer-reviewed, research-based methods, although such methods were feasible; The related service recommendations are insufficient to meet the Student’s needs; The IEP was not based upon legally sufficient evaluations and the independent evaluations were not considered; The IEP team did not include positive behavioral support services or a Behavior Intervention Plan even though the Student’s behavior significantly interferes with his ability to make progress; The District failed to recommend adequate AT and AT training at school and at home for the purposes of transition services. The District has failed to conduct a thorough transition services assessment and to offer transition services to the Student such as academic remediation and technology training to enable him to be prepared for living at home, volunteering or employment; and Substantively, the IEP and placement failed to offer a FAPE. (Ex. A.11-12)

[9] The Parent cited the following flaws: The District failed to recommend 1:1 ABA services; The District failed to recommend 1:1 instruction; The District failed to recommend home-based services; The District failed to reevaluate or consider the independent evaluations it had; The IEP team pre-determined the IEP, program, and placement recommendation; The IEP team applied illegal blanket policies and practices with respect to the development of the Student’s IEP; The IEP team did not make decisions based upon the Student’s individual needs; The Parent was not permitted to add or review the draft IEP. Thus, the Parent was denied any input into the IEP development; No documents were provided to the Parent in English nor in their native language; The IEP team did not take into consideration the recommendations of the Student’s outside providers in drafting the IEP goals and services; The IEP team was not properly constituted; upon information and belief, the team did not have required members and, if those individuals were present in name/title, they did not possess the required knowledge, training, or independence to properly formulate a legal IEP; The IEP did not include a sufficient description of REDACTED and his present levels of performance, strengths, and weaknesses across all domains, settings, and people. The present levels of performance in each area were not specific and therefore it would be impossible to measure progress with respect to goals if the Student moved classes; The IEP goals were not appropriate or sufficient to address all of the Student’s needs and the way in which his disability impacts his ability to learn and make progress in the general curriculum; further, the goals were vaguely written and did not include clear measurable targets and appropriate evaluation measures; The evaluation, IEP, and placement process did not meet the standards for providing FAPE to children with multiple disabilities as set forth by the New York State Education Department in the Commissioner’s Regulations Part 200.16; The IEP team failed to consider the functional grouping of the program it recommended and failed to include that information on the IEP; The Parent was not provided with adequate translation and interpretation services during the IEP meeting and throughout the IEP development process; The IEP team failed to evaluate, consider or recommend appropriate Assistive Technology for the Student, even though he has severe communication deficits and an independent AT evaluation was available but not considered; The District failed to recommend adequate AT and AT training at school and at home for the purposes of transition services. The goals and services failed to sufficiently address the myriad of ways that the Student’s disability impacts his academic performance. Further, they failed to adequately address his needs in other areas, including but not limited to ADL skills, behavior, focusing/attention, tantrums, social interaction, generalization, self-care skills, community integration, his ability to ascertain danger, and sensory integration. The IEP does not contain peer-reviewed, research-based methods, although such methods were feasible; The related service recommendations are insufficient to meet the Student’s needs; The IEP team did not include positive behavioral support services or a Behavior Intervention Plan even though REDACTED’s behavior significantly interferes with his ability to make progress. The District has failed to conduct a thorough transition services assessment and to offer transition services to the Student such as academic remediation and technology training to enable him to be prepared for living at home, volunteering or employment; and Substantively, the IEP and placement failed to offer a FAPE.

[10] Community and home-based services, full-time services in school.

[11] The 10 hours of transition services can be integrated into [the Student’s] ABA program and conducted by either a certified transition specialist, or BCBA with transition experience.