New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 535283 NYC: 192400

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: January 29, 2020 (Original)

October 26, 2022 (Amended) Hearing Requested by: Parent

Date(s) of Due Process Hearing: January 17, 2023

January 27, 2023

March 13, 2023

March 16, 2023

April 05, 2023

April 25, 2023 Record Close Date: May 19, 2023

Date of Decision: June 07, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 17, 2023:

For the Student:

REDACTED, Parent Attorney

For the Department of Education:

REDACTED, Agency Attorney

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 27, 2023:

For the Student:

REDACTED, Parent Attorney

For the Department of Education:

REDACTED, Agency Attorney

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 13, 2023:

For the Student:

REDACTED, Parent Attorney

For the Department of Education:

REDACTED, Agency Attorney

REDACTED, Clinical Coordinator

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 16, 2023:

For the Student:

REDACTED, Parent Attorney

REDACTED, Parent Student

For the Department of Education:

REDACTED, Agency Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 5, 2023:

For the Student:

REDACTED, Parent Attorney

REDACTED, Parent Student

For the Department of Education:

REDACTED, Agency Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 25, 2023:

For the Student:

REDACTED, Parent Attorney

For the Department of Education:

REDACTED, Agency Attorney

INTRODUCTION

This matter concerns the Student, a REDACTED-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 January 29, 2020, Parent filed the original due process complaint (“DPC”), 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 2019-2020 school year, pursuant to both the IDEA and Section 504 of the Rehabilitation Act of 1973 (“Section 504”). (P-A, B).

At the time of the filing of the original DPC, which was originally assigned to another impartial hearing officer (“IHO”); another DPC, case number 167775, was already pending before the same IHO. DPC 167775 (consolidated with DPC 183400), alleged claims related to the 2017-2018 and 2018-2019 school years. On February 7, 2020, a Findings of Fact and Decision (“FOFD”) was issued on DPC 167775. (P-E). On April 17, 2020, the previously appointed IHO issued a Pendency Order on the instant matter, which was based upon the FOFD issued pursuant to DPC 167775. (P-D).

The previously appointed IHO presided over the instant DPC until October 14, 2022, when his appointment was rescinded. I was appointed as IHO on October 19, 2022. Status Conferences were held with the parties to discuss the posture of the case on October 25, 2022, and October 28, 2022. On October 26, 2022, Parent Attorney filed an Amended DPC, which included additional allegations relating to the time period between March 2020 through the end of the 2019-2020 school year, when the COVID-19 pandemic caused the shutdown of all in-person education. (PC).

On December 7, 2022, a pre-hearing conference was held with the parties on the Amended DPC. The due process hearing (“DPH”) was thereafter conducted on January 17, 2023, January 27, 2023, March 13, 2023, March 16, 2023, April 5, 2023, and April 25, 2023.

On January 17, 2023, the DPH commenced. Both parties entered documentary exhibits into evidence. (P-A-RR, DOE-1-3). The DOE noted that it would not be presenting a case-in-chief to defend its provision of FAPE to Student for the 2019-2020 school year. Following a lengthy discussion on the record about the remedy sought by Parent, the matter was adjourned to January 27, 2023, for Parent Attorney to submit subpoenas for records from REDACTED, Private School and the DOE which would narrow the specific remedy sought by Parent. On that date, the parties met to discuss the subpoenas, which were signed over the objection of the DOE.

On March 13, 2023, DOE entered an additional exhibit into the record (DOE-4), and called REDACTED, Clinical Coordinator, from Private School to testify about Student’s attendance at related service sessions during the relevant school years. Clinical Coordinator was cross-examined by Parent Attorney. Following the testimony of Clinical Coordinator, the DOE rested its case. On March 16, 2023, without objection, DOE entered two additional exhibits into the record, which had been received pursuant to the subpoenas that were issued on January 27, 2023. (DOE-5, DOE6). Parent Attorney made an opening statement and Parent began her direct testimony. On April 5, 2023, Parent completed her direct examination and was cross-examined by DOE. Although an additional hearing date was scheduled for Parent to call another witness on April 25, 2023, the witness did not appear. The matter was adjourned on April 25, 2023, to May 4, 2023, for Parent’s final witness to appear, however Parent Attorney informed the parties via email that the witness was unable to appear, therefore the DPH was not held on that date. On May 19, 2023, both parties submitted closing briefs. (IHO-I, II).

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 classified by the Committee for Special Education (“CSE”) as a Student with Other Health Impairment for the school year in question. (DOE-1 at 1). Student’s classification and entitlement to special education services is not in dispute.

Student has a longstanding history of Autism Spectrum Disorder (“ASD”) and Attention Deficit Hyperactivity Disorder, Combined Type (“ADHD”). (DOE-1 at 2, DOE-B at 1). A Neuropsychological Evaluation was conducted with several testing dates between January 2019 and March 2019. In addition to Student’s diagnoses of ASD and ADHD, Student was also diagnosed with Specific Learning Disorder, with Impairment In Writing; and Specific Learning Disorder, With Impairment in Mathematics. (DOE-B at 7). As a result of several formalized tests, the evaluator found that while Student demonstrated strong cognitive abilities, Student also demonstrated significant difficulty with completing tasks that require complex focus, attention and working memory. The evaluator found that Student’s vulnerabilities in attention and processing speed likely impact Student’s facility with encoding and retrieving newly acquired concepts in a classroom setting. (Id. at 6). Student presented with social pragmatic challenges, learning differences, and difficulties with flexibility, regulation, and inattention, which require complex educational interventions and services. (Id.). The evaluator recommended that Student be placed in a full-time special education school placement to ensure appropriate progress and prevent any regression. The evaluator further recommended that Student be provided with a full-time Applied Behavior Analysis (“ABA”) program within school, consisting of 25 hours per week, and an additional^[10] hours of ABA at home after school. (Id. at 8). The evaluator noted, “[i]t is with clinical certainty that [Student] must be placed in a small, structured program and school with therapeutic services, with the additional support of an ABA therapist in order to meet [] myriad of needs and that the wrong program/environment would undoubtedly lead to academic, emotional, and behavioral regression…[i]t is critical that [Student] continue to be provided with a home-based program utilizing direct 1:1 ABA to aid in developmental of requisite adaptive functioning skills, flexibility, and coordination of his educational plan. A minimum of (“OT”), individual, once weekly for 30 minutes; OT, group of two, twice weekly for 30 minutes; Physical Therapy (“PT”), individual, once weekly for 30 minutes; Speech-Language Therapy (“SLT”), individual 3 times weekly for 30 minutes; SLT, group of four, twice weekly for 30 minutes, and Parent Counseling and Training (“PCAT”), group, once per month for 60 minutes. (Id. at 17). Student was to be provided with a Transportation Paraprofessional, individual, daily; and use of a touch screen tablet device, individual, daily, to be used at home and school for writing assignments. All special education program services were to be provided for the 12-month extended school year (“ESY”). (Id. at 18).

In December 2019, Student began attending REDACTED, (“Private School”), a NYS Approved Non-Public School. Private School does not provide ABA but allowed Student to have a full-time ABA provider push-in to work with Student 1:1 throughout each school day. (Tr. 3/13/23 at 24-25). Private School provides all related services consistent with a student’s current IEP, including OT, SLT, PT, and Counseling. (Id. at 10-11). Initially, Student presented with severe behavioral challenges, including oppositional and combative behaviors which made it challenging for Student to receive the mandated related services due to Student’s frequent refusal to attend sessions and non-compliance with provider’s efforts to engage Student. Student demonstrated these oppositional behaviors both at home and at school, which included property destruction, throwing items, hitting, biting, kicking, yelling, and screaming. (Tr. 3/16/23 at 25-27, 35).

In March 2020, Private School transitioned to remote learning following the shutdown of all schools as a result of the COVID-19 pandemic. Clinical Coordinator testified about the remote learning program that was provided to students at Private School, which included a combination either in “breakout rooms” on the Zoom videoconference platform, or the provider would push-in to the class on Zoom. (Id.). Clinical Coordinator testified about Student’s challenges with remote instruction, specifically that Student frequently refused to log on to classes and related service sessions, and as a result Student missed a lot of education and services. (Id. 18-19). Parent testified that the remote instruction provided by Private School was sporadic and estimated that a total of 10 hours per week of instruction was provided following the shutdown. Parent further testified about Student’s reluctance and refusal to participate with remote instruction. (Tr. 3/16/23 at 36-40).

On April 17, 2020, a Pendency Order was issued on this case number, which directed that Student be provided with the following program and services, retroactive to the filing date of the DPC on the instant matter: placement in a private school program; 10 hours of ABA SETSS to be funded at the reasonable market rate for services at home; related services on the October 5, 2017 IEP, including OT- 3 times per week for 30 minutes, PT- twice weekly for 30 minutes, SLT- 5 times per week for 30 minutes, and PCAT, 4 times per year for 60 minutes; if necessary to obtain home-based related services, funding shall be provided at an enhanced rate; 12-month school year services, and minibus transportation with 1:1 paraprofessional and air-conditioning. (P-D at 2-3). The Pendency Order has been in effect as Student’s operative educational program and placement since its issuance and remains in effect as of the date of this FOFD.

Clinical Coordinator testified that Private School continued with full-time remote instruction from March 2020 until November 2020. (Tr. 3/13/23 at 19). From November 2020 through June 2021, Private School provided hybrid instruction where students were in-school for In July 2021, for the start of the 12-month 2021-2022 school year, Private School returned to full-time in-person instruction. (Id.). Student had previously returned to Private School on a full-time, in-person basis in January of 2021 due to Student’s lack of participation in remote instruction and stated desire to return to school. (Tr. 3/16/23 at 43). According to Parent’s testimony, however, the DOE did not provide consistent transportation, and Parent had to independently transport Student to and from school at her own expense. (Id. at 44). Despite Student returning to school in January 2021, the related service providers at Private School continued to provide services remotely. This was ineffective for Student, who refused to engage on the remote platform for any related services. (Id.at 48).

According to Clinical Coordinator, Student has been non-compliant with attending related services up to and through the 2022-2023 school year as well. “Most days [Student] refuses to go. [Student] will say no, [Student] ignores the provider, [Student] yells, [Student] might put [] head on [] desk or [] hood over [] head…sometimes it escalates when [Student] sees the provider or when their proximity to [Student] gets closer, [Student] may use verbal, non-verbal signal to let others know that, you know, [Student] is not comfortable or that [Student] doesn’t want to go. And so it has been a challenge getting [Student] to attend those services.” (Tr. 3/13/23 at 20-21). These challenges have persisted despite Student having a full-time 1:1 ABA service provider at school each day. (Id. at 24). Clinical Coordinator testified with specificity about the efforts Private School has made to improve Student’s engagement and compliance with related service attendance. (Id. at 21).

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:

2019-2020 school year

The DOE failed to meet or even attempt to meet its burden at this DPH regarding the provision of FAPE for the 2019-2020 school year. Rather, Agency Attorney indicated on the record that DOE conceded its failure to offer Student a FAPE for the school year at issue. DOE further made no argument that FAPE was provided to Student for that school year. While Clinical Coordinator was called as a DOE witness, her testimony related to Parent’s request for compensatory education, rather than to a provision of FAPE. 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 the 2019-2020 school year. The record supports that the additional 1:1 full-time ABA program1 and services which Student has been receiving as push-in at Private School and athome are appropriate and necessary to meet Student’s unique educational needs. I found the 1 According to Parent’s testimony, Student’s 1:1 full-time ABA provider has been funded since the 2019-2020 school year through a prior compensatory education award on an unrelated DPC. testimony of both Parent and Clinical Coordinator to have been forthcoming. Both witnesses were cross-examined by each party, and neither witness’s testimony was impeached or controverted in any way. I therefore credit both witness’s testimony 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 year at issue. Parent has sought compensatory education under Section 504 as an alternative. (IHO-I at 21). 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.

Remedy

Parent is seeking a compensatory award to remedy the denial of FAPE for the 2019-2020 school year, as well as the DOE’s failure to consistently provide services to Student through pendency from the date the DPC was filed until the date this decision is issued.

Specifically, Parent is seeking the following remedy:

1) For the denial of FAPE for the 2019-2020 school year, DOE to fund a bank of compensatory education of 1,421.5 hours, including:

a. 1200 hours of 1:1 instruction to be used for SETSS, tutoring or ABA, b. 40 hours of 1:1 ABA Supervision, c. 158 SLT sessions (79 hours), d. 92 OT sessions (46 hours), e. 40 Counseling sessions (20 hours), f. 77 PT sessions (38.5 hours)

2) For compensatory education based on pendency violations from July 1, 2020, until the date of this decision, DOE should fund a bank of services, less any services provided to Student pursuant to the Pendency Order (P-D) issued on this matter, including:

a. 10 hours of 1:1 ABA SETSS, b. OT three times per week for 30 minutes, c. PT twice per week for 30 minutes, d. SLT five times per week for 30 minutes, e. Counseling, once per week for 30 minutes^[2]

3) DOE to arrange for Student to be assessed for foreign language abilities by individuals who speak the following languages: Spanish, Japanese, Portuguese, Russian, Korean, Yiddish and German. The evaluation should determine whether Student has any functional understanding of and/or use of these and other foreign languages.

4) A finding that the following program was the appropriate program for the 2019-2020 school year:

a. NYS approved NPS, b. Full-time, push-in 1:1 instruction using ABA strategies of 30 hours per week, c. 10 hours per week of ABA SETSS, d. SLT, 1:1, five times weekly for 30 minutes, e. OT, 1:1, three times weekly for 30 minutes, f. PT, 1:1, twice weekly for 30 minutes, g. Minibus transportation with 1:1 paraprofessional and air conditioning

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 2019-2020 school year and to compensate Student for the lack of educational gains because of the denial of FAPE as well as to restore to Student the services to which Student was entitled under pendency since the filing of this case but was not so provided.

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 Student is entitled to relief to put Student in the same position Student would have been in but for the DOE’s denial of FAPE for the 2019-2020 school year. 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.

The DOE has conceded a denial of FAPE for the school year at issue, but presented evidence regarding Parent’s requested remedy, including the testimony of Clinical Coordinator, and Private School’s related service attendance records and notes. (Tr. 3/13/23 at 8-81, DOE-5, DOE-6). Both parties submitted closing briefs and made arguments as to the appropriate compensatory remedy. (IHO-I, II). Both Clinical Coordinator and Parent testified about the oppositional behaviors and non-compliance displayed by Student which resulted in Student being unable to engage in many of Student’s related service sessions. It is inarguable, however, that Student’s combative behaviors and refusal to engage are directly related to Student’s disability. Although DOE has argued that Student is not entitled to make up sessions which Student refused to attend, I do not agree. I therefore find that Student is entitled to a compensatory award for services which Student was entitled to but did not receive, less services which were missed because of Student’s own absence from school. However, if Student’s absence was a result of DOE’s failure to provide appropriate transportation, Student is entitled to make up that session. Although DOE entered records into evidence which tracked Student’s related service attendance from December 2019 through March 13, 2023, not all mandated services were tracked. (Id.). As a result, I find that Student is entitled to all services which were not tracked as it was not proven that these services were provided and can therefore be inferred that the service was not provided. I will adopt the accounting of hours and proposed remedy which was outlined by Parent in her closing brief regarding the hours of compensatory education to be awarded as a result of the denial of FAPE for the 2019-2020 school year. (IHO-I at 18-19).

For the 2019-2020 school year, I find that Student is entitled to a bank of compensatory services for all related services that were not provided, including SLT, 158 sessions (79 hours); OT, 92 sessions (46 hours); PT, 77 sessions (38.5 hours). Parent testified that she utilized a prior compensatory award of ABA hours to fund Student’s 1:1 ABA provider to push-in to Private School for 30 hours per week for the entire 2019-2020 school year. As such, Parent is seeking a finding that such services were appropriate and DOE’s failure to provide such services resulted in a denial of FAPE for the 2019-2020 school year. Although Parent did not present the testimony of Student’s ABA provider to attest to the need for a full-time ABA provider, I find that the testimony of Parent as well as the 2019 Neuropsychological Evaluation (DOE-2) make clear that Student required the additional service of 1:1 ABA, full-time for Student to make any meaningful educational progress, while on home-instruction from September 2019 through December 2019, at Private School from December 2019 through March 2020, and while receiving remote instruction due to COVID-19 from March 2020 through June 2020. The Neuropsychological Evaluation, which was the only evaluation considered by the CSE when the December 2019 IEP was developed, noted repeatedly that it was imperative for Student to receive full-time 1:1 ABA instruction. (DOE-1 at 1, DOE-2 at 8). Yet despite that recommendation, DOE failed to include that service on Student’s IEP, and failed to locate a NPS which would have provided 1:1 ABA for Student. Furthermore, despite DOE’s argument that Parent failed to establish Student’s need for full-time ABA, the burden lies with the DOE, and I find that the DOE did not establish that the requested service was unreasonable or inappropriate. To the contrary, I find that the record supports the finding that Student required the support of a full-time 1:1 ABA provider and will order DOE to return to Parent any compensatory hours used to supplement Student’s educational program. Specifically, DOE must provide a bank of 1200 compensatory hours of 1:1 ABA- 30 hours per week for the 40-week 2019-2020 school year.

For the remaining school years at issue, 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. Despite DOE’s argument to the contrary, I find that Student is entitled to compensatory pendency for any hours not provided to Student from the date the Pendency Order was issued, until the date of this decision. 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 should not be limited to the school years alleged in the original complaint, but through to the end of all administrative and judicial proceedings.

I will therefore 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. As noted earlier, Student is entitled to make up any sessions that were missed because of Student’s inability to engage with the provider, provider’s absence, or Student’s absence when that absence was a result of DOE’s failure to provide transportation. 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.

Finally, Parent has requested that DOE conduct an evaluation to assess Student’s ability to speak and comprehend multiple foreign languages. Parent testified at length both on direct and cross-examination about Student having watched foreign language cartoons and other programs and then appearing to sing, speak, and understand those foreign languages. Parent herself does not speak any foreign languages, and therefore does not know whether Student is actually able to understand and speak in these other languages or has memorized and is mimicking what was heard. (Tr. 3/16/23 at 28-31, Tr. 4/5/23 at 42-46). Parent has requested an order directing the DOE to arrange for Student to be assessed by individuals who speak languages other than English, including Spanish, Japanese, Portuguese, Russian, Korean, Yiddish, and German. (IHO-I at 28). I am unable to find that the record supports an order directing the DOE to undertake such an evaluation. First, I do not find that the record supports that Student can understand and speak any of these languages. Moreover, I find that such an evaluation, to determine exceptional or savantlike skills of individuals, is not contemplated by the IDEA or any other law governing the provision of special education services. Courts have long held that the IDEA does not require a school district to maximize the potential of its students. (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Rather, the statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989]; see Grim, 346 F.3d at 379).

As such, Parent’s request for the specific relief directing DOE to assess Student’s foreign language skills is denied.

Finally, I find that the following educational program and services were appropriate for Student for the 2019-2020 school year: placement in a NYS Approved NPS with full-time 1:1 ABA instruction, and since such a NPS was not secured, then the addition of full-time, push-in 1:1 ABA instruction of 30 hours per week at the NPS is deemed to have been appropriate, related services including SLT, individual, five times per week for 30 minutes; OT, individual, three times per week for 30 minutes; PT, individual, twice weekly for 30 minutes; minibus transportation with 1:1 paraprofessional; and 10 hours per week of home-based ABA instruction.

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. 2019-2020 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. 1200 hours of 1:1 instruction to be used for SETSS, tutoring or ABA, ii. 40 hours of 1:1 ABA Supervision, iii. 158 SLT sessions (79 hours), iv. 92 OT sessions (46 hours), v. 77 PT sessions (38.5 hours), and

b. 2020-2021 school year: DOE shall fund a bank of all services mandated under the April 17, 2020 pendency order issued in this matter, to be provided by a private provider of Parent’s choosing at their enhanced rate, less any services already provided through pendency; including:

i. 10 hours of 1:1 ABA SETSS, ii. OT three times per week for 30 minutes, iii. PT twice per week for 30 minutes, iv. SLT five times per week for 30 minutes, and c. 2021-2022 school year: DOE shall fund a bank of all services mandated under the April 17, 2020 Pendency Order issued in this matter, to be provided by a private provider of Parent’s choosing at their enhanced rate, less any services already provided through pendency; including: i. 10 hours of 1:1 ABA SETSS, ii. OT three times per week for 30 minutes, iii. PT twice per week for 30 minutes, iv. SLT five times per week for 30 minutes, and d. 2022-2023 school year: DOE shall fund a bank of all services mandated under the April 17, 2020 Pendency Order issued in this matter, 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. 10 hours of 1:1 ABA SETSS, ii. OT three times per week for 30 minutes, iii. PT twice per week for 30 minutes, iv. SLT five times per week for 30 minutes, and

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

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

SO ORDERED.

DATED: June 7, 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. Impartial Hearing Request 01/28/2020 9

B. Corrected Impartial Hearing Request 01/30/2020 9

C. Amended Impartial Hearing Request 10/25/2022 10

D. Order on Pendency 04/17/2020 4

E. Findings of Fact

and Decision in Case #167775 02/07/2020 7 (Consolidated with Case #183400

F. ABA Provider Progress Report by Tarif Brown, M.Ed., 09/26/2019 3

SBL, SDL, BCBA

G. Private School Math Educational Progress Report 01/2020 2

H. Private School Occupational Therapy Mid-Year Report 01/2020 3

I. Private School Speech/Language therapy Progress 01/2020 2 Report

J. Private School Educational Progress Report 01/2020 4

K. Private School ELA Educational Progress Report 01/2020 3

L. Private School Counseling Report of Progress 01/2020 1

M. Private School Report of Progress Homeroom, ELS, 03/2020 12 Math, Related Services

N. Private School Behavior Intervention Plan Progress 02/2020-03/2020 2 Monitoring Report

O. Private School Behavior Intervention Plan Progress 04/2020-06/2020 1 Monitoring Report

P. Private School Behavior Intervention Plan 10/2020 6

Q. Proposed IEP Goals October 2020 10/21/2020 15

R. Proposed IEP Goals Undated 18

S. Private School Behavior Intervention Plan Updated 10/2021 5 October 2021

T. Private School Behavior Intervention Plan Progress 09/2021-11/2021 2 Monitoring Report September 2021-November 2021

U. Private School Progress Report 11/10/2021 15

V. Private School Remote Learning Schedule Undated 3

W. ABA Invoice April 2020 04/30/2020 1

X. SETSS Invoice May 2020 05/31/2020 1

Y. SETSS/ABA Invoice May 2020 05/31/2020 1

Z. SETSS/ABA Invoice May 2022 05/01/2022 3 AA. Behavior Support Invoice March 2020 03/31/2020 1 BB. Second Behavior Support Invoice March 2020 03/31/2020 1

CC. Third Behavior Support Invoice March 2020 03/31/2020 1

DD. SETSS Invoice March 2020 03/31/2020 1 EE. Second SETSS Invoice March 2020 03/31/2020 1 FF. Third SETSS Invoice March 2020 03/31/2020 1 GG. SETSS Invoice April 2020 04/30/2020 1 HH. Behavior Support Invoice April 2020 04/30/2020 1

II. SETSS Invoice May 2020 05/31/2020 1 JJ. Compensatory ABA Invoice April 2022 04/01/2022 2 KK. Compensatory ABA Invoice December 2019 12/04/2019 1

LL. Compensatory ABA Invoice January 2020 01/31/2020 1

MM. Second Compensatory ABA Invoice January 2020 01/31/2020 1 NN. Compensatory ABA Invoice February 2020 02/28/2020 1 OO. Second Compensatory ABA Invoice February 2020 02/28/2020 1 PP. Compensatory ABA Invoice March 2020 03/31/2020 1 QQ. Second Compensatory ABA Invoice March 2020 03/31/2020 1 RR. Third Compensatory ABA Invoice March 2020 03/31/2020 1

DISTRICT’S EVIDENCE

1. Individualized Education Program 12/04/2019 25 pages DOE

2. Pediatric Assessment Learning and Support- Neuropsychological Evaluation 06/20/2019 12 pages DOE

3. Prior Written Notice and School Location Letter 12/06/2019 12 pages DOE

4. Private School- Related Services Participation Statement Undated 4 pages DOE

6. 5. Easytrac Admin. Session Notes 12/02/2019- 261 03/13/2023 Easytrac data – Related Service Participation 12/02/2019-03/13/2023 IHO’S EVIDENCE 46 pages DOE

PARENT

I. Closing Brief 05/19/2023 29 pages

II. DOE Closing Brief 05/19/2023 15 pages

Footnotes

[10] hours /week is imperative in order to assist in [] making appropriate progress and minimize regression”. (Id.). For the start of the 2019-2020 school year, Student did not have an educational placement and was home without full-time instruction. On December 4, 2019, the CSE met and developed an IEP with an implementation date of December 2, 2019. (DOE-1 at 1). The December 2019 IEP made the following program recommendations: placement in a NYS Approved Non-Public School (“NPS”) in a 6:1+1 class 10 times weekly for Math, 10 times weekly for ELA, 5 times weekly for Social Studies, and 5 times weekly for Science. (Id. at 16-17). The following related services were recommended: Counseling, individual, once weekly for 30 minutes; Occupational Therapy of remote instruction and activities posted online for students who were not able to participate in remote learning. (Tr. 3/13/23 at 17). During remote instruction, related services were provided two days per week, and home for remote instruction for the remaining three days per week. (Id.).

[2] Although Parent seeks an award for compensatory counseling services pursuant to the Pendency Order in evidence as P-D, there is no counseling mandate included on the Pendency Order, therefore an award of compensatory counseling services through pendency cannot be ordered.