New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 539469 - NYC: 196190

FINDING OF FACT AND DECISION

Case Number: 196190

Student’s Name: [Redacted] District: [Redacted]

Hearing Requested By: Parent

Hearing Officer: Martin J. Kehoe III, Esq.

Actual Record Close Date: April 27, 2022

Table of Contents

I. Introduction 3

II. Procedural History 3

III. Overview 5 a. Parents’ Position 5 b. District’s Position 6 c. Background of the Case 7 d. Student History 8 e. Legal Background 9

IV. FAPE Analysis 11 a. Did the District Fail to Present a Prima Facie Case? 11 i. Standard 11 ii. Analysis 11

V. Compensatory Education: What is the Appropriate Remedy for Denial of a FAPE? 13 a. Compensatory Education Legal Standard 13 b. Analysis 16 i. Recommendations 16 ii. Student Program 17 iii. Rationale for Award 19 c. Conclusion 20

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.

This case involves a demand for “compensatory education” for the 2020-2021 school year (SY). 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].

II. Procedural History

This litigation follows the disposition of a similar claim concerning the same student that was memorialized in a Finding of Fact and Decision (FOFD) in #181089 dated July 3, 2020. (Ex. B) In the instant case the Parents filed a due process complaint notice, dated July 6, 2020 (#196190 – Ex. A).^[1] The essence of the Parents’ claim is that the District failed to provide appropriate programing for the Student^[2] for the 2020-20212 SY. Specifically, they maintain that Applied Behavior Analysis (ABA) methodology is not only appropriate, but necessary and that the District’s failure to include such programming recommendations is a violation of Free Appropriate Public Education (FAPE). Notably, the Parents continue to place the Student at a District Public School.

After commencing the instant proceeding, on November 10, 2020, the Committee on Special Education (CSE) reconvened and modified the District placement and removed the paraprofessional and reduced the school year (SY) from an extended school year (ESY) to a ten-month SY.

On or about February 22, 2021, the Parents filed a second complaint notice (#206897 – Ex. L) to incorporate the District’s changes from the November 2020 Individualized Education Program (IEP), and requested that both cases be consolidated, as they both pertain to the 2020-2021 SY. The District consented to such a consolidation during the hearing, and I issued a consolidation order on March 26, 2021. (Ex. IHO #1)

Subsequently the Parents filed an additional complaint notice (#223611 – not included in this record) dated January 12, 2022. That case was not consolidated and an order to that effect was made on January 31, 2022. (IHO #3)

The Parents submitted exhibits A-N and called four (4) witnesses: the Board Certified Behavioral Analysis (BCBA) (Ex. I), the Neuropsychologist (Ex. J) Parent/Father (Ex.s K & M), and the Parent/Mother (N). The Parents also submitted a closing brief which is included in this record as IHO #2. The District offered exhibits 1-3 but did not call any witnesses (exhibits 1-3 were admitted over the objection of the Parents). (T. 143)

As a threshold matter and as a foundation piece to the remedy in this case, I have searched the record for a pendency agreement or pendency order. I have not found that document. Nevertheless, it appears that the District has provided a great portion of the program and services outlined in the previous unappealed FOFD (#181089) dated July 3, 2020. (Ex. B)

Throughout the proceedings the Parents alluded that a pendency agreement had been established. In fact, there is a partially executed agreement attached to the documents that accompanied my initial appointment (IHO #2). Throughout the transcripts, the Parents’ attorney refers to a pendency agreement. For example:

“This student will not be prejudiced by such an extension, as he’s currently receiving services pursuant to pendency.” (T. 55)

“Subsequent to that decision, the Parents asserted pendency in that decision in which the parties entered into a pendency agreement.” (Ex. 80)

To the extent that this issue causes friction in the execution of the instant order, I hereby order pendency in this case nunc pro tunc, as of July 3, 2020.

III. Overview a. Parents’ Position In both complaint notices, the Parents allege that the District failed to provide the Student with a FAPE for the 2020-2021 SY. (Ex.s A & L) The Parents assert that the District failed to appropriately evaluate the Student, provide him with an appropriate placement, and develop a procedurally and substantively adequate Individualized Educational Plan (IEP) for the 2020-2021 SY. (Ex.s A & L) To remedy these alleged violations, the Parents seek an IEP that includes the following:^[3]

• • 35 hours per week of 1:1 Applied Behavioral Analysis (ABA) services or 1:1 behavior support throughout school day, pushed into a public program;
• • 12 Month ESY;
• • Special Education Transportation with “Limited Time Travel”;
• • 5 hours per week of 1:1 home-based ABA or 1:1 behavior support;
• • 1 hour per week of BCBA supervision;
• • 1 hour per week of home-based Parent Training;
• • Occupational Therapy (OT) Services in school 2x30 in a group of 2;
• • Individual Speech and Language Therapy (SLT) 2x45 weekly;
• • SLT 1x 45, 2:1;
• • Assistive Technology (AT) Equipment/Hardware/Software. (Ex. A-5)

Additionally, the Parents request compensatory education/additional services for the Student for a denial of FAPE and any violation of pendency including, but not limited to:

• • Make-up instructional hours;
• • 1:1 research-based ABA instruction;
• • Related services, parent training;
• • AT services and training;
• • Transportation to and from the school;
• • Any afterschool or home-based services should be authorized for market rates;
• • Implementation of any recommendations received from independent evaluations;
• • For the District to provide and/or fund AT supports and services as appropriate to assist the Student with learning and developing his language, communication, motor, ADL, and other functional skills. (Ex. A-12)

The Parents also seek reimbursement for any costs relating to the Student’s education; including but not limited to evaluations, transportation, or compensatory education. (Ex. A-12)

The Parents also request that the District fund 1:1 instruction with behavioral support until such time as the District locates a Licensed Behavior Analyst (LBA) and/or provider(s) that satisfy the state credential, if a LBA is not secured to provide services to the Student, at the Parents’ option. (Ex. A-12) b. District’s Position In their due process response, the District denied all the allegations in the Parents’ complaint notice. (Ex. C) The District chose to rest their case on the documentary evidence. (T. 137) The District considered placing the Student in an Integrated Co-Teaching (ICT) class, but rejected that option because:

[The Student’s] needs related to his Autism classification and diagnosis, and ADHD diagnosis, impact his academic progress and warrant highly specialized instruction through a 12:1+1 program, where he has shown growth. [The Student] is performing below grade level in ELA and Math, and his needs include but are not limited to, frequent repetition of learned skills and check-ins for understanding, opportunities for movement breaks, explicit and specific reading instruction, and related services. Academic challenges and changes in routine have manifested in frustration, and unsafe behaviors, and, socially and emotionally, [the Student] has benefited from receiving instruction in a smaller setting, opportunities to earn incentives and the support of a paraprofessional. Members of [the Student’s] school and his parents agreed that an Approved Non-Public School is not warranted based on his progress in the 12+1:1 setting with related services and paraprofessional support. (Ex. C-3)

The actual District recommendation was a 12:1:1 Special Class in a Community School; Counseling Services 1x30 1:1, 1x30 Small Group, OT 2x30 1:1, SLT 1x30 1:1 and SLT 2x30 Group, 1:1 Full-time Paraprofessional, Special Education with Limited Time Travel. (Ex. A) c. Background of the Case

At the start of the 2020-2021 SY there presumably was an IEP in place that recommended a public school placement with related services and accommodations.^[4] (Ex. A)

On November 10, 2020 a CSE meeting was held to develop a new IEP for the Student (Ex. 1) The CSE team recommended the Student be placed in a 12:1:1 special education program, two (2) times per week for science and social studies, fifteen (15) times per week for ELA, and ten (10) times per week for math. The program also included various related services and Assistive Technology (AT).^[5] (Ex. 1)

The Student’s progress report for speech language therapy, dated November 9, 2020, noted that “[a]dequate observations of progress attainment could not be gathered due to inability to make contact with [the Student] in Tele-therapy classes and inability to provide direct intervention.” (Ex. 3) d. Student History The Student carried a disability classification of Autism.^[6] The Student can participate in class and can be outgoing with his peers. (Ex. 1) The Neuropsychologist who evaluated the Student in 2017, wrote in his report:

[The Student] presents with very severe autism spectrum disorder, severe difficulties with ADHD, language-based learning disability and specific learning disabilities in reading, writing and math. He also presents with marked emotional difficulties with oppositional defiant behavior, rule breaking and intermittent difficulties with aggressive behavior. Marked difficulties with sensory integration and possible memory difficulties are indicated as well. (Ex. D)

The Student is diagnosed with pervasive developmental disorder and attention deficit hyperactivity disorder. (Ex.s K, M, & N) The BCBA who develops the Student’s ABA program testified and stated:

Since the initiation of services, [the Student] has made huge strides. He is able to communicate in full sentences, he learned to use replacing behaviors to reduce maladaptive behaviors and he has improved his fine and gross motor skills. [The Student] is also able to complete a variety of tasks using a visual activity schedule and has improved his attending skills at school using a token reinforcing system. (Ex. I)

During the 2020-2021 SY, the Private Agency provided up to 35 hours of 1:1 Special Education Teacher Support Services (SETSS) – ABA in the Student’s placement, five hours of 1:1 SETSS – ABA afterschool and four hours per month of parent training. (Ex. I) The Student was participating in full remote learning in his school and the Private Agency provided 1:1 SETSS/ABA in person at the Student’s home during the school day and a small portion of the services were provided remotely through Tele-therapy. (Ex. I) The program addressed cognitive functioning, speech and language communication skills, social emotional functioning, motor skills and abilities, self–help skills, and communities/vocational skills. (Ex. I) e. Legal Background The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(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.

IV. 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 essentially conceded a lack of FAPE to the extent that they did not defend any recommended program or placement. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. There was no testimony indicating the nature of the CSE deliberations, or even if such deliberations occurred concerning the November 2019 CSE meeting or the November 2020 CSE meeting. Following the hearing on June 21, 2021, I essentially conducted an inquest. Based upon the documents and testimony in the Parents’ presentation I find for the Parents, specifically that the District did not provide a FAPE for the 2020-2021 SY.

The District failed to present a prima facie case. The Parents assert that the IEPs did not offer the Student an appropriate program for the SY at issue, that the program recommendation could not meet the Student’s needs, inter alia.

In fact, a review of the myriad evaluative reports and the testimony of the expert witnesses and Student’s providers (see below) indicate that a program without the supports and services established in the previous year’s hearing (Ex. B) would be inappropriate. A consistent theme in the Parents’ presentation is the value, if not the need, to maintain the status quo for the student, so he may benefit from his education.

When I review the present levels of educational and functional performance in the District’s proposed IEP, I instantly conclude that the past progress is substantially a function of the programming that was orchestrated by the family and the educators who have testified for the Parents in the instant case. (Ex.s B, D,E,F,H,I,J,K,M&N)

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 a final recommendation.

Again, 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. iii. Conclusion

Upon review, I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet his individualized needs. I have determined that the District fell short of their burden of providing any explanation for the recommended program and placement. I, therefore, rule for the Parents that there was no FAPE during the SY in question.

V. 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. Recommendations

1. BCBA

The BCBA stated that although the Student has made progress: “he continues to exhibit maladaptive behaviors (verbal aggression toward himself, threats to hurt himself and others, noncompliance) and he needs to work on essential goals that address his communication skills, coping, attending, self – monitoring, executive functioning, and ADL skills.” (Ex. I) He recommended a full day 1:1 ABA program at school of 35 hours per week and five (5) hours per week of ABA at home as well as two (2) hours per month of parent training and two hours per month of BCBA supervision. (Ex. I) This is the same as the previous years recommendation.

2. AT Evaluator The AT Evaluator recommended 36 hours of AT training. (Ex. H) Additionally, the AT Evaluator recommended a Google-Pixel book with read and write literacy software by Text Help; FastForWord; Google Docs; Co-Writer Universal; Webspiration Classroom; Google Keep; and Audio Recorder Pro. (Ex. H) Again, virtually the status quo from the year before.

3. Neuropsychologist The Neuropsychologist, who evaluated the Student back in June of 2017, discussed some of the Student’s struggles that he observed:

The results of the evaluation indicated that [the Student] presented with very severe autism spectrum disorder, severe difficulties with ADHD, language based learning disability and specific learning disabilities in reading, writing and math. He also presents with marked emotional difficulties with oppositional defiant behavior, rule breaking and intermittent difficulties with aggressive behavior. [the Student] also presented with marked difficulties with sensory integration and possible memory difficulties indicated as well. (Ex. J-3)

However, the Neuropsychologist acknowledged that because the evaluation is dated, this profile of the Student did not hold true anymore.

[A] great deal of change could occur, either in progression or regression of skills, depending on the educational experiences he has over this time period. It is urgent to know his current functioning based not on findings of three years ago, but as he is functioning at the current time. (Ex. J-3)

The Neuropsychologist concluded by stating that he would like to further evaluate the Student. ii. Student Program

1. Parent/Father Testimony The Student’s Father testified that at the beginning of the 2020-2021 SY, the Student received 1:1 ABA from the Private Agency to help via tele-therapy, and received 1:1 ABA therapy in his home while he was receiving remote instruction from his school. At-home, in-person instruction from the Private Agency resumed in August 2020.

The Father testified that during the 2020-2021 SY, the Student received a full day program of a 12 month 1:1 ABA portion in his day program instruction and five hours 1:1 ABA afterschool, with BCBA supervision and parent training. He received his mandated program remotely due to COVID-19 restrictions. The Father stated that the Student made progress in his program: “He is now able to identify and speak when he feels frustrated or has the desire to engage in self-injurious behaviors.” (Ex. K)

According to the Father, on or about January 19, 2021, the Student threatened to physically harm himself in the presence of his 1:1 ABA therapist and was brought to the hospital. The Student’s medication was modified, and he remains under the care of a psychiatrist. The Student then resumed in person 1:1 ABA therapy from his therapist at the Private Agency. The Father stated that on or about March 4, 2021, the Private Agency informed the parents that they could no longer provide the Student with full day 1:1 ABA therapy during the school day and afterschool, and from March 4 through May 25, 2021 (the date of the affidavit) the Student was not receiving any 1:1 ABA therapy, parent training or BCBA supervision. (Ex. K)

The Father requested that the Student receive makeup hours of services he missed from the beginning of the 2020-2021 SY, including 1:1 ABA, parent training and supervision, SLT, OT, and the AT hardware and software that was recommended and awarded at his prior hearing. (Ex. K)

The Father testified after contacting eight different agencies over two and a half months, no agency was able to fulfill the mandate of the Student’s recommended program. Starting on or about April 5, 2021, the Student returned to in person learning at the Private School four days per week and had remote learning on Wednesdays. The Father testified, “[d]ue to the lack of a 1:1 ABA therapist, I am consistently called during the school day to engage in simultaneous videoconferences to calm [the Student] and diffuse escalating behaviors and aggressive verbal communications toward teachers, staff, and peers.” (Ex. M)

2. Parent/Mother Testimony The Student’s Parent/Mother also testified about her difficulties with special education transportation. She stated that after the Student returned to in person learning, the school bus took the Student to a different school (the elementary school, not the upper school). She stated that she immediately notified the bus company and administration at the upper school, but the District failed to correct the error and she had to use private rideshare services to transport the Student to his school. (Ex. N) iii. Rationale for Award

I credit the testimony of the BCBA (Ex. I), the Parent/Father (Ex. K), and the Parent/Mother (Ex. N), about the Student’s special education needs and the services he requires to make progress. As per the Hearing Officer’s prior decision, the Student was ordered a program which included the following:

• • 35 hours per week of 1:1 ABA services or 1:1 behavior support to be pushed-in to the Student’s current District placement;
• • 1 hour per week of BCBA supervision at the Student’s current placement;
• • 5 hours per week of 1:1 home-based ABA or 1:1 behavior support;
• • 1 hour per week of home-based Parent Training;
• • Occupational Therapy Services in school 2x30 in a group of 2
• • Individual Speech and Language Therapy 2x45 weekly;
• • Speech and Language Therapy in a group of 2 weekly;
• • 12-month ESY services; and
• • Special Education Transportation with “Limited Time Travel”
• • Assistive Technology Equipment/Hardware/software Currently, the Student is engaged in the 1:1 ABA program he was previously awarded. (T. 64) The Student is not currently receiving any related services but is receiving services provided by the Private Agency. (T. 64) From March 4, 2021, to May 25, 2021, the Student did not receive 1:1 ABA therapies, parent training, or BCBA supervision. (Ex. M-3) The Student has also not received the AT devices that the CSE promised he would receive from his prior hearing. (Ex. K-4) The Student has also failed to have been provided with proper transportation, as the bus continuously dropped the Student off at the wrong school, causing the Parents to pay out-of-pocket to provide the Student with adequate transportation. (Ex. N-2)

c. Conclusion

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

It is therefore Ordered:

• • This matter is remanded to the CSE for review of this Student’s record as well as the findings from this decision and:
• • Reconvene within three weeks of this order and either
• • Make a recommendation and placement in an appropriate Public School with a similar program, or
• • If deemed appropriate by the CSE, with the consent of the Parents, defer this matter to the Central Based Support Team for immediate placement in a New York State Education Department-approved, non-public school, that includes the programmatic elements such as the following:
• • 35 hours per week of 1:1 ABA services or 1:1 behavior support to be pushed-in to the Student’s current District placement;
• • 1 hour per week of BCBA supervision at the Student’s current placement;
• • 5 hours per week of 1:1 home-based ABA or 1:1 behavior support;
• • 1 hour per week of home-based Parent Training;
• • Occupational Therapy Services in school 2x30 in a group of 2
• • Individual Speech and Language Therapy 2x45 weekly;
• • Speech and Language Therapy in a group of 2 weekly;
• • 12-month ESY services; and
• • Special Education Transportation with “Limited Time Travel”
• • Assistive Technology Equipment/Hardware/software
• • DOE shall within 30 Days of the issuance of The Finding of Facts & Decision issue a written accounting of the services provided to student during the 2020-2021 school year;
• • 1:1 SETTS/ABA Therapy-School Day
• • 1:1 SETSS/ABA Therapy-Afterschool
• • BCBA Supervision
• • Parent Training & Counseling
• • Small Group Occupational Therapy
• • Individual Speech & Language Therapy
• • Small Group Speech and Language Therapy
• • Individual Counseling
• • Small Group Counseling
• • The District shall provide a bank of compensatory services to make up for the lack of FAPE in the 2020-2021 school year and for any time periods during the duration of the administrative proceedings during which the Student did not receive services he is entitled to by law, including any failure of the District to provide pendency or comply with interim orders;
• • 1:1 SETTS/ABA Therapy-School Day
• • 1:1 SETSS/ABA Therapy-Afterschool
• • BCBA Supervision
• • Parent Training & Counseling
• • Small Group Occupational Therapy
• • Individual Speech & Language Therapy
• • Small Group Speech and Language Therapy
• • Individual Counseling
• • Small Group Counseling
• • That the District shall reimburse the Parents for the cost of transportation incurred by the Parents for transporting the Student to and from school during the 2020-2021 SY upon presentation of invoicing for same.
• • To the extent that there is no formal pendency order in this case, I hereby order pendency to be based upon the unappealed FOFD (#181089) dated July 3, 2020. (Ex. B), nunc pro tunc to the date of the filing of the instant complaint notice in this matter, July 6, 2020.

Dated: April 27, 2022 ____________________

Martin J. Kehoe III, Esq.

Impartial Hearing Officer

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 over the following dates: August 28, 2020; September 15, 2020; October 1, 2020; October 22, 2020; November 19, 2020; December 7, 2020; February 23, 2021; March 25, 2021; May 6, 2021; May 27, 2021; June 21, 2021; and February 17, 2022.

[2] An IEP meeting was held for the Student on November 18, 2019. (Ex. C)

[3] The substance of the remedy in the two complaint notices is essentially the same. (See Ex.s A &. L)

[4] The IEP is not in the record but it is alluded to in the Parents’ complaint notice and the District’s response. The date of said meeting was November 18, 2019. (Ex.s A & C)

[5] The related services included the following: individual counseling 1×30; counseling in a group of 3×30; individual OT 2×30; individual SLT 3×30; AT of a Google Pixelbook, Kensington bag, Belkin USB 3.1 USB–C to USB A 3.1, Logitech Bluetooth mouse and wireless headphones.

[6] NYCRR Part 200.1(zz) (1) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.

[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).