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CASE NUMBER: 590498 - NYC: 241429
FINDINGS OF FACT AND DECISION
Student’s Name: Redacted (hereinafter referred to as “Student”)
Date of Birth: Redacted
District: Redacted
Hearing Request by: Redacted (hereinafter referred to as “Parent”)
Hearing Date: May 16, 2023
Actual Record Close Date: June 20, 2023
Hearing Officer: Marisa Carbone, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 16, 2023
For the Student:
Redacted, Esq., Attorney
Redacted, Parent Student
For the Department of Education:
Redacted, District Representative
ISSUES
This matter comes before the undersigned Impartial Hearing Officer (“IHO”)
through the Parent’s Due Process Complaint (“DPC”) filed on or about November 7, 2022. In the DPC, the Parent asserted that the District failed to provide a free appropriate public education (“FAPE”) during the 2020/2021, 2021/2022, and 2022/2023 school years for failure to provide an appropriate IEP and program for the Student. The Parent requested relief in the form of, inter alia, an appropriate non-public school placement, Applied Behavior Analysis (“ABA”) therapy and compensatory services.
PROCEDURAL HISTORY
The undersigned Hearing Officer was appointed to the above matter on December 21, 2022. A prehearing conference was held on January 25, 2023, to discuss the issues in the case and order independent educational evaluations. An Interim Order was entered whereby the following independent evaluations were ordered: neuropsychological, assistive technology, [REDACTED] therapy, speech and language therapy, occupational therapy, physical therapy, functional behavior assessment/behavior intervention plan, and an ABA skills assessment. (See, Transcript).[1] Status conferences were held on March 3, 2023, and April 11, 2023. A hearing was held on May 16, 2023. The District failed to appear and was held in default. The Parent presented exhibits, which were admitted into the record[2] and presented six witnesses through affidavits. The record closed on June 20, 2023. There were five extensions of the timelines.
FINDINGS OF FACT
The Student was a Redacted student who attended 2nd grade in a NYC public school in a 6-1-1 special education class. The Student is diagnosed with Autism Spectrum Disorder (“ASD”), social communication-Level 3-requiring very substantial supportrepetitive behavior-Level 3 requiring very substantial support, with accompanying intellectual and language impairments, a Language Disorder, and Attention Deficit Hyperactivity Disorder, inattentive type. The Student is classified as a Student with Autism and his classification is not in dispute. The Student was described as having significant social and communication delays, disruptive repetitive behaviors, and difficulty with activities of daily living. He was further described as having cognitive impairment across domains that include attention and functional language. At the start of the 2022/2023 school year, his reading and math levels were determined to be at the prekindergarten level.
The District failed to appear for the hearing. Therefore, the issue as to whether the Student received a FAPE for the 2020/2021, 2021/2022 and 2022/2023 school years is not in question.
The Student received a neuropsychological evaluation in February and April 2023. The evaluator noted that during the evaluation, the Student “exhibited significant problems with relatedness, joint attention, and restricted and repetitive patterns of behavior. He demonstrated severe deficits in verbal and nonverbal communication, and absent eye contact. He exhibited substantial difficulty with listening to directions and performing tasks”. He was assessed as requiring very substantial support. She further noted that he had not made any progress over the last year towards the goals on his IEP. The evaluator recommended that the Student attend “placement in a special education program that utilized ABA methodology with daily instruction infused with ABA principles and that given the magnitude of his cognitive, academic, and social delays the Student needs placement in a special education school designed to address development and academic needs of children with severe manifestation of ASD”.
At the hearing, Parent admitted into evidence the reports from the independent evaluations. It was also recommended that the Student receive 30 hours per week of push in ABA therapy until a non-public school can be located and that 10 hours of home-based ABA therapy per week be provided to the Student plus 2 hours per week of BoardCertified Behavior Analysis (“BCBA”) supervision. In addition, it was recommended that the Student receive and use an assistive technology device plus 20 hours of training to learn how to use the device. Since the Student was denied a FAPE for 3 years, the evaluators found the Student to be in dire need of compensatory services.
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, Forest Grove v. T.A., 129 S. Ct. 2484[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.
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 failed to appear. Based on my review of the documents and affidavit testimony, I find that the District did not provide the Student with FAPE for the 2020/2021, 2021/2022 and 2022/2023 school years. Based on the evidence presented by the Parent, it is clear that the Student requires a specialized special education school immersed in ABA therapy. 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, I find that the Student is entitled to compensatory services to attempt to place the Student in the position he should have been in, if he had received the supports required by the Student as indicated in the independent educational evaluations and based on the denial of FAPE for the 2020/2021, 2021/2022, 2022/2023 school years.
DECISION
Based on a review of the record and the details mentioned above, I find that the District failed to provide FAPE to the Student for the 2020/2021, 2021/2022, 2022/2023 school years. I further find that the Student should be placed in a special education program immersed in ABA therapy, and that until a school is found for the Student, he should receive 30 hours per week of push in ABA therapy. I further find him eligible for compensatory services as ordered below.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby: 1) ORDERED, that the District shall reconvene the CSE and defer the Student to the CBST for a nonpublic school placement that provides full day ABA therapy for students with Autism, and incorporate the recommendations in the independent evaluations in his IEP, within two weeks of this order; 2) ORDERED that until a placement is found, the District shall provide and fund the Student with 30 hours per week of push in ABA therapy by a therapist certified in ABA therapy, to be provided by a provider of the Parent’s choosing at market rate; 3) ORDERED that the District shall provide and fund 10 hours per week of home-based ABA therapy and 2 hours per week of BCBA supervision, to be provided by a provider of the Parent’s choosing at market rate;
4) ORDERED that the District shall provide and fund an assistive technology device for the Student and 20 hours of training, to be provided by a provider of the Parent’s choosing at market rate;
5) ORDERED that the District shall provide the Student with 552 hours of speech language therapy, to be provided by a speech language pathologist of the Parent’s choosing at market rate;
6) ORDERED that the District shall provide the Student with 92 hours of occupational therapy, to be provided by an occupational therapist of the Parent’s choosing at market rate;
7) ORDERED that the District shall provide the Student with 414 hours of social skills training, to be provided by a therapist trained in this field of the Parent’s choosing at market rate;
8) ORDERED, that the District shall provide the Student with 92 hours of [REDACTED] therapy, to be provided by a specialist trained in this field of the Parent’s choosing at market rate;
9) ORDERED that the District shall provide the Student with 92 hours of physical therapy, to be provided by a therapist of the Parent’s choosing at market rate;
10) ORDERED, that the District shall provide the Parent with 276 hours of PCAT, to be provided by a specialist trained in this field of the Parent’s choosing at market rate;
11) ORDERED, that the District shall provide the Student with 5,520 hours of ABA therapy and 276 hours of BCBA supervision, to be provided by a provider of the Parent’s choosing at market rate.
DATED: June 22, 2023
Marisa Carbone
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. District Evidence List
NONE
Parent Evidence List No. Pages Document Date A Parent’s Due Process Complaint 11/07/22
6
B Individualized Education Program 03/24/21
15
C Individualized Education Program 04/13/22
31
D Independent Assistive Technology Evaluation 03/13/23
12
E Independent Speech Therapy Evaluation 03/13/23
12
F Independent Occupational Therapy Evaluation 05/08/23
11
G Independent Physical Therapy Evaluation 05/08/23
13
H Independent [REDACTED] Therapy Evaluation 03/13/23
9
I Independent ABA Skills Assessment 02/25/23
12
J Independent FBA/BIP 02/28/23
18
K Independent Neuropsychological Evaluation 05/10/23
17
L 3 Affidavit of Redacted 5/15/23
M 2 Affidavit of Redacted 5/11/23 N 3 Affidavit of Redacted 5/15/23
O 2 Affidavit of Redacted 5/15/23
P 2 Affidavit of Redacted 5/11/23
Q 2 Affidavit of Redacted 5/15/23
IHO Evidence List
None
Footnotes
[1] Reference to the Transcript shall be referred to as “T”.
[2] The list of exhibits is attached.