NY IHO #97376-20180708: Impartial...

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

In the Matter of X.X., by her parent, Y.Y.,

IHRS Case ID No.

97376

Petitioner,

-against-

[REDACTED] UNION FREE SCHOOL DISTRICT,

Respondent.

An Impartial Due Process Hearing Under the Individuals with Disabilities Education Act, 20 United States Code Section 1415, and New York State Education Law, Article 89, Section 4404 X

FINDINGS OF FACT AND DECISION

Mindy G. Wolman, Esq.

Impartial Hearing Officer

Law Office of Mindy Wolman

221-59 59th Avenue, Second Floor

Bayside, New York 11364

(718) 279-3142

RECORD CLOSE DATE: JULY 4, 2018

IHRS

On May 23, 2016, the parent (the “Parent”) of X.X. (the “Student”) filed a due process complaint under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the [REDACTED] Union Free School District (the “District”) under case number 97376 (Ex. 1).^[1] An impartial hearing officer (“IHO”) was duly appointed in that proceeding. A second due process proceeding was filed on August 19, 2016 under case number 99178 (Ex. 103). The two cases were consolidated under case number 97376 on September 8, 2016 (Ex. III). A third due process complaint was filed by the Student’s father on September 8, 2016 (the first two had been filed by the Student’s mother), but that case was ultimately withdrawn. I was appointed as IHO in this consolidated proceeding on December 6, 2017, after the recusal of the three prior IHOs appointed to hear this case.

On December 4, 2017, the Parent filed a due process complaint under case number 510430. On February 5, 2018, I issued an order denying consolidation of the two cases. (Ex. VIII).

IHRS

Hearings were held before the first IHO appointed to hear this case on August 19, 2016, September 1, 2016, September 8, 2016, September 13, 2016, October 27, 2016, November 2, 2016, November 21, 2016, December 5, 2016, and December 15, 2016, and March 28, 2017. She recused herself in this matter and second IHO was appointed. In an email dated May 6, 2017, the second IHO appointed in the matter dismissed the case. An appeal to the State Review Officer (“SRO”) ensued. The SRO vacated the dismissal and remanded the matter for further proceedings (Application of a Student with a Disability, Appeal No. 17-041) (Ex. IV).^[2] After remand, hearings were held on September 18, 2017, October 18, 2017, and December 5, 2017 before a third IHO, who then recused himself. A pre-hearing conference was held before me on December 14, 2017, and substantive hearings went forward before me on January 25, 2018, May 1, 2018, and May 25, 2018.^[3] The compliance date for issuing a decision in this case was extended on multiple occasions (Ex. XI).^[4]

BACKGROUND AND POSITIONS OF THE PARTIES

X.X. is a six-year-old female student who is was classified as a preschool student with a disability during the 2014-2015 and 2015-2016 school years and as a student with a disability having [REDACTED] for the 2016-2017 school year. Her classification and eligibility for special education services is not in dispute.

The May 23, 2016 due process complaint challenges the provision of a free appropriate public education (“FAPE”) to the Student during the 2014-2015 and 2015-2016 school years (Ex. 1). In that complaint, the Parent seeks four hundred (400) hours of compensatory

REDACTED]”) instruction, ninety (90) sessions of compensatory speech

IHRS

therapy, ninety (90) sessions of compensatory [REDACTED] therapy, one hundred and fourteen hours (114) of special education itinerant teacher (“[REDACTED] SEIT”) services and $500,000.00 in monetary damages to compensate to “stress and out of pocket expenses and the cost of bringing this action” (Ex. 1).

In the due process complaint filed on August 19, 2016 (Ex. 103) the Parent challenged the District’s program and placement recommendations for the 2016-2017 school year, and sought the following relief for that school year: [REDACTED] therapy five times per week, a full day program within the District with 2.5 hours per day of [REDACTED] five days per week, individual speech therapy five days per week, individual [REDACTED] therapy five days per week, and a 1:1 teaching assistant (Ex. 103).

At the January 25, 2018 hearing, I sustained the Parent’s objection to the District presenting witness testimony about statements made at a resolution session meeting held in this case. However, I granted the District leave to submit legal authority in support of its position that such testimony was admissible in IDEA hearings. The District submitted a memorandum of law on February 1, 2018, and I advised the parties (via email) of a briefing schedule for the Parent’s opposition papers and the District’s reply thereto. The Parent did not file any papers in opposition to the District’s memorandum of law. Based on the legal authority cited in the District’s memorandum of law, I found that I erred when I sustained the Parent’s objection to testimony regarding the resolution session meeting and ordered that the District should be permitted to present testimony about discussions that took place and statements that were made at the resolution meeting held in this case. I issued an interim order to that effect on March 8, 2018 (IHO Ex X).

The Parent maintains that the District did not offer the Student a FAPE for the school years at issue herein. In her post-hearing brief (Ex. XIII), the Parent maintains that the Student required speech and [REDACTED] therapy five times per week and required a 1:1 to “ensure her safety” and for aggressive behaviors (Ex. XIII at 2). The Parent also maintains that the failure to provide extended school day services constituted a FAPE deprivation (Id.). The Parent’s postIHRS hearing brief asserted that the Student’s 2014, 2015, and 2016 summer programs were not sufficiently individualized, that the Student did not make meaningful progress during the 20142015 and 2015-2016 school years, and that the District refused to allow the Student to attend a program with nondisabled peers for the 2016-2017 school year (Ex. XIII). She maintains that the Student is entitled to the relief demanded in the consolidated due process complaints.

The District takes the position that it offered the Student a FAPE for the various time periods at issue herein. The District’s Committee on Preschool Special Education (“CPSE”) placed the Student in a 6:1+2 special class (6 students, one teacher, and two teaching assistants) at the [REDACTED] Preschool (“[REDACTED]”) for the 2014-2015 and 2015-2016 school years. There were multiple IEPs in place during that two-year period.

The District’s Committee on Special Education (“CSE”) recommended placement in a 6:1+2 special class (six students, one teacher, and two teaching assistants) at the [REDACTED] [REDACTED] Center (“[REDACTED]”) for the 2016-2017 school year (Ex. 101). The Parent objected to this placement because it did not provide the Student with opportunities for interaction with nondisabled peers. The Parent rejected the [REDACTED] placement and kept the Student home. The CSE reconvened, and the Parent requested home instruction while placement packets were sent to other schools. Per the Parent’s requested, the Student was placed on home instruction and remained on home instruction for several months. The CSE reconvened on March 24, 2017 and initially offered an 8:1+4 District placement with all of the services previously requested by the Parent. The Parent rejected that program and requested placement in the [REDACTED] Union Free School District (“[REDACTED]”) instead. The CSE prepared an IEP recommending placement in a 12:1+1 class in [REDACTED], with two and a half (2.5) hours of [REDACTED] daily, a 1:1 teacher assistant, seven hundred and fifty (750) make-up hours of [REDACTED] instruction, one hundred and ninety-eight (198) hours of makeup [REDACTED] SEIT services in the home, one hundred and forty (140) 30-minute sessions of make-up [REDACTED] therapy, individual [REDACTED] therapy five times per week for 30minute sessions, individual [REDACTED] therapy five times per week for 30-minute sessions, IHRS and individual [REDACTED] therapy five times per week for 30-minute sessions, and a 1:1 teacher assistant (Ex. 112E). According to the District, the Parent agreed to the March 24, 2017 IEP, accepted the [REDACTED] program and placement, and agreed that the program was appropriate. The District maintains that the Parent was offered all of the requested relief at the March 24, 2017 meeting, with the exception of monetary and punitive damages, which was previously dismissed because Parent “was not entitled to same under the IDEA” (IHO XII at 1314). It requests that the Parent’s requests for relief be denied in their entirety, and that the claims be dismissed as moot.

The District submitted an extensive documentary exhibit package in this proceeding. The Parent did not submit any document evidence (see Tr. 2135-6). The District presented the testimony of two special education teachers from the Student’s preschool program, the assistant director of the Student’s preschool program, the principal of the [REDACTED] [REDACTED] Center, two a [REDACTED] pathologists, two board certified behavior analysts, and the District’s Assistant Superintendent for Special Education and Student Support Services. The Parent testified at the Hearing and presented the testimony of the District’s Assistant Superintendent for Special Education and Student Support Services. Both parties submitted posthearing written closing statements (IHO Exs. XII and XIII).

The scope of this proceeding upon remand is limited by the SRO decision. The SRO noted that the Parent did not challenge the prior IHO’s August 1, 2016 decision dismissing the request for monetary damages and that neither party had challenged any of the pendency decisions (IHO IV at 10). The IHO stated that:

In this case, I am not reaching a decision on the merits of the case, and as such, there is no finality to the IHO’s determination concerning monetary damages and pendency; however, in light of the remand further discussed below, unless “cogent and compelling reasons militate otherwise”, the IHO should restrain himself from rehearing those issues. (Ex. IV at 12-13) (citations omitted)

Although the SRO vacated the dismissal of the DPC, the SRO did not find that the IHRS

Parent’s claims were not moot. Instead, the SRO ruled that the IHO’s ruling on mootness was “premature as the parent had not yet had an opportunity to present her case and the parent’s due process complaint notice included a claim for out of pocket expenses for private [REDACTED], OT, and services, which was not addressed” (Ex. IV at 13) (emphasis added). The SRO went on to rule that:

In this case, it is undisputable that the March 2017 IEP offered much of the relief requested by the parent in her May 2016 and August 2016 due process complaint notices. However, it did not, as the district suggests, resolve every last claim in the due process complaint notice. For example, on appeal, the parent asserts that, part of the relief she is seeking, includes monetary reimbursement.

A reasonable reading of the parent’s May 2016 due process complaint notice shows that the parent requested reimbursement for out of pocket expenses that she alleged to have incurred for private [REDACTED], OT, and services. The parent also requested that the IHO determine the number of hours of make-up services the student should receive, presumably after finding, as the parent argues, that there was a denial of a FAPE.

These unresolved matters alone preclude a finding that the case can be dismissed as moot. (Ex. IV at 14) (citations omitted).

The SRO also ruled that “[n]otwithstanding the above, while this case should not have been dismissed as moot at the time that the district made its motion, the district is not precluded from renewing its motion upon remand and addressing the questions raised therein (Ex. IV at 15).

At the conclusion of the SRO opinion, the SRO wrote:

It is each parties’ responsibility to assist the IHO by identifying the remaining issues that must be addressed. Additionally, the IHO is reminded that any further substantive relief awarded to the parent as an equitable matter must be predicated upon a finding that the district did not offer the student a FAPE. Furthermore, the IHO has broad authority and discretion when fashioning equitable relief under the IDEA, and should the IHO ultimately conclude that the district failed to offer the student a FAPE, it would not be unreasonable for the IHO to consider the make-up services and/or IHRS compensatory educational services the district has already offered to provide to the student - as set forth in the March 2017 IEP - when crafting a reasonable award of compensatory educational services as an equitable remedy that is tailored to meet the unique circumstances of this case (Ex. IV at 16) (citations omitted).

It is against this backdrop that I must examine the parties’ testimony, documentary evidence, and arguments in this proceeding.

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("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 Individualized Education Program (“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, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 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).

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement ( NYS Educ. Law § 4404(1)(c)). Since this proceeding does not involve a unilateral placement, the District has the burden of proof on whether or not the Student’s program and placement for the school years at IHRS issue was appropriate. Mootness

The SRO vacated the dismissal of the consolidated DPC after finding that the case was not moot based, in large part, on the fact that the Hearing Record was not yet complete. The District had not completed the presentation of its case, and the Parent had not yet had the opportunity to present her case. However, the SRO also specifically ruled that: “Notwithstanding the above, while this case should not have been dismissed as moot as of the time that the district made its motion, the district is not precluded from renewing its motion upon remand and addressing the questions raised therein” (Ex. IV, at 15). The District continued to assert that the matter was moot throughout the hearing upon remand, the Parent assert that the matter was not moot, and I advised the parties that the matter would be addressed in the final decision issued herein. The SRO wrote as follows:

The parent asserts on appeal that she is entitled to a determination as to whether the district offered the student a FAPE in the LRE, contending that the IHO should be required to rule on the appropriateness of the [REDACTED][REDACTED] placement and whether the district was required to offer the student a placement in the district. One of the exceptions of the mootness doctrine provides that a claim may not be moot despite the end of the school year for which the student’s IEP was written, if the conduct complained of is “capable of repetition, yet evading review.” The “capable of repetition yet evading review” exception applies only in limited situations and is severely circumscribed. It must be apparent that “the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration. Many

IEP disputes escape a finding of mootness due to the short duration of the school year facing the comparatively long litigation process.

Controversies are “capable of repetition” when there is a reasonable expectation that the same complaining party would be subjected to the same action again. To create a reasonable expectation of recurrence, repetition must be more than theoretically possible. Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of IHRS recurrence . . .

A second potential exception to the mootness doctrine that arises less frequently may nevertheless be applicable to the facts of this case. Here, the hearing record does not indicate the extent to which the parent has acquiesced to the district’s recommended services as outlined in the March 2017 IEP, rather the evidence shows that the district has voluntarily agreed to provide those services. “Voluntary cessation does not moot a case or controversy unless ‘subsequent events ma[k]e it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” The Second Circuit has observed that “[t]he voluntary cessation of allegedly illegal conduct usually will render a case moot if the defendant can demonstrate that (1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violations. The Court also noted that where “the challenged conduct has only been proposed but never implemented because a stay-put order has maintained the status-quo, it is the first factor that is critical to the mootness analysis.” When appearing before the IHO upon remand, it is expected that both parties will be prepared to create an administrative record for the IHO’s consideration that addresses these legal standards and how they apply to the case. (Ex. IV at 15-16) (emphasis added) (citations omitted).

Keeping these factors in mind, I find that the issue of whether or not the District offered the Student a FAPE for the 2014-2015 and 2015-2016 school years, and whether or not the Student is entitled to any compensatory services for those two school years, is not moot. The District’s voluntary agreement to provide “make-up services,” as documented in the March 24, 2017 IEP (Ex. 112E), does not render the issues moot. While the District is correct in its assertion that the IEP includes all the compensatory services requested by the Parent in the DPC, it cannot be said that the preparation of the IEP has “completely and irrevocably eradicated the effects of the alleged violations.” There is no binding agreement or IHO decision directing that the compensatory services be provided. Nor is there any requirement that the compensatory services be continued in future IEPs. The Student has received some, but not all, of the IHRS compensatory services. In addition, since the make-up services are IEP-driven, if the IEP for the subsequent school year does not include the make-up services, the Student will not receive all of the make-up services. As such, the March 24, 2017 IEP provisions do not “completely and irrevocably eradicate the effects of the alleged violation.

The issue of whether or not the CSE’s program recommendations for the 2016-2017 school year was in the LRE for the Student is also not moot. It falls in into the “capable of repetition, yet evading review” exception to the mootness doctrine.

The other relief request regarding the 2016-2017 school year was an order directing the that the District provide the Student with [REDACTED] therapy five times per week, a full day program within the District with 2.5 hours per day of [REDACTED] five days per week, individual speech therapy five days per week, individual [REDACTED] therapy five days per week, and a 1:1 teaching assistant. After the filing of the DPC, the CSE offered the Student placement in a full day District program (on March 24, 2017), but the Parent rejected it. The Parent subsequently requested and accepted a full day program at [REDACTED] for the remainder of the 2016-2017 school year (Ex. 112E). As of the final hearing in this case, the Student was still enrolled in and attending the [REDACTED] program and the Parent was reportedly satisfied with the program. The Parent appears to have no interest in placing the Student in a full day program within the District. As such, the controversy does not appear to be “capable of repetition.” There is no “reasonable expectation” that the parties will be litigating this issue again. The chances of repetition are “speculative,” at best. Since the Parent is no longer seeking a full day program within the District, the DPC request for a full day program within the District is moot.

The remaining relief, the request that additional services be added to the Student’s IEP for for the 2016-2017 school year, was addressed in the Student’s March 24, 2017 IEP (Ex. 112E). Since the District complied with the Parent’s requests and added all of the requested services, there is nothing left for me to order. As such, the claim that additional services be added to the Student’s 2016-2017 IEP is moot as well. IHRS

FAPE: The 2014-2015 and 2015-2016 School Years The CPSE prepared multiple IEPs for the Student during the 2014-2015 and 2015-2016 school years. The Student’s IEP was modified, and additional services added, at the request of the Parent, several times. In formulating those IEPs, the CPSE considered a wide range of evaluations and progress reports. The Student was placed at the [REDACTED] for both school years. There were three IEPs prepared prior to the start of the 2014-2015 school year (Exs, 3, 4, 5). The Student’s initial IEP that went into effect for that year which was prepared on August 27, 2014 (Ex. 5). That IEP called for placement in a 6:1+2 special class (six students, one teacher, and two teaching assistants), with four 30-minute sessions per week of 1:1 [REDACTED] therapy in the Therapy Room, three 30-minute sessions per week of 1:2 [REDACTED] therapy in the Therapy Room, one hour per month of individual parent counseling and training, one hour per month of small group parent counseling and training, and one session per week of 1:1 [REDACTED] therapy in the classroom (Ex. 5). The IEP and [REDACTED] program included behavior supports and the use of instruction.

The Student’s IEP was modified to address the Student’s needs multiple times during the 2014-2015 and 2015-2016 school years. The additional IEPs were dated November 5, 2014, November 21, 2014, January 5, 2015, February 13, 2015, March 11, 2015, March 24, 2015, April 24, 2015, May 27, 2015, June 5, 2015, July 13, 2015, October 2, 2015, February 1, 2016 (there are two IEPs with that date) and April 20, 2016 (Exs. 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19). In addition, a behavioral referral was made on October 1, 2014 (Ex. 20) [REDACTED] staff and the CPSE began gathering data for an FBA at that time. An FBA was completed on October 22, 2014 (Ex. 22), Functional Analysis Screening Tools were filled out by the Parent and a board-certified behavior analyst (“BCBA”) in late October, and a BIP was developed on October 27, 2014 (Ex. 24). The Hearing Record includes extensive evaluations and progress reports for the 2014-2015 and 2015-2016 school year (Exs. 25-27, 29-96, 98). The additions and modifications to the Student’s IEP, which were primarily made at the Parent’s request, included adding home and community based special education itinerant teacher (“SEIT”) services, IHRS changing parent counseling and training, modifying/changing related services and goals, adding an augmentative communication device, etc.

There were several factors that the Parent maintains constitute a FAPE deprivation. One was the delay in adding home based SEIT services to the Student’s IEP because the CPSE was initially told by a representative from Nassau County that a “dual program” (a full school day and home-based services) was not permissible). District staff investigated the issue and the homebased SEIT services were added to the Student’s IEP on November 5, 2014, and then changed to home and community-based SEIT services on November 21, 2014 (Exs. 6 and 7). However, I find that the delay in adding SEIT services to the Student’s IEP was not unduly lengthy. The CPSE investigated the matter after the Parent’s request, despite being told by a Nassau County representative that it could not recommend a dual program, and ultimately recommended the requested SEIT services in November of 2014. The two-month delay was not unreasonable, particularly based on the information available to the CPSE at the time that it met to make recommendations for the 2014-2015 school year.

The Parent also disputes the CPSE’s denial of her request for 1:1 aide at [REDACTED]. However, in light of the high level of support in the [REDACTED] 6:1+2 class, a 1:1 aide was not necessary for the Student to benefit from instruction and make meaningful educational progress. Nor did it pose a threat to the Student’s health or safety. She had adequate support at the [REDACTED] program without a 1:1 aide. As such, the CPSE’s refusal to recommend a 1:1 aide did not constitute a FAPE deprivation.

Per the testimony of the District’s witnesses, the level of speech and language therapy and [REDACTED] therapy provided in the Student’s IEPs was sufficient. She did not require five sessions per week in order to make meaningful educational progress. Four sessions per week of each related service was sufficient. The testimony also supported the District’s contention that the July through August six week summer session was appropriate for avoiding substantial regression. She did not require an eight-week summer session in order to avoid substantial regression. The extended school year services were appropriate. Moreover, the Student made IHRS progress during her six-week summer sessions. “Limiting” the Student’s summer session to six weeks in July and August did not constitute a FAPE deprivation. She did not require an eightweek summer session in order to receive a FAPE.

I note the testimony of the District’s witnesses regarding the appropriateness of the Student’s 2014-2015 and 2015-2016 IEPs and placement was comprehensive, convincing, and persuasive. The documentary evidence submitted was comprehensive. The same applies for the District’s testimony and documentary evidence regarding the CSE’s initial recommendations for the 2016-2017 school year (see discussion below).

Based on the foregoing, I find that the District provided the Student with a FAPE for the 2014-2015 and 2015-2016 school years. FAPE: The 2016-2017 School Year The CPSE initially recommended placement in a 6:1+2 special class at the BOCES Children’s Readiness Center (“[REDACTED]”) for the 2016-2017 school year (Ex. 101). The program, which was recommended at a CSE meeting held on June 15, 2016, was very similar to the Student’s prior placement at [REDACTED]. The Parent did not agree with the program primarily because it did not provide the Student with opportunities for interacting with typically developing peers, and the Parent did not allow the Student to attend the program. Another CSE meeting was held, per the Parent’s request, on November 9, 2016. The Parent rejected the CSE’s recommended [REDACTED] placement and requested home instruction. The Student remained on home instruction until after the CSE’s March 24, 2017 meeting.

At the March 24, 2017 CSE meeting, the CSE initially recommended placement in a District 8:1+4 program, with 2.5 hours of [REDACTED] daily and a 1:1 teacher assistant, five 30-minute sessions per week of 1:1 [REDACTED] therapy, five 30-minute sessions per week of [REDACTED] therapy, five 30-minute sessions per week of [REDACTED] therapy, and the following make-up (compensatory) services: seven hundred and fifty (750) hours of [REDACTED] instruction, one hundred and thirty-six (136) 30-minute sessions of [REDACTED] therapy, one hundred and ninety eight (198) hours of makeup [REDACTED] IHRS

SEIT in the home, and one hundred and forty (140) 30-minute sessions of [REDACTED] therapy.

The Parent rejected the CSE’s recommendation for placement in a District 8:1+4 program. Per the Parent’s request, the Student was subsequently placed in a 12:1+1 program in [REDACTED] with all of the foregoing services (Ex. 112E). The [REDACTED] placement does not include any interaction with typically developing peers.

Based on my review of the testimony and documentary evidence presented at the hearing, I find that the District offered the Student a FAPE for the 2016-2017 school year when it initially offered the [REDACTED] 6:1+2 program on August 5, 2016. The Student required the high level of support and supervision that the 2016-2017 IEP recommended (Ex. 102). This was amply supported by the testimony about the Student, and by the evaluations and progress reports considered by the CSE. Moreover, the program was the LRE for the Student. It is clear from the testimony of the District witnesses, and the documentary evidence that was submitted at the hearing, that Student would not benefitted from, or been able to making meaningful educational progress in, a less restrictive setting at that time. The [REDACTED] 6:1+2 program was similar to the program that the Student had been in as of the time that the CSE met. By all accounts, she needed to continue in that type of program for the 2016-2017 school year. Although she will hopefully be ready to move to less restrictive setting in future, she was not ready at that time. As of the time that the CSE made its recommendations for the 2016-2017 school year, the Student would not have benefitted from opportunities for interacting with typically developing peers. As such, the CSE’s recommendations for the Student were in the LRE and would have offered the Student a FAPE5 as of the time that the CSE convened the IEP meetings and make its recommendations for the 2016-2017 school year.

Based on the foregoing, I find that the CSE’s August 5, 2016 IEP was appropriate and IHRS reasonably calculated to enable the Student to make meaningful educational progress in the LRE for the 2016-2017 school year. Per the findings above, the Parent’s remaining claims for the 2016-2017 school year are moot.

COMPENSATORY SERVICES

Per the SRO’s instructions, any “substantive relief awarded to the parent as an equitable matter must be predicated upon a finding that the district did not offer the student a FAPE” (Ex. IV at 16). Based on that instruction, and having found that the District did, in fact, offer the Student a FAPE, I cannot order substantive relief as an equitable matter. Since compensatory education and compensatory services are equitable forms of relief, and since I have found that there was no FAPE deprivation, I cannot order compensatory education or compensatory services.

That being said, the District has conceded that the Student is entitled to make-up sessions of [REDACTED] instruction, [REDACTED] therapy, home-based [REDACTED]-SEIT, and [REDACTED] therapy (Ex.112E).^[6] I will therefore direct the District to provide the make-up services that it has acknowledged are due to the Student in the March 27, 2017 IEP: seven hundred and fifty (750) hours of [REDACTED] instruction, one hundred and thirty six (136) 30minute sessions of [REDACTED] therapy, one hundred and ninety-eight (198) hours of [REDACTED] SEIT at home, and one hundred and forty (140) 30-minute sessions of [REDACTED] therapy (Ex. 112E).^[7] It was difficult to tell from the parties’ testimony as to the extent to which some of the make-up services were already provided. As such, the District need only provide the make-up services to the extent that they were not already provided between March 24, 2017 and the date hereof.

IHRS

REMAINING ISSUES

The consolidated DPC also included a $500,000.00 claim for monetary damages to compensate to “stress and out of pocket expenses and the cost of bringing this action.” That cause of action was dismissed by one of the prior IHO’s and the SRO indicated that I should not set aside that dismissal absent “cogent and compelling reasons.” I find no cogent or compelling reason to set aside that dismissal. No such reasons were cited by the Parent.

In finding that the action was not moot, the SRO noted that the due process complaint notice included a claim for out of pocket expenses for private [REDACTED], OT, and sensory gym services. However, the Parent did not create a hearing record on that issue or provide any other basis upon which I could grant such relief. Moreover, in light of my finding that the District provided a FAPE, the Parent would not be entitled to such relief. The request for reimbursement for out of pocket expenses for obtaining private services for the Student must therefore be denied.

ORDER

IT IS HEREBY ORDERED that the District is directed to provide the Student with the following make-up services: seven hundred and fifty (750) hours of [REDACTED] instruction, one hundred and thirty-six (136) 30-minute sessions of [REDACTED] therapy, one hundred and ninety-eight (198) hours of [REDACTED] SEIT at home, and one hundred and forty

(140) 30-minute sessions of [REDACTED] therapy; and it is further

ORDERED that any make-up sessions provided by the District between March 24, 2017 and the date hereof shall be deemed to be services given pursuant to this order and shall be deducted from the award set forth above; and it is further

ORDERED that in all other respects, the Parent’s request for relief is denied.

Dated: July 8, 2018

MINDY G. WOLMAN

Impartial Hearing Officer IHRS

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 19, 2016

[REDACTED], Esq. Attorney — District

[REDACTED] Special Education Director — District

[REDACTED]* Curriculum Coordinator — District

[REDACTED] Advocate — Parents

Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 1, 2016

[REDACTED], Esq. Attorney — District

[REDACTED] Special Education Director — District

[REDACTED] Advocate — Parents

Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 8, 2016

[REDACTED], Esq. Attorney — District

[REDACTED] Special Education Director — District

[REDACTED]* Assistant Director — District

[REDACTED* Principal — District

[REDACTED] Advocate — Parents

Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 13, 2016

[REDACTED], Esq. Attorney — District

[REDACTED] Special Education Director — District

[REDACTED] Advocate (by telephone) — Parents

Parents

IHRS — Parents

* Testified at Hearing — Parents

IHRS — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 27, 2016

[REDACTED], Esq. Attorney — District

[REDACTED] Special Education Director — District

[REDACTED]* [REDACTED] Pathologist — District

[REDACTED] Advocate — Parents

Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 2, 2016

[REDACTED], Esq. Attorney — District

[REDACTED] Special Education Director — District

[REDACTED]* Special Education Teacher — District

[REDACTED] Advocate — Parents

Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21, 2016

[REDACTED], Esq. Attorney — District

[REDACTED] Advocate (by telephone) — Parents

(by telephone) — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 5, 2016

[REDACTED], Esq. Attorney — District

[REDACTED] Exec. Dir. for Spec. Educ. and — Student

Support Services — District

[REDACTED]* [REDACTED] Pathologist — District

[REDACTED] Advocate — Parents

IHRS — Parents

Parents

* Testified at Hearing — Parents

IHRS — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 15, 2016

[REDACTED], Esq. Attorney — District

[REDACTED] Exec. Dir. for Spec. Educ. and — Student

Support Services — District

Y.Y. — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 28, 2017

[REDACTED], Esq. Attorney — District

[REDACTED] Advocate (by telephone) — Parents

Y.Y. (by telephone) — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 18, 2017

[REDACTED], Esq. Attorney — District

[REDACTED] Advocate (by telephone) — Parents

Y.Y. (by telephone) — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 18, 2017

[REDACTED], Esq. Attorney — District

[REDACTED] Exec. Dir. for Spec. Educ. and — Student

Support Services — District

[REDACTED]El* Board Certified Behavior Analyst — District

[REDACTED]* Board Certified Behavior Analyst — District

[REDACTED] Advocate — Parents

Y.Y. — Parents

IHRS — Parents

* Testified at Hearing — Parents

IHRS — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 5, 2017

[REDACTED], Esq. Attorney — District

[REDACTED] Exec. Dir. for Spec. Educ. and — Student

Support Services — District

Dr. [REDACTED]* Clinical Supervisor — District

[REDACTED] Advocate (by telephone) — Parents

Y.Y. (by telephone) — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 14, 2017

[REDACTED], Esq. Attorney — District

[REDACTED] Advocate (by telephone) — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 25, 2018

[REDACTED], Esq. Attorney — District

[REDACTED]* Exec. Dir. for Spec. Educ. and — Student

Support Services — District

Dr. [REDACTED]* Clinical Supervisor — District

[REDACTED] Advocate — Parents

Y.Y. — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 1, 2018

[REDACTED], Esq. Attorney — District

[REDACTED]* Exec. Dir. for Spec. Educ. and Student Support — District

Services — District

[REDACTED] Advocate — Parents

Y.Y.* — Parents

IHRS — Parents

* Testified at Hearing — Parents

IHRS — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 25, 2018

[REDACTED], Esq. Attorney — District

[REDACTED] Exec. Dir. for Spec. Educ. and — Student

Support Services — District

[REDACTED] Advocate — Parents

Y.Y.* — Parents

[REDACTED]*8 Exec. Dir. For Spec. Educ. and — Student

Support Services — Parents

* Testified at Hearing — Parents

DOCUMENTS ENTERED INTO THE RECORD

District Exhibits

1. IDEA Due Process Complaint Notice, 5/23/16, 19 pp.

2. District’s Response to Due Process Complaint Notice, 6/17/16, 10 pp.

3. IEP, 6/5/14, 11 pp.

4. IEP, 8/11/14, 11 pp.

5. IEP, 8/27/14, 11 pp.

6. IEP, 11/5/14, 11 pp.

7. IEP, 11/21/14, 11 pp.

8. IEP, 1/5/15, 11 pp.

9. IEP, 2/13/15, 11 pp.

10. IEP, 3/11/15, 11 pp.

11. IEP, 3/24/15, 12 pp.

12. IEP, 4/24/15, 15 pp.

13. IEP, 5/27/15, 15 pp.

14. IEP, 6/5/15, 15 pp.

15. IEP, 7/13/15, 15 pp.

Ms. Castelli appeared on behalf of the District at the May 25, 2018 hearing but was called to testify as a Parent witness during the course of the hearing.

IHRS

16. IEP, 10/2/15, 15 pp.

17. IEP, 2/1/16, 15 pp.

18. IEP, 2/1/16, 14 pp.

19. IEP, 4/20/16, 16 pp.

20. Behavioral Referral Form, 10/1/14, 2 pp.

21. Behavior Profile by [REDACTED], 10/3/14, 2 pp.

22. Functional Behavioral Assessment by [REDACTED], MS Ed., BCBA, 10/22/14, 3 pp.

23. Functional Analysis Screening Tool by Parent, 10/30/14, 1 p. and Functional Analysis

Screening Tool by [REDACTED], 10/22/14, 1 p.

24. Behavior Intervention Plan by [REDACTED] MS Ed., BCBA, 10/27/14, 5 pp.

25. Behavior Profile by [REDACTED] MS Ed., BCBA, 12/10/14, 1 p.

26. Behavior Profile by [REDACTED] MS Ed., BCBA, 9/30/15, 2 pp.

27. Speech and Language Evaluation by [REDACTED], MS CCC-SLP, 5/12/14, 5 pp.

28. OMITTED

29. Social History by [REDACTED], 5/21/14, 3 pp.

30. CPSE Psychological Evaluation by [REDACTED], Psy.D., 5/21/14, 6 pp.

31. CPSE Psychological Evaluation Addendum by [REDACTED], Psy.D., 5/28/14, 3 pp.

32. Preschool Student Evaluation Summary Report by [REDACTED], LCSW, 5/29/14, 7 pp.

33. Progress Notes by [REDACTED], LCSW and supporting documentation by

[REDACTED], MS, 8/27/14, 2 pp.

34. Quarterly Progress Report for Behavior Intervention Plan by [REDACTED], MS Ed.,

BCBA, 1/25/15, 1 p.

35. Quarterly Progress Report by [REDACTED], OTR/L, 11/4/14, 1 p.

36. Quarterly Progress Report by [REDACTED], MA CCC SLP, 11/4/14, 1 p.

37. Annual Review Progress Report, Center-Based, by [REDACTED] OTR/L, 1/16/15, 3 pp.

38. Annual Review Speech & Language Progress Report, Center-Based by [REDACTED],

MA CCC SLP, 1/23/15, 3 pp.

39. Annual Review SEIT Progress Report, Center-Based by [REDACTED] 1/27/15, 2 pp.

40. Annual Review Progress Report, Center-Based, by [REDACTED], MS ED, OTR/L,

1/28/15, 2 pp.

41. Annual Review Progress Report, Center-Based by [REDACTED] LCSW, 1/29/15, 1 p.

42. Annual Review Progress Report, Center-Based by [REDACTED], 1/29/15, 3 pp.

43. Annual Review Progress Report, SEIT Service by [REDACTED], 1/30/15, 2 pp.

44. Quarterly Progress Report by [REDACTED], OTR/L, 3/30/15, 1 p.

45. Quarterly Progress Report for Behavior Intervention Plan by [REDACTED] MS Ed.,

BCBA 3/30/15, 1 p.

46. Quarterly Progress Report for Behavior Intervention Plan by [REDACTED], 3/30/15, 1 p.

47. Quarterly Progress Report for Related Service by [REDACTED], 3/30/15, 1 p.

48. Quarterly Progress Report by [REDACTED], MSED, 4/24/15, 2pp.

49. Quarterly Progress SEIT Service by [REDACTED], 5/13/15, 3 pp. IHRS

50. Quarterly Progress SEIT Service by [REDACTED], 5/14/15, 2 pp.

51. Quarterly Progress Report for Behavior Intervention Plan by [REDACTED], MS Ed.,

BCBA, 6/8/15, 1 p.

52. Quarterly Progress Report by [REDACTED], MSED, 6/9/15, 2 pp.

53. Quarterly Progress Report by [REDACTED], MA CCC SLP, 6/10/15, 1 p.

54. Quarterly Progress Report by [REDACTED], MA CCC SLP, 6/10/15, 1 p.

55. Quarterly Progress Report by [REDACTED], OTR/L, 6/11/15, 1 p.

56. Quarterly Progress Report SEIT Service by [REDACTED], 6/11/15, 2 pp.

57. Quarterly Progress Report SEIT Service by [REDACTED], 6/25/15, 2 pp.

58. Quarterly Progress Report by [REDACTED], OTR/L, 7/25/15, 1 p.

59. Quarterly Progress Report by [REDACTED], 7/30/15, 1 p.

60. Quarterly Progress Report by [REDACTED], 10/15/15, 2 pp.

61. Quarterly Progress Report by [REDACTED], 10/21/15, 3 pp.

62. Quarterly Progress Report by [REDACTED], OTR/L, 11/3/15, 1 p.

63. Quarterly Progress Report for Behavior Intervention Plan by [REDACTED] MA BCBA,

11/3/15, 1 p.

64. Quarterly Progress Report by [REDACTED], MA CCC SLP, 11/6/15, 1 p.

65. Progress Report by [REDACTED], MS OTR/L, 12/14/15, 1 p.

66. Annual Review Progress Report for Behavior Intervention Plan by [REDACTED], MA,

BCBA, LBA, 1/5/16, 2 pp.

67. Annual Review Progress Report, Center-Based by [REDACTED], 1/5/16, 6 pp.

68. Annual Review Progress Report, Center-Based by [REDACTED], OTR/L, 1/5/16, 4 pp.

69. Annual Review Progress Report Center Based by [REDACTED], 1/8/16, 4 pp.

70. Quarterly Progress Report by [REDACTED], [REDACTED], 1/15/16, 3 pp.

71. Annual Review Progress Report, Center-Based by [REDACTED], 1/19/16, 1 p.

72. Annual Progress Report by [REDACTED], 1/23/16, 6 pp.

73. Quarterly Progress Report Related Service by [REDACTED], 3/15/16, 2 pp.

74. Quarterly Progress Report by [REDACTED], [REDACTED], 3/17/16, 4 pp.

75. Quarterly Progress Report by [REDACTED], MS Ed., 3/8/16, 2 pp.

76. Quarterly Progress Report by [REDACTED], OTR/L, 4/4/16, 2 pp.

77. Quarterly Progress Report by [REDACTED], OTR/L, 4/6/16, 2 pp.

78. Quarterly Progress Report for Related Services by [REDACTED], 4/6/16, 1 p.

79. Quarterly Progress Report for Behavior Intervention Plan by [REDACTED], 4/6/16, 2 pp.

80. Quarterly Progress Report by [REDACTED], 6/8/16, 3 pp.

81. Quarterly Progress Report by [REDACTED], 6/10/16, 1 p.

82. Quarterly Progress Report for Behavior Intervention Plan by [REDACTED], MA, BCBA,

LBA, 6/10/16, 2 pp.

83. Quarterly Progress Report for SEIT Service by [REDACTED], [REDACTED], 6/15/16,

3 pp.

84. Progress Report and Cover Page, November 2014, 9 pp. IHRS

85. Progress Report and Cover Page, January 2015, 9 pp.

86. Progress Report and Cover Page, April 2015, 12 pp.

87. Progress Report and Cover Page, June 2015, 12 pp.

88. Progress Report and Cover Page, August 2015, 8 pp.

89. Progress Report and Cover Page, November 2015, 10 pp.

90. Progress Report and Cover Page, January 2016, 11 p.

91. Progress Report and Cover Page, April 2016, 15 pp.

92. Progress Report and Cover Page, June 2016, 16 pp.

93. (A) Teaching Strategies GOLD, Child Assessment Portfolio Summary Form, 1/4/16

and 7/20/16, 4 pp.

(B) Teaching Strategies GOLD, Child Assessment Portfolio Summary Form

(Assessment), 1/4/16 and 7/20/16, 34 pp.

94. (A) STAR Program Level I Program Guide, 2015-2016 School Year, 9 pp.

(B) STAR Program Level I Program Guide, 2016-2017 School Year, 9 pp.

95. CPSE Classroom Observation by [REDACTED], LMSW, 5/16/14, 2pp.

96. Alternative and Augmentative Communication Device Evaluation by [REDACTED],

M.S., CCC-SLP, 4/13/15, 3 pp.

97. Letter by [REDACTED], MS, SLP, 7/18/14, 1 p.

98. Nassau County Department of Health - 6-month progress, 3/12/14, 2 pp.

99. Letter for Student by [REDACTED], 3/22/16, 1 p.

100. New Entrant Information, 7 pp.

101. IEP, 6/15/16, 10 pp.

102. IEP, 8/5/16, 10 pp.

103. IDEA Due Process Complaint Notice, 8/19/16, 4 pp.

104. District’s Response to Parents’ Due Process Complaint, 8/25/16, 8 pp.

105. Summer 2016 Progress Report, 8/2016, 6 pp.

106. [REDACTED] Data Sheets, 9/9/15-8/12/16, 10 pp.

107. Text messages, 12/15/16, 2 pp.

108. District’s Motion to Disqualify and related documents, various dates, 9 pp.

109. District’s Motion to Dismiss and related documents, various dates, 97 pp.

110. Motion to Dismiss and related documents, various dates, 28 pp.

111. Third Interim Order on Pendency and related documents, various dates, 28 pp.

112. Memorandum in Support of Motion to Dismiss and Letter to Parent from IHO, various dates, 72 pp.

113. Interim Order, 1/17/17, 5 pp. IHRS

IHO Exhibits

I. Determination of Pendency, 8/9/16, 1 p.

II. Second Determination of Pendency, 9/8/16, 2 pp.

III. Order of Consolidation, 9/8/16, 1 p.

IV. State Review Officer decision, Appeal Number 17-041, 7/19/17, 18 pp.

V. Letter to IHO, 8/1/17, 1 p.

VI. Letter from to Parent and [REDACTED], 9/4/17, 2 pp.

VII. Letter to [REDACTED], 10/10/17, 1 p.

VIII. Order Denying Consolidation, 2/5/18, 4 pp.

IX. Memorandum of Law, 2/1/18

X. Interim Order, 3/8/18, 4 pp.

XI. Compliance Date Extension documentation, various dates, 15 pp.

XII. Closing Statement on behalf of [REDACTED] Union Free School District, 6/25/18, 29 pp. (including cover page and table of contents)

XIII. Parent’s post-hearing closing statement, 6/25/18, 7 pp

Footnotes

[1] District exhibits herein are denoted with cardinal numbers; IHO exhibits are denoted with roman numerals. There are no Parent exhibits.

[2] The procedural history of this case prior to my appointment is more fully set forth in the SRO decision.

[3] There were three additional hearing dates scheduled between January 25, 2018 and May 1, 2018. All three hearings were adjourned at the request of the Parent’s advocate.

[4] The only written compliance documentation that I have is for compliance date extensions after my appointment as IHO.

[5] Since the due process complaint was filed on August 19, 2016, any issues with respect to the Student’s home instruction program, the preparation and implementation of the March 24, 2017 IEP, or the subsequent placement in the program are beyond the scope of my jurisdiction herein.

[6] Indeed, one of its prime contentions in its mootness defense was that the District has agreed to provide the make-up sessions requested by the Parent.

[7] I note that the DPC requested 140 hours of home based [REDACTED] SEIT make-up services (Ex. 1). However, the March 24, 2017 listed 198 hours of home based [REDACTED] SEIT make-up services due to the Student. I based this order on the IEP, as that reflected the District’s acknowledgment of the number of hours of make-up services that are due to the Student.

Impartial Hearing Decision