New York City Department of Education, Impartial Hearing Decision

SED # 543131 NYC # 199763

In the Matter of an Impartial Hearing pursuant to Part 200 Findings of Fact the Regulations of the Commissioner of Education IHO No. 199763

REDACTED

-against- The New York City Department of Education

Procedural Context

By letter dated January 21, 2021 I was appointed to hear the matter of REDACTED versus the New York City Department of Education pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). It is noted that the Parent filed her Due Process Complaint on September 8, 2020 but no Impartial Hearing Officer was appointed until the above-referenced date. On February 4, 2021 a pre-hearing conference was held for the purposed of developing a litigation calendar and where possible framing the issues. At this time, the Parent requested Independent Educational Evaluations (hereinafter referenced as “IEEs”) for several different related services. On February 24, 2021, proceedings were held in which the need for various related service evaluations was addressed through testimony; the Department offered no testimony or evidence in opposition. Consequently, the undersigned issued an Order directing the performance of several evaluations on behalf of the child. On March 30, 2021 and May 4, 2021 the matter was continued. Thereafter, a hearing on pendency took place on June 16, 2021 and an Interim Order of Pendency was issued on August 25, 2021. On August 6, 2021; September 9, 2021; October 25, 2021; December 13, 2021; December 14, 2021 and January 27, 2022 the matter was continued and the compliance date for issuing a decision in the above-referenced matter was duly extended to February 25, 2022. This is the record close date.

Specifically, the Parents assert that the School District’s educational placements for the 2018-2019 and 2019-2020 and 2020-2021 school years stand in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and were neither suitable nor appropriate for their child. As a result thereof, they are seeking both compensatory damages and a declaratory judgment for the 2020-2021 school year, affirming that the Department has violated the child’s right to FAPE along violations of Section 504 of the Rehabilitation Act. They are seeking extensive compensatory education reflecting three years of chronic and ongoing IDEA violations. In addition, the Parent seeks an IEP driven increase in 1:1 instruction and related services as well as home-based services. Exh. A at 13-14.

It should be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and preparation of closing memoranda. At the commencement of the 2018-2019 school year, the student was approximately two years old and was enrolled in a pre-school program under the auspices of the Department. The Parents allege that neither the preschool program nor the programs offered during the 2019-2020 and 2020-2021 school years provided the child with FAPE. I note that REDACTED is “a child with a disability” as that term is defined under the IDEA, 20 U.S.C. § 1400 et seq., and is diagnosed with Autism Spectrum Disorder (hereinafter referenced as “ASD.”). Notably, there is no IEP in the record and one can only speculate as to the child’s classification. As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held. A list of persons in attendance and of evidence is appended hereto.

The School District’s Position The Department did not put on a direct case by furnishing either testimony or evidence. Rather, it relied upon brief cross-examination of the Parent’s witnesses. It did not concede liability. Tr. at 135-136. Curiously, on the last day of hearings, the Department’s representative stated, “... we didn’t defend the case, we just asked questions on cross-examination. So we’re just going to rest on the record.” Tr. at 334. Thereafter, no closing argument was offered. As a result, it is difficult to ascertain the exact nature of the Department’s objections.

The Parents’ Position The Parents assert that the Department stands in abrogation of its duty to provide REDACTED with a free and appropriate public education for the 2018-2019, 2019-2020 and 2020 to 2021 school years in violation of the IDEA and Section 504 of the Rehabilitation Act. See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997).

Consistent with their argument, the Parents contend that they are entitled to extensive compensatory education reflecting the absence of FAPE for three school years. They further seek declaratory judgment relative to the 2020-2021 school year. As there is no 2020-2021 IEP in the record, nor was there any discussion of the 2020-2021 IEPs by the Department, I must draw a negative inference regarding the appropriateness of the educational programming for this year. Beyond this, the Parents maintain that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. School District, Massachusetts, 471 U.S. 359 [1985], militate against an award in their favor.

The Parents’ Case and Summary of Witness Testimony The Parent’s direct testimony was largely provided via affidavit. REDACTED WITNESS is the child’s father. The child is presently REDACTED years old. The father provided a brief history of his son’s special education, noting that REDACTED began receiving Early Intervention as early as January 2018. At that time, the child received speech and language therapy, occupational and physical therapy as well as intensive 1:1 applied Behavioral Analysis (hereinafter “ABA.”). Upon aging out of Early Intervention, an IEP was drafted, but services did not commence for several months. Exh. UU, passim.

Eventually, the child began attending a 12:1:1 program at PS 25, a placement which sometimes involved travel times of 3-4 hours each way. Although the Parent requested a closer program site, this did not occur. In June 2019, the child’s teacher informed the Parents that the program he was attending could not meet REDACTED’s needs. Thereafter, a CSE meeting was convened telephonically, at which time the REDACTED SCHOOL was recommended for REDACTED The child engages in stereotypical behaviors which interfere with his ability to remain on task. He is nonverbal and struggles with all aspects of daily living. REDACTED began attending REDACTED SCHOOL in the summer of 2019. Tr. at 189.

In March 2020, the Department convened its CSE, mandating once more a 12:1:1 format. The REDACTED SCHOOL was no longer recommended. When queried, the Department advised the Parent that there was no community school for the child and, once, again, REDACTED would have a long commute to class. Nevertheless, the issue of travel time became moot as, at this time, remote services were implemented city-wide in an accommodation to the Covid pandemic. The remote format was largely unproductive for the child, a situation exacerbated by the lack of in-person support and/or make-up services. The Parent advised REDACTED SCHOOL personnel that remote learning was not meaningful for his son, and as a result, REDACTED began attending in-person classes at REDACTED SCHOOL twice a week. Tr. at 191. Since then, the child has remained at REDACTED SCHOOL, subject to a pendency agreement obtained by counsel. If compensatory services were provided to the child, REDACTED WITNESS testified that these services could be provided after school as REDACTED gets home at approximately 2:00 pm. Tr. at 202.

REDACTED PROVIDER 1 Ph.D., CCC-SLP/A additionally testified on behalf of the Parent. REDACTED PROVIDER 1 holds a doctorate in Audiology and a Master’s degree in speech pathology. She is licensed in New York State in the areas of speech and language pathology as well as audiology. She is additionally New York State certified as a Teacher of the Speech and Hearing Handicapped. She provided her direct testimony in the form of an affidavit. Exh. U.

Prior to conducting an evaluation of REDACTED on June 19, 2021, the witness indicated that she reviewed extensive documentation. Exhs. T, U. She was not in possession of an Assistive Technology report dated April 25, 2021, although it is unclear when this report was signed and issued. Tr. at 225. She noted, at the outset, that the child exhibited symptoms consistent with ASD, such as inconsistent eye contact, stereotypical repetitive motor behaviors, social delays, expressive and receptive deficits, repetitive non-contextual vocalizations and echolalia. Exh. T, passim. As a result of these dysfunctional and interfering behaviors, much testing could not be performed.

She further reported that the child was unable to maintain attention consistent with a “reported diagnostic impression of Attention-Deficit/Hyperactivity Disorder. Exh. U at 4. The clinician further averred that she was unable to complete auditory testing due to behavioral issues, but nevertheless opined that REDACTED was at risk for an auditory processing disorder.

REDACTED PROVIDER 1, however, was able to perform some verbal/language testing on the child. She observed that the Functional Communication Profile-Rived (FCP-R) yielded scores which were significantly below average. The child additionally scored significantly below average on the Peabody Picture Vocabulary Test 4(PPVT-Form A), an instrument measuring receptive vocabulary. Exh. T at 8. REDACTED PROVIDER 1 noted that the child was minimally to moderately alert to his environment, did not possess safety awareness and was highly distracted by various environmental aspects of the testing room. Beyond this, he required extensive prompting and redirection to perform requested tasks. With prompting, models or situational cues, however, REDACTED was able to execute a limited set of single step commends. Exh. U, passim.

The witness additionally believed REDACTED exhibited inadequate sensory processing integration which was exacerbated by the child’s mood, antecedent events and fatigue. At best, REDACTED demonstrated an understanding of simple words and phrases, although his oral comprehension significantly improved with visual cues, gestural and tactile prompting. On the Expressive Vocabulary Test 2(EVT-2), REDACTED again scored poorly. REDACTED PROVIDER 1 did observe, however that the child variably responded to his name, attention commands and familiar directives. The use of repetition and gestural cues often improved his comprehension and compliance. Exh. U, passim. The witness observed that the child did attempt to communicate, although his speech ranged from vague to unintelligible. Exh. U at 7. Further testing of speech production on the Goldman-Fristoe Test of Articulation-Third Edition (GFTA-3) yielded scores in the extremely low/severe range. REDACTED PROVIDER 1 indicated that REDACTED additionally presented with a significant articulation disorder and a phonological processes disorder. In furtherance thereof, she observed that spontaneous speech was found to be even more error prone and significantly less intelligible compared to the test sample. Exh. T.

In summary, REDACTED PROVIDER 1 diagnosed REDACTED with a severe communication disorder, reflecting deficits in both receptive and expressive language. She noted, furthermore, that the child presented with a significant articulation disorder and a phonological processes disorder, along with echolalia and a social communication impairment. Finally, REDACTED PROVIDER 1 opined that the child was “at risk” for a potential auditory processing disorder. Although a complete evaluation had been recommended, REDACTED’s functional abilities and behaviors interfered with his ability to appropriately complete testing.

REDACTED PROVIDER 1’s recommendations for REDACTED included an increase in the amount of speech and language therapy that he was currently receiving. She additionally believed alternative forms of communication should be implemented, including signed vocabulary, alternative/augmentative communication and various therapeutic I-pad apps. Although she did not actually utilize these I-pad apps with the child, this was not the purpose of her evaluation.^[1] However, knowing that REDACTED’s autism is severe and based upon her knowledge of these apps and their wide-spread use, she believed their use would be beneficial for the child. Tr. at 228. She additionally noted that REDACTED would benefit from a total communication approach in which the Parents additionally received training. The witness, moreover, reiterated her recommendation for an intensive ABA program to manage behavior and develop focus within the classroom and at home. In furtherance thereof, she opined that a technological evaluation would be beneficial and recommended the use of an FM unit, a sound enhancement system or low gain noise reducing hearing aid to facilitate REDACTED’s ability to attend to instruction. In fact, during the course of her assessment, Dr. REDACTED observed that REDACTED was able to tolerate the placement of an FM headset on his head. Tr. at 231.

In sum, the witness recommended the child’s IEP mandate be altered to reflect the provision of speech and language therapy individually “at a rate of (3 x 30 minutes) per week),” and in small group format twice a week for 30 minutes each. As the child is highly distractible, she opined that push-in services would be inappropriate. Tr. at 223-225. Beyond changes to the child’s IEP, the witness additionally recommended compensatory services individually, three times per week for 30 minutes per session, reflecting the years in which REDACTED was either underserved or did not receive services at all. Tr. at 231-233. Exh. U at 9. As REDACTED has received very little behavioral instruction and was unable to participate meaningfully for much of her testing, the witness additionally recommended a follow-up assessment following behavioral intervention. Tr. at 234.

REDACTED PROVIDER 2 additionally testified on behalf of the Parent. REDACTED PROVIDER 2 is a licensed and registered occupational therapist. Exh. W, passim. On April 25, 2021, she conducted an evaluation of REDACTED Her evaluation included a number of formal and informal assessments, including the Beery-Buktenic Developmental test of Visual-Motor Integration (VMA)-Partial; The Print Tool-Partial, Sensory Profile 2 and School Companion form, Sensory Profile. Exh. W at 3. In addition, the Parent was given an assessment form, the Roll evaluation of Activities of Life (REAL). As REDACTED was unable to participate appropriately during much testing, the affiant noted that her information was derived informally from observations, record reviews and interviews. These interviews included discussions with the child’s teacher, school occupational therapist and Parent. A clinical observation was additionally performed. REDACTED PROVIDER 2 noted that at various times, the Assistive Technology evaluator was present. Tr. at 250-251.

REDACTED PROVIDER 2 described an unfocused child who had difficulty following one and two step directions. He was unable to remain seated for testing more than 15-20 seconds and exhibited poor safety and body awareness. The child was extremely impulsive and required constant and close supervision. REDACTED did not communicate verbally.

The child showed several strengths during the evaluation, responding positively to a First/Then schedule and completing interlocking puzzles effectively. Per report, she noted that REDACTED is able to write his name as well as the uppercase alphabet. He can follow certain visual demonstrations and is improving his ability to perform various ADL skills. He is still not independent with toileting skills but is demonstrating progress. REDACTED PROVIDER 2 additionally recommended a feeding and swallowing evaluation due to observed food packing and an inability to tolerate certain food textures.

In sum, REDACTED PROVIDER 2 indicated that REDACTED has significant delays and deficits that negatively impact his ability to participate in school, community and home environments. This is exacerbated by his poor attention span, limited self-regulation, inadequate frustration tolerance and impulsivity. REDACTED additionally has deficits in sensory processing, social skills, gross motor skills and motor planning. Additionally global deficits were found in the areas of fine motor strength and dexterity bilateral coordination, visual-motor integration, handwriting, scissor skills and ADL/iADL skills. Exh. 5, passim.

In view of all of the above, REDACTED PROVIDER 2 recommended an IEP mandate of occupational therapy (3 x 30); access to specialized sensory integration equipment during the school day; scheduled sensory break routines. In terms of compensatory occupational therapy hours, REDACTED PROVIDER 2 affirmed that REDACTED should receive 207 compensatory hours in a clinic-based or home setting while simultaneously receiving an IEP mandate if 1.5 hours per week, services to rendered on the basis of an extended school year. Tr. at 252-253. She based her conclusion upon the fact that REDACTED did not receive adequate or appropriate therapy over the course of three years, commencing with the 2018-2019 school year. Tr. at 253; Exh. W at 6. Specifically, REDACTED did not receive services during the 2018-2019 school year until approximately February 2019. Thereafter, the witness believed the child received twice-weekly services for a portion of the 2019-2020 school year. At some point, REDACTED then lost his mandate for individualized services and received little to no service during the Covid pandemic. As the Department has not furnished any evidence, one cannot ascertain the extent of its recommendation or the service actually rendered. Consequently, this witness’ testimony is uncontroverted.

REDACTED PROVIDER 3 additionally testified on behalf of the Parent. REDACTED PROVIDER 3 is certified and licensed by New York State as a Speech-Language Pathologist. Exh. Y. She is additionally certified as an Assistive Technology Professional through RESNA.^[2]developed a sub-specialty in Augmentative and Alternative Communication (hereinafter “AAC”). REDACTED PROVIDER 3 conducted an assistive technology (hereinafter “AT”) evaluation of REDACTED on April 25, 2021. She noted, at the outset, that her assessment included a review of formal testing including the Teacher Interview and Classroom Observation (January 2020(, Individualized Education Plan School Year 2020-2021, Psychological Evaluation Report (2/11/2020), social History Update (3/30/20), IEP (January 2019), CPSE Preschool Evaluation (Physical Therapy Assessment, Occupational Therapy Assessment and IEP (June 2019). In addition to these formal documents, REDACTED PROVIDER 3 spoke with the child’s current classroom teacher and speech therapist.

The witness described a child who was primarily nonverbal, using gestures and body language to communicate. She noted that he ambulates independently and was able to successfully access a Speech Generating Device. The witness noted that although the child has some one syllable words, his echolalia interferes with intelligibility. Exh. Y, passim. As a result, REDACTED PROVIDER 3 recommended the iPad 9.7 with the LAMP Words for Life communication application as this was the one in which he displayed the most interest and facility. In this manner, the child would be able to communicate across environments and with various individuals. The witness additionally recommended a Speech Generating Device such as Aided Language Stimulation for REDACTED’s caregivers givers and school personnel. This intervention would provide speech models and prompt communication, allowing him to access a large bank of vocabulary and the opportunity to facilitate academic activities and social interactions. The witness added that various non-SGD approaches were attempted with REDACTED, including Mid-tech AAC devices, but these were ruled out as insufficient to meet his needs at this time. Exh. Y at 5. Finally, the witness opined that REDACTED needs additional assistive technology to facilitate reading and text-based materials.

In sum, REDACTED PROVIDER 3 recommended a host of extended school year interventions, including ready access to a dedicated i-Pad with an Anker Bluetooth Ultra-Slim keyboard, protective case with a kickstand and Zagg Invisible Shield – HDX-HD Quality + Extreme Shatter Protection. In addition, the recommended the Via Pro from PRC Saltillo; LAMP Words for Life speech application to be utilized on a dedicated i-Pad with an Active Wrap Case to protect from drops and falls. Beyond this, REDACTED PROVIDER 3 recommended the use of an Apple Pencil (first generation) and noise cancelling headphones to be used with audio books and text-to-speech output. Exh. Y at 5-6. Finally, the witness specified a number of reading programs and apps which should be utilized along with i-Pad built-in accessibility functions. Ibid. To achieve a meaningful level of competency with the above-noted interventions, REDACTED PROVIDER 3 testified that REDACTED would require 100 hours of training, hours to be inclusive of parent and support staff training, as it was important for REDACTED to generalize his skills across environments. Tr. at 263-265, 269.

REDACTED PROVIDER 4 Psy. D. testified on behalf of the Parent. REDACTED PROVIDER 4 is a licensed psychologist who routinely performs neuropsychological evaluation on children. On December 6 and 20th, 2020, REDACTED PROVIDER 4 evaluated REDACTED The witness described a dysregulated child with poor frustration tolerance who engaged in self-soothing stereotypical behaviors and exhibited a behavioral profile consistent with ASD. Exh. TT, passim. REDACTED struggles with eye contact, is noise sensitive, has difficulty understanding personal space and becomes very agitated and frustrated in crowds. He is largely non-verbal and easily becomes anxious.

REDACTED PROVIDER 4’s testing was performed with the use of at sticker chart, a visual anchor and verbal support. Nevertheless, even with these accommodations, the child struggled with inattention, impulsivity and restlessness. With significant repetition and redirection, however, the child was able to focus and respond appropriately for brief periods of time.

In furtherance thereof, REDACTED PROVIDER 4 administered the Primary Test of Nonverbal Intelligence (PTONI) as a measure of intellectual functioning. The child scored in the low range when compared to same-aged peers. However, REDACTED PROVIDER 4 opined that these scores were likely an underestimate of the child’s cognitive abilities as REDACTED’s behavior interfered significantly with the testing process. Similar findings were evident on the Peabody Picture vocabulary Test, Fifth Edition (PPVT-5) and the Clinical evaluation of Language Fundamentals, Fifth Edition (CELF-5) and the Expressive Vocabulary Test (EVT-3). However, an area of relative strength was noted on the KTEA-3, a measure of expressive language skills which yielded average score in the 30th percentile. Further KTEA-3 testing indicated that the child’s early reading skills fell in the low average range although he indicated a relative strength in recognizing single letters and identifying letter-sound correspondence (50th percentile). Likewise, the child scored in the low average range of academic functioning (i.e. comprehension, writing and math). Finally, an additional area of strength for REDACTED is the child’s ability to recall content and spatial location per the Neuropsychological Assessment, Second Edition (NEPSYII). Exh. TT at 6-7.

Tests of visual-motor skills indicated that while REDACTED was able to copy single lines and simple shapes, his fine motor speech and dexterity scored below the first percentile. The TOVA was additionally performed, indicating marked challenges in the child’s ability to sustain attention and resist distractions. This finding was consistent with the Parent’s report on the Conners Early Childhood instrument which reflected “very elevated” domains related to ASD.

In sum, REDACTED PROVIDER 4 opined that REDACTED additionally met the diagnostic criteria for with ADHD and Developmental Coordination Disorder. Exh. TT at 9. In furtherance thereof, he believed the child should be classified as ASD and recommended a full day 1:1 ABA program which provides at least 40 hours per week of ABA. Until such a placement was identified, REDACTED PROVIDER 4 recommended that the child remain in his current 8:1+2 classroom within his current school “with a push in program of 40 hours of full-day 1:1 ABA services per week (inclusive of travel and afterschool curriculars). Exh. TT at 10. The witness additionally concurred with the speech and occupation therapy recommendation provided by REDACTED PROVIDER 1 and REDACTED PROVIDER 2. However, he added additional recommendations for small group social skills training (3 x 30 minutes per week); 10 hours of individualized academic instruction with 1 hour of BCBA/LBA supervision; 10 hours of home-based ABA; Parent counseling and training (2 x 60 minutes per week) with supervision by a BCBA/LBA and assistive technology as recommended by REDACTED.

In terms of compensatory education, based upon the Department’s failure to provide REDACTED with appropriate services over the last three school years, REDACTED PROVIDER 4 additionally recommended 6240 hours of 1:1 ABA including an FBA/BIP; 234 hours of social skills training; 1560 hours of home-based ABA; 1560 hours of individualized academic intervention and 312 hours of Parent counseling and training. Exh. TT at 10-11. As others before him testified, REDACTED PROVIDER 4 noted that the child should have a neuropsychological re-evaluation in a year.

On cross-examination, REDACTED PROVIDER 4 acknowledged that, in certain school settings and for certain purposes, a 2:1 paradigm could be utilized. However, compensatory services should be provided individually. Tr. at 292-296. Likewise, the witness explained that the 1560 hours of home-based ABA should stand separate and apart from the child’s related services. These hours, however, could be provided by a SETSS/SEIT teacher with BCBA/LBA certification or an individual who is supervised by a BCBA/LBA. Tr. at 299. He added that many of the child’s deficits (i.e. self-care, adaptive functioning, language and communication) could be addressed within these 6240 hours and “supposed” that addressing these skills did not require an additional mandate. Tr. at 300.

Finally, although REDACTED PROVIDER 4’s initial recommendation called for 6240 hours of individual 1:1 ABA training, he testified that he based this recommendation upon his assumption that the child would not be in a full-day, one to one ABA program. Tr. at 301. He noted that, if the child were in a full-time ABA program, these hours could be utilized after school, on weekends and during breaks. Tr. at 302. Alternatively, these hours could be used to supplement the child’s 8:1+1 program. Tr. at 317. These services, additionally, could be provided at home or in the community so that a naturalistic setting would be available. Tr. at 314. Moreover, the compensatory hours might be offered in an inclusive setting at an appropriate time, assuming the child is able to reasonably focus and attend. Tr. at 315. However, while the Parent required sufficient time in which to use the compensatory hours, the witness agreed that consistency was important. Thus, services must be regularly provided in a steady and meaningful manner such that regression would not consistently be a factor. As a result, REDACTED PROVIDER 4 opined that a cap of five years would be appropriate, commencing upon initial receipt of services. Tr. at 308, 310.

Finally, REDACTED PROVIDER 5, Psy.D., BCBA, NCSP provided testimony via affidavit, but was not cross-examined. REDACTED PROVIDER 5 is a clinical neuropsychologist and behavior analyst who is licensed in New York State as a psychologist and in New Jersey as a School Psychologist. Her post-doctoral training was completed at the Center for Autism and Related Disorders. Exh. X.

REDACTED PROVIDER 5 conducted a home and school observation of REDACTED In this environment, the child engaged in little productive speech, but did respond to his name and understood simple requests. The child required multiple echoic prompts to request desired items, exhibited poor frustration tolerance and engaged in frequent stereotypies. Exh. X at 3. REDACTED PROVIDER 5 additionally observed REDACTED virtually while REDACTED was in school. She noted that, in the course of her observation, the child did not emit any spontaneous communication and was highly dependent upon adult prompts to communicate and complete activities of daily living. When the child engaged in stereotypical behaviors, he was either ignored or redirected. On the playground, the child did not socialize and generally engaged in repetitive play or stereotypy.

REDACTED’s teacher noted that she was concerned about the child’s minimal speech, adding that although he is currently learning to utilize a PECS system, he does not have access to PECS throughout the day. Consistent with the recommendations of previous witnesses, REDACTED PROVIDER 5 recommended supplementation of REDACTED’s current program at REDACTED SCHOOL with push-in ABA and ABA supervision. She similarly recommended an FBA and BIP along with an augmentative language system, such as PECS or SGD, with access in school, home and in the community. As previously raised by REDACTED PROVIDER 1, she too believed REDACTED should have a feeding and swallowing assessment. Finally, she opined that, with the supplementation of push-in ABA support and other services, REDACTED SCHOOL was an appropriate placement. Exh. X at 4.

Case Law

It is clear that the legislative intent of 20 US Code § l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C.§1400 [d][1][A]; see Ms. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 N.Y.C.R.R. 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].

In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]).

In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199.

Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, a school district "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only retrospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); REDACTED ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y. 2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]).

Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

The within matter additionally addresses the issue of compensatory education. In furtherance thereof, Application of a Child with a Disability No. 05-022 furnishes an excellent overview of compensatory education and its discussion is recited herein. The IDEA applies to children aged 3 through 21 inclusive (20 U.S.C. § 1412[a][1][A]), subject to the limitation that it does not apply to children aged 18 through 21 where it is inconsistent with state law or practice on the provision of a public education (20 U.S.C. § 1412[a][1][B][i]; see St. Johnsbury Academy v. D.H., 240 F.3d 163, 169 [2d Cir. 2001]). New York Education Law specifically provides IDEA eligibility to children through the end of the school year in which they turn 21 (N.Y. Educ. Law § 4402[5][b]; see 8 NYCRR 100.9[e]; see also Application of a Child with a Disability, Appeal No. 02-016; Application of a Child with a Disability, Appeal No. 00-024). Generally, under the IDEA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one" (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990] [internal citation omitted]). Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]" (Honig v. Doe, 484 U.S. 305, 318 [1988]; see Cosgrove v. Bd. of Educ., 175 F. Supp.2d 375 [N.D.N.Y. 2001]).

The Second Circuit, however, allows for the provision of compensatory education services for a student where there has been a gross violation of the IDEA during the time of the child's eligibility (Garro v. Connecticut, 23 F.3d 734, 737 [1994]; Mrs. C., 916 F.2d at 75; Burr v. Ambach, 863 F.2d 1071, 1075 [2d Cir. 1988]), such as the type that results in the denial of or exclusion from educational services for a substantial period of time (see, e.g., Mrs. C., 916 F.2d at 75; Burr, 863 F.2d at 1078, Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Lester H. v. Gilhool, 916 F.2d 865 [3d Cir. 1990]; Miener v. State of Missouri, 800). In such cases, "the scope of the remedy can extend beyond the scope of the original right" (Burr, 863 F.2d at 1078, citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 [1971]), and compensatory education services may be awarded to students over 21 as a remedy for past deprivations of a right mandated pursuant to the IDEA (see Burr, 863 F.2d at 1078; Cosgrove, 175 F.Supp. 2d at 387). It is, however, an equitable remedy that must be tailored to meet the circumstances of the case (Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 151 [N.D.N.Y. 1997], aff'd 208 F.3d 204 [2000], cert. denied 531 U.S. 1019 [2000]; Application of the Bd. of Educ., Appeal No. 02-033; Application of a Child with a Disability, Appeal No. 02-019).

In fact, the purpose of a compensatory education award is not to provide “extra” educational services to a student, but rather to redress “a school district’s failure to provide that which it was obligated to provide earlier.” Application of the Board of Education of the Millbrook Cent. Sch. Dist., App. No. 02-033, citing Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 [3d Cir. 1994]. Thus while “ordinary IEPs need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 4401 F.3d 516, 525 (D.C. Cir. 2005).

A compensatory award should aim to place the student in the position he or she would have been in “but for the violation of” the IDEA. Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008). The award must be “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid, 401 F. 3d at 524 (D.C. Cir. 2005), supra. Clearly, a compensatory education award must “undo the FAPE denial of an appropriate education and must compensate for lost progress.” Butler vs. Dist. Of Columbia, 77 IDELR 16, 120 LRP 21329 (7/15/20). Indeed, the Second Circuit has approved the individualized approach adopted by the Reid v. District of Columbia, finding that compensatory education should serve as a “surrogate for the education that a student should have received” during periods of FAPE denial. See Doe v. East Lyme Bd. of Educ., 790 F.3d 440 (citing Reid, 401 F.3d 516).

Finally, the SRO has held that where the Department does not offer an alternative award, it cannot simply fault the Parents' request and, in general, has upheld such awards requested by the Parent. See, e.g., Application of a Student with a Disability, No. 11-091; Application of a School District, No. 14-014.

Discussion

In the matter at bar, the Department failed to deliver appropriate services over the course of three years. All of the Parent’s witnesses testified that this had a significant impact across virtually all metrics of development (i.e. language, motor, ADL, behavioral etc.). Reviewing the assessments and evaluations submitted, the lack of services facilitated a global regression which was consistently evidenced by the child’s limited testability and performance across several examiners and content areas.

Where FAPE has been denied, factfinders have broad discretion to develop equitable relief. Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015), cert. denied, 136 S. Ct. 2022 (2016), reh’g denied, 136 S. Ct. 2546 (2016) (“[e]quitable considerations are relevant in fashioning relief and the court enjoys broad discretion in so doing”) (quoting Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993)). See also Reid ex. rel. Reid v. Dist. Of Columbia, 401 F.3d 516, 522-23 (D.C. Cir. 2005); M.W. v. NYC Dep’t of Educ., No. 15CV5029, 2015 WL 5025368 (S.D.N.Y. August 25, 2015).

As an equitable remedy, there is no statutory formula for calculating an award and there is significant latitude in issuing an award tailored to meeting the child’s needs. Nevertheless, the Courts tend to apply one of two approaches when calculating awards of compensatory education: 1) day-for-day; or 2) totality of the circumstances. In the case at bar, the difference between the two calculation methods is almost nonexistent as the student has incurred severe deficits due to a 3-year denial of FAPE. In fact, the child either received no services or received inappropriate services for three years. Absurdly lengthy bus transportation times were permitted and I cannot help but believe these 5–8-hour per day bus rides exacerbated an already negative situation. Exh. UU at 2. Finally, when virtual services were provided, consistent with the demands of the Covid-19 pandemic, REDACTED was unable to access this content meaningfully in the absence of teacher or paraprofessional support.

Are the Requested Compensatory Services Appropriate?

I find that the Parent’s evaluations and the recommendations upon which their compensatory claims are based are appropriate for the damages they seek. These recommendations reflect the multiple school years in which REDACTED did not receive an appropriate education. I note, at the outset, that all providers were licensed and certified. Evaluations included a variety of assessment techniques including criterion-referenced and standardized testing, observational measures and input from the Parents and school personnel. All measures indicated global deficits in all levels of performance and areas of need. These included assessments of academic, developmental and functional aspects of the child’s performance. The undisputed testimony of the Parent’s witnesses indicates the presence of credible educational and functional deficits, exacerbated by the lack of educational opportunities.

The Parent is seeking an award of 6,240 Hours of 1:1 ABA, 234 Hours of Social Skills Training, 1,560 Hours of Academic Intervention, 1,560 hours of home-based ABA, and 312 hours of Parent Training and Counseling. This is supported throughout the record by the various evaluators and service providers and was unrebutted by the Department. Specifically, REDACTED PROVIDER 4 recommended a large bank of compensatory hours, to be used within a five-year period commencing after the initiation of services. Exhs. P at 11; TT at 11. The witness arrived at these recommendations, based upon missed opportunities over the last three school years, reflecting a period of time when REDACTED should have been receiving a full-time ABA program along with home instruction. REDACTED PROVIDER 4 additionally recommended the development of an FBA and BIP with neuropsychological re-evaluation in one year. Exhs.; P at 10-11; T at 11.

Consistent with REDACTED PROVIDER 4’s recommendations, REDACTED PROVIDER 5, Psy.D., additionally recommended a full-time ABA program to be furnished on an extended year basis. She additionally concurred with the recommendation for a PECS or SGD augmentative language system with access in school, home and in the community. Exh. X. Similar to REDACTED PROVIDER 4’s recommendations, REDACTED PROVIDER 5 opined that an FBA and BIP should be developed, including ongoing review, interpretation and monitoring.

In terms of speech and language therapy, REDACTED PROVIDER 1 recommended a compensatory bank of 138 hours, reflecting 3(30 minute) sessions per week, per year for two years. This runs to 138 hours, in toto, for two years. Exh. T at 13. As part of her recommendation, REDACTED PROVIDER 1 noted that auditory training and practice using an FM and AAC device should be included.

REDACTED PROVIDER 2, the evaluating occupational therapist, additionally recommended 207 hours of compensatory OT services. She noted that this figure reflected 1.5 hours per week for 46 weeks. Exh. R at 20; Exh. W. REDACTED PROVIDER 2 additionally recommended a feeding assessment and this should be performed as well due to REDACTED’s food packing behavior and intolerance for various textures. Indeed, REDACTED PROVIDER 5 additionally recommended a multi-disciplinary feeding and swallowing evaluation. Exh. Q at 4.

In terms of assistive technology, the undisputed testimony indicates that REDACTED requires various technology on which both school personnel and individuals at home must be trained. She estimated that this would require 100 hours of training for staff, Parents and support staff. Again, this testimony is unchallenged.

I find that the recommended compensatory services are appropriate, as long as a five-year cap is placed upon their receipt. In the absence of consistent and continuing instruction and reinforcement, compensatory services are meaningless. It simply does not serve the child when instruction is not furnished in a routine and reliable manner. In this manner, instruction can proceed positively, rather than continually addressing the regression which occurs between each irregularly scheduled session.

Declaratory Relief for the 2020-2021 school year The Parent additionally seeks a declaratory judgment regarding the appropriate programming for REDACTED during the 2020-2021 school year. Again, the Department did not address these issues and, based upon the extensive evaluations, assessments and testimony, I have no basis to believe the following services do not appropriately provide FAPE.

Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

In developing the 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 assessments 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]). It is well settled that a CSE must consider privately-obtained evaluations, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]). However, "consideration" does not require substantive discussion, that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight (T.S. v. Bd. of Educ. of the Town of Ridgefield, 10 F.3d 87, 89-90 [2d Cir. 1993]; G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 947 [1st Cir. 1991].

As in A.M. v. New York City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017] [finding that recommendations included in private evaluation created a consensus as to what the student required where the district did not conduct any evaluations of its own to call into question the opinions and recommendations contained in the private evaluations], private evaluations were consistent with each other in terms of their recommendations. In contrast, the Department furnished nothing by way of assessment or evaluation. Although a CSE is not required to embrace whatever recommendations private evaluators have issued, I have no option but to accept their substantive validity where there are no school district assessments to controvert the private findings.

In furtherance thereof, I find that the child should have had an extended ABA program. In the absence of such a full-time program and while at REDACTED SCHOOL, the child should receive supplemental 40 hours of ABA services to be split between the school day and home. These latter services need not be provided by a certified BCBA/LBA but shall be supervised by a certified BCBA/LBA along with Parent counseling and training.

Finally, the issue of Parental cooperation and equitable entitlement to this equitable remedy must be considered. Indeed, the Courts have consistently acknowledged the right to consider equitable factors when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

I find there are no equitable factors which militate against the Parent’s right to compensatory education for his son. The Parent participated in all CSE convenes when requested and shared his multiple concerns with Department personnel. He attempted to cooperate with the Department, even doing so at the expense of his own child. When the student was left without an appropriate school to attend, the Parents acted proactively to secure a placement. Under these circumstances, I find that there are no equitable factors which militate against the Parent’s right to recovery.

Declaratory Judgment for the 2020-2021 school year:

Until REDACTED is enrolled in a full-time ABA program, his services at REDACTED SCHOOL shall be supplemented by 40 hours of ABA daily on a In the event that REDACTED SCHOOL’s school day cannot accommodate a 40 hour per week service, 30 hours shall be provided as a push-in service at school and ten hours per week to be home-based services. In this scenario, the child will still be entitled to an additional ten hours per week of home-based ABA with BCBA/LBA supervision; the Parent shall receive one hour per week of training. REDACTED’s IEP mandate for speech shall reflect three individualized (30 minute) periods per week and two (30 minute) small group sessions per week. Occupational therapy shall be provided individually on a 3 x 30 basis per week. Assistive technology shall be recommended as specified by REDACTED PROVIDER 3 in addition to augmentative communication devices and apps as recommended by REDACTED PROVIDER 1. The child’s 2021-2022 IEP shall be amended to include these recommendations.

Conclusion

I find that the Parents’ request for compensatory relief must be granted as the Department stands in gross violation of its IDEA and Rehabilitation Act mandates for the 2019-2020, 2020-2021 and 2021-2022 school years. The Parent’s request for declaratory relief is additionally granted.

Wherefore, it is hereby ordered that:

1. Compensatory Education:

The child shall be entitled to a compensatory bank of 6,240 Hours of 1:1 ABA, 234 Hours of Social Skills Training, 1,560 Hours of Academic Intervention, 1,560 hours of home-based ABA, and 312 hours of Parent Training and Counseling. All services to be utilized within a five-year period, commencing after the initiation of services. In the event that the child is placed in a full-time ABA program, these services could be utilized after school, on weekends and during breaks. Tr. at 302.

The child shall also be entitled to a compensatory bank of 138 hours, reflecting 3(30 minute) sessions of speech and language therapy per week for two years in addition to 207 hours of occupational therapy, additionally provided on a 3 x (30 minute) basis.

2. Declaratory Judgement for the 2020-2021 School Year:

The child’s 2020-2021 IEP shall reflect the provision of services to include:

A. 12 month extended school year;

B. Full day 1:1 ABA program or, until one can be sourced placed at REDACTED SCHOOL with 40 hours of push in ABA;

C. Home based ABA with BCBA/LBA supervision;

D. Parent counseling and training 1 x 60;

E. 10 hours individualized academic instruction with BCBA/LBA supervision;

F. SLT 5x30 (3x 1:1 and 2x in a small group);

G. Social skills training 3x30;

F. FM system;

I. Additional recommendations for applications as outlined in REDACTED PROVIDER 1's report;

J. 3x30 OT;

K. Assistive Technology recommendations as articulated in the AT report by REDACTED PROVIDER 3. This shall include 100 hours of training for the providers, support personnel and the Parents.

L. Enhanced fees shall be ordered for all related services.

3. CSE Reconvene:

The CSE shall convene within 30 days of the issuance of the within Findings of Fact to develop an IEP which further addresses the assistive technology recommendations and all other recommendations and evaluations (i.e. feeding study, communication devices) incorporated into the evaluations submitted into evidence and undisputed. At this time, all relevant Committee members shall participate and the CSE will additionally mandate the preparation of an FBA and BIP, consistent with the recommendations of both REDACTED PROVIDER 4 and REDACTED PROVIDER 5. Such FBA and BIP shall be prepared by the private individual who will be offering ABA services to the child at an enhanced rate. Finally, given the fact that the child was largely untestable, the CSE shall mandate the performance of a second neuropsychological assessment within one year of the date of this Findings of Fact. Said neuropsychological evaluation shall be funded by the Department.

.

Dated: February 25, 2022

L.B. Almeleh, Esq.

Lynn Botwinik Almeleh, Esq.

New York State Certified Impartial Hearing Officer

Persons in Attendance December 13, 2021

For the Student:

ESQ., Attorney

Parent

Redacted Provider 1 Speech-Language Pathologist

Redacted Provider 2, Occupational Therapist

Redacted Provider 3, Speech-Language Pathologist

For the Department of Education:

District Representative

Persons in Attendance December 14, 2021

For the Student:

ESQ., Attorney

Redacted Provider 4, PSYD, Neuropsychologist

For the Department of Education:

District Representative

Persons in Attendance January 27, 2022

For the Student:

ESQ., Attorney

For the Department of Education:

District Representative

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

Footnotes

[1] The purpose of an initial evaluation is to assess the child; there is no obligation to test out methodologies.

[2] Rehabilitation Engineering and Assistive Technology Society of North America