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NEW YORK STATE EDUCATION DEPARTMENT
IMPARTIAL DUE PROCESS HEARING
STUDENT, a minor, by and through Case No. 195380 his/her Parent(s),
[REDACTED] and [REDACTED]
Petitioners, Patricia L. Murrell, Hearing Officer
- against New York City Department of Education School District #[Redacted] FINDINGS OF FACT AND
DECISION
Respondent.
I. INTRODUCTION
This matter comes before the undersigned Impartial Hearing Officer (the “Hearing Officer” or “IHO”), pursuant to the impartial hearing request and demand for due process (the “Complaint”) filed on July [1], 2020, by the petitioners, [Redacted] and [Redacted], the parents (“Petitioners” or “Parents”) of [Redacted], currently a [Redacted]-year-old student with a disability (“Student”), as against the New York City Department of Education (“NYC-DOE”), Field Support Center – [Redacted], District [Redacted] (“Respondent” or “District”, together with the Petitioners or Parents, the “Parties”).
On December 11, 2020, this Hearing Officer was appointed to preside over Case No. 195380. A Prehearing Conference (“PHC”) was held on December 22, 2020, during which the Parents confirmed that the primary issues alleged and relief requested and presented for determination, as detailed in the Complaint, included, inter alia, denial of a free appropriate public education (“FAPE”), based on the District’s alleged failure to appropriately conduct evaluations; develop an individualized education program (“IEP”); implement mandated services; and provide school records, interpretation and translation for the Student’s 2019/2020 and 2020/2021 school years. Status Conferences were held on January 13, 2021, February 8, 2021, March 10, 2021, April 22, 2021, May 25, 2021, June 24, 2021, August 4, 2021, September 9, 2021, October 12, 2021, December 28, 2021, February 15, 2022, March 15, 2022, March 29, 2022 and May 3, 2022, during which the Parties reported that they were working towards resolving issues relating to document production, translation and subpoenas for documents and witnesses; and, on June 2, 2022, the Parties reported they were prepared for a due process hearing, which was scheduled to commence on July 6, 2022 (the “Hearing”).
II. JURISDICTION
This Findings of Fact and Decision (the “Decision”) is being rendered in accordance with the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et. seq. (“IDEA”); the Federal Regulations implementing IDEA, 34 C.F.R. 300.1 et seq.; Codes, Rules and Regulations of the State of New York, 8 NYCRR § Part 200; New York State Education Law, and its implementing Regulations, Educ. Law Art. 89 § 4404, et. seq.
III. BACKGROUND
This Hearing Officer commenced the Hearing telephonically and via videoconference on July 6, 2022, during which oral opening statements were made on the record (“Hearing Record”) by the Respondent who was represented by [Redacted], Esq., Attorney for the District; 2 and the Petitioners who were represented by [Redacted], Esq., Attorney for the Parents. The Hearing was Closed. The Respondent did not proffer any witnesses during the Hearing. The Petitioners presented testimony by [Redacted] (“Parent”); Applied Behavior Analysis (“ABA”) Assistant Supervisor [Redacted] (“ABA Assistant Supervisor”) at [Redacted] Services, Inc. (“ABA Provider”); Registered Behavior Technician, [Redacted] (“ABA Technician”); Principal, [Redacted] (“Principal”) of [Redacted] High School (the “High School”); and Special Education Compliance Coordinator, [Redacted] (“Compliance Coordinator”). The witnesses attested that the testimony provided during the Hearing was true and correct. The Parent and ABA Technician were subjected to cross-examination. Notably, on November 15, 2021, the Parents filed a subsequent complaint under Case No. 221556, which alleged additional issues related to the 2020/2021 and 2021/2022 school years; and on March 21, 2022 an Order of Consolidation was issued, integrating both matters into .
The Hearing was continued on July 7, 2022, October 20, 2022 and November 1, 2022. The District’s proposed exhibits (“1 through 2”) were proffered for submission into evidence, without objection; and the Parent’s proposed exhibits (“A through HH”) were proffered for submission into evidence, wherein the District objected to the admissibility of certain exhibits (“B, C, D, E, F, G”), which were allowed into evidence with limited purpose; the District’s objections to exhibit “X” and “HH” were overruled; and the Parents withdrew exhibit “L”. Pursuant to directive, the Parents proffered a ‘Statement of Uncontested Facts’ 3 and a ‘Statement of Issues to be Adjudicated’;[4] and the District submitted a “Statement of Uncontested Facts”.[5] An Interpreter was provided by the NYC-DOE to assist the Parent during each day of her attendance at the Hearing. The Parties did not present oral closing statement(s); and the Hearing was concluded on November 1, 2022. Hearing Transcripts were circulated to the Parties on July 11, 2022, July 12, 2022, October 26, 2022 and November [3], 2022. The Parents submitted their Post-Hearing/Closing Brief on March [2], 2023;[6] and the District submitted its Post-Hearing/Closing Brief on March 14, 2023.[7] On July 17, 2023, pursuant to the directive of this Hearing Officer, the Parent submitted the IEP, dated December 22, 2017 (the “2017 IEP”).[8] The Record was Closed on July 17, 2023.
IV. ISSUES PRESENTED
This Hearing Officer certified the following issue(s) for adjudication at the Hearing:
A. Whether the District denied the Student a FAPE during the 2019/2020, 2020/2021 and/or 2021/2022 school years.
B. Whether the Student was entitled to receive a compensatory award for the 2019/2020, 2020/2021 and/or 2021/2022 school years.
V. FINDINGS OF FACT
After considering all the evidence in the Hearing Record, as well as the arguments asserted by both Parties, this Hearing Officer’s Findings of Fact are as follows:
1. At [REDACTED] years of age, the Student was diagnosed with Autism Spectrum Disorder (“ASD”) and began receiving special education services from the NYC-DOE. [9]
2. On December 22, 2017, the District convened a Committee on Special Education (“CSE”) meeting (“2017 CSE Meeting”), which recommended a ten-month 12:1+1 program in a Special Class for the Student consisting of Math (5/wk.), English Language Arts (“ELA”) (10/wk.), Social Studies (3/wk.) and Sciences (3/wk.) for the period commencing
January 16, 2018 through and including June 16, 2018; and thereafter, Math (8/wk.), ELA (8/wk.), Social Studies (5/wk.) and Sciences (5/wk.), effective September 6, 2018; with related services that included Group-of-3 Counseling (1x30), Group-of-3
Occupational Therapy (“OT”) (2x30), 1:1 Speech Language Therapy (“SLT”) (2x30) and Group SLT (2x30) (together, the “2017 Recommended Program”). The 2017 IEP recommended placement for the Student in a NYC-DOE School Non-Specialized (“District 1-32 School”); and noted that Related Service Only and Integrated CoTeaching (“ICT”) settings were considered but rejected because of the Student’s unique needs due to his classification of Autism. [10]
3. On September 23, 2019, the District issued a letter to the Parent advising that “[a]fter a review of [the Student’s] current educational and evaluation information, it has been determined that additional assessments are required as part of a requested reevaluation or mandated three-year-evaluation. The assessment process may include a psychoeducational evaluation, a classroom observation, and other proper assessments or evaluations as necessary to determine your child’s needs . . . [and] whether modifications to your child’s IEP are necessary.” Thereafter, on October 21, 2019, the Parent executed the same letter and provided written consent to the District to conduct ‘new testing and assessments’ of the Student (“Consent Letter”).[11] Inexplicably, the Complaint asserts that the District did not obtain informed consent from the Parents.
4. On November 20, 2019, a Licensed Occupational Therapist, [Redacted] (“Occupational Therapist”) conducted an occupational therapy evaluation of the Student on behalf of the District (“2019 OT Evaluation”), as part of a reevaluation mandated by an impartial hearing in December 2018. The Occupational Therapist determined that the Student demonstrated expressive and receptive language skills delays that negatively impacted his ability to engage independently in the class curriculum; and although he participated well with extensive, 1:1 ABA therapist supports, it was found that the Student was unable to produce class level work independently. The Occupational Therapist recommended that the Student required extensive language and learning supports, to be provided by special education and speech teachers, as well as ABA therapists; however, the Occupational Therapist opined that OT was not required for the Student on the basis that ‘concerns do not significantly interfere with [his] function and participation in school; [and] graduation from OT is recommended as IEP goals have been met/maximum benefit achieved’.[12] Notably, the Complaint asserts that there was no basis for the District to discontinue the Student’s OT.
5. Reportedly, on November 26, 2019, the District conducted a Social History Update of the Student (“2019 Social History”) and a Level 1 Vocational Interview (“2019 Vocational
Assessment”). [13]
6. On November 27, 2019, [Redacted] (“School Psychologist”) conducted a psychoeducational evaluation of the Student on behalf of the District as part of a reevaluation mandated by an impartial hearing decision; wherein, the assessments included Woodcock-Johnson IV Tests of Achievement (“WJ-IV”), Wechsler Intelligence Scale for Children –5th Ed. (“WISC-V”), Teachers’ Reports, Review of Records, Student Interview, and Level I Vocational Assessment (collectively, the “2019 Psychoeducational
Evaluation”). It was noted that the Student was in a 12:1+1 Special Class; had a full-time-daily 1:1 ABA Therapist; received SLT, and English as a New Language (“ENL”) services.
The findings indicated that the Student’s cognitive skills fell in the Extremely Low range of functioning; and his academic functioning, when compared to his age peers, were in the Very Low range in Broad Reading and Low in Broad Mathematics. It was recommended, inter alia, that the Student be placed in the least restrictive setting where he could receive Small Group Instruction and Tutoring in Reading/Math. [14]
7. On January 10, 2020, a Bilingual Speech and Language Pathologist, [Redacted] (“Speech Pathologist”) conducted a speech-language evaluation of the Student, on behalf of the District; wherein the assessments included, inter alia, Clinical Evaluation of Language Fundamentals-5 (“CELF 5”); School Age Language Measures (“SLAM”); and ‘Review of Records, Interview, Observation, Test’ (“R.I.O.T.”) (“2020 Speech
Evaluation”). The findings indicated that the Student’s receptive and expressive language skills were below average to low average; he demonstrated significant difficulty answering higher-level abstract-thinking questions; and he presented with academic and communication delays in his narrative, reading comprehension and creative writing skills; which, the Speech Pathologist opined would hinder his overall academic performance and ability to perform at current grade level. The Speech Pathologist highly recommended that the Student continue to receive SLT, in English, to improve his communication skills and maximize his educational potential. [15]
8. On April 30, 2020, the District convened a CSE meeting (“2020 CSE Meeting”), which was attended telephonically by the Parent; Special Education Teacher [Redacted]; General Education Teacher [Redacted]; Speech Therapist [Redacted]; Bilingual
Interpreter [Redacted]; and the School Psychologist, who participated in a dual-capacity as the District Representative (together, the “2020 CSE Team”). During the 2020 CSE Meeting, the Student was classified as a child with Autism, and an IEP was developed with an implementation date of May 1, 2020, for the 2020/2021 school year (“2020
IEP”). [16]
9. The 2020 IEP referenced the observations, findings and recommendations of the 2019
OT Evaluation, 2019 Psychoeducational Evaluation, 2019 Social History, 2019
Vocational Assessment and 2020 Speech Evaluation (together, the “2019/2020
Evaluations”), in addition to the 2019 Math Assessment, and NYS English as a Second Language Achievement Test (“NYSESLAT”). The 2020 CSE Team determined that his cognitive, expressive and receptive language delays hampered the Student’s ability to complete grade level academic work and make progress in the general education curriculum without special education support. The 2020 IEP noted that that the Student benefits from the specialized instruction provided in a small class setting; Speech-Language services, as well as support from his 1:1 ABA provider, which was incorporated into the Student’s Management Needs. Notably, the 2020 IEP neither indicates that any additional evaluations were conducted by the District prior to the 2020 CSE Meeting, nor that the Student needed strategies, behavioral interventions plans or other supports to address behaviors that impeded his learning or that of others. [17]
10. Thereafter, the 2020 IEP recommended a ten-month 12:1+1 program in a Special Class for the Student consisting of Math (7/wk.), ELA (6/wk.), Social Studies (6/wk.) and Sciences (5/wk.); with related services including Parent Counseling and Training (“PCAT”) (:45/4xyr.), 1:1 SLT (1x30) and Group-of-3 SLT (2x30) (together, the “2020
Recommended Program”). The 2020 IEP recommended placement for the Student in a District 1-32 School (“2020 Recommended Placement”). The 2020 IEP noted that an ICT setting was considered but rejected because the Student required more intensive specialized instruction to address his educational needs; and a Special Class in a specialized school 12:1+1 was considered but rejected because it was considered too restrictive at the time. [18]
11. The Hearing Record demonstrates that the Parent expressed certain concerns during the 2020 CSE Meeting, which included, inter alia, that the Student rarely socializes with other students, and prefers to work independently or with the ABA provider. [19]
12. On May 6, 2020, a prior written notice (“2020 PWN”) was issued to the Parents, regarding the Student’s Continued Eligibility for Special Education Services and Recommended Special Education Services (“Continued Eligibility”), which indicated that during the 2020 CSE Meeting, the 2020 IEP was developed and mandated the 2020
Recommended Program and 2020 Recommended Placement.[20] Subsequent to receipt of the 2020 PWN, the Parent filed the Complaint on July, 1, 2020. [21]
13. On October 1, 2020, the Parties jointly executed a Pendency Form (“Pendency Agreement”), which indicated that the Student’s Pendency Program was based on an unappealed FOFD for Case No. [Redacted]; was nun pro tunc (retroactive) to the filing of the Complaint (July 1, 2020); continuing until such time as a final decision was issued or settlement reached; and consisted of a ten-month program of 1:1 SETSS-ABA (home) (10x60); thirty-one (31) hours of 1:1 SETSS-ABA (school) (:40/wk.); 1:1 OT (2x30); 1:1 SLT (7x30); and a two-month program of twenty-two (22) hours of 1:1 SETSS-ABA (home-summer) (1x60); with special transportation; and direct payment by the District to the ABA Provider at an hourly rate of one-hundred-fifty ($150.00) dollars. [22]
14. On November 20, 2020, the Parents issued a letter to the District requesting the production of certain documents and records in the possession of the NYC-DOE, CSE and High School, be delivered by or before December 11, 2020 (“Document Request”). [23]
15. On April 28, 2021, the District convened a CSE meeting (“2021 CSE Meeting”), which was attended telephonically by the Parent; Special Education Teacher [Redacted]; General Education Teacher [Redacted]; District Representative [Redacted]; Speech Therapist [Redacted]; Science Teacher [Redacted]; the School Psychologist; Bilingual
Interpreter ID#[Redacted]; ABA Assistant Supervisor and the ABA Technician (together, the “2021 CSE Team”). During the 2021 CSE Meeting, the Student classification of Autism remained unchanged, and an IEP was developed with an implementation date of July 6, 2021, for the 2021/2022 school year (“2021 IEP”). [24]
16. The 2021 IEP referenced evaluation results from the NYSESLAT, Math Assessment (12/20), Vocational Assessment, ELA 8th Grade Diagnostic (4/21), and ‘information extracted from the 2020 IEP’, which was inclusive of findings set forth in the 2019/2020
Evaluations. The 2021 CSE Team reiterated that the Student’s cognitive and language delays hampered his ability to complete grade level academic work and make progress in the general education curriculum without special education support. The 2021 IEP noted that that the Student benefits from the specialized instruction provided in a small class setting, SLT services, and requires academic support and scaffolds to allow him to succeed in all content areas. The 2021 CSE Team incorporated ABA Services into the Student’s Management Needs; and determined that the Student would continue his SLT related services, remain in the 12:1:1 setting for the balance of the 2020/2021 school year, and receive certain special education support services. The 2021 IEP indicated that based on the NYSESLAT, the Student was on a transitional ENL level. The 2021 IEP indicated that an ICT setting was discussed as a possibility in the future, if his rate of progress in High School remains; however, an ICT setting would not meet his education needs at this time. Notably, the 2020 IEP neither indicates that any additional evaluations were conducted prior to the 2020 CSE Meeting, nor that the Student needed strategies, behavioral interventions plans or other supports to address behaviors that impeded his learning or that of others. 25
17. Thereafter, the 2021 IEP recommended a ten-month 15:1 program in a Special Class for the Student consisting of Math, ELA, Social Studies and Sciences, each at (5/wk.); with related services that included PCAT (:45/4xyr.), (1:1) SLT (1x30) and Group-of-5 SLT (2x30) (together, the “2021 Recommended Program”). The 2021 IEP also recommended placement for the Student in a District 1-32 School (“2021 Recommended Placement”), together with Specialized Transportation. The 2021 IEP noted that the Student’s placement in a NYSED-Approved Non-Public School (“NPS”)-Day was also considered but rejected by the Parent because it was considered important to maintain the Student’s same level of services that were existent when he transitions to High School. The Hearing Record also demonstrates that the Parent expressed concerns during the 2021 CSE Meeting, including, inter alia, continuity of all special education and ABA services, and Student’s (in)ability to safely use public transportation to/from the High School. [26]
18. On June 17, 2021, a Student Progress Report for Speech-Language was completed, which determined that the Student had made minimal-moderate progress towards his goals; and recommended that he continue to receive SLT services to address pragmatic, receptive and expressive language deficits, at a mandate of 2x30x5 and 1x30x1 (“2021
Speech Progress Report”). 27
19. On June 24, 2021, a PWN was issued regarding Continued Eligibility, which indicated that the 2021 IEP was developed during the 2021 CSE Meeting and mandated the 2021
Recommended Program and 2021 Recommended Placement (“2021 PWN”). [28]
20. On August 19, 2021, the Parents provided contact information and permission to the High School to contact the ABA Provider regarding the Student’s push-in services to be delivered at the High School during the 2021/2022 school year. [29]
21. On October [25], 2021, a CSE Meeting Notice was issued to ‘Parent/Guardian of Student’, scheduling an annual review on October 27, 2021 for development of a new IEP; which also advised of the Parents’ right to request, within seventy-two (72) hours prior to the proposed CSE Meeting, the participation of an additional parent or school physician. [30]
22. On October 27, 2021, the Compliance Coordinator issued an email to the Parents and other proposed attendees as a reminder for the ‘2021 Emergency IEP Meeting’, which was scheduled to be conducted remotely, via Zoom; and thereafter, convened an emergency CSE meeting (“Emergency CSE Meeting”), which was attended telephonically by the Parent; Special Education Teacher [Redacted]; General Education Teacher [Redacted]; and the Compliance Coordinator, who participated in a dualcapacity as the District Representative and Social Worker (together, the “Emergency
CSE Team”). During the Emergency CSE Meeting, the Student’s Autism classification remained, and an IEP was developed with an implementation date of October [27], 2021 for the 2021/2022 school year (“2021 Emergency IEP”). It was indicated that the purpose of the Emergency CSE Meeting was an annual review to discuss the Student’s continued special education services in a special class setting; still noting that he benefitted from the support of a 12:1+1 classroom and a 1:1 ABA provider, and that his special education and related services would remain unchanged for the remainder of the school year; yet, SLT was changed to Group-of-5 (2x40) to improve his overall language skills. In addition, the Emergency CSE Team noted that it was unclear to his Teachers as to how the ABA Therapist was supporting the Student ‘other than assisting with tasks much in the way a paraprofessional would’; further noting, that due to the intensive nature of the service, and the ‘lack of progress in the domains in which the ABA provider is purported to work’, there were concerns of possible interference with the Student’s programming and his development of healthy social relationships at the High School. [31]
23. The 2021 Emergency IEP referenced evaluation results from the NYSESLAT, Math Assessment (12/20), Vocational Assessment, ELA 8th Grade Diagnostic (4/21), and ‘information extracted from the 2020 IEP’, inclusive of findings from the 2019/2020
Evaluations. Thereafter, the 2021 Emergency IEP recommended a ten-month program in an ICT Class for the Student consisting of Math, ELA, Social Studies and Sciences, each at (5/wk.); SETSS for ELA (5/wk.); and related services of Group-of-5 SLT (2x40) (together, the “Emergency Recommended Program”). The 2021 Emergency IEP also recommended Specialized Transportation to the Student’s (unchanged) placement at the High School. The 2021 Emergency IEP noted that a Related Services Only and Special Class in a community school 15:1 were considered but rejected on the basis that the Student’s needs could be met with [SETSS] in the general education classroom. [32]
24. Notably, the 2021 Emergency IEP neither indicates that any additional evaluations were conducted by the District prior to the 2021 Emergency CSE Meeting, nor that the Student needed strategies, behavioral interventions plans or other supports to address behaviors that impeded his learning or that of others. Additionally, the 2021 Emergency
IEP indicated that during the Level 1 Vocational Interview, the Parent used three words to describe the Student - kind, respectful and calm; and the Student described himself as nice, friendly and helpful. Further, the ‘Social Development’ section noted that the Student is kind and respectful towards his classmates and teachers. [33]
25. On October 28, 2021, the Compliance Coordinator corresponded with the Parent, forwarded the requested 2021 Emergency IEP, and indicated that the Student’s ABA Services remained intact, as set forth on page-9 in the ‘Management Needs’ section. [34]
26. On October 28, 2021, a PWN was issued regarding the Student’s Continued Eligibility, indicating that the 2021 Emergency IEP was developed during the 2021 Emergency CSE Meeting to mandate the Emergency Recommended Program and Emergency
Recommended Placement (“2021 Emergency PWN”); and included a description of the underlying factors related to a change from the 15:1 program to an ICT program; more particularly, the Student’s cognitive and language delays make it difficult for him to complete grade level academic work and make progress in the general education curriculum without special education support, and he benefits from SLT and the specialized instruction provided in a small class setting. [35]
27. On November 15, 2021, the Parent filed a Complaint under Case No. 221556, relating to the Student’s 2021/2022 school year. [36]
28. On June 14, 2022, an IEP Progress Report for SLT was developed, which indicated that the Student made some progress with ‘who, what, when and where’ questions; however, the Student made little progress with pragmatic skills, social inferences, visual/verbal cues, or providing logical solutions to problems. [37]
29. On June 24, 2022, a Progress Report was developed by the ABA Assistant Supervisor and the ABA Technician, as supervised by [Redacted], Ph.D., MS Ed, LBA/BCBA-D at the ABA Provider (“ABA Progress Report”), which indicated that during baseline assessments of his goals, the Student exhibited qualitative impairment in his communication and social skills, with significant delays in his frustration tolerance, concentration skills and attention skills; however, subsequent to implementation of ABA, the Student made overall progress in all learning domains and was able to complete age-appropriate daily living and social tasks. Nevertheless, despite displaying significant improvement in adjusting to his new environment at the High School, the ABA Progress Report also determined that the Student experienced difficulty with understanding academic content, problem-solving, comprehension, inferencing, completing tasks independently, and engaging in social activities, including classroom group assignments and spontaneous interactions. It was opined that despite his progress, the Student continues to require the support of his 1:1 SETSS/ABA Therapist in both academic and social/community settings to increase his chances of future opportunities and positive experiences with jobs, friendships and independent living skills. It was highly recommended that the Student continue his current ABA services in the school, regardless of placement, and in the home/community; together with, extra academic tutoring, after school, with the support of a Board-Certified Behavior Analyst (“BCBA”) supervisor to support his learning needs and prevent further regression.
Notably, the ABA Progress Report indicated that Student does not display maladaptive behaviors that interfere with his or others’ learning. [38]
30. On June 22, 2022, the Parent duly-executed an affidavit, which provided an outline of the events underlying the Student’s educational supports and services mandated and/or denied by the District since his initial classification as a student with a disability in 2012 (“Parent’s Affidavit”). More particularly, the Parent indicates that she did not receive translation of certain documents; and although she was not timely informed of the District’s decision to change the Student’s program in September 2021, from a 15:1 to an ICT, the Student is happy with his Engineering class and the High School overall; however, the Parent opines that his progress during the 2021/2022 school year is due in part to the SETSS-ABA services provided at school, home and during the summer. [39]
31. The Petitioners proffered ABA Assistant Supervisor, [Redacted], MS. Ed, BCBA, as a witness, who holds a Master’s in Special Education; Master’s in General Education; Certification in Early Childhood Special Education; Certification in General Education with Students of Disabilities and General Education. The ABA Assistant Supervisor testified that she provided ten (10) hours per week of SETSS-ABA services to the Student, who showed immense improvement in his daily living skills; however, he was significantly delayed within the learning domains; exhibited difficulties and required support with comprehension and organization for Reading and Writing; and guidance for focus and transitioning when outside, as he is not yet ready to cross the street or travel on mass transit independently.[40] The ABA Assistant Supervisor testified that the SETSS-ABA services provided to the Student at home included, promoting his independence in completing homework; increasing his duration in reading; assisting with his comprehension of current events, writing structured sentences and paragraphs, and directing him to utilize resources to conduct research. [41]
32. The ABA Assistant Supervisor recommended a continuation of SETSS-ABA in-school and at-home (10 hrs./wk.); as well as one-to-two (1-2 hours/wk.) of academic tutoring to prepare for the Regents; and a BCBA Supervisor (1 hour/wk.).[42]
33. The Petitioners proffered ABA Technician, [Redacted], RBT, as a witness, who holds a Bachelor’s in Psychology; is pursuing a Master’s in ABA/BCBA; and is Certified as a Registered Behavior Technician (“RBT”). The ABA Technician testified that she provided ABA services, support and instruction to the Student in-sch00l, at-home and within the community, since 2018; in relation to his deficits in academics, organization, language, independent and social skills, by reteaching and synthesizing information to aid the Student’s comprehension of his assignments. Further testifying that based on discussions with the Student’s Math and Speech Teachers, the Student ‘definitely needs’ to continue ABA services because he is benefitting therefrom, and without ABA services he may not be able to follow instructions and pass his classes. The ABA Technician opined that in order to avoid substantial regression, the Student also needs to receive ABA services during the summer because he lacks the skills to retain that which he has previously learned throughout the school year. Thereafter, the ABA Technician further clarified her basis/definition of ‘substantial regression’ as the Student needing assistance for up to one (1) week to revisit, relearn and ‘master it by himself’. [43]
34. The ABA Technician testified that when the Student commenced his attendance at the High School in September 2021, she provided his ABA services in an ICT classroom; noting however, that the 2021 IEP mandated a special education 15:1 classroom, and that his Parents were unaware that the Student was enrolled in an ICT classroom, until his IEP was changed on October 27, 2021 to reflect an ICT program, during the Emergency CSE Meeting, which the ABA Technician confirmed she attended. Further testifying that during the 2021/2022 school year, the Student was in an ICT classroom for Math, ELA and Science; thereafter, the Student was transferred without an ICT
Teacher to an ‘English as a Second Language’ (“ESL”) class; he did not receive the mandated SETSS for ELA; received SLT (2/wk.); and she never witnessed the Student receiving any OT since she began providing his ABA services in 2018. [44]
35. During cross-examination, the ABA Technician confirmed that she has worked with the Student on a daily basis, and also provided ABA services to the Student, in-person, during the 2020/2021 school year. [45]
36. The Petitioners subpoenaed the High School Principal, [Redacted] as a witness, who holds a Master’s in Social Studies Education; Bachelor’s in History; NYS School District
License; and NYS School Building Leader Certificate. The Principal testified that the 2021 IEP had an implementation date of July 6, 2021, and recommended a 15:1 special class for the Student in ELA, Math, Science and Social Studies; however, the Principal confirmed that a 15:1 program was not available at the High School for the 2021/2022 school year. The Principal further testified that to avoid having children with IEPs from being separated, isolated or ostracized, when they are transitioning from Eighth Grade to High School, it is a standard protocol of the NYC-DOE that the students are placed in a less restrictive environment, such as an ICT classroom or alternatively SETSS. The Principal further confirmed that the Student was placed in ICT on his first day at the Hight School; and the Parent was not provided any notification or information that he would be placed in a class that differed from the 2021 Recommended Program of 15:1. [46]
37. The Petitioners subpoenaed Compliance Coordinator, [Redacted] as a witness, who holds a Master’s in Special Education; Master’s in School Building Leadership; Master’s in Social Work; Bachelor’s in English Education; is a NYS Certified Special Education Teacher; and NYS Certified Social Worker and Administrator. The Compliance
Coordinator testified that part of her responsibility was to review the IEPs for the upcoming 2021/2022 school year, determine which incoming students had special classes, and then ‘make sure that [the parents] are aware that we do not want to isolate the students. We want them to be integrated into . . . general education with support.’
The Compliance Coordinator further testified that if the parent does not want the student enrolled into a different [ICT] class, then a suggestion is made to seek a revaluation and D-75 placement in a 15:1 class, with other students who have an IEP. [47]
38. The Compliance Coordinator testified that she telephoned the Parent in September 2021, together with a Translator on the line, to advise the Parent as to the difference between a “Special Class” and “ICT”; determine whether the Parent wanted to integrate the Student into a “General Education” classroom; and to schedule a CSE Meeting. The Compliance Coordinator further testified that during her telephone calls with the Parent, she was assured that the Parent understood English; and although a Translator was not available at the Emergency CSE Meeting, the Compliance Coordinator opined that based on what she was told, the Parent had no difficulty expressing or understanding what was being said. [48]
39. The Compliance Coordinator confirmed that a ‘Special Class 15:1’ was not available at the High School during the 2021/2022 school year, and that the Student had been enrolled in an ICT class since his enrollment at the High School in September 2021.
Further testifying that to minimize loss of time in his core classes, the Student received SETSS for ELA in his Art Class, on a push-in basis, in a group of 8:1; received the mandated SLT; and was transferred during the second semester from ICT-ELA to ENL for ELA, where he had both a General Education ENL Teacher and a Special Education
Teacher. [49]
40. The Petitioners proffered the Parent as a witness who authenticated her Affidavit, in which she attested that the Student has received ABA-SETSS in-school, at-home and during the summer since he was in preschool. The Parent further attested that although the Student struggled with keeping up in class, and failed the Math and Science Regents exams in High School; due in part to his 1:1 SETSS-ABA, he turned in his class assignments and homework, received passing grades in all of his classes and very good grades in Engineering and Art. The Parent attested that the Student really enjoyed the Engineering Class and being in class with regular children without IEPs. [50]
41. During the Hearing, the Parent confirmed her attendance at the 2021 CSE Meeting and testified that she did not recall if a translator was present thereat. Notably, with the exception of seeking a continuation of ABA services, the Parent testified that she did not recall what or if anything was discussed during the 2021 CSE Meeting relating to summer, after-school and/or speech services. Despite taking contemporaneous notes that were reportedly used to develop the Affidavit, the Parent further testified that did not recall whether any translators were available at any of the IEP/CSE Meetings. [51]
During the Hearing, the Parent confirmed that she “understands [English] a little bit but cannot understand the whole conversation.”[52] During cross-examination, the Parent testified that she did not decline a translator or interpreter at any point; and she did not recall being offered translators by the school staff prior to the IEP/CSE Meetings. [53]
VI. CONCLUSIONS OF LAW AND DISCUSSION
This Hearing Officer will examine the facts established by documentary and testimonial evidence contained in the Hearing Record; and determine the proper application of Federal and State Regulations, Statutes and Caselaw, to render a Decision that discusses the following, as applicable to the 2019/2020, 2020/2021 and/or 2021/2022 school years: (1) whether the District failed to develop an appropriate IEP; (2) whether the District failed to consider sufficient evaluative data in advance of developing the IEP(s); (3) whether the District failed to provide accessible information in the Parents’ native language; (4) whether the District recommended an appropriate program; (5) whether the District failed to implement the mandated special education and related services; (6) whether the District denied Parents’ meaningful opportunity to participate; (7) whether the District met its statutory burden of proof, production and persuasion relating to the alleged denial of FAPE; and (8) whether equitable considerations favor a compensatory award.
A. IDEA
The IDEA’s purpose is “to ensure that all children with disabilities have available to them a free appropriate public education.” T.K. v. N.Y.C. Dep’t of Educ., 810 F.3d 869, 875, (2d Cir. 2016); citing 20 U.S.C. § 1400(d)(1)(A). More particularly, the IDEA seeks to ensure that (1) students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). The Second Circuit finds that, “[i]n practice, this means that [the Districts] have an affirmative obligation to provide a basic floor of opportunity for all children with disabilities, … described [as] an education likely to produce progress, not regression, and one that affords the student with an opportunity greater than mere trivial advancement.” T.K., 810 F.3d 869, 875; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005); quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009);
P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008).
The centerpiece of the IDEA and its principal mechanism for achieving the goal of “a basic floor of opportunity for all children with disabilities” is the IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); D.S. v. Bayonne Bd. of Educ., 54 IDELR 141 (2010); quoting Polk v. Cent. Susquehanna Intermediate Unit, 16, 853 F.2d 171, 173 (3d Cir. 1988). The IEP is the means by which special education and related services are tailored to the unique needs of a particular child. Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017); quoting, Rowley, 458 U.S. 176, 181. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak, 142 F.3d 119, 130; see Rowley, 458 U.S. 176, 203. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” Walczak, 142 F.3d 119, 132; quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).
B. FAPE
FAPE must be offered to each Student with a disability residing in the District who requires special education services or programs. 20 U.S.C. §1412(a)(1)(A); Educ. Law §4402(2)(a)(b)(2). The 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. 176, 203. A FAPE is offered to a student when (a) the board of education 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. 176, 206-207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra, 427 F.3d 186, 192. However, under the IDEA, a substantive violation may arise where the substantive content, such as the educational services, contained in the IEP, is insufficient to afford FAPE; and procedural violations may occur when the District fails to comply with the IDEA’s process-based requirements.
The IDEA directs that a two-part inquiry must be made based on substantive grounds and procedural inadequacies, to determine whether a Student received a FAPE. 20 U.S.C. §1415(f)(3)(E). At the first step, Courts examine whether there were procedural violations of the IDEA, namely, “whether the state has complied with the procedures set forth in the IDEA.” Cerra, 427 F.3d 186, 192. If procedural violations are alleged, then a determination is made that the Student did not receive a FAPE, only if the District’s alleged procedural inadequacies: (a) impeded the Student’s right to a FAPE, (b) significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student, or (c) caused a deprivation of his/her educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d 167, 190; M.H., 685 F.3d. 217, 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009). Courts then examine whether the IEP was substantively adequate, namely, whether it was “reasonably calculated to enable the child to receive educational benefit[s].” Cerra, 427 F.3d 186, 192; quoting, Rowley, 458 U.S. 176, 206-
07. Since Rowley, Courts have generally viewed violations of FAPE as substantive when they involve:
(1) content, adequacy and compliance with an IEP;
(2) implementation of the IEP; or (3) failure to educate in the least restrictive learning environment. Substantive inadequacy automatically entitles the Parent to reimbursement. As discussed more fully infra, an examination was undertaken by this Hearing Officer to determine whether the Student’s right to a FAPE was procedurally and/or substantively hindered by the District, during the 1019/2020, 2020/2021 and/or 2021/2022 school years.
C. IEP
The centerpiece for the implementation of FAPE is the IEP. S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 264 (3d Cir. 2003). An appropriate educational program begins with an IEP, which includes a statement of the student’s present levels of academic achievement and functional performance (34 C.F.R. 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008); establishes annual goals designed to meet the student’s needs resulting from the student’s disability and enables him or her to make progress in the general education curriculum (34 C.F.R. 300.320(a)(2)(i); 34 C.F.R. 300.320(2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)); and provides for the use of appropriate special education services. 34 C.F.R. 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(6). The Supreme Court has indicated that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” Endrew F., 137 S. Ct. 988, 999. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created”. Endrew F., 137 S. Ct. 988, 1001. 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); Endrew F., 137 S. Ct. 988, 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. 176, 192. The student’s recommended program must also be provided in the least restrictive environment (“LRE”). 20 U.S.C. §1412(a)(5)(A); 34 C.F.R. 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc); 8 NYCRR 200.6(a)(1); Newington, 546 F.3d 111, 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d 119, 132. However, in order to determine whether a Student is eligible to receive a FAPE under the IDEA, the District must first conduct an initial evaluation to identify the Student’s educational needs. 20 U.S.C. § 1414(a)(1)(A); 34 C.F.R. 300.301(a). Thereafter, the District must develop and recommend an IEP, which reflects the evaluation results (8 NYCRR § 200.4(d)(2)(i)); classifies the Student under one disability category (34 C.F.R. 300.641(c)); and “include[s] special education and related services tailored to meet the unique needs of a particular child and be reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Dd. Of Educ. Of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006).
The IDEA directs that, in general, this 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). The 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. 176, 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an [IEP].” Walczak, 142 F.3d 119, 130; see Rowley, 458 U.S. 176, 203. “The adequacy of a given [IEP] turns on the unique circumstances of the child for whom it was created”. Endrew F., 137 S. Ct. 988, 1001. The IDEA’s purpose is “to ensure that all children with disabilities have available to them a free appropriate public education.” T.K., 810 F.3d 869, 875, citing 20 U.S.C. § 1400(d)(1)(A). Therefore, to provide a FAPE, an IEP developed by the District must be reasonably calculated to enable the Student to receive educational benefits.
a. DEVELOPMENT OF IEP
The Parent asserts that the District’s failure to develop an appropriate IEP for the Student, constituted a denial of FAPE for the 2020/2021 and 2021/2022 school years.
In order to meet its legal obligations, the District must have an IEP in effect at the beginning of each school year for each child with a disability in its jurisdiction. 34 CFR 300.323(a); 8 NYCRR 200.4(e)(1)(ii); Cerra, 427 F.3d 186, 194; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff’d, 530 Fed. App’x 81 (2d Cir. 2013); B.P. v. New York City Dep’t of Educ., 841 F. Supp.2d 605, 614 (E.D.N.Y. 2012); Tarlowe, 2008 WL 2736027, at *6. In accordance therewith, the IDEA requires a CSE to review and, if necessary, revise the Student’s [IEP] at least annually. 20 U.S.C. §1414(d)(4)(A); 34 CFR 300.324(b)(1); 8 NYCRR 200.4(f). In addition, Federal and State Regulations mandate that the CSE must revise the Student’s IEP, as necessary, to address “[i]nformation about the child provided to, or by, the Parent during the course of a reevaluation of the Student. 34 CFR 300.324(b)(1)(ii)(C); 8 NYCRR 200.4(f)(2)(ii); and State Regulations provide that, if parents believe that their child’s placement is no longer appropriate, they “may refer the student to the [CSE] for review”. 8 NYCRR 200.4(e)(4). State Regulations further provide that, if appropriate, an IEP must be revised to address “any lack of expected progress toward the annual goals and in the general education curriculum . . . the results of any reevaluation conducted . . . and any information about the student provided to, or by, the parents . . . or . . . the student’s anticipated needs.” 8 NYCRR 200.4(f)(2)(i-iii).
In developing recommendations for a student’s IEP, the CSE must consider the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student’s performance on any general State or district-wide assessment; as well as, any special factors as set forth in Federal and State regulations. 34 CFR 300.324(a); 8 NYCRR 200.4(d)(2). As discussed more fully infra, an examination of the 2020 IEP reflects that the District conducted the 2019/2020 Evaluations, in advance of the 2020 CSE Meeting, which were also referenced in the 2021 IEP and 2021 Emergency IEP (together, the “2021 IEP(s)”). Notably however, the Parents sought three (3) independent education evaluations (“IEEs”) on July 1, 2020, the results of which would have lent a more adept guidance to the 2021 CSE Team(s) prior to developing its recommendations for an educational program and placement suitable for handling the Student’s unique needs. When evaluating whether an [IEP] was substantively adequate, a determination must be made as to whether the [IEP] was “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. 176, 207. However, the District neither presented any testimonial evidence nor additional evaluative materials it relied upon during the 2021 CSE Meeting or 2021 Emergency CSE Meeting (together, the “2021 CSE Meeting(s)”), that established how the Student could benefit academically from recommendations set forth in the 2021 IEP(s), which did not fully address the Student’s challenges and unique needs. “R.E. stands for the unremarkable proposition that when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an [IEP] formulated for the child that fails to provide services consistent with that consensus is not ‘reasonably calculated to enable the child to receive educational benefits’” A.M. v. N.Y.C. Dep’t of Educ., 845 F.3d 523, 543 (2d. Cir. 2017); quoting, Rowley, 458 U.S. 176, 207.
1. SUFFICIENCY of EVALUATIONS and ASSESSMENTS
The Parent contends that the District failed to consider sufficient evaluative data in advance of developing the 2020 IEP and 2021 IEP(s).
Prior to the development of an IEP, the child must be evaluated to determine whether a need for special education exists. Evaluations are a foundational tool by which students are determined [or not] to be eligible for special education and related services under the IDEA. An evaluation of a student must be sufficiently comprehensive to identify all of the student’s special education and related services’ needs, whether or not commonly linked to the disability category in which the student has been classified. 34 C.F.R. 300.304(c)(6); 8 NYCRR 200.4(b)(6)(ix). An initial evaluation of a student must include a physical examination, a psychological evaluation, a social history, a classroom observation of the student, and any other “appropriate assessments or evaluations” as necessary to determine factors contributing to the student’s disability. 8 NYCRR 200.4(b)(1). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information about the student, including information provided by the parent that may assist in determining, among other things the content of the student’s IEP. 20 U.S.C. § 1414(b)(2)(A), (B); 34 CFR 300.304(b)(1)(ii); Letter to Clarke, 48 IDELR 77 (OSEP 2007). The District must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. 20 U.S.C. § 1414(b)(2)(C); 34 CFR 300.304(b)(3); 8 NYCRR 200.4(b)(6)(x).
The District may elect to conduct additional evaluations or assessments to appropriately assess the Student in all areas related to the suspected disabilities. 8 NYCRR 200.4(b)(3). However, Federal and State Regulations mandate that the District must conduct an evaluation of a Student where the educational or related services needs of a Student warrant a reevaluation or if the Student’s Parent or Teacher requests a reevaluation. 34 C.F.R. 300.303(a); 8 NYCRR 200.4(b)(4). While a District need not conduct a reevaluation more frequently than once per year unless the Parent and the District agree otherwise. 34 CFR 300.303(b)(1); a reevaluation of a student with a disability must be conducted by a multidisciplinary team or group that includes at least one teacher or specialist with knowledge in the area of the Student’s disability. 8 NYCRR 200.4(b)(4). The reevaluation must be “sufficient to determine the Student’s ability to participate in instructional programs in regular education and the Student’s continuing eligibility for special education.” 8 NYCRR 200.4(b)(5). Therefore, whether it was an initial evaluation or a reevaluation, the District was obligated to ensure that the Student was aptly assessed in relation to her disability, including, where appropriate, social and emotional status. 20 U.S.C. § 1414(b)(3)(B); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii).
Pursuant to the Federal and State procedures for determining a student’s eligibility and educational needs, a “[CSE] and other qualified individuals must draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the student’s physical condition, social or cultural background, and adaptive behavior.” 8 NYCRR 200.4(c)(1); 34 CFR 300.306(c)(i). The CSE must consider independent educational evaluations obtained at public expense and private evaluations obtained at private expense, provided that such evaluations meet the District’s criteria, in any decision made with respect to the provision of a FAPE to the Student. 34 CFR 300.502(c); 8 NYCRR 200.5(g)(1)(vi). Although the CSE is required to consider reports from privately retained experts, it is not required to adopt their recommendations. G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *19 (S.D.N.Y. Mar. 29, 2013); C.H. v. Goshen Cent. Sch. Dist., 2013 WL 1285387, at *15 (S.D.N.Y. Mar. 28, 2013); T.B. v. Haverstraw-Stony Point Cent. Sch. Dist., 933 F. Supp. 2d 554, 571 (S.D.N.Y. 2013); Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 (N.D.N.Y. 2004) (noting that even if a district relies on a privately obtained evaluation to determine a student’s levels of functional performance, it need not adopt wholesale the ultimate recommendations made by the private evaluator).
Here, with the exception of the NYSESLAT, the 2019/2020 Evaluations, the Math Assessment (2020) and ELA Diagnostic (2021), the 2021 IEP(s) do not reflect that the CSE considered or factored in any other recent evaluative assessments in relation to the Student’s challenges or unique needs. Based on the Student’s needs, it was incumbent upon the District to conduct a reevaluation of the Student at least once per year; or otherwise offer persuasive evidence during the Hearing that in accord with Regulations of the Commissioner of Education, assessments more recent than the 2019/2020 Evaluations were conducted and/or deemed unnecessary to ensure that the Student could receive an educational benefit and a FAPE. The Hearing Record evinces that the District did not obtain or integrate sufficient evaluative data and information relative to the Student, which would have enabled the 2021 CSE Team(s) to properly formulate a determination that incorporated pertinent information regarding the Student’s challenges and/or needs, in relation to his Autism, when developing the 2021 IEP(s). Fundamentally, the absence of sufficient evaluative data and information used and/or considered by the District during the 2021 CSE Meeting(s), reasonably raises questions as to the appropriateness of the 2021 IEP(s) developed and the special educational placements, programs and provisions that were recommended thereunder. However, given its failure to defend against the alleged denial of FAPE, the District failed to address its burden of proving that the 2021 IEP(s) did not require further redress to appropriately meet the Student’s unique needs arising from his (dis)abilities. Therefore, having acted in opposition to certain statutory requirements, including, inter alia, 20 U.S.C. §1414(b)(3)(B); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii), it is this Hearing Officer’s determination that the District failed in its obligation to ensure that it had adequately reviewed or considered current, sufficient and/or appropriate evaluative data for the 2021 CSE Meeting(s), prior to developing the 2021 IEP(s). Accordingly, the procedural deficiencies and substantive violations under the IDEA resulted in the District’s failure to offer the Student a FAPE for the 2021/2021 school year.
a. FBA/BIP
The Parent asserts the District failure to conduct a functional behavior assessment (“FBA”) and/or develop a behavior intervention plan (“BIP”), contributed to a denial of FAPE.
Under the IDEA, in the case of a Student whose behavior impedes his or her learning or that of others, the District may be required to consider special factors in the development of the Student’s IEP, including positive behavioral interventions, supports and other strategies to address that behavior. 20 U.S.C. §1414(d)(3)(B)(i); 34 CFR 300.324(a)(2)(i); 8 NYCRR 200.4(d)(3)(i); see also, J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 (S.D.N.Y. 2009); M.M. v. New York City Dep’t of Educ., 583 F. Supp. 2d 498, 510 (S.D.N.Y. 2008); Tarlowe, 2008 WL 2736027, at *8 ; E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., 361 Fed. App’x 156, 160 (2d Cir. Oct. 16, 2009); A.C., 553 F.3d 165, 172. A District is required to conduct an FBA in an initial evaluation for students who engage in behaviors that impede their learning or that of other students. 8 NYCRR 200.4(b)(1)(v). Notably, New York State Regulations mandate that a District conduct an FBA for a Student who exhibits behavior that impedes learning, and to develop a BIP to address that behavior. T.M., 752 F.3d 145, 169; 8 NYCRR 200.4(b)(1)(v); 8 NYCRR 200.22(b); C.F., 746 F.3d 68, 80 (“even under New York law, assessments are only required as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities”). 8 NYCRR 200.4(b)(1)(v). However, the Second Circuit has held that, where such analysis is required, “[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student’s behaviors, leading to their being addressed in the IEP inadequately or not at all.” R.E., 694 F.3d 167, 190.
According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the Student’s history of presenting problem behaviors (8 NYCRR 200.22(a)(2). An FBA must also include a baseline setting forth the “frequency, duration, intensity and/or latency across activities, settings, people and times of the day,” so that a BIP (if required) may be developed “that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement”. 8 NYCRR 200.22(a)(3). State guidance suggests that the decision of timing and the environment in which an FBA should be conducted is a matter under State policy that has been left to the CSE to decide (“Guide to Quality [IEP] Development and Implementation,” at p. 22, OSEP (Dec. 2010) (noting the student’s need for a BIP must be documented in the IEP, and, prior to the development of the BIP, an FBA either “has [been] or will be conducted”). [54]
The Second Circuit has found that under certain circumstances, delaying an FBA until a child commences the recommended educational environment would not be considered a serious procedural violation that constitutes a denial of FAPE. Cabouli v. Chappaqua Cent. Sch. Dist., 202 Fed. Appx. 519, 522 (2d Cir. 2006); M.N. v. Katonah-Lewisboro Sch. Dist., 2016 WL 4939559, at *15 n.24 (S.D.N.Y. Sept. 14, 2016); J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, at *13 (S.D.N.Y. Aug. 5, 2013); see also, S.H. ex rel. W.H. v. Eastchester Union Free Sch. Dist., 2011 WL 6108523, at *9 (S.D.N.Y. Dec. 8, 2011) (deferring an FBA until the beginning of the school year or until a child becomes acclimatized to a new location is not considered a denial of FAPE). Under certain circumstances, it is understandable that a District may want to wait for the Student to transfer school environments prior to completing the evaluation. Bd. of Educ. of Wappingers Cent. School Dist. v M.N., 2017 WL 4641219, at *12 (S.D.N.Y. Oct. 13, 2017) (finding that, where the district evaluated the student at his out-of-State residential program and the out-of-State placement differed from the possible district placements, “the sole fact that [the district] did not conduct an FBA prior to the implementation of an IEP does not amount to a denial of FAPE”). Conversely, the Second Circuit stated that “the entire purpose of an FBA is to ensure that the IEP drafters have sufficient information about the student’s behaviors to craft a plan that will appropriately address those behaviors”. R.E., 694 F.3d 167, 190; L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 111 (2d Cir. 2016) (evincing that an FBA should be drafted prior to or at the time of the development of the IEP, which must, by definition be completed before the Student is placed).
Where a determination is made that the Student’s behavior is a manifestation of his or her disability, the CSE is required to conduct an FBA and implement a BIP or, if the Student already has a BIP, review the BIP and modify it as necessary to address the behavior. 20 U.S.C. §1415(k)(1)(F)(i)-(ii); 34 CFR 300.530(f)(1)(i)-(ii); 8 NYCRR 201.3. State Regulations define an FBA as the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment and includes, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. 8 NYCRR 200.1(r); 8 NYCRR 201.2(h). Where it is determined that a BIP is necessary for the Student, it shall identify: (i) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors . . . ; (ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals. 8 NYCRR 200.22(b)(4).
Traditionally, it has been held that neither the failure to conduct an FBA nor develop a BIP automatically renders the IEP deficient or rises to the level of a denial of a FAPE, if upon close examination of the IEP it is determined that the IEP adequately identifies, addresses and prescribes a means to manage the Student’s interfering behaviors. A.C., 553 F.3d 165, 172; C.F.,746 F.3d 68, 80; R.E., 694 F.3d 167, 190; F.L. v. New York City Dep’t of Educ., 553 Fed. App’x 2, 6-7 (2d Cir. Jan. 8, 2014). The Hearing Record does not demonstrate any documentary and/or testimonial evidence that the Student engaged in any antecedent, maladaptive, interfering or otherwise problem behaviors that impeded his learning or that of other students. To the contrary, dating back to 2017 through 2021, the Student was described by himself, his Teachers, Parents and Evaluators as kind, calm, nice, honest, playful, friendly, happy, respectful and considerate towards his classmates and teachers. The singular ‘current’ reference to his behavior was listed in the OT Evaluation of Function and Participation, conducted November 13, 2019, wherein the goals state that the Student ‘will be able to demonstrate improved ‘work behavior’ by waiting for directions, attending and completing a writing assignment for thirty (30) minutes (filtering out auditory and visual distractions), and refocusing on task if his attention wanders during an activity.’ 55 While there were some concerns noted by the ABA-Provider that the Student “did not fully appreciate the immediate danger in his surroundings and might engage in ‘escape behavior’ when his stamina wanes after walking long distances”;[56] however, the same ABA Progress Report, also indicates that the Student “responds well to rules and does not display maladaptive behaviors that interfere with his or others’ learning”. Notably, the ABA Progress Report is dated June 14, 2022, which was developed subsequent to and therefore was not available for the 2021 CSE Meeting(s).
The Hearing Record does not reflect that either a formal request or recommendation was made that an FBA or BIP was required to inform the 2020 CSE Team and/or the 2021 CSE Team(s) in its development of the 2020 IEP or 2021 IEP(s). As such, the District’s failure to conduct an FBA or develop a BIP cannot be regarded as a procedural violation, as the CSE Team(s) were neither prevented from obtaining information necessary to properly assess the Student nor limited in its ability to identify strategies for his unique needs. Accordingly, it is the determination of this Hearing Officer that the evidence in the Hearing Record does not support a finding that the District’s failure to conduct an FBA and/or develop a BIP for the for the 2020/2021 and/or 2021/2022 school years, either impeded the Student’s right to a FAPE and/or otherwise caused a deprivation of the Student’s educational benefits.
b. INDEPENDENT EDUCATION EVALUATION
Evaluations are a foundational tool by which students are determined (or not) to be eligible for special education and related services under the IDEA. An Independent Education Evaluation (IEE) is defined by State Regulation as “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 NYCRR 200.1(z); 34 CFR 300.502(a)(3)(i). Federal and State Regulations provide that Parents have the right to have an IEE conducted at public expense if the Parent expresses disagreement with an evaluation conducted by the District and requests that an IEE be conducted at public expense. 34 CFR 300.502(b); 8 NYCRR 200.5(g)(1); K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. Jan. 13, 2012) (noting that “a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district”). “Public Expense” is defined to mean that the District must “either pay the full cost of the evaluation or ensure that the evaluation is otherwise provided at no cost to the parent.” 34 C.F.R. § 300.502(a)(3)(ii).
Generally, parents are “entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees.” 34 CFR 300.502(b)(5); 8 NYCRR 200.5(g)(1). However, the ‘one-IEE limitation’ does not mean that the District may limit the Parent to only one examiner when the Student’s disability (or suspected disability) requires assessment in multiple areas. Student with a Disability v. Wisconsin State Educ. Agency, 70 IDELR 215 (SEA WI 2017) (noting that “while the [District’s] procedures correctly limit parents to requesting one IEE per school district evaluation, the evaluation may not be limited to one outside examiner when multiple components of the student’s disabilities need to be assessed”). Informal guidance from the United States Department of Education’s Office (“USDOE”) of Special Education Programs (“OSEP”) indicates that if a Parent disagrees with
55
See, T-1. an evaluation because a child was not assessed in a particular area, the Parent has the right to request an IEE to assess the child in that area. Letter to Baus, 65 IDELR 81 (OSEP 2015). Therefore, under the circumstances, the District remains obligated to ensure that the Student is appropriately assessed in all areas related to his suspected disabilities, including, if appropriate, “health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.” 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. 300.304(b)(4); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii).
In order for an IEE to be provided at public expense, State and Federal Regulations require that “the parent disagrees with an evaluation obtained by the public agency”; however, the Regulations do not mandate how the Parent must manifest this disagreement to the District. 34 CFR 300.502(b)(1);8 NYCRR 200.5(g); see Genn v. New Haven Bd. of Educ., 219
F. Supp. 3d 296, 317 (D. Conn. 2016) (a parent does not have to express disagreement “in a formalistic manner . . . to be found to have disagreed in substance with [an] assessment”). In addition, Federal guidance suggests that a District “may not require that a parent provide notification of the parent’s intent to obtain an IEE at public expense as a precondition for public payment for an IEE” and that “a parent may obtain an IEE without providing prior notice to the public agency” (Letter to Saperstone, 21 IDELR 1127 (OSEP 1994); see also Letter to Anonymous, (OSEP 2010) (it is inconsistent with Federal regulations to require a parent to provide notice of a request for an IEE for consideration by the CSE).
Further, it is well-settled that a parent may file a complaint with respect to ‘any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a [FAPE] to such student’. 8 NYCRR 200.5(i)(1); see 20 U.S.C. § 1415(b)(6)-(7); 34 CFR 300.503(a)(1)-(2), 300.507(a)(1). Therefore, a complaint may serve as a vehicle for informing the District of a disagreement with an evaluation. Here, the Complaint set forth the Parents’ request for IEEs by a Neuropsychologist, Occupational Therapist and Behavior Analysist with an expertise in Autism, on the basis that (i) the ‘District had no evaluations upon which to base the removal of significant aspects of the Student’s program’; and (ii) the ‘evaluations, IEP development and placement processes did not meet the standards for providing FAPE to children with Autism as set forth by the New York State Education Department (“NYSED”), 8 NYCRR Part 200.13’.
State and Federal Regulations mandate that the District was obligated to conduct a reevaluation of the Student at least once every three (3) years, unless the District and Parent agreed in writing that such reevaluation was unnecessary. 20 U.S.C. § 1414(a)(2)(B)(ii); 8 NYCRR 200.4(b)(4); 34 CFR 300.303(b)(2). As such, the 2019/2020 Evaluations should not have served as the District’s primary criterion and evaluative data used in determining the appropriateness of the Student’s educational placement or program, or as the basis for developing the Student’s IEPs during the 2020/2021 and 2021/2022 school years. 8 NYCRR 200.4(b)(6)(v). In conformity with statutory requirements, this Hearing Officer finds that the District was obligated to ensure that the Student was appropriately assessed in all areas related to his suspected disability. 20U.S.C. §1414(b)(3)(B); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii). Therefore, absent any specific requirement that the Parents communicate their disagreement with the District’s evaluation in a particular format, there is no reason why the Parents’ Complaint could not have served as the vehicle for expressing discontentment with the results of the 2019/2020 Evaluations.
When a Parent initiates a request for an impartial hearing by filing a due process request, the IDEA provides for a resolution process that must be followed before a parentally requested hearing can proceed. More specifically, 34 CFR 300.510(a) provides “(1) [w]ithin 15 days of receiving notice of the parent’s due process complaint, and prior to the initiation of a due process hearing under § 300.511, the LEA must convene a meeting with the parent and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the due process complaint that (i) includes a representative of the public agency who has decision-making authority on behalf of that agency; and (ii) may not include an attorney of the LEA unless the parent is accompanied by an attorney. (2) The purpose of the meeting is for the parent of the child to discuss the due process complaint, and the facts that form the basis of the due process complaint, so that the LEA has the opportunity to resolve the dispute that is the basis for the due process complaint.” 34 CFR 300.510(a).
As such, subsequent to the Parent’s request for an IEE set forth in the Complaint, the District was tasked to act, without unnecessary delay, to (i) either ensure that an IEE was provided at public expense or (ii) to initiate an impartial hearing to establish that its evaluation was appropriate. 34 CFR 300.502(b)(2)(i)-(ii); 8 NYCRR 200.5(g)(1)(iv). “The purpose of requiring the public agency to either initiate a due process hearing if it wishes to challenge a parent’s request for an IEE, or otherwise to provide an IEE at public expense, is to require public agencies to respond to IEE requests and to ensure parents are able to obtain an IEE.” 64 Fed. Reg. 12406, 12607 (Mar. 12, 1999). Courts and Hearing Officers have generally concluded that “failure to act on a request for an independent evaluation is certainly not a mere procedural inadequacy; indeed, such inaction jeopardizes the whole of Congress’ objectives in enacting the IDEA.” Harris v. District of Columbia, 561 F. Supp. 2d 63, 69 (D.D.C. 2008) (ordering the school to fund parent’s IEE request); see also, Taylor v. District of Columbia, 770 F. Supp. 2d 105, 109 (D.D.C. 2011) (concluding that a “failure to timely reevaluate is at base a procedural violation of IDEA.”).
Accordingly, upon receipt of the Complaint, the District was statutorily provided with thirty (30) days to consider and resolve the Complaint, including the Parent’s request for an IEE, prior to the matter advancing to the Hearing. 34 CFR 300.510(b). More particularly, during the thirty (30) days allotted under the IDEA’s Resolution Period, the District could have agreed to the Parent’s request for an IEE, sought further information from the Parent, and/or defended its 2019/2020 Evaluations of the Student. Notably, Federal Regulations provide “[i]f a parent requests an independent educational evaluation at public expense, the district may ask for the parent’s reason why he or she objects to the public evaluation. However, the public agency may not require the parent to provide an explanation. . .” 34 CFR 300.502(b)(4). Hence, the District should have availed itself during the Resolution Period to consider the Parent’s IEE request, and/or enunciate a defense of its 2019/2020 Evaluations if a determination was reached not to grant the Parent’s request for a publicly funded IEE.
Consequently, as this Hearing Officer is vested with the authority to direct that the Student be evaluated at public expense, pursuant to 34 CFR 300.502 and 8 NYCRR 200.5(g)(2); the Parents shall, within forty-five (45) days of this Decision, schedule an appointment for a Neuropsychological Evaluation (“Neuropsychological IEE”); Occupational Therapy Evaluation (“OT IEE”); and an Autism/Classroom Observation (“Autism IEE”) (together, the “IEEs”), each to be conducted within ninety (90) days of this Decision by properly-credentialed provider(s) of the Parent’s choosing (“IEE Provider(s)”) at reasonable market rates for the NYC-area. Thereafter, the District shall, within thirty (30) days of presentment of invoice(s) by the Parents or the IEE Provider(s), fund the full cost of each of the IEEs, with payment to be remitted directly to the IEE Providers. Further, upon completion of the IEEs, the CSE shall reconvene to consider the results of the evaluations, findings and opinions to make appropriate recommendations in an amended IEP based on the evaluative data and information provided therein.
2. APPROPRIATENESS OF PLACEMENT/PROGRAM
The Parents assert that the District’s failure to implement an appropriate placement or program contributed to and constituted a denial of the Student’s FAPE.
The USDOE has noted that it “referred to ‘placement’ as points along the continuum of placement options available for a child with a disability, and ‘location’ as the physical surrounding, such as the classroom, in which a child with a disability receives special education and related services”. Placements, 71 Fed. Reg. 46588 (August 14, 2006). This view is consistent with an OSEP opinion, which indicates that the assignment of a particular school is an administrative decision provided it is made in conformance with the CSE’s educational placement recommendation. Letter to Veazey, 37 IDELR 10 (OSEP 2001); White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir. 2003); Veazey v. Ascension Parish Sch. Bd., 2005 WL 19496 (5th Cir. 2005); A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 (4th Cir. 2004); Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 (2d Cir. 1980).
An appropriate educational program begins with an IEP, which includes a statement of the student’s present levels of academic achievement and functional performance; (34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe, 2008 WL 2736027, at *6); establishes annual goals designed to meet the student’s needs resulting from the disability and enables him or her to make progress in the general education curriculum); 34 CFR 300.320(a)(2)(i); 34 CFR 300.320(2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)); and provides for the use of appropriate special education services. 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(6). Under New York State Law, the Commissioner of Education may approve the provision of “special services or programs” to students with disabilities through a variety of methods, including contracts entered into by boards of education of public schools and “private non-residential schools . . . which are within the State. Educ. Law §§4401(2)(e), 4402(2)(a); 8 NYCRR 200.1(d); 8 NYCRR 200.7. It is the individualized needs of all students with disabilities in a District that will determine which special education services shall be rendered by an approved private provider. Educ. Law §4402(2)(a).
While the IDEA requires parental participation in determining the educational placement of a child (34 CFR §§ 300.116, 300.327, 300.501(c)); however, ultimately it is the program of specialized instruction and related service contained in the Student’s IEP that forms the basis for the placement decision. Accordingly, program and placement decisions must be individually determined based on the Student’s unique needs, rather than based on the existing availability of services in the District or general policies unrelated to the Student’s needs. 34 CFR 300.116(b)(2); 8 NYCRR 200.6(a)(2); T.M., 752 F.3d 145, 163 (finding that the IDEA’s LRE requirement is not limited, in the extended school year context, by what programs the school district already offers, but rather must be based on the student’s needs); Adams v. State, 195 F.3d 1141, 1151 (9th Cir. 1999); Reusch v. Fountain, 872 F. Supp. 1421, 1425-26 (D. Md. 1994); Placements, 71 Fed. Reg. 46588 (noting that “placement decisions must be individually determined on the basis of each child’s abilities and needs and each child’s IEP, and not solely on factors such as . . . availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience”).
a. LEAST RESTRICT ENVIRONMENT (LRE)
The Parent contends that the District’s unilateral placement into an ICT General Education classroom was neither appropriate nor the LRE for a Student who was previously enrolled in a Special Education classroom, and therefore constitutes a denial of FAPE.
Traditionally, the Student’s recommended program must be provided in the LRE. 20 U.S.C. §1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc); 8 NYCRR 200.6(a)(1); Newington, 546 F.3d 111, 114; Gagliardo, 489 F.3d 105, 108; Walczak, 142 F.3d 119, 132; R.B. v. New York City Dep’t of Educ., 603 Fed. App’x 36, 40 (2d Cir. Mar. 19, 2015) (stating that “[t]he requirement that students be educated in the least restrictive environment applies to the type of classroom setting, not the level of additional support a student receives within a placement”); T.C. v. New York City Dep’t of Educ., 2016 WL 1261137, at *13 (S.D.N.Y. Mar. 30, 2016) (stating that “[a] less restrictive environment refers to the ratio of special education to general education students in the same classroom, not the ratio of special education students to teachers”); Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008). In determining an appropriate placement in the LRE, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling, or other removal of students with disabilities from the general educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.6(a)(1); Newington, 546 F.3d 111, 120-21; Oberti v. Bd. of Educ. of Borough of Clementon Sch. Dist., 995 F.2d 1204, 1215 (3d Cir. 1993); J.S. v. N. Colonie Cent. Sch. Dist., 586 F. Supp. 2d 74, 82 (N.D.N.Y. 2008); Patskin, 583 F. Supp. 2d 422, 430; Watson, 325 F. Supp. 2d 141, 144; Mavis v. Sobol, 839 F. Supp. 968, 982 (N.D.N.Y. 1993).
Federal and State regulations provide that the placement of an individual student in the LRE shall “(1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student’s home.” 8 NYCRR 200.1(cc); 8 NYCRR 200.4(d)(4)(ii)(b); 34 CFR 300.116. Consideration is also given to any potential harmful effect on students or on the quality of services that they need. 34 CFR 300.116(d); 8 NYCRR 200.4(d)(4)(ii)(c). Regulations also require that the District ensure that a continuum of alternative placements be available to meet the needs of students with disabilities for special education and related services. 34 CFR 300.115; 8 NYCRR 200.6. The continuum of alternative placements includes instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions; the continuum also makes provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement. 34 CFR 300.115(b).
To apply the principles described above, the Second Circuit adopted a two-pronged test for determining whether an IEP places the Student in the LRE, considering (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student; and, if not, (2) whether the school has mainstreamed the Student to the maximum extent appropriate. T.M., 752 F.3d 145, 161-67 [applying Newington two-prong test]; Newington, 546 F.3d 111, 119-20; N. Colonie, 586 F. Supp. 2d 74, 82; Patskin, 583 F. Supp. 2d 422, 430; see also, Oberti, 995 F.2d 1204, 1217-18; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048-50 (5th Cir. 1989). A determination regarding the first prong, (whether a student with a disability can be educated satisfactorily in a general education class with supplemental aids and services), is made through an examination of a non-exhaustive list of factors, including, but not limited to: (1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class. Newington, 546 F.3d 111, 120; N. Colonie, 586 F. Supp. 2d 74, 82; Patskin, 583 F. Supp. 2d 422, 430; Oberti, 995 F.2d 1204, 1217-18; Daniel R.R., 874 F.2d 1036, 1048-50. The Court recognized the tension that occurs at times between the objective of having the District provide an education suited to the Student’s particular needs and the objective of educating that Student with nondisabled peers as much as circumstances allow. Newington, 546 F.3d 111, 119, citing Daniel R.R., 874 F.2d 1036, 1044. The Court explained that the inquiry is individualized and fact specific, considering the nature of the Student’s condition and the school’s particular efforts to accommodate it. Newington, 546 F.3d 111, 120.
If, after examining the factors under the first prong, it is determined that the District was justified in removing the Student from the 15:1 Special Class and placing her in an ICT Class, the second prong requires consideration of whether the District has included the Student in public-school programs with nondisabled students to the maximum extent appropriate. Newington, 546 F.3d 111, 120. Congress intended that students with special needs be protected from being ostracized or isolated; therefore, the District was required to include the Student in the General Education population to the greatest extent possible. One of the factors to consider in determining if a District has met its LRE obligations is “whether the school district has made reasonable efforts to accommodate the child in a regular classroom.” Oberti, 995 F.2d 1204,
1215. The Hearing Record reflects that the Student had been enrolled in 12:1+1 Special Education classroom since at least the 2017/2018 school year, and based on the 2021 Recommended Program, the Student was mandated to continue his Special Education in a 15:1 classroom at the High School. However, subsequent to determining that the 2021 Recommended Program was not available at the High School, absent parental notice and/or consent, the District unilaterally placed the Student into a General Education class with ICT.
ICT services are defined as “specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students” in a classroom staffed ‘minimally’ by a “special education teacher and a general education teacher.” 8 NYCRR 200.6(g). Whereas, ‘specially designed instruction’ is defined as “adapting, as appropriate to the needs of an eligible student . . . the content, methodology, or delivery of instruction to address the unique needs that result from the student’s disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students.” 8 NYCRR 200.1(vv); 34 CFR 300.39(b)(3). ICT services provide for the delivery of primary instruction to all of the students attending such a setting. Continuum of Special Education Services for School-Age Students with Disabilities, at pp. 14-15, (OSEP, Nov. 2013).[57] The Supreme Court has held that in order for the District to meet its substantive obligation under the IDEA, the educational program set forth in the Student’s IEP “must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F., 137
S. Ct. 988, 1000); J.R., 2017 WL 3446783, at *22.
The Hearing Record contains documentary and testimonial evidence related to the first prong of the Newington test, which supports the District’s rationale for the Student’s placement in the ICT setting instead of the mandated 15:1 Special Class. More particularly, the Compliance Coordinator explained that it was a standard protocol of the NYC-DOE high schools to move towards a less restrictive environment, so that students with IEPs were not separated, isolated or ostracized in classrooms away from their peers. Therefore, a determination regarding whether the ICT placement was in the LRE does not need to progress to the second prong of the Newington test, given that (a) the Hearing Record demonstrates that the Student could not had been educated in a 15:1 Special Class at the High School, as it was nonexistent; and (b) the District was justified in not isolating the Student, who would be afforded the opportunity to learn in the General Education setting with appropriate support, alongside her nondisabled peers.
As discussed infra, the District was required to provide the Parents with a PWN in advance of any changes to the Student’s program or placement. E.H. v. New York City Dep’t of Educ., 164 F. Supp. 3d 539, 554 (S.D.N.Y. 2016). As evidenced, the District did not notify the Parents prior, during or subsequent to development of the 2021 IEP of an alternatively less restrictive option, which could have been reasonably constructed, undertaken or provided to the Student for the 2020/2021 school year, in lieu of the 2021 Recommended Program. However, it appears that upon realizing that the 15:1 program was not available at the High School, the District adequately pursued an alternate program for the Student, by immediately developing and implementing a plan to transition the Student to a less restrictive setting. Accordingly, upon full review and due consideration, it is this Hearing Officer’s finding that the District satisfied its burden and demonstrated that it satisfied the IDEA’s LRE mandate for the 2020/2021 school year, which did not result in a denial of the Student’s FAPE.
b. APPROPRIATENESS of SETSS-ABA PROGRAM
The Parent contends that SETSS-ABA services were appropriate for the Student, to which he was entitled to receive during the 2020/2021 and 2021/2022 school years, in accordance with the terms of the Pendency Agreement.
Under New York State Law, the Commissioner of Education may approve the provision of “special services or programs” to students with disabilities through a variety of methods, including contracts entered into by boards of education of public schools and “private non-residential schools . . . which are within the State. Educ. Law §§4401(2)(e), 4402(2)(a); 8 NYCRR 200.1(d); 8 NYCRR 200.7. It is the individualized needs of all students with disabilities in a District, which will ultimately determine which special education services shall be rendered by an approved private provider. Educ. Law §4402(2)(a). Accordingly, the Student’s placement must be individually determined based on the Student’s abilities and needs. To the extent necessary to offer the Student an appropriate educational program, his/her IEP must identify the supplementary aids and services to be provided to the Student. 20 U.S.C. §1414(d)(1)(A)(i)(IV); 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(a); 8 NYCRR 200.4(d)(2)(v) (b)(3); Piazza v. Florida Union Free Sch. Dist., 777 F. Supp. 2d 669, 673 (S.D.N.Y. 2011); Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 (N.D.N.Y. 2009) (discussing the student’s IEP which appropriately identified program modifications, accommodations, and supplementary aids and services).
i. APPLIED BEHAVIORAL ANALYSIS
The precise teaching methodology to be used by a student’s teacher is usually a matter to be left to the teacher’s discretion, absent evidence that a specific methodology is necessary. Rowley, 458 U.S. 176, 204; R.B. v. New York City Dep’t of Educ., 589 Fed. App’x 572, 575-76 (2d Cir. Oct. 29, 2014); A.S. v. New York City Dep’t of Educ., 573 Fed. App’x 63, 66 (2d Cir. July 29, 2014); K.L., 530 Fed. App’x 81, 86; R.E., 694 F.3d 167, 192-94; M.H., 685 F.3d 217, 257. As long as any methodologies referenced in a student’s IEP are “appropriate to the [Student’s] needs,” the omission of a particular methodology is not necessarily a procedural violation. R.B., 589 Fed. App’x 572, 576 (upholding an IEP when there was no evidence that the student “could not make progress with another methodology”); citing, 34 CFR 300.39(a)(3); R.E., 694 F.3d 167, 192-94. However, where the use of a specific methodology is required for the Student to receive an educational benefit, the Student’s IEP should so indicate. R.E., 694 F.3d 167, 194 (finding an IEP substantively inadequate where there was “clear consensus” that a student required a particular methodology, but where the “plan proposed in [the Student’s] IEP” offered “no guarantee” of the use of this methodology). As such, if the evaluative materials before the District recommends a particular methodology, there are no other evaluative materials before the District that suggest otherwise, and the District does not conduct any evaluations “to call into question the opinions and recommendations contained in the evaluative materials,” then, according to the Second Circuit, there is a “clear consensus” requiring that the methodology be placed on the IEP, notwithstanding the testimonial opinion of the District’s CSE member to rely on a broader approach by leaving the methodological question to the discretion of the teacher implementing the IEP. A.M., 845 F.3d 523, 544-
45. The fact that some reports or evaluative materials do not mention a specific teaching methodology does not negate “clear consensus”. R.E., 694 F.3d 167, 194.
Under certain circumstances, it might be deemed appropriate that the choice of instructional methodology should be left to the teacher’s discretion; here however, the District has not met its burden of proving that either the 2020 Recommended Program, 2021 Recommended Program, and/or 2021 Emergency Recommended Program (together, the “Recommended Programs”), did not require the inclusion of ABA instructional methodologies on the 2020 IEP, 2021 IEP, and/or 2021 Emergency IEP (together, the “2020/2021 IEP(s)”) in order for the Student to receive a FAPE. More particularly, in light of the Student’s prior years of instruction using the ABA therapies; coupled with the Parents’ insistence that the Student required a continuation of 1:1 ABA instruction; and the District’s failure to provide sufficient evaluative data in advance of developing the 2020/2021 IEPS, it was incumbent upon the District to offer persuasive evidence during the Hearing that the Student could receive educational benefit without the inclusion of ABA therapies on his IEP. Instead, the 2020 IEP noted that the Student benefits from the specialized instruction provided in a small class setting, as well as support received from his 1:1 ABA provider, which was explicitly referenced in the Management Needs’ section of the 2020 IEP, 2021 IEP and 2021 Emergency IEP.
While ABA therapies may not be the only appropriate teaching methodology to address the Student’s Autism, in the absence of any other proposed remedy recommended by the District, together with its failure to provide sufficient evaluative data that may offer alternative supports for his unique needs, the Student was entitled to receive SETSS-ABA for the 2020/2021 and 2021/2022 school years. State regulations provide that “[i]n those instances where a student has been placed in programs containing students with other disabilities, or in a regular class placement, a special education teacher with a background in teaching students with autism shall provide transitional support services in order to assure that the student’s special education needs are being met”. 8 NYCRR Part 200.13(a)(6). ‘Transitional Support Services’ are defined by State regulation as “temporary services, specified in a student’s [IEP], provided to a regular or special education teacher to aid in the provision of appropriate services to a student with a disability transferring to a regular program or to a program or service in a less restrictive environment.” 8 NYCRR 200.1(ddd). Therefore, the District(s) “are required to furnish appropriate educational programs for students with autism from the date they become eligible for a [FAPE] until they obtain a high school diploma, or until the end of the school year in which they attain their 21st birthday, whichever occurs first.” 8 NYCRR Part 200.13(c). Consequently, it is this Hearing Officer’s determination that the Hearing Record supports a finding that the Student was entitled to SETSS-ABA services during the 2020/2021 and 2021/2022 school years.
c. RELATED SERVICES
The Parent contends that the District’s failure to provide the Student with the appropriate level and frequency of related services and supports, attributed to a denial of FAPE during the 2020/2021 and 2021/2022 school years.
An IEP must include a statement of the related services recommended for a student based on such student’s specific needs. 8 NYCRR 200.6(e); 20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 CFR 300.320(a)(4). “Related services” is defined by the IDEA as “such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education” and includes SLT, PT, OT, including orientation and mobility services, PCAT, school health services, school nurse services, AT services, and other appropriate developmental or corrective support services. 20 U.S.C. § 1401(26)(A); 34 CFR 300.34(a); 8 NYCRR 200.1(qq). State regulation provides that the CSE must base its recommendations for related services as well as the frequency, duration, and location of the provision of related services on the specific needs of a student with a disability and those recommendations must be set forth on the student’s IEP. 8 NYCRR 200.6(e)(1).
The Hearing Record evinces that as early as 2017, the Student received related services; more particularly, the 2017 IEP indicates that the District recommended Group-of-3 Counseling (1x30), Group-of-3 OT (2x30), 1:1 SLT (2x30) and Group SLT (2x30) (together, the “Related Services”). Thereafter, in November 2019, the Occupational Therapist opined that OT was not required for the Student on the basis that ‘concerns do not significantly interfere with [his] function and participation in school; [and] graduation from OT is recommended as IEP goals have been met/maximum benefit achieved’. Whereas, in January 2020, the Speech Pathologist recommended that the Student continue to receive SLT, in English, to improve his communication skills and maximize his educational potential. Subsequent to which, the 2020 IEP recommended PCAT (:45/4xyr.), 1:1 SLT (1x30) and Group-of-3 SLT (2x30); and the 2021 IEP recommended PCAT (:45/4xyr.), (1:1) SLT (1x30) and Group-of-5 SLT (2x30); which was further modified by the 2021 Emergency IEP that only recommended Related Services for the Student in a Group-of-5 SLT (2x40).
As indicated supra, in addition to not providing updated and/or sufficient evaluative data subsequent to the 2019/2020 Evaluations, the District also failed to proffer any witnesses who could attest to its basis for discontinuance of certain facets of the Student’s Related Services. Further, State Regulations also specifically address students diagnosed with Autism, and require that a “[p]rovision shall be made for parent counseling and training as defined in section 200.1(kk) . . . for the purpose of enabling parents to perform appropriate follow-up intervention activities at home.” 8 NYCRR Part 200.13(d). Therefore, it is this Hearing Officer’s determination that the District’s failure to provide the Student with the appropriate level and frequency of Related Services, comprised of OT, SLT and PCAT; coupled with the District’s failure to meet its burden of demonstrating how the reduced level of Related Services could inure to sufficiently meet the Student’s unique needs, which were irrefutably required to enable him access to an appropriate education, constituted a substantive denial of FAPE.
d. IMPLEMENTATION of SERVICES
The Parents asserts that the District’s failure to fully-implement the appropriate level and frequency of SETSS-ABA and Related Services in accordance with the Pendency Agreement, attributed to a denial of FAPE during the 2020/2021 and 2021/2022 school years.
When the Parents consent to the District’s provision of special education services, pursuant to Federal and State regulations the District is obligated to provide the Student with the educational and related services, which are enumerated in the IEP. 20 U.S.C. § 1401(9)(D); 34 CFR 300.17(d); 20 U.S.C. § 1414(d); 34 CFR 300.320. However, the Courts have reasoned that the District’s failure to implement these services would constitute a denial of FAPE only if the District failed to implement substantial or significant provisions of the IEP. Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Fisher v. Stafford Township Bd. of Educ., 289 Fed. App’x 520, 524 (3d Cir. 2008); V.M. v N. Colonie Cent. School Dist., 954 F Supp. 2d 102, 118-19 (N.D.N.Y. 2013). Hence, in reviewing a perceived failure to implement claims under the IDEA, Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial or “material”. A.P. v. Woodstock Bd. of Educ., 370 Fed. App’x 202, 205 (2d Cir. 2010); Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 (9th Cir. 2007) (a material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled student and the services required by the student’s IEP); Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73, 75-76 (D.D.C. 2007) (where a student missed a ‘handful’ of speech-language therapy sessions as a result of the therapist’s absence or due to the student’s fatigue, the student nevertheless received consistent speech-language therapy in accordance with his IEP, and the district’s failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student’s program). Inarguably, the District is also obligated to provide implementation and/or funding for the Student’s last-agreed-upon pendency placement and services. T.M., 752 F.3d 145, 170-71.
The IDEA and New York State Education Law requires that the Student shall remain in his or her then current educational placement, unless the Parents and the District otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the Student. 20 U.S.C. § 1415(j); Educ. Law §§ 4404(4); 34 CFR 300.518(a); 8 NYCRR 200.5(m); Ventura de Paulino v. New York City Dep’t of Educ., 959 F.3d 519, 531 (2d Cir. 2020); T.M., 752 F.3d 145, 170-71; M.G. v. New York City Dep’t of Educ., 982 F. Supp. 2d 240, 246-47 (S.D.N.Y. 2013); Student X v. New York City Dep’t of Educ., 2008 WL 4890440, at *20 (E.D.N.Y. Oct. 30, 2008); Bd. of Educ. of Poughkeepsie City Sch. Dist. v. ‘'Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. 2005). Therefore, if the District fails to implement a pendency placement, the Student should receive the pendency services to which they were entitled as a compensatory remedy. Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015) (full reimbursement for unimplemented pendency services awarded because less than complete reimbursement for missed pendency services “would undermine the stay-put provision by giving the agency an incentive to ignore the stay-put obligation); Student X, 2008 WL 4890440, at *25, *26 (services that the district failed to implement under pendency awarded as compensatory education services where district “disregarded the ‘automatic injunction’ and ‘absolute rule in favor of the status quo’ mandated by the [IDEA] and wrongfully terminated [the student’s] at-home services”).
However, both USDOE and NYSED’s Office of Special Education have issued guidance acknowledging that the global pandemic and the resulting closure of schools resulted in “an inevitable delay” in Districts providing services to students with disabilities or engaging in the decision-making process regarding such services.[58] In addition, the USDOE noted that some local educational agencies (“LEA”) were “having difficulty consistently providing the services determined necessary to meet [each] child’s needs” and that, as a result, “some children may not have received appropriate services to allow them to make progress anticipated in their IEP goals”.[59] To address these delays and other delivery-related issues that occurred as a result of the pandemic, OSEP and NYSED’s Office of Special Education indicated that, when school resumed, the CSE should [have] convene[d] and “[made] individualized decisions about each child’s present levels of academic achievement and functional performance and determine[d] whether, and to what extent, compensatory services may be necessary to mitigate the impact of the COVID-19 pandemic on the child’s receipt of appropriate services”. [60]
In accordance with the FOFD for Case No. [Redacted], the Pendency Agreement entered into by the Parties mandated that the Student was entitled to receive Special Education and Related Services, commencing July 1, 2020 and continuing until such time as a final decision was issued or settlement reached in Case No. 195380, which included, inter alia, ten-month program of 1:1 SETSS-ABA (in-school – 31x40), 1:1 SETSS-ABA (at-home – 10x60), 1:1 OT (2x30) and 1:1 SLT (7x30); together with a two-month summer program of 1:1 SETSS-ABA (athome – 22x60). The ABA Provider’s hourly rate was set at one-hundred-fifty ($150.00) dollars.
However, notwithstanding the District’s agreement and obligation pursuant to the terms of the Pendency Agreement, the Parent contends that the District failed to provide implementation of services and/or funding for all the SETSS-ABA services during the 2020/2021 and 2021/2022 school years; and failed to provide implementation for SLT, OT and PCAT during the period between September 2020 through December 2020; in addition to, the entire 2021/2022 school year. Consequently, it is this Hearing Officer’s finding that the District’s failure to provide the mandated provisions of the Student’s Special Education and Related Services, constituted a material deviation from the Pendency Program; and therefore, deprived the Student of a FAPE, during the 2020/2021 and 2021/2022 school years. A.P., 370 Fed. App’x 202, 205; Van Duyn, 502 F.3d 811, 822. Accordingly, during its reconvene, the CSE shall also determine whether the Student’s IEP should be amended to incorporate provisions for the impact of a failure to implement any SETSS-ABA and/or Related Services due to the available methods of service delivery or whether such methods of service delivery were not appropriate to meet the Student’s needs as a result of the COVID-19 Pandemic; together with a consideration for any deficits suffered during the 2019/2020 and 2020/2021 school years, due to the Student’s loss of skill or a lack of expected progress towards annual goals. [61]
Notably, although the Pendency Agreement established a financial obligation for direct payment by the District to the ABA Provider for the SETSS-ABA services that were provided to the Student during the 2020/2021 and 2021/2022 school years; however, no documentary evidence was submitted by the Parents relating to the actual number of days and hours that the Student received SETSS-ABA from the ABA Provider. In addition, the Parents did not testify as to any specific invoices generated and/or received or the aggregate costs incurred for the SETSS-ABA services provided during the 2020/2021 and 2021/2022 school years. Consequently, as the Hearing Record is devoid of any other documentary or testimonial evidence relating to the specifics of costs or expenditures for the SETSS-ABA services, this Hearing Officer is unable to accurately compute the financial obligation incurred by the District, and resultantly is foreclosed from determining a specific amount to provide a directive to the District granting full retrospective payment to the ABA Provider. Accordingly, it is this Hearing Officer’s determination that the District is directed to provide full retrospective payment to the ABA Provider, subsequent to the District providing the Parents, within thirtyfive (35) days of this Decision, a full accounting of the SETSS-ABA (school, home, and summer) services provided to the Student during the 2021/2022 and 2020/2021 school years, in accordance with the Pendency Agreement; counterbalanced by those SETSS-ABA (school, home, and summer) services that the Student did not receive during the 2021/2022 and 2020/2021 school years. Thereafter, in accordance with the Compensatory Award (discussed infra), the District shall remit direct payment to the ABA Provider for all SETSS-ABA services that will subsequently be provided to the Student, to which he was entitled to receive under the Pendency Agreement during the 2021/2022 and 2020/2021 school years.
3. EXTENDED SCHOOL DAY (AFTER-SCHOOL) PROGRAM
The Parent contends that the District’s failure to recommend extended school day (ESD) services for the Student, constitutes a denial of FAPE.
Some students with disabilities have certain needs that require educational and related services, which exceed beyond the regular school day and/or school year. However, the Court has held that even though a student may have benefited from home-based services it does not mean that such services are necessary to receive a FAPE. R.B., 2013 WL 5438605, at *15, aff’d, 589 Fed. App’x 572 . Accordingly, an IEP does not need to include ESD services or home-based services after school if such services would only address the student’s behaviors at home or assist the student in generalizing skills or knowledge. L.K. v. New York City Dep’t of Educ., 2016 WL 899321, at *8-*10 (S.D.N.Y. Mar. 1, 2016), aff’d in part, 674 Fed. App’x 100 (2d Cir. Jan. 19, 2017); Student X, 2008 WL 4890440 at *17-*18; K.L., 2012 WL 4017822, at *7, *14; C.G. v. New York City Dep’t of Educ., 752 F. Supp. 2d 355, 360 (S.D.N.Y. 2010). In fact, several Courts have held that the IDEA does not require a District, as a matter of course, to design educational programs to address a Student’s difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the Student is otherwise likely to make progress in the classroom. L.K., 2016 WL 899321, at *8-*10; Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 (10th Cir. 2008); Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 (1st Cir. 2001); Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 (11th Cir. 2001); JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 (11th Cir 1991).
In the aforementioned cases, the Courts denied the parent’s request for home-based services, residential placement and/or reimbursement of services, on the basis that the child was making progress in the classroom but not generalizing the progress outside of school; however, the facts set forth in the instant case are inapposite. During the Hearing, the ABA Technician testified that she provided ABA services, support and instruction to the Student insch00l, at-home and within the community, since 2018; to assist the Student in relation to his deficits in academics, organization, language, independent and social skills, by reteaching and synthesizing information to aid the Student’s comprehension of his assignments and assist in his ability to follow instructions and pass his classes. Conversely, the Emergency CSE Team noted in the 2021 Emergency IEP that it was unclear to his Teachers as to how the ABA Therapist was supporting the Student ‘other than assisting with tasks much in the way a paraprofessional would’; and due to the intensive nature of the service, and the ‘lack of progress in the domains in which the ABA provider is purported to work’, there were concerns of possible interference with the Student’s programming and his development of healthy social relationships at the High School. This notwithstanding, the District failed to proffer any witnesses who could provide testimony during the Hearing, which sought to substantiate its position. Therefore, the District effectively failed to meet its burden in challenging the benefits that the Student acquired from the ABA Provider or otherwise refuting how its failure to recommend SETSS-ABA on an ESD basis in the 2020 IEP, 2021 IEP and 2021 Emergency IEP, did not amount to a denial of a FAPE for the 2020/2021 and 2021/2022 school years. Further, the Hearing Record does not reflect that the SETSS-ABA services exceeded the requirements of the IDEA, and/or was sought for the sole purpose of generalizing the Student’s skills outside of the school environment. Hence, absent such a showing, the District should not be permitted to deny the Student access to an appropriate ESD where the Student’s continuity of progress in-school was dependent on the after-school program’s ability to address his needs with SETSSABA services, which supplemented the educational program provided within the school environment. Accordingly, the Hearing Record does not reflect that the District offered the Student an appropriate educational program, which could adequately address his needs during the school day without ESD programs. Collectively, the facts support a finding that the District denied the Student a FAPE by failing to recommend and/or provide appropriate ESD services for the 2020/2021 and 2021/2022 school years.
4. EXTENDED SCHOOL YEAR (“ESY”)
The Parent asserts that the District failed to recommend an ESY of twelve (12) month educational supports and related services for the Student.
Some students with disabilities require educational and related services not only during the regular school year, but over the summer as well. The IDEA does not automatically require the provision of school services during the summer months; rather, such services must be provided when they are a necessary element of a FAPE for the Student. Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 (E.D.N.Y. 2010). As such, an IEP may provide a full twelve‐month educational program that includes regular school‐year services as well as ESY services over the summer. New York State Regulations require that students “shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression.” 8 NYCRR 200.6(k)(1); 8 NYCRR 200.1(eee). “Substantial regression” is defined as “a student’s inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year.” 8 NYCRR 200.1(aaa); 34 CFR 300.106. Therefore, if a disabled Student needs ESY services in order to prevent substantial regression, then that Student’s ESY placement should be an integral part of the twelve‐month educational program. 34 CFR 300.106(a)(1) (requiring school districts to ensure ESY services “are available as necessary to provide FAPE”); 8 NYCRR 200.6(k)(1) (describing eligibility for “12‐month special services and/or programs”). As a result, Federal and State Regulations mandate that to enable the Student to benefit from special education, the appropriate recommended related services must be provided by the District.
Students shall be considered for ESY services in accordance with their need to prevent substantial regression. 8 NYCRR 200.6(j). Here, apart from the Complaint purporting that the Student should be afforded a 12-month program, the ABA Technician opined that in order to avoid substantial regression, the Student needed to receive ABA services during the summer because he lacks the skills to retain what he previously learned throughout the school year. Upon query, the ABA Technician subsequently clarified that her basis/definition of ‘substantial regression’ was that the ‘Student needed assistance for up to one (1) week to revisit, relearn and master it by himself’. Absent the aforementioned, the Hearing Record is otherwise devoid of any documentary or testimonial evidence, and/or evaluative data indicating that there were any notable concerns raised or discussions undertaken by the Parents that provided a specific basis for the District’s consideration of the need for, and/or appropriateness of an ESY for Special Education instruction and/or Related Services, which suggested that the Student either suffered or exhibited any regression or presented with the need for 12-month services to prevent substantial regression for the 2019/2020, 2020/2021 and/or 2021/2022 school years.
Consequently, it is this Hearing Officer’s finding that while there is a clear showing that the Student requires special education instruction and related services; however, absent evidentiary information, the Hearing Record does not support a finding that either the 2020 CSE Team, 2021 CSE Team or 2021 Emergency CSE Team would have been required to add twelve-month services to the IEP(s); and therefore, there exists no basis to reach a determination that the Student was denied a FAPE, during the 2019/2020, 2020/2021 and/or 2021/2022 school years in relation to ESY. Upon reconvene of the CSE, the ESY issue may be further undertaken.
D. DENIED MEANINGFUL PARTICIPATION
The Parents contend that they were denied a meaningful opportunity to participate in the development of the Student’s IEP and his placement for the 2021/2022 school year.
It is widely held that Parents are an integral participant in the development of an IEP. The IDEA sets forth procedural safeguards that include providing parents an opportunity “to participate in meetings with respect to the identification, evaluation, and educational placement of the child.” 20 U.S.C. § 1415(b)(1). As articulated by the Supreme Court, “Parents and guardians play a significant role in the IEP process. They must be informed about and consent to evaluations of their child under the Act. § 1414(c)(3). Parents are included as members of ‘IEP Teams’ §1414(d)(1)(B). They have the right to examine any records relating to their child, and to obtain an ‘independent educational evaluation of the[ir] child.’ § 1415(b)(1). They must be given prior written notice of any changes in an IEP, § 1415(b)(3), and be notified in writing of the procedural safeguards available to them under the Act, § 1415(d)(1).” Schaffer v. Weast, 546 U.S. 49, 53 (2005).
i. PARENTAL PARTICIPATION IN DEVELOPMENT OF IEP
Parental participation at IEP meetings must be “meaningful”. Deal v. Hamilton County Board of Education, 392 F.3d 840, 853 (6th Cir. 2005). Federal and State Regulations governing parental participation require that school districts take steps to ensure that parents are present at their child’s CSE meetings or are afforded the opportunity to participate. 34 CFR 300.322; 8 NYCRR 200.5(d). Although the District must provide an opportunity for parents to participate in the development of their child’s IEP, mere parental disagreement with a school district’s proposed IEP and placement recommendation does not amount to a denial of meaningful participation. T.F. v. New York City Dep’t of Educ., 2015 WL 5610769, at *5 (S.D.N.Y. Sept. 23, 2015); E.F. v. New York City Dep’t of Educ., 2013 WL 4495676 at *17 (E.D.N.Y. Aug. 19, 2013) (stating that “as long as the parents are listened to,” the right to participate in the development of the IEP is not impeded, “even if the [District] ultimately decides not to follow the parents’ suggestions”); P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008) (“A professional disagreement is not an IDEA violation”); Sch. for Language & Commc’n Dev. v. New York State Dep’t of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. Sept. 26, 2006) (“Meaningful participation does not require deferral to parent choice”). When determining whether a District complied with the IDEA’s procedural requirements, the inquiry focuses on whether the parents “had an adequate opportunity to participate in the development” of their child’s IEP. Cerra, 427 F.3d 186, 192; E.H., 164 F. Supp. 3d 539, 552 (finding that the CSE was required to consider the parent’s point of view that the student needed to be educated in the setting he was currently attending). Notably, the IDEA can neither “guarantee that parents [] fully comprehend and appreciate to their satisfaction all of the pedagogical purposes in the IEP” (Colonial Sch. Dist. v. G.K. by and through A.K., 763
F. App’x 192, 198 (3d Cir. 2018)); nor “mandate that [their] parental preferences guide educational decisions.” M.M. v. Dist. 00001 Lancaster Cnty. Sch., 702 F.3d 479, 488 (8th Cir. 2012). However, the IDEA nonetheless “establishes various procedural safeguards that guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.” Honig, 484 U.S. 305, 311-12; Rowley, 458 U.S. 176, 205, (describing IDEA’s procedural protections as “giving parents and guardians a large measure of participation at every stage of the administrative process”).
Traditionally, the CSE is obligated to take under consideration critical information and evaluative material that would facilitate the proper development of an IEP for the Student. Here, as discussed supra, the District failed to conduct or provide funding for the IEEs, the absence of which precluded the District from undertaking a proper analysis of the Student. Consequently, the District was prevented from reaching an accurate determination regarding the Student’s academic deficits and unique needs. This failure thwarted the District’s ability to recommend an appropriate educational program or placement with sufficient specialized instruction, and/or methodologies for the Student, in relation to his (dis)abilities. In addition, the District’s failure to obtain and incorporate the evaluative data required to properly assess the Student’s unique needs, also effectively infringed upon the Parents’ ability to be involved in the development of his educational programming and placement. It is therefore this Hearing Officer’s determination that the District impeded the Parents’ opportunity to meaningfully participate in the decision-making processes relating to development of the 2021 IEP and 2021 Emergency IEP, which amounted to procedural violations of the IDEA.
ii. TRANSLATION TO NATIVE LANGUAGE
The Parents assert that failure to provide an interpreter during meetings with the District and/or translate documents submitted by the District into the Parents’ native language contributed to a denial of FAPE.
Federal and State regulations require that the District provide the Parents with certain educational documents in their native language, as well as a translator during the Hearing. More particularly, the District “must take whatever action is necessary to ensure that the parent understands the proceedings of the [CSE] meeting, including arranging for an interpreter for parents [who are hearing impaired] or whose native language is other than English.” 34 CFR 300.322(e); 8 NYCRR 200.5(d)(5). In relation to the translation of documents, the District is also required to provide parents with certain documents in their native language, including the “results of the evaluations”, consent and procedural notices, and provide a translator at all times during the impartial hearing process. 20 U.S.C. § 1415(b)(4); 20 U.S.C. § 1415(d)(2); 34 CFR 300.9(a); 34 CFR 300.503(c); 34 CFR 300.504(d); 8 NYCRR 154-1.3(b); 8 NYCRR §200.1(l)(1), 8 NYCRR §200.4(a)(9)(ii); 8 NYCRR §200.4(b)(6)(xii); 8 NYCRR §200.4(g)(2)(ii); 8 NYCRR §200.5(a)(4); 8 NYCRR §200.5 (f)(2); Educ. Law §4401-a(4).
Here, notwithstanding an Interim Order issued on December 12, 2021, by this Hearing Officer, which directed the District to transcribe the Document Production into the Parents’ native language, as So Ordered by this Hearing Officer on February 4, 2021, the Hearing Record does not evince that the District provided the Parents with copies of all the 2019/2020 Evaluations, procedural safeguards notice, PWNs and/or IEPs, in accordance therewith. Notably, although the District is required to provide the Parents with full information, in their native language, of all information relevant to activities for which consent is sought; “[t]here is no requirement in IDEA or in its accompanying regulations that all IEP documents must be translated”; however, it is well-regarded that doing so would be in keeping with the spirit of the IDEA and is one way to demonstrate that the parent has been “fully informed of the student’s educational program” Letter to Boswell, 49 IDELR 196 (OSEP 2007). Notably, the 2020 IEP and 2021 IEP were translated and subsequently provided to the Parents, prior to the Hearing.
The Hearing Record includes the Parent’s Affidavit, which attests that the Parent did not receive translation of certain documents and that an interpreter was not made available by the District during every IEP/CSE Meeting. However, during the Hearing, with the exception of discussions relating to seeking a continuation of ABA services, the Parent was unable to satisfactorily corroborate the Affidavit; more particularly, in all questions related to her attendance at the CSE Meetings and whether translators were available thereat, the Parent testified that she ‘did not recall’. As clarified by this IHO during the Hearing, although capable of engaging in some conversational English, the Parents’ native language was not English, and the Parent confirmed that she “understands [English] a little bit but cannot understand the whole conversation.” Conversely, the Compliance Coordinator credibly testified that when she telephoned the Parent in September 2021, together with a Translator on the line, to advise as to the difference between a “Special Class” and “ICT”, determine whether the Parents wanted to integrate the Student into a “General Education” classroom, and to schedule a CSE Meeting; she was assured that the Parent understood English; and although a Translator was not available at the Emergency CSE Meeting, the Compliance Coordinator opined that based on what she was told, the Parent had no difficulty expressing or understanding what was being said during the 2021 Emergency CSE Meeting. Further, an examination of the Hearing Record reveals that during the 2020 CSE Meeting and the 2021 CSE Meeting a Bilingual Interpreter was included on the attendance sheet; and in addition, an Interpreter was provided by the NYCDOE to assist the Parent during each day of her attendance at the Hearing.
Nevertheless, having failed to provide the Parents with copies of the procedural safeguard notices and PWNs, in their native language, in accordance with 20 U.S.C. § 1415(b)(3); 34 CFR 300.503; 8 NYCRR 200.5(a); together with its failure to secure an Interpreter for the Parent during the Emergency CSE Meeting, the Hearing Record supports a finding that the District’s (in)actions constitute a procedural violation of the IDEA. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii). Consequently, the District is directed to provide translation of all educational documents relating to the Student for the 2019/2020, 2020/2021 and 2021/2022 school years, as set forth in the Interim Order. However, to reach a further determination that the Student was denied a FAPE for the 2021/2022 school year, the Hearing Record would need to demonstrate that the failure to provide an Interpreter, significantly impeded the Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student (20 U.S.C. §1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii)). As discussed infra, the District’s predetermination of the 2021 Emergency IEP has already foreclosed the Parent’s meaningful participation; therefore, an additional ruling here on a different side of the rubric would constitute a pyrrhic victory at best.
iii. PREDETERMINATION
The Parents contend that the District engaged in an impermissible predetermination in development of the 2021 Emergency IEP.
Unquestionably, there is no requirement in the IDEA that the IEP name a specific school location; T.Y., 584 F.3d 412, 420; and parents generally do not have a procedural right in the specific geographical placement of their child. Luo v. Baldwin Union Free Sch. Dist., 2013 WL 1182232, at *5 (E.D.N.Y. Mar. 21, 2013), aff'd, 556 Fed. App’x. 1, 2013 WL 6726899 (2d Cir Dec. 23, 2013); J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *10 (S.D.N.Y. Feb. 20, 2013); R.E., 694 F.3d at 191-92 (district may select a specific public-school site without the advice of the parents); F.L. v. New York City Dep’t of Educ., 2012 WL 4891748, at *11 (S.D.N.Y. Oct. 16, 2012) (parents are not procedurally entitled to participate in decisions regarding public-school site selection). However, the District is required to notify the Parent of the name and location of the special education program and related services, prior to or contemporaneous with the implementation date of Student’s services. T.C., 2016 WL 1261137, at *9. As a result, State and Federal regulations mandate that the District provide parents of a student with a disability with a PWN “a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, educational placement of the student or the provision of a [FAPE] to the student.” 34 CFR 300.503(a); 8 NYCRR 200.1(oo); 8 NYCRR 200.5(a)(1). Pursuant thereto, the PWN must include a description of the action proposed or refused by the District; an explanation of why the District proposed or refused the action; a description of the other options that the CSE considered and the reasons why those options were rejected; a description of each evaluation procedure, assessment, record or report the CSE used as a basis for the proposed or refused action; and a description of the other factors relevant to the CSE’s proposal or refusal. 34 CFR 300.503(b); 8 NYCRR 200.5(a)(3).
It is well settled that the District’s consideration of possible recommendations for the Student prior to an IEP Meeting is not prohibited as long as the CSE Team understands that changes may occur at the IEP Meeting. T.P., 554 F.3d 247, 253; A.P. v. New York City Dep’t of Educ., 2015 WL 4597545 at *8- *9 (S.D.N.Y. July 30, 2015); 34 CFR 300.501(b)(1), (3); 8 NYCRR 200.5(d)(1), (2). The key factor with regard to predetermination is whether the District has “an open mind as to the content of [the Student’s] IEP.” T.P., 554 F.3d 247, 253; D.D.-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *10-*11 (E.D.N.Y. Sept. 2, 2011), aff’d 506 Fed. App’x 80 (2d Cir. Dec. 26, 2012); R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 (E.D.N.Y. 2009), aff'd, 366 Fed. App’x 239 (2d Cir. Feb. 18, 2010). Districts may “prepare reports and come with preformed opinions regarding the best course of action for the child as long as they are willing to listen to the parents, and parents have the opportunity to make objections and suggestions.” DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *18 (S.D.N.Y. Jan. 2, 2013); see also, M.M., 583 F. Supp. 2d 498, 506; B.K. v. New York City Dep’t. Of Educ., 12 F. Supp. 3d 343, 358-59 (E.D.N.Y. 2014) (holding that “active and meaningful” parent participation undermines a claim of predetermination).
The Hearing Record lends credence that the District’s decision regarding the Student’s Emergency Recommended Program was predetermined. During the 2021 CSE Meeting, the District admittedly failed to verify that due to NYC-DOE standard protocols, the High School was incapable of implementing the entire 2021 Recommended Program; specifically, the 15:1 Special Class. Thereafter, the Compliance Coordinator placed the Student into the ICT Class at the beginning of the school year in September 2021, without prior written notification to the Parents; then telephoned the Parent in September 2021 to advise as to the difference between a “Special Class”, “ICT Class”, and determine whether the Parents wanted to integrate the Student into a “General Education” classroom. The Compliance Coordinator then sought to convene the 2021 Emergency CSE Meeting six (6) weeks later on October 27, 2021, to update the Student’s IEP and advise the Parents of the amendment to the 2021 Recommended Program. As such, it appears that the District made a predetermination as to the Student’s program in advance of meeting with the Parents. Resultantly, the Parents’ lack of information that the 2021 Recommended Program could not be implemented at the 2021 Recommended Placement, constrained the Parents’ ability to determine ‘how’ the Student would or could have received the recommended Special Education services for the 2020/2021 school year. It is wellsettled that procedural inadequacies that “seriously infringe the parents’ opportunity to participate in the IEP formulation process . . . clearly result in a denial of FAPE”; particularly whereas demonstrated here, the Parents are “accorded no more than after-the-fact, pro-forma participation in crafting [the] IEP.” R.L. v. Miami-Dade Cnty Sch. Bd., 757 F. 3d 1173, 1189 (11th Cir. 2014); citing, W.G. v. Bd. of Target Range Sch. Dist., 960 F.2d 1479, 1484 (9th Cir.1992).
Consequently, where the Hearing Record clearly evinces that the District did not possess the requisite “open mind” with respect to the Student’s programs and/or placement for the 2021/2022 school year; it is, therefore this Hearing Officer’s determination that the District effectively infringed upon the Parents’ ability to be involved in the Student’s educational programming, whilst impeding the Parents’ opportunity to meaningfully participate in the decision-making processes relating to the development of the Student’s IEP, which resulted in a procedural violation. F.B. v. New York City Dep’t of Educ., 2015 WL 5564446, at *11-*18 (S.D.N.Y. Sept. 21, 2015); V.S. v. New York City Dep’t of Educ., 25 F. Supp. 3d 295, 299-301 (E.D.N.Y. 2014); C.U. v. N.Y. City Dep’t of Educ., 23 F.Supp.3d 210, 295, 2014 WL 2207997, at *14-*16 (S.D.N.Y. 2014). Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not. Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005); R.E., 694 F.3d 167, 175. Consequently, this violation, together with other violations (discussed supra), has cumulatively resulted in a substantive denial of the Student’s FAPE for the 2021/2022 school year.
E. RECONVENE CSE
When a student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local CSE that includes, but is not limited to, Parents, Teachers, a School Psychologist, and a District Representative. Educ. Law § 4402; 20 U.S.C. §1414(d)(1)(A)-(B); 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4(d)(2). In addition to the CSE’s general obligation to review the IEP of the Student with a disability at least annually, Federal and State Regulations require the CSE to revise the Student’s IEP as necessary to address “[i]nformation about the child provided to, or by, the parents” during the course of a reevaluation of the Student. 34 CFR 300.324(b)(1)(ii)(C); 8 NYCRR 200.4(f)(2)(ii). Further, either an IEE or a private evaluation obtained at private expense “[m]ust be considered by the school district, if it meets the school district’s criteria, in any decision made with respect to the provision of a (FAPE) for the student.” 8 NYCRR 200.5(g)(1)(vi)(a); 34 CFR 300.502(c)(1). State Regulations also provide that, if the Parent believes that the Student’s placement is no longer appropriate, they “may refer the student to the [CSE] for review.” 8 NYCRR 200.4(e)(4).
Accordingly, unless the Parties mutually agree otherwise, the CSE shall reconvene within thirty (30) days from the date of this Decision, at a time and location convenient to the Parent, District and ABA-Provider, to conduct a review and develop an amended IEP, which (i) addresses the Student’s unique needs; (ii) fully considers all evaluative data, opinions and recommendations obtained from the Parent and District, inclusive of the IEEs; (iii) fully considers any additional (re)evaluations/assessments conducted or deemed necessary by the District or Parent; (iv) incorporates meaningful and measurable goals, including benchmarks and short-term objectives, to address the Student’s unique needs and challenges; (v) determines whether an ESD and/or 12-month ESY program is appropriate; and (vi) provides the Student with an educational placement, program and related services, which integrates into the amended IEP the requisite level and frequency of the following Special Education and Related Services for the Student: SETSS-ABA (in-school, at-home); 1:1 OT; 1:1 SLT; academic tutoring, and PCAT (with appropriate translation); all of which is to be delivered by dulycredentialed providers of the Parent’s choosing, and fully-funded by the District at market rate.
F. BURDEN OF PROOF
As a matter of general jurisprudence, the party with the burden of proof has the duty and obligation to prove or disprove a disputed fact; and under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief. Schaffer, 546 U.S. 49, 59-62 (finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not). However, under New York State law, during an impartial hearing, the burden of proof has been placed on the school district, who bears the burden of proof, production and persuasion; except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law §4404(1)(c); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014); C.F.,746 F.3d 68, 76; R.E., 694 F.3d 167, 184-85. More particularly, to determine whether the Parent is entitled to reimbursement of expenses incurred for the unilateral placement of a disabled child in an IDEA challenge to an [IEP], this Hearing Officer is guided by the three-step Burlington/Carter test: (1) first the District must establish that the placement and services offered by the [IEP] were neither inadequate, inappropriate nor denied the Student a FAPE; however, if the District fails to meet that burden, then the Parent is entitled to tuition reimbursement if (2) they establish that the Student’s unilateral placement was appropriate; and (3) that equitable considerations support the Parent’s claim. Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985).
The District is required under the due process procedures set forth by New York State law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record. The District was tasked with establishing sufficient facts and introducing proper evidence to demonstrate that its (in)actions based on the Student’s educational needs, were appropriate. In order to meet its burden, the District was tasked to show (a) that it complied with the procedural requirements set forth in the IDEA; and (b) that the IEPs developed for the Student were reasonably calculated to confer educational benefits. Rowley, 458 U.S. 176, 206-07; M.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir. 2000), cert. denied, 532 U.S. 942 (2001). Here however, the Hearing Record is devoid of any persuasive testimonial or documentary evidence presented by the District, which (i) explains why the District failed to fully implement the Student’s Special Education and Related Services in accordance with the Pendency Agreement; or (ii) sufficiently negates facts established in the Hearing Record or otherwise refutes the relief sought. Accordingly, as demonstrated by the findings of fact and conclusions stated herein, it is this Hearing Officer’s determination, as set forth and discussed supra, that the District procedurally and substantively denied the Student a FAPE for the 2019/2020, 2020/2021 and 2021/2022 school years.
G. RELIEF - COMPENSATORY
The Parent contends that the District should fund the cost of compensatory education and related services for the Student.
Pursuant to the IDEA, the due process complaint must provide a “proposed resolution of the problem to the extent known and available to the party at the time”. 20 U.S.C. §1415(b)(7)(A)(ii)(IV); 34 CFR 300.508(b)(6); 8 NYCRR 200.5(i)(1)(v). Here, the Complaint included a request for compensatory education as a form of relief. Specifically, the Parent sought compensatory instructional support and related services to be provided in the form of SETSS-ABA, OT, SLT and PCAT, as a remedy for the District’s failure to offer the Student an appropriate program of special education and related services and/or implement the Pendency Agreement, during the 2019/2020, 2020/2021 and/or 2021/2022 school years.
As demonstrated supra, the District substantively and procedurally denied the Student a FAPE. Based on the above findings and determinations, it is necessary to examine what compensatory relief, if any, is appropriate to remedy the denial of a FAPE arising out of the District’s failure to provide educational benefits and services to the Student, during the SYs. Notably, the “purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education.” C.W. v Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 828 (3d Cir. 2010). However, in those circumstances, similar to the one at bar, where the Petitioner “has established that [she] is entitled to an award, simply refusing to grant one clashes with Reid, which sought to eliminate ‘cookie-cutter’ awards in favor of a ‘qualitative focus on individual needs’ of disabled students.” Stanton v. Dist. of Columbia, 680 F Supp 2d 201, 207 (D.D.C. 2010), quoting Reid, 401 F.3d 516, 524, 527; see, Lee v. Dist. of Columbia, 2017 WL 44288, at *1 (D.D.C. 2017). Additionally, while there is no obligation, and it might not be appropriate to craft an hour for hour remedy, an “award constructed with the aid of a formula is not per se invalid.” Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt, 532 F. Supp. 2d 121, 124 (D.D.C. 2008). Again, the inquiry is whether the “formula-based award … represents an individually tailored approach to meet the student’s unique needs, as opposed to a backwards-looking calculation of educational units denied to a student.” Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 136 (D.D.C. 2008) (although the hearing officer awarded the exact number of service hours that the LEA had denied, the hearing officer nonetheless conducted a fact-specific inquiry and tailored the award to the student’s individual needs by taking into account the results of an assessment and the recommendations of a tutoring center).
“[T]he ultimate 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 516, 524. “Compensatory education is prospective equitable relief, requiring a school district to fund education beyond the expiration of a child’s eligibility as a remedy for any earlier deprivations in the child’s education.” Somoza, 538 F.3d 106, 109 n. 2; Newington, 546 F.3d 111, 123. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). An award of compensatory education must be calculated to place the Student in the same position he/she would have occupied if the District had offered him a FAPE. M.M. v. New York City Dep’t of Educ., 2017 WL 1194685, at *8 (S.D.N.Y. Mar. 30, 2017). Here the Parent contends that the Student is entitled to a compensatory academic remediation, which if awarded would provide additional educational and related services that should aim to place the Student in the position, he would have been in had the District complied with its obligations under the IDEA. Newington, 546 F.3d 111, 123 (compensatory education awards should be designed so as to “appropriately address the problems with the IEP”); see also, Draper, 518 F.3d 1275, 1289 (“[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act”); Reid, 401 F.3d 516, 518 (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”). Compensatory education relief may be awarded to a Student with a disability who remains eligible for instruction under the IDEA. 20 U.S.C. §§1401(3), 1412(a)(1)(B); Educ. Law §§3202(1), 4401(1), 4402(5). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a Local or Regents High School Diploma. 34 CFR 300.102(a)(3)(i); 8 NYCRR 100.5(b)(7)(iii). 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. Newington, 546 F.3d 111, 123 (“[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]”); Student X, 2008 WL 4890440, at *23 (compensatory education may be awarded to students under the age of twenty-one); R.C. v. Bd. of Educ., 2008 WL 9731053, at *12-*13 (S.D.N.Y. 2008), adopted, 2008 WL 9731174 (S.D.N.Y. 2008). The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE. E. Lyme, 790 F.3d 440, 456; E.M., 758 F.3d 442, 451; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994) (“[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA” … and “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation). Nevertheless, the IHO is not required to merely adopt the relief proposed by the parent.
Here, the Parents seek via a bank of compensatory hours, a “make up” for those SETSSABA and Related Services mandated in the Pendency Agreement, but not received by the Student during the 2020/2021 and 20021/2022 school years. Notwithstanding the absence of any documentary or testimonial evidence from the Parties, which provides specificity as to the actual number of hours that the Student was deprived of his mandated Special Education and Related Services; it has been held that a request for compensatory education “should be denied when the deficiencies suffered have already been mitigated” or partially mitigated. N. Kingston Sch. Comm. v. Justine R., 2014 WL 8108411, at *9 (D.R.I. Jun. 27, 2014), adopted at, 2015 WL 1137588 (D.R.I. Mar. 12, 2015); Phillips v. Dist. of Columbia, 932 F. Supp. 2d 42, 50 & n.4 (D.D.C. 2013). Some Courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement for the costs of a unilateral placement is also sought for the same time period. D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 (3rd Cir. 2012) (“[b]ecause compensatory education is at issue only when tuition reimbursement is not, it is implicated only where parents could not afford to ’front’ the costs of a child’s education”); P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 739 (3rd Cir. 2009) (“compensatory education is not an available remedy when a student has been unilaterally enrolled in private school”). While other Courts have squarely ruled that the student was entitled to compensatory education for services the student received at the nonpublic school. I.T. v. Dep’t of Educ., State of Hawaii, 2013 WL 6665459, at *7-*8 (D. Haw. Dec. 17, 2013). Whereas the Second Circuit reasoned that compensatory education should be treated as an available equitable remedy that serves to effectuate the purposes of the IDEA and put a student in the same position s/he would have been in had the denial of a FAPE not occurred; thereby holding that “[t]he right to compensatory education arises not from the denial of an appropriate IEP, but from the denial of appropriate education.” E. Lyme, 790 F.3d 440, 456-57.
Accordingly, the right to compensatory education accrues from the point that FAPE was denied, subject to the statute of limitations. 20 U.S.C. § 1415(f)(3)(C); 20 U.S.C. § 1415(b)(6)(B). Compensatory education can be awarded to whatever extent is necessary to make up for the denial of FAPE and it is not necessarily limited to the two-year limitations period. G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3d Cir. 2015). “Compensatory education involves discretionary, prospective, injunctive relief crafted by a Court to remedy what might be termed an educational deficit created by an educational agency’s failure over a given period of time to provide a FAPE to a student”. Reid, 401 F.3d 516, 523; quoting G. ex rel. RG v. Fort Bragg Dependent Schools., 343 F.3d 295, 309 (4th Cir. 2003); Brown v. District of Columbia, 568 F. Supp. 2d 44, (D.D.C. 2008). However, one must consider the Student’s tolerance for services before calculating a compensatory award. As the Courts have determined that a compensatory award ordered so blindly could ultimately do more harm than good for a student. Common sense and experience teaches that services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts, may become close to useless, or even burdensome, if provided in overwhelming quantity.” M.M., 2017 WL 1194685, at *8. Further, see M.T. v. Arlington Cent. Sch. Dist., 2022 WL 16857176, at *9 n.12 (S.D.N.Y. Nov. 10, 2022) (noting that compensatory services should be considered “in addition to, rather than in lieu of, those services covered by the IEP”); quoting E. Lyme, 2020 WL 7078727, at *18. a. COMPENSATORY EDUCATION While an IEP must provide some educational benefit going forward (Rowley, 458 U.S. 176, 207); conversely, compensatory education must compensate for the prior FAPE denials and must “yield tangible results.” Reid, 401 F.3d 516, 525; D.W. v. District of Columbia, 561 F. Supp. 2d 56, 61 (D.D.C. 2008). A presently appropriate educational program does not abate the need for compensatory education. D.W., 561 F. Supp. 2d 56, 61; citing Flores ex rel. J.F. v. District of Columbia, 437 F. Supp. 2d 22 (D.D.C. 2006) (holding that even though the LEA had placed the student in an appropriate school and revised the IEP, the student may still be entitled to an award of compensatory education). Under the quantitative approach, the length of time of the compensatory education award commonly equals the period of denial of services or the length of the inappropriate placement. M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996); Manchester Sch. Dist. v. Christopher B., 807, F. Supp. 860 (D.N.H. 1992). Compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued.” Reid, 401 F.3d 516, 524. “This standard ‘carries a qualitative rather than quantitative focus,’ and must be applied with ‘[f]lexibity rather than rigidity.’” Mary McLeod, 555 F. Supp. 2d 130, 135; quoting Reid, 401 F.3d 516, 524. In crafting the remedy, the adjudicator is charged with the responsibility of engaging in “a fact intensive analysis that includes individualized assessments of the student so that the ultimate award is tailored to the student’s unique needs.” Mary McLeod, 555 F. Supp. 2d 130, 135; citing Reid, 401 F.3d 516, 524. For some students, the compensatory education services can be short, and others may require extended programs, perhaps even exceeding hour-for-hour replacement of time spent without FAPE. Mary McLeod, 555 F. Supp. 2d 130, 135. In some cases, “a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student’s] educational problems successfully”). Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007). Traditionally, compensatory services were not designed to maximize a student’s potential or to guarantee that the student achieved a particular grade-level in the student’s areas of need. Rowley, 458 U.S. 176, 189, 199; Grim, 346 F.3d 377, 379; Walczak, 142 F.3d 119, 132. Instead, an award of compensatory education should place the student in the position that she/he would have been in had the district acted properly. Parents of Student W., 31 F.3d 1489, 1497 (finding that “[t]here is no obligation to provide a day-for-day compensation for time missed). However, an IHO generally has broad authority to fashion appropriate equitable relief. Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 (S.D.N.Y. 2011); Forest Grove, 557 U.S. 230, 239.
Here, the Hearing Record evinces that based on his classification as child with Autism, the Student was deemed eligible to receive special education services and supports during the 2019/2020, 2020/2021 and 2021/2022 school years; however, the District failed to, inter alia, comprehensively evaluate the Student; develop appropriate IEPs; and/or offer appropriate Special Education programs and Related Services, which addressed the Student’s unique needs and challenges during the period between the 2019/2020, 2020/2021 and 2021/2022 school years. Therefore, as determined supra, the Student was denied a FAPE, and as such the Student is entitled to a compensatory award, the calculated totals of which the District has failed to rebut or otherwise counter. Consequently, having examined the Hearing Record to determine what type of educational and related services that the District failed to offer the Student during the 2019/2020, 2020/2021 and 2021/2022 school years; what services the Student actually received; what proposed quantitative and/or qualitative remedy might enable the Student to make the progress he should have made, had appropriate services been provided; and given that there are no equitable factors that would militate against an award in favor of the Parent, to address the deficits resulting from the denial of FAPE, it is this Hearing Officer’s determination that the Student is entitled to an award of compensatory education and related services.
b. COMPENSATORY SETSS-ABA
The Hearing Record supports a basis for the Student to receive a compensatory education award for SETSS-ABA (hereinafter, “Compensatory SETSS-ABA”); however, as indicated supra, no documentary evidence was submitted by the Parents relating to the actual number of days and hours that the Student received SETSS-ABA from the ABA Provider; in addition, the Parents did not testify as to any specific invoices generated and/or received or the aggregate costs incurred for the SETSS-ABA services provided during the 2020/2021 and 2021/2022 school years. Consequently, as the Hearing Record is devoid of any other documentary or testimonial evidence relating to the specifics of provisions or costs for the SETSS-ABA services, this Hearing Officer is neither able to accurately compute the total of SETSS-ABA provided to the Student nor the financial obligation incurred by the District. Resultantly this Hearing Officer is foreclosed from issuing a directive to the District for a specific amount related to the 2020/2021 and 2021/2022 school years, for either the (i) outstanding hours required to “make-up” for the SETSS-ABA services due the Student and/or (ii) retrospective payment due to the ABA Provider for the SETSS-ABA services that were provided to the Student but not yet remunerated by the District.
Accordingly, it is this Hearing Officer’s determination that the District is directed to provide to the Parents, within thirty-five (35) days of this Decision, a full accounting of the SETSS-ABA (school, home, and summer) services provided to the Student during the 2021/2022 and 2020/2021 school years, in accordance with the Pendency Agreement; counterbalanced by those SETSS-ABA (school, home, and summer) services that the Student did not receive during the 2021/2022 and 2020/2021 school years (hereinafter, the “Calculated SETSS-ABA”). Based thereon, the District is thereafter directed to provide full retrospective payment to the ABA Provider, for any amounts due and outstanding in accordance with the Pendency Agreement for SETSS-ABA services that were provided to the Student during the 2021/2022 and 2020/2021 school years, but not yet remunerated by the District.
It is this Hearing Officer’s further determination that the Student is entitled to an unexpired bank of Compensatory SETSS-ABA, which is an approximate quantitative and qualitative recompense for the educational instruction that was not provided to the Student (in-school, at-home and during the summer) in accordance with the Pendency Agreement during the 2020/2021 and 2021/2022 school years. The total hours of Compensatory SETSSABA shall be based on the Calculated SETSS-ABA and provided by a duly-credentialed provider of the Parent’s choosing; fully-funded by the District at an amount not to exceed the hourly market rate; and the location, amount, type, use, frequency and implementation of the Compensatory SETSS-ABA shall be scheduled according to the Parents and Student’s convenience. The bank of Compensatory SETSS-ABA shall remain available for the Student’s use until it becomes fully exhausted.
It is this Hearing Officer’s further determination that in accordance therewith, the District shall remit direct payment to the ABA Provider for all Compensatory SETSS-ABA services that will subsequently be provided to the Student, to which he was entitled to receive under the Pendency Agreement during the 2021/2022 and 2020/2021 school years.
c. COMPENSATORY SLT
The Hearing Record supports a basis for the Student to receive a compensatory related services award for SLT (hereinafter, “Compensatory SLT”); however, as indicated supra, no documentary evidence was submitted by the Parents relating to the actual number of days and hours that the Student received SLT, during the 2020/2021 and 2021/2022 school years. Consequently, as the Hearing Record is devoid of any other documentary or testimonial evidence relating to the specifics of provisions for the SLT services, this Hearing Officer is not able to accurately compute the total of SLT services provided to the Student. Resultantly this Hearing Officer is foreclosed from issuing a directive to the District for a specific amount related to the 2020/2021 and 2021/2022 school years, for the outstanding hours required to “make-up” for the SLT services due the Student.
Accordingly, it is this Hearing Officer’s determination that the District is directed to provide to the Parents, within thirty-five (35) days of this Decision, a full accounting of the SLT services provided to the Student during the 2021/2022 and 2020/2021 school years, in accordance with the Pendency Agreement; counterbalanced by those SLT services that the Student did not receive during the 2021/2022 and 2020/2021 school years (hereinafter, the “Calculated SLT”).
It is this Hearing Officer’s further determination that the Student is entitled to an unexpired bank of Compensatory SLT, which is an approximate quantitative and qualitative recompense for the SLT services that were not provided to the Student in accordance with the Pendency Agreement during the 2020/2021 and 2021/2022 school years. The total hours of Compensatory SLT services shall be based on the Calculated SLT and provided by either the District or a duly-credentialed provider of the Parent’s choosing; fully-funded by the District at an amount not to exceed the hourly market rate; and the location, amount, type, use, frequency and implementation of the Compensatory SLT shall be scheduled according to the Parent’s and Student’s convenience. The bank of Compensatory SLT shall remain available for the Student’s use until it becomes fully exhausted.
d. COMPENSATORY OT
The Hearing Record supports a basis for the Student to receive a compensatory related services award for OT (hereinafter, “Compensatory OT”); however, as indicated supra, no documentary evidence was submitted by the Parents relating to the actual number of days and hours that the Student received OT, during the 2020/2021 and 2021/2022 school years. Consequently, as the Hearing Record is devoid of any other documentary or testimonial evidence relating to the specifics of provisions for the OT services, this Hearing Officer is not able to accurately compute the total of OT services provided to the Student. Resultantly this Hearing Officer is foreclosed from issuing a directive to the District for a specific amount related to the 2020/2021 and 2021/2022 school years, for the outstanding hours required to “make-up” for the OT services due the Student.
Accordingly, it is this Hearing Officer’s determination that the District is directed to provide to the Parents, within thirty-five (35) days of this Decision, a full accounting of the OT services provided to the Student during the 2021/2022 and 2020/2021 school years, in accordance with the Pendency Agreement; counterbalanced by those OT services that the Student did not receive during the 2021/2022 and 2020/2021 school years (hereinafter, the “Calculated OT”).
It is this Hearing Officer’s further determination that the Student is entitled to an unexpired bank of Compensatory OT, which is an approximate quantitative and qualitative recompense for the OT services that were not provided to the Student in accordance with the Pendency Agreement during the 2020/2021 and 2021/2022 school years. The total hours of Compensatory OT services shall be based on the Calculated OT and provided by either the District or a duly-credentialed provider of the Parent’s choosing; fully-funded by the District at an amount not to exceed the hourly market rate; and the location, amount, type, use, frequency and implementation of the Compensatory OT shall be scheduled according to the Parent’s and Student’s convenience. The bank of Compensatory OT shall remain available for the Student’s use until it becomes fully exhausted.
e. COMPENSATORY PCAT
As discussed more fully supra, the District was statutorily obligated to provide PCAT to the Parents of a student with Autism. The Hearing Record dictates that the 2020 IEP and 2021 IEP each recommended (PCAT) (:45/4xyr.); however, the 2021 Emergency IEP failed to recommend PCAT for the 2021/2022 school year. Accordingly, it is the Hearing Officer’s determination that Student is entitled to an approximate quantitative and qualitative recompense for the PCAT services that were not sufficiently provided to the Parents during the 2021/2022 school year; therefore, the District is hereby directed to fund an unexpired bank of eight (8) hours of PCAT compensatory services (the “Compensatory PCAT”), to provide the Parents with assistance in acquiring the skills to understand the Student’s needs in relation to his Autism; together with funding for eight (8) hours of PCAT translation services. The Compensatory PCAT shall be provided by a duly-credentialed provider of the Parents’ choosing; fully-funded by the District at an amount not to exceed the hourly market rate; and the location, amount, type, use, frequency and implementation of the Compensatory PCAT shall be scheduled according to the Parents’ and Student’s convenience. The bank of Compensatory PCAT shall remain available for use until it becomes fully exhausted.
H. RELIEF SOUGHT FOR ADDITIONAL CLAIMS
As a matter of general jurisprudence, the party with the burden of proof has the duty and obligation to prove or disprove a disputed fact; however, as stated supra, in New York the District bears the burden of proof, production and persuasion. Here, in electing not to present appropriate documentary or testimonial evidence sufficient to refute certain allegations raised in the Complaint, the District failed to satisfactorily meet its burden in demonstrating that a FAPE was offered to the Student during the 2019/2020, 2020/2021 and 2021/2022 school years. In response thereto, the Parents assert that they should prevail based on the District’s lack of evidence in the Hearing Record, which can only be viewed as the Parents’ request for a default judgment. However, an impartial hearing officer is not automatically required to order any and all relief requested by the Parents, as it has been held that an outright default judgment awarding compensatory education or any relief requested, without question, is a disfavored outcome even in those instances where the District’s conduct in denying the Student a FAPE and in failing to actively participate in the impartial hearing process is, viewed by some, as egregious. Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005); G.M. v. Dry Creek Joint Elementary Sch. Dist., 595 F. App’x 698, 699 (9th Cir. 2014); Jalloh v. Dist. of Columbia, 535 F. Supp. 2d 13, 19-20 (D.D.C. 2008); Sykes v. Dist. of Columbia, 518 F. Supp. 2d 261, 267 (D.D.C. 2007).
As such, notwithstanding whether the relief sought relates to an alleged denial of FAPE, tuition funding or a compensatory award, the IDEA requires each IHO to make a determination on substantive grounds based on the contents of the hearing record. Accordingly, this Hearing Officer can neither render a declaratory nor default judgement on the basis of insufficient factual evidence in the Hearing Record. More particularly, an IHO is not vested with “the inherent power to make up remedies out of whole cloth”. S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 n.9 (D.R.I. Jan. 14, 2014), aff’d, 773 F.3d 344 (1st Cir. 2014). State regulations provide in relevant part that “[t]he decision of the [IHO] shall set forth the reasons and the factual basis for the determination. The decision shall reference the hearing record to support the findings of fact” 8 NYCRR 200.5(j)(5)(v). Additionally noting that neither IHOs nor State Review Officers (“SROs”) have authority to enforce prior decisions rendered by administrative hearing officers, much less to enforce decisions of the courts. Educ. Law §§ 440([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) (specifically, IHOs do not retain jurisdiction to enforce their orders and that a party who receives a favorable administrative determination may enforce it in court); A.T. v. New York State Educ. Dep’t, 1998 WL 765371, at *7, *9-*10 & n.16 (E.D.N.Y. Aug. 4, 1998). Further, the scope of the Hearing must be strictly limited to the issues asserted within the four corners of the Complaint. 8 N.Y.C.R.R. § 200.5 (j)(l)(ii); 20 U.S.C. § 1415(F)(3)(b); B.P., 841 F. Supp. 2d 605, 611; 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). In addition to which, the Courts have traditionally distinguished between systemic violations that should be addressed by the Federal Courts, as opposed to “technical questions of how to define and treat individual students’ learning disabilities, which are best addressed by administrators”. Levine v. Greece Cent. Sch. Dist., 2009 WL 261470, at *9 (W.D.N.Y. 2009), aff'd, 353 Fed. App’x 461 (2d Cir. Nov. 12, 2009); Dean v. Sch. Dist. of City of Niagara Falls, 615 F. Supp. 2d 63, 70 (W.D.N.Y. 2009).
Here, certain issues for adjudication were provided in advance of the Hearing; set forth during the Parents’ opening statement; addressed by the witnesses during the Hearing; delineated in the Parents’ Closing Brief; and now decided herein by this Hearing Officer. Remaining however, are a myriad of bare allegations and ‘systemic violation’ claims presented in the Complaint and/or raised for the first time in the Parents’ Closing Brief, which do not have adequate factual evidence in the Hearing Record that would fully satisfy the factual basis required to render a determination and/or otherwise support a finding that the Student was either denied a FAPE or his rights violated, as a result of the District’s alleged failure to ‘address, adopt, conduct, consider, describe, implement, individualize, offer, possess, provide and/or recommend’ many of the Parents’ enumerated claims. Consequently, due to the absence of sufficient testimonial or documentary evidence supported by the Hearing Record in relation to the aforementioned issues/claims, further consideration by this Hearing Officer cannot be undertaken; and accordingly, the Parents’ request for relief of each remaining issue or claim, which has not been specifically addressed herein, must be Denied.
ORDER
WHEREFORE IT APPEARING that the Hearing Record adequately demonstrates that after full consideration of the testimonial and documentary evidence presented, together with the applicable Federal and State Regulations, and the Conclusions of Law, this Hearing Officer has determined inter alia, that during the 2019/2020, 2020/2021 and/or 2021/2022 school years, the (i) District failed to develop an appropriate IEP; (ii) District failed to consider sufficient evaluative data in advance of developing the IEP(s); (iii) District failed to provide accessible information in the Parents’ native language; (iv) District failed to recommend an appropriate program; (v) District failed to implement the mandated special education and related services; (vi) District denied Parents’ meaningful opportunity to participate; (vi) District failed to meet its statutory burden of proof, production and persuasion relating to the alleged denial of FAPE; and (viii) equitable considerations favor a compensatory award.
IT IS HEREBY ORDERED that the District’s cumulative procedural and substantive violations under the IDEA, denied the Student a FAPE during the 2019/2020, 2020/2021 and/or 2021/2022 school years; and IT IS HEREBY FURTHER ORDERED that the Parents shall, within forty-five (45) days of this Decision, schedule an appointment for a Neuropsychological Evaluation; Occupational Therapy Evaluation; and an Autism/Classroom Observation, each to be conducted within ninety (90) days of this Decision by properly-credentialed provider(s) of the Parents’ choosing (“IEE Provider(s)”) at reasonable market rates for the NYC-area; and IT IS HEREBY FURTHER ORDERED that the District shall, within thirty (30) days of presentment of invoice(s) by the Parents or the IEE Provider(s), fund the full cost of each of the IEEs, with payment to be remitted directly to the IEE Providers. Further, upon completion of the IEEs, the CSE shall reconvene to consider the results of the evaluations, findings and opinions to make appropriate recommendations in an amended IEP based on the evaluative data and information provided therein; and IT IS HEREBY FURTHER ORDERED that unless the Parties mutually agree otherwise, the CSE shall reconvene within thirty (30) days from the date of this Decision, at a time and location convenient to the Parents, District and ABA-Provider, to conduct a review and develop an amended IEP, which (i) addresses the Student’s unique needs; (ii) fully considers all evaluative data, opinions and recommendations obtained from the Parents and District, inclusive of the IEEs; (iii) fully considers any additional (re)evaluations/assessments conducted or deemed necessary by the District or Parents; (iv) incorporates meaningful and measurable goals, including benchmarks and short-term objectives, to address the Student’s unique needs and challenges; (v) determines whether an ESD and/or 12-month ESY program is appropriate; and (vi) provides the Student with an educational placement, program and related services, which integrates into the amended IEP the requisite level and frequency of the following Special Education and Related Services for the Student: SETSS-ABA (in-school, athome); 1:1 OT; 1:1 SLT; academic tutoring, and PCAT (with appropriate translation); all of which is to be delivered by duly-credentialed providers of the Parents’ choosing, and fullyfunded by the District at market rate; and IT IS HEREBY FURTHER ORDERED that the District shall provide the Parents with a translation of all educational documents relating to the Student for the 2019/2020, 2020/2021 and 2021/2022 school years, as set forth in the Interim Order; and IT IS HEREBY FURTHER ORDERED that the District is directed to provide to the Parents, within thirty-five (35) days of this Decision, a full accounting of the SETSS-ABA (school, home, and summer) services provided to the Student during the 2021/2022 and 2020/2021 school years, in accordance with the Pendency Agreement; counterbalanced by those SETSS-ABA (school, home, and summer) services that the Student did not receive during the 2021/2022 and 2020/2021 school years, defined as Calculated SETSS-ABA; and IT IS HEREBY FURTHER ORDERED that based on the Calculated SETSS-ABA, the District is thereafter directed to provide full retrospective payment to the ABA Provider, for any amounts due and outstanding in accordance with the Pendency Agreement for SETSS-ABA services that were provided to the Student during the 2021/2022 and 2020/2021 school years, but not yet remunerated by the District; and IT IS HEREBY FURTHER ORDERED that the Student is entitled to an unexpired bank of Compensatory SETSS-ABA, which is an approximate quantitative and qualitative recompense for the educational instruction that was not provided to the Student (in-school, athome and during the summer) in accordance with the Pendency Agreement during the 2020/2021 and 2021/2022 school years. The total hours of Compensatory SETSS-ABA shall be based on the Calculated SETSS-ABA and provided by a duly-credentialed provider of the Parents’ choosing; fully-funded by the District at an amount not to exceed the hourly market rate; and the location, amount, type, use, frequency and implementation of the Compensatory SETSS-ABA shall be scheduled according to the Parents’ and Student’s convenience. The bank of Compensatory SETSS-ABA shall remain available for the Student’s use until it becomes fully exhausted; and IT IS HEREBY FURTHER ORDERED that the District shall remit direct payment to the ABA Provider for all Compensatory SETSS-ABA services that will subsequently be provided to the Student, to which he was entitled to receive under the Pendency Agreement during the 2021/2022 and 2020/2021 school years; and IT IS HEREBY FURTHER ORDERED that the District is directed to provide to the Parents, within thirty-five (35) days of this Decision, a full accounting of the SLT services provided to the Student during the 2021/2022 and 2020/2021 school years, in accordance with the Pendency Agreement; counterbalanced by those SLT services that the Student did not receive during the 2021/2022 and 2020/2021 school years, defined as the Calculated SLT; and
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IT IS HEREBY FURTHER ORDERED that that the Student is entitled to an unexpired bank of Compensatory SLT, which is an approximate quantitative and qualitative recompense for the SLT services that were not provided to the Student in accordance with the Pendency Agreement during the 2020/2021 and 2021/2022 school years. The total hours of Compensatory SLT services shall be based on the Calculated SLT and provided by either the District or a duly-credentialed provider of the Parents’ choosing; fully-funded by the District at an amount not to exceed the hourly market rate; and the location, amount, type, use, frequency and implementation of the Compensatory SLT shall be scheduled according to the Parents’ and Student’s convenience. The bank of Compensatory SLT shall remain available for the Student’s use until it becomes fully exhausted; and IT IS HEREBY FURTHER ORDERED that the District is directed to provide to the Parents, within thirty-five (35) days of this Decision, a full accounting of the SLT services provided to the Student during the 2021/2022 and 2020/2021 school years, in accordance with the Pendency Agreement; counterbalanced by those SLT services that the Student did not receive during the 2021/2022 and 2020/2021 school years, defined as the Calculated SLT; and IT IS HEREBY FURTHER ORDERED that the Student is entitled to an unexpired bank of Compensatory OT, which is an approximate quantitative and qualitative recompense for the OT services that were not provided to the Student in accordance with the Pendency Agreement during the 2020/2021 and 2021/2022 school years. The total hours of Compensatory OT services shall be based on the Calculated OT and provided by either the District or a duly-credentialed provider of the Parents’ choosing; fully-funded by the District at an amount not to exceed the hourly market rate; and the location, amount, type, use, frequency and implementation of the Compensatory OT shall be scheduled according to the Parents’ and Student’s convenience. The bank of Compensatory OT shall remain available for the Student’s use until it becomes fully exhausted; and IT IS HEREBY FURTHER ORDERED that the District is directed to provide to the Parents, within thirty-five (35) days of this Decision, a full accounting of the OT services provided to the Student during the 2021/2022 and 2020/2021 school years, in accordance with the Pendency Agreement; counterbalanced by those OT services that the Student did not receive during the 2021/2022 and 2020/2021 school years, defined as the Calculated OT; and IT IS HEREBY FURTHER ORDERED that the District is hereby directed to fund an unexpired bank of eight (8) hours of Compensatory PCAT, to provide the Parents with assistance in acquiring the skills to understand the Student’s needs in relation to his Autism; together with funding for eight (8) hours of PCAT translation services. The Compensatory PCAT shall be provided by a duly-credentialed provider of the Parents’ choosing; fully-funded by the District at an amount not to exceed the hourly market rate; and the location, amount, type, use, frequency and implementation of the Compensatory PCAT shall be scheduled according to the Parents’ and Student’s convenience. The bank of Compensatory PCAT shall remain available for use until it becomes fully exhausted; and IT IS HEREBY FURTHER ORDERED that the Parents’ request for any additional claims asserted or relief sought in the Complaint, for which no supporting testimonial or documentary evidence was provided during the Hearing or otherwise supported by the Hearing Record, is hereby Denied; and IT IS HEREBY FURTHER ORDERED that the Parents’ request for any claims asserted or relief sought, which were raised subsequent to filing the Complaint and/or raised for the first during the Hearing or in the Closing Brief, is hereby Denied; and IT IS HEREBY FURTHER ORDERED that the Parents’ request for any relief sought or claims asserted, which were withdrawn prior, during or subsequent to the Hearing, is hereby Denied; and IT IS HEREBY FURTHER ORDERED that the Parents’ request for any relief sought that is not within the jurisdictional ambit or authority of this Hearing Officer, is not properly seated before me, and is hereby Denied; and IT IS HEREBY FURTHER ORDERED that the Parents’ request for Attorney Fees and Costs, is Denied; as this Hearing Officer is not authorized to award Attorneys’ Fees or other costs to a prevailing party; entitlement, if any, must be determined by a Court of competent jurisdiction;[62] and IT IS HEREBY FURTHER ORDERED that any remaining issue, claim or contention not expressly addressed in this Decision, is hereby Denied.
IT IS SO ORDERED.
Dated: July 31, 2023
_/s/ Patricia L. Murrell , Impartial Hearing Officer, Patricia L. Murrell
IHO.PatriciaMurrell@gmail.com
Copies to: All Parties
NOTICE OF RIGHT TO APPEAL
Within forty (40) days of the date of this Decision, the Parent and/or the 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 twenty-five (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 forty (40) days from the date of the decision sought to be reviewed. An appealing party shall file the (i) notice of intention to seek review, (ii) notice of request for review, (iii) request for review, and (iv) proof of service with the Office of State Review of the New York State Education Department within two (2) days after service of the request for review is complete. The Rules of Procedure for Proceedings 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.
PARENT EXHIBIT(S)
A. No. of Ex. Date(s) Description Pgs. Due Process Complaint Findings of Fact & Decision for Hearing No. [Redacted] 07/01/2020 9 pages
B. 06/14/2023 6 pages
C. Findings of Fact & Decision for Hearing No. [Redacted] 03/24/2015 9 pages
D. Findings of Fact & Decision for Hearing No. [Redacted] 07/05/2017 5 pages
E. Order On Pendency for Hearing No. [Redacted] 09/19/2017 6 pages
F. Findings of Fact & Decision for Hearing No. [Redacted] 08/10/2019 22 pages
G. Final Order for Hearing No.: [Redacted] 12/26/2019 6 pages
H. Pendency Form/ Email from DOE 10/01/2020 4 pages
I. IEP 10/27/2021 23 pages
J. Email from DOE/High School with 10/27/2021 IEP/PWN 10/28/2021 2 pages
K. IEP 04/28/2021 18 pages
L. IEP 01/05/2012 28 pages
M. DOE Prior Written Notice 06/24/2021 3 pages
N. DOE Prior Written Notice 10/28/2021 4 pages
O. DOE Prior Written Notice DOE Request for Consent Form 9/23/2019 P. 1 (10/22/2019) DOE SESIS Events Log 11/23/20– Q. 4 3/18/22 DOE SESIS Events Log 1/23/2012– R. 21 6/18/2021 05/06/2020 3 pages
S. Due Process Complaint 11/15/2021 15 pages
T. DOE Occupational Therapy Evaluation of Student 11/20/2019 6 pages
U. DOE Psychoeducational Evaluation of Student 11/27/2019 11 pages
V. DOE Speech/Language Evaluation of Student 1/10/2020 8 pages
W. Exhibits Cont. DOE Speech Progress Report for Student 06/17/2021 2 pages
X. Letter from DOE/High School – Student 06/27/2022 2 pages
Y. High School Report Card, Marking Period 3 06/27/2022 1 page
Z. [Redacted] Progress Report for Student 06/24/2022 12 pages
AA. IEP Progress Report for Student 06/14/2022 4 pages
BB. Parent’s Affidavit High School Class Schedule for Student 2021-2022 CC. 1 (undated) 06/22/2022 10 pages
DD. High School Email – Emergency IEP Meeting 10/27/2021 2 pages
EE. Speech-Language Attendance for Student 06/14/2022 31 pages
FF. IEP Meeting Notice 10/25/2021 3 pages
GG. High School Email to Parents 08/19/2021 2 pages
HH. Email to DOE w/ Records Request Total Pages: 292 12/08/2020 6 pages
DISTRICT EXHIBIT(S)
1. Ex. Description Date(s) No. Page(s) Individualized Education Program (IEP) April 30, 2020 24 pages DOE
2. CSE Attendance Page Total District Exhibit(s) 26 April 30, 2020 1 page DOE
HEARING OFFICER EXHIBIT(S)
Ex. Description Date(s) No. Page(s)
IHO-1 Parents’ Statement of Uncontested Facts July 5, 2022 8
IHO-2 Statement of Issues to be Adjudicated July 5, 2022 6
IHO-3 District’s Statement of Uncontested Facts July 5, 2022 2
IHO-4 Parent’s Amended Post-Hearing/Closing Brief March 2, 2023 19
IHO-5 Parent’s Closing Brief Citations and Endnotes March 2, 2023 32
IHO-6 District’s Post-Hearing/Closing Brief March 14, 2023 5
IHO-7 IEP December 22, 2017 14
Total IHO Exhibit(s) 86
Exhibits Cont.
TRANSCRIPT(S)
Description Date(s) No. Page(s)
Prehearing Conference December 22, 2020 44
Status Conference January13, 2021 17
Second Status Conference February 8, 2021 16
Third Status Conference March 10, 2021 17
Fourth Status Conference April 22, 2021 42
Fifth Status Conference May 25, 2021 24
Sixth Status Conference June 24, 2021 82
Seventh Status Conference August 4, 2021 23
Eighth Status Conference September 9, 2021 28
Ninth Status Conference October 12, 2021 37
Pendency Hearing November 15, 2021 101
Tenth Status Conference December 28, 2021 31
Eleventh Status Conference February 15, 2022 37
Twelfth Status Conference March 15, 2022 13
Thirteenth Status Conference March 29, 2022 34
Fourteenth Status Conference May 3, 2022 35
Fifteenth Status Conference June 2, 2022 37
Due Process Hearing – Day One July 6, 2022 92
Due Process Hearing – Day Two July 7, 2022 49
Sixteenth Status Conference September 13, 2022 28
Due Process Hearing – Day Three October 20, 2022 96
Due Process Hearing – Day Four November 1, 2022 38
Total Transcript Page(s) 921
Total Document Pages(s) 1,325
Footnotes
[1] The Hearing Record cited to in these Findings of Fact and Decision (hereinafter, the “Decision”) includes and references documents, which are designated as follows: to the Transcript, “Tr.” followed by the respective page/line number(s); to the Exhibits, as designated by the Parent’s Disclosure/Exhibit List, which are identified alphabetically: (A through HH); District’s Disclosure/Exhibit List, which are identified numerically: (1 through 2) “IHO” for the Impartial Hearing Officer Exhibits, (IHO-1 through IHO-7); and, as to any other document(s) included in the Hearing Record not specifically assigned an exhibit number, each of which will be identified by the respective document name and relevant page numbers, therein.
[2] Three (3) separate Notice of Appearance (“NOA”) were filed by the District during the pendency of this matter.
[3] See, IHO-1 – Parents’ Statement of Uncontested Facts, dated July 5, 2022.
[4] See, IHO-2 – Statement of Issues to be Adjudicated, dated July 5, 2022.
[5] See, IHO-3 – District’s Statement of Uncontested Facts, dated July 5, 2022
[6] See, IHO-4 – Parent’s Post-Hearing/Closing Brief, dated March 2, 2023; see also, IHO-5 – Parent’s Citations.
[7] See, IHO-6 – District’s Post-Hearing/Closing Brief, dated March 14, 2023.
[8] See, IHO-7 – Individualized Education Program, dated December 22, 2017.
[9] See, V-1.
[10] See, IHO-7-1; through and including IHO-15.
[11] See, P-1.
[12] See, T-1; through and including T-6.
[13] See, S-8.
[14] See, U-1; through and including U-11.
[15] See, V-1; through and including V-8.
[16] See, 1-24; see also, 2-1.
[17] See, 1-1; through and including 1-15.
[18] See, 1-16; through and including 1-24.
[19] See, 1-6.
[20] See, O-1; O-2.
[21] See, A-1; through and including A-9.
[22] See, H-1; through and including H-4. (“SETSS”) – Special Education Teacher Support and Services.
[23] See, HH-1; through and including HH-6.
[24] See, K-1; K-17; K-18.
[25] See, K-1; through and including K-11.
[26] See, K-7; see also, K-12; through and including K-18.
[27] See, W-1; W-2.
[28] See, M-1; M-2.
[29] See, GG-1; GG-2.
[30] See, FF-1; FF-2.
[31] See, DD-1; see also, I-1; through and including I-7; I-23.
[32] See, I-1; I-2; I-3; I-16; through and including I-23.
[33] See, I-7; I-8
[34] See, DD-2; see also, J-1; J-2.
[35] See, N-1; N-2; N-3.
[36] See, S-1; through and including S-15.
[37] See, AA-1; through and including AA-4.
[38] See, Z-1; through and including Z-12.
[39] See, BB-1; through and including BB-10.
[40] See, Tr. 569:23-25; through and including Tr. 575:1-4.
[41] See, Tr. 575:6-25; through and including Tr. 578:1-8.
[42] See, Tr. 583:18-25; through and including Tr. 590:1-15.
[43] See, Tr. 615:22-25; through and including, Tr. 622:1-21; Tr. 629:12-25; through and including, Tr. 630:1-19.
[44] See, Tr. 623:16-25; through and including, Tr. 628:1-3; Tr. 630:20-25; through and including, Tr. 631:1-24.
[45] See, Tr. 628:15-25; Tr. 629:1-5.
[46] See, Tr. 681:7-25; through and including, Tr. 685:1-22.
[47] See, Tr. 693:17-25; through and including, Tr. 696:1-25; see also, Tr. 698:23-25; Tr. 699:1-16.
[48] See, Tr. 699:17-25; through and including, Tr. 701:1-13; Tr. 707:24-25; through and including Tr. 710:1-4; see also, Tr. 725:7-15; Tr. 726:1-19.
[49] See, Tr. 710:6-25; through and including, Tr. 713:1-13; Tr. 722:13-25; through and including Tr. 724:1-22; see also, Tr. 726:20-15; Tr. 727:1-4
[50] See, BB-1 through and including BB-8.
[51] See, Tr. 758:3-25; through and including, Tr. 766:1-2.
[52] See, Tr. 760:1-4.
[53] See, Tr. 766:13-25; Tr. 767:1.
[54] Available at http://www.p12.nysed.gov/specialed/publications/iepguidance/IEPguideDec2010.pdf.
[56] See, Z-2.
[57] Available at http://www.p12.nysed.gov/specialed/publications/policy/continuum-schoolage- revNov13.pdf).
[58] “Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities,” 76 IDELR 104 (OCR & OSERS 2020); “Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic,” at p. 1, Office of Special Educ. Mem. (June 2021). Available at: http://www.p12.nysed.gov/specialed/publications/2020- memos/documents/compensatory-services-for-students-with-disabilities-result-covid-19-pandemic.pdf).
[59] “Return To School Roadmap: Development and Implementation of Individualized Education Programs in the Least Restrictive Environment under the Individuals with Disabilities Education Act.” 79 IDELR 232 (OSERS 2021)
[60] Supplemental Fact Sheet Addressing COVID-19, 76 IDELR 104; “Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak”, 76 IDELR 77 (OCR & OSERS 2020); “Supplement #2 - Provision of Services to Students with Disabilities during Statewide School Closures [Covid-19] Outbreak in New York State,” at pp. 2-5, Office of Special Educ. Mem. (June 2020); available at: http://www.p12.nysed.gov/specialed/publications/2020-memos/special-education- supplement-2-covid-qa-memo-6-20-2020.pdf).
[61] See, “Return To School Roadmap,” 79 IDELR 232; “Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic,” at pp. 3-4; “Supplement #2 - Provision of Services to Students with Disabilities during Statewide School Closures Due to [Covid-19] Outbreak in New York State,” at p. 1.
[62] See, 20 U.S.C. § 1415(i)(3)(B); 34 CFR 300.517; Mr. B. v. E. Granby Bd. of Educ., 201 Fed. App’x 834, 837 (2d Cir. Oct. 27, 2006).