New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 544515 - NYC: 201107

FINDINGS OF FACT AND DECISION

Case Number: 201107

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 03/11/2021 Pre-Hearing Conference 201107 & 202847

04/08/2021 Status Conference 202847

05/04/2021 Status Conference 202847

05/18/2021 Hearing 202847

06/14/2021 Hearing 202847

07/14/2021 Status Conference 202847

08/13/2021 Hearing 202847

10/20/2021 Hearing 201107

12/10/2021 Hearing 201107

02/09/2022 Hearing 201107

03/22/2022 Hearing 201107

04/14/2022 Status Conference 201107

06/22/2022 Status Conference 201107

08/31/2022 Hearing 201107

10/18/2022 Hearing 201107

Actual Record Close Date: 11/03/2022 Decision Date: 11/04/2022

Hearing Officer: Daniel Ajello Esq.

CASE 202847

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/11/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/08/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/04/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/18/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/14/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/14/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: None

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/13/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

CASE 201107

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/11/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/20/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/10/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], Parent

[REDACTED], Parent

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/09/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/22/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/14/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/22/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/31/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/18/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], Parent

[REDACTED], Parent

For the Department of Education: [REDACTED], District Representative

DOCUMENTS ENTERED INTO THE RECORD

PARENT DOCUMENTS

Exhibit/Entered

Description

Date

Pages

A 04/08/21

Impartial Hearing Request in Case # 202847

09/15/2020

15

B 04/08/21

Impartial Hearing Request in Case # 201107

09/17/2020

14

C 08/13/2021

Behavior Intervention Plan

02/04/2020

1

D 08/13/2021

[REDACTED]Occupational Therapy Evaluation

08/11/2017

8

E 08/13/2021

Psycho-educational Evaluation

10/24/2017

8

F 08/13/2021

DOE Assistive Technology Evaluation

11/27/2017

7

G 08/13/2021

[REDACTED] of NYC IEP Recommendations

11/30/2017

1

H 08/13/2021

Neuropsychological Evaluation

06/13/2019

31

I 08/13/2021

Neuropsychological Evaluation Summary of Scores

04/11/2019, 04/18/2019, 05/02/2019

8

J 08/13/2021

P.S. [REDACTED]Report Card 2019 and IEP Progress Report

03/2019

11

K 08/13/2021

Academic Progress Report September 2020- October 2020

09/16/2020- 10/31/2020

3

L 08/13/2021

Parent Email Communication with

Principal Regarding Placement & IEP

06/18/2020

2

M 08/13/2021

Functional Behavior Assessment Parent Questionnaire

Undated

3

N 08/13/2021

Excluded Irrelevant

O 08/13/2021

Excluded Irrelevant

P 08/13/2021

Excluded Irrelevant

Q 08/13/2021

Excluded Irrelevant

R 12/10/2021

Findings of Fact and Decision

07/01/2021

28

S 12/10/2021

Affidavit of [REDACTED]

Sworn to on 12/10/2021

12/08/2021

12

T 12/10/2021

Auditory Processing / Speech Language Evaluation

11/15/2021

20

U 10/18/2022

[REDACTED][REDACTED] Summer Program Description

2021

5

V 10/18/2022

[REDACTED]Occupational Therapy Evaluation

01/14/2022

10

W 10/18/2022

Neuropsychological Evaluation: Dr. [REDACTED]

09/26/2022

26

X 10/18/2022

Curriculum Vitae: Dr. [REDACTED]

2

HEARING OFFICER DOCUMENTS

Entered 11/03/2022

I Notice of appointment, 12/8/20, four pages

Entered 04/08/2021

II Order of Consolidation, 03/11/2021, two pages

Entered 06/14/2021

III Interim Order Evaluations, 05/18/2021, seven pages

Entered 11/03/2022

IV Consolidation Order, 03/11/2021, two pages

V Consolidation Order, 07/08/2021, two pages

VI Corrected Consolidation Order, 08/25/2021, two pages

VII Interim Order Evaluation, 03/22/2022, six pages

VIII Notice of Appearance, 09/06/2022, 1 page

IX Proposed Order, submitted 11/03/2022, 3 pages

DEPARTMENT OF EDUCATION

None

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

INTRODUCTION

This matter involves Consolidated cases, as indicated in Corrected Consolidation Order, Cases 201107 and 202847. (IHO Ex IV)

Case 201107, was filed 09/16/2020, and concerns the17-18 and 18-19 school years.

Case 202847, was filed 09/21/2020, and concerns the 19-20 school year.

To each matter, the Impartial Hearing Officer (IHO) was appointed, by the Department of Education’s Impartial Hearing Office, to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

On 03/11/2021, a Pre Hearing Conference was conducted under each case number, and Consolidation of the related cases was addressed.

Status Conference held on 04/08/2021.

The Parent Attorney advised that the cases, as consolidated, involved evaluations and compensatory relief. The DOE Representative believed the matter was settled under a corresponding case number. (T 8-9)

Ultimately, the present cases were not settled and were moved forward, as consolidated. (IHO Ex IV)

A date was set, of 05/04/2021, for the DOE to advise, on the record, of its position regarding defending against the DPCs and any potential evidence submission and/or list of witnesses. (T 13-14)

At Status Conference, of 05/04/2021, the DOE was asked to present its position regarding the matter, and responded: “I do not have a position. I have not heard back from the OLS. I'm still waiting on that.” (T 20) OLS is commonly used to refer to the DOE Office of Legal Services (OLS).

A date, of 05/18/2021, was set to allow the DOE an opportunity to defend against the allegations of the DPCs. (Ex A & B)

At Hearing, of 05/18/2021, the DOE opted not to present a defense to the allegations contained in the relevant DPCs. (T 28, Ex A & B)

The DOE does contend, without evidence, or argument, that a FAPE has been provided to the Student. (T 33)

Parent Attorney sought Interim Order for Student evaluations, and Order was issued. (T 32, IHO Ex III)

Interim Order included the DOE to fund the following evaluations:

(a) assistive technology (AT);

(b) Central Auditory Processing Disorder evaluation up to $[REDACTED];

(c) Speech and Language evaluation up to $[REDACTED];

(d) Autism Assessment, including an observation by an expert in Autism, such as a Board Certified Behavior Analyst (BCBA) up to $[REDACTED]; and

(e) Occupational Therapy Evaluation. (IHO Ex III 7)

Hearing continued, on 06/14/2021.

Parent Attorney advised that the Parent was in process of coordinating the Ordered evaluations. (T 58-59)

Status Conference was held, on 07/14/2021, and Parent Attorney advised the evaluations were still underway. (T 63-64)

At Hearing, of 08/13/2021, additional evidence was entered into the Record.

Parent Attorney stated that the evaluations were still in process of being completed.

Hearing continued, on 10/20/2021. Parent Attorney advised was still gathering Student evaluations.

Hearing continued, on 12/10/2021. Parent Attorney explained that the evaluation processed was hindered, in part, due to Student anxiety. Evaluations were still underway, which Parent Attorney felt were necessary to fully inform the record and enable a proper decision to be rendered. (T 17-18)

Hearing continued, on 02/09/2022. Evaluation was still underway, specifically, the ABA Assessment. (T 45-46)

Hearing continued, on 03/22/2022. Challenges continued with completing the series of evaluations. (T 58-59)

Parent sought neuropsychological update, and Order was issued. (IHO Ex VII)

Order included:

1. DOE shall immediately authorize funding for the following Independent Educational Evaluation:

(a) Updated Independent Neuropsychological Evaluation, at reasonable market rate, via [REDACTED] Neuropsychological & Psychotherapy Services, or similarly qualified evaluator chosen by the Parent. (IHO Ex VII 6)

Status Conference was held, on 04/14/2022. The recently Ordered Student evaluation was in the process of being schedule. (T 72-73, IHO Ex VII)

Status Conference was next held, on 06/22/2022. Evaluations were still not completed. (T 82-83)

Hearing date was held, on 08/31/2022. Evaluation reports were almost all completed, and received. A final Hearing date was scheduled, for 10/18/2022.

Hearing concluded, on 10/18/2022.

Parent Attorney sought to submit a proposed Order to clarify sought after relief. In light of the amount of information gathered the IHO allowed time for the Parent Attorney to submit a proposed Order. Proposed Order was received and entered into the record, on 11/03/2022, as IHO Ex IX.

THE POSITION OF EACH PARTY

At Hearing, of 05/18/2021, the DOE opted not to present a defense to the allegations contained in the relevant DPCs. (T 28, Ex A & B)

Parent allegations are set forth in the DPC. (Ex A)

Parent sought after relief is indicated in the DPC, and further updated, in consideration of the recently acquired evaluations. Parent Attorney outlines the sought after relief, both at Hearing and via proposed Order. (T110-115, 119-120, 136 & 139-140, Ex IHO Ex IX)

Parent Attorney also seeks relief that includes that any compensatory services awarded do not have an expiration date. This request is made, in part, due to the unique circumstances of the case, and due to the uncertainty surrounding any potential Covid surge and related school shutdown. (T 144-148, IHO Ex IX)

Parties had discussions, on the Record, regarding the Student’s unique Hearing sensitivity issues. (T 127-132) Essentially an issue exists in identifying an audiologist who is familiar with the particular Student issues. Parent seeks Audiologist Evaluation to further examine this Student area of need and perhaps identify some actions that may alleviate the issues. (T 132-135)

The DOE did not oppose the sought after evaluation. (T 138)

Parent offered Documentary Evidence and Testimony to support the allegations contained in the DPC, and to establish a basis of appropriate relief. The evidence is uncontroverted, and found to be credible, and supportive, of the Parent’s position, as considered below:

Exhibit

Description

A

Impartial Hearing Request in Case # 202847 09/15/2020

Parent Details allegations related to the 17-18 and 18-19 school years.

Allegations include a denial of a Free Appropriate Public Education (FAPE), in part, due to a failure to properly evaluate the Student, and provide an appropriate Individualized Education Program (IEP). (Ex A 1)

DPC details Student educational challenges and diagnosis, which include: Attention-Deficit/Hyperactivity Disorder (ADHD)-Combined Type, Autism Spectrum Disorder with symptoms falling in the Mild range and Specific Learning Disorder with impairment in Written Expression; significant anxiety with respect to academic tasks; a number of maladaptive behaviors and social challenges; significant anxiety with respect to academic tasks in the areas in which he is delayed; struggles with written work and is unable to produce it independently; significant sensory issues and has developed a restrictive repertoire in relation to food; extreme reactions to noise and is both sensory seeking and sensory defensive; experienced significant difficulty in public school due to noise level and sensory overstimulation, particularly during unstructured periods of the day. (Ex A 2)

DPC outlines Student educational history, which includes consistent concerns with Student education and requests for Student evaluations (Ex A 2-4); a failure of the DOE to provide a copy of the IEP developed in December of 2017 (Ex A 4); and a an overall failure of the DOE to identify Student’s special education needs, and implement appropriate special education services for the Student. (Ex A 4-5)

Parent obtained private evaluation in spring of 2019, which included diagnosis and other relative information regarding the Student, his special education needs and recommended supports. (Ex A 5-7)

An IEP meeting was held, in June of 2019, which the Parent believes did not appropriately identify and address the Student’s special education needs. (Ex A7-8)

Student continued to have challenges and Student experienced bullying, behavior at home worsened, and behavior regressed. (Ex A 8-9)

Parent alleges a variety of DOE failures in the DOE offer of FAPE for each school year at issue. (Ex A 9-11)

Parent seeks relief that includes: Student evaluations and compensatory education services, as well as District funding for expenses related to Parent self help in addressing the Student educational needs, in light of the DOE failure to offer the Student a FAPE. (Ex A 12)

Some relief was granted via interim Order. (IHO Ex III & VII)

Presently, sought after relief is outlined in proposed Order. (IHO Ex IX)

B

Impartial Hearing Request in Case # 201107 09/17/2020

Parent Details allegations related to the 19-20 school year.

Allegations include a denial of a Free Appropriate Public Education (FAPE), in part, due to a failure to properly evaluate the Student, and provide an appropriate Individualized Education Program (IEP). (Ex A 1)

As in the related DPC the Parent outlines the Student’s educational history, growing Student challenges in light of alleged DOE failure to offer the Student a FAPE for several years, and seeks relief for the alleged FAPE denial.

For the 19-20 school year the Parent alleges that the Student continued to be dysregulated and “explosive behaviors worsened”. (Ex B 8)

The situation grew worse so as to include Student suicidal ideation. (Ex B 9)

February, of 2020, IEP noted Student academic delays, and included various recommendations of services and supports, while removing some Student supports altogether. (Ex B 9)

Parents raised concerns, at the IEP meeting, regarding the current program and its inappropriateness.

Parent communicated concerns to the District, and there was no response. (Ex B 10)

On 06/18/2020, the Parent wrote to the school requesting an appropriate Student program. (Ex B 11)

Parent, through the course of additional communications, advised the DPE that the Student was placed privately. (Ex B 12)

Parent seeks various forms of relief related to the alleged denial of FAPE. (Ex B 13-14)

Relief sought is updated, in part due to the recent evaluations, and reflected in proposed Order. (IHO Ex IX)

C

Behavior Intervention Plan (BIP) 02/04/2020

Plan to address Student “explosive” behaviors. (Ex C 1)

D

[REDACTED]Occupational Therapy Evaluation 08/11/2017

Confirms Student areas of delay and need for Occupational Therapy Services.

E

Psycho-educational Evaluation 10/24/2017

Confirms the Student academic and behavioral delays, noting the Student is not reaching his academic potential. (Ex E 6)

F

DOE Assistive Technology Evaluation 10/27/2017

Confirms Student area of need related to writing, and includes assistive technology recommendations. (Ex F 5)

G

[REDACTED] of NYC IEP Recommendations 11/30/2017

Confirms Student Sensory Processing Disorder, fine motor skills delay, and social anxiety.

Recommends occupational therapy, as well as individual and group counseling.

H

Neuropsychological Evaluation 06/13/2019

Detailed evaluation of Student academic and social deficits.

Summary confirms Student capability and weaknesses impacted by his need for more intense special education services: “While (Student) is a capable student in many ways, executive functioning and social weaknesses are impacting his school experience and require support in order for him to fully integrate into his classroom setting. (Student’s) cognitive and academic development is advanced in many ways, but distractibility, inflexibility, impulsivity, and focus on areas of interest are making it difficult for him to successfully connect with peers in a meaningful way. He is also struggling to manage his frustration and sensory needs in the context of a large, busy class and is prone to work avoidance and resistance when work is highly demanding or not of interest to him.” (Ex H 19)

Diagnoses include: Attention Deficit Hyperactivity Disorder (ADHD) (Ex H 20);

Specific Learning Disorder with impairment in Written Expression (Ex H 21); and Autism Spectrum Disorder with symptoms falling in the Mild range (Ex H 21).

Evaluation concludes the Student program, at the time of the evaluation, was not meeting his needs, noting the Student: “is an intellectually gifted child with unique educational needs who is not functioning academically or socially in his current environment. He is overwhelmed and anxious in school, starkly demonstrated by his tics that abruptly start when school begins, and end when summer vacation begins. His current school environment is stressful for him to manage and he typically not engaged in the lessons. (Student)l requires much more support than he is currently receiving yet at the same time, he needs to be in an academically stimulating classroom that can provide differentiated learning. He is overwhelmed by the size of the class and is often on his own.” (Ex H 22)

Student “functions with the support of his teacher individualizing his learning in one on one interactions, but this cannot be provided to him in an ongoing way throughout the day. [REDACTED] requires special a education classroom that is small, calm and structured in a small, calm, special education school setting He requires teachers who are trained in working with students with social and executive functioning deficits. He requires a small student to teacher ratio so that he can receive support with transitions and applying himself academically. He also requires a classroom with an integrated social skills curriculum and teacher support to scaffold his peer interactions. Further, he needs support to develop his regulation skills and frustration tolerance.” (Ex H 22)

Recommendations include: and updated behavior plan, speech language therapy, counseling, small group teacher support, occupational therapy, assistive technology, and classroom accommodations. (Ex H 22-23)

I Neuropsychological Evaluation Summary of Scores 2019 Scores vary from Very Superior – Verbal Comprehension, to Well Below Average – Processing Speed. (Ex I 1)

J [REDACTED] Report Card 2019 and IEP Progress Report 03/2019 IEP Goals are detailed, and no goal is indicated to have been met.

K Academic Progress Report September 2020- October 2020 Report from the Parent’s Unilateral Placement (UP), outlines Areas of Student Strength, and Areas for Growth, in English, Reading, Writing and Mathematics.

L

Parent Email Communication with

Principal Regarding Placement & IEP 06/18/2020

Parent communicates concerns regarding Student’s education, including those related to remote learning, and seeks to engage the District in planning for the upcoming school year.

M

Functional Behavior Assessment Parent Questionnaire

Undated form used when Student attended 2nd grade, presumably to develop the BIP.

Includes areas of Student challenge, such as anxiety. (Ex M 3)

R /01/2021 Regarding the20-21 school year, an Order is issued which awards the Parent District funding for UP, transportation, and Independent Educational Evaluation (IEE).

S Affidavit of [REDACTED] Sworn to on 12/10/2021 Student’s mother provides Testimony that includes:

• • A review of Student diagnosis and challenges, including behavioral issues and significant sensory issues (Ex S 2)
• • Details regarding the Student’s growing education concerns in light of the alleged DOE failure to provide appropriate special education services. This includes a lack of an IEP for the 17-18 school year, and a lack of being advised of the Parental Rights regarding the Special Education Process (Ex S 3)
• • Includes Parent acting to address Student education needs via an IEE and payment of private occupational therapy services (Ex S 3-4)
• • Parent requested student evaluations, including in the fall of 2017, which was not conducted
• • Continued Student distress through November 2017, which resulted in the Student being “angry, explosive, and tearful by evening” (Ex S 4)
• • Student behavior continued to deteriorate (Ex S 4)
• • Parent was not provided a copy of the IEP created on 12/12/2017
• • Student was not provided services after December of 2017, for the 17-18 school year
• • Parents were not included in any Behavior Assessments (Ex S 5)
• • An IEP meeting was held on 12/10/2018, which resulted in Student placement in an Integrated Co-Teaching Class (ICT), and Occupational Therapy and Counseling commenced
• • Parent obtained an IEE in the spring of 2019, which contained Student diagnosis and recommendations (Ex H)
• • IEE was provided to the Student’s school (Ex S 6)
• • An IEP meeting took place in June of 2019, with the IEE evaluator in attendance (Ex S 6-7)
• • The DOE made recommendations that included the ICT class, counseling, occupational therapy, Parent Counseling and Training (PCAT), a full time paraprofessional, and assistive technology (Ex S 7)
• • The IEP failed to include strategies for Student social delays and behavior
• • The IEP failed to provide individualized support
• • IEE evaluator expressed that the recommendations were inadequate (Ex S 7)
• • Student performed poorly during the 19-20 school year, being dysregulated and having “explosive behaviors” (Ex S 8)
• • Student became discouraged and anxious about socializing in school
• • In November 2020 a bullying incident prompted the Parent to seek medical advice, which resulted in Student being placed on medication (Ex S 7)
• • IEP meeting was held, in February of 2020, which again included an ICT class, counseling, occupational therapy, and a paraprofessional, though it removed PCAT and assistive technology (Ex S 8)
• • Student continued struggling with executive functioning delays and maintaining attention (Ex S 9)
• • Parent raised concerns and asked the IEP team to consider a private school
• • The DOE failed to respond to Parent concerns, resulting in Student placement, at the UP (Ex S 10-11)
• • Parent requested Student be evaluated, by the District, and the District did not follow up (Ex S 11)
• • Student attended a Summer Program for the Summer of 2021, at a {aren’t cost of $[REDACTED] (Ex S 11)
• • Student strengthened his social skills through the summer program (Ex S 12)
• • Parent continued to have the Student privately evaluated, and a Speech Language Evaluation confirmed concerns regarding Student anxiousness; disclosed that the Student had a Central Auditory Processing Disorder and Hyperacusis; and made a variety of recommendations (Ex T & S 12)
• • Additional evaluations were conducted (Ex V & W)
• • Student has not made any meaningful progress during the school years at issue
• • Student continues to have academic, behavior, social, sensory integrations and executive functioning delays (Ex S 13)
• • Parent seeks relief to address alleged DOE failure to offer the Student a FAPE, for the past several school years, including: compensatory services; and reimbursement for out of pocket Counseling services (Ex S 13).

T

Auditory Processing / Speech Language Evaluation 11/15/2021

Evaluation details Student educational history, areas of Student weakness and challenges.

Evaluation discloses that the Student has an Auditory Processing Disorder (Ex T 4-5 & 10)

Recommendations are made that include:

• • Classroom and testing accommodations (Ex T 11)
• • FM System
• • Speech Language Therapy (3 x week, 1 x 1:1 and 2 x 3:1) should be modified to include work on improving figure-ground listening, auditory integration, pragmatic language, social communication, and higher order language processing skills including: narrative production, metalinguistics, inferencing, etc.
• • Regarding Compensatory services: “Since [REDACTED] did not receive speech/language therapy for the past 3 years he should receive compensatory services (3 x week, 1 x 1:1 and 2 x 3:1) for 30 minute sessions.
• • Various specific learning supports, such as CAPDOTS and iPad apps (Ex T 12)

U [REDACTED][REDACTED] Summer Program Description 2021 Characteristics of the 20-21 UP Student placement. This includes the Student’s Summer Program Parent payment of $[REDACTED], for said program, is evidenced.

V [REDACTED]Occupational Therapy Evaluation 01/14/2022 Details areas of Student Occupational Therapy need, and recommends:

• • Occupational therapy 2 times per week for 45 minutes with reevaluation for goal attainment in 9 months or as progress warrants; and
• • Consider one occupational therapy session in a 1:1 approach for skill building and one session in a dyad or small group approach to build regulatory capacity and social comfort/competency. (Ex V 10)

W

Neuropsychological Evaluation: Dr. [REDACTED] 09/26/2022

Evaluation details Student educational history, previous testing, and areas of concern.

Evaluation:

• • Confirms Student “struggles with significant symptoms of Autism and Attention Deficit Hyperactivity Disorder, Combined Type
• • He is completing the 6th grade at UP, where he began in the 5th grade following an emotionally difficult adjustment to his neighborhood public school
• • Parent retained evaluator to obtain “a current understanding of what, if any, services and supports and compensatory education he may need to make up for the past deficiencies in his educational program when he attended public school prior to enrolling in UP (Ex W 16)
• • Evaluator describes Student in relation to past ineffective learning environments: “a highly unusual, complex person because of the extreme variability in his profile, including profound giftedness paired with extreme executive dysfunction, his high level of sensitivity and reactivity, and his strong degree of self-directness. His time at [Public School], from kindergarten through 4th grade, was a chronically invalidating school experience where teachers uniformly misinterpreted his behaviors and expected him to have the ability to participate and engage in the school day as a neurotypical child. Over the course of those five years, [Student] received constant “corrections,” was frequently sent out of the classroom, and had power struggles with his teachers that resulted in frequent episodes of emotional dysregulation that could become physical. He has internalized the idea that he is harmful and impaired, which contributes to a high degree of shame that has a negative impact on his self-esteem and his relationships. The mismatch of student –school fit for [Student] at [Public School] was severe. He continues to meet criteria for Anxiety Disorder NOS, and the qualities of his experience and how he has internalized it is akin to a trauma reaction.” (Ex W 18)

Recommendations are made in light of the Evaluator’s belief that the Student has not been properly educated for the past several years:

• • To continue in the current UP placement
• • “In order to address the emotional damage caused by his experience, he requires ongoing therapy, 1x/week (45-minute sessions) for a period of four years.” (Ex W 18)
• • Student “struggles with significant dysgraphia that was not properly addressed during his time in public school, and that has led to an aversion to handwriting. He requires intensive writing instruction with a tutor with a focus on developing his ability express his ideas in written form with fluency, to learn to edit his work and to increase his skill in the mechanics of writing, including punctuation and spelling, while integrating complex ideas.”
• • “He requires tutoring 2x per week for 60 minutes each, for a period of 2 years, with a tutor who specializes in working with intellectually gifted students with Autism and ADHD.”
• • Student: “has significant fine motor weaknesses that have a direct impact on his physical ability to write and that have negatively impacted his academic performance and that led to frequent work avoidance throughout his time in public school. He also struggles with significant sensory processing sensitivities that impacts his experience throughout the day, which were also not address sufficiently in public school. He requires compensatory occupational therapy, (2x/week for 45 minutes for a period of 2 years) to address is fine motor and sensory needs.”
• • Student “has significant executive functioning deficits that were not addressed while he was in the public school setting. To compensate for his currently limited skill in this area, he requires therapeutic executive functioning with a psychologist who is experienced in working with Autism and ADHD to support his development of skills and strategies to address his areas of deficit, increase his work production, and to help him work independently. A frequency of 2x/week for 60 minutes each, for a period of 3 years, is recommended to allow him to learn strategies in these areas.”

- “Parent guidance with a practitioner who is experienced in working with Autism, ADHD, and trauma, (1x/week for 60 minutes), for 3 years is recommended to help his parents understand how his negative school experiences have led to his behavioral difficulties and family conflict, and to find ways support [Student’s] affect regulation and adaptive functioning at home.”

- Student: “had limited as well as negative social interactions during his time in public school that have led him to avoid social interactions and to develop negative patterns of relating with others. He requires speech/language group therapy (2x/week for 45 minutes) for 2 years to address his pragmatic weaknesses, with a focus on development of nonverbal, reciprocal behaviors. He would benefit from this intervention in the form of a social skills group with a focus on developing peer interaction. If this cannot be provided in school, it is recommended that he have this therapy after school privately.”

- Student’s social skills are emerging but still very delayed compared to his peers in part because of his difficult experience in public school. It is recommended that he attend a full time summer program or camp for the next two summers at least, that have an embedded social skills and executive functioning skills curriculum to support his development in this area.”

(Ex W 19)

X

Curriculum Vitae: Dr. [REDACTED]

Sets forth qualifications of Student evaluator.

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (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 unique 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. § 1400[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]).

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; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; 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. Florida Union Free Sch. Dist., 142 F.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]). 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., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are 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]; Winkelman 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; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

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 a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). 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 T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 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 Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 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] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 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 also 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 Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 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"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). 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]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of 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., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 17-18, 18-19 & 19-20 School Years

The DOE opted not to present a defense to the Parent’s allegations.

Evidence shows the Student did not receive appropriate educational services for the years at issue.

Evidence includes Parent communications to the school regarding Student regression, failure to properly evaluated the Student, a failure to provide Student IEP, and a failure to deliver Student services. (Ex A 2-5, A 9-11, B 9-11, E 6, F, H 19, J, L, S 4, S 7-8, S 9, S 10-11, T 12, V 10, W 16, W 18-19)

The DOE has not evidenced development of an appropriate IEP for any school year at issue.

The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE.

I find the DOE failed to offer the Student a FAPE for the 17-18, 18-19, and 19-20 school years.

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 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).

The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).

In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought.10 Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology supports.); Woods v. Northport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) (upholding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”).

If Student is found to be entitled to compensatory education under applicable law; compensatory education is an equitable remedy that arises out of the jurisdiction of 20 U.S.C. § 1415; equitable factors do not bar relief here and no inequitable conduct was established on the part of the parents. N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Dist. of City, No. 07 Cv. 9648 (BSJ), 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) (Reversing the SRO and upholding the award; Court found that it is well established that, in the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim for tuition.); Wolfe v. Taconic Hills Cent. Sch. Dist., 167 21 F.Supp.2d 530 (N.D.N.Y. 2001)( the equities—requires a balancing of both parties’ conduct and interest—not merely the actions of the parent). There are no facts established here that show that the parent failed to cooperate or acted inequitably to interfere with the DOE’s ability provide FAPE.

FAPE has already been found to have been denied the Student for several school years.

The record is clear in establishing the impact of the DOE denial of FAPE, over the past several years. The Student has clearly been in need of proper evaluations and services for the school years at issue.

Neuropsychological Evaluation, of 06/13/2019, includes: Student: “requires much more support than he is currently receiving yet at the same time, he needs to be in an academically stimulating classroom that can provide differentiated learning. He is overwhelmed by the size of the class and is often on his own.” (Ex H 22)

Report Card, of 03/19, reflects no goals having been met. (Ex J)

Parent consistently seeks guidance from the DOE regarding Student worsening educational and emotional situation. (Ex L) Student 19-20 school year includes incidents of extreme behavioral concerns, and educational struggles. (Ex S 7-9)

Evaluation reveals Student has not received proper Speech Language Therapy Services for the past three years. (Ex T 12)

Evaluation details Student delays and recommend compensatory services to address the past insufficiencies in the Student’s education. (Ex W 18-19)

Evidence includes detailed recommendations for compensatory services. (Ex S, T, Y & W)

Below, the evidence and requested Compensatory Services are further considered.

• • Student Counseling:

It is uncontroverted that the DOE failed to provide Student services after December of 2017, for the 17-18 school year. (Ex S 5)

Parent Testifies: “with respect to the counseling recommendation, since 2019, we have been paying out-of-pocket for his weekly counseling services at a cost of $[REDACTED] per hour. I have been using my health savings account in the amount of $[REDACTED] each year to pay for counseling. I would like that to be reimbursed for each of the past two years, upon submission of invoices, as well as the recommendation by Dr. [REDACTED] for 176 counseling sessions.” (Ex S 13)

Parent has essentially utilized self help to obtain 88 sessions of Counseling, at a cost of $[REDACTED], for two years, totaling $[REDACTED]. (Ex S 13)

It is reasonable therefore, and appropriate, for the District to fund 176 less 88 sessions sessions (45-minute sessions) of 1:1 counseling. This results in an award of 88 Counseling sessions and Parent reimbursement for 88 services of counseling already paid for, by the Parent.

• • Occupational Therapy Evidence details a basis for an award of 160 sessions of individual occupational therapy (45-minute sessions). (Ex V 10 & W 19)
• • Individual Tutoring Evaluation recommends individual services that include: tutoring 2x per week for 60 minutes each, for a period of 2 years, with a tutor who specializes in working with intellectually gifted students with Autism and ADHD; and regarding significant executive functioning deficits therapeutic executive functioning with a psychologist who is experienced in working with Autism and ADHD to support his development of skills and strategies to address his areas of deficit, increase his work production, and to help him work independently, at a frequency of 2x/week for 60 minutes each, for a period of 3 years.

I find this area of relief to be appropriately Ordered as 400 hours of 1:1 services/instruction that can be used for executive functioning and/or tutoring for dysgraphia.

• • Social Skills Recommendation is made for social skills programming for two summers. I find this to be an appropriate form of relief Ordered via Reimbursement to the the Parents, who in light of the DOE failures self helped to obtain necessary Student services, for the UP summer program that the student attended during the summer of 2021 for a cost of $[REDACTED]; and District funding for a social skills program for one additional summer, either at the UP, or a similarly appropriate summer program at a comparable cost. (S 11 & W 19)
• • Evaluation The Student has been evidenced to have significant sensitivity to noise and might have Hyperacusis. (Ex T 3 & S 12)

Evaluation recommends additional evaluation regarding Hearing. (Ex V 10)

It is appropriate to further examine this potential area of Student special education need. Further evaluation is appropriate, however, the DOE will be allowed the first opportunity to examine this area of concern, promptly, or allow the Parent to obtain an IEE, as Ordered below.

• • Speech Language Therapy The District will fund 352 sessions of 1:1 or group speech and language therapy, as determined by speech language provider (45-minute sessions) to address social/pragmatic speech and written language expression. Speech Language Therapist may also utilize these services to address noise sensitivity, or other sensory issues on a 1:1 basis. Speech language Therapist may also be utilized to implement Assistive Technology supports indicated below. (Ex T 12 & W 19)
• • Assistive Technology Recommendations made for additional Assistive Technology accommodations, include:
• • FastForWord, which is a web-based program that requires a license as well as a speech and language therapist who is licensed and trained in FastForWord to implement and monitor the program each week the student is using it. (Ex T 12)
• • CAPDOTS

The Parent shall chose the provider(s) to deliver the Compensatory services indicated herein. The District shall fund these services at prevailing market rate(s) paid to the provider by the DOE’s Office of Impartial Hearing Implementation Unit or to comparable providers at comparable rates during the school year in which the services are used. If no comparable service has ever been funded, the DOE will fund the service at market rates.

Parent seeks that Compensatory Services be awarded without expiration.

I find it appropriate to set some limit upon the utilization of the Compensatory Services.

This is in part due to the necessity for the services being delivered as soon as reasonably possible to effectuate the desired effect of making up for the denial of FAPE and enabling the Student to progress.

Considering the length of FAPE denial and the possibility of an event that may impact delivery of any awarded services, such as a Pandemic, the services will be available through 12/31/2026.

ORDER

• • The Department of Education (DOE) failed to offer the Student a FAPE for the 17-18, 18-19 and 19-20 school years.
• • The DOE shall fund compensatory services for the Student, to be utilized by 12/31/2026, as indicated below:
• • Student Counseling:

The District will reimburse Parent the cost of 88 sessions of Counseling, previously paid for, by the Parent, totaling $[REDACTED]; and The District shall fund 88 Individual Student Counseling sessions.

• • Occupational Therapy The District shall fun 160 sessions of individual occupational therapy (45-minute sessions).
• • Individual Tutoring The District shall fund 400 hours of 1:1 Student educational services/tutoring, via a tutor with experience in working with intellectually gifted students with Autism and ADHD; to be utilized to address Student executive functioning and/or dysgraphia.
• • Social Skills The DOE shall reimburse Parent the cost of Student 2021 summer program, in the amount of $[REDACTED]; and District shall fund a social skills program for one additional summer, either at [REDACTED][UP], or a similarly appropriate summer program at a comparable cost.
• • Evaluation The DOE shall within 30 days of the date of this Order evaluate the Student via an audiologist regarding the evidenced Student challenges related to a Student noise sensitivity and the possibility of Hyperacusis.

The DOE shall have the option of immediately authorizing the Parent to obtain an independent evaluation via a Parent chosen audiologist. If the DOE cannot complete this evaluation within thirty days of the date of this Order then the DOE shall authorize the Parent to obtain the evaluation directly via chosen provider, at reasonable market rate.

• • Speech Language Therapy The District shall fund 352 sessions of 1:1 or group speech and language therapy, as determined by speech language provider (45-minute sessions), to address social/pragmatic speech and written language expression. Speech Language Therapist may also utilize these services to address noise sensitivity, or other sensory issues on a 1:1 basis. Speech language Therapist may also be utilized to implement Assistive Technology supports indicated below.
• • Assistive Technology The DOE shall provide the Student with appropriate iPad or similar device, and
• • FastForWord software and CAPDOTS software The Parent shall choose the provider(s) to deliver the Compensatory services indicated above. The District shall fund these services at prevailing market rate(s) paid to the provider by the DOE’s Office of Impartial Hearing Implementation Unit or to comparable providers at comparable rates during the school year in which the services are used. If no comparable service has ever been funded, the DOE will fund the service at reasonable market rates.
• • The DOE shall provide Parent with any documents or forms necessary to facilitate services, evaluation, and payment under this Order, within ten days of the date of this Order.
• • 4. This decision is subject to appeal and review by the State Review Officer.

DATED: November 4, 2022

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.  The regulations governing appeals are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

As those Regulations detail, before filing an appeal, if either party intends to appeal the decision, a Notice of Intention to Seek Review shall be personally served upon the opposing party before the Appeal itself is filed, no later than 25 days after the date of the decision sought to be reviewed.

The Appeal itself must be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found.

The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers.  Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.