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CASE NUMBER: 545479 - NYC: 202062
FINDINGS OF FACT AND DECISION
Case Number: 202062
Student’s Name[1]:[Redacted](“Student”)
Date of Birth: [Redacted]
School District: [Redacted]
Hearing Requested by: [Redacted] (“Parent”)
Request Date/Date Complaint Filed: September 28, 2020
Date(s) of Hearing: April 29, 2021
February 11, 2022
April 13, 2022
Actual Record Closed Date: November 7, 2022
Date of Decision: November 15, 2022
Date of Distribution if Different than Decision Date: November 15, 2022 Hearing Officer: Linda Agoston
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 29, 2021
For the Student:
[Redacted], ESQ, Attorney
For the Department of Education:
[Redacted], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 11, 2022
For the Student:
[Redacted], ESQ., Attorney
[Redacted], Parent
For the Department of Education:
[Redacted], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 13, 2022
For the Student:
[Redacted], ESQ., Attorney
[Redacted], Parent
[Redacted], Ph.D., BCBA
For the Department of Education:
[Redacted], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 10, 2022
For the Student:
[Redacted], ESQ., Attorney
For the Department of Education:
[Redacted], District Representative
[Redacted], DSW, District Representative
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, 2021, 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 April 29, 2021. On April 29, 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; 15 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), twice times per week for 30 minutes per session on an after-school basis; (7) Speech and Language Therapy (SLT), 8 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) 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 Eden II, 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 4(a-m).
Hearings were held on April, 29, 2021, February 11, 2022, April 13, 2022 and October 7, 2022. The large number of extensions from April 13, 2022 through November 5, 2022 were due to the Parent's attorney's attempts to resolve this matter in federal court and to write the closing statement (T.297). 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.194;303; IHO Exh. I-XX).
On November 7, 2022, the Parent's representative submitted his brief (P-Exh.T) and the District representative declined to submit a closing statement (T.304). The current record close date is November 7, 2022 and the decision due date is November 21, 2022. The Parent was represented by [Redacted], ESQ. The DOE was represented by [Redacted] and [Redacted]. The Parent entered into evidence exhibits (P-Exh. A T). The DOE entered into evidence exhibits (D-Exh. 1-6)[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 7, 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 diagnosed with Autism Spectrum Disorder (ASD) and is a [Redacted] diagnosed with ASD (D-Exh. 3 at 3). He has been placed in [Redacted] since 2008, when he was 8 years old (T.167;Exh. 3 at 5).
His most recent diagnoses include attention-deficit/hyperactivity disorder (ADHD), obsessive-compulsive disorder (OCD), Tourette syndrome, apraxia, and speech language delay, unspecified. He is also diagnosed with reactive airway disease, low tone, and aspiration (on thin liquids)" (P-Exh. P at 1).
A neuropsychological evaluation dated June 1 & 14, 2014, conducted when the Student was 13 years old by a licensed psychologist, who noted that he was diagnosed with ASD, mood disorder, oral apraxia, and reactive airway disease (P-Exh.O at 3). The evaluator noted that the Student attended [Redacted] and received academic instruction at home from a special education and ABA teacher and assessed the Student's cognition on the Differential Ability Scales-Second Edition and performed <.1 %tile on the Verbal score and.3%tile on the Nonverbal reasoning score (P-Exh. O at 8). The evaluator concluded that the Student had global developmental delays and severe deficits in social communication, engaged in highly stereotypic behaviors and was highly distractible and whose low frustration tolerance manifested in [Redacted] and [Redacted] (P-Exh. O at 12). The psychologist recommended access to an iPad a strong motivator for positive behavior (P-Exh. O at 14).
On June 15, 2016, the CSE met and developed an Individualized Education Plan (IEP) and classified the Student with autism and recommended a NYS Approved NPS in a special class of 8:1+3 as well as direct service of ABA/SETSS for 15 periods per week at home and related services of individual counseling twice per week for an hour per session; individual OT 4 times per week for 30 minutes per session; individual PT twice per week for 30 minutes per session; individual SLT 8 times per week for 30 minutes per session and PC/T once monthly for an hour as well as a fulltime individual paraprofessional for behavior and an individual transportation paraprofessional (D-Exh. 1 at 34;39). The IEP indicated that the Student performed at the beginning of first grade in reading and at the end of first grade in math (D-Exh. 1 at 39).
By email dated April 16, 2019, the Parent was notified by the Self-Direction Specialist of [Redacted] that the Student engaged in [Redacted] during a break (P-Exh. E at 1) and again on March 29, 2019, by the Clinical Coordinator, who noted that the Student "[Redacted] " (P-Exh. E at 2) and again on January 4, 2019, by the Clinical Coordinator, who noted that the Student had [Redacted] (P-Exh. E at 3).
The Psycho-educational Evaluation dated October 3, 2020, October 26, 2020 and November 28, 2020, indicated that the testing was done remotely by a NYS licensed Psychologist and the Student's cognition was assessed on the Wechsler Adult Intelligence Scale-Fourth Edition and following scores were obtained:.5 %tile on the Verbal Comprehension Index,.2 %tile on the Perceptual Reasoning Index score and.3%tile in the Working Memory Index; all the scores were in the Extremely Low range (Exh. M at 8). His academic skills were assessed on the Wechsler Individual Achievement Test-Third Edition and the evaluator found that his reading comprehension skills were very delayed with a <.1 %tile at the second-grade level, as he "struggled with answering questions within that grade level" (P-Exh. M at 6). The spelling score was <1%tile, as also delayed as he was only able to write basic words and his math reasoning skills were also delayed at a <.1 %tile and his math problem solving skills were delays at a <.1 %tile (Id.). The evaluator assessed his Daily Living Skills (DLS) on the Adaptive Behavior Composite and found that his DLS score was of 20 that corresponded to a percentile rank of <1 his score or was greater than or equal to and < 1% of individuals his age (P-Exh. M at 9). The evaluator concluded that the Student's diagnosis of ASD, ADHD and Mood Disorder manifested in his struggles with engaging with peers and led to aggressive behavior at times (P-Exh. M at 11).
On 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 8:1:+3 as well as direct service of ABA/SETSS for 15 periods per week at home; and direct ABA/SETSS for 5 periods per week at home on a 52 week basis as well as related services of counseling twice for an hour per session; OT 4 times per week for 30 minutes per session; PT twice per week for 30 minutes per session and PC/T once monthly for an hour as well as a fulltime individual paraprofessional for behavior and an individual transportation paraprofessional (P-Exh C at 25-26). The IEP indicated that the Student performed at the beginning of [Redacted] in reading and at a [Redacted] level in math (P-Exh. C at 25).
The BCBA Annual Report was conducted on January 23, 2022, indicated that the Student was receiving 20 hours of in-home ABA and attended Eden II (P-Exh. L at 1). The BCBA recommended that the Student receive 15 hours of SETSS and 5 hours of LBA-SETSS or 20 hours of Verbal Behavior SETSS at home to teach the Student skills that he was unable to learn in school as his stereotypical behavior of echolalia, banging hands on the table and repetitive hand and finger movement impeded his learning (P-Exh. L at 1- 2).
A Speech and Language Progress Report dated January 24, 2022, noted that the Student presented with "severe speech and language deficits related to his diagnosis of Autism Spectrum Disorder (ASD). [The Student] also has a diagnosis of RAD (Reactive Airway Disorder), ADHD (Attention Deficit Hyperactivity Disorder), Tardive Dyskinesia, OCD, Neurological Tics and a mood disorder" and noted that the Student engaged "in [Redacted] " and was "[Redacted] " (P-Exh. J at 1). The evaluator noted that the Student engaged in "[Redacted] " and was also " [Redacted] " (Id.).
The OT Progress Report conducted in January 2022, indicated that the Student required OT to address fine, gross, activities of daily living (ADL), social and community skills and his processing skills and that the Student required "moderate to maximal assistance to navigate his ADLs(P-Exh. N at 1). The OT evaluator concluded that the Student's poor self-regulation and poor frustration tolerance resulted "[Redacted] "(Id.).
A Functional Behavioral Assessment (FBA) was conducted on various dates in January, February and March 2022, and [Redacted], Ph.D., BCBA-D, who noted that the Student was [Redacted] " (P-Exh. P at 2). [Redacted] determined the targeted behavior by the Questions About Behavior Function forms collected from the Parent, the in-home SETTS/ABA provider, and a staff member at Eden II and noted "[Redacted] " (P-Exh. P at 3). Dr. [Redacted] found that the Student "[Redacted] "(P-Exh. P at 7). [Redacted] recommended that "[Redacted] "(Exh. P at 8). She stressed that after observing the Student remotely in a class of 5 students and 6 staff that the Student "[Redacted] " (Id.). [Redacted] recommended "continued in-home SETTS-ABA provided by a LBA or a special education teacher with expertise in ABA" (P-Exh. P at 9). She noted that because the Student engaged "[Redacted], it is recommended that [the Student] receive 30 hours per week of in-home SETTS/LBA ABA service"(Id.). Dr. [Redacted] concluded that the Student "would benefit from compensatory education, specifically in-home SETTS/LBA ABA hours that are equivalent to a school day for each day he remained in an educational program that was not adequately meeting his needs" (P-Exh. P at 10).
The Parent alleged that the DOE failed to provide a free and appropriate public education (FAPE) for the 2019-2020 school year (sy) as the Student had no program or placement for the 2019-2020 school year and the Parent alleged a lack of FAPE for the 2020-2021 sy in the first DPC dated September 28, 2020, as the DOE did not offer an IEP for the 2020-2021 sy (P-Exh. I at 8).
The Parent alleged in the amended DPC dated March 3, 2021, that the DOE failed to timely and completely evaluate the Student as the Student was remotely evaluated in 2021 and asserted that the DOE did not assess his behavioral, vocational/transitional functioning and or his SLT, assistive technology-augmentative alternative communication (AT-AAC) or his motor skills (P-Exh. A at 9). The Parent further alleged that while the DOE was mandated to provide parent counseling and training (PC/T), the DOE never offered PC/T to the family (Id.). The Parent further alleged that while she was the prevailing party in the 2019 Findings of Fact and Decision (FOFD) and the 2020 FOFD (P-Exhs. F-G), the DOE did not implement the orders from both decisions (P-Exh. A at 9). The Parent alleged that by not having a substantively and procedurally valid IEP in place for each sy alleged the DOE violated the Student's right to pendency and violated his Section 504 rights (Id.). The Parent alleged that the Student was entitled to assistive technology (AT) and an iPad to facilitate language development and functional communication and was entitled to transition and vocational services and that he required more intensive teacher to staff ratio and without an appropriate program his behavior would worsen (Id.). The Parent asserted that the DOE never developed a remote learning plan and asserted that the 2021 IEP did not develop a substantively and procedurally valid IEP for 2021-2022 sy because of the following deficits: (a) the failure to develop a behavior intervention plan (BIP), (b) the failure to address dangerous behavior, tantrums, Pica, elopements and the failure to provide information in the use of restraints, (c) the failure to recommend positive behavior interventions, (d) the failure to discuss the use strategies for crisis intervention and prevention, revised (SCIP-R), (e) the failure to address the causes of behaviors, (f) the failure to recommend 1:1 instruction in the school day and the failure to provide ABA and BCBA/LBA services at home and the failure to provide training for the staff (P-Exh. A at 11).
The Parent further asserted that the 2021 IEP did not provide for a school based 1:1 paraprofessional and did not describe his needs for communication and ADL skills and did not adequately describe his present functioning levels and asserted that the team was not properly constituted and challenged the goals as not appropriate or sufficient to address all his needs and alleged that the IEP was pre-determined (P-Exh. A at 12).
The Parent filed a second DPC for the lack of FAPE for the 2021-2022 sy (P-Exh. K) in Case No. 221398 on November 12, 2021. The Parent requested consolidation of both cases and I consolidated Case No. 221389 into . 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. K at 1). The Parent alleged that prior to the IEP developed on January 12, 2021, the DOE had not developed an IEP for over 4 years, since June 15, 2016.
The District submitted the June 15, 2016 IEP (D-Exh. 1) into the record as well as the Attendance page dated June 15, 2016, (D-Exh. 2), the neuropsychological (D-Exh. 3) dated July 15, 2021, the educational progress report (D-Exh. 4), the NPS tracking document (D-Exh. 5) dated July 28, 2016 and the defer to central package (D-Exh. 6) dated July 28-2016.
The District did not dispute any of the factual allegations and rested on the evidence into the record and agreed to all the relief requested by the Parent (T.151;298;300).
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-Exh.K at 11; T. 280);
(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. A at 14; I at 9; K at 11;B at 4(a-m);T.280);
(3) that the DOE will fund the following compensatory education: 30 hours of ABA/SETSS 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 or 3,540 hours (T. 282;299) as well as 5 hours per week of supervisor BCBA/ABA for 118 weeks or 590 hours of supervisor BCBA/ABA; 2 hours of Counseling per week for 118 week or 104 hours; 2 hours of OT for 118 weeks or 118 hours, 1 hours PT for 118 weeks or 236 hours and 4 hours of SLT for 118 weeks or 236 hours (T.300;P-Exh. T at 24).
ISSUES
Did the DOE fail to provide a FAPE for the 2020–2021, 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 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 an FBA and BIP to address his interfering behavior and the failure to provide 1:1 instruction in the sole IEP and 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 did not dispute any of the factual allegations and rested on the evidence into the record and agreed to all the relief requested by the Parent (T. at 151;298;300). I find that the DOE did not meet its burden on any of the issues raised in the DPCs.
The Parent 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. T at 10). 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 [Redacted], a holder of a doctorate in developmental and child psychology and employed as a NYS licensed clinical psychologist and a NYS licensed Behavior Analyst and a BCBA since 2013 and find that she was a research scientist at NYS Institute for Basic Research and a psychologist in private practice since 2007 (P-Exh. Q at 1;T. at 229-233). I find that she conducted extensive FBAs and that she conducted at least 20 FBA per year (T. 236). I find that she conducted the FBA for the Student (P-Exh. P) and that she conducted the classroom observation in January 2022(T. at 238). I find that she spoke to the Student's mother, the in-home LBA and the staff at [Redacted] and determined the antecedent behavior consequence (ABC) and I find that ABC was an accepted method for assessing the behavior of a child with autism. I credit her testimony and find that the Student presented "[Redacted] " (T.240). I credit her testimony and find that the Student's [Redacted] would trigger the Student and 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 trained in the SCIP method (T.248; P-Exh. P at 10). I credit her testimony and find that it was dangerous without proper training to restrain a person. I credit her testimony and find that she observed that the [Redacted] was not able to attend to the Student when he engaged in his targeted behaviors he was in crisis mode and that [Redacted] staff could only attempt to calm him (T.249). I credit her testimony and find that the Student's behavior was intense (T. 250), and I find that with proper interventions and adequate intensity that the Student could make "tremendous progress" (T.253). I credit her testimony and find that the Student needed 30 hours of ABA/SETSS at a minimum (T.255). I credit her testimony and find that his irritability and agitation were targeted at [Redacted] and I find that the staff developed a token system as a behavior plan, but when the Student targeted behavior developed into a crisis, then staff needed to use restraints. I find that the Student needed positive reinforcement to address negative behavior and not the punishment component called the response cost at [Redacted] (T.269). I credit her testimony and evidence (Exh. E) find that there were instances of SCIP or restraining that resulted in [Redacted] for the Student (T.269). I credit her testimony and find that once his targeted behavior of [Redacted] were controlled without SCIP-R, then his language and DLS could be expanded (T.271).
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 method the DOE failed to provide FAPE for the contested sys. I find that the DOE required to develop a FBA and BIP for the Student interfering and SIB. I find that the failure to train the staff and the home staff to use the SCIP 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 Eden II 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). Section 504 and the IDEA are often seen as 'complementary' statutes that, to a degree, mandate parallel requirements on schools to provide special education and related services. See B.C. v. Mt. Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016); R.B. v. N.Y.C. Bd. of Educ., 99 F.Supp.2d 411, 419 (S.D.N.Y. 2000) (citations omitted); see also 34 C.F.R. §§104.33–37. Unlike the IDEA, however, Section 504 protects children with disabilities from discrimination and, as such, applies to “different injuries” and thus “different proof.” Gabel v. Bd. of Educ. of Hyde Park, 368 F.Supp.2d 313, 333 (S.D.N.Y. 2005); Weixel v. N.Y.C. Bd. of Educ., 287 F.3d 138, 146–47 (2d Cir. 2002). Section 504 prohibits discriminatory conduct and afford parents due process rights/hearings. See §104.4(b)(ii)-(iii), 104.36" (P-Exh. T at 5).
I credit the Parent's testimony and find that the Student was [Redacted] and was [Redacted] than she was (T.154.). I credit her testimony and find that the Student displayed a variety of [Redacted] behaviors such as [Redacted] wrist and had echolalia and repetitive vocal behaviors. I credit the testimony and find that the Student had social difficulties and [Redacted] behaviors such as [Redacted] (T.155-156). I credit her testimony and find that his behavior was addressed at school with an outdated behavior plan. I find that the Student was unnecessarily restrained as there was limited staff at Eden II (T.159). I credit the testimony and find that the Student required 6 staff members to [Redacted] because of [Redacted] 's outdated behavior plan (T. 160). I find that the [Redacted] inconsistently reported her son's [Redacted] to her when he was SCIPed when he [Redacted] (P-Exh.E;T.163). I credit her testimony and find that she was also not trained in the SCIP protocol to stop his [Redacted] behavior and that the Student had attended [Redacted] since 2008 (T.167) yet had command of some simple words and was able to convey simple needs such as "[Redacted]" (T.169). I credit her testimony and find that the Student could not [Redacted] (T.171). I credit her testimony and find the Student attended [Redacted] full-time from 2008 until March 2020, when the school went remote and I find that there was no in-person school from March 2020 through June 2020 (T.173). I credit her testimony and find that her son received 3 hours per week of instruction during remote learning and did not receive his 1:1 paraprofessional during remote learning (T.175). I find that the Student regressed March 2020 through June 2020 both academically and behaviorally. I credit the testimony and find that she attended the IEP meeting for the 2021-2022 sy and she reviewed the prior written notice (P-Exh. R) dated January 20, 2021 and recalled that the CSE team did not agree to provide vocational and transitional services outside the school setting and did not provide SCIP training despite her request to be trained in SCIP (T. 205; P-Exh. R at 2). I credit her testimony and find that the IEP team told her that she needed to go to a hearing to receive those services (T.207). I credit her testimony and find that the CSE staff agreed with her that [Redacted] was not meeting her son's needs, but no appropriate NPS was offered to the Parent (T. 208). I credit her testimony and find for the 2020-2021 sy, that her son's [Redacted] behavior continued (T.215) and for the 2021-2022 sy, the staff used r[Redacted] yet there was no teacher for the 2021-2022 sy so no teacher reported to her any incident as a result of the improper use of SCIP (T.216). I find that the Student required more support to address his academic, behavioral, TA and transitional/vocational needs than the CSE was prepared to provide (T.223).
Based on her testimony I find that the failure to address the Student's [Redacted] appropriately use restraints and train the [Redacted] staff and the Parent in the proper use of SCIP was a violation of the Section 504.
I find that the District did not dispute any of the factual allegations and rested on the evidence into the record and agreed to all the relief requested by the Parent (T. at 151;298;300).
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.
Moreover, I find the failure to address the Student's [Redacted], the failure to respond to the use of Adverse Behavior Intervention (physical restraints) and failure to conduct a 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. 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 26). I agree. The Parent's attorney argued that the "DOE did not establish it offered [the Student] with FAPE for any of the Contested SYs" and that the "lone IEP developed by the DOE—the January 2021 IEP—was not individualized, did not address his behavior needs, did not develop a FBA or BIP" (Id.). I agree.
The Parent asserted that the DOE did not consider "the use of Aversive Behavior Interventions with [the Student]; did not acknowledged the use of the use of these potentially dangerous Aversive Behavior Interventions with [the Student] or provide alternative(s); nor did the DOE adhere with New York laws and regulations regarding the use of Aversive Behavior Interventions"(P-Exh. T at 9). I agree.
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.
The Parent is seeking compensatory services for ABA/SETSS, PT, OT SLT and counseling. The parents are seeking services to be provided for unlimited years "given the DOE’s long history of significant and unlawful delays in implementing IHO orders, the IHO should not impose an expiration date on compensatory services... See also LV v. N.Y.C. Dep’t. of Educ., 2021 WL 663718, at *3–4, *7–8(discussing the DOE’s long history of failing to timely implement IHO orders, along with the DOE’s attempts to excuse these failures); see also Jose P. v. Ambach, 669 F.2d 865 (2d Cir. 1982)(addressing the DOE’s violations of the rights of thousands of disabled children would overwhelm the state administrative agency and foreclose timely relief), 612 F. Supp. 230 (E.D.N.Y. 1985)"(P-Exh. T at 2). I agree and note that the Parent is entitled to P/CT; however, as the Student is [Redacted] years old I find that P/CT was no longer available.
I find that compensatory education is an appropriate remedy when 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 Parent's attorney asserted that the DOE improperly placed the Student at [Redacted] without creating an appropriate IEP to meet his needs for March 2020 to June 2020 of the 2019-2020 sy and the 2021-2022 and the 2021-2022 sys. The Parent's attorney asserted: The Second Circuit has previously endorsed the 1:1 approach and awarded compensatory relief equivalent to the length of the FAPE deprivation. See Melvin v. Bolton, 100 F.3d 944 (2d Cir. 1996)(awarding three years of compensatory education; recognizing “[a]lthough ‘[t]here is no obligation [under IDEA] to provide a day-for-day compensation for time missed,’ courts routinely do so, in the absence of evidence that such relief would be inappropriate or over-compensatory.”); Burr, 863 F.2d at 1075–76 (awarding compensatory relief under a similar analysis and finding student was denied FAPE for approximately 1½ years and therefore was entitled to 1½ years of compensatory education); accord., M.C. v. Sch. Dist., 81 F.3d at 391–92, 396–97 (3d Cir.1996) (holding a student “is entitled to compensatory education for a period equal to the period of deprivation”) (P- Exh. T at 25). I agree.
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 for relief under Section 504. I note that the DOE representative did not dispute the amount as calculated by the Parent for the lack of FAPE for March 2020 to June 2020 of the 2019-2020 sy and, 2020-2021 and the 2021-2022 sys. I further note that the DOE representative did not raise the affirmative defense of Statute of Limitations at the hearing.
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 27). 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 "testimony and documents in evidence at the hearing repeatedly demonstrate the DOE’s inability to meet the needs of [the Student's] disability. [The Student] was denied the same opportunity solely because he attended [Redacted], an NPS, even though the DOE placed [the Student] at [Redacted] (P-Exh. T at 19). 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" (Id.). 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"(P-Exh. T at 20). I agree. 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 was a violation of Section 504. I find the DOE was aware of the improper use of physical restraints and injuries to the Student based on their improper use (Exh. E) and I find that the failure to find an appropriate placement was a violation of Section 504. 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: 30 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 3,540 hours as well as 5 hours per week of supervisor BCBA/ABA for 118 weeks or 590 hours of supervisor BCBA/ABA; 2 hours of counseling per week for 118 weeks or 236 hours; 2 hours of OT for 118 weeks or 236 hours; 1 hours PT for 118 weeks or 118 hours and 4 hours of SLT for 118 weeks 472 hours.
SO ORDERED.
DATED: November 15, 2022Enter date.
/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]
Enter additional text as needed to identify witness titles and names using above format. Press “enter” after each entry.
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
A
First Amended Due Process Complaint
03/03/2021
14
B
Findings of Fact & Decision (FOFD) Case No. 185380
09/27/2020
13
C
IEP
01/12/2021
37
D Annual LBA/BCBA Report 08/02/2020 2
E Emails between Parent & Eden II Multiple 5
F FOFD Case No. 174230 07/02/2019 17
G FOFD Case No. 166693 06/21/2018 6
H WITHDRAWN - -
I Original Due Process Complaint ( ) 09/28/2020 10
J Speech and Language Progress Report 01/24/2022 2
K Due Process Complaint (221398, 202062) 11/12/2021 13
L Annual Report (BCBA) 01/23/2022 2
M Psychoeducational Evaluation Report 10/26/2020 13
N OT Progress Report 01/2022 1
O Neuropsychological Evaluation 07/05/2014 15
P
FBA 03/18/2022 10 Q [Redacted] CV Undated
8
R
Prior Written Notice
01/20/2021
4
S
Withdrawn
T
Parent’s Closing Memorandum
11/07/2022
29
DOE’S EXHIBITS
Exhibit
Document
Date
Pages
1
IEP
06/15/2016
41
2
Attendance Page
06/15/2016
1
3
Neuropsychological Evaluation
07/15/2021
15
4
Educational Progress Report
06/2016
3
5
State Approved NPS Tracking Document
07/28/2016
3
6
Defer to Central package
07/28/2016
3
IHO’S EXHIBITS
Exhibit
Document
Date
Pages
I
Decision on Extension
01/19/2021
1
II
Decision on Extension
04/29/2021
1
III
Decision on Extension
06/16/2021
1
IV
Decision on Extension
06/30/2021
1
V
Decision on Extension
08/06/2021
1
VI
Decision on Extension
09/15/2021
1
VII
Decision on Extension
09/27/2021
1
VIII
Decision on Extension
11/12/2021
1
XI
Decision on Extension
12/13/2021
1
X
Decision on Extension
01/13/2022
1
XI
Decision on Extension
02/11/2022
1
XII
Decision on Extension
03/11/2022
1
XIII
Decision on Extension
4/13/2022
1
XVI
Decision on Extension
05/13//2022
1
XV
Decision on Extension
06/12/2022
1
XVI
Decision on Extension
07/12/2022
1
XVII
Decision on Extension
08/11/2022
1
XVIII
Decision on Extension
9/10/2022
1
XIX
Decision on Extension
10/4/2022
1
XX
Decision on Extension
11/7/2022
1
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.