New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 211280

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Date of Hearing: February 4, 2022

March 8, 2022

April 6, 2022

June 9, 2022

July 21, 2022

Actual Record Closed Date: October 5, 2022

Hearing Officer: Judith Schneider, Esq.

An Impartial Hearing for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, was conducted by me (remotely via video conference) pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of REDACTED (“the student”).

Procedural History

The proceeding was initiated at the request of the parents (hereinafter “the parent”) by correspondence dated July 232, 2021, filed July 23, 2021, concerning the 2021-2022 school year (“SY”). (Ex. I) I was appointed Impartial Hearing Officer on December 22, 2021. A prehearing conference was conducted on January 5, 2022. ^[1] An amended hearing request dated April 6, 2022, which specified claims concerning the 2022-2023 SY was thereafter filed, and amendment was granted. (Ex. A) A prehearing conference was conducted on May 10, 2022.

Status conferences were held on February 4, 2022, March 8, 2022, April 6, 2022 and June 9, 2022. An evidentiary hearing was conducted on July 21, 2022.

Parties moved to extend the compliance date on various occasions for settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence and receipt and consideration of the transcript and closing statements. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted.

The current compliance date is October 5, 2022. The record closed on October 5, 2022, upon my receipt of the parent’s closing statement. The district did not submit a closing although an opportunity for that was provided.

Positions of the Parties

The parent asserts that the February 2, 2021 and the January 26, 2022 IEPs were substantively and procedurally defective. (Exs. I, A, II) The parent seeks:

1. Ten (10) hours per week of home-based ABA/SETSS provided by a bilingual instructor at New York Therapy Group’s rate;
2. Occupational Therapy three times per week instead of the two times per week provided;
3. An independent assistive technology evaluation from at the agency’s rate;
4. Reconvene of the CSE to include all services provided and consider the AT evaluation and to include goals and objectives for the SETSS/ABA provider and address the student’s language dominance;
5. Deferral by the CSE to the CBST for placement at an appropriate nonpublic school which utilizes either TEACCH or ABA methodologies and the right to unilaterally place the student in a private school if the CBST has not identified a placement within 30 days of issuance of the order;

The district conceded that a FAPE had not been provided for the 2021-2022 and 2022-2023 SYs but stated that it did not agree with the program requested. (T75-76) No reasons for the disagreement were asserted. The district did not submit a closing statement and has not delineated what aspect/s of the parent’s requested relief it objects to.

Cases Presented

Both parties presented documents which were admitted into the record. (A list of documents in the record is appended.)

The district presented no testimonial evidence. The parent presented the testimony of the neuropsychologist who conducted the May 11, 2021 evaluation (“the neuropsychologist”); the director of services for the agency which provided SETSS/ABA to the student (“the SETSS/ABA provider”); a speech language pathologist (“the SLP”); the student’s mother (“the parent”):

Findings of Fact and Conclusions of Law

A Factual Findings

Uncontested and persuasive evidence shows the following:

The student is REDACTED, and her classification is Autism. She is diagnosed with Autism-Severe (Level 3) and is minimally verbal. She has also been diagnosed with ADHD-combined type (Moderate/Severe). She lacks impulse control and has no sense of danger. She has significant behavioral challenges including self-injurious behavior and elopement, both at school and at home. She is unable to perform most of the basic skills of daily living, including brushing of teeth, playing with toys in an age-appropriate manner and transitioning between locations. She does not generally initiate any social contact with peers. Her eye contact is very poor Cognitively, the student functions at the level of a 3–4-year-old with significant executive function deficits. (Exs. B, C, D, T81-83)

The student has received SETSS/ABA (10 hours - home-based) for six years from a bilingual certified special education teacher who is trained and experienced in ABA and has received and occupational therapy (3x per weeks), both initially by CSE recommendation and subsequently by Impartial Hearing Officer orders and/or as a pendency entitlement. (Exs. I, A, B, T111, 120)

The CSE convened on February 2, 2021. The student was then in the 5^th grade. Among other things, the parent requested provision of at home SETSS-ABA in the IEP in order to continue any gains the student had made and a return to OT 3x per week from 2xper week. The CSE recommended in a 12 month District 75 program: Special Classes 6:1:1 (English, Math, Social Studeies and Sciences) 24 periods per week- language of service Spanish; OT 2x30 per week (1:1); Interim Monolingual Speech Services pending availability of bilingual provider 1x30 (2:1) and 2x30(1:1); Physical Therapy (“PT”) 1x30 per week (1:1); Speech Language Therapy (“SLT”) Language of Service Spanish, 1x30 per week (2:1) and 2x30 per week (1:1); Paraprofessional Behavior Support Daily full time (1:1). (Ex. B) The parent’s testimony that she was told that the CSE could not recommend at-home services was not contested by the district. (T134, 136)

An independent Bilingual Neuropsychological Evaluation was completed on May 11, 2021. Testing was conducted primarily in REDACTED after review of her history and a qualitative assessment. The evaluator concluded that as a consequence of the combination of severe autism, extremely low cognitive functioning and profound executive functioning deficits the student required an “incredibly specific learning environment” which utilized ABA or TEACCH methodology. She stated that the student would likely regress or at a minimum stall with regard to developing important independent living skills if that methodology in school as well as continuation of the at home ABA/SETSS support was not provided. At the time of the Spring 2021 (2020-2021 SY) evaluation, she stated, the student was benefitting from the TEACCH methodology in her then school. She concluded that the student required a bilingual class placement or a language interpreter. The evaluator also recommended an Assistive Technology device. (T85-88,90, Ex. D) Other witnesses similarly testified as to this student’s need for at home ABA/SETSS and an AT evaluation. (T115, T118, 101-104)

The student changed schools the following year (2021-2022) because she was entering 6^th grade. (T141-142) The school did not provide ABA. (Ex. C) There is nothing in the record indicating that TEACCH methodology was utilized. The student regressed and her behaviors included hitting staff and students and screaming. (T141-142)

The CSE convened on January 26, 2022. The only changes in the prior school year program were the provision of 35 Special Classes (6:1:1) instead of the previous 28 and the removal of PT as the student had “graduated.” Among other requests the parent asserted that the student required a private school. (Ex. C) The parent’s testimony that she was told that the CSE could not recommend at-home services was not contested by the district. (T134, 136)

Conclusions

With regard to this matter in which the student has not been unilaterally placed, the DOE has the burden of proof with regard to all matters. SRO 11-053. N.Y. Education Law §4404[1][c]. Further, I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006); Appeal No. 08-052.

The district has conceded that a FAPE was not provided for the 2021-2022 and 2022-2023 SYs. Further, although the district asserted disagreement with the parent’s proposed program, no specification of the nature of that disagreement has been provided and the testimony of the parent’s witnesses was not contested or rebutted. With regard to the relief requested by the parent:

I conclude that the evidence supports the parent’s request for 10 hours weekly of ABA/SETSS at home from a qualified bilingual provider. I note that the student has been receiving that for 6 years and conclude that the student’s limited progress was dependent on that. The parent seeks an “enhanced rate.” I note that the provider has been receiving $125 an hour and no evidence/request concerning a higher rate was submitted.

Further, I conclude that the student requires specific methodology to enable gains. I note the persuasive testimony that this student was responsive to appropriate interventions. (T84) No evidence was presented indicating that a recommended methodology has been provided in the school in which she has been placed and the most recent IEP does not specify that requirement. Accordingly, a deferral to the CBST for a placement in a State approved non-public school (NPS) which will provide that methodology is ordered. If the CBST is unable to identify a placement within 30 days of the issuance of this order, the parent shall be provided with authorization to unilaterally place the student in an NPS. However, the parent’s request for authorization to attend any school of the parent’s choosing is denied. I note that no school has been identified/discussed. The parent has available various remedies for failure to implement an IHO order and/or an IEP, if such occurs.

With regard to the request for an additional in school OT session, there is nothing in the record indicating any basis for a conclusion that the student requires that but for parental assertion. I note that the parent acknowledged that that request was considered by the CSE. (T136)

The student’s need for an AT evaluation has been established. Further, with regard to the rates I find the rate of $2,800 for an AT evaluation with a translator is not on its face unreasonable and note that it has not been contested.

ORDER

It is hereby ordered that:

1. The district shall issue authorization for 10 hours per week (12-month program) for ABA/SETSS from a bilingual provider from New York Therapy at the provider’s current rate, not to exceed $125, to be delivered at home for the 2021-2022 and 2022-2023 SYs. Such services as were provided pursuant to pendency agreement/s shall be deducted.
2. The district shall issue an authorization for an AT evaluation to be conducted with an interpreter, from a provider of the parent’s election, at a rate not to exceed $2,800.
3. The CSE shall reconvene within 20 days of the issuance of this order and:
4. Issue a deferral to the CBST for an NPS placement.
5. Add 10 hours per week of at-home ABA/SETSS to the student’s IEP.
6. Consider goals/objectives for the ABA/SETSS provider.
7. Consider the student’s need for additional OT at this time.
8. The CSE shall reconvene within 15 days of its receipt of the AT evaluation to consider the evaluation results/recommendations. The parent shall provide the evaluation to the CSE within 72 hours of parental receipt.

Dated: October 10, 2022

_________/s/_____________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

EXHIBITS

District

1	WITHDRAWN
2	Pendency Agreement	07/22/2021	2
3	WITHDRAWN
4	Individualized Education Plan	03/16/2020	32
5	WITHDRAWN
6	WITHDRAWN
7	WITHDRAWN
8	Prior Written Notice	06/21/2021	7

Parent

A	April 6, 2022	Amended Due Process Complaint No. 211280	12
B	February 2, 2021	Individualized Education Program	25
C	January 26, 2022	Individualized Education Program	38
D	May 11, 2021	Independent Neuropsychological Evaluation Report	21
E	N/A	Curriculum Vitae of Neuropsychologist	7
F	November 15, 2020, February 15, 2021, April 15, 2021, November 15, 2021, August 20, 2021 February 28, 2022, June 26, 2022	New York Therapy Progress Reports: 2020-21 – 2021-2022 school years	27
G	N/A	Requested Services Price and Availability List	1
H	August 30, 2012	DOE Bilingual Occupational Therapy Evaluation	7

Impartial Hearing Officer

I Impartial Hearing Request dated July 22, 2021, filed July 23,2021

II Parent Closing Brief

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Footnotes

[1] A Pendency Agreement has provided Occupational Therapy 3 times per week, 12 months; SETSS/ABA 10 hours per week for 12 months from New York Therapy Group ($125 per session) Bilingual Speech Language Therapy three times per week 12 months from The Language and Learning Lab, $150 per session (Ex. 2)