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CASE NUMBER: 545334- NYC: 201918
FINDINGS OF FACT AND DECISION
Case Number: 201918
Student’s Name[1]:[Redacted] (“Student”)
Date of Birth: June 5, 2001
School District: 31
Hearing Requested by: [Redacted] (“Parent”)
Request Date/Date Complaint Filed: September 28, 2020
Date(s) of Hearing: February 5, 2021
February 3, 2022
April 11, 2022
October 12, 2022
Actual Record Closed Date: November 15, 2022
Date of Decision: November 23, 2022
Date of Distribution if Different than Decision Date: November 23, 2022 Hearing Officer: Linda Agoston
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 5, 2021
For the Student:
[Redacted], ESQ, Attorney
For the Department of Education:
[Redacted], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 3, 2022
For the Student:
[Redacted], ESQ., Attorney
[Redacted], Parent
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 11, 2022
For the Student:
[Redacted], ESQ., Attorney
[Redacted], Parent
[Redacted] Ph.D., BCBA
For the Department of Education:
[Redacted], ESQ., Attorney
[Redacted], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 12, 2022
For the Student:
[Redacted], ESQ., Attorney
For the Department of Education:
[Redacted], ESQ., Attorney
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (IHO) on Parent’s Due Process Complaint (DPC) filed on or about September 28, 2020. (P-Exh. I)[2].
On January 19, 2029, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415(f)(1). The hearing was convened at the request of the Parent which was received on September 28, 2020 and amended on March 3, 2021. A pre-hearing conference was held on April 23, 2021. I scheduled a pendency hearing for February 5, 2021. On February 5, 2021, I ordered that per the unappealed impartial hearing officer's decision dated March 6, 2019 (P-Exh. B at 7), the Department of Education (DOE) provide the Student with the following program and services: (1) Placement at an non-public school (NPS) at [Redacted]; (2) Full-time crisis management paraprofessional (1:1),Transportation paraprofessional both to and from [Redacted]; (3) Special education transportation; 25 hours per week of home-based applied behavior analysis/special education teacher support service (ABA/SETSS); (4) Counseling Services, twice per week for 60 minutes per session on an after-school basis; (5) Occupational Therapy (OT), 4 times per week for 30 minutes per session on an after-school basis; (6) Physical Therapy (PT), 5 times per week for 30 minutes per session on an after-school basis; (7) Speech and Language Therapy (SLT), 9 times per week for 30 minutes per session on an after-school basis; (8) 5 hours per week of ABA from a board certified behavior analyst (BCBA) 5 times per week for 60 minutes per session; (9) SLT 4 times per week for 45 minutes per session; (10) After-school ABA/SETSS, OT, PT, SLT, Counseling, and ABA/BCBA as 12- month 52-week services; a 12-month 46-week school year at [Redacted], paraprofessionals and special education transportation, related service authorizations (RSA) and/or direct funding through the IHO implementation office for the home-based related services of OT, PT and SLT(P-Exh. B at 7).
Hearings were held on February 5, 2021, February 3, 2022, April 11, 2022 and October 7, 2022. The large number of extensions from April 13, 2022 through November 15, 2022 were due to the Parent's attorney's attempts to resolve this matter in federal court and to write the closing statements. The parties moved to extend the compliance date during the course of the hearing. 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 the matter. Accordingly, the requests for extension of the compliance date were granted (T.325-330; IHO Exh. I-XIX).
On November 15, 2022, the Parent's representative submitted his closing statement (P-Exh.T) and the District representative submitted a closing brief (IHO-Exh.XX). The current record close date is November 15, 2022 and the decision due date is November 29, 2022. The Parent was represented by [Redacted], ESQ. The DOE was represented by [Redacted], ESQ. The Parent entered into evidence exhibits (P-Exhs.A-S)[3]. Appended to the record are the names of the persons who attended and documents submitted into evidence.
The record was closed on is November 15, 2022.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
The Student is [Redacted] years old, and has been Autism Spectrum Disorder (ASD) Cerebral Palsy, Epilepsy, Verbal Apraxia and Reactive Airway Disorder (RAD), with extensive deficits in all areas of speech and language including receptive and expressive language, pragmatics, semantics, prosody and fluency as well as deficits in oral motor skills and articulation/phonology (P-Exhs. K at 1;O at 1).
By email dated January 4, 2019, the Parent was notified by the Clinical Coordinator of [Redacted] that a [Redacted] and the Clinical Coordinator, noted that the Student had marks on his body and scratches on his head and body (P-Exh. G at 1).
A psychoeducational evaluation dated April 29, 2019, was conducted when the Student was 17 years old by a licensed psychologist, who noted that he was attending [Redacted] and was diagnosed with ASD, Cerebral Palsy, Epilepsy, Verbal Apraxia, and RAD(P-Exh. K at 3). The evaluator noted that the Student attended [Redacted] with a 1:1 full-time crisis paraprofessional and transportation paraprofessional and "had a tendency to engage in high rates of non-compliant and aggressive behavior "(Id.). She assessed the Student's cognition on the Stanford-Binet Intelligence Scales-Fifth Edition(SB-V)and the Student performed at the <0.1 %tile on Abbreviated IQ test. The evaluator noted that the IQ score was consistent with previous testing conducted in 2014 as he obtained a score of 43 on the SB-V, in the 0.1 %tiile (P-Exh. O at 2). The evaluator assessed the Student's daily living skills (DLS) on the Vineland-3 and found his communication score of 20 indicated that he performed at the <1. %tile, his DLS score of 30 was below the 1st %tile and his socialization score of 20 was below the 1st %tile. The evaluated noted that the Student engaged in repetitive stereotypical behaviors and became upset when his routines were changed (Id.).
The Level I Vocational Interview was conducted on April 3, 2019, and no information was provided (P-Exh. M).
An FBA was conducted by [Redacted] on May 30, 2019, by a BCBA, who noted that the Student had "[Redacted]]" (P-Exh. P at 1). The target behaviors were self-injurious behavior (SIB) and aggression and during a direct observation the BCBA noted that the Student "[Redacted] " (P-Exh. P at 2.) The BCBA concluded that the Student did not demonstrate communication skills and would benefit from generalization programming as his behavior could be "[Redacted] "(P-Exh. P at 8).
On December 1, 2020, and January 12, 2021, the CSE met and developed an IEP and classified the Student with autism and recommended a NYS Approved NPS in a special class of 6:1:+2 as well as direct service of SETSS for 15 periods per week and related services of individual counseling 5 times per week for an hour per session; individual OT 4 times per week for 30 minutes per session; individual PT 4 times per week for 30 minutes per session and PC/T once monthly for an hour; individual SLT 9 times per week for 30 minutes per session individual SLT 4 times per week for 45 minutes per session as well as a fulltime individual paraprofessional for behavior and an individual transportation paraprofessional and a dynamic display speech generating device (SGD) (P-Exh Q at 52-52). The IEP indicated that the Student performed at the beginning of first grade in reading and in math (P-Exh. Q at 59).
The Behavior Intervention Plan (BIP) developed on August 9, 2019 and reviewed on April 4, 2021, indicated that a token economy plan was used to decrease the targeted negative behavior of aggression and SIB and non-compliance (P-Exh. F at 1) and that strategies for crisis intervention and prevention, revised (SCIP-R) was used for crisis management if the Student's behavior escalated and a [Redacted] (Id.).
A Speech and Language Progress Report dated January 24, 2022, noted that the Student presented "with severe and global speech and language deficits" due his ASD and had "fluctuating tone Cerebral Palsy, Epilepsy, RAD (Reactive Airway Disorder), and a mood disorder"(P-Exh.F at 1). The Speech Pathologist noted that the Student used an augmentative and alternative communication (ACC) device to help others understand his words, specifically Proloquo2Go on the iPad mini to increase communication skills and noted that his diagnoses of Cerebral Palsy, Oral Apraxia and Apraxia of Speech meant his verbal output varied "[Redacted] " (P-Exh. K at 2).
A Counseling Summary conducted by the Licensed Behavior Analyst (LBA) on January 24, 2022, indicated that the Student received at home: "5 hours of counseling, 25 hours of SETTS as well as 4 x 30 OT and PT and Speech therapy 9 x 30 and 4 x 45" (P-Exh. I at 1). The LBA noted that he used Proloquo2Go to communicate his needs and was able to request independently; however, due to his oral apraxia, he was able to articulate only a few words and without his device he would [Redacted] (Id.). The LBA indicated that his SIB included "[Redacted] " (P-Exh. I at 2) and his [Redacted] behaviors included "[Redacted] " (Id.). The LBA noted that his aggressive actions included " [Redacted] " (Id). The LBA recommended that the Student "continue to receive 25 hours of SETSS, 5 hours of BCBA/Counseling per week, 4 x 30 OT and PT and Speech therapy 9 x 30 and 4 x 45. Additionally, the transition from CSE to adult services... [for] 10 hours of vocational training per week and 2 hours of transition coordination" (P-Exh. I at 3).
A Functional Behavioral Assessment (FBA) was conducted on various dates in May 2021, by [Redacted] Ph.D., BCBA-D, who noted that as a result of "COVID-19, he did not attend school from March until September 2020. He returned to a hybrid school model from September to early November 2020. Because of the ongoing COVID-19 outbreak, [the Student] has not attended school since November 2020 (P-Exh. R at 1). Dr. [Redacted] noted that the Student communicated through a communication device called Proloquo2Go, an ACC app with symbols, purchased by the Parent (Id.). Dr. [Redacted] indicated that the Parent reported that the Student's aggression and SIB started when he was about 12-13 years old and that the Student did not possess safety awareness or regard for others and was easily frustrated and agitated (Id.). She targeted his behavior by the use of the Questions About Behavior Function (QABF) forms collected from the Parent, the in-home SETTS/ABA provider and the Behavior Specialist at [Redacted] and targeted his SIB and aggression (P-Exh. R at 3). Dr. [Redacted] determined that the severity of Student's targeted behaviors by the use of the Aberrant Behavior Checklist - Community (ABC-C) and noted that the ABC-C was administered to his parents, his in-home LBA, and to the behavior specialist at [Redacted]. The ABC-C measured domains of Irritability; Agitation; Crying; Stereotypic Behavior; Hyperactivity/Noncompliance & Inappropriate Speech. She noted that the higher the score, the worse were his symptoms (P-Exh. R at 4). She reported that the results of the ABC-C scores were "[Redacted] " (Id.). Dr. [Redacted] recommended "a full-day, extended school year program that is entirely based on the principles of behavior (i.e., ABA) provided in a small, highly structured classroom... fulltime 1:1 ABA instruction throughout the school day, along with increased home-based 1:1 ABA" (P-Exh. R at 10) and "continued in-home SETTS-ABA provided by a LBA or a special education teacher with expertise in ABA... at a level of 40 hours per week" (Id.). She noted that because the Student was [Redacted] above the mean for his age and gender, he required "[Redacted] " (Id.) She further recommended that the Student receive 2 years of compensatory education for the school year 2019-2020 and 2020- 2021; his compensatory program should be equivalent to full days of instruction/services due to the "[Redacted] " (P-Exh. R at 11).
The Parent alleged in the first DPC dated September 24, 2020, that the DOE failed to provide a free and appropriate public education (FAPE) for the 2020-2021 school year (sy) as the DOE failed to timely or adequately evaluate the Student, did not develop a legally appropriate Individualized Education Program (IEP), BIP and placement and did not follow the procedural requirements and did not afford the Parent with meaningful participation in the development of the IEP, BIP and placement (P- Exh. A at 1). The Parent further alleged that the "DOE violated Section 504 and the IDEA by adopting and implementing systemic and blanket policies regarding special education service delivery that have affected the services offered to [the Student]" (Id.). The Parent alleged that the most recent IEP developed on August 15 or 19, 2019 was the first IEP developed for the Student since 2016 (P-Exh. A at 2). The Parent alleged that the Findings of Fact and Decision (FOFD) in Case # 174226 (P-Exh. H) (2019 FOFD) resulted in a finding that the DOE denied the Student FAPE for the 2018-2019 sy (P-Exh. A at 5). The Parent further alleged that the DOE had no program or placement for the 2019-2020 sy and terminated services as of June 30, 2019 and filed another DPC the lack of FAPE for the 2019-2020 sy that resulted in a FOFD Case #184951 (P-Exh. B) (2020 FOFD) that was not appealed by either party (P-Exh. A at 5). The Parent alleged that her first DPC dated September 28, 2020, as the DOE did not offer an IEP for the 2020-2021 sy (P-Exh. A at 8). The Parent argued that the DOE did not offer ABA directly on an IEP and that due to the "DOE's ban on ABA and the NYSED licensing requirements" there was "a shortage of LBAs in New York available to implement hearing orders" (P-Exh. A at 8).
The Parent alleged in the amended DPC dated April 15, 2020, that the DOE failed to timely and completely evaluate the Student for the 2020-2021 sy and did not develop a legally appropriate IEP, BIP and placement and did not follow the procedural requirements and did not afford the Parent with meaningful participation in the development of the IEP, BIP and placement (P- Exh. C at 1). The Parent further alleged that the DOE "did not offer [the Student] FAPE following the 2020 FOFD; did not make FAPE available when the 2020–2021 school year began in July 2020; and did not convene an IEP, as directed in the 2020 FOFD, until months after the FOFD" (P-Exh. C at 7). The Parent argued that the Student was entitled to transition services and transitions assessments and that his program lacked transition/vocational plans and supports (Id.). The Parent further argued that the DOE failed to address his "needs for communication, ADL skills, leisure time at home, generalization, community-integration, and safety in the community and at home" (P-Exh. C at 8). The Parent asserted that the Student was entitled to assistive technology (AT) and an iPad to facilitate language development and that he was a "qualified individual with a disability pursuant to Section 504 and has been subjected to discrimination by the DOE based on his disability" (P-Exh. C at 9). The Parent asserted that she was entitled to a finding that the DOE failed to provide the Student with a FAPE for the 2020-2021 sy and violated his pendency rights during the 2019-2020 and 2020-2021 sys and failed to provide appropriate remote instruction since March 2020 and that the Student was entitled to additional and make-up ABA and related services and transitional service for at least 2 years (P-Exh. C at 10).
The Parent filed a second DPC for the lack of FAPE for the 2021-2022 sy (P-Exh. D) in Case No. 221401 on November 12, 2021. The Parent requested consolidation of both cases and I consolidated Case No. 221401 into Case No. 201918. On November 12, 2021, the DPC alleged a lack of FAPE for the 2021-2022 sy in that the DOE failed to timely and adequately evaluate the Student and failed to timely develop legally appropriate IEP, BIP, and placement and failed to follow the procedural requirements of the IDEA. The Parent asserted that the IEP failed to afford the Parent with meaningful participation in the development and implementation of the IEP and BIP (P-Exh. D at 1) and that the DOE violated Section 504 and the IDEA by adopting and implementing systemic and blanket policies regarding special education service delivery that have affected the services offered the Student (Id.). The Parent alleged that the most recent IEP was dated December 1, 2020 but was convened on January 12, 2021 (Exh. Q) and that the neither the pendency nor the 2020 IEP were implemented (P-Exh. D at 2). The Parent alleged that the DOE terminated funding for the Student's "services as of June 30, 2019 (and did not offer to provide those services), although [the Student's last agreed on program included a 52-week school year" (P-Exh. D at 5). The Parent argued that the Student's behaviors were so severe that the Student would "[Redacted] "(P-Exh. D at 7). The Parent argued that the "DOE did not offer the Student "FAPE following the 2020 FOFD; did not make FAPE available when the 2021–2022 school year" (Id.). The Parent asserted that the 2020 IEP and the 2021 IEP meetings did not offer FAPE because of the following deficits: (a) the failure to develop a BIP, (b) the failure to address SIB and dangerous behavior, tantrums, Pica, stereotyping, elopements and sensory triggers and failed to provide relevant information regarding the use of restraints, (c) the failure to recommend positive behavior interventions and the failure to discuss the use SCIP-R, (d) the content of the FBA and IEP failed to address the causes and triggers of behaviors, (e) the failure to recommend 1:1 instruction in the school day, (e) the failure to provide training for the Parent and the staff working with the Student, (f) the failure to provide ABA and BCBA/LBA services at home and (g) that the IEP team was not properly constituted and the IEP was predetermined (P-Exh. D at 9).
The Parent further asserted that the 2021 program, placement, and services did not consider and address the long-term and short-term effects of FAPE deprivations over recent year and that the Student was entitled to AT in the form of a communication device to facilitate language development and that the Student was "a qualified individual with a disability pursuant to Section 504 and has been subjected to discrimination by the DOE based on his disability" (P-Exh. D at 9).
The District was defaulted (T.109;168).
The Parent seeks a Final Order for the following:
(1) that the DOE has failed to provide the Student with a FAPE for the 2019-2020, 2020-2021 and 2021-2022 sys and violated Section 504 of the Rehabilitation Act of 1973 (Section 504) (P-Exhs.C at 9; D at 10);
(2) that the Student is entitled to additional and make-up ABA, and related services and transition services and, at minimum, 2 years after his IDEA eligibility ends in June 2022, based on the DOE’s failures to provide FAPE, failures to offer/provide appropriate instruction, in particular behavior interventions; and pendency violations for the 2019-2022 and the 2020-2021 and the 2021–2022 sys (P-Exhs. C at 9; D at 11);
(3) that the DOE will fund the following compensatory education hours of ABA/SETSS for 40 hours per week for 52 weeks for the lack of FAPE for the 2020-2021 sy and 2021-2022 sys and for 14 weeks for the time period of March 2020 to July 2020 for a total of 118 weeks as well as 3 hours per week of supervisor BCBA/ABA for 118 weeks of supervisor BCBA/ABA (P-Exh. S at 26).
ISSUES
Did the DOE fail to provide a FAPE for the 2020–2021 and 2021-2022 sys and fail to provide FAPE from March 2020 to June 2020 for the 2019-2020 sy and did the failure to provide FAPE for the contested sys constitute a gross violation? Did the failure to address the Student's SIB and the failure to respond to the use of Adverse Behavior Intervention (physical restraints) and the failure to conduct a FBA and BIP to address his interfering behavior and the failure to provide 1:1 instruction in the sole IEP and to implement the IEP or pendency services for the contested sys subject the Student and the Parent to disability-based discrimination under Section 504 as there was no appropriate IEP or placement and no extended year services in the NPS? Was the DOE aware of the potentially dangerous restraints were being used and did the DOE ignore its legal obligations regarding the use of Aversive behavior interventions and did the equities favor the Parent?
FINDINGS OF FACT
Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]). (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student's unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is "reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances"(Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 [U.S. Mar 22, 2017]).
To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy" or "guarantee any particular level of education" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted). FAPE is delivered by a school through the implementation of an appropriate IEP. See Endrew F. v. Douglas Cnty. Sch. Dist., 137 S.Ct. 988, 994 (2017).
Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR ¶ 234 (App. Div. 2011).
The burden of both production and persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].
The DOE has the burden of proof of both production and persuasion as to (a) whether FAPE was provided to the Student and (b) questions relating to relief, as the Parent was not seeking tuition for a unilateral placement in a private school. N.Y. Educ. Law § 4404; see also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 016); see also Application of a Student with a Disability, Appeal No. 11-032 Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.
I find that the District defaulted by its non-appearance on the first date of the evidential hearing (T.109;168).
The Parent's attorney asserted that the "DOE did not defend against any allegations in either DPC and did not present any evidence that it complied with relevant laws and provided FAPE. It is therefore proper to hold the DOE has defaulted (P-Exh. S at 7). I agree and find the SRO has found that allegations that are left unchallenged are deemed as true. (See Application of a Student with a Disability, 01-044). I find that the DOE representative did not establish that a FAPE was offered to the Student during March 2020 to June 2020 of the 2019-2020 sy and the 2020-2021 and 2021-2022 sys.
I credit the testimony of Dr. [Redacted], a holder of a doctorate in developmental and child psychology and employed as a NYS licensed clinical psychologist and a NYS LBA and a BCBA and find that she was a research scientist at NYS Institute for Basic Research and a psychologist in private practice since 2007 and had worked as a BCBA since 2013(T. 228). I credit the testimony and find that she conducted the FBA for the Student (P-Exh. R) on June 4, 2021 (T.229). I credit the testimony and find that she observed the Student and targeted his dangerous behaviors of SIB and aggression (T.233). I credit her testimony that the Student had the highest scores on the ABC-C. I find the higher the score, the worse the symptoms and I credit her testimony that she found that his scores for irritability and agitation across 3 informants were "[Redacted]" (T.235). I credit her testimony and find that the Student's aggression and SIB occurred daily per the graph during September 6, 2020 to May 19, 2021(P-Exh. R at 3) and I credit her testimony and find that the Student required to SCIP-R to address his unsafe behavior and I find that no person at home or at [Redacted] was properly trained in the SCIP-R method(T.245). I credit her testimony and evidence and find that the Student had severe problem behaviors based on the Vineland assessment (P-Exh. R at 6) and find that his DLS were severely delayed (T.246). I find that she recommended 40 hours of 1:1 ABA/SETSS per week to assist him in DLS and a bank of compensatory hours to make up for the instruction times lost due to COVID and lost to him even before COVID to address his behavior (T.250-251;253). I credit her testimony and find that the Student had skills to type into a computer and was able to learn through a lot of repetition and I find she recommended ABA throughout the day by a well-trained behavior therapist (T.256).
I credit her testimony and find that the Student needed 40 hours of ABA/SETSS at a minimum to address his deficits. I find that is behaviors interfered with his education (T.261). I credit her testimony and find that her FBA indicated that she reviewed the graph that indicated the Student had [Redacted] and other concerning behaviors that were not included in the FBA such as [Redacted] (T.266). I credit her testimony and find that the BIP at [Redacted] had a punishment component. I further find that the Student was subjected to a high rate of SCIP-R at [Redacted] (P-Exh. P at 6) and I find that the staff were not properly trained in SCIP-R (T.272).
Because I find that the Student required to SCIP-R to address his unsafe behavior and I find that no person at home or at [Redacted] was properly and adequately trained in the SCIP-R method the DOE failed to provide FAPE for the contested sys. I find that the DOE required to develop an FBA and BIP for the Student interfering behaviors and SIB. I find that the failure to train the staff and the home staff to use the SCIP-R method properly and to provide 1:1 instruction was a violation of Section 504. I find that the Student required 52-weeks of services and I find the failure to provide 12-months of education at [Redacted] was a violation of Section 504. The Parent's attorney noted: "Section 504 provides that '[n]o otherwise qualified individual with a disability... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.' 29 U.S.C. § 794(a). " (P-Exh. S at 4).
I credit the Parent's testimony and find that the Student was [Redacted] and [Redacted] was taller than she was (T.113). I credit her testimony and find that the Student had ASD, cerebral palsy and a seizure disorder, verbal and oral apraxia and OCD as well as reactive airway disease, pica and displayed a variety of aggressive behavior and SIB on a daily basis multiple times per day and was non-verbal and could only communicate with device (T.117-119). I credit the testimony and find that the Student had behavior outbursts at [Redacted] that required SCIP-R to take her son to the floor and restrain her son. I find that no one at [Redacted] was trained in SCIP-R(T.121). I credit her testimony and find that when her son thrashed out to hurt himself or others that he needed to be restrained until he was calm (T.122). I credit her testimony and find that her son required SCIP-R for 10 consecutive days at school, sometimes twice or 3 times per day (T.124). I credit her testimony and that she purchased a communicate device so that her non-verbal son would be able to communicate to her what he wanted to eat (T126). I credit her testimony and find that the Student required assistance and supervision for his DLS to brush his teeth (T.129). I credit her testimony and find that from March 2020 to June 2020, there was remote instruction due to COVID and that he was provided with 3 hours of instruction each week (T.132). I credit the testimony and find that the Student was not able to learn at home from March 2020 to June 2020 without his paraprofessional and I find that there was an increase in his SIB and an increase in his OCD (T.134). I credit her testimony and find that her son attended [Redacted] for the 2020-2021 sy from September 2020 to November 2020 in a hybrid model where he attended school for 2 days or 3 days per week and I find that the school days were shortened, and no instruction was provided during his home days (T.136-139). I credit her testimony and find that after November 2020, [Redacted] closed and all instruction was remote for the 2020-2021 sy and her son received instruction for 3 hours per week without his 1:1 paraprofessional (T.140). I credit her testimony and find that her son regressed academically and behaviorally during remote instruction as he was not attending school and was not socializing, and he did not receive any vocational or transitioning supports (T.142-143). I find that the Student increased his violence toward his brothers as well as herself and his SIB increased until September 2021, when he returned to school full-time (T.144) until January 11, 2022 when [Redacted] was shut down again due to COVID (T.145).
I credit the Parent's testimony and find that she participated in the January 12, 2021 IEP meeting for the 2020-2021 sy and I find that she requested the CSE team provide additional services such as SETSS, SCIP-R training, SLT, OT, PT, counseling or transitional instruction as her son these services missed due to COVID and no school (T.193). I credit her testimony and find that the IEP team told her that she needed to go to a hearing to receive those services such as SETSS, OT, PT, SLT, counseling, a paraprofessional for 52-weeks of school, PC/T, travel training as well as the services of BCBA and vocational services (T.194-199;206). I credit her testimony and find that the CSE team member told her that she was not entitled to those services because her son did not attend a public school (T.206). I credit her testimony and find that her son did not receive any vocational services since 2016. I find that [Redacted] did not provide her son with an appropriate program for the 2020-2021 or the 2021-2022 sys (T.207). I find that the Student required more support to address his academic, behavioral, AT and transitional/vocational needs than the CSE was prepared to provide (T.223).
The Parent's attorney asserted that "disability-based discrimination may occur, and violate Section 504, in an array of circumstances where the child is impacted by the district’s actions (or failure to act) including, inter alia, when the child’s access to education is limited based on his disability or due to the failure to develop a timely IEP or placement (without affording safeguards), application of blanket policies limiting special education services, the failure to comply with an IHO order, and the use of restraints without affording safeguards/protections (P.Exh. T at 4). I agree.
Based on the testimony and evidence I find that the failure to address the Student's SIB and to appropriately use restraints and the failure to train the [Redacted] staff and the Parent in the proper use of SCIP-R, the failure to comply with (P-Exhs. B,H), the failure to develop a BIP and FBA or ensure that the Student received instruction and related services during COVID was a violation of the Section 504.
Based on the testimony and evidence I find the staff at [Redacted] used Aversive Behavior Interventions without a proper training to address the Student's aggression and SIB, and I find the SCIP-R involved multiple staff members restraining the Student as the email noted that a [Redacted] (Exh. G at 1;T.120 ). The Parent's attorney asserted that the DOE did not "adhere with New York laws and regulations regarding the use of Aversive Behavior Interventions" (P-Exh. T at 6). I agree.
The Parent's attorney argued that "the DOE was mandated: to ensure that aversive intervention were only used on [the Student] in emergencies and by properly trained staff (see 8 NYCRR 19.5(d), 200.22(d)); or to obtain an exception to the prohibition on aversive intervention from NYSED specifically permitting the use of aversive intervention with [the Student] and then develop an IEP, FBA, and BIP that explicitly identified: (i) self-injurious and/or aggressive targeted behavior(s); and (ii) aversive intervention(s) to be used to address the behavior(s). See8 NYCRR 19.5(e), 200.22(e)–(f). The DOE/CSE failed to comply with any of the relevant legal requirements and the DOE representatives who conducted the 2021 IEP meeting refused to address, discuss, or even acknowledge the use aversive behavior interventions with [the Student]. See 8 NYCRR 200.22(f)(2)(ii)" (Exh. S at 18). I agree.
Accordingly I find that a FAPE was not offered for March 2020 to June 2020 for the 2019-2020 sy and I find that FAPE was not offered for the 2021-2022 and the 2021-2022 sys. I further find that the deprivation of a FAPE for March 2020 to June 2020 of the 2019-2020 sy and I find that the deprivation of FAPE for the 2020-2021 and 2021-2022 sys impeded the Parent's substantive and procedural rights under the IDEA, and significantly impeded the Parent's opportunity to participate in the provision of a FAPE to her son.
The DOE attorney asserted that "the DOE’s actions to deliver instruction and services to students with disabilities remotely during the closure, those allegations are systemic in nature, and no provision of the IDEA or the Education Law confers jurisdiction upon a state or local educational agency to sit in review of alleged systemic violations (see Levine v. Greece Cent. Sch. Dist., 2009 WL 261470, at *9 [W.D.N.Y. Feb 4, 2009]" (IHO Exh. XX at 2). I disagree and I find that the DOE's position forecloses any relief for compensatory services for missed services.
The Parent's attorney asserted that the "DOE's conduct – in particular, it’s inactions and its abdications of legal obligations under State and Federal law amount to gross violations of the IDEA" (P-Exh. T at 15). I agree. The Parent's attorney asserted that the "hearing covered 28-months (March 2020–June 2022); yet, the DOE only developed one IEP during that time. Ex. Q. Stated differently, the DOE did not even offer a FAPE to [the Student] for 16 months. It is axiomatic that 'a FAPE cannot be offered unless an IEP is issued.' E. Lyme I., 790 F.3d at 450–51 (holding ''a school district's failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP.'' (quoting Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238–39 (2009) (additional citations omitted)" (P-Exh. T at 15). I agree.
Moreover, I find the failure to address the Student's SIB, the failure to respond to the use of Adverse Behavior Intervention (physical restraints) and failure to conduct an FBA and BIP to address his interfering behavior and provide 1:1 instruction in the sole IEP for the contested 3 sys and to keep the Student in an inappropriate placement and the failure to implement the pendency order and the FOFDs was, aggregated, a gross violation.
Accordingly, I further find that the Parents established there was a gross violation of the IDEA for a substantial period of time for the period from March 2020 to June 2020 of the 2019-2020 sy and the 2020-2021 and the 2021-2022 sys.
CONCLUSIONS OF LAW
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) Further, [i]f the student has become ineligible for special education by reason of age or graduation, compensatory education has been awarded 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 [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]).'Appeal No. 11-027"…[C]ompensatory 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.
Compensatory education is an appropriate remedy when, as here, a student does not receive a FAPE. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008); Streck v. Board of Educ. of the East Greenbush Central School Dist., 408 Fed. Appx. 411 (2nd Cir. 2010) (citing Burr v. 11 Ambach, 863 F.2d 1071, 1078 (2d Cir.1988)); parent of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir.1994); Reid ex rel. Reid v. District of Columbia, 401 F.3d 516 (C.A.D.C. 2005); Application of the Dep't of Educ., Appeal No. 12-135; Application of the Dep't of Educ., Appeal No. 11-132. Further, students denied pendency are entitled to make-up services. Student X. v. New York City Dep't of Educ., 2008 WL 4890440 (E.D.N.Y. October 30, 2008).
The DOE attorney asserted that the "Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record"(IHO Exh. XX at 4).
I find that the DOE did not present any evidence demonstrating an equitable bar to relief the Parent is seeking.
The DOE attorney asserted that the "Parent has confirmed that she is not seeking extended eligibility, but only the use of compensatory services beyond the student’s 21st birthday (Tr. at 288-89)" (IHO Exh. XX at 3).
The Parent's attorney noted that "the Parent’s actions have been reasonable and consistent with the IDEA. See C.D. v. N.Y.C. Dep’t. of Educ., 15–CV–2177(ARR)(JO), 2016 WL 3453649, at *20 (E.D.N.Y. June 20, 2016)"(P-Exh T at 11). I find the Parent attempted year after year to obtain the appropriate program and placement for her son and I find that the Parent was the prevailing party in several FOFD (P-Exhs. B, H, J) and I find that the DOE did not comply with the orders year after year.
The Parent is seeking compensatory services for ABA/SETSS and supervision from a BCBA or LBA. The Parent's attorney argued that "Courts of Appeals, including the Second Circuit, have emphasized that relief in IDEA cases should provide no less than the full value of the education denied"(P-Exh. T at 25). The Parent's attorney argued that "the relief was based on the testing and testimony of Parent’s expert, Dr. [Redacted], and utilizing the Reid-Approach" (P-Exh. T at 26). I credit the testimony of Dr. [Redacted] and her findings regarding the Student's scores for irritability and agitation and find as she stated that his behavior was "very, very high, and very concerning" (T.235). I credit her testimony and find that the Student's aggression and SIB occurred daily per the graph during September 6, 2020 to May 19, 2021(P-Exh. R at 3). Moreover, I find that based on her expertise that she recommended 40 hours of 1:1 ABA/SETSS per week to assist him in DLS and a bank of compensatory hours to make up for the instruction times lost due to COVID and lost to him even before COVID to address his behavior (T.250-251;253).
The DOE Attorney asserted that it was " the DOE’s position that the Parent has not met their burden of putting forth “a well-articulated plan” as to what would constituted an appropriate award of compensatory education services. 2010 WL 3563068 at *6" (IHO Exh. XX at 6) and argued that the Parent was not able to specify how the Student did not benefit from "any of the instruction he received while either remote or hybrid. (Tr. at 142)" (Id.). I disagree. I find that the Parent consistently asserted that her son required ABA and his paraprofessional. I credit the testimony and find that the Student was not able to learn at home from March 2020 to June 2020 without his paraprofessional and I find that there was an increase in his SIB and an increase in his OCD (T.134). I credit the testimony and find that the Student was not able to learn at home from without his paraprofessional during hybrid instruction and I find that there was an increase in his SIB and aggression when [Redacted] closed due to COVID.
I find that the Parent has met her burden of proof with respect to the request for compensatory services and for the lack of FAPE for March 2020 to June 2020 of the 2019-2020 sy and the 2020-2021 and 2021-2022 sys under the IDEA and was eligible for relief under Section 504.
ANALYSIS
The Parent's attorney asserted that there should be no unnecessary restrictions on the compensatory services (P-Exh. T at 26) and that the "Parent should be afforded deference in using make-up services so that services can be used on weekends, holiday, at-home, or even in the community. Services should not be constrained when and how they are used. These services should be provided in a flexible manner, given [the Student's] needs and particularly because there is a shortage of ABA providers"(P-Ext. T at 28). I agree.
The Parent's attorney argued that the "hearing record shows that the issue of the providers' rate was not raised during the impartial hearing.”); L.K. v. N.Y.C. Dep’t. of Educ., 16–746, 674 Fed. Appx. 100, *101–02 (2d Cir. Jan. 19, 2017) (summary order) (reversing and remanding for a factual determination as to the reasonableness of ABA services the parents sought reimbursement for)" (P-Exh. T at 27). I agree.
The Parent's attorney further argued that the Student met "the legal standard under Section 504; he qualifies for an additional/extended school year due to COVID and is being denied these services due to his disability, because the DOE is unable to meet his needs in a DOE public school" (P-Exh. T at 22). I agree.
The Parent's attorney further argued "because of [the Student's] Autism and disability, the Parent had no viable alternative but to accept the DOE’s proposed placement at [Redacted]; however, [Redacted] does not participate in the extended school year eligibility"(Id.). I agree.
The DOE attorney asserted that the Parent contributed to the Student's regression as she confirmed that the Student "was never removed and put in a different private school, despite her belief that [Redacted] was inappropriate (Exh. XX at 9). I disagree. I find that the Student required an appropriate placement and I find the failure to appropriately place the Student for a 12-month program for the contested sys and to keep him in an inappropriate placement as the only placement offered to the Parent was not the fault of the Parent. I find that keeping the Student in an inappropriate placement was a violation of FAPE and a violation of Section 504. I further find that the DOE was aware of the improper use of physical restraints and injuries to the Student based on their improper use (P-Exh. F at 1;G at 1;I at 1,2; P at 8). I credit the Parent's testimony and find that she cooperated with the CSE and attended the sole IEP meeting (T.205) and I find that the equities support the Parent.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:
(1) that the DOE has failed to provide the Student with a FAPE for March 2020 to June 2020 of the 2019-2020 sy and failed to provide the Student was FAPE for the 2020-2021 and 2021-2022 sys and that the Parent acted reasonably and the equities favor the Parent;
(2) that the DOE has failed to provide the Student with a FAPE for March 2020 to June 2020 of the 2019-2020 sy and failed to provide the Student with FAPE for the 2020-202 and the 2021-2022 sys and violated Section 504 as the Student was subject to discrimination based upon his disability;
(3) that the Student is entitled to additional and make-up ABA/SETSS, and related services based on the DOE’s failures to provide FAPE, failures to offer/provide appropriate instruction, in particular behavior interventions; and pendency violations for March 2020 to June 2020 of the 2019-2022 sy and the 2020-2021 and the 2021–2022 sys;
(4) that the DOE will fund the following compensatory education: 40 hours of ABA/SETSS per week for 52 weeks for the lack of FAPE for the 2020-2021 and 2021-2022 sys and for 14 weeks for the time period of March 2020 to July 2020 for a total of 118 weeks or 4,720 hours as well as 3 hours per week of supervisor BCBA/ABA for 118 weeks or 560 hours of supervisor BCBA/ABA;
(5) the Services are retroactive to July 1, 2022, when the Student aged-out, so that any services the Parent used while waiting for an FOFD are funded/reimbursed.
SO ORDERED.
DATED: November 23, 2022
/s/ Linda Agoston
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.
APPENDIX A – REDACTION IDENTIFICATION PAGE
Student’s Name: [Redacted]
Date of Birth: [Redacted]
School District:[Redacted]
Parent’s Name: [Redacted]
SUBMIT THIS PAGE TO THE PARENT AND SCHOOL DISTRICT ONLY. DO NOT SUBMIT TO THE NYSED.
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
Exhibit
Document
Date
Pages
Due Process Complaint (DPC)
09/24/2020
11
Findings of Fact and Decision (FOFD) #184951
09/22/2020
7
First Amended DPC (FAC)
04/15/2021
10
DPC
11/12/2021
11
WITHDRAWN
-
-
Behavior Intervention Plan
04/05/2021
4
Email from School RE Occurrences
01/04/2019
1
FOFD #174226
03/06/2019
7
Counseling Summary
01/24/2022
3
FOFD #166696
12/22/2017
6
Speech-Language Progress Report
01/24/2022
3
WITHDRAWN
Vocational Interview
04/03/2019
3
[Redacted] CV
Undated
8
Psychoeducational Evaluation Report
05/02/2019
3
Functional Behavior Assessment
05/30/2019
8
IEP
12/02/2020
61
Functional Behavior Assessment
06/04/2021
16
Closing Statement & Memorandum of Law.
11/15/2022
32
IHO’S EXHIBITS
Exhibit
Document
Date
Pages
I
Decision on Extension
03/5/2021
1
II
Decision on Extension
06/11/2021
1
III
Decision on Extension
07/16/2021
1
IV
Decision on Extension
08/6/2021
1
V
Decision on Extension
09/30/2021
1
VI
Decision on Extension
10/29/2021
1
VII
Decision on Extension
11/29/2021
1
VIII
Decision on Extension
12/15/2021
1
XI
Decision on Extension
01/3/2022
1
X
Decision on Extension
02/3/2022
1
XI
Decision on Extension
02/28/2022
1
XII
Decision on Extension
04/11/2022
1
XIII
Decision on Extension
05/6/2022
1
XVI
Decision on Extension
06/14//2022
1
XV
Decision on Extension
07/27/2022
1
XVI
Decision on Extension
08/29/2022
1
XVII
Decision on Extension
09/25/2022
1
XVIII
Decision on Extension
9/10/2022
1
XIX
Decision on Extension
10/12/2022
1
XX
District's Closing Brief
11/15/2022
10
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.
[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.