New York City Department of Education, Impartial Hearing Decision

Case Number: 503977 – NYC: 166370

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

Service/Home District: [REDACTED]

Impartial Hearing Officer: Rachel Glantz

Date of Filing: June 05, 2017

Hearing Requested by: Parents

Date(s) of Due Process Hearing: March 07, 2023

March 08, 2023

March 09, 2023 Record Close Date: April 05, 2023

Date of Decision: April 14, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 07, 2023:

For the Student:

REDACTED, Parent Attorney

For the Department of Education:

REDACTED, Agency Attorney

REDACTED, Agency Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 08, 2023:

For the Student:

REDACTED, Parent Attorney

REDACTED, Parent Attorney

REDACTED, Executive Director of REDACTED, (“Agency”)

REDACTED, Director of REDACTED, (“Center”)

For the Department of Education:

REDACTED, Agency Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 09, 2023:

For the Student:

REDACTED, Parent Attorney

REDACTED, Parent Student

Cantonese Interpreter #202959

For the Department of Education:

REDACTED, Agency Attorney

INTRODUCTION

This matter concerns the Student, a nineteen-year-old student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.

PROCEDURAL HISTORY AND BACKGROUND

On June 5, 2017, Parent filed the instant due process complaint (“DPC”), (“DPC 166370”), alleging that the New York City Department of Education (“DOE”) failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2016-2017 and 2017-2018 school years, pursuant to both the IDEA and Section 504 of the Rehabilitation Act of 1973 (“Section 504”).

At the time of the filing of DPC 166370, which was originally assigned to another impartial hearing officer (“IHO”); another DPC, case number 159866 (“DPC 159866”), was already pending before the same IHO. DPC 159866 alleged claims related to the 2014-2015 and 2015-2016 school years. On August 23, 2017, an FOFD was issued on DPC 159866. (P-C).

On October 4, 2017, the IHO assigned to DPC 159866, issued an order denying consolidation with the instant DPC 166370. The following day, October 5, 2017, the assigned IHO recused herself from DPC 166370. On October 12, 2017, another IHO was appointed to the matter and that appointment continued for the next five years, until it was rescinded, on October 14, 2022.

On March 18, 2018, a Pendency Order was issued on the instant DPC 166370, which determined that the last agreed upon educational placement for the Student lay in FOFD 159866. (P-VV). That Pendency Order has remained in effect throughout the pendency of this case, which will end with the issuance of this decision, or any subsequent administrative or judicial proceedings1.

On July 2, 2018, during the pendency of the instant matter, another DPC was filed under case number 174224 (“DPC 174224”) which alleged claims relating to the 2018-2019 school year. On July 18, 2019, a FOFD was issued in that matter dismissing all claims as moot and ordered all pendency payments to be paid by DOE for the 2018-2019 school year. (P-GGG).

On September 5, 2019, during the pendency of the instant DPC 166370, another DPC was filed under case number 187837 (“DPC 187837”), alleging claims relating to the 2019-2020 school year. On June 4, 2022, a FOFD was issued in that matter which ordered compensatory pendency for the 2019-2020 school year. (P-G).

On July 5, 2022, another DPC was filed under case number 228227 (“DPC 228227”), alleging claims relating to the 2020-2021, 2021-2022, and 2022-2023 school years. On July 13, 2022, the same IHO assigned to DPC 166370 was assigned to the newly filed matter DPC 228227.^[2]

On July 24, 2022, the then assigned IHO issued an order denying consolidation of the two open matters, and DPC 166370 and DPC 228227 continued separately until the recission of the IHO’s appointment on October 14, 2022. During that time, neither case commenced the substantive due process hearing (“DPH”). On October 19, 2022, I was appointed as IHO to DPC 228227.

1 Although there was an intervening FOFD 187837 which was issued on June 4, 2022 (P-G), it did not impact the pendency placement on the instant matter, as it merely incorporated the mandated placement and program ordered on FOFD 159866 (P-C), which formed the basis of the pendency order on the instant matter (P-VV).

Between October 14, 2022, and December 12, 2022, three additional IHO’s were assigned to DPC 166370, each of whom either rescinded or recused their appointments. On December 12, 2022, I was assigned to the instant DPC 166370 due to my earlier appointment on DPC 228227.

On DPC 228227, a status conferences were held with the parties following my appointment, on October25, 2022 and November 10, 2022, to both clarify and narrow the issues. On November 22, 2022, a Pendency Hearing was held and a Pendency Order was issued on that date. (IHO-III). Although the DPH was thereafter scheduled to commence on December 19, 2022, that hearing was converted to a status conference following my appointment to DPC 166370 on December 12, 2022. Another status conference was held on December 19, 2022, with all parties on both DPC 166370 and DPC 228227, including Parent Attorney 1, Agency Attorney1 and Agency Attorney 2. Prior to my appointment on DPC 166370, another IHO had scheduled that matter to proceed to the DPH on three separate dates, from March 7, 2023, through March 9, 2023, and those dates remained on the calendar following my appointment, at the request of the parties on December 19, 2022. Also at the December 19, 2022 status conference, Parent Attorney 1 requested that I reconsider the issue of consolidation given that both DPC 166370 and DPC 228227 were going to proceed to a DPH; DOE had noted on the record their intent to concede a denial of FAPE for each of the five (5) school years at issue between the two DPCs, and Parent would be calling the same witnesses to testify at each hearing. DOE consented to the matters being consolidated. As a result, on December 19, 2022, I issued an order consolidating DPC 228227 into the earlier DPC 1663703. (IHO-II).

3 As of the time of the writing of this FOFD, DPC 228227 does not appear in DOE’s IHS system as being consolidated despite numerous requests that DOE’s IT Department modify the case to reflect it as having been consolidated with DPC 166370 on December 19, 2022.

The DPH commenced as scheduled on March 7, 2023. On that date, Parent submitted exhibits A-HHH, which were admitted into evidence without objection. Included in Parent’s evidence were three witness affidavits, including from Parent; REDACTED, (“Executive Director”), the Executive Director at REDACTED, (“Agency”); and REDACTED, (“Director”), the Director at REDACTED, (“Center”). The DOE did not enter any documentary or testimonial evidence into the record. The DOE conceded that it could not meet its burden of persuasion and production as Student was denied a FAPE for the 2016-2017, 2017-2018, 2020-2021, 2021-2022 and 2022-2023 school years. Both parties made an opening statement. The DOE then rested its case.

On March 8, 2023, Parent called Executive Director and Director to testify. DOE cross-examined both witnesses.

On March 9, 2023, Parent testified and was cross-examined by DOE. Following Parent’s testimony, Parent rested their case. Given that this matter was filed over five years ago and the complexities which resulted from multiple intervening and overlapping orders involving compensatory education and pendency, the parties were directed to submit closing briefs on the issue of an appropriate remedy by March 31, 2023. On that date, Parent Attorney 1 requested additional time to submit her closing brief due to an unexpected illness and Agency Attorney 1 joined in the request. As a result, I extended the submission date for closing briefs to April 5, 2023. On that date, Agency Attorney 1 indicated via email that he would not be submitting a closing brief and was resting on the record. Parent Attorney 1 submitted a closing brief. (IHO-I).

A list of the documentary evidence admitted to the record is appended to this decision.

JURISDICTION

The DPH was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art 89 § 4404 et seq., and its implementing regulations, 8 NYCRR Part 200.

FINDINGS OF FACT

After considering all the evidence, I make the following findings of fact:

Student is a [REDACTED] year-old child who has been receiving 1:1 Applied Behavior Analysis (“ABA”) and related services at Center during the school day and from Agency for Student’s after-school extended day since the 2017-2018 school year. Student has been classified as a student with Autism. (P-A, NN, OO). Student’s classification and entitlement to special education services is not in dispute.

Student is diagnosed with Autism and Epilepsy. (P-NN at 2). Student presents with delays in all areas, including overall communication, academics, socialization, play and leisure, community navigation, and functional independent living skills. (P-OO at 4). Student has significantly impaired cognitive skills and a history of behavioral difficulties, including elopement and aggressive behaviors such as grabbing and pushing. (Id.). Student is non-verbal but can communicate using an Augmentative and Alternative Communication (“AAC”) device in the form of an iPad. Student requires a separate device solely for communication needs, and a second device for leisure skills which are taught during ABA sessions. (Id.).

As a result of Student’s significant needs, Student has been unable to attend a DOE public school, and until the 2017-2018 school year, Student had been placed at different NYS Approved Non-Public Schools (“NPS”). For the 2016-2017 school year, Student attended REDACTED, (“Private School”), a NYS Approved NPS. Although Student was expected to receive 1:1 ABA at Private School, Executive Director testified that the school was not providing ABA and was unable to manage Student safely in a 6:1:1 class. (P-OO at 3). Executive Director testified that she has known Student since the 2014-2015 school year, when she began providing private ABA supervision to Student. (Id.). In that role, she testified as to her attendance at Private School and observations of the instruction Student received during the 2016-2017 school year. (Tr. 3/8/23 at 7-10). Executive Director testified as to her opinion that Student effectively made no progress at Private School during the 2016-2017 school year and recommended that Student be awarded 3.5 hours of ABA per day for the 12-month school year to make up for the deprivation of FAPE and overall loss of education during that school year. (Id. at 11-13). For the 2017-2018 school year, Student began attending Center in lieu of a school, where Student has been provided with full-time 1:1 ABA, and all related services; including speech-language therapy (“SLT”), occupational therapy (“OT”), and physical therapy (“PT”). (P-OO at 4, P-PP at 7). In addition to Student’s programming at Center, Student has also been provided extended day services from Agency; including home-based ABA, ABA supervision by a BoardCertified Behavior Analyst (“BCBA”), after-school SLT, translation services, and parent counseling and training (“PCAT”).^[4] Specifically, Student was ordered to receive the following services at Center: twenty-five (25) hours per week of 1:1 ABA on an extended school year (“ESY”) basis; two (2) hours per week of BCBA Supervision; SLT, three (3) times per week for 30 minutes; OT, three (3) times per week for 30 minutes; PT, two (2) times per week for 30 minutes. In addition, Student was ordered to receive the following after-school program, which has been provided by Agency: five (5) hours per week of ABA, two (2) hours per week of BCBA Supervision, and two (2) hours per week of after school SLT focusing on iPad and SLT utilizing the PROMPT method, and two (2) hours per week of translation services by a trained ABA provider. (P-PP, P-B, P-VV).

Student continued receiving the above-mentioned services at Center and Agency until March 2020, when the Coronavirus Pandemic caused the temporary shutdown of all schools and services. Although Agency continued providing Student’s after-school program remotely, Center was unable to provide any services between March 2020 through May 2020. (P-OO at 5-6, P-PP at 8, Tr. 3/8/23 at 75-77). During that time, Agency provided ABA four days per week for three hours per day on a remote basis as well as BCBA Supervision. (P-OO at 5). Although Student made progress, there were limitations to Student’s progress and the skills Student could learn through the remote platform. The first few months of remote therapy focused heavily on teaching Student to learn and participate remotely, and on managing Student’s interfering behaviors, which impacted the therapists’ ability to teach and Student’s ability to acquire new skills. (Id. at 6). Center resumed providing some services remotely to Student in May 2020. According to Director’s testimony, “[s]tarting in May 2020, [Student] began receiving some remote speech services. Remote ABA started in late June 2020 as well as BCBA Supervision, and by the end of July 2020, I started providing home-based ABA to [Student]. Remote OT started in July 2020 and remote PT services began in September 2020”. (P-PP at 8). According to Director, Student was not able to tolerate a full day of remote instruction. (Id. at 8). Student’s program continued to be primarily delivered remotely until September 2021, when Center resumed in-person services on a hybrid schedule. From September 2021 through present, Center has been providing in-home services, including 1:1 ABA, to Student three (3) days per week and in-Center services, including ABA, SLT, OT, and PT two (2) days per week. (Id. at 10). Director testified with specificity as to the progress Student has made during each of the relevant school years. (Id. at 9-12). Director further testified as to her recommendations for Student, which included an increase in Student’s SLT mandate from 30 minutes three times per week, to 45 minutes three times per week, for the provider to focus on improving Student’s use of a new AAC device, which has greatly expanded Student’s ability to communicate with others. (Id. at 13, Tr. 3/8/23 at 87). Given that Center is not a school which operates on a tuition model, Center has only billed DOE for services that were provided to Student during the relevant time periods. (P-PP at 8, PDD, P-EE, P-FF). Similarly, Agency submits invoices to DOE for all services rendered. (P-BB).

Although Student’s program through pendency only allows for five (5) hours per week of after-school ABA, Executive Director testified that Student has been receiving up to ten (10) hours per week, with the additional five (5) hours being paid for with Student’s bank of compensatory education hours. (P-OO at 6, Tr. 3/8/23 at 34). Executive Director testified that Student requires ten (10) hours per week of home-based ABA due to Student’s significant delays and specialized way of learning, specifically through repetition, to continue to learn new skills and master previously learned skills. (Tr. 3/8/23 at 41, P-OO at 6). “[Student] requires practice across settings, materials, and people. When [Student] is taught a specific skill at home or school, that skill does not naturally generalize to other settings, people, or situations. Home services are also needed to ensure consistency with managing [] challenging behaviors, consistent and individualized focus on activities of daily living, and a consistent approach with teaching and reinforcing [Student’s] communication”. (Id.). As such, Executive Director recommended that Student’s after-school extended day mandate be increased from 5 hours per week to 10 hours per week of 1:1 ABA instruction. (Id.)

LEGAL FRAMEWORK AND ANALYSIS

The IDEA establishes a “substantive right to a ‘free appropriate public education’” for children with disabilities. Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017) (quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)).

A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). “Not every procedural error will render an IEP legally inadequate.” M.H. v. New York City Dep’t of Educ., 685 F. 3d 217, 245 (2d Cir. 2012) (citation omitted). If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

In general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. School districts are not required to “maximize” the potential of students with disabilities but 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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). 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 Rowley, 458 U.S. at 192.

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. N.Y. Educ. Law § 4404(1)(c) (2002).

ANALYSIS AND DECISION

FAPE:

2016-2017, 2017-2018, 2020-2021, 2021-2022 and 2022-2023 School Years The DOE failed to meet or even attempt to meet its burden at this DPH. Rather, Agency Attorney 1 indicated on the record that DOE conceded its failure to offer Student a FAPE for each of the school years at issue, including 2016-2017, 2017-2018, 2020-2021, 2021-2022 and 2022-2023, presenting no witnesses or evidence. I am therefore constrained to find that the DOE failed to offer Student FAPE for those school years at issue. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer FAPE for each of the school years at issue. The record further supports that the program and services which Student has been receiving at Center and from Agency has been appropriate and individualized to meet Student’s unique educational needs. DOE cross-examined each of Parent’s witnesses, each of whom I found to be credible. DOE consented to all of Parent’s documents being entered into evidence and did not dispute or raise any issue with any of Parent’s evidence, which I therefore credit in full.

In addition to asserting claims under the IDEA, Parent also asserted claims under Section 504 and has asked that a determination be made that DOE discriminated against Student based upon Student’s disability when it failed to offer Student a FAPE for the school years at issue. Parent has sought compensatory education under Section 504 as an alternative, “[t]hus, even if the IHO were to find that the IDEA does not give rise to compensatory education for missed pendency, Section 504 compels it”. (IHO-I at 26). As will be discussed more fully below, I do find that Student is entitled, under the IDEA, to compensatory education and compensatory pendency for the services which DOE was obligated to provide to Student but did not provide during the school years at issue, and during the pendency of this matter. Therefore, I decline to analyze the issues under a Section 504 theory and conclude that all such 504 claims are subsumed by IDEA and the remedy which will be ordered herein.

The only issue left to resolve in this matter is the appropriate remedy to compensate Student for the significant deprivation of FAPE, including five (5) school years, but spanning over seven years. Here again, DOE did not present a closing argument or specifically raise any issue or dispute as to the appropriateness of the remedy sought by Parent. As will be discussed below, I find the remedy proposed by Parent to be reasonable, appropriate, equitable, and supported by the hearing record.

Remedy

Parent is seeking a compensatory award to enable Student to make up for the educational loss that resulted directly from the denial of FAPE for the five school years at issue. As to a specific compensatory award, Parent seeks an order for the following:

1.

Compensatory education: a. 2016-2017 school year: i. 690 hours 1:1 ABA (3 hours per day/15 hours per week, for 46 weeks), ii. 92 hours of ABA Supervision (2 hours per week for 46 weeks), b. 2020-2021 school year: Parent seeks a bank of all services which had been ordered to be provided to Student through pendency, less any services already provided; including: i. 1150 hours 1:1 ABA (25 hours per week for 46 weeks), ii. 92 hours BCBA Supervision (2 hours per week for 46 weeks), iii. 46 hours of PT (1 hour per week for 46 weeks), iv. 69 hours of OT (1.5 hours per week for 46 weeks), v. 69 hours of SLT (1.5 hours per week for 46 weeks), vi. 230 hours of home-based ABA (5 hours per week for 46 weeks), vii. 92 hours of home-based ABA Supervision (2 hours per week for 46 weeks), viii. 92 hours of PCAT (2 hours per week for 46 weeks), ix. 92 hours of after-school SLT (2 hours per week for 46 weeks) c. 2021-2022 school year: Parent seeks a bank of all services which had been ordered to be provided to Student through pendency, less any services already provided; including: i. 1150 hours 1:1 ABA (25 hours per week for 46 weeks), ii. 92 hours BCBA Supervision (2 hours per week for 46 weeks), iii. 46 hours of PT (1 hour per week for 46 weeks), iv. 69 hours of OT (1.5 hours per week for 46 weeks), v. 69 hours of SLT (1.5 hours per week for 46 weeks), vi. 230 hours of home-based ABA (5 hours per week for 46 weeks), vii. 92 hours of home-based ABA Supervision (2 hours per week for 46 weeks), viii. 92 hours of PCAT (2 hours per week for 46 weeks), ix. 92 hours of after-school SLT (2 hours per week for 46 weeks) d. 2022-2023 school year: Parent seeks a bank of all services which had been ordered to be provided to Student through pendency from July 1, 2023, to the date of this decision, less any services already provided through pendency, including: i. 25 hours per week of 1:1 ABA services, ii. 2 hours per week of BCBA Supervision for the 1:1 school-day ABA, iii. SLT, 1:1, three (3) times per week for 30 minutes, iv. OT, 1:1, three (3) times per week for 30 minutes, v. PT, 1:1, two (2) times per week for 30 minutes, vi. Five (5) hours per week of home-based ABA, vii. Two (2) hours per week of home-based ABA Supervision, viii. Two (2) hours per week of PCAT, ix. Two (2) hours per week of home-based SLT

2. DOE to fund an appropriate program for Student for the remainder of the 2022-2023 school year, including:

a. 25 hours per week of 1:1 ABA services during the school day at home and/or in a center or school, as per the student’s existing needs, as determined by the providers and the parent, b. 2 hours per week of BCBA Supervision for the 1:1 school-day ABA, c. SLT, 1:1, three (3) times per week for 45 minutes, d. OT, 1:1, three (3) times per week for 30 minutes, e. PT, 1:1, two (2) times per week for 30 minutes, f. Transportation in the form of a small, special education air-conditioned minibus with a seizure protocol and trained individual present on the bus at all times when Student is present to administer seizure medication and a limited travel time of 45 minutes; if a trained paraprofessional is absent and/or cannot be timely assigned to Student’s bus, Student shall, notwithstanding this, be permitted to board the bus for transportation to and from school, g. 10 hours per week 1:1 home-based ABA- extended school day, h. 2 hours per week of ABA supervision of the home-based, extended school day program, i. 2 hours per week of after-school SLT, j. Two iPads, one for communication, with Touch Chat, and one for reinforcement, k. If an iPad breaks, the DOE must replace and/or fix it within five days of any request made by the parent directly of on her behalf, l. 2 hours per week of PCAT by a Chinese speaking professional who is trained in ABA, m. 6 hours per month of translation and interpretation services to be provided by an agency by phone and in-person at Parent’s request, n. 1 hour per month of team meetings for providers, o. If the DOE does not provide their own providers or the parent wishes to keep her current private providers, the parent may use private providers and the DOE shall pay the providers within 30 days of submission of provider invoices, p. If one of the providers is not delivering the full mandate, the DOE is required to arrange for the services directly at a time and place that does not conflict with the student’s other services and program, and

q. DOE shall monitor and ensure implementation of the services ordered herein.

The relief requested by Parent is equitable in nature, as she is asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide the Student with a FAPE for the specified school years and to compensate Student for the lack of educational gains because of the denial of FAPE.

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations”. See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy” Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme, 790 F.3d at 454.

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme, 790 F.3d at 454. Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate.” Reid, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). Compensatory education is a “replacement of educational services the child should have received in the first place”, and an award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” (Reid, 401 F.3d at 518, 524). Compensatory education awards can be used to remedy a school district’s substantive as well as its procedural violations of FAPE. Doe v. East Lyme, 790 F.3d at 456. Additionally, compensatory education awards may include reimbursement for out-of-pocket educational expenses paid by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster v. Bd. Of Educ. of the City of Chicago, 611 Fed. App’x 874, 878-79 (7th Cir. 2015); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 277-78 (3d Cir. 2014).

The record demonstrates that the Student is entitled to relief to put the Student in the same position the Student would have been in but for the DOE’s denial of FAPE for the 2016-2017, 2017-2018, 2020-2021, 2021-2022, and 2022-2023 school years. The DOE has conceded a denial of FAPE for each of the school years at issue but has remained silent as to an appropriate remedy5. The DOE has failed to put forth any cogent argument as to the appropriateness of the remedy sought by Parent, it is therefore presumed that there is no dispute between the parties as to the reasonableness of the requested remedy.

Although DOE raised a dispute with respect to the compensatory education sought for the 2016-2017 school year in its opening statement (Tr. 3/7/23 at 25-26), the DOE failed to articulate its argument throughout the hearing or in a closing argument. DOE argued that relief was previously granted for the 2016-2017 school year within FOFD 159866, in which Parent alleged a denial of FAPE for the 2014-2015 and 2015-2016 school years, and for which pendency attached throughout the 2016-2017 school year6. (P-C). However, I have reviewed the record and 5 Although DOE provided “DAITS” records to Parent which were entered into evidence as P-EEE and P-FFF, they are indecipherable as presented and it would be impossible for the IHO to make a determination as to what services were or were not provided to Student per Student’s mandate, what services were funded, which services were funded through pendency, and which were funded through a bank of compensatory services- such an accounting must be conducted by the DOE who is in possession of such records.

6 In case number 159866, Parent asserted claims related to the 2014-2015 and 2015-2016 school years, however given that the hearing and FOFD in that matter were completed after the end of the 2016-2017 school year, the IHO in that matter did address the DOE’s failure to provide services to Student for the 2016-2017 school year despite Parent clearly reiterating in her Statement of Facts and Closing Brief, that a denial of FAPE had not been asserted. (P-XX, P-YY). Whether the IHO intended to find a denial of FAPE for the 2016-2017 school year and order compensatory education, or whether she intended to order compensatory pendency is not clear from a plain reading of the FOFD, though they are distinct and can be ordered separately without being duplicative. (P-C). However, in this matter, Parent is only seeking compensatory education for the 2016-2017 school year in the form of 1:1 ABA and not for related services. The FOFD for case number 159866 ordered compensatory services for SLT, OT, and PT for three years, and ABA for only two years. Therefore, I do not believe the IHO provided the relief which is now sought for the first time and any remedy here would not be duplicative and has not previously been determined. considered Parent’s closing arguments on that issue (IHO-I) and find DOE’s position with respect to the 2016-2017 school year to be without merit.

With respect to the remaining school years at issue, DOE has raised no dispute as to the appropriateness of Parent’s requested relief. As such, I find that the record supports Parent’s requested remedy in its entirety.

I find that the record supports an order directing DOE to continue to fund the current program, with some increase in services, for Student for the remainder of the 2022-2023 school year. Student is currently [REDACTED] years old and has been receiving 1:1 ABA both from Center during the school day, and from Agency at home for at least 7 years. The hearing record overwhelmingly supports that this is the appropriate program, as evidenced by the testimony of Parent’s witnesses and extensive progress reports prepared by Center and Agency, and any change to the current mandate would result in significant regression and be detrimental to Student’s overall educational, emotional, and functional well-being. (P-I-L, P-O-U, P-TT). The DOE has demonstrated year after year that it is unwilling to recommend and provide the services which have clearly been demonstrated to be appropriate and necessary for Student to make any progress, specifically a full-time 1:1 ABA instructional program. The DOE has had opportunities year after year to develop an appropriate IEP and recommend an appropriate placement for Student which would enable Student to make meaningful educational progress. Instead, DOE has continuously ignored Parent and Student’s providers and has continued to recommend the same program and services, completely failing to address Student’s academic and functional deficits and clear need for additional individualized services and support. (See P-SS, notes prepared by Agency at Student’s 2022 IEP meeting in which the CSE Chairperson and special education teacher disregard provider and parent input and recommendation of a 1:1 ABA program by repeatedly noting DOE “does not give ABA”). Given that the record clearly supports Student’s need for a full-time 1:1 ABA program, and the DOE’s refusal to consider or recommend ABA, I am ordering that DOE provide and/or fund an appropriate program for Student to include full-time 1:1 ABA instruction. Based upon the testimony of Executive Director, I find that Student requires an increase from 5 to 10 hours per week of home-based ABA to both avoid regression of skills and to generalize skills learned outside of the home. Further, I find that the record supports an increase in Student’s SLT mandated from 30 minutes three times weekly to 45 minutes three times weekly per Director’s testimony, to focus on improving Student’s use of the AAC to enhance Student’s ability to communicate.

Student is not only entitled to the prospective relief in this matter described above, but also to retrospective relief. Retrospective relief is designed to compensate for past IDEA violations. Here, the record is clear that Student requires an award of compensatory education designed to make Student whole from the past deprivation of FAPE.

Parent is asking that a quantitative approach be utilized to determine the appropriate remedy- that Student should be given hour by hour the services which were mandated, but not provided throughout the years in question, including but not limited to the loss of services due to the COVID shutdown and Student’s inability to make gains through a remote learning platform, either due to a provider shortage or to Student’s own barriers to learning remotely. Either way, DOE remains obligated to offer FAPE to Student during that time-period and must remedy this loss of learning.

With respect to the 2016-2017 school year, as discussed earlier, Executive Director testified credibly that Student made no progress while at Private School. (Tr. 3/8/23 at 9-12). Executive Director further testified as to her recommendation that Student be provided with a compensatory bank of hours of 3.5 hours of ABA per day for the 46-week extended school year.

(Id. at 11). Executive Director testified that this bank of ABA hours should be used to focus on preparing Student for a transition to independent functioning in the home, community skills and overall safety given Student’s advanced age. (Id. at 13) “So, we really focus on teaching activities of daily living, self-hygiene skills, for example…bathing, toileting, the ability to dress [] self, take care of [] basic daily needs. We focus on preparation of simple meals, the ability to walk safely in the community, the ability to identify emergency worker should there be an emergency, the ability to—anything necessary for [Student] to function as independently as possible.” (Id.). Therefore, as a result of the DOE’s failure to provide FAPE to Student for the 2016-2017 school year, I am ordering that DOE fund a bank of compensatory education to include: 3.5 hours per day, or 17.5 hours per week, for 46 weeks, for a total of 805 hours of 1:1 ABA services7, to be provided by a private provider of the Parent’s choosing at their market rate, and 92 hours of ABA Supervision.

For the remaining school years at issue8, including 2020-2021, 2021-2022, and 2022-2023, Parent is seeking a quantitative award of any services not already provided to Student through pendency to which Student was entitled. Given that Student’s program was funded through various pendency orders issued on this and other pending matters, Student is entitled to compensatory pendency for any hours not provided to Student. See DOE v. East Lyme Bd. Of Educ., 790 F. 3d 440, *456, 457 (2d Cir.2015)(holding when an educational agency violates the stay-put provision, compensatory education may, and generally should, be awarded to make up for any appreciable difference between the full value of stay-put services owed and services the parent actually obtained); See also, Appeal No. 19-093 (in which the SRO noted a compensatory pendency award

7 Although this award is greater than that sought by Parent, it is consistent with Executive Director’s testimony, which I have credited in full.

8 Parent does not specifically seek compensatory services to address any educational loss for the 2017-2018 school year, despite DOE conceding a denial of FAPE. As such, no specific remedy will be provided for that school year. (IHO-I). should not be limited to the school years alleged in the original complaint, but through to the end of all administrative and judicial proceedings). Given that DOE failed to present any evidence or cogent argument to demonstrate what services have and have not been provided through pendency, I will order that DOE conduct an accounting of services provided through pendency for the 2020-2021, 2021-2022, and 2022-2023 school year, and provide a bank of all services not already provided, including but not limited to all home-based SLT services which could not be provided during COVID, as testified to by both Executive Director and Director. To that end, I will order that all mandated services be provided to Student in a bank of compensatory hours, less any hours already provided through pendency. Further, any mandated services which were funded under a compensatory bank ordered under prior FOFDs do not constitute services provided under pendency and must be returned to Student’s bank of compensatory hours. For the 2022-2023 school year, the DOE must provide a bank of compensatory pendency hours not provided from July 1, 2023, through the date this order is issued.

To conclude, the DOE has failed to offer Student a FAPE for the last seven years, five of which are pending in this matter. As such, a compensatory award is necessary to supplement the loss of educational progress made by Student because of the DOE’s failure to provide individualized instruction designed to meet Student’s needs. The DOE failed to present any evidence to demonstrate the appropriateness of the remedy sought, and I have found that the record supports the provision of compensatory services as requested by Parent. Further, I have found Parent’s request for prospective relief to be equitable under the circumstances and have ordered DOE to continue to fund the program and services which Student has been receiving for the past seven years to ensure continued progress can be made before Student transitions from the public school system.

ORDER

Based upon the above Findings of Fact, it is hereby:

1. ORDERED, that DOE shall fund a bank of the following compensatory services/education:

a. 2016-2017 school year: DOE shall fund a bank of the following compensatory services, to be provided by a private provider of Parent’s choosing at market rate:

i. 805 hours 1:1 ABA (3-1/2 hours per day for 46 weeks), ii. 92 hours of ABA Supervision (2 hours per week for 46 weeks), b. 2020-2021 school year: DOE shall fund a bank of all mandated services, to be provided by a private provider of Parent’s choosing at their enhanced rate, less any services already provided through pendency; including:

i. 1150 hours 1:1 ABA (25 hours per week for 46 weeks), ii. 92 hours BCBA Supervision (2 hours per week for 46 weeks), iii. 46 hours of PT (1 hour per week for 46 weeks), iv. 69 hours of OT (1.5 hours per week for 46 weeks), v. 69 hours of SLT (1.5 hours per week for 46 weeks), vi. 230 hours of home-based ABA (5 hours per week for 46 weeks), vii. 92 hours of home-based ABA Supervision (2 hours per week for 46 weeks), viii. 92 hours of PCAT (2 hours per week for 46 weeks), ix. 92 hours of after-school SLT (2 hours per week for 46 weeks) c. 2021-2022 school year: DOE shall fund a bank of all mandated services, to be provided by a private provider of Parent’s choosing at their enhanced rate, less any services already provided through pendency; including:

i. 1150 hours 1:1 ABA (25 hours per week for 46 weeks), ii. 92 hours BCBA Supervision (2 hours per week for 46 weeks), iii. 46 hours of PT (1 hour per week for 46 weeks), iv. 69 hours of OT (1.5 hours per week for 46 weeks), v. 69 hours of SLT (1.5 hours per week for 46 weeks), vi. 230 hours of home-based ABA (5 hours per week for 46 weeks), vii. 92 hours of home-based ABA Supervision (2 hours per week for 46 weeks), viii. 92 hours of PCAT (2 hours per week for 46 weeks), ix. 92 hours of after-school SLT (2 hours per week for 46 weeks) d. 2022-2023 school year: DOE shall fund a bank of all mandated services, to be provided by a private provider of Parent’s choosing at their enhanced rate, less any services already provided through pendency, and through the date of this Order; including:

i. 25 hours per week of 1:1 ABA services, ii. 2 hours per week of BCBA Supervision for the 1:1 school-day ABA, iii. SLT, 1:1, three (3) times per week for 30 minutes, iv. OT, 1:1, three (3) times per week for 30 minutes, v. PT, 1:1, two (2) times per week for 30 minutes, vi. Five (5) hours per week of home-based ABA, vii. Two (2) hours per week of home-based ABA Supervision, viii. Two (2) hours per week of PCAT, ix. Two (2) hours per week of home-based SLT

2. ORDERED, that the DOE shall conduct an accounting to determine the services which have been provided thus far to Student through pendency for the 2020-2021, 2021-2022, and 2022-2023 school years within twenty (20) days of this Order and the number of compensatory hours owed to Student pursuant to 1(b), (c), and

(d) of this Order, and the DOE shall determine whether any mandated service hours were funded during this time period with Student’s previously ordered bank of compensatory education, and those hours shall be returned to Student’s bank of compensatory hours.

3. ORDERED, that the DOE shall provide the accounting of hours described in (2) of this Order, to Parent Attorney 1 within thirty (30) days of this Order.

4. ORDERED, that DOE shall fund an appropriate program for Student for the remainder of the 2022-2023 school year, which shall include:

a. School-Day Services i. 25 hours per week of 1:1 ABA services during the school day at home and/or in a center or school, as per the student’s existing needs, as determined by the providers and the parent, ii. 2 hours per week of BCBA Supervision for the 1:1 school-day ABA, iii. SLT, 1:1, three (3) times per week for 45 minutes, iv. OT, 1:1, three (3) times per week for 30 minutes, v. PT, 1:1, two (2) times per week for 30 minutes, vi. Transportation in the form of a small, special education air-conditioned minibus with a seizure protocol and trained individual on the bus when Student is present, and a limited travel time of 45 minutes; if a trained paraprofessional is absent and/or cannot be timely assigned to Student’s bus, Student shall, notwithstanding this, be permitted to board the bus for transportation to and from school, b. Extended-Day (At-Home) Services i. 10 hours per week 1:1 home-based ABA- extended school day, ii. 2 hours per week of ABA supervision of the home-based, extended school day program, iii. 2 hours per week of after-school SLT, iv. All services to be provided by a provider of Parent’s choosing c. Assistive Technology for Home and School i. Two iPads, one for communication, with Touch Chat, and one for reinforcement, d. Translation, Interpretation and PCAT i. 2 hours per week of PCAT by a Chinese speaking professional who is trained in ABA, ii. 6 hours per month of translation and interpretation services to be provided by an agency by phone and in-person at Parent’s request, e. Coordination of Services i. 1 hour per month of team meetings for providers, f. Implementation of mandated program/services i. If the DOE does not provide their own providers or the parent wishes to keep her current private providers, the parent may use private providers and the DOE shall pay the providers within 30 days of submission of provider invoices, ii. If one of the providers is not delivering the full mandate, the DOE is required to arrange for the services directly at a time and place that does not conflict with the student’s other services and program, and iii. DOE shall monitor and ensure implementation of the services ordered herein.

SO ORDERED.

DATED: April 14, 2023

Rachel Glantz

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.

APPENDIX A – ADMITTED EXHIBITS

PARENTS’ EVIDENCE

Exhibit Title Date Pages

A. Due Process Complaint, 06/05/2017 15

B. Interim Order, Case No. 159866 06/12/2017 3

C. Amended FOFD, Case No. 159866 08/23/2017 37

D. Signed Stipulation of Agreement ad Settlement, Case 09/29/2017 9 No. 159866

E. iPad Receipt 12/06/2016 3

F. Related Service Attendance Records Various dates 22 2017-2018

G. FOFD, Case No. 187837 06/04/2022 12

H. Signed Subpoena to DOE 06/18/2019 2

I. Agency ABA Progress Report February 2019 02/2019 11

J. Agency Progress Report March 2020 03/2020 9

K. Agency ABA Progress Report May 2021 05/2021 12

L. Agency ABA Progress Report April 2022 04/2022 11

M. Resume of Executive Director Undated 2

N. Email from Center to Parents Regarding Billing 03/17/2020 2

O. Center Goals June-October 2020 06/2020-10/2020 15

P. Center Goals December 2020 12/2020 20

Q. Center Progress Reports June 2020-June 2021 06/2020-06/2021 20

R. Center Goals June 2020-July 2021 06/2020-07/2021 15

S. Center Progress Reports December 2021 12/2021 19

T. Center Goals June-July 2022 06/2022-07/2022 13

U. Center Progress Reports June 2022 06/2022 24

V. District 75 continuum of Special Education Services Undated 2

W. Continuum of Special Education Services Summer 2020 23

X. Ten Day Notices Various Dates 58 2020-2022

Y. Ten Day Notice Proof and Responses Various Dates 4 2020-2022

Z. District 75 2020-21 School Quality Snapshot Accessed on 8 12/06/2022 AA. Center 2021-2022 Contract 11/21/2021 1 BB. Email from Parent Attorney 1 to DOE regarding Various Dates 35

Pendency 2020

CC. Prior Written Notice of Recommendation 08/08/2021 8

DD. Invoices 2020-2021 School Year Various Dates 150 2020-2021 EE. Invoices 2021-2022 School Year Various Dates 223

2021-2022 FF. Invoices 2022-2023 School Year Various Dates 80

2022 GG. Center 2022-2023 Contract 08/10/2022 1 HH. Center Program Description Undated 4

II. Center Calendar 2022-2023 2022-2023 2 JJ. Resume of Director 07/2022 2 KK. Email to Center Parents 03/17/2020 2

LL. Center Organization-Wide Plan for Remote Learning Undated 2

MM. Agency Contract 2022-2023 07/02/2022 1 NN. Affidavit of Parent 12/12/2022 13 OO. Affidavit of Executive Director 12/13/2022 14 PP. Affidavit of Director 02/27/2023 17 QQ. Resumes of Center Staff Undated 10 RR. Center Student Schedule of Services as of 12/2022 12/2022 1 SS. Agency Notes of 2022 IEP Meeting 05/03/2022 10 TT. Center 22-23 Progress Reports 12/2022 11 UU. Due Process Complaint, Case no. 228227 07/05/2022 22

VV. Pendency Order, 03/10/2018 7 WW. Due Process Complaint, Case No. 159866 Various Dates 31

2016

XX. Parent’s proposed Statement of Facts, Case No. 159866 06/26/2017 22 YY. Parent’s Closing Statement and Memorandum, Case 08/08/2017 26

No. 159866 ZZ. Combined Transcripts, Case No. 159866 Various Dates 273

2016-2017 AAA. Emails between Counsel and IHO with attached Various Dates 30

Memorandum of Law Concerning Scope of Existing 10/2022-12/2022

Claim, BBB. Emails between Counsel and IHO with Attached Notice 12/05/2022- 50 of Motion and Memorandum in Law in Support of 12/07/2022

Petitioner’s Motion to Recuse

CCC. Transcripts, Case no. 228227 Various Dates 96 09/2022-12/2022

DDD. Stipulation and Agreement of Settlement in LC et al. v. 12/11/2017 44 New York City Department of Education, Case N. 03CV-9917 EEE. DAITS Reports, 02/27/2023 9 FFF. DAITS Reports, Case No. 228227 02/27/2023 6 GGG. FOFD, Case No. 174224 07/18/2019 8 HHH. Stipulation of Settlement, Case No. 174224 09/15/2020 9

DISTRICT’S EVIDENCE

None

I. IHO’S EVIDENCE Parent Closing Brief 04/05/2023 31 pages

II. Order on Consolidation 12/19/2022 5 pages

III. Order on Pendency (DPC 228227) 11/22/2022 12 pages

APPENDIX B – PERSONALLY IDENTIFIABLE INFORMATION

Redacted Information Term Used In FOFD

Footnotes

[2] The same IHO had been assigned to DPC 166370, DPC 174224, DPC 187837, and DPC 228227. Following the issuance of FOFD 174724 and FOFD 187837, only DPC 166370 and DPC 228227 remained assigned to the prior IHO until his appointment was rescinded.

[4] Student’s programming at Center and Agency were ordered in the August 23, 2017, FOFD 159866 and continued through the Pendency Order issued on the instant case on March 10, 2018. (P-B at 31-32, P-VV).