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CASE NUMBER: 540194 - NYC: 196890
FINDINGS OF FACT AND DECISION
Case Number: 196890
Student’s Name: REDACTED
Date of Birth: REDACTED
District: REDACTED
Hearing Requested By: Parent
Date of Hearing: March 3, 2021
March 19, 2021
March 24, 2021
April 7, 2021
May 19, 2021
June 21, 2021
July 22, 2021
September 10, 2021
October 25, 2021
November 19, 2021
December 8, 2021
January 10, 2022
February 7, 2022
March 8, 2022
March 29, 2022
March 31, 2022
May 3, 2022
May 31, 2022
June 14, 2022
July 12, 2022
August 5, 2021
August 18, 2022
Actual Record Closed Date: September 28, 2022
Hearing Officer: Judith Schneider, Esq.
An Impartial Hearing was conducted by me remotely via video conference for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of REDACTED (“the student”).
Procedural History
The proceeding was initiated at the request of the parent (hereinafter “the parent”) by correspondence dated August 14, 2020 (Ex. A) I was appointed Impartial Hearing Officer on January 19, 2021. A prehearing conference was held on January 22, 2022. Interim orders providing Independent Educational Evaluations (Neuropsychological, Functional Behavioral Assessment, Feeding) (collectively “the IEEs”) and requiring the re-convening of the CSE were issued in May 7, 2021 and September 17, 2021, respectively. Over 20 status conferences and evidentiary proceedings were held. Scheduled proceedings were adjourned at the request of one or both parties. [1] During the course of the hearing the parent filed a subsequent due process complaint concerning the 2021-2022 school year. Consolidation, objected to by the district and not requested by the parent, was thereafter denied. (T389-396)
Parties moved to extend the compliance date on various occasions for settlement discussions, the IEEs, the reconvening of the CSE, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and closing statements and timely issuance of the decision. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted.
The current compliance date is October 26, 2022.The record closed on September 28, 2022, upon my receipt of the parent’s closing statemen (hard copy) and confirmation that the district had not submitted one.
Positions of the Parties The parent asserts that the district failed to provide a FAPE for the 2019-2020 and 2020-2021 school years. The parent seeks as compensatory educational services: 1,840 hours of applied behavior analysis (ABA) by a BCBA at the rate of $300 per hour; 460 hours of feeding therapy by a BCBA at the rate of $300 per hour; 460 hours of Speech-Language Therapy (SLT) at the rate of $195 per hour; 84 hours of Occupational Therapy (OT) at the rate of $210 per hour; 56 hours of Physical Therapy (PT) at the rate of $250 per hour; transportation via car service as necessary to and from services; and REDACTED interpretation to facilitate communication between the parent and the above specified providers.
The district declined to present a case, did not enter any exhibits into the record, did not present any witnesses, declined to give an opening statement and did not submit a closing statement although an opportunity for that was provided. (T389-396)
Cases Presented The district presented no evidence testimonial or documentary. [2]
Documents submitted by the parent were admitted into evidence. (A list of documents in the record is appended.) The parent presented, in person or by affidavit with witnesses available for cross-examination, the testimony of the evaluators who conducted the IEEs as well as proposed service providers and the student’s mother.[3]
Findings of Fact and Conclusions of Law
A Factual Findings
Persuasive uncontested evidence shows the following:
The student is REDACTED years old with a history of academic and developmental delays and a diagnosis of “Autism Spectrum Disorder With accompanying language and intellectual impairment, Level 3.” She is nonverbal and presents with severe delays in expressive and receptive language. She is unable to produce any words or meaningful expressive language and uses gestures, leading and problem behaviors. She previously attended a pre-kindergarten in an 8:1:2 classroom but has not attended school since about January 2020 due to parental concerns regarding safety. The student requires maximum adult support to stay on task, complete self-help activities (e.g. toileting, handwashing, dressing), imitate actions and following directions. She consistently ignores directives The student requires hand-held assistance during all transitions for safety and, does not engage in purposeful play. She exhibits self-injurious behaviors and a night aide is required. Her eye contact is fleeting and she has significant repetitive and self-stimulatory behaviors. She rarely responds to her name. The student has a severe feeding disorder, requires feeding by an adult, has no skills using a spoon, eats only blended or mashed foods and will drink only from a baby bottle. She mouths various different non-edible items. (Exs. N, O, P, T429) The student has the highest level of needs relative to other students with autism that the neuropsychologist has evaluated. (T474-475)
Evaluators recommended 1:1 ABA therapy throughout a school day, feeding therapy with a behavioral focus, speech-language therapy, occupational therapy and physical therapy and made detailed recommendations concerning appropriate compensatory services in various areas of need; related service compensatory service requests are consistent with relevant IEP recommendations. (Exs I, N, O, P, Q, R, EE, FF, T440-442, 466-468, 523-525)
B Conclusions of Law The DOE bears the burden of proof on the issue of FAPE. N.Y. Educ. L. § 4404 (1)(c). It did not present a case at hearing, submitting no evidence, documentary or testimonial, with regard to that issue. Accordingly, it has failed to establish, as required, that it provided a FAPE for the 2019-2020 and 2021-2022 school years.
The parent seeks compensatory services for the denial of a FAPE in the school years at issue. It is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir. 2008) However, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).” Appeal No. 11-027.
In fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and … 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.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Newington Bd. of Educ., 546 F.3d at 123; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) ("[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").
With regard to compensatory education services when there is a denial of FAPE, the district has the burden of proof and persuasion. Appeal No. 11-091 n. 10. Moreover, t is not sufficient for the district to simply criticize the remedy sought by the parent but rather it must provide credible evidence to support its own view of what is warranted. Appeal No. 11-091. See also Appeal No. 14-014.
In this matter, the parent present substantial, detailed, fact specific and credible evidence as to the student’s need for the compensatory services requested and the basis for the services request. The district did not present any evidence in opposition to the parent’s requested remedy or in support of an alternative remedy. (T) Further, the district did not submit a closing statement and has made no claim that the services sought are not appropriate relief.
Accordingly the relief requested by the parent will be provided as set forth in the Order below.
ORDER
It is Hereby Ordered that the district shall fund, through appropriate authorizations as follows:
1) 1,840 hours of Applied Behavior Analysis (ABA) therapy from a Board Certified Behavior Analyst (BCBA) from REDACTED at a rate of $300 per hour, and in the event that REDACTED becomes unable to complete the hours of services the parent may select a different provider at the rate ordered The parent may elect to utilize a Registered Behavior Therapist (RBT) who is provided with a level BCBA support which is specified in writing by a BCBA to be appropriate;
2) 460 hours of feeding therapy from a BCBA from REDACTED at a rate of $300 per hour, and in the event that REDACTED becomes unable to complete the hours of services the parent may select a different provider at the rate ordered;
3) 460 hours of speech/language therapy from REDACTED at a rate of $195 per hour, and in the event that REDACTED becomes unable to complete the hours of service the parent may select a different provider at the rate ordered;
4) 84 hours of occupational therapy from REDACTED at a rate of $210 per hour, and in the event that REDACTED becomes unable to complete the hours of service the parent may select a different provider at the rate ordered;
5) 56 hours of physical therapy from REDACTED at a rate of $250 per hour, and in the event that REDACTED becomes unavailable to completed the hours of service the parent may select a different provider at the rate ordered;
6) Car service to and from any of the above listed services on an as needed basis;
7) Interpretation services at a rate equivalent to that paid for such services by the district from an appropriately qualified REDACTED interpreter of the parent’s choosing to facilitate communication between the parent and the above listed service providers;
8) The above provided services shall be utilized at the option of the parent but no later than September 2026.
Dated: October 3, 2022
_________/s/_____________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
EXHIBITS
District
NONE
Parent
A 8/14/2020 Due Process Complaint 11 pgs./25/2019 Trilingual Social History 3 pg.
C 3/25/2019 Trilingual Psychological Evaluation 7 pgs.
D 3/25/2019 Trilingual Educational Evaluation 5 pgs.
E 3/28/2019 Trilingual Speech Language Evaluation 5 pgs.
F 3/25/2019 Observation 2 pgs.
G 3/38/2019 Physical Therapy Evaluation 6 pgs.
H 3/29/2019 Occupational Therapy Evaluation 3 pgs.
I 4/16/2020 IEP 20 pgs.
J Current CV of Pediatric Neurologist 7 pgs.
K Current CV of BCBA-Doctoral Level 8 pgs.
L Current CV of Feeding Therapist (BCBA, SLP) 1 pgs.
M 2/8/2021 Info. from Language Line Solutions Website 7 pgs.
N 8/10/2021 Neuropsychological Evaluation 15 pgs.
O 9/8/2021 FBA 29 pgs.
P 8/17/202` Feeding Evaluation 6 pgs.
Q 4/2/2019 IEP 19 pgs.
R 8/16/2019 IEP 20 pgs.
S 3/12/2020 Letter from Parent Atty. To CSE with 2/14/20 letter from student’s pediatrician 3 pgs.
T 4/16/2020 Notice of Eligibility for Partial Services 1 pg.
U 7/17/2020 Prior Written Notice 3 pgs.
V 10/4/2020 Email from Parent forwarding email from OPT staff re student injuries 13 pgs.
W Photos attached to 1/22/20200 email from parent re student injuries 4 pgs.
X Text message from parent re injuries 1 pg.
Y Text message from parent re injuries 1 pg.
Z 1/6/2020 Text messages from parent re injuries 1 pg.
AA Text message from parent re injuries 1 pg.
BB Text message to parent re injuries 1 pg.
CC 7/28/2022 Affidavit of proposed service provider 4 pgs.
DD Undated Data sheet re fees for comp. services requested 1 pg.
EE 8/12/2022 Affidavit of Speech-Language Pathologist 2 pgs.
FF 8/16/22 Affidavit of Occupational Therapist 2 pgs.
Impartial Hearing Officer
I Parent Closing Brief
Footnotes
[1] Parent’s closing comprehensively and accurately sets forth the procedural history in more detail. (Ex. I)
[2] Although the DOE did present one witness in this matter, that witness was solely with regard to the conduct of the requested IEEs and not the case in chief. (T50, 70-73)
[3] A detailed specification of the parent’s witnesses, direct and through affidavit, is accurately set forth in the parent’s closing. (Ex. I)