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Special Education Law
DECISIONParent PrevailedIHO Case No. 183821

Impartial Hearing Decision

November 11, 2022·Judith T. Kramer

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

Findings of Facts and Decision

Case No: 183821

Student’s name: [Redacted]

Date of Birth: 2/18/03

District: [Redacted]

Hearing Requested by: Parent

Actual Hearing Close Date: October 17, 2022

Dates of the Hearing: 7/29/19 (pendency), 4/29/20, 1/13/21, 2/4/21, 2/23/21,

8/23/21,9/29/21,10/19/21,10/26/21,11/4/21,2/23/22,5/24/22,6/9/22,7/9/22,

8/10/22,9/28/22,10/7/22

Introduction

On August 29, 2020 an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the impartial hearing request filed by the parent.[1]The request alleged that the DOE failed to provide FAPE to the child for the 2019-2020 SY and that the DOE failed to implement pendency for much of that time and thereafter.

The impartial hearing was held by video conferencing. The hearing commenced at 1:00 pm and continued on 6/2/20, 2/4/21, 2/23/21, 8/23/21, 9/29/21,

10/19/21, 10/26/21, 11/4/21, 2/23/22, 5/24/22, 6/9/22, 7/9/22, 8/10/22,

9/28/22, and 10/7/22.

A list of Exhibits admitted into evidence is attached hereto.

Background

A complaint was filed on July 27, 2019 (Ex. A) seeking a finding that the DOE denied the student a FAPE for the 2019-2020 school year SY, compensatory education based upon the denial of FAPE and equitable relief, and a final order directing the DOE to continue to provide the student with her special education services in the LRE. (Ex. A). Although Parent requested various forms of relief in the request, Parent limited the scope of the impartial hearing to the funding compensatory ABA services. (T. 104, 363, 371, 372, Parent Exhibit A ¶ 82 (b), (d)). Parent requested that the Department continue to “fund” the Student ABA pendency services. [2] (Parent Exhibit A ¶ 82 (b), (d)). There was a pendency order issued in July 2019 in which the DOE agreed to continue to provide the following services to the student pursuant to an unappealed IHO decision dated 3/21/19 (Case number 177358):

  • • A full-time integrated co-teaching class (ICT);
  • • A full time, 1:1 paraprofessional that can address behavior, safety, and health-related needs and provide support to teachers and ABA providers for other school activities.
  • • In-School Pull-Out Related Services as follows:
  • • Speech and Language Therapy (“SLT”) 4 x 30 (1:1);
  • • SLT 1x30 (group);
  • • Occupational Therapy (“OT”), 2x30 (1:1).
  • • Related Services by RSA as follows:
  • • OT (1x60);
  • • OT (1x30); and
  • • PT (1x60).
  • • The DOE shall reimburse the parent for mileage and toll transportation to and from the RSA providers, reimburse the parent for car service or fund prospective car service if the parent is unable to fund transportation.
  • • 35 hours /week of 1:1 ABA instruction in school to include both 1:1 direct and indirect support for the student. This will include formal and informal meetings between ABA Specialists and school staff providing direct services to the student.[3]
  • • ABA provider(s) shall be permitted to pull Student out of the classroom to provide academic support or re-teaching of a class lesson, in an appropriate alternate setting.
  • • 10 hours per week of home based, 1:1 ABA services.
  • • Funding of 10 hours of ABA supervision and staff planning per month. This will include lesson shared with ABA Specialists and informal planning meetings. [4]
  • • The services of an inclusion expert to review options for incorporating student into mainstream activities, to the maximum extent appropriate. Such inclusion expert shall prepare a report containing his or her recommendations for the DOE, such as “services of an inclusion expert will be provided and options for incorporating student into mainstream activities will be reviewed upon receipt of a report from inclusion expert containing his/her recommendations”). Recommendations will be made upon receipt of report from the inclusion expert.
  • • Assistive Technology in the form of a calculator, computer and iPad (home and school).
  • • A plan to prepare Student to take the New York State Alternative Assessments including adequate preparation for a computer based NYSAA Exam and provide Student with a practice exam.
  • • Environmental Management Needs:

a. Repetitions, Redirections, Simplifications b. General Directions written on index cards when she does not seem to understand c. Extra time to complete assignments d. Extra time to prepare for the next class when transitioning from one class to another. e. Tasks should be broken down into smaller tasks f. Timer for bathroom breaks g. Frequent opportunities to practice concepts h. Hands on activities, multisensory approach

  • • Transition Activities, Testing accommodations, and promotion criteria as per the 4/11/18 proposed IEP.

12 Month School Year ESY Program

  • • 35 hours of 1:1 ABA support for a 6 weeks period during the period July-August;
  • • Issuance of RSAs for the following: SLT (4 x 30 minutes per week 1:1), SLT speech language therapy (1 x 30 minutes per week 1:2), occupational therapy (5 x 30 minutes per week 1:1) and physical therapy (2 x 30 minutes per week 1:1).
  • • DOE shall authorize above services to be delivered in 30 minute or 60-minute sessions as Parent chooses based on her ability to obtain providers.
  • • The DOE shall reimburse the parent for mileage and toll transportation to and from the RSA providers.; (Ex. B)

Essentially, in addition to a finding that FAPE was denied and thus, compensatory services including ABA should be awarded, this case also is alleged to involve the allegation that the DOE failed to fully implement the pendency order. In particular, this request was initially limited to the mandated ABA services and the amount of compensatory services that may be warranted as a result of that failure. The parent’s request for compensatory ABA services in a stated amount which was described as a strict calculation of the difference between the pendency mandate and what was provided and which also included a consideration of the compensatory services based upon the denial of FAPE for that SY. The denial of FAPE was conceded by the DOE. (T.785,786, 790) On the last day of the hearing, the parent’s counsel modified her initial statement that the compensatory relief she is requesting was limited to ABA services.[5] She did not mention ABA supervision.

The parent’s position The parent alleged that the DOE failed to provide FAPE to the child for the 2019-2020 SY and that the DOE failed to implement pendency as specified in the pendency order for much of that time and thereafter. She seeks compensatory ABA and SL services.

The DOE’s position The DOE concedes that is did not provide the student with a FAPE during the 2019- 2020 SY. However, it disputes the parent’s calculation of the amount of ABA services that the parent contends the DOE is obligated to provide as compensatory services. It also contests the parent’s belated request made on the last day of the hearing for compensatory SL services and the request for compensatory ABA supervision.

Findings of Fact

The student is [Redacted] with mid-high functioning autism, speech and language delays, as well as sensory delays and fine and gross motor delays. (Exs. G, H, I, J, P, Q) She has an extreme sensitivity to [Redacted] (Exs. 1 at 3, I). Since 2011, her program has included 1:1 instruction, extended day services in her home, and ABA therapy in a mainstream setting. (Exs. A-G). The parent litigated her claims every year to obtain and/or maintain these services. ( Exs. B-G).[6] Here, the parent alleged that, as it had done in previous years, it denied the student a FAPE for the 2019-2020 SY. The DOE issued an IEP recommending certain services (Ex. 1, 17-19) but did not recommend the entire Autism Services program. The DOE did note, at the time, in the Management Needs Section of the IEP (Ex. 1 at 8-9) the services that the student was receiving under the prior hearing order. It was not clear whether the DOE was recommending these services as they did not appear on the recommendation page. After the prior hearing order had been issued and expired for the 2018-2019 school year (Ex. B), the parent filed a new hearing request to maintain the student’s program. (Exs. A, B-G, U, V). The parent filed that hearing request in 2019 seeking an order to try to facilitate an appropriate high school placement for the student. The DOE placed the student into a high school which was unable to implement her program. (Ex. D).

During the 2018-2019 SY, when the student attended a public middle school, the teachers and school were very welcoming and collaborative. The staff at the school provided the push-in team with information for lesson planning so the push-in team could plan and differentiate instruction and afforded them structured opportunities for the student to participate. In addition, the school provided opportunities for her to interact and partner with her typically developing peers in school activities, and tried to accommodate her needs overall. (Ex. I, T. at 134-137, 147-148). The middle school also provided the push-in team with a space in which to pull the student out for instruction or to accompany her if she was having a behavioral incident, often involving a reaction to loud noises, particularly male voices. Id. In general, if the student became dysregulated, she covered her ears and loudly screamed and made animal noises to drown out the sounds. (T.133-136, Ex. 1 at 2-3, Ex. I.)

After this case was filed, the student’s program was moved into a public high school. (Ex. A, T. at 139-151). The high school could not provide a quiet space or setting for her providers to pull her out either for 1:1 instruction or in situations where she became dysregulated. Her teachers did not differentiate instruction or provide any information to the ABA team and failed to afford them lesson plans, worksheets, syllabus or any information in advance so they could modify the lesson. The school did not make any effort to engage her in a holiday celebration which took place in a noisy hallway that she could not tolerate. She spent the time in the principal’s office. Id.

In March of 2020, COVID-19 caused the DOE to close the schools and the student’s services were administered remotely. (T. 151-152, 160-161). She continued to receive ABA, and related services remotely. (Ex. 1).

Since the start of the 2019-2020 school year, the DOE funded the student’s ABA provided by [Redacted] (hereinafter “Agency”). (T. p. 108– 111, 319) During the 2019-2020 school year, prior to COVID, after the student was placed in an ICT classroom at a DOE public high school, the DOE agreed to fund ABA services provided by the Agency at school. (Parent Exhibit I, J). While the student attended the high school for in-person instruction during the 2019-2020 school year, an Agency employee was with the student for the duration of every school day, approximately six hours per day. (T. 274, T., DOE Ex. 2). The Agency did not provide services on days when DOE schools were closed for vacations or holidays. (T. 284).

In addition to the ABA services provided in-school, the DOE funded ABA services provided by the Agency outside of school. (T. 283,284) The Agency and parent scheduled the ABA services based upon the parent and student’s needs and availability. (T. 288, 289, 291, 328, Ex.L)) This was more than the delivery of ABA services provided in the pendency order for the summer. There is no evidence in the record that the parent objected to the continuation of this arrangement prior to the filing of her request for impartial hearing or that the DOE interfered in any way to prevent the parent from arranging these services at any time..

In March, 2020, DOE schools closed because of the COVID-19 pandemic. At this time, the parent and DOE agreed that the Department would continue to fund ABA services the Agency provided remotely. (T. 108, 109, 110, 111, 151, 287) The DOE funded the services provided by the Agency for the remainder of the 2019-2020. (T. 319, 320). Although the Student did not return to a DOE school during the 2020-2021 or 2021-2022 school year, the DOE agreed to fund the service provided by the Agency during the 2020-2021 and 2021-2022 school year. (T. 110)[7]

Since the start of the 2019-2020 school year until the end, the student had made the expected progress addressed by the ABA-services. (T. 278, 279, 318, 319,).

The student has shown progress in all areas of need. (T. p. 278, 291). The student has made significant progress in reading and writing since the start of the 2019-2020 school year. (T.263, 278, 279, 348, Parent Ex. J-9 –13) The student mastered numerous English and Language Arts targets. Parent Ex. J). The student has made significant progress in her ability to describe pictures, a skill necessary across all academics. (T. 172, 174). The student has made progress with reversing pronouns. T. 349; Parent Exhibit J-013). The student has made significant progress with math instruction since the start of the 2019-2020 school year. (T. 180, 184. 279, 280, 309, 310) During the course of the 2019-2020 school year, the student mastered many mathematical targets which she was unable to complete before the start of the 2019-2020 school year. (T. 309, 310, Parent Exhibit J-6 –7). With services provided, the student has shown improvement in her coping skills, self-advocacy skills, and communication skills. (T. 174,177, 334, 335) The student has shown improvement in her reaction to male voices and coping with the presence of males. (T.221, 226 335,336,37, 53,354) The student has improved her prevocational skills.(T.227,228, 338, 340) The student organizational skills have improved.(T.. 177,178, 349). The student’s language skills improved. She began to engage in reciprocal conversation, which she was unable to do in the past. (T. 163, 165) Engaging in reciprocal conversation for the first time at the age of seventeen or eighteen is “remarkable.” (T. 165, 167). The student has made significant progress with respect to activities of daily living and social information. (T. 178, 180; 184, 187, 219, 220, 232, 234. Exhibit J-14-18) The student mastered many targets in the “Domain: Daily Living and Personal/community Safety Skills” (Ex. J). In addition, the student actually benefitted from virtual learning. It was important for her to learn how to shop on-line versus a brick and mortar store given the advanced technology used today. (T.216) She was successful at doing other tasks on-line as well such as arranging her food on shelves, independently taking inventory so she would know what to shop for. (Id.) She has transferred many of these skills to the natural world. (T. 218) and is learning to generalize all of them. Id. In addition, since she has left her school, she has made progress in gradually desensitizing herself to loud noises through the use of a systemic process to get her used to certain levels of noise. (T.222,223,224-225) However, she still requires greater development of her communication skills and emotional regulation so she does not become agitated when she is struggling to complete a task. (T.226) She has mastered many ADLS and almost mastered many other of her ADLS. (Exs. P, Q, T.232-236)

The parties had extended discussions at the hearing concerning the number of hours of pendency services the student received from July 1, 2019, up and through the last hearing date in 2022. Although an effort was made to obtain a stipulation of fact about the number of hours that the student received, the process was complicated by the fact that some compensatory services and pendency services were provided under prior decisions and case numbers, some of which appear in the Exhibit 1.[8]

What is clear is that in the pendency order for the summers between July 2019 and the present the student was eligible for a maximum of six weeks’ worth of ABA for 35 hours per week or as the agency and the parent arranged, for a maximum total per summer of 210 hours. There were three summers in the time period between July 1, 2019, and September 30, 2021: summer of 2019, summer of 2020 and summer of 2021. There was another summer for the SY 2022. Thus, the student was owed a maximum of 740 hours of ABA for those three summers all of which the parent and the agency may not have scheduled.

The Parent calculates that during the traditional 40-week school year period of time between September and June of each year, according to the pendency mandate, she is to receive 45 hours per week of ABA (35 per week during the school day that she was in school and 10 per week after school). Due to COVID, she did not attend school for much of the 2019-2020 SY but for the time she attended she was entitled to receive 45 hours of ABA per week all of which she did receive. For the SYs 2019-2020 after the school was closed and for the SY 2020-2021 the student received her ABA services virtually whenever they could be scheduled between the agency and the parent. (Ex. L) [9]

The parent claims that the DOE did not implement any ABA supervision pursuant to pendency until January 2021. From January 2021 to September 2021. The DOE claims that the parent is not entitled to receive any additional hours of compensatory supervision because the parent’s counsel limited this hearing only to compensatory ABA for the student. She did not raise this issue at the hearing.

According to the student’s provider, the student has demonstrated tremendous success as supported by the data presented in the various progress reports while receiving ABA services virtually in her home as opposed to that of her previous placement in Schuylerville Preparatory High School. She strongly recommended that this method of instruction, in this context, be continued indefinitely. It is of paramount importance that she continues to acquire, master, and maintain skills which facilitate effective communication, self-regulation, self-care and independent daily living abilities in her current placement. It was determined based on our data from September 2019 through February of 2020 that Schuylerville Preparatory High School is unable to support the growth of the aforementioned skills and is not an appropriate placement. Further, data recorded on skill acquisition via the ABA virtual home program from February of 2020 until August of 2021 supports the student’s acquisition of these skills exponentially.

Conclusions of Law

The IDEA was enacted to “ensure that all children with disabilities have available to them...a [FAPE] which emphasizes special education and related services designed to meet their unique needs.” 20 U.S.C.A. § 1400(d)(1)(A) The IDEA requires that IEPs be tailored to fit each child. As the Supreme Court of the United States recently held, the services and supports listed in a student’s IEP must be “reasonably calculated to enable a child to make progress appropriate in light of [his] circumstances.” Endrew F., 137 S. Ct. at 999. Instructional topics in an IEP can include academic and non-academic skills, including social/emotional regulation. M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 248-9 (2d Cir. 2012). Where, as here, the parent is seeking compensatory ABA services due to the failure of the DOE provide a FAPE and /or to fully implement the pendency order that was issued in 2019, the DOE has the burden of proof to show that it provided a FAPE and that it fully implemented the pendency order. The DOE did not present any witnesses to show that it offered the child a FAPE and conceded that it did not. Accordingly, the DOE failed to meet its burden in this regard.[10]

If this were merely a decision based upon considering the amount of compensatory services due because of a denial of FAPE, the standard would be clear. But there was a pendency order issued in 2019 that required the DOE to provide a myriad of services to the student, including ABA services during the more than three years of the pendency of this matter. Here, the only remaining issue is whether the DOE must compensate the student with ABA services that match 1:1 the hours provided for in the pendency order or whether other factors may be considered in making that calculation. The Second Circuit set forth a standard on how to calculate the amount of compensatory educational services due where, as here, a pendency order was not fully implemented. DOE v. East Lyme, 790 F3d 440, (2d cir. 2017) In general, the 2d Circuit held that the student is entitled to any appreciable difference between the full amount of the stay-put provisions and the amount the student actually received. However, it also pointed out that where, as here, the student’s educational needs have changed since the commencement of the proceedings, the court can craft a remedy based upon the student’s current needs provided the remedy is appropriate in light of the purposes of the Act. [11]

Moreover, the scope of this impartial hearing is limited to the issues raised at the hearing and all others should not be considered. Application of the Dep’t of Educ., Appeal No. 09-037 at 14. The parent expressly limited the scope of the impartial hearing to the issue of compensatory ABA services. On the very last day of the hearing the parent’s counsel suddenly raised the issue of compensatory SL services. Then, in her post-hearing brief, she belatedly requested compensatory ABA supervision. With regard to her request for compensatory SL services she presented no clearly discernable evidence to show how much of any compensatory SL services are currently required and how many sessions were not provided. (T.104, 363, 371, 372). With respect to ABA supervision, there was no clearly discernable evidence to show how much was missed. However, that issue will not be addressed because it was not raised at the hearing. Therefore, the scope of the impartial hearing will be limited Parent’s claim for compensatory ABA services.[12]

The Parent calculates that during the traditional 40-week school year period of time between September and June of each year, according to the pendency mandate, the student is to receive 45 hours per week of ABA (35 hours per week during the school day that she was in school and 10 per week after school). She received all 35 hours of ABA in school from September 2019 to March 2020. However, for almost all of the time period in question, the student was receiving at-home ABA services as well, many of which were done remotely due to COVID. For the SYs 2019-2020 after the school was closed after March and for the SY 2020-2021 the student received her ABA services virtually whenever they could be scheduled between the agency and the parent. (Exs. L, R) From July 2019 through July 2021 she received 2,129.21 hours of ABA in school and home combined. (Ex. R) After March 2019, he did not receive her 45 hours of ABA services in school but she responded very well to the hours of ABA which were provided at-home virtually. During the 2020-2021 and 2021-2022 SY she received only virtual instruction. According to her provider, the student continued to greatly benefit from the amount of virtual at-home instruction and she believes that the virtual schedule should continue indefinitely to meet her current needs. This constitutes a major change to the student’s pendency order in question which requires 35 hours of in-school ABA services plus ten hours of ABA at home. Clearly, the change in the student’s continued progress with virtual instruction exceeded expectations after the ABA services went virtual and the pendency order is no longer appropriate to meet her current needs. Accordingly, the students are entitled to receive compensatory ABA services from March 2020 through June 2020 based upon her first progress report in the amount of 45 hours per week. (Ex. J) That would be approximately 20 weeks of ABA instruction for 35 hours a week in school ABA and ten hours of at home ABA according to the pendency order for a total of 900 hours of ABA. However, she did receive 230 hours of ABA at-home from April to June 2020 once the school closed of 900 hours. Accordingly, she is owed 670 hours of ABA services to compensate for the hours she missed in the Spring of 2019-2020 SY since at that time there was no evidence to show that an amount less than that contained in the pendency order would meet her current needs (Ex. R) However, her next progress reports (Exs. P, Q) showed that in light of her significant progress utilizing the alternative method of virtual delivery of her ABA services, her needs changed considerably and were substantially met after she received 2,129 hours of ABA. [13]Thus, the pendency order is no longer the appropriate measure to use in calculating compensatory educational services. If she actually received 2,129.25 hours of ABA services per year for the 2020-2021 SY, 2021-2022 SY and thereafter and those services were already paid for by the DOE, she would not be entitled to receive any additional hours since the evidence showed that such an amount of services met her current needs.[14] If she did not receive 2,129.25 hours of ABA services per year she should receive the difference between that amount and what she actually received. DOE v. East Lyme. Accordingly, upon a presentation to the DOE by the parent/provider that any amount of those services were not provided or paid for, they shall be given as part of this order for compensatory ABA services.

It is so ordered that the DOE shall provide the student with:

  • • 670 hours of compensatory ABA services to be utilized as her parent chooses;
  • • additional compensatory ABA services to the extent that she has not received at least 2,129 hours of ABA at-home for each school year in which the pendency order has been in effect or will be in effect going forward;
  • • the request for compensatory SL services as well as ABA supervision are denied without prejudice.
  • • Dated: November 11, 2022 Judith T. Kramer
  • • IHO

PLEASE SEE BELOW FOR THE NOTICE OF RIGHT TO APPEAL

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or Public School District has a right to appeal the decision to the State Review Officer of the New York State Department of Education under Section 4404 of the Education Law and the Individuals with Disabilities in 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 not 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 to 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 and model forms are available at http:www.sro.nysed.gov.

Directions and forms can also be found in the office of the State Review website: www.sro.nysed.gov/appeals.htm.

Exhibits

DOE exhibits

  • • Individualized Education Program, April 10, 2019, 29pp.

Parent’s Exhibits

  • • A. Impartial Hearing Request 07/27/2019 21 B. Findings of Fact and Decision #177358 03/12/2019 16 C. Findings of Fact and Decision #145198 01/20/2017 17 D. Findings of Fact and Decision #164479 09/14/2018 20 E. Findings of Fact and Decision # 117192 10/20/2008 7 F. Findings of Fact and Decision #127807 11/04/2011 24 G. [Redacted] Annual Progress Report, 4/16/2019, 3pp. H. [Redacted] Annual Report, 4/25/2019, 3pp I. [Redacted] progress Summary by [Redacted]., 12/13/2018, 5pp. J. [Redacted] report (Annual) September 2019-July 2020, 23pp K. [Redacted] Report Card for 2019-2020 Marking Period # 2, Term 2, 06/05/2020, 1p L. 2020 Schedule, Undated, 1p
  • • M. [Redacted] Notes and Recommendations, Undated, 4pp. N. Resume of [Redacted], Undated, 4pp. O. [Redacted] Therapy Annual Progress, 02/02/2020, 3pp. P. [Redacted] Annual Progress Report, January 2021,1/13/2021, 26pp. Q. [Redacted] progress Report, August 2021, 08/12/2021, 17pp. R. [Redacted] Service Hours from 2019-2021,07/2019-07/2021,1p.

IHO Exhibits

  • • Pendency order, 8/2/21, unspecified number of pages.

Footnotes

[1] A pendency hearing was held a year earlier and the parties were engaged in extensive settlement negotiations for many months. A settlement was anticipated. After an extended period of time, the DOE decided that it could not settle the case and what turned into a long a hearing was commenced.

[2] There were many recusals in this case extending over many months prior to this IHO being assigned.

[3] The ABA reported that the student should continue to learn virtually as opposed to her learning at the HS that she was attending prior to COVID. (Ex. Q.16). There was no discussion at all of whether the amount of home-based ABA should change were the home-based ABA delivered virtually became the only ABA services which she needed thereby modifying pendency.

[4] As part of her report, the ABA provider stated that 6 hours of ABA services would now suffice. (Ex.Q.17)

[5] She now seeks an order including compensatory SL services which were part of the pendency order. However, she did not know how many hours of SL, if any, were missed.

[6] Redacted footnote

[7] There is no schedule provided in the record for the 2020-2021 and 2021-2022 SY but the DOE paid for these ABA sessions. (T.110)

[8] The parent offered over 800 additional pages of emails as evidence to support her calculations. Over the objection of the DOE the lack of testimony from any witness about the accuracy of these emails or which of them involved invoices that were actually relevant to this case, were paid and/or that services were actually delivered by the agency, the documents were excluded.

[9] The record does not contain information about the schedule of ABA services for the 2020-2021, 2021-2022 SYs. I am assuming that since the parent is seeking all of the hours that were missed (45 hours per week) as compensatory services, that the schedule in place for the 2020 SY continued and is continuing.

[10] That there was a violation of FAPE has been conceded by the DOE and will not be addressed here in any more detail. Moreover, it is irrelevant to a determination of how much compensatory educational services should be awarded. DOE v. E. Lyme Bd. of Educ., 790 F.3d 440 (2nd Cir. 2015)

[11] “Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case.” Application of the New York City Dep’t of Educ., Appeal No. 21-197, 15 (citing E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 92D Cir. 2014); P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). The standard for compensatory services when there is strictly a denial of FAPE is “to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA.” Application of the New York City Dep’t of Educ., Appeal No. 21-197, 16 (citing Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007) (holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully “[N]o compensatory education is required for a district’s denial of a FAPE if the deficiencies were already mitigated.” Application of a Student with a Disability, Appeal No. 20-170, 15.

[12] Although the Parent failed to address ABA supervision during the hearing, compensatory ABA supervision is not warranted in any event. The DOE funded all the ABA supervision the Agency provided during the 2019-2020 school year and beyond. With these services, the student was able to make more than the expected progress. No evidence has been presented to suggest that the student currently requires compensatory ABA supervision above the DOE services that were and/or are being received. Accordingly, no compensatory ABA services are warranted.

[13] For whatever reason, probably because she was totally out of the school setting that caused her to be very dysregulated on a regular basis, and learning in the familiar quiet setting of her own home, she did exceptionally well. (Exs P,Q).

[14] Whether the parent is seeking to enforce prior orders issued by other IHO’s is unclear. In the event she is, “[N]either IHOs nor SROs have authority to enforce prior decisions rendered by administrative hearing officers. (See Educ. Law §§ 4404(1)(a), (2); see, e.g., A.R. v. New York City Dep't of Educ., 407 F.3d 65, 76, 78 n.13 (2d Cir. 2005