Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 206568

Student’s Name: [REDACTED]

Hearing Requested By: Parents

District: [REDACTED]

Hearing Officer: Martin J. Kehoe III, Esq.

Actual Record Close Date: October 24, 2022

Table of Contents

I. Introduction 2 a. Scope of the Impartial Hearing 2 b. Demand for Compensatory Education 2

II. Overview 3 a. Parent’s Position 3 b. District’s Position 4 c. Background of the Case 4 d. Student History 6 e. Legal Overview 14

III. Did the District Provide the Student a FAPE? 16 a. Legal Standard 16 b. Analysis 17 i. The School Psychologist – Testimony 23 ii. The Principal – Testimony 31 iii. The Neuropsychologist – Cross-Examination 32 c. Conclusion 33

IV. Is Compensatory Education an Appropriate Remedy for Denial of a FAPE? 34 a. Legal Standard 34 b. Analysis 36 i. The Neuropsychologist – Testimony 36 i. The Parent/Mother – Testimony 38 d. Concluding Remarks and Rationale for Reducing the Award 39

I. Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student. a. Scope of the Impartial Hearing The scope of the impartial hearing is limited to the issues raised in the complaint notice. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Issues and allegations not contained within the four corners of this complaint are not to be considered pursuant to the applicable case law and regulations cited above. Similarly, any claims set forth within the complaint notice that were not addressed at the hearing should not be considered as they are considered abandoned. Application of a Child With A Disability Appeal 08-037 and Application of a Child With A Disability Appeal 10-067, pg. 9, n. 9. b. Demand for Compensatory Education The primary issue in this matter is the Parent’s demand for “compensatory education” for the 2020-2021 school year (SY). Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and... mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].

II. Overview The Parent filed the complaint notice on February 7, 2021. I was appointed as the IHO for this case on February 8, 2021. The matter proceeded with scheduled hearings.^[1] The Parent introduced exhibits A-K into the record and called two (2) witnesses: the Independent Psychologist and the Parent/Mother. The District offered exhibits 1-13 and called two (2) witnesses: the School Psychologist and the School Principal. Both the Parent and District submitted closing briefs which are included in the record as IHO #1 and IHO #2, respectively. Significantly, this Student received pendency services under case # 187109 covering the 2020-2021 SY^[2] until such order was superseded by a pendency order in this case (#206568) effective on March 12, 2021. In fact, the evaluative record in this case is very much a replication of that for case #187109. a. Parent’s Position In the amended complaint notice, the Parent alleges that for the 2020-2021 SY, the District failed to: (a) provide a free appropriate public education (FAPE) to the Student; (b) thoroughly and appropriately evaluate the Student on a timely basis; (c) create legally appropriate Individualized Education Plans (IEPs) and placements; and (d) follow the procedural requirements of the IDEA. (Ex. B-2)

As a remedy, the Parent requests that the District fund the following bank of compensatory education makeup services:

a. A bank of 920 non-expiring compensatory hours of individual special education teacher / tutoring services to be provided by a provider of the Parent’s choosing at an enhanced rate due to the Department’s failure to recommend 30 hours per week of 1:1 special education teacher services for the 2020-2021 school year at issue; b. A bank of 122 non-expiring compensatory hours of individual SLT to be provided by a provider of the Parent’s choosing at an enhanced rate due to the Department’s failure to recommend and provide SLT 2x40 (1:1) and 2x40(3:1) per week for the 2020-2021 school year at issue; c. A bank of 69 non-expiring compensatory hours of OT to be provided by a provider of the Parent’s choosing at an enhanced rate due to the Department’s failure to recommend and provide OT 3x30 per week for the 2020-2021 school year at issue; d. Prospective tuition funding for the Student’s placement at the Private School #2 for the 2021-2022 school year. (Ex. IHO #1.15-16) b. District’s Position

It is the District’s position that the Student was offered a FAPE for the 2020-2021 SY. The District maintains that they complied with the procedural requirements and the IEP developed is one that was reasonably calculated to enable the Student to receive educational benefit. (Ex. IHO #2-2) c. Background of the Case The Committee on Special Education (CSE) held a meeting on June 10, 2020, to develop an IEP for the Student in anticipation of the upcoming SY. (Ex. 11) The essence of the meeting is captured in the meeting notes below:

Present were the parent, classroom teacher, and CSE review team. After introductions, the purpose of the meeting was reviewed. Re-evaluation requested by the parent, and some of the social history was reviewed with the parent. Health, has respiratory infections, has been to the hospital every year until last year. Taking medication as needed, allergic to eggs and has a lazy eye, recommended to have surgery, but vision needs to improve first. Parent reported that he needs help making sentences. She reported that some evaluations (hearing) are being scheduled but were not able to be completed due to COVID. In terms of interests, likes to paint and draw, bikes, swimming, playing with his cat as well. The parent reported that she has not decided as to where he was going to be attending next year. Parent is requesting a SLL for next year, and an IEP. The parent’s main concerns regarding academic functioning are his falling behind, one on one help (SEIT) reinforced what teacher taught. He does better when he is in a one on one setting. He is having difficulty with remote learning and has been working with his father one to one, becoming more expressive and independent. She expressed that he does better with individualized instruction, and needs things explained multiple times in order for him to understand it. Parent expressed that he is receiving SEIT every day for an hour remotely. Classroom teacher reported that the SEIT was serving for 2 hours a day when school was in session. Parent reported that sometimes is seen M-F and other times M-Th. She expressed what the SEIT was doing with him in her sessions, ELA work broken down. Parent expressed that in school he had difficulty communicating and would get into situations with other students in school. Some motor skill concerns, he can grab a pen, when writing or drawing his wrist does not move. Physical development was reviewed with the parent, needs repetition, and wanders around when doing things, attention is difficult to maintain. The previous recommendation was reviewed (ICT, Speech and OT). Parent was asked about why he was not receiving RS, and parent described the process of securing providers independently as being difficult. The parent reported that the school did not have Speech and had ESL classes at the school. The school reported that there is a speech provider at the school. He gets ESL Title one and has not been receiving RS. Parent asked for contact information, so services will not be missed out on.

The classroom teacher reported on his present levels of performance, pre and post remote learning. He functions better in small group or one to one settings, preferential seating to the teacher or assistant for re-explaining and reteaching. Visual cues and prompts are used, does have alphabet and phonemic awareness, letter sound skills, identify numbers, counting objects, good with his sight words. Did well with word families, SEIT works on what the teacher is working on, as well as the ESL teacher. With digital learning, he has someone sitting beside him and gets support, when called on, he can hear the support. Auditory, repetition, visual support. The parent was asked if anyone reviewed the reports, and she expressed the neuro psych report was reviewed. The SEIT report was reviewed with the parent. The OT report was reviewed next with the parent (see report). Teacher reported that he made progress writing his name, does present with delayed fine motor skills at times. Spacing and staying on the line, which is common for many students at his grade level. Reminders, models, prompting for letter formation used. He is recommended for OT based on the report, which he was recommended for. The AT report was reviewed next (See AT report). The neuro psych was reviewed with the parent (again, see report). Neuropsych report indicated ADHD diagnosis, language disorder, not taking medication at the present time. Parent is interested in a public school placement, and classifications reviewed with the parent. OHI is the classification, based on the information presented on the evaluations. The related services were reviewed, Speech 3.30.1, OT 2.30.1. Parent expressed concern over the individualized support, and the recommendation of small class was reviewed 12.1.1. He is also recommended for transportation as well. (Ex. 12-2)

Following the meeting, on June 22, 2020, the District sent the Parent a Prior Written Notice (PWN), informing her of their recommended program and placement.^[3] (Ex. 13) Finally, on February 7, 2021, the Parent filed the complaint notice (Ex. A) which they later amended on May 17, 2021 (Ex. B). d. Student History The Student was [REDACTED] years old during the 2020-2021 SY, in which he carried a disability classification of an Other Health Impairment.^[4] (Ex. 11-1) The Student has been observed/evaluated on various occasions, including but not limited to the following:

• • Classroom Teacher Report – 02/09/2020 (Ex. 1)
• • SEIT Progress Report – 02/15/2020 (Ex. 2)
• • Occupational Therapy Evaluation – 02/19/2020 (Ex. 3)
• • Assistive Technology Evaluation – 03/04/2020 (Ex. 4)
• • Eye Report – 03/09/2020 (Ex. 5)
• • Neuropsychological Evaluation – 06/05/2020 (Ex. 9)

The Parent requested the Student undergo a neuropsychological evaluation to investigate his difficulties with his speech and language development. The Student speaks both English and [REDACTED] and has received evaluations in both languages in the past. (Ex. 9-1) The neuropsychological evaluation provides a rather comprehensive look into the Student’s psychosocial and behavioral background:

[The Student] is described as a sweet and friendly child. He likes swimming and soccer, and he also enjoys riding his bike. [He] can be an impulsive child, and it seems that he does not have a perception for boundaries. His favorite activities are to watch videos, TV, and play with cars. According to his mother, [the Student] can sometimes cooperate, but he has difficulty sharing with others. Reportedly, he often has difficulty transitioning from a preferred to a non-preferred activity. As reported, [the Student] may cry when he is not allowed access to a preferred item or activity at home. He shows some aggression at home, as he raises his hand in a hitting motion. However, when told to put his hand down, he will follow directions despite feeling mad. At school, school personnel reported that he struggled with peer interaction due to speech. When not understood, [the Student] grabs items away from peers and does not engage in play.

His preschool teacher has reported that [the Student] has presented difficulty understanding questions. He often repeated what was being said and he had difficulties understanding directions. During circle time, [he] had difficulty sitting still and was distracted. During centers, he often did not stay focused in one activity and moved from one activity to another. He needed to be redirected during clean up and transitions. When failed to appropriately gain the attention of his peers, he often hit to get their attention. It was reported that he had difficulty communicating and got frustrated when he was not understood. His teacher reported that he required consistent repetition, modeling and redirection. (Ex. 9-2)

The Neuropsychologist administered a variety of tests on the Student.^[5] Upon review of the test results, the Neuropsychologist made the following concluding remarks:

[The Student] is a [REDACTED]-old boy whose parents requested a neuropsychological evaluation to investigate his difficulties with his speech and language development. The purpose of this evaluation was to assess his cognitive strengths and weaknesses, to make diagnoses if warranted, and to assist with educational planning and parental strategies.

Following extensive testing with diverse instruments, a number of important findings were revealed. Intellectually, [the Student] demonstrated low-average fluid reasoning and processing speed, borderline working memory skills, and underdeveloped verbal and visual spatial skills. [The Student] required repeated directions throughout the assessment and needed significant adult support to regulate his behavior and attention; and even with these supports, [the Student] would often be resistant to responding to direct questions and needed prompting to continue working. Neuropsychological test results indicate that [the Student] has ongoing symptoms of ADHD as well as language delays that are impacting his progress in across all academic domains. Testing further confirmed that [the Student] has symptoms consistent with a diagnosis of ADHD, Combined Type. Given these findings, [the Student] requires specific educational services to address his academic, social, and language difficulties. Educational services are essential and without them his attention difficulties, language and learning delays, and social and emotional needs will not progress.

[The Student] is a sequential bilingual with very limited language and literacy skills in [REDACTED]. Despite his dominance in English, [he] displayed notable areas of weakness in his English language skills as well. At a fundamental level, [the Student’s] phonemic awareness and decoding skills are underdeveloped. Receptively, [the Student’s] ability to follow increasingly complex multi-step directives is poor. He demonstrates poor vocabulary and semantic associations between words. Expressively, [the Student] struggled to develop age appropriate sentences when provided with structure. Notably, his ability to independently formulate sentences was adversely affected by his fluctuating attention and executive functioning weaknesses. [The Student’s] overall language testing indicates that his English language skills are impaired, despite his exposure to the English language at school for the past several years. However, [the Student’s] speech was significantly dysfluent in both languages, with poor prosody and low volume. As such, although he is generally intelligible, [the Student’s] language is extremely effortful and difficult to follow at times. Given his history and identified areas of language difficulties, combined with the nature and severity of [the Student’s] speech deficits he meets DSM-5 criteria for a Language Disorder (DSM-5 315.32 and ICD-10 F80.2). [The Student] has received intervention for his language delays in the past. However, does not currently receive sufficient enough speech-language services. He requires these services, as his language difficulties are interfering with his ability to progress academically in spite of good cognitive abilities.

Of note, [the Student] is a bilingual, bicultural child and his basic interpersonal communication skills were qualitatively assessed as part of this evaluation. He showed very limited [REDACTED] vocabulary, poor grammar, syntax and organization of his ideas using [REDACTED] language skills. Thus, results indicate that [the Student] is currently English dominant. However, given his bicultural background, his BIC skills must be better developed so as to ensure that he is able to communicate adequately with his family members and engage within his more immediate community.

Regarding tests of attention and executive functioning, overall results indicate that [the Student] meets DSM -5 diagnosis for ADHD, Combined Type. Current test results highlight that many tasks of executive functioning, including initiation, planning, and organizing tasks are areas of difficulties for [the Student]. Additionally, [he] showed weaknesses on tasks that require self-monitoring. He also has overall difficulties sustaining his attention and concentration for extended tasks, including those that required sustained visual and auditory attention over an extended period of time. This is especially true for academic tasks that require more language processing tasks or those that are not intrinsically motivating to him. Moreover, consistent with a diagnosis of ADHD, Combined Type, [the Student] has difficulties regulating his emotional and behavioral impulses across all settings. Thus, he can be impulsive and restless, particularly when he is faced with demands that challenge his capacity. Under these circumstances, [the Student] can become easily frustrated and may refuse to complete a task. As such, [the Student] requires the ongoing support of a classroom setting that provides him assistance staying on task during challenging academic tasks so that he can learn and continue to develop his skills planning, organizing, and initiating academic tasks. [The Student] has the capacity to learn and he requires these interventions to make adequate progress and reach his academic potential. A structured classroom environment with additional support from a special education teacher will be essential in helping him manage his executive function difficulties and gain access to the educational curriculum.

[The Student] demonstrates academic difficulties in the area of written expression and some weaknesses in his basic reading and math skills. Weaknesses in his phonological awareness skills have impacted his ability to make adequate progress in his basic reading and writing academic skills and results indicate that these literacy skills are currently below average range relative to [his] age peers. Without the ongoing support of special educators and individualized attention geared towards remediating these difficulties, [the Student] will not be able to develop more advanced, higher order reading skills, including comprehension of more complex reading material. As noted, [the Student] also has deficits in areas of written expression. His spelling, grammar, and mechanical skills are underdeveloped. He lacks detail and has poor organization of his ideas, making his writing difficult to comprehend. His ability to solve basic math calculation problems or word/applied problems are also underdeveloped. However, given significant symptoms of ADHD in combination with a history of not receiving sufficient special education interventions, a diagnosis of a Specific Learning Disorder in the areas of Reading, Writing, or Math are being withheld at this time until adequate interventions to address his literacy difficulties have been implemented. Thus, [the Student] must continue to be closely monitored following implementation of adequate educational services, including individual or small group services to address these academic difficulties, as well as his language processing weaknesses and attention regulatory challenges to rule out these learning disorders.

In summary, the results of the current evaluation support [the Student’s] current educational classification of Speech and Language Impairment. (Ex. 9.10-11)

The Neuropsychologist determined that the Student meets the criteria for the following diagnoses:

• • 315.32 (F80.2) – Language Disorder
• • 315.01 (F90.2) – Attention-Deficit/Hyperactivity Disorder, Combined Type (Ex. 9-12)

The Neuropsychologist made the following recommendations:

PSYCHOLOGICAL:

1. Individual Therapy: [The Student] would benefit from regular weekly, evidence-based, individual therapy with a skilled clinician who could help address his feelings of anxiety and frustration and help [the Student] develop strategies for expressing his feelings appropriately. A mindfulness-based approach would also help [the Student] to increase his self-awareness and self-monitoring. This should occur both in and outside of school.

2. Group Therapy: [The Student] will also benefit from regular weekly, group counseling. Working with a skilled counselor and a small group of similarly aged peers will assist [him] with developing his pragmatic language skills, his awareness of interpersonal issues, skills for resolving conflicts with peers, and strategies to positively impact his school achievement.

3. Medication Consultation and Management: [The Student] and his mother should consider a medication consultation by a child psychiatrist who specializes in psychopharmacological treatment for ADHD. If medication is deemed an appropriate intervention, [the Student] and his caregivers must collaborate closely with their psychiatrist to assess and monitor the effectiveness of his psychopharmacological treatment. Adjustments should only be made under the care of his psychiatrist.

4. Provider Contact: [The Student’s] full treatment team should remain in close contact with one another to coordinate treatment efforts ant to support each other’s treatment methods and goals.

ACADEMIC: To maximize [the Student’s] academic success, the following recommendations are made:

5. School Placement: [The Student] requires a classroom placement that can provide interventions to address his language and learning needs. Specifically, he requires a classroom placement that can provide a very structured, yet nurturing and supportive environment with ample access to individualized attention and instruction. i. Thus, at this time, he requires additional individual 1:1 teacher supports in order to access the curriculum. He needs 30 hours of special education teacher services to do this. ii. Care should be taken that [the Student] is not placed in a setting with peers who demonstrate externalizing behavior difficulties, as this will further impede his learning and emotional and social well-being. iii. Additionally, given his attention difficulties, [the Student] requires the support of a classroom setting with a special education teacher who can help him better regulate his attention and concentration. iv. His setting must be equipped to develop his cognitive, social, emotional, and academic abilities. Additionally, for his continued education, [the Student] requires an Individualized Education Plan (IEP) that includes accommodations for his attention and language delays as well as reading and writing difficulties.

6. Speech and Language Services: As indicated on [the Student’s] IEP and given his language diagnosis, [the Student] should continue receiving speech and language therapy to address his difficulties with receptive, expressive, and pragmatic language. i. He should be mandated to receive speech and language four times per week in an individual setting, for forty five minutes. ii. The goals of therapies should include developing his expressive and receptive language skills. iii. The services need to be provided by a licensed speech and language therapist.

7. Classroom and Testing Accommodations:

i. [The Student] will requires 100% extra time on classroom assignments, especially reading and writing tasks, and on all standardized and classroom tests that require reading, writing, and mathematics. He has weaknesses in the core skills that underlie reading and writing processes. He requires these accommodations to perform in accordance with his intellectual capacities. ii. Testing in a small, quiet, room should be designated to [the Student] when necessary. iii. Based on his variation in his attention, [the Student] should be given preferential seating placement at the front of the classroom in order to minimize distractions, and so his teacher can help him when appropriate. iv. Given his inattention and learning difficulties, [the Student] will learn best with multisensory approaches to learning and in situations where learning is more hands on and creative.

8. School/Guidance Individual and Group Counseling: [The Student] will benefit from support with a designated guidance counselor, with whom he can maintain contact with during school hours when needed. Additionally, he will further benefit from small group counseling, where he can increase his pro-social skills. This counselor may also act as a point person for [the Student] to check in with for support and help with completion of academic assignments and to facilitate adaptive coping skills when presented with challenging situation within the school setting.

9. Occupational Therapy: [The Student] should continue to attend OT services delineated in his current IEP to ensure adequate progress of his fine motor and graphomotor skills. This is particularly important in light of his written expression difficulties.

10. Clear Communication: [The Student] will function best in a simple, well-structured environment. School staff should do their best to communicate clear behavioral and academic expectations to [the Student] and to praise him warmly when he meets these expectations. Once implemented, this strategy should be applied as consistently as possible, across the whole school day.

11. Reminders: Whenever possible, and as academic demands increase, teachers should proactively check with [the Student] for understanding of an assignment, mathematical concept, or reading passage before he begins his work. Checking in/probing will give [the Student] a framework and springboard for starting his assignment.

12. Phonological Awareness Training: Phonological Awareness Training is a general practice that would target to enhance [the Student’s] phonological awareness abilities. The intervention can involve various activities that focus on teaching to identify, delete, segment, or blend segments of spoken words (i.e., words, syllables, onsets and rimes, phonemes) or that focus on teaching to detect, identify, or produce rhyme or alliteration. Phonological Awareness Training practices can be used by [the Student’s] teacher individually, in pairs, or in small group settings. These practices would be used as a supplement to the regular classroom curriculum.

HOME:

13. Clear and Consistent Structure: In general, kids who struggle with inhibition of impulses and self-monitoring will thrive with structure and clear expectations. Furthermore, they need external reminders of what they need to do and to regulate – eventually, [the Student] may learn to internalize these expectations and then monitor his own behavior. [The Student] and his parents should work together to set very concrete house rules with lots of praise for following those rules and matter-of-fact consequences or planned ignoring for not following them. His parents should consider setting up a reward system for the specific good behaviors they want to see, using small, immediate reinforcements for very discrete chunks of behavior (e.g., he gets a 5-minute dance break when he transitions from an interesting activity when requested; he gets extra play time when he goes a day without a call from his teacher). They should be as consistent as possible in how they follow and reward these rules, so that [the Student] has a very clear model of what he needs to do and what will happen if he does or does not comply. Any emotional reaction to [the Student’s] behavior, by either parent, is likely to reinforce his behavior, so planned ignoring is typically the most successful consequence.

14. Bicultural/Bilingual Development Recommendations: [The Student’s] ability to speak [REDACTED] is very important to maintaining his culture and ethnic identity, as well as to ensure that he has access to the societal and career benefits of being a multicultural and bilingual individual. Thus, every effort must be made to continue to expose [the Student] to the [REDACTED] language and cultural heritage at home and within the community. Studies indicate that bilingual children benefit from establishing and mastering one foundational language system to help facilitate learning a second language and developing intact literacy skills. i. It is suggested that [the Student] continue to develop his English foundational language skills (phonics, naming, grammar, syntax, etc.). However, his mother must ensure that [the Student] receive ongoing exposure to [REDACTED] language at home by speaking to him in [REDACTED] and encouraging him to express himself in [REDACTED]. His mother, stepfather, and other members of his community must also correct any grammatical, syntax, and sentence structure errors noted in [REDACTED]. ii. [The Student] should also have access to reading material in [REDACTED] and English at home. Additionally, [the Student’s] mother should regularly read with him at home in order to better bolster his reading skills. iii. Members within his community, including school, mental health providers, and family members must cultivate his cultural identity as a bicultural male by exposing him to traditional and familial customs while also supporting her acculturation process.

15. Learning at Home: [The Student’s] mother is strongly recommended to implement the following strategies to help bolster her son’s academic skill acquisition. i. Reading of pictured story books and talking about them can be used to reinforce sight word vocabulary, sustained attention, and listening comprehension. ii. [The Student’s] mother can be creative with different activities to work on specific early literacy skills in English, such as playing Bingo with letter sounds/sight words, making word wheels to practice common word families, posting sight words for common objects around the home (ideally paired as picture-word), using flashcards with visual representations of words to bolster sight reading, etc. iii. It may also be beneficial to incorporate listening, compliance, taking turns and starting/stopping into fun activities (e.g., Red Light/Green Light, Simon Says, etc.) to foster self-regulatory and inhibition skills. Going to the park, having family friends over, going to play gyms or centers, or participating in structured extracurricular/ recreational activities can also be helpful to keep him active and build a variety of listening, peer interaction and developmental skills. iv. Social skills modeled for [the Student] at home by his family can also be practiced through role-play. By engaging in pretend play such as playing “school”, [the Student] will have the opportunity to practice these skills, which hopefully will gradually translate to his engagement with peers at school and in extra-curricular activities. Practicing at home will also provide him with the space to receive consistent constructive feedback in a positive environment. v. Toy Story Read Along (Free, Available on iOS): Toy Story Read Along is an interactive reading experience which also includes games, movie clips, coloring pages, ding-along tunes, and surprises on every page. You can hear the story, read aloud, record your own narration, or explore at your own pace. This application is great for building both expressive and receptive language skills. Additionally, it can target vocabulary development and narrative/story telling skills as well. (Ex. 9.12-15)

It is with this Student profile that I now turn to the legal considerations of the IDEA. e. Legal Overview The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

• • (A) have been provided at public expense, under public supervision and direction, and without charge,
• • (B) meet the standards of the state educational agency,
• • (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and
• • (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).^[6]

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

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

III. Did the District Provide the Student a FAPE? a. Legal Standard

IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “... offer a cogent and responsive explanation for their decisions...” Endrew F., Supra.

In evaluating whether the District has complied with the procedural requirements of the IDEA, I must consider whether the alleged procedural violation either (1) impeded the student’s right to a free and appropriate public education, (2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or (3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.

b. Analysis

I first look to the Parent’s allegations to determine the scrutiny to apply in evaluating the District’s presentation. In the complaint notice, the Parent writes the following:

In advance of the June 2020 IEP meeting, the Parent provided the CSE with the following independent evaluation reports and progress reports:

• Independent neuropsychological evaluation report;

• Independent assistive technology evaluation report;

• Independent occupational therapy evaluation report; and

• February 2020 SEIT progress report.

The Parent also provided a vision report showing he has a lazy eye for which he is undergoing therapy and soon will receive surgery to correct.

[The] neuropsychological evaluation report diagnosed [the Student] with Language Disorder and Attention-Deficit/Hyperactivity Disorder, Combined Type (“ADHD”). The neuropsychologist recommended a minimum of 30 hours per week of 1:1 special education teacher instruction, weekly individual counseling and group counseling, speech and language therapy 4x45 (1:1) per week, occupational therapy 2x30, phonological awareness training and various classroom/learning accommodations as well as a 12-month program.

The assistive technology evaluation recommended that [the Student] receive access to a number of applications to support his literacy and language development, reading instruction 2x per week to remediate literacy deficits using a multi-sensory reading approach, a Compact 6HD to magnify text to ensure he can access text presented to him (especially if it is small) and that [the Student] receive preferential seating in school. It was also recommended that [the Student] receive a Functional Vision Assessment and be reevaluated for assistive technology midyear 2020-2021 to rule out the need for any technology.

The independent occupational therapy evaluation report recommended OT 3x30 per week, with one individually and two in a group setting within the school setting, for a 12-month school year.

The SEIT Progress Report detailed [the Student’s] continued struggles maintaining attention and focus, social-emotional and communication deficits, as well as his delayed reading and comprehension skills and math and counting skills. The Report recommended that [the Student] continue to receive SEIT services in the classroom to address his numerous delays.

According to the June 2020 IEP, [the Student’s] classroom teacher also submitted a report explaining his need for constant redirection and guidance when completing tasks.

However, the June 2020 IEP only recommended the following for a 10 month school year:

a. Special Class for Math 12:1+1, 10 times per week for a period; b. Special Class ELA 12:1+1, 15 times per week for a period; c. Special Class Social Studies 12:1+1, 3 times per week for a period; d. Special Class Sciences 12:1+1, 2 times per week for a period; e. Counseling Services 1x30 (2:1); f. OT 1x30 (1:1); g. SLT 2x30 (1:1); and h. SLT 1x30 (2:1).

The IEP team did not meaningfully consider or adopt the recommendations by the independent evaluators.

For example, the IEP does not recommend any 1:1 instruction for [the Student], thus completely disregarding [the Independent Neuropsychologist’s] recommendation for 30 hours per week of 1:1 special education instruction.

Further, the team only recommended 3 speech sessions per week at 30 minutes per session instead of [the Independent Neuropsychologist’s] recommendation of 4x45, only 1x30 of OT instead of [the Independent Occupational Therapist’s] recommendation for 3x30 OT, and only 1 group counseling session instead of [the Independent Neuropsychologist’s] recommendation for both individual and group counseling.

The IEP team also failed to adopt the AT evaluation report’s recommendations that [the Student] receive access to a number of applications to support his literacy and language development, reading instruction 2x per week to remediate literacy deficits using a multisensory reading approach, a Compact 6HD to magnify text to ensure he can access text presented to him and that [the Student] receive preferential seating in school.

The IEP team also did not refer [the Student] for a Functional Vision Assessment, despite that being a recommendation on the private AT evaluation report.

The team also refused to consider and recommend a 12-month services program for [the Student] The issues with implementing [the Student’s] pendency continued into the 2020-2021 school year.

Upon information and belief, [the Student] has not received any OT since July 17, 2020.

[The Student] returned to [the Private School #1] for in person instruction for the 2020-2021 school year and received services under pendency in Case No. 187109. (Ex. B.11-13)

The Parent offers an abundance of substantive and procedural flaws in the development of the Student’s June 2020 IEP:

a. The DOE failed conduct adequate reevaluations before making a change in placement; b. The DOE failed to recommend any special education in the form of individual specialized instruction; c. The DOE failed to meaningfully consider the recommendations contained in the Student’s most recent independent evaluations d. The IEP failed to contain appropriate multisensory 1:1 instruction; e. The IEP failed to recommend 1:1 instruction and remediation; f. The DOE failed to recommend adequate related services; g. The DOE could not recommend, and did not consider, after-school services for academic delays and executive functioning delays; h. The DOE failed to recommend services for a 12 – month school year; i. The IEP failed to take into consideration participation in extracurricular activities and to offer services to facilitate that participation; j. The IEP team failed to consider and recommend AT, AT training or an AT reevaluation, as recommended; k. The IEP team’s recommendation was constrained by certain blanket policies and directives; l. The team had limited options available in terms of services; m. The DOE was not allowed to recommend a specific methodology; n. The DOE predetermined the outcome of the IEP meeting; o. The IEP was drafted without sufficient input from the Parent; p. The DOE failed to ensure that the Parent understood the IEP process; q. The IEP failed to adequately describe the Student’s strengths, weaknesses, and the ways the Student’s disabilities impact the Student’s ability to make progress in relation to cognition, academics, social skills, behavior, focusing, fine motor skills, gross motor skills, sensory integration and functional/ADL skills; r. The services failed to sufficiently address the myriad of ways that the Student’s disability impacts the Student’s performance in relation to cognition, academics, social skills, behavior, focusing, fine motor skills, gross motor skills, sensory integration and functional/ADL skills; s. The DOE failed to align or consider the learning standards for New York and/or the Core Curriculum in developing the goals; t. The goals of the IEP were vague, not measurable, did not contain adequate benchmarks and were not individually tailored to meet the Student’s individual needs; u. The goals of the IEP failed to adequately address the Student’s needs in all areas, including, but not limited to, cognition, academics, social skills, behavior, focusing, fine motor skills, gross motor skills, sensory integration and functional/ADL skills; v. The IEP failed to recommend 12-month, extended school year (“ESY”) services; w. The IEP team was not properly constituted; upon information and belief, the team did not contain required members and, if those individuals were present in name/title, they did not possess the required knowledge, training, or independence to properly formulate a legal IEP; x. The IEP team predetermined the program and placement recommendation; y. The DOE representative who handled the IEP meeting made unilateral decisions; z. The IEP team applied illegal blanket policies to the evaluation, IEP and placement process; aa. The IEP team wrote the IEP without adequate input from the Parent, and the Parent was deprived of the ability to meaningfully participate in the IEP development process; bb. The IEP failed to address the Student’s behavioral needs, including delays in attention and focus; cc. The IEP team did not include positive behavioral interventions and support services even though the Student’s behavior significantly interfered with the Student’s ability to make progress; dd. The IEP’s recommendations were inappropriate to meet the Student’s needs; and ee. The DOE did not conduct an FBA or formulate a sufficient or BIP. (Ex. B.13-15)

Further, for the 2020-2021 SY, in addition to the issues raised above, the Parent claims the Student was denied a FAPE for the following reasons:

a. The DOE applied blanket policies and procedures relative to the provision of

IEP-based services; b. The DOE did not provide sufficient 1:1 instruction; c. The DOE failed to provide appropriate related services, including but not limited to OT, SLT, social skills training, and counseling; d. The DOE did not offer or provide research-based instructional strategies; e. The DOE did not develop a legally valid IEP; f. The DOE failed to issue a Prior Written Notice in accordance with the IDEA; g. The DOE failed to issue legally valid Procedural Safeguards; h. The DOE violated the Child Find mandate of the IDEA; i. The DOE failed to develop a legally valid IEP/IESP that reflects the program and services applicable to full and/or partial remote learning for the 2020-2021 school year; j. Upon information and belief, across the board, on a citywide basis, the DOE’s remote learning services are inadequate and fail to ensure sufficient student-to-teacher interaction and instruction. Instead, students will be left to complete independent work. k. The DOE has failed to provide adequate information about the remote learning and/or partial remote learning plan that the DOE may implement for the 2020-2021 school year. l. The DOE is unable to ensure that related services will be adequately implemented during remote learning; m. The DOE does not have resources, policies and/or procedures in place to timely and appropriately implement pendency for the student; n. The DOE has failed to provide reasonable accommodations for the Student, as the Student is unable to benefit from remote learning in the manner it is being implemented by the DOE; o. The DOE cannot rely upon the COVID-19 Pandemic to assert a defense that it did not provide a FAPE to this Student; p. Over the past several years, the DOE has continually failed to afford the Student a FAPE; and q. The DOE only offers a few-sizes-fits-all model of special education, with limited menu options, which does not and cannot provide a FAPE to the Student regardless of the existence of the Pandemic. (Ex. B-15)

As a result of the allegations above, the Parents claim the District’s program was inappropriate to meet the Student’s needs. (Ex. A-15)

This is the backdrop in which I weigh the District’s recommendations, ever mindful that the District has the burden of proof. In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

I now look to the testimony of the District’s witnesses, which aim to demonstrate the appropriateness of the CSE’s recommendations. i. The School Psychologist – Testimony The School Psychologist, who testified on the District’s behalf, begun her testimony by stating her credentials. She mentioned that she is familiar with the Student, who she “participated in and chaired an IEP meeting...” in reference to the June 10, 2020 CSE meeting. (Ex. 14-1) She stated that the purpose of the meeting was to “conduct a review of [the Student’s] functioning and needs and make an appropriate recommendation for special education services for the 2020-2021 SY.” (T. 14-1)

Prior to the meeting, the School Social Worker, conducted a social history with the Parent, to determine from the Parent’s perspective, how the Student was functioning in all areas, provide the Parent an opportunity to discuss her concerns, and inform her of due process rights. (Ex.s 14-2, 10) The School Psychologist testified, that in addition to the social history update, the CSE team considered the following evaluations and reports, which were provided by the Parent:

• • SEIT progress report dated February 15, 2020 (Ex. 2)
• • OT Evaluation dated February 19, 2020 (Ex. 3)
• • AT Evaluation dated March 4, 2020 (Ex. 4)
• • Neuropsychological Evaluation dated June 5, 2020 (Ex. 9)

The School Psychologist discussed the findings of the independent evaluations and noted that the CSE team gathered additional information based on the verbal input of the Mother and the Student’s classroom teacher:

In regard to [the Student’s] academic functioning, [his] classroom teacher, indicated that he required constant redirection and guidance when completing tasks and functioned better while in a small group setting. [The Student] had been working closely with the teacher's assistant in the classroom as well as with his SEIT provider. It was noted that [the Student] benefits from the use of verbal and visual cues and prompts. According to his classroom teacher's report, [the Student] had alphabet knowledge, phonemic awareness and letter sound skills. He was able to write his name and was making an effort to stay in the lines. It was noted that he writes most of the letters in uppercase, rather than lowercase, however this was noted to be common among the students in the classroom. In regard to his expressive language, [the Classroom Teacher] stated that [the Student] was learning to use his language more effectively. He was noted to speak in complete sentences when he is confident, but when he is not, his answer were generally "I don't know" or "no." (Ex. 14-3)

The School Psychologist continued her testimony, detailing the Student’s levels of functioning and goals, which she notes, are memorialized in the Student’s IEP. (Ex. 14-4) She mentioned that the goals were derived by a combination of verbal and written input from the participants of the meeting, as well from the written reports and evaluations provided by the Parent. The School Psychologist went onto describe the way the recommendations were made:

Based upon all of the evaluative material, progress reports and input from [the Student’s] parent and services providers, the IEP team recommended that [the Student] attend a special class with a ratio of 12 students, 1 special education teacher and 1 classroom assistant (12:1:1) as well as the related services of Occupational Therapy once per week individually for 30 minutes per session; Speech and Language Therapy twice times per week, individually for 30 minutes per session and once per week in a group of 2 for 30 minutes per session; and Counseling once per week in a group of 2 for 30 minutes per session. [the Parent] did not express any disagreement with this recommendation at the time of the IEP meeting.

The IEP recommended services on a 10 month basis. At no time during the June 2020 IEP meeting did [the Parent] request extended school year or summer services. Typically, students are recommended extended school year services to avoid substantial regression. This would mean that the student would require an inordinate period of review or re-teaching to recoup skills previously attained. In this case, there was no evidence that the student suffered from substantial regression and no evidence that it would take an inordinate period of time to recoup skills previously attained. None of the evaluations or documentation presented to the IEP team contained data to support extended school year services.

The classification on [the Student’s] June 2020 IEP is Other Health Impairment. I believe this was an appropriate classification because documentation submitted indicate that [the Student] has a diagnosis of ADHD and other impairments that meets the criteria for OHI. At no point during the June 2020 IEP meeting did [the Parent] share concerns with me regarding this classification. (Ex. 14-4)

She concluded her testimony by endorsing the CSE team’s recommendations. Her statement is captured below:

In my professional opinion, the recommendations were appropriate to meet the student's needs in the Least Restrictive Environment (LRE). I believe based on his needs at the time, [the Student] required a highly structured, intensive program with a small student-teacher ratio and related services in school. This classroom setting would provide him with the individualized support he was in need of in order to make appropriate academic progress. The 12:1:1 program provides opportunities for guided socialization within the classroom. It would also provide the opportunity to benefit from the facilitated social interactions of adults and peers daily. At the time of this IEP meeting, [the Student] was placed in a general education classroom in a private school and was receiving 10 hours of 1:1 service from a SEIT provider. I believe the 12:1:1 classroom would have provided him with a greater level of support which would have allowed him to advance and make progress towards each of the goals on his IEP.

Accordingly, in my clinical opinion, the services and goals contained in the June 2020 IEP are appropriate and reasonably calculated to enable [the Student] to meet his annual educational goals and address his needs during the 2020-2021 school year. (Ex. 14.4-5)

Upon cross-examination, the School Psychologist was asked if the CSE team considered the Neuropsychologist’s recommendation of thirty (30) hours of individual one-to-one special education teacher services. The School Psychologist answered:

So as far as that specific recommendation of one-to-one, that was actually part of the recommendation for the child to one-to-one, it was not actually placed as one-to-one teacher support 30 hours specifically of special education teacher support services as part of the recommendation. So, the way that is written it was not part of the recommendation that was -- are given on that day. (T. 117)

Next, the School Psychologist was asked why the recommendation was not adopted, to which she responded:

Well, there are a number of recommendations that were provided by the neurologist. We looked at the placement, and the recommendation and the related services providers would have been sufficient in order to provide [the Student] with the support that he needed.

We reviewed all of the documentation that was previously discussed. So that specific -- the way that it's written, one-to-one teacher support -- that recommendation of 30 hours was not specifically given.

[T]he -- the specific recommendation that was made, the providers, the special education teacher, and the small setting was able to provide [the Student] with the support that he needed, the instruction, the strategies that he required, as opposed to having one specific individual giving him special education services for 30 hours. (T. 118-119)

When asked how the Neuropsychologist’s recommendation of thirty (30) hours compared to that of the CSE, the School Psychologist stated that “there is no comparison”, and that the CSE’s recommendation was “efficient or sufficient in providing [the Student] with the strategies that he needed.” (T. 119)

The School Psychologist went on to explain how the CSE team made the recommendation for a 12:1:1 classroom,

We looked at the documentation that was provided, looked to see what he needed and the strategies that he needed, and the 12:1:1 with the providers would be sufficient in providing the strategy that he needed. (T. 120)

The Parent’s Attorney directed the witness to Exhibit 2, the SEIT Progress Report, which recommends continuing the one-to-one SEIT instruction services. The School Psychologist stated that the CSE “did not consider a SEIT of a specific number of hours, we were looking at the instruction that [the Student] required and made a recommendation so that the services can be provided to him.” (T. 120) She justified the lack of one-to-one instruction, stating that a 12:1:1 setting will provide the Student with “the opportunity to have that one-to-one instruction based on the strategies that he needs.” (T. 121) However, the School Psychologist noted that “[t]here was no guarantee of one-to-one instruction. Basically, the classroom teacher and the providers would be looking at the skills and making a determination from there.” (T. 121)

Below is an exchange between the Parent’s Attorney and the School Psychologist regarding the lack of one-to-one instruction:

[Parent’s Attorney]: So, in what type of situation would it be warranted if not in a situation where you have both a neuropsychological evaluation and a SEIT progress report recommending one-to-one instruction?

[School Psychologist]: Well, it can vary depending on different things. As I said, when a -- when -- when evaluations are completed there could be 50 recommendations, and basically what the team has to do is to look and see what are the -- what recommendations -- how these recommendations can be delivered in order to assist the child in the school environment.

[Parent’s Attorney]: Okay, but you didn't have any documentation before you or any evaluative material before you concluding that a 12:1:1 classroom would be appropriate for [the Student], correct?

[School Psychologist]: We did not specifically have documentation that talked about a recommendation of 12:1:1. (T. 122)

The Parent’s Attorney questioned the witness about the CSE’s speech-language therapy recommendation (Individual, 2x30), which conflicts with the Neuropsychologist’s recommendation (Individual, 4x45). (T. 124) The School Psychologist provided the following justification:

Okay, so at the time of the IEP meeting [the Student] was in a general ed setting. The only service he was receiving was SEIT. We looked at the documentation that was presented to us. He was in kindergarten going into 1st grade. We made a recommendation to look at the -- the deficits that he has at the same time keeping him in the classroom as much as possible to receive the services.

Based on the neurological -- the neuropsychological, speech and language was recommended four times per week for 45 minutes. We made a recommendation of two times individually and in a group.

We want to be able to then make a recommendation for the child to be in the classroom as much as possible while receiving the appropriate services. So, it's not about the individual providers that's giving the child the service, but it's this -- the different skills that he needs to be taught, and we made a recommendation at the time this was most appropriate. The number of times that the -- the -- the -- that was in the -- this recommendation he would never be in the classroom setting.

So yes, he required skills individually, but he also needed to be able to interact with his peers in a group setting. So, we made a recommendation along -- not just the speech and language therapy services separately but other support services in order to address his deficits. (T. 125-126)

Regarding the Occupational Therapist’s recommendation (Individual, 2x30 & Group, 1x30), the School Psychologist was asked how the CSE determined their recommendation (Individual, 1x30).

Again, these individual independent evaluations were made when the occupational therapy evaluation -- we looked at the various deficits that he exhibited, occupational therapy one time a week could -- was sufficient enough in order to address the issues that he was having.

We were looking at all the evaluations that were presented to us. There was not a specific statement in the report that said it was not sufficient.

In any report; you asked if there was an evaluative report that indicated that group was not sufficient. So, I'm saying to you that there was not a specific report that said it was not sufficient. We were looking at the various deficits that he has and the reason that it was recommended. Again, three times in a group for occupational therapy is not necessarily a -- a recommendation that was beneficial at the time for [the Student].

[W]hen we were making the recommendation we looked at the total number of hours that he would have in the classroom, the total number of adults that would be sitting at his side, and the deficits that he had. The key thing is whether or not his needs can be addressed by the services, and the recommendation of the one time individual his needs could be met.

… We used the information that was presented to us. The classroom teacher was there. We listened to how he performed in the classroom. He required some refocusing prompts; a lot of the issues that could've been addressed could be addressed through management needs, the classroom teacher refocusing him; he didn't need to be pulled out of the classroom or even an adult sitting next to him in order to address those delays or deficits. (T. 131-134)

The Parent’s Attorney turned to the Classroom Teacher Report (Ex. 1) and asked the witness the following questions:

[Parent’s Attorney]: All right, so I'm looking at the classroom teacher's report, which is Exhibit 1, and she mentions that "[the Student] seems to lack sense of his own body movement, and he's very impulsive, and he's quick to grab, hit and throw objects." So, based on that, you didn't believe that OT 2x30 would be needed for this child?

[School Psychologist]: Not in a classroom with a recommendation of 12:1:1.

[Parent’s Attorney]: Okay. Also, the teacher report states that "[the Student] needs constant support with directions on classwork and constant redirection and guidance throughout a task." Based on this information, you didn't believe it was necessary for [the Student] to have one-to-one instruction of 30 hours a week?

[School Psychologist]: No. He was also in a general education. That reference was made when he was in a general education classroom without special education support other than the SEIT that he had. So based on the recommendation of the 12:1:1 and the other related services, the 1x30 minutes of occupational therapy was sufficient.

[Parent’s Attorney]: Okay. How would a 12:1:1 classroom address [the Student’s] need for constant redirection if there’s only one teacher in the classroom?

[School Psychologist]: There's one teacher and there's also an assistant. And he also has other providers, so --

[Parent’s Attorney]: The assistant, though, was not just for [the Student], correct, it was for all 12 children in the classroom?

[School Psychologist]: Correct, yes.

[Parent’s Attorney]: So, there would be no way for him to get constant redirection to a task if there was only one teacher and one assistant and 12 students total, correct?

[School Psychologist]: I would not say that there was not a need for constant; I'm not sure when you say "constant." There was sufficient --

[Parent’s Attorney]: (Interposing) Well, I'm just looking at the teacher report. The teacher report says he needs "constant support with directions on classwork."

[School Psychologist]: While he was in a general education class without a special education teacher.

[Parent’s Attorney]: Well, he had the SEIT two hours [a day]… So, is it your testimony, then, that in a specialized class he would not need constant redirection, and he would not need someone to address his constant need for redirection?

[School Psychologist]: In a 12:1:1 he may need refocusing and redirection, and that can be addressed by the individuals in the classroom in this 12:1:1 setting. (T. 134-136)

The Parent’s Attorney asked if the School Psychologist felt a functional behavior assessment was necessary. The witness answered:

At that time a functional behavior could not have been created. Was it needed? He could have -- he could've progressed with the classroom behavior plan, taking into consideration that when this -- in order to create a functional behavior plan, obviously, the individuals at the school who have knowledge of him at the time of the meeting -- it was I believe in May or June of 2020, so we were in the middle of a global pandemic and he was actually at home. (T. 137)

The School Psychologist was questioned about how the CSE came to their determination of their counseling recommendation for the Student (Group, 2x30).

We reviewed the documentation and the information that was presented to us, and some of these behaviors that was (sic) mentioned as far as his difficulty or lack or pragmatic skills he would benefit from interaction with another peer in the classroom or in the -- as far as the recommendation in a small group in order to help him carry over with these various skills. (T. 139)

As a follow up question, the Parent’s Attorney asked why the CSE did not recommend individual counseling, which the Neuropsychologist recommended. The School Psychologist provided the following reasoning:

[The Student] was receiving a lot of services individually. In -- in -- in speech and language some of the goals as far as the delays that he has as far as turn taking, those can be addressed. He needed to have the -- the strategies taught to him as far as in a small group. The goals of this little youngster is basically for him to adjust to a setting where it's not just about having one-to-one but to learn the strategies in order to be able to interact with other people in the classroom as well as outside of the classroom. (T. 140)

The School Psychologist discussed the Student’s goals and the manner in which they were created. She and the Student’s special education teacher created the goals based on information that was provided either in the evaluations, teacher reports, and the SEIT reports. (T. 153-154) For the remainder of her cross-examination of the School Psychologist, the Parent’s Attorney asked questions regarding on various goals that were included in the Student’s IEP. (See T. 154-308) ii. The Principal – Testimony The Principal from the District’s Recommended Placement testified on the District’s behalf. Upon reviewing the Student’s IEP, she confirmed that the District would have been able to implement the Student’s services at their recommended placement.

The Parent’s Attorney cross-examined the Principal. She begun by asking about the size of the school, to which the Principal responded, “[w]e have over 400 kids.” (T. 326) The Principal answered some questions regarding the school’s remote instruction, during the pandemic. (T. 326-332)

Regarding the Student’s group counseling mandate, the Principal stated that the occupational therapist and the speech therapist provided the services. (T. 332) When asked who was the teacher for the Student’s 12:1:1 class, the Principal could not recall (T. 334-335)

The Principal was asked if the students receive one-to-one instruction in a 12:1:1 classroom. She provided the following response:

This is the third time that I'm saying it, and I'm going to say it again. This is a 12:1:1 class. The teacher was teaching all 12 students. If a child needs support, the teacher gives them support. If a para is there, and they need support with the para, the para will give them support. That's how the 12:1:1 is set up. (T. 337)

When asked about the qualifications of the paraprofessionals, the Principal could not recall; however, generally speaking, she stated:

According to the Department of Education, they are required to graduate with a high school diploma, and then there are certain requirements that they take every so often, as far as tests, in order to remain certified as a paraprofessional with the Department of Education. (T. 339)

The Parent’s Attorney asked her to clarify whether the paraprofessionals hold special education licenses to which the Principal stated they do not. (T. 339) The Principal was unable to recall the functioning levels of students in a 12:1:1 class. (T. 339-340) iii. The Neuropsychologist – Cross-Examination The District’s Attorney cross-examined the Independent Neuropsychologist, whom the Parent sought out to evaluate the Student. When asked why she believed the Student would not be successful in a 12:1:1 setting, the Neuropsychologist answered:

So given that he was in an ICT class with SEIT services, my belief, given my clinical experience and the number of special education services that he had received prior, that a 12:1:1 class would not be appropriate given, as I delineated in my affidavit, that that is not necessarily one-to-one services that he required for his ability to access the curriculum. I'm not sure if you're specifying that you think that there might have been one-to-one services in a 12:1 class, and yes, I am aware that they try to give more individualized support, but what I'm asserting for this individual who has a lot of abilities that can be capitalized on -- his poor attention and his truly very poor language skills would render him unable to use the services in a 12:1 class. It wouldn't give him an ability to make academic gains. So, if he was in a 12:1 class with what it sounds like you're trying to assert might be more individualized than an ICT class that he was in before, I agree, but I don't think that would have been sufficient. Given that he demonstrated some approaching average and average cognitive abilities, and he continues to do so that the 12:1:1 class would not be specifically targeting the areas where he needs intervention and having more things be globally sort of reducing his access to the general curriculum, which I think he's able to do in a different setting with other supports. (T. 367-368)

Next, the Neuropsychologist was asked why she felt the Student requires 12-month extended school year services.

Given his, you know, the significance of his language-based learning difficulties in conjunction with his attention deficit disorder, children with his profile are all the more likely to significantly lose a lot of the content from the second half of the year, if not before, and so then he would need to be retaught for most of September, October, and into November, even what he was learning at the end of the year. It would put him progressively behind if he was not in a 12 -- not just behind his peers, but behind the expectations of any classroom. I think that's imperative in order for him to continue to make academic gains. (T. 369)

To conclude, the District’s Attorney asked the Neuropsychologist how she determined the Student requires additional speech and language therapy:

Given his ADHD, 30-minute sessions can be not necessarily enough time to transition and make meaningful gains within the session, so a 45-minute session is appropriate. The three sessions of individual and one in a group is, again, based on his attention deficits and his significant language weaknesses. He needs that individual attention in order to make both expressive and receptive and pragmatic language gains, but specifically, that one group session would be to work on those pragmatic skills and also to provide an opportunity for him to not feel as isolated or stigmatized in his need for support. (T. 370) c. Conclusion

While I credit the District’s witnesses for their testimony, I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet his individualized needs. The problem with the District’s presentation is not that the witnesses were unconvincing, but rather that there was no explanation for the failure to obtain their own evaluations so that they could reconcile their vastly divergent program recommendations from those of the Parents’ experts. Whether I focus on the ESY services or the quantity of 1:1 teaching, the District, when faced with very specific recommendations for programming and services, simply discounted these recommendations without building any support through objective evaluative records.

IV. Is Compensatory Education an Appropriate Remedy for Denial of a FAPE? a. Legal Standard

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

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

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

Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014. b. Analysis i. The Neuropsychologist – Testimony The Independent Neuropsychologist, who evaluated the Student, testified on behalf of the Parent. She shared her findings, regarding the Student’s intellectual ability:

Intellectually, [the Student] demonstrated low-average fluid reasoning and processing speed, borderline working memory skills, and underdeveloped verbal and visual spatial skills. [the Student] required repeated directions throughout my assessment and needed significant adult support to regulate his behavior and attention. Even with these supports, [the Student] was often resistant to responding to direct questions and needed prompting to continue working. The neuropsychological testing of [the Student] revealed a Diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”) – Combined Type as well as a Language Disorder. Although [the Student] is a bilingual, bicultural child, he showed very limited language and literacy skills in [REDACTED] with very limited [REDACTED] vocabulary, poor grammar, syntax and organization of his ideas using [REDACTED] language skills. Thus, he is English dominate. Despite his dominance in English, [the Student] displayed notable areas of weakness in the English language skills as well. At the time of testing, [the Student’s] phonemic awareness and decoding skills were underdeveloped. In terms of receptive language skills, his ability to follow increasingly complex multi-step directions was poor. He also demonstrated poor vocabulary and semantic associations between words. Expressively, [the Student] struggled to develop age appropriate sentences when provided with structure; his ability to independently formulate sentences was adversely affected by his fluctuating attention and executive functioning weaknesses. Thus, although he is intelligible generally, [the Student’s] language is extremely effortful and difficult to follow at times. Testing results also highlighted that many tasks of executive functioning, including initiation, planning, and organizing tasks, are areas of difficulties for [the Student]. He also showed weaknesses on tasks that require self-monitoring, and he had overall difficulties sustaining his attention and concentration for extended tasks, including those that required sustaining visual and auditory attention over an extended period. This is especially true for tasks that are not intrinsically motivating to [the Student] or require more language processing tasks. (Ex. J.2-4)

She also provided some insight regarding the Student’s emotional and behavioral issues:

Testing also revealed that [the Student] has difficulties regulating his emotional and behavioral impulses across all settings; he can be impulsive and restless and easily frustrated and may refuse to complete at tasks. My recommendations for [the Student] are discussed in detail on pages 12-14 of my March 2020 report (Exhibit H). (Ex. J-5)

Next, she discussed her recommended program versus that of the CSE:

Because of his needs, at the time of the 2020 testing, [the Student] required placement in a classroom that could provide interventions to address his language and learning needs, including a classroom that can provide a very structured yet nurturing and supportive environment with ample access to individualized attention and instruction. To achieve this, at the time of my March 2020 evaluation of [the Student], he required an individual 1:1 special education teacher support of 30 hours per week. I have briefly reviewed the DOE’s 2020 IEP (Exhibit 11) that was developed for [the Student] in June 2020, three months after my evaluation of [the Student] took place, in preparation for this proceeding. The recommendations in that June 2020 IEP for [the Student] were not appropriate to meet [the Student’s] needs as the DOE’s recommended placement of a 12:1:1 classroom did not include any 1:1 special education teacher instruction for [the Student] Additionally, at the time of my March 2020 evaluation, [the Student] required 3 individual and 1 group speech and language therapy (“SLT”) services per week for 45 minutes per session (SLT, 4x45, 1:1); however, the June 2020 IEP only recommended SLT for three times per week at 30 minutes per session (2x30, 1:1 and 1x30, 2:1). Furthermore, the June 2020 IEP only recommended Occupational Therapy (OT) services for [the Student] at 1x30 per week on an individual basis, when he required services twice a week for thirty minutes per session in a group of no more than two students total (OT 2x30, 2:1) to address his fine motor and graphomotor skills. Also, at the time of my March 2020 testing of [the Student], he required both individual and small group counseling of 2 times per week, 30 minutes per session (one individual and one small group). Yet, the June 2020 IEP only recommended counseling once a week (1x30) in a group of 2 students. At the time of my March 2020 testing, [the Student] also required the above services on a 12-month Extended School Year (ESY) basis to avoid regression. However, the June 2020 IEP did not include any summer service recommendations. In September 2021, I conducted a neuropsychological reevaluation of [the Student] and produced a report based on my findings from this evaluation. A copy of my final report, marked as Exhibit F, is annexed hereto and incorporated herein by reference. At the time of my 2021 evaluation, my understanding was that [the Student] completed the 2020-2021 school year (his 1st grade year) at [the Private School #1], where the SEIT instructor provided push in instruction of 10 hours per week, pursuant to a pendency order (Exhibit G), into an integrated co-teaching classroom. (Ex. J.5-6)

She discussed some of the ways in which the Student made progress at the Private School #2, where the Parent placed the Student for the 2020-2021 SY:

He also displayed poor expressive language skills and struggled to produce verbal language. As discussed on page 11 of my report (Exhibit F), there was improvement in [the Student]’s phonological awareness when compared to the results of his previous 2020 evaluation; this indicated to me that his current environment and his development have helped him improve this skill. In terms of his expressive language skills, as discussed on page 12 of my report (Exhibit F), [the Student] is still functioning well below average. Based on [the Student]’s functioning from my 2021 assessment, I believe [the Student] requires placement at a school like [the Private School #2], that provides a 12-month program in a setting that emphasizes language development with supports for children with learning-based needs and language disorders and where speech interventions are integrated into all aspects of the curriculum. (Ex. J-8)

Regarding the proper remedy for the District’s failures, the Neuropsychologist stated that the Student should receive the following:

[A] bank of individual special education tutoring instruction compensatory hours to make up for the 2020-2021 school year in which the New York City Department of Education (“DOE”) only provided 10 hours per week of 1:1 SEIT instruction pursuant to a pendency order instead of my recommended 30 hours per week. Thus, he is owed 920 hours of compensatory 1:1 instruction. The compensatory hours should not include an expiration date so that they can be used flexibly over time (such as on weekends, in school, in the home, on holiday breaks, etc.) (Ex. J-8) i. The Parent/Mother – Testimony

Regarding the 2020-2021 SY, the Parent stated the following:

I did not agree with the recommendations that the New York City Department of Education (DOE) developed for [the Student] in the June 2020 IEP (Exhibit 11). I didn't think the 12:1:1 classroom that the DOE recommended for [the Student] in that IEP would provide him with enough support since it didn't allow for any individual instruction. [the Student] also needs services on a 12-month basis and the June 2020 IEP didn't recommend that for [the Student] As a result, I decided to continue [the Student’s] enrollment at [the Private School #1], where [the Student] had been attending school since September 2017 for preschool. During the 2020-2021 school year, [the Student] also received the SEIT services from the pendency order (Exhibit G) at school, which allowed him to have at least 10 hours of 1:1 SEIT services at the school, and after-school Speech Language Therapy. Unfortunately, I could not locate a provider for the pendency mandated Occupational Therapy (OT) services for the 2020-2021 school year, so [the Student] did not have any OT services during the 2020-2021 school year. (Ex. K-2)

She stated that she believes her son requires compensatory 1:1 special education teacher services and tutoring of thirty (30) hours per week for the entire 2020-2021 school year. Additionally, the Mother requests the following bank of hours:

Because he only had 10 SEIT hours per week through pendency, I am requesting that the DOE fund a bank of 20 hours per week of individual SEIT/tutoring services for the entire 2020-2021 school year to make up for this difference. Also, because I couldn't find a provider to fulfill the pendency OT mandate, I am requesting that the DOE fund a bank of 1 hour per week of OT services for the entire 2020-2021 school year to make up for this loss. (Ex. K-3) d. Concluding Remarks and Rationale for Reducing the Award

I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the award. Moreover, the Parents have established that such services are necessary to permit the Student to benefit from instruction.

I have reduced the requested award regarding compensatory education for four (4) reasons:

First, the evaluations utilized by the Parents for this case must be interpreted with caution because the Student’s scores may have been negatively impacted by school closures caused by COVID-19. It is important to note that each of the evaluations provided by the Parent were conducted in a period where schools were experiencing the initial closures due to COVID-Because of this, there is a likelihood that the Student’s scores may have been negatively skewed and resulted in an overestimation of compensatory services deemed to be necessary for the Student’s education progress. This is the same issue encountered with the decision in case # 187109, in so far as the principal evaluations are the same in that case and this case. I note that in that earlier case the Parents have an option to secure “Independent” reevaluations

Two, I am confident that with my remand and direction to defer this matter to the CSE, the CSE and their ability, guided by the neuropsychological evaluation and the other evaluations developed over time, to make good decisions about the Student’s needs and related services going forward.

Three, I am persuaded by testimony that the Student’s placement in the proper learning environment, called for in my order, will enable the Student to make progress.

Fourth and finally, I have netted out the amount of mandated services obtained via pendency. The idea here is to avoid the duplicitous computations that may inadvertently result from issuing two orders for the same services.

It is therefore ORDERED^[7]

• • This matter shall be remanded to the CSE for the specific purpose of deferring the case to the Central Based Support Team “CBST” for review of this Student’s record and placement in an appropriate New York State Education Department-approved, non-public school such as the Private School #2 or a school with a similar program.
• • To the extent that there is outstanding tuition due at Private School #2, the District shall pay such tuition upon presentation of a bill for same.
• • The District shall create a bank^[8] of:
• • A bank of 383 compensatory hours of individual special education teacher / tutoring services to be provided by a provider of the Parent’s choosing at an enhanced rate due to the Department’s failure to recommend 30 hours per week of 1:1 special education teacher services for the 2020-2021 school year at issue;
• • A bank of 51 compensatory hours of individual SLT to be provided by a provider of the Parent’s choosing at an enhanced rate due to the Department’s failure to recommend and provide SLT 2x40 (1:1) and 2x40(3:1) per week for the 2020-2021 school year at issue; and
• • A bank of 15 compensatory hours of OT to be provided by a provider of the Parent’s choosing at an enhanced rate due to the Department’s failure to recommend and provide OT 3x30 per week for the 2020-2021 school year at issue.

Dated: October 24, 2022

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

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

Footnotes

[1] A hearing was held across the following dates: April 6, 2021; May 21, 2021; August 17, 2021; September 29, 2021; October 5, 2021; October 12, 2021; November 15, 2021; December 13, 2021; January 24, 2022; March 1, 2022; March 21, 2022; July 8, 2022; and July 22, 2022. (Ex. B.9-10)

[2] An Order on Pendency was issued on December 4, 2019 ("December 2019 Pendency Order"), finding pendency in the May 2019 CPSE IEP, consisting of 1:1 SEIT Services for 10 hours per week, 2x30 2:1 Speech and Language Therapy, 2x30 2:1 Occupational Therapy and a 12-month extended school year, effective as of September 3, 2019. (Ex. B.9-10)

[3] The CSE team recommended the Student be placed in a 12:1+1 special education program at a District Non-Specialized School with the following related services: Counseling (Group); Occupational Therapy (Individual); Speech-Language Therapy (Group); and Speech-Language Therapy (Individual). (Ex. 13-1) In determining the Student’s program, the CSE utilized the following assessments/reports: Social History Update (06/08/2020); IEP (02/28/2020); Review of Student’s Portfolio (02/28/2020); Teacher Report (03/02/2020); SEIT Report (05/19/2020); Independent Neuropsychological Evaluation (06/08/2020); Independent AT Evaluation (05/19/2020); Independent OT Evaluation (06/08/2020); and March Eye Report (06/10/2020). (Ex. 13-2)

[4] NYCRR Part 200.1(zz)(10) Other health-impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or Tourette syndrome, which adversely affects a student's educational performance.

[5] The Student underwent the following tests: Adaptive Behavioral Assessment Scale (ABAS Parent Report); Behavioral Assessment System for Children, Third Edition (BASC-3; Parent Report Forms); Children’s Apperception Test (CAT); A Developmental Neuropsychological Assessment (NEPSY-II); Kaufman Test of Educational Achievement, Third Edition (KTEA-3); Rey Complex Figure Task; Rotter Incomplete Sentences; Wechsler Individual Achievement Test, Third Edition (WIAT-III); and Wechsler Intelligence Scale for Children, Fifth Edition (WISC-V). (Ex. 9-4)

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

[7] This is consistent with my FOFD #187109, issued on March 12, 2021. Please note that as part of this same decision, updated evaluations were made available to the Parent.

[8] The District must pay a provider(s) of the Parents’ choosing at a market rate, at the time the services are provided, to be determined by the “implementation unit” of the District, in consultation with the Parents and/or their provider(s). These various hours of services shall be utilized within 4 years of the date of this order. .