New York City Department of Education, Impartial Hearing Decision

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 224526

Student’s Name: [Redacted]

(Hereinafter referred to as “Student”)

Date of Birth: [Redacted]

District: [Redacted]

Hearing Request by: [Redacted]

(hereinafter referred to as “Parent”)

Date of Complaint: February 16, 2022

Appointment Date: February 17, 2022

Hearing Dates: April 1, 2022

August 9, 2022

September 19, 2022

September 28, 2022

Actual Record Close: October 31, 2022

Decision Date: November 14, 2022

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 1, 2022

For the Student:

[Redacted], Esq., Attorney for Parent

For the Department of Education:

[Redacted], Esq., District Representative

[Redacted], Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 9, 2022

For the Student:

[Redacted], Esq., Attorney for Parent

For the Department of Education:

[Redacted], Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 19, 2022

For the Student:

[Redacted], Esq., Attorney for Parent

[Redacted], Parent

[Redacted], Executive Director

For the Department of Education:

[Redacted], Esq., District Representative

[Redacted], District Representative

[Redacted], Special Education Teacher

[Redacted], School Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 28, 2022

For the Student:

[Redacted], Esq., Attorney for Parent

[Redacted], Parent

[Redacted], MS. ED., BCBA

[Redacted], Psychologist

For the Department of Education:

[Redacted], District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about February 16, 2022 (P-Ex. A)^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing an appropriate program or services for the 2021/22 school year (P-Ex. A). On July 28, 2022, the Parent filed an amended DPC raising allegations of procedural and substantive violations for the rest of the 2021/22 and 2022/23 school years (P-Ex. C).

The Parent requested relief in the form of an independent evaluation; a deferral to the CBST for a 12-month non-public school ABA program, with ABA services in the home, parent counseling and training, speech language therapy, occupational therapy (“OT”); speech-language therapy (“SLT”), Physical Therapy (“PT”), counseling, social skills training, assistive technology (“AT”), behavior interventions, interim ABA services in the public school while waiting for a placement in an NPS; BCBA supervision of the ABA; a functional behavioral assessment (“FBA”); a behavioral intervention plan (“BIP”); and compensatory academic and related service (P-Ex. A; C).

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on February 17, 2022. On March 25, 2022, at a pre-hearing conference the Parent made a motion for an interim order for a publicly funded IEE. The District did not appear. On April 1, 2022, there was a hearing regarding the IEE request. The District acknowledged it had received the letter but had neither filed a DPC to defend its evaluation nor funded the evaluation. On April 8, 2022, an Order for the independent physical therapy evaluation was filed. A hearing on the merits was scheduled to begin on August 9, 2022, however the Parent filed an amended DPC regarding the 2022/23 school year on July 28, 2022. The District accepted the amended DPC and the hearing began on September 19, 2022, and concluded in two days, on September 28, 2022 (See, Transcripts).^[2] The District presented two witnesses and exhibits. The Parent presented exhibits^[3] and four witnesses by affidavit. The record closed on October 31, 2022. There were five extensions of the timelines granted by this Hearing Officer to allow for the evaluations to be completed and to accommodate witnesses.

FINDINGS OF FACT

The Student is currently a [Redacted]-year-old, [Redacted] grade student who attends a District public school (P-Ex. EE; T. 202). She has attended the same public school since September 2018, when she entered kindergarten (P-Ex. EE-1). The Student struggled in kindergarten with behaviors, inattention, language and activities of daily living (P-Ex. EE-1-2). By October 2018, the Parent requested that the Student be evaluated at the suggestion of her teacher (P-Ex. EE-2). Despite the Student’s deficits and struggles, the Student was denied an IEP at the March 22, 2019, meeting (P-Ex. EE-3). The Parent had the Student evaluated privately and the Student was diagnosed with ADHD and was recommended for further evaluations (P-Ex. EE-3-4). During an IEP meeting in December 2019, the District’s CSE classified the Student for special education services and placed her in an ICT program (P-Ex. EE-4).

In January 2020, the Parent received a neuropsychologist evaluation which diagnosed the Student with ADHD, Oppositional Defiant Disorder, and an Adjustment Disorder with Mixed Anxiety and Depressed Mood and recommended a more in-depth evaluation for Autism (P-Ex. P-1; EE-5). The Parent shared the report with the school (P-Ex. EE-5). In the fall of 2020, the Parent had additional evaluations conducted including: an Autism Skills Assessment; Speech Language Therapy evaluation; Occupational Therapy evaluation; and a neuropsychological evaluation that recommended a small class program in a specialized nonpublic school for kids with Autism, with Applied Behavior Analysis (ABA), speech, OT, Adaptive Physical Education (“APE”), Counseling, and parent counseling and training (P-Ex. P; Q; R; S; EE-6). The Autism Skills Assessment made similar recommendations (P-Ex. Q; EE-6). The SP had conducted an educational evaluation in November 2020 to evaluate her difficulties at that time, which included academic and behavior assessments (P-Ex. N; T. 157). The Student was below grade level in reading, math and writing and the behavior assessment endorsed by the teacher resulted in clinically significant anxiety, somatization, attention, adaptability, social skills, leadership, study skills, and functional communication (P-Ex. N-3; T. 157-158).

In December 2020, the District held an IEP meeting and recommended the same ICT program with SETSS, counseling, Speech, OT, assistive technology, and parent counseling and training (P-Ex. H-16; EE-7). The Parent explained the Student’s need for the services that were recommended in the reports, however, the Parent was told the team could not recommend a nonpublic school because she had not really had any other services yet (P-Ex. EE-7). Two more meetings were held in January 2021 and April 2021, however there was no change in the program or goals in the January 2021 IEP (P-Ex. G-19; H-16; EE-7-8).

The School Psychologist (“SP”) testified that she had multiple IEP meetings regarding the Student over the years (T. 133, 134). The SP participated in the April 15, 2021, IEP meeting, reviewed the reports/evaluations and shared updates and concerns at the meeting (D-Ex. 1; P-Ex. F; T. 134-135, 137). They learned that the Student was diagnosed with Autism, an Adjustment Disorder, Specific Learning Disorders in reading and written expression where dyslexia was noted, and ADHD combined type (T. 137-138). The Student had difficulties with fluency and phonological concerns (T. 138). The IEP team addressed reading concerns regarding phonemic awareness and decoding, and wanted to make sure she would receive repetition, reteaching and small group instruction (T. 139-140). The April 2021 IEP again made the same recommendations from the December 2020 and January 2021 IEPs, recommending an ICT classroom, SETSS to support dyslexia concerns; the same related services and an AT device, but increased parent counseling and training to twice per month and added adapted physical education (D-Ex. 1; P-Ex. F-22; G-19; H-15-16; EE-7-8; T. 142). The SP noted that the Student scored in the high average range in areas of cognitive functioning, except for working memory and processing speed and the team wanted to make sure she was in a classroom with small group instruction, that would provide repetition, break down information and provide simplification (T. 142-143). Direct SETSS was recommended as a pull-out service for specific targets and indirect so that the provider could go into the classroom and talk to the teacher and develop a plan (T. 143). The Parent voiced her concerns and wanted the Student to be in a private school, in a small classroom setting, but they thought if her attendance improved, she would be able to make academic progress (T. 143).

The SP testified that at one of the IEP meetings held that 2020/21 school year, possibly December 2020, the IEP team discussed the [Redacted] program, a program for students with Autism are on the higher end (T. 171-172, 182-183, 184). However, there were concerns about the Student’s behaviors (T. 183-184). The program did not typically accept students with behavior issues (T. 183-184).

According to the Parent, there was no real discussion at the April 2021 IEP meeting, about her needs given her autism related difficulties, anxiety, and social emotional difficulties, the Parent was just told the Student was making progress (P-Ex. EE-8). The Parent disagreed and requested a specialized program for children with autism, as recommended by her evaluators (P-Ex. EE-8).

The Student entered 3rd grade in September 2021 in the same ICT program, which had more students in the class than the prior year, due to the lifting of COVID restrictions (P-Ex. EE-8; T. 202). The IEP did not address the Student’s attention, behavior, sensory or social skills needs for the increase of students in the classroom program (P-Ex. EE-9). The Parent shared her concerns regarding the Student’s inattentiveness, impulsivity, repeated behavioral outbursts and tantrums, aggression, and anxiety (P-Ex. F-7). The Student was permitted to see the counselor whenever she felt anxious, or she needed to calm down (P-Ex. EE-9). However, no FBA was recommended to address the Student’s behaviors and the IEP had only one goal to manage and understand feelings (P-Ex. F-11; F-18). Over the 2021/22 school year, the Student spent every day with the counselor and was taught to just be avoidant of difficult situations, hard relationships, or when she does not want to do something (P-Ex. EE-9; EE-10). The counselor told the Parent that the Student did not have authentic friendships, that her friendships were superficial and that the other kids at school were just tolerating her (P-Ex. EE-11).

The District’s Special Education Teacher testified that she was the special education teacher in the 3rd grade ICT classroom who worked with the Student during the 2021/22 school year (T. 83, 85). The Special education teacher worked collaboratively with the general education teacher in the classroom and together they unpacked the curriculum, provided modifications, academic instruction, social emotional learning instruction, and implemented the April 2021 IEP (T. 85). The Special Education Teacher testified that the Student made progress in reading, writing, math, and with her social emotional learning (T. 86). In reading, she went up four levels; in writing she was able to use her AT device; in math she showed improvement in solving addition and subtraction and was working on multiplication and division; in her social emotional learning, she demonstrated growth in being flexible in her thinking (T. 86-88). Regarding her attendance, the Student was absent a lot at the start of the school year, but by December her attendance had improved (T. 88-89). The Student also received her related services of APE, SETSS, speech, OT, and counseling (T. 89). The Special Education Teacher testified that the Parent had shared her concerns regarding the Student’s deficits, but they were happening in the after-school program, although the Student did have toileting issues and difficulty engaging with other students and had conflicts with students during the school day (T. 90-91).

The Parent testified that the Student began received ABA services in the morning to help her with her school refusal, daily living skills and getting on the bus (P-Ex. EE-9; T. 203). The Parent stated that without the assistance of the ABA provider, she would not be able to get her out of the door in the morning (P-Ex. EE-12). The ABA was effective, and the Parent requested that the ABA provider be allowed on the bus and to work with her when she arrived at school for transitioning, but was the request was denied (P-Ex. EE-9). The Parent received a lot of complaints about her not being on task and distracting others in her classes (P-Ex. EE-10). Without the ABA supports the Student perseverated, talked only about her own interests, attended to reading only about subjects she was interested in, stopped attending, became angry or avoidant if required to do something or listen to something that she was not interested in (P-Ex. EE-9). The Student also had toileting accidents during the year, which were so consistent the Parent had to send in extra clothes and buy extra shoes (P-Ex. EE-10; T. 205-207). In the after-school program the Student displayed problematic, aggressive, and socially inappropriate behaviors (P-Ex. EE-11). The Student also perseverated and became anxious and panicky at home (P-Ex. EE-12). She refused to do what was asked of her and would become obstinate, aggressive and have huge tantrums (P-Ex. EE-12).

The District’s CSE met to develop an IEP for the 2022/23 school year on March 4, 2022 (D-Ex. 2; P-Ex. E). The SP, Special Education Teacher and Parent participated in the meeting (P-Ex. EE-14; T. 104, 146). The Special Education Teacher testified that the Student had difficulty with attention, and to address this, the classroom was set up so the Student would sit with up to four students (T. 104-105). The Student also perseverated on things and would get worked up on occasion and was recommended to see the counselor (T. 105-108, 174). To address her social skills, they would integrate social and emotional learning into the ELA program, and worked on managing feelings, conflict resolution and problem solving (T. 112). The Special Education Teacher testified that this was the program for the entire school, special and general education students (T. 112). Although the Special Education Teacher testified regarding the SETSS and speech reports, she did not recall reviewing the documents at the IEP meeting (T. 121).

The SP testified that the Student’s reading, writing and math had improved, and she was benefiting from the ICT program, so they recommended continuation in the ICT program (T. 149-150). The SETSS provider also said the Student had improved and recommended that she stay in the classroom, instead of being pulled out for services, and SETSS was removed at the end of the school year (P-Ex. E; T. 149-150). The SP did not believe an FBA was needed because her behavior concerns were being addressed through counseling, check-ins with the guidance counselor, a lot hands-on-deck to assist with any behavioral concerns, and improvement was noted (151-152). The SP had conducted a psycho-education evaluation in February 2022, which indicated a similar cognitive profile as previous evaluations (P-Ex. M; T. 160). Academically, the SP had tested the areas where the Student had scored in the average range but did not re-test in the Student in her deficit areas of pseudoword decoding and math fluency (P-Ex. M-5; P10; T. 161). And in math problem solving, although previously an area of strength, she was struggling (P-Ex. M-5; T. 162). According to the SP, the Parent’s concerns were similar to previous years including the Student’s maladaptive behaviors, distractibility, anxiety and panic attacks (T. 152, 171, 173). The Parent wanted a small classroom in a non-public school, however that was not recommended because the Student had made so much progress in the ICT classroom with the modeling of general education students (T. 152-153).

The Parent testified that no other options of placement or programs were discussed at the March 2022 meeting, goals were not discussed, and the team again recommended an ICT class even though the Parent had disagreed (P-Ex. EE-13). The Parent testified that at the meeting the IEP team had eliminated SETSS but indicated that it would be revisited the decision in June 2022 (P-Ex. EE-13; T. 179-180). The March 2022 IEP still did not include an FBA or behavior supports, despite noted continuing behaviors, which caused her to be suspended twice from school (D-Ex. 2-7). The June 2022 IEP meeting was canceled, and the Parent was told that it would be rescheduled, it was not (P-Ex. EE-13; T 180). The year ended with the Student still having the same behavioral, social-emotional, pragmatic, and attentional issues that she had all year long (P-Ex. EE-13). The Student attended a summer program and the ABA provider attended with her (P-Ex. EE-13). The Parent did not get any complaints while she had the ABA provider push-in to the program (P-Ex. EE-14). The Parent testified that the Student still had some school refusal this 2022/23 school year (T. 208).

The Psychologist who evaluated the Student in the Fall of 2020 testified by affidavit (P-Ex. DD). The Psychologist testified that the Student was a patient under her care for psychological services since May 2019 (P-Ex. DD-2; T. 239). The Student’s most recent appointment was on September 20, 2022, and she saw the Parent separately in August 2022 (P-Ex. DD-2).

The 2020 Neuropsychological Evaluation demonstrated that the Student’s cognitive ability was in the high average range with Verbal Comprehension in the Very High range, Visual Spatial and Fluid Reasoning in the average range, Working Memory in the low average range, and Processing Speed in the borderline range (P-Ex. DD-2). Her inattention, secondary to her ADHD and her interfering and tangential thoughts, related to her Autism Spectrum Disorder and negatively affected her ability to sustain attention, remain on task, and place information into memory, which particularly affected her Working Memory and Processing Speed scores (P-Ex. DD-2).

The Psychologist compared her 2020 evaluation with the psychoeducational evaluation conducted in February 2022, and found that the Student’s performance on Verbal Comprehension, Working Memory, and Processing Speed on the 2022 Psycho-Educational Evaluation was lower than on the 2020 Neuropsychological Evaluation (P-Ex. M-2; P-7; DD-2). Her Verbal Comprehension declined from Very High to the Average range (standard score of 124 to 100); Working Memory declined from the Low Average range to the Very Low range (standard score of 82 to 76); and Processing Speed declined from the Borderline range to the Extremely Low range (standard score of 75 to 69) (P-Ex. M-2; P-7; DD-2). According to the Psychologist, the Student’s decline in scores demonstrated the inconsistency in her performance depending on her ability to remain focused on the task (P-Ex. DD-2). On both evaluations, the Student’s cognitive ability was sufficient for learning to read and do math at grade level, but her poor processing speed and working memory interfered with her ability to do so (P-Ex. DD-2).The Psychologist testified that the Student’s deficits should be addressed with appropriate learning supports and classroom accommodations to ensure that she can fully attend, process, and engage in the learning environment (P-Ex. DD-2). Academically, the Student’s Word Reading, Reading Comprehension, and Math Numerical Reasoning were in the Average range on both the 2022 Psycho-Educational Evaluation and the 2020 Neuropsychological Evaluation; however, her Math Problem Solving and Spelling were discrepant on the two evaluations (P-Ex. M-5; P-10; DD-2). According to the Psychologist, as the classroom material becomes more complex, the Student’s reading, language, and pragmatic deficits will be exacerbated if her Autism Spectrum Disorder is left untreated (P-Ex. DD-3).

The Psychologist stated that based on progress reports, the interview with the Parent, and her observations of the Student, she was concerned that the Student continued to demonstrate that her interfering and maladaptive Autism related deficits were not being sufficiently addressed (P-Ex. DD-3). The Student continued to perseverate, had difficulty taking the perspective of others, had little interest in the life of others, had limited interests, could not engage in appropriate and ongoing conversational exchanges, provided tangential responses and statements, avoided topics or activities she was not interested in, was self-directed, had limited coping skills, difficulty inferring and predicting results, limited pragmatic skills, difficulty developing friendships, difficulty following directions, difficulty processing information, did not respond appropriately to authority, and was easily overwhelmed by sensory information and transitions, which were consistent with her Autism Spectrum Disorder (P-Ex. DD-3). The Student also had difficulty maintaining attention, was easily distracted, and her processing time was very slow and interfered with her learning, engagement in tasks, and comprehension (P-Ex. DD-3). She would become emotionally dysregulated and had limited strategies for regulating her emotions (P-Ex. DD-3). She would often become anxious with irrational fears and have panic attacks that interfered with her functioning and learning (P-Ex. DD-3).

According to the Psychologist, the Student did not show measurable progress in any of the areas of deficit that needed to be targeted (P-Ex. DD-3). The Student is capable of significant progress academically, functionally, socially, and emotionally if provided with the appropriate educational environment for students with Autism Spectrum Disorder that are high functioning and cognitively intact (P-Ex. DD-3). According to the Psychologist, the Student required a small class in a specialized educational nonpublic school for children with high functioning Autism, with home-based ABA for wrap-around services, in order to make progress and not regress (P-Ex. DD-4).

The BCBA and Director (“BCBA”) who ran the program that provided the Student with ABA intervention services testified by affidavit (P-Ex. FF). The Student began receiving services in November 2021 and the BCBA personally conducted an ABA Skills Assessment of the Student and spoke with Parent on numerous occasions (P-Ex. FF-3). At the start of November 2021, ABA was provided to the Student during the week in order to address problem behaviors emitted that impeded with her ability to make the bus and attend school (P-Ex. FF-3; T. 222). The ABA service was provided through the end of the school year (T. 223). Prior to the start of ABA, the Student would often refuse to wake up, miss the bus, and miss school because of behaviors (P-Ex. FF-3). ABA was implemented in the home during the morning time with the use of visual schedules and the use of variable interval schedules to access reinforcement, which significantly increased compliance (P-Ex. FF-3). The Student was required to complete certain tasks within a set interval of time before accessing reinforcement (P-Ex. FF-3). The ABA provider worked on self-help, daily living skills and getting her out of bed since the Student would refuse (T. 223-224). He also worked on helping her get dressed, brush her teeth, and eating breakfast in order to get her to school on time, or to school at all (T. 224). Soon after ABA started, she started to comply with the demands, she began dressing independently, and was making it to school on time (P-Ex. FF-3; T. 225). The Provider also worked on her rigidity and her ability to comply with transitions (T. 225). He worked on decreasing her resistance and making transitions more fluid (T. 226). According to the BCBA, the use of ABA was highly effective in changing behavior that impeded the Student’s ability to attend school and/or arrive on-time (P-Ex. FF-3). Prior to the implementation of ABA, the student would not independently dress herself (P-Ex. FF-3). Challenges continued to present themselves with daily living routines, such as brushing her teeth and showering, which she refuses to do outside of ABA sessions (P-Ex. FF-3).

During the 2021/2022 school year, the Student attended an ICT class, and the Parent reported that situations of problem behaviors at the school went unreported by school staff and brought to her attention by an anonymous witness, and then confirmed by the school (P-Ex. FF-3-4). The Student also attended an after-school program where it was reported that the Student emitted significant problem behaviors (P-Ex. FF-4). The BCBA testified that she attempted to provide ABA services to the Student in the after-school program in order to diminish and/or extinguish problem behaviors in that environment and support social interactions with peers and staff, but the after-school program rejected the delivery of ABA at their program (P-Ex. FF-4). The parent also attempted to have the ABA services pushed-in to her school day to help decrease the maladaptive behaviors and increase appropriate prosocial behaviors, coping skills, pragmatic language, and peer relations, but those attempts were also rejected by the school (P-Ex. FF-4). During the summer of 2022, ABA services were allowed to be pushed-into the Student’s summer program at a frequency of 12-hours/week (P-Ex. FF-4).

The BCBA testified that the Student presented with significant social deficits that tend to frustrate and deter peers from playing or interacting with her (P-Ex. FF-5). She spoke to her classmates using a harsh/abrupt tone, she would make comments/statements to peers that were abrasive and antagonistic and had difficulty playing interactive games with peers (P-Ex. FF-5). Baseline data, before the implementation of ABA, indicated that the Student would lose focus and divert attention away from the task at hand for intervals up to 15-minutes, behavior would occur 6 times in a 3-hour period, loss of attention included stopping and/ or failing to start and/or complete a task to look out the window and/or stare at stimuli in the environment (P-Ex. FF-5). Although the Student would speak using full sentences; her verbal emittance was not always on topic and/or she did not always answer the conversational questions being posed (P-Ex. FF-5). Frequently, her off-topic thoughts could be perseverative in nature, and they often distracted her from the task-at-hand, and she frequently tried to insert those topics into her conversation (P-Ex. FF-5). Her behavior significantly impeded with her ability to transition from one activity to another, impeded with her ability to complete tasks in a timely manner, and impeded her ability to perform tasks with automaticity and fluidity (P-Ex. FF-5). The Student also emitted behaviors of rigidity, verbal protest when presented with undesired/challenging tasks, long latencies to comply with tasks, difficulty with attending for periods of time, and tantrums, which would escalate to throwing objects and aggression (P-Ex. FF-5). ABA interventions were implemented that included proactive antecedent manipulations to prevent the behavior(s) from occurring in the first place (P-Ex. FF-6). To date, latency to comply continues to be a challenge; however, latency to comply has decreased from 8-minutes to 5-minutes (P-Ex. FF-6).

Transitions from room-to-room posed a significant challenge for the Student as she would often refuse and/or protest when required to transition and/or debate and/or initiate a conversation off-topic (P-Ex. FF-6). This behavior often led to her perseverating on the topic which began a chain of behavior that was difficult to interrupt (P-Ex. FF-6). Interventions were implemented to decrease those behaviors (P-Ex. FF-6).

The BCBA spoke with the Student’s counselor during the 2021/22 school year, who reported that the Student struggled in group setting and had difficulty with pragmatic skills and socially appropriate skills (P-Ex. FF-6-7). The counselor also shared that the Student would go to her office on a daily basis in order to calm down and feel safe, and classroom teachers had difficulty attending to the Student’s problem behaviors (P-Ex. FF-7). The counselor shared that the Student made some progress but would regress in her behaviors and skills after long breaks (P-Ex. FF-7). The BCBA also spoke with the Student’s classroom teacher and paraprofessional for the 2022/23 school year (P-Ex. FF-7). It was reported that the Student was quiet but would talk over people and perseverate on certain topics, had difficulty with activities of daily living, and needed reminders to get back on task (P-Ex. FF-8). Academically, the Student only liked to read books that were of interest to her, was a high reader for non-fiction books, otherwise she would struggle to comprehend the material (P-Ex. FF-8). The Student’s writing was hard to understand because her ideas were not cohesive, there was no elaboration or detail, and her sentence structure was poor (P-Ex. FF-8). In Math, the Student was inconsistent, she would not complete assignments, could not be re-directed back to the task in order to finish/complete it, and would forget strategies after a few days, which would have to be re-taught (P-Ex. FF-9).

The BCBA testified that the Student was responsive to ABA and made socially significant behavioral changes and progress with the implementation of ABA, however they were limited to settings where ABA was provided (P-Ex. FF-9). The Student continued to require ABA to address long latencies to comply and follow directions, for attending, for decreasing problem behaviors that impede skill acquisition including, but not limited to academic skill acquisition, social skills acquisition, daily living skills acquisition, and self-help skills acquisition (P-Ex. FF-9). According to the BCBA, the Student required ABA during the school day, for a 12-month school year, to increase appropriate and socially significant goals that encompass academics, behavior, appropriate language, daily living skills, and social skills while decreasing problem behaviors that interfere with skill acquisition, in a small class of no more than eight students; as well as ABA in her afterschool program (P-Ex. FF-9-11).

The BCBA also recommended a Functional Behavioral Assessment (FBA) to be conducted by a Licensed Board Certified Behavior Analyst, and a Behavior Intervention Plan (BIP); four (4) hours per month of Parent Counseling and Training (“PCAT”); Counseling individually and in a group of three students; a social skills group; and compensatory education in the form of: 345 hours of 1:1 at-home empirically based intervention of ABA based on academic deficits she presents with, her overall problem behaviors, and what she should have been receiving and had not (minimum of 1.5 hours/week x 5-days/week x 4-weeks); 46 hours of PCAT (4 hours/month x 11.5 months); 69 hours of compensatory one-to-one Counseling based on the significant amount of social emotional deficits with other peers and lack of ability to cope (.75 hours/day x 2-days/week x 46-weeks); 69 hours of ABA supervision overseen by a Behavior Analyst (l hour per every 10-hours of ABA) (P-Ex. FF-11-12; T. 216-219).

The Executive Director for the agency that conducted the physical therapy evaluation testified by affidavit regarding the evaluation (P-Ex. Y). The evaluator conducted an extensive documentation review of the Student’s educational records; conducted an interview of the Parent; conducted an interview and informal assessment of the Student (P-Ex. I; X; Y-2). A plan for remediation of the Student’s motor deficits was recommended at a frequency of 1x30 minutes per week, as well as 23 hours of compensatory PT (P-Ex. X-5; Y-2). The Plan was created by the Physical Therapist and the Executive Director of the Agency (P-Ex. X; Y-2).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.” The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade... is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom but is satisfied with barely more than de minimis progress for those who cannot.” Id.

Here, the District did present documents and witnesses who explained the recommendations made for the 2021/22 and 2022/23 school years. Although the witnesses testified that the Student made progress in the ICT program, and there may have been reading gains made, the documents actually show that the Student was either stagnant or regressed (P-Ex. M; P; T. 86). Although the witnesses testified that the Student’s behaviors and social deficits were addressed by the counselor, the evidence demonstrated that the Student was seeing the counselor on a daily basis, despite the IEP only recommending 1:1 counseling 1x30 minutes per week and 1x30 minutes per week in a group (P-Ex. EE-9-10; FF-7; T. 105-108, 174). There was no evidence in the record to show that there were discussions at either the April 2021 meeting or the March 2022 meeting, to increase counseling services or provide additional behavioral supports (P-Ex. E; F). Instead, it was left to the Student to decide how frequently she would see the counselor, which appeared to become avoidant behavior (P-Ex. EE-9-10). And it was left to the Parent to obtain the assistance of an ABA provider to go the home in the morning to work with the Student in getting ready and transitioning to school. The record showed that the Student had difficulty getting to school in the morning, transitioning to school, toileting in school, and with peer interactions (P-Ex. EE-11; FF-3; FF-6; T. 90-91, 223-226). Although the District’s witness testified regarding a social/ emotional program worked into the ELA program, it was not an individualized program specifically for the Student, but a school-wide program for students with or without IEPs (T. 112). Moreover, the SP testified that although her behaviors were sufficiently addressed with counseling, they were significant enough that she was not considered for the NEST program, a program for high functioning students with Autism (T. 182-184). Despite a diagnosis of Autism and behavior and social deficits, no FBA was conducted, nor behavior interventions recommended for either the 2021/22 or 2022/23 school years.

Under New York regulations, a CSE must, “in the case of a student whose behavior impedes his or her learning or that of others, consider strategies, including positive behavioral interventions, and supports and other strategies to address that behavior.” 8 NYCRR § 200.4(b)(3)(i). These strategies include an FBA, which is “the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment.” Id., § 200.1(r). FBAs are conducted “as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities.” Id. § 200.4(b)(1)(v). An FBA must include an “identification of the problem behavior” and “the formulation of a hypothesis regarding the general conditions under which [the] behavior usually occurs.” Id. § 200.1(r). Where the student’s behavior impedes his learning or that of his peers, the CSE should create a BIP that sets out “intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s).” Id. § 200.22(b)(4)(ii).

Here, the evidence shows that the Student had demonstrated behavior issues since, at least, December 2020 through to present (P-Ex. H; P; Q; T. 152, 171, 173). The Student’s behaviors impeded her learning, yet the programs recommended by the District’s CSE did not address those behaviors adequately. The case law is clear that “a failure to conduct an FBA... does not rise to the level of a denial of a FAPE if the IEP adequately identifies the problem behavior and prescribes ways to manage it.” R.E., 694 F.3d at 190; see also A.C., 553 F.3d at 172 (failure to perform FBA did not render IEP legally inadequate in light of IEP's provision of strategies to address child’s behavior); T.Y., 584 F.3d at 419 (“substantial evidence in the record” of ways to address problematic behaviors provided basis for SRO to conclude that, despite failure to conduct a FBA or a BIP, a FAPE was not denied). However, here, there was no evidence to demonstrate that the recommendations in the IEP would adequately identify the Student’s problem behaviors or ways to manage them. Therefore, the District’s failure to conduct an FBA or develop a BIP is a denial of FAPE.

Additionally, it appears that there are some discrepancies in her testing, both cognitive and academic, from 2020 and 2022 (P-Ex. M; P; DD-2). Updated academic testing was not conducted in the areas of deficit for the Student (pseudoword decoding and math fluency), and in some of the other testing areas, her scores decreased. The record demonstrated that the Student’s program and recommendations for both the 2021/22 and 2022/23 school years failed to provide the Student with an educational program reasonably calculated to enable a child to make meaningful progress in the last two school years. Based on the evidence provided, I find that the District has failed to provide the Student with FAPE for the 2020/21 and 2022/23 school years.

COMPENSATORY SERVICES

Compensatory education is an appropriate remedy under the IDEA. P. v. Newington, 546 F.3d. 111 (2nd Cir. 2008). The aim of compensatory education services is to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See, Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (finding that compensatory education is not a form of damages because the courts act in equity when remedying IDEA violations and must “do equity and …mold each decree to the necessities of the particular case”). When fashioning a compensatory award, it is appropriate to look at the specific educational deficits resulting from a child’s loss of FAPE, in order to ascertain what compensatory measures are appropriate to make the child whole. Id.; Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See, Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); SRO Appeal 14-179. Within the Second Circuit, compensatory relief in the form of supplemental special education or related services has been awarded to students if there has been a denial of a FAPE. See, Newington, 546 F.3d at 123 ("[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]"). Likewise, SROs have awarded compensatory "additional services" to students who have been denied appropriate services, if such deprivation can be remedied through the provision of additional services before the student becomes ineligible for special instruction by reason of age or graduation. See, Bd. of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to The Student during home instruction); see also, Application of the Dep't of Educ., Appeal No. 13-048; Application of a Student with a Disability, Appeal No. 11-091). The purpose of an award of additional services, like compensatory services, is to provide an appropriate remedy for a denial of a FAPE and accordingly, aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See, Newington, supra.

Here, based on the facts above, and a finding of a denial of FAPE, I find that the Student is entitled to compensatory services to attempt to place the Student in the position she should have been in, if she had received adequate services to address the needs detailed in the neuropsychological evaluation, Autism Skills Assessment, psycho-educational evaluation, and compensatory related services plan.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2020/21 and 2022/23 school years. I further find that the Student should be placed in a program that will address her global needs with ABA therapy throughout the day and that the Student is entitled to compensatory services as detailed in the independent evaluations, affidavit testimony, and as detailed below. I further find that the Student is entitled to an independent FBA and BIP. The District has had plenty of opportunities to conduct those evaluations over the years and failed to do so. The District was put on notice with the filing of the DPC in February 2022, that the Parent was seeking the evaluations, and again failed to conduct them. I have considered the Parent’s other requests for relief in the Due Process Complaint, and they have been denied for lack of evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

1). ORDER THAT, the District shall immediately make a deferral to the CBST for a 12-month specialized non-public school with a fulltime ABA program, and related services of: parent counseling and training four (4) hours per month; speech language therapy 2x30 minutes per week; occupational therapy 2x30 minutes per week; physical therapy 1:1 1x30 minutes per week; counseling 1:1 1x30 minutes per week and 1x30 minutes per week in a group of 3; a social skills group; adaptive physical education; BCBA supervision; and special transportation;

2). ORDER THAT, while awaiting placement in an appropriate NPS in accordance with Order #1 above, the District shall provide the Student with a full time licensed/certified ABA therapist to push into the Student’s current public school program and provide 30 hours per week of ABA therapy, on a 12-month basis (at a rate not to exceed $126.00); with BCBA supervision three (3) hours per week (at a rate not to exceed $150.00), to be provided by providers of the Parent’s choosing;

3). ORDER THAT, the District shall provide the Student with 7.5 hours of ABA services per week, in the Student’s home, to be provided by a licensed/certified ABA therapist, at a maximum rate of $126.00 per hour; with one (1) hour per week of BCBA supervision at a rate not to exceed $150.00 per hour;

4). ORDER THAT, the District shall provide the Student with a bank of 345 hours of ABA services, which shall not expire, to be provided by a certified/licensed ABA therapist of the Parent’s choosing, at a rate not to exceed $126.00 per hour;

5). ORDER THAT, the District shall provide the Student with a bank of 34.5 hours of BCBA supervision, which shall not expire, to be provided by a certified/licensed ABA therapist of the Parent’s choosing, at a rate not to exceed $150.00 per hour;

6). ORDER THAT, the District shall provide the Student with a bank of 46 hours of parent counseling and training, which shall not expire, to be provided by a certified/licensed ABA therapist of the Parent’s choosing, at a rate not to exceed $126.00 per hour;

7). ORDER THAT, the District shall provide the Student with a bank of 23 hours of Physical Therapy services, which shall not expire, to be provided by a certified/licensed Physical Therapist of the Parent’s choosing, at a rate not to exceed $180.00 per hour;

8). ORDER THAT, the District shall provide the Student with a bank of 69 hours of Counseling services, which shall not expire, to be provided by a certified/licensed counselor/therapist of the Parent’s choosing, at a rate not to exceed $150.00 per hour;

9). ORDER THAT, the District shall provide the Student with an independent Functional Behavior Assessment (at a rate not to exceed $1,500.00), and Behavior Intervention Plan (at a rate not to exceed $450.00) to be conducted by a BCBA of the Parent’s choosing;

SO ORDERED

DATED: November 14, 2022

Vanessa M. Gronbach

Vanessa M. Gronbach, 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

PARENT EVIDENCE

Ex. Document Description Date Pages

A Demand for Due Process Hearing 02/16/22 20

B IEE Request Letter 02/15/22 2

C Amended Demand for Due Process Hearing 07/28/22 25

D /24/21 17

E IEP 03/04/22 40

F IEP 04/15/21 30

G IEP 01/22/21 27

H IEP 12/03/20 23

I Physical Therapy Evaluation 05/27/22 5

J Student Progress Report – Speech/Language 02/28/22 3

K Occupational Therapy Progress Report 02/24/22 4

L SETSS-ELA Undated 2

M Psycho-Educational Evaluation 02/10/22 7

N Educational Evaluation Report 11/23/20 3

O Assistive Technology Evaluation 11/05/20 8

P Neuropsychological Evaluation Fall 2020 27

Q Autism Skills Assessment 09/30/20 19

R Speech and Language Evaluation 09/29/20 11

S Occupational Therapy Evaluation 09/29/20 10

T Email Re: Reconvene of CSE Multidates 3

U Prior Written Notice 03/10/22 3

V Email re: ABA refusal 11/24/21 1

W Prior Written Notice 04/19/21 4

X Compensatory Related Service Plan 07/29/22 6

Y Affidavit of Executive Director 07/29/22 3

Z Resume of Executive Director Undated 2

AA Resume of Physical Therapist Undated 1

BB Curriculum Vitae of Psychologist Undated 2

CC Resume of BCBA Undated 1

DD Affidavit of Psychologist 09/21/22 4

EE Affidavit of Parent 09/21/22 16

FF Affidavit of BCBA 09/21/22 13

DISTRICT EVIDENCE

Ex.

Document Description

Date

Pages

Individualized Education Program

4/15/2021

44

Individualized Education Program

3/4/2022

41

Prior Written Notice

4/19/2021

5

Prior Written Notice

3/10/2022

4

Adapted Physical Education Remote Evaluation

2/8/2021

4

Assistive Technology Training and Implementation Report

10/4/2021

7

Progress Report

6/20/2021

2

Special Education Recovery Services

11/30/2021

2021-2022 Report Card

2021-2022

2

Psychoeducational Evaluation

2/10/2022

7

OT Progress Report

3/7/2022

3

Classroom observation

3/3/2022

2

Social history

2/18/2022

2

Speech Progress report

2/28/2022

4

Counseling progress report

3/2022

3

Teacher report

1/2022

2

Teacher Report

4/2022

6

SETSS Progress Report

3/2022

2

Physical Education goals

3/2022

1

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits.

[2] Reference to the Transcript shall be referred to as “T”.

[3] A more detailed list of exhibits is attached.