New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 543286 - NYC: 199917

FINDINGS OF FACT AND DECISION

Case Number: 199917

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Date of Hearing: March 26, 2021

April 6, 2021

July 30, 2021

August 10, 2021

August 24, 2021

September 17, 2021

September 22, 2021

October 22, 2021

November 15, 2021

December 22, 2021

Record Close Date: February 28, 2022

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 26 2021

For the Student:

REDACTED Attorney

REDACTED Clinical Director, REDACTED

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 6, 2021

For the Student:

REDACTED Attorney

REDACTED Speech-Language

Pathologist and Audiologist

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 30, 2021

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 10, 2021

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 24, 2021

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 17, 2021

For the Student:

REDACTED Attorney

REDACTED Neuropsychologist

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 22, 2021

For the Student:

REDACTED Attorney

REDACTED Occupational Therapist

REDACTED Speech-Language Pathologist

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 22, 2021

For the Student:

REDACTED Attorney

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 15, 2021

For the Student:

REDACTED Attorney

REDACTED Parent

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 22, 2021

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED District Representative

Introduction:

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by REDACTED, the Parent (“Parent”) on behalf of REDACTED, the student (“Student”), through her attorney, REDACTED from the REDACTED by filing a Due Process Complaint dated September 8, 2020. The case number is 199917. I was appointed as the Impartial Hearing Officer on January 22, 2021.

The Parent is alleging that her daughter, REDACTED was denied a free and appropriate public education (“FAPE”) for the 2018-19, 2019-20 and 2020-21 school years and is seeking compensatory educational services for said years and evaluations and/or payment for evaluations.

There were ten days of hearings in this matter. Hearings were conducted on March 26, April 6, July 30, August 10, August 24, September 17, September 22, October 22, November 15 and December 22, 2021. Extensions were granted in this case making the final compliance date March 24, 2022.^[1] A Brief was submitted by the Parent; none was submitted by the District. A list of Exhibits is attached as Exhibit A. The Parent, the District and the Impartial Hearing Officer submitted exhibits.

Background

This case involved a a REDACTED year old student. With respect to the 2018-19 school year the Student resided in REDACTED and then returned to New York City in the middle of the school year. The Student did not have an IEP during this school year. P-A.

With respect to the 2019-20 school year, the Student attended Pre-K at REDACTED. An Individualized Education Program (“IEP”) was developed by the Committee on Preschool Special Education (CPSE) on December 11, 2019. P-G. Pursuant to the December 11, 2019 IEP, the following recommendations were made:

• • Special Class, 8:1:2, five days per week, full day, NYS Approved preschool;
• • Speech-Language therapy, individual, three times per week for 30 minutes each time, in school out of the classroom; and
• • Occupational therapy, individual, three times per week for 30 minutes each time, in school out of the classroom.

For the 2020-21 school year, the Student attended REDACTED. An IEP was developed on March 26, 2020. IHO-I. Pursuant to the March 26, 2020 IEP, the following recommendations were made:

• • Special Class, ELA, 8:1+1, five times per week, one period each time;
• • Special Class, Math, 8:1+1, five times per week, one period each time;
• • Special Class, Social Studies, 8:1+1, five times per week, one period each time;
• • Special Class, Sciences, 8:1+1, five times per week, one period each time;
• • Special Class, Visual Arts, 8:1+1, five times per week, one period each time;
• • Occupational therapy, individual service, three times per week, 30 minutes each time;
• • Speech-Language therapy, individual service, three times per week, 30 minutes each time; and
• • Parent Counseling and Training, one time per month, 40 minutes each time.

On March 26 and April 6, 2021, hearing were held pursuant to Parent’s request for independent evaluations. Based on said hearing an Interim Order was issued on May 4, 2021 and the following evaluations where ordered: Speech and Language Evaluation, Auditory Processing Evaluation, Occupational Therapy Evaluation, Assistive Technology Evaluation and Observation with an expert in Autism and ABA assessment.

The Parent filed a Due Process Complaint on September 8, 2020. P-A. I was appointed as an Impartial Hearing Officer on January 22, 2021.

Position of the Parties

Parent’s Case The Parent called four witnesses, REDACTED, REDACTED, REDACTED and the Parent.

The first witness at the substantive hearing was REDACTED. She is a licensed and registered Occupational therapist. P.S. She is currently employed at REDACTED Speech Services and has been since September, 2020. She is familiar with the Student and conducted an Occupational Therapy Evaluation on July 6, 2021. P-K; P-S. At the time the Student was a REDACTED years old, enrolled in kindergarten at REDACTED. All of the Student’s learning was virtual and she has received all of her Occupational therapy since April, 2019, three times per week for 30 minutes each time, virtually. P-S. She conducted the evaluation virtually using telehealth technology.

The Student was able to attempt all tasks during the evaluation when provided with a visual schedule, frequent rest breaks, visual modeling, repetition of instructions, positive reinforcement, the use of timers and warnings, and frequent redirection back to task completion. P-S. As complexity of the task demands increased, the Student demonstrated challenges in her emotional regulation skills as evidenced by crying, increased vocalizations (i.e., moaning), and increased out of seat behaviors (i.e., attempting to break from tasks). Throughout the evaluation, the Student demonstrated inconsistent eye contact and was humming and moaning to herself as demands became more challenging. P-S. During challenging tasks, the Student demonstrated poor frustration tolerance as evidenced by crying, averting her gaze from the task, propping her head in her arms on the tabletop in front of her, and/or frequently alternating her seated position.

The first test that was reviewed was the Sensory Profile 2, a standardized judgment-based caregiver questionnaire. In the home environment the Student demonstrates the ability to take in sensory cues from her environment, process the information at a cortical level and produce an adaptive response. Due to the fact that the Student was attending school virtually, her SEIT was unable to fill out the Sensory Profile 2 Comparison. P-S. However, an in depth SEIT interview and Occupational Therapist interview were reviewed to gain information on the Student’s sensory processing and regulation skills as it relates to her virtual classroom performance.

The Student’s SEIT, REDACTED reported to REDACTED that she has worked with the Student one hour each day for five days week since May, 2020. She stated that the Student gets antsy and has challenges remaining focused and attentive to tabletop teacher-led instruction after one hour. REDACTED stated that the Student has made progress when provided with reinforcement and the use of motivating materials. While the Student tried to escape teacher directed instruction at the beginning, she is now able to remain seated for the one hour session with a visual schedule and motivating materials. P-S. She can engage with one topic for 5 to 10 minutes. REDACTED stated that the Student’s strengths are her musicality, her ability to retain song lyrics and her ability to follow 1-step directions. She demonstrates responsiveness during sessions and with generalization of skills across contexts. P-S.

The Student’s Occupational therapist, REDACTED reported to REDACTED that the Student has been receiving Occupational services two times a week for 30 minutes each time since February, 2021. The Student has demonstrated progress towards her goals with the use of a systematic fading of prompts and the use of movement activities prior to tabletop activities. P-S. REDACTED reported that at the termination of services in June, 2021, the Student was able to follow most directions when provided with lots of verbal cueing. She did, however, state that the Student was “very distracted and self directed” and was able to stay at table during Occupational therapy sessions but needed support from her mother to return to therapist directed instruction. She also has challenges with novel tasks and transitioning from one activity to the next. P-S.

REDACTED, through observation, determined that the Student presents with significant deficits in fine motor skills including switching her writing utensil from right to left hand, fluctuation between the use of a mature dynamic quadruped grasp and an immature fisted grasp, moving her forearm and wrist as a unit across the page while writing, and challenges maintaining an upright seated posture. She stated that these facts will make it challenging for the Student to keep pace with her peers as the demands of her academic curriculum increases.

The next test performed was the Beery-Buktenica Development Test of Visual Integration (VMI). As a result of testing, it was determined that the Student demonstrates delays in the areas of visual integration and motor coordination skill development. She scored within the 30th percentile on the VMI but scored in the.5th percentile on the Motor Coordination Subtest. The Verbal Perception subtest had to be discontinued due to her challenges with comprehending the verbal instructions for the subtest. Accordingly, REDACTED stated that she will have difficulty as curriculum demands increase due to her well below average performance on all motor control and coordination paper to pencil tasks. P-S.

The next test was the “REAL”, a standardized caregiver questionnaire to evaluate self-care and home and community skills. This was completed by Student’s mom. The test demonstrates significant delays in these areas specifically dressing skills, hygiene and grooming skills, feeding skills, toileting skills, functional mobility, housework/chores and personal safety. These deficits will impact her independence in both home and school environments.

REDACTED concluded that the Student has significant delays in sensory processing and regulation, fine motor control and coordination, as well as self care and that those deficits negatively impact the Student’s ability to participate in the current academic curriculum. She suggested that the Student receive Occupational therapy three times per week, 1:1, for 45 minutes per session within school or in person. The 45 minutes is due to her need for frequent rest breaks. REDACTED also indicated that she needs this 12 months a year to avoid regression. In order to support her, she may need accommodations including: built up/writing tools/grip aids, a multisensory approach to handwriting, a slant board, and a highlighted or color differentiated lines for handwriting. REDACTED stated she needs a multidisciplinary and collaborative approach to therapeutic and academic intervention. She also recommended compensatory Occupational therapy in the form of a bank of 92 OT hours (1 hour a week for 46 weeks for 2 years) to allow the Student to consistently make improvements with her delays. These hours were derived from a qualitative approach considering what she will need to make her “whole” and catch up. She stated that these should not be an expiration date on these compensatory hours. P-S.

On cross, REDACTED stated that the Student received Occupational therapy from February, 2021 through June, 2021, three times per week, 30 minutes each time, virtually. REDACTED testified that she felt 45 minute sessions were more appropriate since the therapist was only able to address fine motor goals in the 30 minute session and the Student requires breaks to participate. Tr. 334. She felt that this would be the case whether or not it was remote. When asked when she needed Occupational therapy for 12 months, she stated that although she does not have data on regression, 12 month sessions should be provided. She calculated compensatory Occupational therapy so that she can make progress to access her academics and school programing within her Occupational therapy goals. Tr. 336.

On redirect, REDACTED testified that she believed that the District found the Student should receive a 12 month program. Tr. 351; P-G; IHO-I. REDACTED indicated that he does not have an issue with 12 month services. Tr. 366.

The next witness was the Parent. Her daughter is almost REDACTED. The Parent has five children ages REDACTED. Tr. 406. None of the children have IEPs except this Student. The Parent is presently working and began in September, 2021. She was home during a majority of the pandemic from March, 2020 through August, 2021 and so were her children. Tr. 407. The Student was born in REDACTED but moved to REDACTED and then back to REDACTED. The Student did not receive Early Intervention Services in REDACTED or REDACTED. In 2019-20 the Student attended a preschool in New York called REDACTED. Tr. 411. It is a preschool for REDACTED employees and her father works at the REDACTED. It was a universal Pre-K. Tr. 411-412. For the 2020-21 school year, she attended REDACTED remotely. Tr. 410. For the 2018-19 school year, she was not in school, however, the Parent put her in Speech therapy and paid $50 copay and the rest was paid out of pocket. Tr. 413. She decided to get Speech therapy for her daughter based on her discussion with the doctor and her research regarding therapists. Tr. 413. She stated that she did not know about applying for early intervention and the doctor did not make her aware of it. Tr. 414. She stated that although the Student was verbal, her speech was like jargon and no one could understand it. Tr. 413.

The Parent testified that the Student did not have a CPSE IEP when she started the REDACTED, however, she was told by the director of REDACTED and the pediatrician that she could apply for services and so spoke with the CSE and they started the evaluation process. The evaluation process started on October 10, 2019. P-Q. It says in the preschool evaluation summary report that the Student had autism, however, the Parent testified that she had not been diagnosed at that time. Tr. 421. The pediatrician had noted that her speech was delayed. On Exhibit Q, Page 9, the Psychological Evaluation, REDACTED indicated that she met the diagnostic criteria for Autism Spectrum Disorder (ASD). P-G; Tr. 423.

The date of the first CPSE IEP meeting following the evaluations was December 11, 2019. P-G. She did not know why there was a two month gap from the time the District started the evaluation progress and the time the IEP meeting was held. Tr. 424. She believed REDACTED was late in getting the reports. Tr. 425. Although the CSE recommended an 8:1:2 special education class, they did not have a school placement for her and provided a Notice of Eligibility for Partial Services at the same CSE meeting. Tr. 425. They said they would provide her with ten hours a week of SEIT services as partial services until she is moved into a special education school. Tr. 427. A month or so later she received a placement recommendation. Tr. 427. They did not explain why they offered her less Occupational therapy in the Partial Services Plan then they recommended in the IEP. Tr. 427; P-H. The Director and Assistant Director of the preschool were on speaker at the CSE meeting and stated that the Student needed 20 hours of support not ten because she needed one-on-one guidance throughout the day. Tr. 429. The District representative did not offer more services because she said that it was temporary and that this was the guideline followed if there was no current placement. The services did not start right way. First they said the Occupational therapist and Speech therapist would come to the school and then they told her they were not able to send anyone and that she would have to take her to a facility. Tr. 432. The SEIT services also started in 2020. She only had SEIT services for 2 ½ - 3 weeks because the SEIT had to update her license. Tr. 433. After that, she did not have the SEIT. Tr. 433. The SEIT began at the end of January and finished 2 ½ to 3 weeks after. She got another SEIT assigned at the end of April, early May. Tr. 434. The Student was receiving school virtually. She was able to attend her specials, ELA and Math, and Speech and Occupational therapy but was not able to follow the regular classes. Tr. 435. In terms of SEIT services, they started her slowly and worked their way up so she started with 5 hours a week so they could get her to sit through it and acclimate. Tr. 435. It was hard getting her to adjust to Zoom and sit for two hours so sometimes it would be an hour or an hour 15 minutes. Tr. 436. She had more focus and attention with the SEIT but found the classes that were not one-one-one more difficult. Tr. 437. The Parent stated that for the three weeks that the Student was receiving SEIT services in school she was doing better than when she was on Zoom. Tr. 437. In terms of her speech, it was still poor, a lot of jargon and baby talk. Tr. 437. Receptively, she understood but she needed a bit more time to process. Tr. 439. She had difficulty with transitions and would tantrum. Tr. 439. This included crying, screaming, throwing herself down, etc. The Parent testified that part of this was because she could not verbalize what she wanted and would have meltdowns. Tr. 440. The Parent testified that the Student did make academic progress with her alphabet, however she is not a Student that shows her intelligence on command so it is difficult to get information out of her. Tr. 440. She received summer services for six weeks including SEIT, Speech and Occupational therapy.

The Parent had been applying to schools for her older children and was looking for a school for the Student. She was offered a REDACTED school, however did not feel it was the right program for her. She decided to put her in REDACTED with her siblings. Tr. 441. They do not have a special education program there but they have special services and provide additional ELA, Math, Speech and Occupational therapy. Tr. 442. The entire program was done virtually. Tr. 443. The Student was receiving her mandate of 10 hours of SEIT, Occupational and Speech therapy. She made a little progress in the 2020-21 school year with the one-to-one SEIT. Tr. 445. She was starting to speak and her vocabulary was increasing but it was not commensurate with her appropriate age. Tr. 446. Behaviorally at the end of the 2020-21 school year, she was more attentive. Her transitioning was better but she was at home. Tr. 447. The Parent states that she still has her moments where she gets very upset or cannot find her words but she is progressing. Tr. 448. She is homeschooling for the 2021-22 school year due to COVID. Tr. 448. The REDACTED said their program was not appropriate for her daughter. Tr. 448. The SEIT was not on with her in school or when Zooming; she saw her separate hours that were not integrated with the school. Tr. 449. The Student really could not participate in the classes the school was offering as she could not keep up. Tr. 450.

The District recommended a REDACTED school. When they first got the assigned school they were in the middle of COVID so there were no tours. Tr. 450. Based on the Parent’s research, she did not believe it was the right fit. It is a segregated program that the Parent thinks will keep her from moving ahead and learning. She is a vey intelligent child who needs one-to-one guidance. Tr. 450-451. The District did not recommend ABA.

The Parent testified that she was recommended to REDACTED for the Student’s evaluation through a parent at REDACTED. Tr. 452. The reason they contacted him was to get a formal diagnosis. No specific recommendations were made by REDACTED or the District for strategies to address the characteristics or symptoms of autism. Tr. 453. She gave a copy of REDACTED’s evaluation to the District but never had any conversations with the District about the report. Tr. 454. The Parent does not remember when she submitted the evaluation. Tr. 455. There was another CSE meeting for the 2021-22 school year and the evaluation was not discussed. Tr. 455. They said they were following the prior IEP because they were not able to evaluate her in a class setting. Tr. 455. The Parent stated that there was an IEP for the 2020-21 school year dated March 26, 2020. IHO-I.

The Parent stated that she is requesting compensatory ABA services for academics, behavior, transitions, daily living skills like dressing, safety, routines, community integration, playing and communicating with other, etc. Tr. 464-465. For academics, she cannot read and does not know letter sounds. Tr. 465. She can count to 15 or 20 but cannot do addition or subtraction. Tr. 466. She is verbal and can get out basic expressions but is still not age or grade appropriate. Tr. 467. She is starting to use sentences but they are not perfectly put together and it is usually to request something. Tr. 468. She cannot fully follow verbal directions and needs guidance. Tr. 469. She needs support with using utensils for eating but can use them. She needs support with dressing. Tr. 472. She does not bathe or brush her teeth independently. Tr. 473. She plays very well alone and will engage with her siblings and can engage in pretend play. She cannot write letters on her own but she can copy them. She cannot write her name on her own yet. Tr. 476-477.

She rarely has tantrums at this point. It is only when they have to tell her no or maybe later. Its not as severe as it was in the 2019-20 school year. Tr. 478. Her tantrums last five to ten minutes and occur four or five times a week. Tr. 478.

The next witness was REDACTED. She has her Ph.D. in Audiology and her Master’s degree in Speech Pathology. She is certified in the areas of Speech and Language Pathology and Audiology. She is also state certified as a teacher of the Speech and Hearing handicapped. She also initiated and directed REDACTED and was a tenured professor at REDACTED and Director for the doctoral program. She also has a private practice as a Speech and Language pathologist and audiologist. P-T.

She is familiar with the Student as she conducted a Speech, Language and Auditory Processing Evaluation of the Student on July 8, 2021. P-L; P-T. The Student is diagnosed with Autism Spectrum Disorder and is “a partial verbal communicator.” At the time of the evaluation, the Student was REDACTED years of age attending kindergarten at REDACTED and receiving SEIT services, Speech and Occupational therapy. P-T.

According to REDACTED, the Student has a history of speech delays and did not utter two word phrases until she was 4.5 years old. She received a private speech evaluation from REDACTED at 3.5 years old. The evaluation indicated that the Student showed significant delays across expressive, receptive and pragmatic language and also showed signs and symptoms consistent with ASD. The Student then began private Speech therapy.

REDACTED stated that the Student was evaluated by the District before her REDACTED birthday in 2019 to determine eligibility for CPSE services. She was found to meet criteria for ASD and was recommended for a preschool placement in an 8:1:2 setting with related services of Speech therapy, 3x30x1:1 and Occupational therapy, 3x30x1:1 on a 12 month basis. Since a placement was not available, she was provided ten hours of SEIT services in a mainstream preschool, as well as Speech therapy, 2x30, and Occupational therapy, 2x45. P-T. According to REDACTED, the Student received a Neuropsychological Evaluation by REDACTED, which was completed in August, 2020. The Student was diagnosed with ASD and accompanying language impairment and was recommended for an intensive 1:1 ABA program during the day and a home-based program of 20 hours of ABA. P-T.

REDACTED stated that the Parent reported that the Student’s progress has been slow with minimal growth and that her reading and speech development have declined during the pandemic. She uses gestures to communicate, is echolalic, can answer yes/no questions, and speaks in one word utterances, 2-3 word phrases. She uses baby talk, has articulation errors and her speech is difficult to understand. She exhibits attentional issues and can be hyperactive or demonstrate fatigue when she is not doing what she wants. Given her limited communication skills, her social skills are compromised. During the evaluation, the Student was often distractible and inattentive and her eye contact was variable and she required parental intervention at the outset. P-T.

REDACTED reported that due to the Student’s distractibility and lack of compliance, she was not able to administer the full battery of tests for audiological assessment and auditory processing Otoscopic examination was not achievable because the Student would not allow touching of her ears. However, based on the use of earphones it was determined that the Student has sufficient hearing for speech and language development. She was not able to complete the central auditory processing battery as the Student could not understand the directions for more complicated testing. Based on testing, the Student demonstrated impaired phonemic synthesis skills and was only able to blend 4 out of 15 words (which is below the criterion of 9 words for a kindergarten student). REDACTED said she did not demonstrate early literary skills. Auditory localization was examined and revealed adequate ability. She orients in the direction of electronic sources of music or other auditory media and turns her head in the direction of a live or recorded voice at least half of the time. Her vision appears functional and she demonstrates consistent visual tracking of objects. Eye contact to speaker is at a four level of functioning requiring constant prompting. Visual inspection of items is inconsistent whereby she may focus at least half of the time when prompting required. Occasional stare behaviors were also exhibited. She demonstrates a weak ability to appropriately interact with objects, follow directions, and indicate needs or assistance. She benefits from visual models, gestural prompting and, familiarity with the sequence of an activity. She is ambulatory and is not impacted by significant motor deficits. She is toilet trained yet still requires some assistance. She exhibits inadequate integration of sensory information including tactile and proprioception information.

The Student’s ability to follow directions was assessed using the Token Test Children-2 and she was asked to discriminate the colors, size, and shapes and point to a small red square and circle. She scored in the 7th percentile with an age equivalent of 3.2 indicating that she is able to follow simple directions but her ability is compromised. P-T.

The Student has some repetitive, non-purposeful vocalizations. She has poor safety awareness, lacks understanding of social boundaries, and demonstrates some irrational fears. She also has poor sensory integration which interferes with her attention span. P-T. She demonstrates moderate deficits in attention that negatively impact her ability to attend to a task without interruption and remain seated for evaluation. Her attention span was poor overall, shortened as she fatigued and varieties with mood and required constant prompting and redirection.

The Student exhibits severely impaired receptive language skills. She scored in the.1 percentile on the Peabody Picture Vocabulary Test 4th Edition with an age of 2.2 years. She did, however, know some words in the 4-5 age category. She also exhibits severely delayed expressive language skills and is a limited non-verbal communicator. Her speech is minimal and is used to obtain an item or food. She relies on facial expression, vocalizations, pointing, actions, and push-pulling behaviors. The Student’s expressive vocabulary is reduced to single word approximations or two-word utterances. She can respond to yes-no questions but not “wh” questions. When frustrated, she has a meltdown or cries. P-T. In terms of pragmatic social language skills, the Student demonstrated a lack of communicative intent to seek/request an item/action, gain attention, greet/take, leave, label and request assistance. She will only initiate communication if asked or prompted.

On the Preschool Language Scale (5th Edition), the Student was not able to label or point to any objects presented. Her auditory comprehension and expressive communication scores and total language scores fell in the first percentile. Her age equivalency was comparable to a 2-2 ½ year old. P-T.

The Student’s articulation abilities assessed using the Sounds-In-Words test of the Goldman-Fristoe Test of Articulation-Third Edition. The Student scored in the 4th percentile which is an age equivalence of 3.4-3.5 years old.

Based on the Student’s severe communication disorder in both receptive and expressive language and severe articulation disorder, as well as her global diagnosis of ASD, REDACTED recommended several things. First, increased speech-language services for intensive training of both oral and non-oral means of communication. She suggested that she receive Speech therapy five times per week (3x1:1 and 2x3:1) to work on signed vocabulary, utilization of an AAC, receptive and expressive language, and following directions. REDACTED also believe the Student requires an iPad with an AAC introductory software application program. She should have a comprehensive AAC evaluation to determine the most appropriate system to meet the Student’s needs. The Parent should be trained on the use of the AAC device for use at home and should receive training with the AT specialist at a minimum four times per year at 60 minutes per session. She should also receive compensatory Speech services to make up for lost sessions calculated at 5x per week x 30 minutes per session over the course of a year. Finally, REDACTED stated that due to her behavior and lack of responsiveness, she requires ABA therapy. P-T.

On cross, REDACTED testified that due to the Student’s autism and distractibility, she could not get consistent responses from the Student and was not able to do a formal battery of tests. REDACTED indicated that the Student had very limited language skills. Tr. 385. On the spectrum, REDACTED found the Student to be very low functioning. Tr. 386. REDACTED believes that the Student was evaluated at 3 ½ and did not get services and did not get services during COVID. Tr. 389. She stated that based on her severe communication dysfunction, she should have received Speech therapy five times a week and she should have received that for the 2020-21 school year. P-T.

The next witness was REDACTED. He is a licensed clinical neuropsychologist. Since 2000, he has been a director of REDACTED (REDACTED). His practice specializes in conducting neuropsychological evaluations for children, as well as educational placement and planning. P-R. He is also an adjunct clinical assistant professor at REDACTED and a clinical instructor at the REDACTED. He has conducted thousands of neuropsychological evaluations over more than twenty years of practice and has significant experience working with evaluating ASD. P-R.

He is familiar with the Student as he and his colleague as Dr. REDACTED conducted a neuropsychological evaluation on January 22, 2020, January 31, 2020 and August 24, 2020. REDACTED stated that the Student’s developmental history is significant for severely delayed speech, difficulties with separating, and temper tantrums beyond developmental norms. REDACTED stated that despite this, the Student did not receive early intervention services. When the Student was 3.5 years old she was evaluated by a private speech pathologist, REDACTED and the evaluation showed that she had significant delays across expressive, receptive and pragmatic language. P-R. REDACTED’s evaluation also showed signs consistent with ASD including eye contact and joint attention, “intermittent bursts of controllable facial expressions and failure to engage in reciprocal instructions”. She began private Speech therapy at this time.

Around October, 2019 (before the Student’s REDACTED birthday, she was evaluated by REDACTED Family Services in order to determine eligibility for CPSE services. This was her first evaluation by the District. It was determined at that time that the Student met the criteria for ASD though she had never received a thorough diagnostic psychological or neuropsychological evaluation and was recommended for a preschool placement in an 8:1:2 setting with related services of Speech therapy (3x30x1:1) and Occupational therapy (2x45x1:1). The Student attended REDACTED for pre-kindergarten for a limited time. Her SEIT was with her for only about two weeks due to the expiration of her credentials and it was determined that it was unsafe for the Student to attend the program without SEIT support. She stopped attending preschool in February, 2020 and was not reassigned a SEIT until May, 2020. For kindergarten, the Student was in a full-time remote program at REDACTED.

At the evaluation, REDACTED reported that behaviorally, the Student had significant difficulty with sustained engagement of testing materials. Although she separated from her mother during testing, she was easily and frequently distressed especially during transitions. She engaged in tantrum behaviors when not permitted to engage with testing materials in her preferred manner, often grabbing materials and trying to take them away from the evaluator and shrieking when limits were placed on her behaviors. She exhibited single word utterances that were appropriate, but elicitation was difficult and frustrating for her. The Student’s second session was terminated early due to dysregulation including aggressive behaviors like hitting and scratching. P-R. During the final session, the Parent attended and this caused improved self-regulation and ability to transition. Many of the Student’s behaviors during the evaluation between January and June persisted including frequent echolalia, grunting, facial grimacing, and impaired reciprocity and communication skills. She exhibited difficulties with turn-taking, imitation, task perseverance and self direction. REDACTED indicated that due to these behaviors the results of the evaluation were believed to be a significant underestimate of the Student’s potential.

They were unable to administer several of the WPPSI-IV subtests and could not reliably compute the Student’s full scale IQ. She was able to provide verbal labels to images at the 5th percentile, construct designs with blocks imitating the examiner’s lead at the 2nd percentile, and puzzle construction at the 16th percentile. REDACTED believed these were underestimates due to her self directed interests and low task perseverance. The Student was able to complete patterns by finding a 1:1 match with significant prompting and redirection at the 16th percentile. Therefore, with significant behavioral supports, including 2:1 attention, verbal and physical prompting, redirection and reinforcements, the Student can show engagement and cognitive potential.

Based on the BASC-3 Parent Report, the Student demonstrates behaviors of clinical significance in the areas of social skills, functional communication, and activities of daily living. Her at-risk behaviors include attentional problems and issues with adaptability. She also needs help with all aspects of self care. She was also assessed with the Vineland Behavior Scales by the Student’s father filling out a form and it was determined that her communication skills were assessed at the 1st percentile, her daily living skills at the 4th percentile, her socialization skills at the 7th percentile, and her motor skills at the 10th percentile. Her ability to perform these tasks is influenced by her attentional and self regulation issues, her deficits in language and learning, and her fine motor dysfunction. P-R.

She was administered the Module 1 of the Autism Diagnostic Observation Schedule, Second Edition (ADO5-2). Her overall score fell at the classification cut-off for Autism, with her level of related symptoms in the high range. She never initiated play or gave objects of interest to her mother, she was not able to sustain eye contact, her joint attention was inhibited by difficulties coordinating her gaze and body language. Almost all of the Student’s observed language was echolalic and repetitive. Her play was largely sensory and she engaged in some repetitive activities with play.

The Student’s mother completed the Social Communication Questionnaire Lifetime Form (SCQ) and the Social Responsiveness Scale, Second Edition (SRS-2). Although the mother’s responses did not indicate ASD, she indicated that the Student cannot have a back and forth conversation, says the same phrases over and over, is usually interested in the sensory experience of things, does not use gestures, does not spontaneously copy social activities, does not point at items, does not play imaginative games with other children. On the SRS-2, the mother’s responses indicated behaviors within the moderate range with respect to restricted and repetitive behaviors and for social communication and interaction overall and also rated in the mild range for social awareness, social cognition, and in the normal range for social motivation.

REDACTED stated that the Student meets the DSM-5 Diagnosis of ASD, with accompanying language impairment and significant deficits in attention and self regulation of behaviors and emotions. Although she is better regulated and socially engaged in familiar contexts, her social responses continue to indicate a high level of need for intervention. REDACTED stated that the Student requires immediate fulltime 1:1 support from an ABA trained special educator in order to achieve progress and to prevent further regression. He believes that there are several factors that are causing the Student difficulty at this time and will continue and contribute to her ability to make progress including: (1) her significant behavioral needs including significant self-directedness, low frustration tolerance, and significant emotional dysregulation; (2) her speech and language delays; (3) her reciprocity and delayed social skills, as well as her variable attention and self regulation difficulties. He stated that she has shown that she responds to structure, redirection, and 1:1 behavioral strategies. He believes that the Student requires a home-based program in order to receive additional services which cannot be provided during school hours and for repetition and reinforcement of learned skills and to prevent regression. REDACTED believes that without the home support, the Student will not make appropriate progress and will regress. P-R.

REDACTED stated that the Student requires fulltime 1:1 direct instruction from an ABA trained special educator in order to make progress going forward utilizing a data driven ABA program for children with ASD that focuses on increasing functional communication and decreasing maladaptive behaviors. The programming should also target behavior including social interaction, on-task behavior and reciprocity. She should have a behavior plan to increase the likelihood of positive behaviors (i.e., social interaction, compliance with commands, participation) and to decrease the likelihood of negative behaviors (i.e., avoidance, tantrums, sensory-seeking behaviors). He also indicated that she needs 12 months of service to avoid regression. REDACTED does not believe a REDACTED placement would be appropriate since it would be too overwhelming for her. He also believes that she requires a home based program which includes at least 20 hours of 1:1 ABA to minimize maladaptive behaviors, increase communication and reciprocity, and provide repetition and reinforcement of learned skills. P-R.

REDACTED believes that due to the failures of the District to provide appropriate services for the 2019-20 school year, the Student should receive compensatory services to accommodate for the 1:1 ABA fulltime program she should have had during said year. He said this is particularly critical due to her developmental age “as the impact of intervention becomes less effective as the Student gets older.” The Student should also continue to receive Occupational Therapy and should receive Speech and Language Therapy at increased intensity of 5x60x1:1 due to her significant delays. He believes the Student requires the introduction of an augmentative communication device (AAC) or PECS system. Also there should be continuity and generalization between home and school to increase functional communication in both settings. She should receive direct instruction in the AAC as well as consultation for her teachers, providers and parents. REDACTED also believes that the Student’s parents require bi-weekly educational parent training, counseling and periodic team meetings to coordinate behavioral ABA techniques between the school and home environment. P-R.

On cross, REDACTED stated that the Student required a fulltime ABA program including 30 plus hours of school and a home program including 20 hours a week of 1:1 ABA support. He would want it to be with a BCBA (unless clearly supervised by a BCBA) given the severity of the Student’s needs. Tr. 294. REDACTED stated that she had a temper tantrum anytime she was asked to do something that she could not do. He said it was constant when not engaged in a task or being pushed to a place where she could not engage. Tr. 295. REDACTED made clear that a special education provider with a BCBA would be required at home not a technician and in school it can be a special educator supervised by a BCBA. The schools in the area that have fulltime ABA programs include REDACTED, REDACTED and REDACTED. Tr. 305. The District does not have such a program, however the closest would be the REDACTED, but it’s by lottery. Tr. 306

District’s Case The District called no witnesses and placed three documents into evidence. D-1-2; D-9.

Findings

Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. 1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. 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. at 206-07; 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 v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). “[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP” (Walczak v. Fla. Union Free Sch. Dist., 142 R.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). 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. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. ___, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student’s IEP and indicated that “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not” (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; (R.E., 694 F.3d at 190; M.H., 685 F. 3d at 245).

The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415 [f][3][E][i]). A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see, Rowley, 458 U.S. at 189). “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” (Endrew F., 137 S. Ct. at 1001). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …affords the student with an opportunity greater than mere ‘trivial advancement’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 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”]; see Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walczak, 142 F.3d at 132).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

With respect to Parent’s request for compensatory services, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]). Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]). Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *24 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at *12-*13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]). Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13- 226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]). In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be 8 reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puyallup, 31 F.3d at 1497 ["There is no obligation to provide a day-for day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Where there has been a violation of FAPE, hearing officers have broad authority to grant such relief as they deem appropriate, including compensatory education. 20 U.S.C. 1412 (a)(1), 1415(i)(2)(C)(iii), 34 C.F.R. 300.51 (c)(5); P. v. Newington Bd of Educ., 546 F.3d 111, 123 (2d Cir. 2008). A hearing officer should thus award compensatory education in the form of education or services where such an award is necessary to make up for a FAPE deprivation. P., 546 F. 3d at 123 (citation omitted). In evaluating a claim for compensatory education, a hearing officer must engage in a fact-specific inquiry to fashion an award that is “reasonably calculated to provide educational benefits that likely would have accrued from…services the school district should have supplied in the first place.” Reid. v. Dist. Of Columbia, 401 F.3d 516, 524 (D.C. Cir 2005).

The District did not provide any witness testimony and placed three exhibits in evidence in this matter. The District stated that they were not putting on a case, however, were not conceding FAPE in this matter. Tr. 233. Therefore, the first issue is whether there was denial of FAPE for the 2018-19, 2019-20 and 2020-21 school years.

With respect to the 2018-19 school year, the Parent is requesting in the Impartial Hearing Request that the District failed to provide the Student with a FAPE for the 2018-19 school year. In their Memorandum of Law (IHO-II) they are requesting the following for said year: “(a) 1280 hours of 1:1 instruction, using ABA strategies (32 weeks of 40 hours per week), (b) 32 hours of ABA/BCBA supervision, (c) 825 hours of Speech and Language Therapy (30 minutes, 5 times per week x 32 weeks), (d) 32 hours of OT (1 hour per week as per REDAACTED), (e) 64 hours of parent training and counseling.” IHO-II.

In the Due Process Complaint, it states that “During the middle of the 2018-19 school year, [the Student] and her family returned to New York City from REDACTED.” During the Parent’s testimony, she stated that the Student was born in REDACTED but moved to REDACTED and then back to REDACTED and that the Student did not receive Early Intervention Services in REDACTED or REDACTED. Tr. 411. Clearly, there is no clear testimony on where the Student was during the 2018-19 school year and when she returned to REDACTED. There was, however reference to the fact that a pediatrician recommended Speech therapy and the Parent sought a Speech therapist privately during that year. Neither the Speech therapist nor the pediatrician referred her for early intervention or CPSE services. Based upon the foregoing, I will not be making a determination with respect to whether the District failed to provide the Student with FAPE during that school year since it is not clear where the Student was during the 2018-19 school year. Therefore, I am dismissing the request for a determination for the 2018-19 school year and accordingly will not be awarding any compensatory education for said year.

With respect to the 2019-20 and 2020-21 school years, the District did not provide any witness testimony to defend FAPE and the three exhibits that were put in evidence did not present a case. Therefore, the District did not meet their burden in this matter. It should be noted that the District indicated that the Student was entitled to any pendency services that were not provided during the 2019-20 or 2020-21 school years and as such, is not contesting Parent’s request for compensatory services for any pendency hours. Tr. 377.

For the 2019-20 school year, an IEP was developed by the CPSE on December 11, 2019. P-G. In September, 2019, the director of REDACTED and the pediatrician indicated that a referral should be made to the CPSE for evaluations and services. Tr. 420-421. The December, 2019 IEP recommended the following: Special Class 8:1:2, Speech and Language therapy (3x30,1:1), Occupational Therapy (3x30,1:1), and 12 month extended school year services. P-G. At that same meeting the CSE determined that they could not identify a placement for the Student and provided the Parent with a Notice of Eligibility for Partial Services. P-H. In the interim, while finding a placement, they offered the Student SEIT services, ten hours, 1:1; Occupational therapy (2x30,1:1) and Speech therapy (2x45,1:1). P-H; Tr. 425. They provided her with less services then she had on her IEP and although the Director and Assistant Director at REDACTED recommended 20 hours of SEIT services at the CSE meeting, the CSE provided her with ten hours. Tr. 425-427. In addition, they provided her with less Occupational therapy. In spite of this, the Student received SEIT services for two weeks due to the expiration of the SEIT credentials. It was determined that it would be unsafe for the Student to attend the program without SEIT support. Therefore she stopped attending REDACTED in February and was not assigned a SEIT until May. The special education program and services that were developed did not meet her needs. In the Preschool Evaluations conducted by REDACTED and used at the meeting, the Student met the criteria for ASD and all of the evaluations clearly indicated that she was severely impaired across all domains. Once the program was developed it could not be implemented, not could the Partial Services Plan.

For the 2020-21 school year, an IEP was developed on March 26, 2020. IHO-I. The CSE recommend the following program and services:

• • Special Class, ELA, 8:1+1, five times per week, one period each time;
• • Special Class, Math, 8:1+1, five times per week, one period each time;
• • Special Class, Social Studies, 8:1+1, five times per week, one period each time;
• • Special Class, Science, 8:1+1, five times per week, one period each time;
• • Occupational therapy, 1:1, three times per week, 30 minutes each time;
• • Parent Counseling and Training, 40 minutes each time; and
• • Speech-Language Therapy, 1:1, three times per week, 30 minutes each time.

The District representative did not get new testing and indicated that they were just going to rely on the prior testing due to COVID. The IEP repeats the description of the Student from the CPSE evaluations and 2019-20 IEP. Although the Parent indicated that the District was provided with REDACTED’s evaluation (P-R), this was not reviewed at the CSE meeting for the 2020-21 school year, nor was another meeting developed to review said evaluation. REDACTED, REDACTED BCBA, REDACTED and REDAACTED all believed that the Student should have received an intensive 1:1 instructional program utilizing ABA methodology In REDACTED’s Neuropsychological Evaluation (P-F), the Student was diagnosed with ASD with accompanying language impairments. Based on his evaluation, he testified in his Affidavit (P-R) that “with the consideration of the failure of the [District] to provide appropriate services for the 2019-20 school year, [the Student] requires compensatory services to accommodate for the 1:1 ABA fulltime program she should have had during that time in order to make the appropriate gains she should have made over the course of last year. He specifically recommended “full-time 1:1 direct instruction from an ABA trained special educator in order to make progress going forward.” He said that she required 1:1 direct instruction using a data driven ABA program for children with ASD that focused on increasing functional communication and decreasing maladaptive behaviors and that her programming should also include targeting social interaction, on-task behavior and reciprocity. He stated that she also requires 20 hours of a home-based program which included 20 hours of 1:1 ABA services to minimize maladaptive behavior, increase communication and reciprocity and repetition and reinforcement of learned skills. P-R. REDACTED also indicated that the Student required intensive ABA therapy. P-R. REDACTED also believes that due to the Student’s gross and fine motor delays, she should continue Occupational therapy at the rate and frequency determined by her provider. He also indicated that due to her significant speech and language delays, her speech should be increased to provide daily therapy (5x60) and she requires the introduction of an augmentative communication device or PECS system. It should also be noted that REDACTED testified that a REDACTED placement would be inappropriate for this Student and overwhelming. P-R. I credit his testimony in this regard.

REDACTED also indicated that the Student required increased Speech and Language services for both oral and non-oral means of communication. She recommended Speech therapy five times per week (3x1:1 and 2x3:1) going forward to work on signed vocabulary, utilization of an AAC for receptive and expressive language and for following directions. She also stated that the Parent should receive training on the use of the AAC device for use at home and should receive training from an AT specialist at a minimum of four times per academic year at 60 minutes per session. To make up for lost sessions for the 2019-20 school year, she should receive a year of sessions five times per week for 30 minutes each time for the year. P-T.

REDACTED, BCBA, in her report, stated that “[The Student] presented with social, language, communication, and other behavioral difficulties which inhibit her ability to function at an age -appropriate level in all settings…It is my recommendation that she be taught appropriate skills and replacement behaviors utilizing…ABA so that she can interact socially with others, communicate appropriately, attend to teaching stimuli, stay on task for increased durations of time, and decrease her maladaptive behaviors of non-contextual vocalizations, non-contextual body and face movements and noncompliance, as well as other reported behaviors incuding tantrum behavior.” She also believed that the Student “required both an intensive 1:1 in-home program using the principles of ABA as well as intensive 1:1 school based instruction with a special educator trained in ABA…” P-J.

REDACTED, the Occupational therapist that evaluated the Student testified that the Student has deficits in the areas of sensory processing and regulation, fine motor control and coordination, and self-care within the home and school environment and those delays have negatively impacted the Student’s ability to participate in her current academic curriculum. P-S. She recommended that the Student receive Occupational therapy three times per week for 45 minutes each time individually for 12 months to avoid regression. She believed that a 45 minute session was necessary due to frequent rest breaks and short attention spam. REDACTED also recommended compensatory Occupational therapy services in the form of a bank of 92 Occupational therapy hours (1 hours a week for 46 weeks for 2 years) which the Student required. She stated that “These compensatory hours were derived from a qualitative approach considering what [the Student] will need to make her “whole” and catch up. Unfortunately, the gaps in [the Student’s] skills will continue to widen if she does not have enough clinical intervention to address the deficits that are present. P-S.

Based upon the foregoing, I find that the District did not provide FAPE to the Student for the 2019-20 and 2020-21 school years. Accordingly, the Parent is entitled to compensatory and make-up SEIT services, Speech-Language therapy, and Occupational therapy. The providers shall be chosen by the Parent at the reasonable market rate for such providers consistent with the prevailing rates paid to providers by the District’s Impartial Hearing Implementation Unit or comparable rates for comparable providers.

Based upon the District’s failure to provide FAPE for the 2019-20 school year, the District shall implement the following compensatory education for its failure to provide the recommended services for the 2019-20 school year, based upon the recommendations of the evaluators and the evidence presented:

• • 1600 hours of 1:1 instruction using ABA strategies (40 weeks of 40 hours per week);
• • 40 hours of ABA/BCBA supervision;
• • 82.5 hours of Speech and Language therapy (30 minutes, five times per week x 32 weeks);
• • 40 hours of Occupational therapy (one hour per week as per REDAACTED);
• • 12 hours of Parent Training and Counseling.

Based upon the District’s failure to provide FAPE for the 2020-21 school year, the District shall implement the following compensatory education for its failure to provide the recommended services for the 2020-21 school year, based upon the recommendations of the evaluators and the evidence presented:

• • 1600 hours of 1:1 instruction using ABA strategies (40 weeks of 40 hours per week) less any SEIT hours provided to the Student;
• • 40 hours of ABA/BCBA supervision;
• • 82.5 hours of Speech and Language therapy (30 minutes, five times per week x 32 weeks);
• • 40 hours of Occupational therapy (one hour per week as per REDAACTED;
• • 12 hours of Parent Training and Counseling less any Parent Training and Counseling provided to the Parent.

The District shall fund and/or reimburse the Parent for transportation for the Parent and Student to and from the provider for compensatory education, if the services cannot be provided at home. This may include metro cards or car service at the reasonable market rate for such service. In the event the Parent drives to the provider, the Parent shall be reimbursed for tolls and mileage. All compensatory services must be completed within three years from the date of this Order.

For both the 2019-20 and 2020-21 school years, for purposes of compensatory education services, the providers shall be chosen by the Parent. If the Parent selects a provider that has not been paid by the Impartial Hearing Implementation Unit (IHIU)in the past twelve months, the provider must be paid at a reasonable, comparable market rate to the comparable providers funded by the District. In this event, prior to services being implemented, the Parent shall first request authorization from IHIU and include the proposed rate. If IHIU objects to the rates proposed, IHIU must notify the Parent and her counsel within 48 hours from the requested authorization and within three business days, implement the service with an appropriate provider. If the IHIU does not dispute the requested rate, the District must approve the provider at the appropriate rate. Notwithstanding the option of the Parent to select private providers to fund compensatory education services, if the Parent requests that the District implement any of the compensatory services in this order, the District must do so within five business days.

With respect to the Student’s communication needs, an Assistive technology evaluation was conducted. She was evaluated to determine if an Augmentative and Alternative communication device would be appropriate to assist her in meeting her communications needs. Based upon the Assistive Technology evaluation conducted by REDACTED (P-V), she stated that “although the Student demonstrates verbal language, due to her echolalia, she is limited in her ability to use various communication functions across context functionally.” The evaluator indicated that “at this time, due to disinterest, parental preference and her language development to date, [the Student] is not being recommended for the use of an AAC device.” The evaluator indicated that due to the Student’s decreased phonemic awareness, decoding and spelling as well the need to attain writing and encoding skills, she requires the use of an iPad to support her reading and writing skills at home, as well as an Anker Bluetooth Ultra-Slim Keyboard, Protective Case for iPad, Zagg Invisible Shield-HDX-HD Quality+Extreme Shatter Protection for iPad, Apple Pencil and Noise cancelling headphones to be used with audio books and test to speech output.

In this regard, the Assistive Technology Evaluation conducted by REDACTED should be reviewed by the CSE to determine whether the AT equipment and programs and supports recommended by the evaluator should be provided to the Student at this time to support her needs going forward. This should not be provided as compensatory services for the District’s failure to provide FAPE to the Student for the 2019-20 and 2020-21 school years and the evaluator did not indicate this to be the case.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that

• • As a result of the District’s failure to provide the Student with FAPE for the 2019-20, and 2020-21 school years, the Student is entitled to the following:
• • Funding for up to 3200 hours of compensatory 1:1 instruction using ABA strategies (80 weeks of 40 hours per week) less any SEIT hours provided to the Student;
• • Funding for up to 80 hours of compensatory ABA/BCBA supervision;
• • Funding for up to 165 hours of compensatory Speech and Language therapy (30 minutes, five times per week x 64 weeks);
• • Funding for up to 80 hours of Occupational therapy;
• • Funding for up to 24 hours of compensatory Parent Training and Counseling less any Parent Training and Counseling provided to the Student.
• • The District shall fund and/or reimburse the Parent for transportation for the Parent and Student to and from the provider for compensatory education, if the services cannot be provided at home. This may include metro cards or car service at the reasonable market rate for such service. In the event the Parent drives to the provider, the Parent shall be reimbursed for tolls and mileage.
• • All compensatory services must be completed within four years from the date of this Order.
• • For both the 2019-20 and 2020-21 school years, for purposes of compensatory education services, the providers shall be chosen by the Parent. If the Parent selects a provider that has not been paid by the Impartial Hearing Implementation Unit (IHIU)in the past twelve months, the provider must be paid at a reasonable, comparable market rate to the comparable providers funded by the District. In this event, prior to services being implemented, the Parent shall first request authorization from IHIU and include the proposed rate. If IHIU objects to the rates proposed, IHIU must notify the Parent and her counsel within 48 hours from the requested authorization and within three business days, implement the service with an appropriate provider. If the IHIU does not dispute the requested rate, the District must approve the provider at the appropriate rate.
• • Notwithstanding the option of the Parent to select private providers to fund compensatory education services, if the Parent requests that the District implement any of the compensatory services in this order, the District must do so within five business days.

Dated: March 8, 2022

Elise B. Kestenbaum

Elise B. Kestenbaum, Esq. Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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 served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally serviced upon opposing part within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 and model forms are available at: www.sro.nysed.gov/appeals.htm.

Appendix A

Evidence

Parent’s Exhibits

No.

Date

Document

Pages

A.

9/8/2020

Impartial Hearing Request

17

B.

108/20

Records Request via Fax

7

C.

3/19/21

Affidavit of REDACTED, Phy.D, BCBA, LB/a

3

D.

3/19/21

Affidavit of REDACTED, Ph.D, CC-SLP/A

3

E.

3/24/21

Affidavit of REDACTED, M.S./CCC/SLP

4

F.

1/22/20-8/24/20

REDACTED Neuropsychological Evaluation

12

G.

12/11/19

IEP (2019-20)

24

H.

12/11/19

Notice of Eligibility of Partial Services

1

I.

Void

J.

6/25/21

REDACTED Behavioral Observation

4

K.

7/6/21

REDACTED, Speech Services, Occupational Therapy Evaluation

20

L.

7/8/21

Auditory Processing and Speech and Language Evaluation

26

M.

Void

N.

Void

O.

Void

P.

Void

Q.

10/2019-11/2019

REDACTED Pre-School Student Evaluation Summary Report

32

R. undated

Affidavit of REDACTED

14

S.

9/24/21

Affidavit of REDACTED

12

T.

9/20/21

Affidavit of REDACTED

14

U.

Void

V.

7/29/21-8/25/21

REDACTED, Speech Services, Assistive Technology Evaluation

7

District’s Exhibits

No.

Date

Document

Pages

1.

9/8/20

Impartial Hearing Request

17

2.

9/30/20

CSE Meeting Notice to Counsel re: Resolution Meeting

1

3.

Void

4.

Void

5.

Void

6.

Void

7.

Void

8.

Void

9.

10/15/20

Supervisor of Psychologist’s Email To Counsel re: Partial Resolution Agreement

1

IHO’s Exhibits

No.

Date

Document

Pages

I

3/26/20

IEP (2020-2021)

37

II

12/23/21

Memorandum of Law in Support of the Petitioners Requested Relief

30

Footnotes

[1] The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering these requests, I weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly requests for extensions of the case compliance date were granted.