New York City Department of Education, Impartial Hearing Decision

NYSED # 570966 / NYC # 225094

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

(hereinafter referred to as “the Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested by: [REDACTED] (hereinafter referred to as “the Parents”)

Record Close Date: June 10, 2022

Date of Decision: June 24, 2022

Hearing Officer: Lisa S. Rusk, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 11, 2022

For the Student:

[REDACTED] Attorney

[REDACTED] Parent

[REDACTED] Psychiatrist

[REDACTED] Director

For the Department of Education:

[REDACTED] District Representative

[REDACTED] Attorney

On March 11, 2022, the Parents of the Student filed a due process complaint (DPC) against the [REDACTED] (hereinafter referred to as the “District”), alleging the failure of the District to provide a Free Appropriate Public Education (FAPE) to the Student for the second half of the 2020-21 school year and the 2021-22 school year. I was appointed as impartial hearing officer (“IHO”) on March 18, 2022. A prehearing conference was held after the expiration of the resolution period on April 11, 2022. No one appeared on behalf of the District. A hearing date was held on May 11, 2022. The District was represented by [REDACTED] and [REDACTED]. The Parents were represented by [REDACTED].

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is [REDACTED] year old male classified with autism who has attended his neighborhood school [REDACTED] since kindergarten. During the 2021-22 school year, he was in the third grade. On March 16, 2020, the Parents filed a due process complaint, and by decision, dated January 19, 2021^[1], the IHO in that case found that the District denied the Student a FAPE for the 2018-19, 2019-20 and a portion of the 2020-21 school year. The IHO, by decision, dated January 19, 2021, ordered compensatory education consisting of 920 hours of Applied Behavioral Analysis (ABA), 184 hours of supervision by a board certified behavioral analyst (BCBA) and 46 hours of parent counseling and training (PCT).

The record includes one Individualized Education Program (IEP) developed after the initiation of the prior hearing, the IEP, dated December 7, 2021 (Exhibit P-B). The earlier IEP (Exhibit P-C) indicates that it was to commence on March 11, 2020 and that an annual review was to occur by February 26, 2021. Therefore, there is a gap in time between the expiration of P-C and the start of P-B where the record contains no valid IEP. The scope of this hearing encompasses March 2021-June 2021 and September 2021-June 2022.

The December 7, 2021 IEP recommended a removal from the integrated co-taught (ICT) classroom placement the Student had been attending in his neighborhood school since kindergarten and placement in a self-contained 12:1:1 special class in a New York State approved nonpublic school. No specific nonpublic school has been identified. The recommended placement included small group counseling one time per week, occupational therapy two times per week and speech language therapy two times per week, for 30 minutes each, along with a.8 1:1 paraprofessional for behavioral support. The Parents disagree with the removal to a self-contained program in a nonpublic school and seek continuation of the ICT program with the inclusion of 30 hours per week of push in ABA services, 10 hours per week of home-based ABA services, 3 hours per week of BCBA supervision, 1 hour per week of PCT and the FM system recommended by [REDACTED] (T:40).

Specifically, the DPC alleges that the District (1) failed to recommend an appropriate program and placement, (2) failed to offer appropriate methodologies to address the Student’s specific needs (3) failed to provide appropriate speech-language services, (4) failed to provide appropriate occupational therapy (OT), (5) failed to provide appropriate physical therapy (PT), (6) failed to provide appropriate PCT, (7) failed to provide home-based ABA with BCBA supervision, (8) failed to follow the requirement under the Regulations in notifying the Parents when developing and changing the Student’s IEP, (9) failure to provide appropriate counseling, (10) failure to develop meaningful measurable goals, (11) failure to provide the Parents with regular progress reports, (12) failure to provide appropriate assistive technology, (13) failure to provide a properly trained paraprofessional, (14) failure to provide the services mandated on the Student’s IEP and (15) failure to provide educational records.

The Parents seek the following: (1) a finding that the District denied a FAPE for the 2020-21 and 2021-22 school years, (2) an order to finally address the Student’s individual learning needs and change his current placement, (3) an order for the Committee on Special Education (CSE) to promptly convene and address the Students’ learning needs once all evaluations are ordered and completed and create and appropriate program, (4) compensatory services^[2], (5) related services compensatory services, (6) attorney’s fees and (7) any further relief deemed just and proper by the IHO.

The District did not present any witnesses or evidence, but stated at the commencement of the hearing that it “is going to rest on the evidentiary record and will not be putting on a Prong I case at this juncture.” (T:19,23). As referenced by the Parents’ attorney, this is not a Burlington/Carter case, and “prongs” are not relevant. In any event, the District did not present a case in chief to defend its IEPs, nor did it present any rebuttal evidence or testimony.

The Parent testified, presented witness testimony through affidavit and live testimony and introduced 31 exhibits into evidence, including the witness affidavit. The parties submitted closing briefs on June 10, 2022.

LEGAL STANDARDS

In New York State, school districts have the burden of proof, including the burden of persuasion and burden of production in Individuals with Disabilities Education Act (IDEA) hearings. The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

A school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]).  The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). In order to satisfy the requirements of LRE, school districts must insure that “special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 34 CFR 300.114[a][2][ii].

The Second Circuit in Newington adopted the Third Circuit’s two-part test set forth in Oberti v. Clementon Sch. Dist., 995 F.2d 1204, namely (1) whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child, and, if not, then (2) whether the school has mainstreamed the child to the maximum extent appropriate.

FINDINGS OF FACT

The Student began receiving special education services at the age of three from the committee on preschool education (CPSE). When he transitioned to kindergarten for the 2018-19 school year, he was initially classified as a student with a learning disability. In May of 2019, his classification was changed to autism. The Parent testified that the school added a 1:1 paraprofessional to the Student’s program to address his increasingly interfering behaviors, but soon it became clear that the paraprofessional was not sufficient, and an FBA was recommended (T:106). In January of 2020, BCBA [REDACTED] conducted an FBA and developed a BIP. The BIP targeted elopement, verbal outburst and aggression (Parent Exhibits N and O). Given his frequent and dangerous behaviors, she recommended a full-time push in ABA program.

While the Student was in first grade in an ICT classroom, the CSE met on February 26, 2020, and recommended an IEP to commence on March 11, 2020. The IEP stated he was making progress in all subject areas, and his reading and math were on grade level, while his writing was approaching grade level (Parent Exhibit C-2). Despite the positive academic comments and a program including a behavior intervention plan and 1:1 paraprofessional, the IEP noted that: “starting from the morning routine [the Student] struggles to accomplish tasks without having temper tantrums, yelling, using inappropriate language or aggressive behaviors such as throwing objects or hitting another person” and he was becoming increasingly demanding of his paraprofessional and the other adults around him. The supports put in place in the classroom were “yet to be successful for long periods of time.” (Parent Exhibit C-3). His teachers noted that his lack of classwork and refusal to participate was beginning to inhibit his progress in the classroom. (Parent Exhibit C-4). The IEP recommended ICT services for his core academic subjects, as well as group counseling 1 time per week for 30 minutes, group OT 2 times per week for 30 minutes, group PCT 1 time per month for 30 minutes, speech language therapy 2 times per week for 30 minutes in a small group and 1 time per week for 30 minutes individually. The IEP also recommended a.8 1:1 paraprofessional for behavioral support and 15 hours per year of professional development for the staff in behavior management techniques (Parent Exhibit C-18-19).

The school did not approve a fulltime ABA program, and the Parent initiated a DPC in March of 2020. The IHO ordered several independent evaluations (T:107). From September to November 2020, [REDACTED] of [REDACTED] conducted an autism skills assessment (Parent Exhibit P-H). In order to address his inappropriate, disruptive and dangerous behaviors and address his academic, social and functional skills in his ICT class, she opined that he required 30 hours per week of push-in ABA and 10 hours of home ABA by a certified, experienced and trained ABA therapist, along with 3 hours per week of supervision and 1 hour per week of PCT (Parent Exhibit H-6). The report issued a recommendation for compensatory ABA services that was ordered by the previous IHO.

In September and November of 2020, the Student was also administered a private neuropsychological evaluation (Parent Exhibit I). His full-scale IQ is average with a verbal comprehension score in the high average range and borderline processing speed score. His word reading or decoding was above average to superior and comprehension and spelling were average. His math skills were in the low average range. His receptive language was average and oral discourse comprehension was high average. His hyperactivity and attention problems were elevated. Autism rating scales placed him in the mild to moderate range of autism spectrum disorder (Parent Exhibit I-13-17).

[REDACTED] opined that the Student presents with high-functioning autism spectrum disorder with a strong potential for learning with the appropriate structure and support. He diagnosed him with ASD without accompanying language or intellectual impairment, ADHD and specific learning disability in written expression. He recommended a specialized private school or continuation in his current setting with a behavior plan informed and supervised by a BCBA (Parent Exhibit I-10).

A private OT evaluated the Student in September of 2020 and recommended specific goals to address the physical act of writing, buttoning, tying his shoes and sensory strategies for focusing and attention. The OT recommended sensory-based OT 3 times per week for 30 minutes in a 1:1 or group setting (Parent Exhibit J).

In September of 2020, a private physical therapy evaluation was administered finding that the Student presented with gross motor delay. His weakness at the core and lower extremities, poor body awareness and balance/postural control, difficulty integrating sensory information, decreased bilateral coordination and decreased cardiovascular endurance impact his ability to access school curriculum resulting in difficulty navigating the school environment efficiently, keeping up with peers and participating in physical education in an age-appropriate manner. Physical therapy was recommended 3 times per week for 30 minutes on an individual basis (Parent Exhibit M-6).

In October of 2020, [REDACTED] administered an independent speech and language processing evaluation (Exhibit P-K). The Student demonstrated adequate phonological processing skills for reading and receptive, expressive and superlinguistic language scores in the range of normal to high average. His isolated area of deficit was in the area of pragmatic language. She recommended speech and language therapy one time per week 1:1 and two times per week 3:1 to improve pragmatic language, social communication and following directions (Parent Exhibit K-12).

[REDACTED] also conducted an auditory processing evaluation. The Student presented with an auditory processing disorder. [REDACTED] recommended classroom modifications, including special seating, extended time for testing, pre-teaching and study guides and notes, repetition, explanation, clarification and lengthy information broken down. She also recommended an FM System or low gain noise reducing hearing aids with microphone clip for staff (Parent Exhibit L-6).

The previous IHO ordered 920 hours of compensatory ABA in January of 2021. The services began in February of 2021, and the Parent testified that the improvement in the Student’s behaviors was immediate (T:108-09). The teachers were able to concentrate on educational goals, rather than behaviors (T:109). He testified that the PCT and supervision were integral parts of the program (T:111). On May 25, 2021, the staff wrote to the Parents that they were excited about the work the Student was doing in the classroom (Parent Exhibit W). The Parent testified that his progress was steady, and there was no regression while the ABA was in place (T:116). The Parent testified that the home-based ABA also made a difference in the home (T:119-20).

On December 7, 2021, the CSE met for an annual review meeting. It is noted that due to the previous impartial hearing, the Student was receiving 1:1 ABA support in the classroom. With the support of an adult, he most often completes homework and attempts all independent and group work. The IEP notes the Student’s need for prompting and individual attention in order to work independently. The IEP indicates that he has fallen behind his peers in reading and math (Parent Exhibit B-3-4). The IEP states he has made moderate progress in speech and language therapy. A reduction in speech language therapy was recommended. His counselor indicates he has made great progress in his behaviors since the start of school in September. He continues to have difficulty socializing with peers (Parent Exhibit B-5-6). His PT recommended discontinuation of PT services as he can fully participate in recess, gym and other physical activities (Parent Exhibit B-7).

The IEP attributes a substantial decrease in the frequency of outbursts to smaller class size (24 instead of 32), support of multiple adults in the room, social distancing protocols due to COVID and opines that a larger class size with increased social interaction and proximity will be overwhelming and trigger dangerous emotional outbursts as in previous years (Parent Exhibit B-8). None of the testimony or evaluative reports supported this proposition. The CSE against the objection of the Parents recommended removal from the ICT classroom in his neighborhood school and placement in a 12:1:1 classroom in a New York State Education Department approved nonpublic day school with counseling, OT and speech and a 1:1 paraprofessional. There was no recommendation for PT or PCT (Parent Exhibit B-17).

The compensatory ABA hours continued, and on a classroom reading assessment on March 4, 2022, the teacher reported that the Student had moved up three reading levels since December of 2021 and that he was now reading on grade level (Parent Exhibit T). By letter dated March 2, 2022, the Parents wrote to the school requesting that the Student’s IEP be amended to include full time one-to-one ABA services at school, as the compensatory hours were about to run out, but the Parents received no response (Parent Exhibit U, T:113). The Parent testified that when the compensatory hours abruptly ended in March of 2022, the Student’s behaviors came right back (T:111-12). By letter dated March 24, 2022, the Parents were advised of a two day in-school suspension. Unfortunately, the suspension letter lacks the required description of the behavior that resulted in the suspension, but the Parent relayed that the Student engaged in a physical altercation with another student and broke his glasses (Parent Exhibit S).

The affidavit of psychiatrist [REDACTED] attested that she conducted a psychiatric evaluation of the Student and issued a report, dated April 12, 2022 (see Parent Exhibit F). She confirmed his diagnoses of Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD) and gave him an additional diagnosis of Oppositional Defiant Disorder (ODD). She described him as having strong cognitive and academic abilities, but that his maladaptive behaviors were interfering with his learning and were a safety concern for him and others. She opined that he requires an intensive push-in school-based and home-based ABA program to replace his maladaptive behaviors and help him master appropriate coping strategies, social skills and pragmatic language skills (Exhibit P-EE).

On cross-examination, [REDACTED] testified that ABA was necessary for the Student to make improvement, that the prescribed amount he was receiving was appropriate and that he deteriorated once his compensatory ABA hours stopped abruptly (T:45-48;55-57).

BCBA and Director of [REDACTED], [REDACTED] testified that she conducted an FBA of the Student in February of 2020 in his public school ICT classroom. She observed him eloping, acting physically aggressive toward staff and students and making verbal threats. His behaviors were high in frequency, intensity and duration and warranted and behavior intervention plan (BIP) (T:68). She observed that his paraprofessional was not trained or equipped to manage his behaviors, and he required ABA by trained staff to decrease behaviors and replace them with functional skills (T:69). Her report recommended 30 hours per week of push-in ABA by behavior trained staff 30 hours per week, 14 hours per week of home-based ABA as a wraparound service, 4 hours per month of PCT and 8 hours of supervision of the program (T:69-70; Exhibit P-O). She emphasized that the home program and PCT was necessary to provide continuity and insure generalization of skills across settings (T:70-71).

[REDACTED] also conducted an autism skills assessment of the Student in November of 2020 (Exhibit P-H). The severity of his behaviors continued to prevent him from accessing his education, and the intervention of the paraprofessional continued to be unsuccessful (T:73-74). At that time, she reduced her recommendation for home-based program hours from 14 to 10 hours per week and increased her supervision recommendation from 8 hours per month to 3 hours per week.^[3] School based ABA and PCT recommendations remained the same.

She testified that based upon the January 2021 IHO order, her team began providing ABA in his school program and that his behaviors immediately began to decrease. The school staff was very welcoming, appreciative and open to collaboration (T:77-78). The Student responded very well to a token economy system and visual schedules (T:78). The building principal referred to her team as “angels” for the progress they were seeing with the Student, and was disappointed when the ABA stopped (T:79,82).

[REDACTED] also provided PCT to the parents. She provided them with support on how to make modifications to prevent behaviors, structuring his evening and planning for transitions and the termination of preferred activities (T:86). The strategies taught in PCT decreased his behaviors at home and helped the parents get him ready for the school day (T:87). Their services unfortunately abruptly ended when the compensatory hours were exhausted in February of 2022, and since then his explosive behaviors in school have returned (T:84-85).

[REDACTED] testified that she attended the December 7, 2021 CSE meeting. She stated that the CSE discussed how much progress the Student had been making and how his behaviors were being managed with the inclusion of the ABA services. His behaviors were under control, and he was able to participate in his related services such as speech therapy, where previously his aggressive behaviors and eloping interfered (T:83-84).

[REDACTED] testified that the Student is cognitively able to benefit from a regular school setting, but requires full-day ABA support to manage his behaviors for at least another year where then they can be faded out systematically once his inappropriate behaviors are replaced with appropriate skills (T:89-90). She recommends 30 hours per week of ABA push-in services, 4 hours per week of BCBA supervision, 10 hours per week of home-based ABA services and 1 hour per week of PCT (T:91).

DECISION

THE DISTRICT FAILED TO RECOMMEND AN APPROPRIATE PROGRAM AND PLACEMENT, FAILED TO OFFER APPROPRIATE METHODOLOGIES TO ADDRESS THE STUDENT’S SPECIFIC NEEDS AND FAILED TO OFFER PCT AND BCBA SUPERVISION.

The prior DPC was filed in March of 2020, and a final decision was issued on January 19, 2021. A copy of that decision is not in the record. An IEP was developed on February 26, 2020, just prior to the last DPC. No IEP was in place for March 2021 to December 2021. The next IEP in the record is dated December 7, 2021 for the 2021-22 school year. Therefore, the District failed to offer the Student an appropriate program from March 2021-June 2021 and from September 2021-December 2021. From December 2021 through June 2022, the District failed to meet its burden of demonstrating that the IEP (Parent Exhibit B) offered the Student a FAPE. The December 7, 2021 IEP is also the operative IEP for the start of the 2022-23 school year. The annual review is not projected to happen until December 7, 2022 (Parent Exhibit B-1).

Aside from the fact that not a single witness testified on behalf of the recommendations in Parent Exhibit B, the witnesses who did testify, [REDACTED], [REDACTED] and the Parent, as well as the current evaluative reports, all supported a less restrictive environment than that recommended in Parent Exhibit B^[4]. The record reflects that the Student has average cognitive abilities and with the additional ABA supports and services to address his behavioral needs, the Student made meaningful progress in the regular education environment, and did not require removal to a separate segregated school.

Relief in the form of IEP amendments and the prospective placement of a student in a particular type of program and placement, such as the order sought by the parent in this matter directing the specific contents of a future IEP, have the effect, in most circumstances of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y. Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]). Application of a Student with a Disability, SRO Appeal No. 21-207.

However, see Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 [D.D.C. Aug. 24, 2012] [noting that prospective placement is not an appropriate remedy until the IEP for the school year for which such placement is sought has been developed and the parent challenges that IEP] (emphasis added). In addition, IDEA permits a hearing officer to “fashion an appropriate remedy.” (P. v. Newington, 546 F.3d 111, 123 [2nd Cir. 2008]. The CSE has made its recommendations moving forward, and the IEP at issue is not appropriate.

While the District may have failed to offer an appropriate program from March 2021 to December 2021, the Student was receiving compensatory supplementary ABA services during that timeframe to enable him to make meaningful progress. Remarkably, his teacher reported his reading increased by 3 levels from December 2021 to March 2022. He was engaged and completing assignments in the classroom, and his behaviors had greatly improved. I find the December 7, 2021 recommended 12:1:1 nonpublic school placement was not the LRE and was not appropriate. The Student with the compensatory ABA services continued to make meaningful progress in his ICT placement until the middle of March 2022. The class did not get larger in March 2022; his services were removed.

The Student regressed following the abrupt removal of the services. The nonpublic school placement recommended for the start of the 2022-23 school year is not appropriate, and the CSE should convene and recommend placement in an ICT class in a neighborhood school with 30 hours per week of push in ABA services, 2 hours per week of BCBA supervision and one hour per week of PCT^[5]. A separate paraprofessional is not required in the classroom when the ABA provider is present.

SPEECH-LANGUAGE SERVICES, OCCUPATIONAL THERAPY SERVICES, PHYSICAL THERAPY SERVICES AND COUNSELING SERVICES.

The October 17, 2020 speech and language evaluation recommended speech services 3 times per week. The November 1, 2020 occupational therapy evaluation recommended services 3 times per week and the September 24, 2020 physical therapy evaluation recommended PT be reinstated 3 times per week. Neither the current IEP nor a prior written notice sets forth a rational basis for rejecting the proposed recommendations. The current IEP recommends counseling services one time per week in a group of 2 for 30 minutes. I find no basis in the record for a change in this service.

The CSE shall reconvene and review the Student’s current functioning, IEP goals and related services recommendations, reinstate PT and review the frequency and duration of all related services.

HOME-BASED ABA SERVICES

Several courts  have held that the IDEA does not require school districts, as a matter of course, to design educational programs to address a student's difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom (see, e.g., F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 [S.D.N.Y. June 8, 2016]; L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *8-*10 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100 [2d Cir. Jan. 19, 2017]; P.S. v. New York City Dep't of Educ., 2014 WL 3673603, at *13-*14 [S.D.N.Y. Jul. 24, 2014]; M.L. v. New York City Dep't of Educ., 2014 WL 1301957, at *11 [S.D.N.Y. Mar. 31, 2014]; see also Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 [1st Cir. 2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 [11th Cir 1991]). (Application of NYC DOE, SRO Appeal No. 21-118).

[REDACTED] testified that she recommended the home-based ABA program in order for the Student to generalize skills to home and across settings (T:70,74,96). Based upon the record in this case and relevant caselaw, I do not find that the Student is entitled to home-based ABA hours to generalize skills. The PCT will assist the Parents in managing behaviors at home.

THE DISTRICT FAILED TO PROVIDE APPROPRIATE ASSISTIVE TECHNOLOGY

Neither the current IEP, a prior written notice nor any evidence introduced into the record sets forth a basis for the rejection of the AT evaluation’s recommendation for an FM trainer. Based upon the uncontroverted evidence, I find that the CSE should reconvene and recommend the addition of an FM system to the Student’s current IEP.

REMAINING ISSUES

I have thoroughly reviewed the entire record and find no basis for ordering relief for the following allegations: (1) failed to follow the requirement under the Regulations in notifying the Parents when developing and changing the Student’s IEP, (2) failure to provide the Parents with regular progress reports, (3) failure to provide a properly trained paraprofessional, (4) failure to provide the services mandated on the Student’s IEP and (5) failure to provide educational records.

ORDER

Based upon the District’s failure to offer the Student a FAPE for the end of the 2020-21 school year and 2021-22 school year,

IT IS HEREBY ORDERED that within 15 days of the date of this decision, the CSE shall convene and recommend placement in an ICT class in a neighborhood school with 30 hours per week of push in ABA services by appropriately trained staff, 2 hours per week of BCBA supervision and one hour per week of PCT.

IT IS HEREBY ORDERED FURTHER that within 15 days of the date of this decision, the CSE shall reconvene and review the IEP goals and related services recommendations, reinstate PT and review the frequency and duration of all related services.

IT IS HEREBY ORDERED FURTHER that within 15 days of the date of this decision, the CSE shall convene and recommend the addition of an FM system to the Student’s current IEP.

Dated: June 24, 2022

______________________________

LISA S. RUSK

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.

DOCUMENTS ENTERED INTO THE RECORD

• • Parent Exhibits Exhibit Number Number Exhibit Date of Pages A Demand for Due Process Hearing 03/11/22 20

B IEP 12/07/21 26

C IEP 02/26/20 26

D IEP 05/29/19 22

E IEP 03/12/18 12

F Psychiatric Evaluation 04/12/22 8

G Report Card 2021-2022 Term 1 10/29/21 2

H Autism Skills Assessment 11/25/20 10

I Neuropsychological Evaluation Multidates from Sept. to Nov. 2020 17

J Occupational Therapy Evaluation 11/01/20 12

K Speech and Language Evaluation 10/17/20 20

L Auditory Processing Evaluation 10/17/20 8

M Physical Therapy Evaluation 09/24/20 6

N Behavior Intervention Plan 02/2020 7

O Functional Behavior Assessment 02/2020 11

P Functional Behavior Assessment 05/15/19 8

Q Psychiatric Evaluation 05/06/19 6

R Neuropsychological Evaluation 04/02/19 9

S [REDACTED] Notice of Principal Suspension 03/24/22 2 T Communication from Teachers 03/04/22 1

U Letter to School Requesting ABA Services 03/02/22 2

V [REDACTED] Prior Written Notice 12/15/21 4

W Communication from Teachers 05/25/21 1

X [REDACTED] Special Program Adaption Document for 03/02/21 5

Blended and Remote Learning

Y [REDACTED] Special Program Adaption Document for 01/29/21 5

Blended and Remote Learning

Z [REDACTED] Special Program Adaption Document for 09/29/20 6

Blended and Remote Learning

AA [REDACTED] Prior Written Notice 03/11/20 3

BB [REDACTED] Review Meeting to Modify BIP 12/16/19 2

CC Resume of [REDACTED] Undated 3

DD Curriculum Vitae of [REDACTED] Undated 6

EE Affidavit of [REDACTED] 05/03/22 3

Footnotes

[1] A copy of the decision is not in the record, so it is unclear as to what part of the 2020-21 school year was addressed in his decision.

[2] The Parents’ attorney withdrew without prejudice the compensatory services request (T:40).

[3] However, the report states two hours per week of BCBA supervision on page 6 and 7 of Parent Exhibit H.

[4] Although the neuropsychological recommended alternative placements, it was made prior to the ABA trial, and the public school placement is the LRE.

[5] The current IEP makes no recommendation for PCT although required for all students with autism – see Commissioner’s Regulations at 200.13(d).