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Special Education Law
DECISIONParent PrevailedIHO Case No. 194637

New York City Department of Education, Impartial Hearing Decision

February 28, 2022·Martin J. Kehoe III·’s Position 3

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

CASE NUMBER: 537886 - NYC: 194637

Finding of Fact and Decision

Case Number: 194637

Student’s Name: Redacted

Hearing Requested By: Parents

Hearing Officer: Martin J. Kehoe III, Esq.

ARCD: February 28, 2022

Table of Contents

I. Introduction 2

II. Overview 2 a. Guardian’s Position 3 b. District’s Position 3 c. The Scope of the Hearing 5 d. Statute of Limitations 5 e. Student History 8 f. Background of the Case 10 g. Legal Overview 11

III. FAPE Analysis 12 a. Did the District Provide the Student a FAPE during the 2017-2018 SY? 12 The Special Education Teacher – Testimony 12 b. Did the District Provide the Student a FAPE during the 2018-2019 SY? 13 The Special Education Teacher – Testimony 13 The Classroom Teacher – Testimony 14 c. Conclusion 15

IV. Compensatory Education 16 a. Is Compensatory Education an Appropriate Reward for a Two-Year Denial of FAPE? 16 b. Compensatory Education Legal Standard 16 c. Analysis 18 The REDACTED’s Recommendations 18 The REDACTED – Testimony 19 d. Rationale for Award 20 e. Conclusion 20

I. Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent(s)/guardian(s) as Parent(s)/Guardian(s) and the student will be referred to as Student.

II. Overview

This case involves a demand for “compensatory education” for the 2017-2018 and 2018-2019 school years (SYs). Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and... mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].

The Guardian filed the complaint notice on June 24, 2020. (Ex. A) I was appointed as the IHO for this case on November 12, 2020.[1] The Guardian introduced exhibits A-N for the record and called two witnesses: the Guardian/Grandmother and the Board-Certified Behavior Analyst (BCBA). The District offered exhibits 1-11 and called two witnesses: the Student’s Special Education Teacher and the Student’s Classroom Teacher. a. Guardian’s Position The Guardian alleges that the District failed to provide the Student a free appropriate public education (FAPE) during the 2017-2018 and 2018-2019 SYs. Specifically, she asserts that the District failed to provide an appropriate Individualized Education Program (IEP) and school placement for the Student.

To remedy these alleged violations, the Guardian seeks compensatory education in the form of Applied Behavioral Analysis (ABA). (Ex. A-1) The Guardian is requesting the District fund the following bank of hours at an enhanced rate:

  • • 1,760 hours of 1:1 private ABA therapy and tutoring at a rate of no more than $150.00 for the denial of FAPE for the 2017-2018 school year.
  • • 1,760 hours of 1:1 private ABA therapy and tutoring for the denial of FAPE for 2018-2019 school years. (Ex. A-6)

The Student received all his related services during both SYs at issue; however, the Parents claim is that the Student required ABA therapy (which he did not receive) during those years to make progress. (T. 5) The Parents claim that the Student made “almost no progress” during his time at the District Special Education School. (T. 9) b. District’s Position The District made a motion to dismiss the Guardian’s due process complaint, citing that both the 2017-2018 and 2018-2019 SYs are time barred based on the statute of limitations. (T. 33-34) The District’s representative offered the following reasoning:

The IEP for the 2017/2018 school year was held in April of 2017. The parent knew, or should have known, at the time that the claim was in April 2017, which would mean that the statute of limitations expired in April 2019 …

… [T]he '18/'19 school year, as well, is also time barred. This due process complaint was filed in June of 2020. This child was attending a public school, so it's different than a school location letter and an IEP that starts on the first day of the school year, as it does for a student in a private school.

The controlling IEP for the 2018/'19 school year, for the start of it, was held in February 2018. That IEP two years would be February 2020, four months prior to the filing of this due process complaint. The controlling IEP for the start of the '18/'19 school year, which was held in February, stated on the student's recommended service page, that the services would go from February 2018 through February 2019. Please note you had stated at our last hearing in regards to the services beginning on the first day of the 2018 school year would start the statute.

However, the parent knew in February 2018 about this IEP and what the Department of Education recommended for [the Student] for the remainder of the '17/'18 school year, and also for the beginning and for most of the '18/'19 school year. It's to my understanding, and sorry to hear about the parent of [the Student] that passed away, and the grandparent became guardian in May of 2019. The parent's argument the fact that the statute of limitations begins when the grandparent first taking guardianship in May 2019 is not the argument that we're making. The grandparent becomes the guardian is moot at this time.

Because the student, [the Student], has been known to the CSE since 2014, the parents were able -- the grandparents, would have been able to take part in any of the IEP meetings. The statute of limitations for both school years expired as of February 2019, which is three months before the grandparent became the guardian and also the statute of limitations ran out for the 2018/'19 school year in February of 2020, which is four months prior to the due process complaint being filed, as well as before the Governor's executive order where after June it was delayed. (T. 38-40)

To further their point, the District noted that the Student was making progress during both SYs at issue. During the 2017-2018 SY, the parent at the time stated that there were no concerns regarding the Student’s IEP. (T. 41) For the 2018-2019 SY, the parent expressed little concern. (T. 42) c. The Scope of the Hearing The scope of the impartial hearing is limited to the issues raised in the complaint notice. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Issues and allegations not contained within the four corners of this complaint are not to be considered pursuant to the applicable case law and regulations cited above. Similarly, any claims set forth within the complaint notice that were not addressed at the hearing should not be considered as they are considered abandoned. Application of a Child With A Disability Appeal 08-037 and Application of a Child With A Disability Appeal 10-067, pg. 9, n. 9.

As a result, I have taken jurisdiction of the familiar claims under Article 89 of the New York State Educational Law, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 706 (Section 504 claims) and the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. 1400 et seq.

Regarding the claim under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 706 (Section 504 claims), clearly there was no intention to abandon the claim, but neither was it pursued comprehensively by the Guardian. I presume that this claim has been plead to exhaust administrative remedies. I therefore set this aside. d. Statute of Limitations

Under the IDEA, a due process complaint is timely if filed within two years of the date that the parent or district knew or should have known about the action forming the basis for the complaint. 34 CFR 300.507 (a)(2). If the state has adopted its own time frame for due process complaints, then that time frame applies. 34 CFR 300.507 (a)(2). The Guardian acknowledges that under IDEA, the statute of limitations is two years from the date the parent knew or should have known of the violation. The Student’s mother passed away in March of 2019 and the Student’s grandmother did not become the guardian until after her daughter’s passing. The grandmother was unaware of the Student’s special education needs until she became the guardian. (T. 4)

Assuming for the moment that the basis of the claim arose on April 16, 2017 (the date of the first contested IEP in this case, the Student’s mother was alive an additional until 22 months and 20 days until the date of her death on REDACTED (40 days short of the SOL). This is the same date that the Grandmother became the de facto, if not the de jure, guardian of the Student.

Again, assuming the accrual of the claim on April 16, 2017 (the date of the relevant IEP and the date that the parent knew or should have known about the claims), then the SOL would preclude any claim that was not asserted before April 16, 2019, unless a tolling statue would apply of if there was an exception to the SOL.

Despite the District arguments that the Grandparent may have had earlier actual knowledge of the facts that comprised the underlying claims in this matter, until she was appointed as the guardian, she was unable to act on behalf of the Student.

There Were Two (2) Separate Tolling Provisions in This Case The law in New York has contemplated the impact of death regarding the assertion of claims. If the would-be plaintiff dies, her personal representative has at least a year from death in which to sue. Civil Practice Law and Rules 210(a). This is an alternative period, not an extension. See, Ruping v. Great A & P Tea Co., 279 A.D. 322, 109 N.Y.S.2d 286 (3d Dep’t 1952) & Tamburello v. Mooney, 51 Misc.2d 1093, 274 N.Y.S.2d 437 (Sup. Ct., Albany County, 1966) Thus, the filing deadline would be tolled for one year until March 8, 2020 (One year following death of Parent). On March 9, 2020, the SOL would again begin to run. Again, the Guardian would have forty (40) days to file her claim within the SOL or until April 29, 2020 (She actually filed on June 24, 2020), unless there was another tolling provision or an exception to the SOL.

On March 20, 2020, Governor Andrew Cuomo issued Executive Order 202.8, tolling New York’s statute of limitations and other procedural deadlines. Thus ten (10) more days would elapse on the SOL (the time following the one-year tolling provision per CPLR 210a and the start of the Governor’s tolling provision). When considering the Governor’s tolling provisions the Guardian would have had thirty (30) days past the November 3, 2020, the date when the tolling provision was terminated.[2]

The instant complaint was filed on June 24, 2020. A time when the SOL was again tolled. Thus, the filing was timely, and the claim related to the 2017 IEP meeting remain actionable.

As a second basis for allowing this claim, I note the testimony of the Guardian, in which she claims the District failed to provide her with any of the Student’s educational records, nor did they send her the Procedural Safeguard Notices. (Ex. L-2)

According to IDEA, there are two exceptions to the two-year statute of limitations period. The statute of limitations does not apply to a parent was prevented from filing a due process complaint due to: (1) Specific misrepresentations...; or (2) the District’s withholding of information from the parent that was required under this part to be provided to the parent. 34 CFR 300.511 (f).

As a result of the District’s failure to provide the Guardian with the Student’s educational records and the Procedural Safeguard Notices, the statute of limitations does not apply in this situation. (Ex. L-2) e. Student History The Student has a disability classification of autism spectrum disorder.[3] On December 13, 2017, the District conducted a psychoeducational evaluation of the Student. At the time, the Student was REDACTED years old and had been diagnosed with Autism Spectrum Disorder (ASD) and Epilepsy. During the evaluation, he was described as “impatient,” and the evaluator noted that the Student was “complaining and whining throughout the evaluation.” The evaluator mentioned that the Student was able to verbally express himself and appeared to have a “poor expressive vocabulary and a fair receptive vocabulary.” (Ex. 9-1)

On November 18, 2021, the Student underwent an ABA assessment. The BCBA wrote that the Student displayed symptoms of ASD which interfered with the Student’s learning across multiple settings. (Ex. N-5) Regarding the Student’s ability to learn, the BCBA wrote,

[The Student’s] attention and ability to learn was facilitated when he worked individually in a distraction-free setting with the examiner, as [the Student] attended to instructional prompts and showed desire for several reinforcers. Decreases in problem behavior and self-stimulatory behavior while increases in on-task behavior were observed when [the Student] was engaged in several individualized 1:1 learning opportunities. [The Student’s] ability to learn and acquire new skills was facilitated when he received intensive 1: 1 behavioral instruction. For example, [the Student] exhibited increased orienting responses to model prompts and to instructional materials. Therefore, based on this home observation and his overall performance on the ABLLS-R assessment, it is highly recommended that [the Student] receive intensive 1: 1 ABA services to address the noted issues and to help generalize acquired skills across multiple learning environments. (Ex. N-5)

To address the Student’s struggles, the BCBA “strongly recommended” that the Student receive at least 40 hours per week of ABA services to be used both at school and at home. He noted, “this recommendation could also be fulfilled by both a full-time 1:1 center-based or school-based program that utilizes behavior analytic instructional procedures for the entire school day and 10 hours of ABA per week at home and in the community.” (Ex. N-5) The BCBA continued,

These services should include a highly structured special instruction program using the principles and procedures in ABA such as discrete-trial teaching, incidental teaching, and natural environment teaching. Moreover, because of the severity of [the Student’s] delays, it is highly recommended that these ABA services be conducted by highly skilled/credentialed ABA therapists/teachers under the direct supervision of a NYS LBA/BCBA for 2 hours per month to ensure that the curriculum targets each behavioral deficit/excess in an intensive empirically supported manner …

… [the Student’s] display of SIB, aggression, and other maladaptive behavior is impacting his learning and performance at home and in the community. Teaching [the Student] several functionally equivalent replacement behaviors may help decrease the display of these behaviors. Therefore, it is highly recommended that a formal FBA be conducted and BIP developed by a highly skilled NYS LBA/BCBA. The results of the FBA and procedures in the BIP must be explained/trained to the parents and all treatment team members. Furthermore, the BIP must be implemented in the home, at school and in the community as part of [the Student’s] 1:1 ABA program to ensure decreases in SIB, aggression and other maladaptive behavior generalize across multiple learning environments. If [the Student] begins to exhibit less SIB, less aggression and less maladaptive behavior across settings, he will be more likely to acquire new prosocial behavior. (Ex. N.5-6) f. Background of the Case

On April 19, 2016, a Committee on Special Education (CSE) meeting was held to develop a program for the Student for the upcoming 2017-2018 SY. (Ex. D) The Student’s mother attended the meeting. At the meeting, the CSE recommended a 6:1+1 program with various related services.[4] Following the meeting, on April 21, 2016, the District sent the Parents a Prior Written Notice (PWN), informing them of their recommended program and placement. (Ex. 2)

On April 6, 2017, the CSE held another meeting, this time to create an IEP for the Student for the 2018-2019 SY. (Ex. 3) The CSE recommended the same program as the prior SY. On April 7, 2017, the District sent the Parents PWN. (Ex. 4)

On REDACTED, the Student’s mother tragically passed away and his grandmother became the guardian. The Guardian then filed the complaint notice on June 24, 2020. g. Legal Overview The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

  • • (A) have been provided at public expense, under public supervision and direction, and without charge,
  • • (B) meet the standards of the state educational agency,
  • • (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and
  • • (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).[5]

A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

III. FAPE Analysis a. Did the District Provide the Student a FAPE during the 2017-2018 SY?

The Special Education Teacher – Testimony The Special Education Teacher, who served as a paraprofessional during the 2017-2018 SY, testified that neither the Parent nor the Guardian expressed any dissatisfaction in any area of the Student’s education:

[The Guardian] never showed any sort of dissatisfaction with us up until when [the Student] left the program for [sic] September of 2019. She was always grateful for all the support that we offered her and [the Student] throughout the difficult process of his mother’s passing. And she was just grateful for everything that we did. (T. 92)

Regarding the Student’s related services, she stated, “the mother agreed with everything as far as his mandates, his goals, and his progress.” (T. 94) b. Did the District Provide the Student a FAPE during the 2018-2019 SY?

The Special Education Teacher – Testimony The Special Education Teacher, who wrote the Student’s February 11, 2019, IEP, testified stating that she was familiar with the Student. She mentioned that she monitored the Student’s progress and IEP goals throughout the year. (T. 73) The Special Education Teacher noted that she was in “constant communication” with the Student’s mother. (T. 75) Regarding the Student’s 2018-2019 IEP, the Special Education Teacher said that “the mother was in agreement with everything that the team presented her with, especially, like, at the IEP meeting. There was never any sort of discrepancies or disagreements regarding his educational past that we took here, with the school with him.” (T. 76)

The Special Education Teacher stated that the Student was nonverbal and required a static display device to communicate. The Student’s IEP recommended a 6:1:1 self-contained classroom that utilizes different modalities of curriculum depending on the student’s needs. The Student received one-on-one instruction daily and was assigned an individual health paraprofessional, to monitor him for seizures. (T. 76-79)

When asked about ABA, the Special Education Teacher testified, “[t]he mother never mentioned any sort of interest in ABA. We’re not, we never did any ABA with [the Student] here because she, she never requested it and it was never formally discussed at the IEP meeting.” (T. 80) However, the Special Education Teacher mentioned that the District Special Education School utilized ABA methodologies such as positive reinforcement, repetition of skills, and a highly structured environment. (T. 80)

The Special Education Teacher was asked if the Mother was satisfied with the Student’s progress, to which she answered, “[y]es, she never expressed any sort of disappointment with how he was progressing in our program with us.” (T. 81) Throughout the 2018-2019 SY, the Student improved in reading, writing, and math. (T. 82) Later, she mentioned that the Mother agreed that the Student was making progress. (T. 86)

The Special Education Teacher stated that the Parent received all the paperwork that she was entitled to receive, including the procedural safeguards, the prior written notice, and the IEP. (T. 87) However, later in her testimony, she was asked if she recalled the school providing the Guardian with a copy of the Student’s educational records after the Mother’s passing to which she answered, “I believe that another one was sent home with her. I cannot really recall specifically because it was, to be quite honest, a very chaotic, crazy time.” (T. 101)

The Classroom Teacher – Testimony The Classroom Teacher began her testimony by offering a brief description of the Student’s 6:1:1 program,

[The Student] had a one-to-one para who was able to support him in any way that was directed by myself while he was in the classroom so depending on the task at hand or what he was asked to do, that would vary with the loose – least restrictive prompting as needed. (T. 117)

She mentioned that the Student received one-on-one instruction throughout the day. The Student was in an alternate assessment math program and struggled. (T. 121)

The Classroom Teacher stated that she communicated with the Parent daily. (T. 122) When asked if she felt the Student made progress throughout the SY, she replied that she did, and added that the Parent was “extremely satisfied” with her son’s progress. (T. 123-124)

During cross examination, the Classroom Teacher was asked if the Student made “meaningful progress,” to which she answered, “I don’t recall specifically.” (T. 142-143) When asked if the Student’s related service providers were ABA-trained, the Classroom Teacher stated that she could not attest to their training. (T. 144) c. Conclusion

Regarding the witnesses’ testimony, there is nothing inherently wrong with their opinions; however, the witnesses have a significant burden to overcome the specific, pointed recommendations of the BCBA (See Ex. s M & N and the recommendations included therein supra). Likewise, the testimony of the BCBA creates a strong presentation that ABA is appropriate. (See Compensatory Education – Analysis infra) In this light, I side with the Parents and find that the District recommendations fail to demonstrate that they met their burden in providing the Student an IEP tailored to meet his individualized needs. I, therefore, rule for the Parents for both SYs at issue.

IV. Compensatory Education a. Is Compensatory Education an Appropriate Reward for a Two-Year Denial of FAPE? b. Compensatory Education Legal Standard

Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001].

Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]).

Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]).

In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award 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"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]).

Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. 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"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014. c. Analysis The BCBA’s Recommendations In the Student’s November 3, 2021, ABA assessment, the BCBA recommended the following for the Student:

  • • 40 hours per week of 1:1 ABA services provided both at school and in the
  • • home/community
  • • At least 30 hours per week of push-in 1:1 ABA in the classroom and 10 hours per week of 1:1 ABA in the home/community or,
  • • a full-time 1: 1 center-based or school-based program that utilizes applied behavior analytic instructional procedures for the entire school day and at least 10 hours of 1: 1 ABA per week at home/community
  • • 2 hours per month of NYS LBA/BCBA supervision at both the home/community
  • • and at school
  • • 2 hours per month of parent training by a NYS LBA/BCBA in the
  • • school/home/community
  • • Formal FBA and BIP by a NYS LBA/BCBA The BCBA – Testimony The BCBA who assessed the Student testified on the Guardian’s behalf and described some of the Student’s struggles, The assessment of [the Student] revealed that his imitation skills and speech and language skills are underdeveloped. He was only able to imitate a few presented actions with objects. He did not imitate any words or sounds during the assessment. He bad fleeting eye-contact and poor joint attention. According to bis grandmother, he engages is maladaptive behaviors such as, spitting and screaming and mouthing toys. His fine and gross motor skills are underdeveloped; he cannot jump or display a proper tripod grasp. He also needs considerable assistance with activities of daily living. He is not fully toilet trained and wears pull-ups at home. He is unable to dress himself and be resists using utensils.

Having underdeveloped skills in these areas would have a negative impact on a student's ability to perform in school. If they are not able to imitate or mimic well, they are missing the benefits of social cues. It also affects their ability to learn because they are not paying attention to social stimuli. They would require a great deal of prompting in order for them to attend to classroom instruction. Additionally, if a student cannot communicate needs or wants, they may become frustrated or develop other alternative modes of communication, such as spitting to get attention. (Ex. M-2)

To help address these issues, the BCBA recommended the following,

Based on the assessment, I would recommend that [the Student] receive at least 40 hours per week of ABA services to be used both at school for 30 hours per week and at home for 10 hours per week. I would recommend that the person working with [the Student] have certification in ABA, like a registered behavioral technician, and that the person work under the supervision of an LBA or BCBA for four hours per month. Additionally, [the Student’s] grandmother should receive two hours of parent training from an LBA/ BCBA per month to ensure that the behavioral interventions are maintained in the home and community.

Additionally, it is highly recommended that a formal Functional Behavior Assessment be conducted, and a Behavior Intervention Plan be developed by a skilled New York State LBA/BCBA. The plan should help teach [the Student] several functionally equivalent replacement behaviors to help decrease the display of his maladaptive behaviors. This recommendation is based on [the Student’s] significant needs. (Ex. M-3) d. Rationale for Award

I credit the testimony of the BCBA (Ex. M) in addition to the assessment itself (Ex. N) in demonstrating the Student’s special education needs and the services he requires to make progress.

Nevertheless, I am also mindful of the conservative observations of the District’s advocate. Accordingly, I reduce the recommendation for the following reasons: One, I am confident in the CSE and their ability to make good decisions about the Student’s needs and related services going forward. Two, I am persuaded by testimony that the Student’s placement in the proper learning environment will enable the Student to make progress. Three, I recognize there are a finite number of hours per week, and the demands of the Student’s school year along with significant hours of tutoring, may be daunting.

Moreover, the District testified they used many of the methodologies used by ABA and gave the Student a very full program that did provide some progress[6]. While I do not make the finding of progress, I must acknowledge the testimony as a mitigating equitable factor.

Therefore, I am reducing the bank of hours by 40 percent.

Accordingly, I am ordering compensatory services as a remedy for the years the Student has not received FAPE (the 2017-2018 and 2018-2019 SYs) to enable him to make appropriate progress. e. Conclusion

Based upon the extensive record in this case I find that the District denied the Student a FAPE for the 2017-2018 and 2018-2019 SYs, thus compensatory education is warranted.

It is therefore Ordered The District shall fund the following bank of hours at an enhanced rate[7]:

  • • 1,056 hours of 1:1 private ABA therapy and tutoring at for the denial of FAPE for the 2017-2018 school year.
  • • ii. 1,056 hours of 1:1 private ABA therapy and tutoring for the denial of FAPE for 2018-2019 school year.
  • • These ABA services should be conducted by highly skilled/credentialed ABA therapists/teachers under the direct supervision of a NYS licensed LBA/BCBA for a bank of 48 hours.
  • • The District shall also provide parent counseling and training from the LBA/BCBA for a bank of 50 hours.
  • • All compensatory services awarded under this order shall be utilized within three years of the date of this order or they shall be forfeited.

Dated: February 28, 2022

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.

Footnotes

[1] A hearing was held across the following the dates: January 14, 2021; February 10, 2021; February 21, 2021; March 5, 2021; March 16, 2021; May 14, 2021, June 11, 2021; July 1, 2021; July 12, 2021; August 5, 2021; August 20, 2021; November 8, 2021; December 15, 2021; and January 24, 2022.

[2] ... [A]ny specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statue, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020. Id. Thereafter, the governor repeatedly extended the civil tolling in Executive Order (EO) 202.8 by issuing various Eos, including most recently, EO 202.67 dated October 4, 2020. EO 202.67 extended the civil tolling provisions to Nov. 3, 2020, and stated that thereafter, this tolling would expire: The suspension in Executive Order 202.8, as modified and extended in subsequent Executive Orders,... is hereby continued,... provided however, for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled[.] The Second Department further examined the ramifications of Executive Order No. 202.8, stating “Governor Cuomo's March 20, 2020 executive order, Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), expressly and plainly provided that the subject time limits were ‘hereby tolled,’ and two of the subsequent executive orders referred to the temporary alternation of the subject time limits as a ‘toll[ ]’” Brash v. Richards, 149 N.Y.S. 3d 560, 563 (2nd Dept. 2021)

[3] NYCRR Part 200.1(zz) (1) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.

[4] The Student’s related services include the following: Occupational Therapy (1:1, 3 x 30); Parent Counseling and Training; Physical Therapy (1:1, 2 x 30); and Speech-Language Therapy (1:1, 5 x 30). The Student also had a full-time paraprofessional. (Ex. D-20)

[5] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

[6] (see page 14 above, testimony of Special Education Teacher, pgs. 76-86, and that of the Classroom Teacher, pgs. 117-124 in support of the CSE’s 6:1:1 program as providing benefit and close cooperation with the Parent, although their testimony provides mitigating concerns)

[7] The prospect of developing a full record in to establish the “enhanced rate” cases is daunting, and while possible, over time, I have begun to notice that the District’s “Implementation Unit,” when given the opportunity to execute interim orders and pendency decisions, is adept at identifying acceptable rates without issue. In effect that unit is “making the market” for enhanced rate services. I therefore direct the implementation unit to work with the providers chosen by the Guardian to establish the market rate in this case.