New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 552947 - NYC: 209054

FINDINGS OF FACT AND DECISION

Case Number: 209054

Student’s Name: REDACTED (hereinafter referred to as “Student”)

Date of Birth: REDACTED

School District: New York City Department of Education Hearing Requested by: PARENT (hereinafter referred to as “Parent”)

Date(s) of Hearing: September 16, 2022

Actual Record Closed Date: March 9, 2023

Hearing Officer: Amy Lynne Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 16, 2022

For the Student:

REDACTED, Attorney

REDACTED, Parent

REDACTED, Psy.D, BCBA, LBA, REDACTED

REDACTED, Assistant Principal, PRIVATE SCHOOL For the DOE:

REDACTED, District Representative

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on the Parent’s Due Process Complaint (“DPC") filed on or about June 25, 2021 and amended on April 11, 2022. (Exhibit A) The undersigned Impartial Hearing Officer (“IHO”) was appointed to this matter on December 15, 2021, by the New York City Department of Education (“DOE”).

A hearing was held on September 16, 2022. It was a closed hearing, conducted by video/teleconference, with the presence of a court reporter to create a written transcript. The Parent was represented by Attorney. The DOE was represented by District Representative. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision. The record was closed on March 9, 2023.

In scheduling the hearing date, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

JURISDICTION

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

BACKGROUND

STUDENT is a REDACTED girl classified by the Department of Education (“DOE”), through its Committee on Special Education (“CSE”), as a student with a disability, with the classification of Autism. The CSE convened on June 25, 2019, to develop an Individualized Education Program (“IEP”) for STUDENT for the 2019-2020 school year. The meeting was timed so that the CSE had the benefit of a comprehensive neuropsychological evaluation report obtained by the Parent, dated March 7, 2019. (Exhibit V) There were additional recent reports also available at that time. Although the CSE included the test scores contained in the neuropsychological evaluation in the IEP created, there were no recommendations from the evaluation incorporated into the IEP. The CSE recommended a twelve-month program of an 8:1+1 special class for math, ELA, Social Studies, and Sciences, along with several related services. (Exhibit R)

The CSE convened on January 21, 2020, to develop an Individualized Education Program (“IEP”) for STUDENT. The CSE recommended continuation of the previous classroom program, decreased STUDENT’s occupational therapy sessions from two to one per week, and replaced her one individual counseling session with a second group counseling session. (Exhibit P).

The CSE convened on January 20, 2021, to develop an IEP for STUDENT. The CSE recommended continuation of the previous program, removed the assistive technology mandate that had previously been deemed necessary and provided for home and school use, and removed the parent training and counseling mandate. (Exhibit M) In a letter dated February 11, 2021, though counsel, the Parent notified the DOE of their intention to enroll STUDENT at the PRIVATE SCHOOL, a private school for individuals on the autism spectrum, for the remainder of the 2020–2021 school year and seek payment of the tuition from the DOE. (Exhibit Y) By letter dated, June 17, 2021, through counsel, the Parent informed the DOE of their intention to re-enroll STUDENT at PRIVATE SCHOOL for the 12-month 2021–2022 school year and seek an order directing the DOE to pay the tuition. (Exhibit Z)

The CSE convened on January 25, 2022, to develop an IEP for STUDENT. The CSE recommended a twelve-month placement and program of a 6:1+1 special class for math, ELA, Social Studies, and Sciences along with several related services. (Exhibit C) The CSE rejected placement in an 8:1+1 class, the setting it repeatedly recommended in the prior IEPs. Under “Reason(s) for Rejection,” the CSE explained, “Special Class in a specialized school 8:1+1 would not meet STUDENT’s needs and requirements.” The Parent asserts that the DOE denied STUDENT a Free Appropriate Public Education (“FAPE”) for the 2019-2020, 2020-2021, and 2021-2022 school years. (Exhibit A) The Parent is seeking:

1. The direct payment of tuition to PRIVATE SCHOOL for the partial 2020-2021 school year and for the complete 2021-2022 school year;

2. For the period from the IEP date of June 2019, through STUDENT’s enrollment at PRIVATE SCHOOL in March 2021, a period of 76 weeks: 760 hours of compensatory one-to-one ABA services representing ten hours per week; 76 hours of parent counseling and training services, representing one hour per week; 76 hours of Board Certified Behavior Analyst (“BCBA”) program development services, representing one hour per week, at a rate not to exceed $300 per hour; and 38 hours of compensatory speech-language therapy services, representing one 30-minute session per week, with a licensed speech-language pathologist chosen by the Parent at reasonable market rate;

3. For the period from the reduction of STUDENT’s occupational therapy services in the IEP of January 2020, to her enrollment at PRIVATE SCHOOL in March 2021: 25 hours of compensatory occupational therapy services, representing one 30- minute session per week, with a licensed occupational therapist chosen by the Parent at reasonable market rate; and,

4. Transportation costs related to the receipt of compensatory services, if they are not home-based.

POSITIONS OF THE PARTIES

THE DOE’S CASE

As an opening statement, the DOE stated that:

The District continued to investigate this matter for the possibility of resolving the entire matter without the need to go to hearing. This is a multiple-year case, and therefore involved more time necessary to review the matter. As such, we have not made a final determination; we are simply resting our case on Prong I.

We still have, and reserve the right, to question the affiants in regard to issues that the District sees remaining on Prong II, and there may be issues related to parental cooperation in Prong III, and that may come apparent during the course of testimony today, or in the review of evidence. And so we reserve the right to raise those issues at hearing today, as well. Thank you.

The DOE added: “We’re not putting on a case.” (T. 39-40) As a result, the DOE did not present any documents or witness testimony.

In its closing argument, the DOE reiterated that it had not presented a “Prong I case” and added that, “We also do not identify any equitable considerations in the Parent’s testimony or affidavit.” (T. 75-76) The only challenge raised by the DOE in this case was related to the Parent’s requested remedy of compensatory services and any other services outside of STUDENT’s school program. The DOE argued that, based on the testimony of Assistant Principal, STUDENT made significant progress at PRIVATE SCHOOL in two consecutive school years, which “[R]enders Parent’s request for any compensatory services outside of the school, or beyond what the school is providing, as superfluous. The child is really making a lot of progress, and that’s quite clear.” (T. 76)

For clarification, the IHO asked: “So just to follow up, the Department of Education is not challenging the appropriateness of the placement at PRIVATE SCHOOL; is that right?” The DOE’s response was “It seems the child is making progress there. We’re not.” (T. 76-77)

Therefore, the DOE offered a blanket concession to the Parent’s claim that the DOE failed to offer a FAPE to STUDENT for the 2019-2020, 2020-2021, and 2021-2022 school years. The DOE acknowledged the appropriateness of the Parent’s placement of STUDENT at PRIVATE SCHOOL and confirmed that there are no equitable considerations that could impact the relief sought by the Parent. The only actual dispute remaining in this matter is the Parent’s request for compensatory services for the cited period prior to STUDENT’s enrollment at PRIVATE SCHOOL.

THE PARENT’S CASE The Parent presented the testimony of three witnesses: Assistant Principal at PRIVATE SCHOOL; Psy.D., Director of Applied Behavior Analysis (“ABA”) at REDACTED; and the Parent. The direct testimony of the witnesses was presented through sworn affidavits with no objection by the DOE. The witnesses appeared for the hearing for the DOE's cross-examination.

Assistant Principal at PRIVATE SCHOOL. She provided her direct testimony through a sworn affidavit, which is fully considered part of this decision although not included in its entirety. (Exhibit JJ) Prior to becoming Assistant Principal, Assistant Principal was a speech-language pathologist and then the supervisor of the Speech and Language Department at PRIVATE SCHOOL. She described PRIVATE SCHOOL as a private school in REDACTED for students ages five through twenty-one who have IEPs from the DOE with a classification of autism. STUDENT is enrolled in PRIVATE SCHOOL’s REDACTED program (“REDACTED”), which was described as a program for students with cognitive impairments, with a primary focus on the functional curriculum, and ABA as its core feature.

Assistant Principal testified that STUDENT has been a student in the REDACTED program since March 2021. Assistant Principal was the supervisor of STUDENT’s speech-language pathologist until becoming Assistant Principal in April 2022. As a supervisor, she observed STUDENT’s speech-language therapy sessions at least once a month and reviewed therapy notes and reports. As Assistant Principal, she observes STUDENT’s classroom three to four times per week for approximately thirty minutes each visit. Assistant Principal also attends the monthly individual meetings of the entire team working with STUDENT

Assistant Principal described STUDENT as a sweet and friendly young woman, able to verbalize her basic wants and needs. STUDENT has global delays in intellectual functioning and receptive, expressive, and pragmatic language. She engages in multiple self-stimulatory behaviors and requires modeling for social interactions. Assistant Principal explained STUDENT’s needs and the methods and environment that benefit her. PRIVATE SCHOOL created goals for STUDENT which are highly individualized and conducted numerous assessments. Assistant Principal described the REDACTED and methods of reinforcement used for STUDENT She also explained the core component of social skills training, REDACTED’s life skills training, and the vocational training STUDENT receives in and outside of the school, which includes building independent travel skills.

STUDENT has received a significant amount of one-to-one instruction and support due to the low student-to-teacher ratio in the classroom. A BCBA is in STUDENT’s classroom three to four times per week for approximately thirty minutes each time. The BCBA trains staff in ABA, collects data on students, and reviews each student’s behavior or action plan with staff. In December 2021, one of the BCBAs conducted an updated Functional Behavioral Assessment (“FBA”) for STUDENT to address multiple disruptive behaviors she was exhibiting and created an Action Plan for STUDENT that uses positive strategies to maintain adaptive behavior. All staff working with STUDENT have received training from the BCBA in implementing the Action Plan.

In the 2020-2021 school year, STUDENT attended PRIVATE SCHOOL remotely in a class with a teacher, teaching assistant, five other students, and four additional staff members. Assistant Principal described the teachers and providers that worked with STUDENT that year and the manner in which remote learning was provided. In the 2021-2022 school year, STUDENT attended PRIVATE SCHOOL in person from July 2021 through June 2022, in a class with the same number of students and staff as the prior year. Assistant Principal described the teachers and providers that worked with STUDENT that year.

Assistant Principal testified that STUDENT has made progress in all domains since entering PRIVATE SCHOOL in March 2021. She stated that STUDENT has improved tremendously with her emotional regulation and engaging in non-preferred tasks. She has greatly improved with completing assignments but continues to benefit from redirection. With her verbal utterances, she has expanded from 1-2 words to 4-5 words in length, with prompts. STUDENT requires prompting to initiate conversations and maintain eye gaze and benefits from phonemic prompting and verbal scaffolding to engage in reciprocal conversation. STUDENT learned to express her feelings by labeling emotions, but still exhibits difficulty explaining the reason for her feelings. She has made a lot of progress in self-advocating. Assistant Principal provided examples of STUDENT’s progress in reading, math, writing, and typing. STUDENT has demonstrated mastery of life skills including making a bed, washing dishes, folding clothing, sweeping, and vacuuming. She can independently provide support to others who are struggling or upset. STUDENT has learned community signs, community helpers and their jobs, and community safety awareness. With her vocational program, STUDENT is working on her focusing skills while performing a job task. She continues to require redirection and prompting when working at her job site.

Assistant Principal stated that, based on her review of STUDENT’s educational records and discussions with her family, STUDENT has not been making appropriate progress in her District 75 setting with the DOE and was not receiving ABA therapy consistent with the recommendations of her neuropsychological evaluation. Based on Assistant Principal’s professional experience and familiarity with STUDENT, she testified that STUDENT “requires the ABA methodologies employed at PRIVATE SCHOOL to enable her to make the progress I have observed- both directly and through collaboration with her team- her make since she began attending PRIVATE SCHOOL.” There are details of the progress she has made toward her goals in her progress reports. (Exhibits B, D, E, F, G, H, and K)

It is Assistant Principal’s professional opinion that STUDENT requires a 12-month placement, with a small student-to-teacher ratio, in a highly structured special education school and classroom, with the support of ABA services. She must be taught by special education and related service providers who are specially trained to work with students with autism. Assistant Principal stated that, “In my professional opinion, PRIVATE SCHOOL - including her small, structured classroom, related services, ABA and CPS methodologies, robust vocational programming - was an appropriate placement for STUDENT during the 2020-2021 and 2021-2022 school years.

Psy.D. is Director of Applied Behavior Analysis at REDACTED. She provided her direct testimony through a sworn affidavit, which is fully considered part of this decision although not included in its entirety. (Exhibit KK) She is licensed in New York State as a psychologist, a BCBA, and a licensed behavior analyst (“LBA”). Psy.D. described REDACTED as a provider of comprehensive psychological, behavioral, and educational services in New York City and as a vendor approved by the DOE. Psy.D.’s work, in providing the full spectrum of ABA services, includes the supervision of the provision of ABA by a staff of approximately REDACTED BCBAs to students with autism, the development of individually tailored home and school-based behavioral treatment plans, the delivery of psychotherapy, and the provision of workshops and training to parents and school staff. Psy.D. is familiar with STUDENT through STUDENT’s evaluation reports, IEPs, academic and related services annual reviews, FBA, Action Plan, PRIVATE SCHOOL progress reports, and a phone interview with the Parent. Psy.D. stated that ABA is “considered an evidence-based best practice treatment by the United States Surgeon General and by the American Psychological Association. Thousands of studies have established that utilizing the principles of ABA improves outcomes for individuals with ASD across many domains, including adaptive living skills, social skills, academic skills, and language development. Taken together, the evidence base supports ABA as an intensive therapeutic support delivered for a range of between 10 and 40 hours per week.” Psy.D. noted that, “The neuropsychological evaluation from February 2019 recommended behavioral support for STUDENT in the form of ABA provided by a specialist during the school day.” Psy.D. stated that, “In my experience, a student at STUDENT’s level of functioning should receive 10 hours of ABA support per week, including hours dedicated to program development, supervision, and parent counseling and training. ABA hours are comprised of skill acquisition related to the development of social, vocational, language, and functional academic skills. BCBAs have expertise in developing programs to address each of these areas.” She then explained that, “In order to arrive at a recommendation for an amount of compensatory ABA services, I determine an adequate amount of weekly services that an individual should receive in hours based on that individual’s presentation and needs as presented in their educational records, and I multiply that weekly amount by the number of weeks of the alleged denial of a free appropriate public education.” Psy.D. provided her calculations for the “appropriate amount of compensatory services” for the “period in which the family has alleged a denial of a free appropriate public education.” The totals are “760 hours of direct, one-to-one ABA therapy, provided by a BCBA at a rate of 10 hours per week; no less than 76 hours of parent counseling and training by a BCBA; and no less than 1 hour per week for 76 weeks of supervision or program development by a BCBA.” Psy.D. then stated that the rate charged by REDACTED for the services she described is $300 per hour, which is a usual and customary rate in the market for ABA services provided by a BCBA with comparable levels of training and experience in the New York City market.

Parent is provided her direct testimony through a sworn affidavit, which is fully considered part of this decision although not included in its entirety. (Exhibit LL) Parent explained that STUDENT has been receiving special education services since she was two years old. She attended the DOE’s public schools from kindergarten through mid-ninth grade. Parent described STUDENT’s strengths and weaknesses: “In school, STUDENT’s strengths are that she has become more independent. Most of the time she tries to do everything by herself. She is friendly. She feels comfortable working with others with support. She loves play. She likes to dance. She likes art. STUDENT’s main weakness is her communication. It is too difficult for her to be in conversation. Also in reading, she is low for her grade. She does not know how to use money to buy.” Parent outlined her experiences during the June 2019, January 2020, and January 2021, IEP meetings. Her requests for ABA services, for an increase in speech-language therapy, and for all the recommendations in the evaluations to be adopted, were denied. The January 2020 IEP had a decrease in occupational therapy services, but Parent does not recall any discussion of a decrease. Parent testified that “STUDENT wasn’t making any progress, so I looked for other schools that could provide ABA and the support she needed. I found PRIVATE SCHOOL, which provides ABA. I decided to enroll her there so she could get what she needs to improve her appropriate behavior and learn.” In describing STUDENT’s progress at PRIVATE SCHOOL, Parent stated that: “Since STUDENT started at PRIVATE SCHOOL, I have seen a lot of progress. She is more independent to complete her tasks at home, like washing dishes and folding her clothes. Now, she tries to regulate herself when she realizes she is doing something without a reason. She will say, “let me calm down,” or “let me breathe,” and she will close her eyes. She is now able to say my phone number and our address. She has improved in reading, and she can write very well now. She is able to recognize different monies, though she is still not able to buy something on her own at a store. They practice that a lot at PRIVATE SCHOOL. She can add pennies, nickels, dimes, and she is working with quarters.” She added that, “STUDENT is also receiving physical therapy now. I had told the DOE many times she could not sit in her chair appropriately, but now with physical therapy she can sit in a chair instead of laying down.” “STUDENT is getting work-based learning experience. They practice in the cafeteria at school, and she did a work program at Old Navy.” The Parent explained that PRIVATE SCHOOL is appropriate for STUDENT and is allowing her to make progress. PRIVATE SCHOOL is able to provide her with ABA, which was recommended many years ago. She also stated the basis for her claim for compensatory services. She said that, based on her progress with ABA at PRIVATE SCHOOL, “With even more ABA services, STUDENT could make up for lost time and do even better. ABA was recommended for her in 2019 but the DOE would not provide it.” STUDENT still has a lot of language and communication needs and she was “recommended to receive 5 hours of speech a week but the DOE said kids her age can’t get that much.” Parent is requesting compensatory occupational therapy services because the DOE reduced her occupational therapy mandate, but she still needed more services. In the event that compensatory services are not provided in their home, Parent is requesting transportation costs, in the form of MetroCards, for STUDENT and an adult, since STUDENT is unable to travel independently.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The DOE has the burden of establishing that it offered a FAPE to STUDENT (R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-185 [2d Cir. 2012]; Educ. Law § 4404[1][c]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E., 694 F.3d at 189-190; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations 5 omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

The DOE did not even attempt to claim that it had met any of its obligations to STUDENT. There was no submission of documents and no witness testimony; the DOE chose not to present a case at all. This constitutes confirmation that the DOE failed to meet its burden to prove that it offered STUDENT a FAPE. It has the same effect of an explicit concession to a complete failure to provide a FAPE to STUDENT for the 2019-2020, 2020-2021, and 2021-2022 school years. In addition, the unrebutted testimony of Parent established that the program repeatedly recommended by the DOE, one which STUDENT had previously attended, was highly inappropriate for her.

The Parent has the burden of establishing the appropriateness of the program they are requesting for STUDENT (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the program offers an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 [2d Cir. 2007]) The standard used to measure the appropriateness of the parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 [2d Cir. 2000]) “The issue turns on whether a placement - public or private- is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112)

I find that the Parent has prevailed with respect to the appropriateness of the program requested for STUDENT. Those who are familiar with STUDENT, including Parent, Assistant Principal, and Neuropsychologist, strongly agree that STUDENT requires the type of program PRIVATE SCHOOL offers. The witnesses provided persuasive and unrefuted testimony and there was supporting evidence to this effect. The witnesses strongly affirmed the appropriateness of the program to address STUDENT’s individual and complex needs. It was the consensus of the witnesses that the program is reasonably calculated to allow STUDENT to receive educational benefits and make meaningful progress. Parent and Assistant Principal described the significant progress STUDENT has made at PRIVATE SCHOOL.

The DOE is in agreement with the Parent’s position that PRIVATE SCHOOL was an appropriate placement for STUDENT for the 2020-2021 and 2021-2022 school years. The record reflects the DOE’s decision on whether to challenge STUDENT’s placement at PRIVATE SCHOOL. “It seems the child is making progress there. We’re not [challenging].” I find that the Parent has prevailed with respect to the appropriateness of the PRIVATE SCHOOL program.

The following has already been determined: The DOE failed to provide a FAPE to STUDENT in the 2019-2020, 2020-2021, and 2021-2022 school years; and, PRIVATE SCHOOL was an appropriate placement for STUDENT during the 2020-2021 and 2021-2022 school years (from March 1, 2021 through June 30, 2022). The remaining relief sought by the Parent, in the form of compensatory services, arises from the earlier portion of the three school years at issue: the time from the CSE meeting and IEP of June 25, 2019, through STUDENT’s enrollment at PRIVATE SCHOOL (from June 25, 2019, through March 2021). It is the compensatory relief requested that is the subject of a challenge by the DOE. The compensatory services are not for mandated services that were not provided; they are primarily for services recommended for STUDENT but rejected by the DOE and for services unilaterally reduced by the DOE. It was not until STUDENT enrolled at PRIVATE SCHOOL that she had a program reflective of the recommendations in the neuropsychological evaluation and agreeable to the Parent. The Parent’s position is that STUDENT should have had an appropriate program during the period following the evaluation, as of the CSE meeting and IEP of June 25, 2019. Since she did not, the DOE must provide compensatory services to make up for the program and services she was denied. The Parent offered Psy.D.’s calculations and rationale to establish the amount of ABA-related services that would be appropriate. The Parent relies on the related services recommendations and the DOE’s improper reduction of services to establish the related services appropriate as compensatory services.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; 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 E. Lyme, 790 F.3d at 456; 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]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County 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 [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"]). The district conceded, or at least failed to meet its burden to prove, that it offered STUDENT a FAPE for the 2019-2020, 2020-2021, and 2021-2022 school years. The Parent now requests compensatory instruction and services as relief during this impartial hearing. “To be sure, the district was required under the due process procedures set forth in New York State law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that he would have been in but for the denial of a FAPE (Educ. Law § 4404[1][c]; see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *4 [S.D.N.Y. Mar. 30, 2017] [noting the SRO's finding that the district had the burden of proof on the issue of compensatory education]; see also E. Lyme, 790 F.3d at 457; Reid, 401 F.3d at 524). Where, as here, New York State law has placed the burden of production and persuasion at an impartial hearing on the district, it is not an SRO's responsibility to craft the district's position regarding the appropriate compensatory education remedy.” (Application of a Student with a Disability, Appeal No. 21-097) Here, the DOE did nothing beyond voicing an objection to compensatory services in a closing argument because, fortunately, STUDENT made progress at PRIVATE SCHOOL. This does not absolve the DOE of its obligations or excuse its failures. It certainly does not erase the right STUDENT had to a FAPE during the years in question or the right she has to be placed in the position that she would have been in but for the repeated denial of a FAPE.

In Application of a Student with a Disability, Appeal No. 22-145, with similar facts to the instant case regarding compensatory education, the State Review Officer stated, in part, that:

Under the specific circumstances of this case and given that the district had nearly two years to begin to engage with the impartial hearing process and has failed to do so, the hearing record does not include any evidence to counter the parent's request for an hour-for-hour compensatory education remedy for the school years at issue. In addition, the district did not offer, and the evidence does not provide any alternative qualitative approach to calculate the number of hours of compensatory 1:1 special education instruction/tutoring and counseling that were appropriate to remedy a three-year denial of a FAPE.

The record in the instant case also demonstrates that, “the parent's quantitative approach is uncontested and remains the only available means for determining the relief to which the student is entitled on this hearing record” (id. at 13).

STUDENT was evaluated by REDACTED, an independent neuropsychologist, on February 19, 2019. According to the neuropsychological evaluation report, dated March 7, 2019, neuropsychologist conducted a “comprehensive review of available school records, a clinical interview with STUDENT’s mother, Parent, comprehensive objective testing, and self-report questionnaires administered to her mother and classroom teacher.” (Exhibit V) Neuropsychologist reported the detailed comprehensive testing results, her behavioral observations of STUDENT, and her diagnostic impressions. The following findings are included among those concluded by neuropsychologist:

• • Results of cognitive testing on the WISC-V indicated that STUDENT performed in the extremely low range on all indices despite mild variability in performance. Given her relative weaknesses in verbal comprehension and processing speed, STUDENT was also administered a nonverbal test of intelligence. She demonstrated impaired performance on both the Pictorial and Geometric Scales of this measure. Consistent with her cognitive abilities, STUDENT’s academic skills across reading, math, and writing tasks were impaired and well below expectation for her age and grade.
• • Additional neurocognitive testing indicated that STUDENT also displayed global delays in her neurocognitive abilities. She demonstrated impairments in her expressive language skills, including her fund of vocabulary and verbal abstract reasoning. STUDENT’s one-word receptive vocabulary for pictures was poor and she performed in the impaired range on receptive language tasks involving multiple-step instructions and listening to stories, Similarly, STUDENT’s phonological processing and rapid naming skills were well below age expectation.
• • Regarding attention, STUDENT demonstrated poor basic auditory attention on a digit span task. However, she was unable to complete additional measures of sustained attention and executive functioning.
• • In addition, STUDENT’s visual-spatial skills fell in the extremely low-to-borderline range across measures, including visual perception, visual construction, fine-motor skills, and visual-motor integration. Lastly, STUDENT’s visual memory abilities for contextualized information presented in faces were in the borderline range, while she demonstrated impaired performance on a non-contextualized immediate memory task for designs. She was unable to complete any verbal memory subtests.
• • Overall adaptive functioning as measured by the Vineland-3 fell within the low range across Communication, Daily Living, and Socialization domains.

Neuropsychologist’s recommendations related to academic instruction included:

2. School Placement: Based upon her complex profile and diagnosis of autism, STUDENT requires a specialized non-public school placement and intensive special education services. At this time, STUDENT should be educated in a structured, yet supportive, classroom with a low student-to-teacher ratio where she can continue to build her academic and social communication skills while also fostering independence through mastery of life skills. a. STUDENT’s classroom environment should be multisensory, incorporate frequent visual supports, and provide hands-on and activity-based learning with access to ample one-on-one or small-group instruction. b. She requires a school setting where she has access to an evidence-based social communication curriculum, with instructional time devoted to building social and functional communication skills throughout the day. This program should focus on learning the verbal and nonverbal behaviors necessary to interact effectively and appropriately with peers and adults. c. It is imperative that STUDENT’s school teachers and staff members are specifically trained to work with students with ASD who have a range of strengths and abilities. It is also important that they are able to adequately reduce STUDENT’s restricted and repetitive behaviors. d. While she will likely display difficulty learning new concepts and generalizing what she has learned, STUDENT is capable of acquiring new skills and should continue to be exposed to academic curriculum. It is important that her academic instruction focus on functional literacy and math skills as well as adaptive and vocational skills for independent living. e. STUDENT requires special education services over a 12-month period to avoid regression of skills.

3. Behavioral Support: STUDENT should be provided with ample individualized adult facilitation to help her progress in her academic, communication, and social interaction skills, as well as helping her follow the classroom routines and attend in a consistent manner. Specifically, STUDENT requires the support of an Applied Behavior Analysis (ABA) specialist during the school day. This specialist should work directly with STUDENT and provide in-home consultation for STUDENT’s to best support her learning and behavior across settings.

Neuropsychologist also provided specific recommendations regarding speech-language therapy, occupational therapy, adaptive living skills, social skills, assistive technology, additional academic supports, and testing/classroom accommodations. Psy.D. provided unrebutted testimony to establish the need for, and the amount of, compensatory ABA-related services that should be provided to STUDENT for the period during which she was not receiving appropriate educational services. The calculations of Psy.D. were based on a 46-week school year. The amount of schooling generally included in a 12-month school year program is approximately 42 weeks; based on the 180 instructional days in a 10-month school year, plus an additional 30 days during the 12-month portion of the school year that occurs over a summer, typically during a six-week program (id. at 16; see Educ. Law § 3604[7]; 8 NYCRR 200.1[eee]) The period for which compensatory ABA-related services are appropriate is a 72-week period. The 12-month 2019-20 school year consisted of 210 days (180 for the 10-month school year plus 30 for the summer). The total for the 12-month 2019-2020 school year is 42 weeks. The applicable portion of the 12-month 2020-2021 school year, from July 2020 through and including February 2021, consisted of 138 days (30 days for the summer plus 6 months of the 10-month school year, which is 108 days) The total from July 2020 through February 2021 is 27.6 weeks, rounded to 28 weeks. Therefore, the entire period at issue consists of 70 weeks. Based on the foregoing, I find that STUDENT is entitled to 700 hours of compensatory one-to-one ABA services representing ten hours per week; 70 hours of parent counseling and training services, representing one hour per week; and 70 hours of BCBA program development services, representing one hour per week, to remedy the denial of a FAPE for the 2019-2020, 2020-2021 school years, through and including February 2021. As for the requested rate per hour for these services, the DOE did not present any evidence to challenge or otherwise rebut the rate sought by the Parent. Psy.D.’s testimony that the market rate for these services is $300 per hour, which is usual and customary, was uncontested by the DOE. The Parent’s request is granted. The services will be provided a rate not to exceed $300 per hour. The Parent has requested 38 hours of compensatory speech-language therapy services, representing one 30-minute session per week, with a licensed speech-language pathologist chosen by the Parent at reasonable market rate. In the independent speech-language evaluation, dated February 23, 2019, STUDENT was recommended to receive “speech 5x’s for 60 minutes per week in a setting of 1:1.” (Exhibit U) In neuropsychologist’s evaluation, dated March 7, 2019, she recommended that STUDENT receive speech and language therapy “at a minimum of three times per week for at least 30 minutes each session (2 individual, 1 group).” (Exhibit V) In the IEP, dated June 25, 2019, the CSE increased STUDENT’s speech and language therapy form the previous IEP, dated October 12, 2018, by adding an individual 30-minute session per week, for a total of 2 individual 30-minute sessions per week and 1 group 30-minute session (no more than two students) per week. (Exhibits R and X) This is the same amount of speech-language therapy provided by PRIVATE SCHOOL and that was deemed appropriate to be continued by the PRIVATE SCHOOL speech-language pathologist providing the services to STUDENT (Exhibit G) The difference between the recommendation of 5 sessions of 60 minutes each, relied on by the Parent (Exhibit U), and the 2 individual 30-minute sessions and 1 group 30-minute session per week recommended by neuropsychologist (Exhibit V), included in the June 25, 2019, IEP (Exhibit R), and deemed appropriate by the PRIVATE SCHOOL provider (Exhibit G), is a total of 3.5 hours per week. However, the Parent has requested compensatory speech-language therapy of one 30-minute session per week due to the DOE’s “failure to offer appropriate speech-language therapy mandates.” (Exhibit A) The record does not reflect the basis for the Parent’s request for one 30-minute session of speech-language therapy. It also fails to sufficiently support a finding that the level of services provided was not appropriate for STUDENT. Therefore, the request for compensatory speech-language therapy services is denied. The Parent has requested 25 hours of compensatory occupational therapy services, representing one 30-minute session per week, with a licensed occupational therapist chosen by the Parent at a reasonable market rate. The independent occupational therapy evaluation, dated March 21, 2019, indicated that STUDENT was receiving occupational therapy 2 times a week for 30-minute sessions in a group of 2. The evaluator stated that, “Occupational Therapy intervention is strongly recommended to continue to work on STUDENT’s deficiencies and offer strategies (sensory diet) for both her and her teacher within the classroom” and recommended that the same level of services continue. (Exhibit H) In neuropsychologist’s evaluation, dated March 7, 2019, she recommended that STUDENT “requires at least one individual session of occupational therapy with a sensory focus and regular access to a sensory room.” (Exhibit V) In the IEP, dated June 25, 2019, the CSE continued the mandate of occupational therapy 2 times a week for 30-minute sessions in a group of 2 from the previous IEP, dated October 12, 2018. (Exhibits R and X) This is the same amount of occupational therapy recommended by the independent occupational therapist. The issue raised by the Parent arose with the IEP dated January 17, 2020. (Exhibit P) The mandate for occupational therapy was reduced by half and changed from 2 times a week for 30-minute sessions in a group to 1 time a week for a 30-minute session in a group. There was no source cited in the IEP for the statement and conclusion that, “Considering STUDENT’s independence with daily activities and less need for support, a decrease from 2x30x2 to 1x30x2 has been recommended.” The record clearly shows that approximately 7 months after the June 25, 2019, IEP, the CSE unilaterally cut STUDENT’s occupational therapy mandate in half in the January 17, 2020, IEP. Therefore, the period for which compensatory occupational therapy services are appropriate is from January 21, 2020, the effective date of the reduction in occupational therapy sessions under the January 20, 2020, IEP, up until STUDENT’s enrollment at PRIVATE SCHOOL effective March 1, 2021. This period is the equivalent of a 12-month school year plus approximately five additional weeks. The 12-month school year amounts to 42 weeks, as explained above. The 5 additional calendar weeks, or 9.6% of a 52-week calendar year amounts to 4 weeks of a 42-week school year. Therefore, the entire period at issue for compensatory occupational therapy services consists of 46 weeks. Based on the foregoing, I find that STUDENT is entitled to 23 hours of compensatory occupational therapy services, representing one 30-minute session per week, with a licensed occupational therapist chosen by the Parent at reasonable market rate. There was no position asserted by either party suggesting a period during which compensatory services, if ordered, must be used. The IHO makes such determination in consideration of the period during which the DOE failed to provide a FAPE to STUDENT, the period on which the respective awarded services have been based, and a period of time during which STUDENT can reasonably receive the services in light of her school-based program. The final criterion for an award is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). An award may be impacted by a parent’s failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).  In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP, or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support an award in favor of the parent. (Application of a Child with a Disability, Appeal No. 04-049). The DOE confirmed that it had not identified any equitable considerations that would affect an order in favor of the Parent. The record clearly established the Parent’s continuous cooperation and communication with the DOE. There is absolutely no basis on which to reduce or modify the remedy for the Parent.

ORDER

1. The DOE failed to provide a FAPE to STUDENT for the 2019-2020, 2020-2021, and 2021-2022 school years;

2. The DOE shall directly pay the tuition to the PRIVATE SCHOOL for STUDENT for the portion of the 2020-2021 school year during which she was enrolled at PRIVATE SCHOOL, for a total of $32,400. (Exhibit GG) Payment shall be made immediately upon submission of an invoice to the DOE;

3. The DOE shall directly pay the tuition to the PRIVATE SCHOOL for STUDENT for the twelve-month 2021-2022 school year, for a total of $102,000. (Exhibit HH) Payment shall be made immediately upon submission of an invoice to the DOE;

4. The DOE shall fund a bank of 700 hours of compensatory one-to-one ABA services; 70 hours of parent counseling and training services; and 70 hours of BCBA program development services, by providers chosen by the Parent, at a rate not to exceed $300 per hour;

5. The DOE shall fund a bank of 23 hours of compensatory occupational therapy services, by a provider chosen by the Parent, at a reasonable market rate;

6. There shall be a period of four years from the date of this decision for the compensatory services awarded in paragraphs 4 and 5, above, to be used; and,

7. In the event that the compensatory services awarded in paragraphs 4 and 5, above, are not provided in STUDENT’s home, the DOE shall fund the transportation costs associated with receiving those services, in the form of MetroCards provided to the Parent to be used by STUDENT and an accompanying adult, since STUDENT is unable to travel independently.

SO ORDERED.

DATED: March 23, 2023 Amy Lynne Itzla, Esq.

Amy Lynne Itzla Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Amended due process complaint filing email, 4/11/22, 8 pages

B. Progress report for goals and objectives '21/'22, 6/21/22, 28 pages

C. IEP, 1/11/22, 49 pages

D. Academic annual review, PRIVATE SCHOOL, 12/20/21, 4 pages

E. Physical therapy annual review, PRIVATE SCHOOL, 12/20/21, 4 pages

F. Physical therapy annual review, PRIVATE SCHOOL, 12/20/21, 4 pages

G. Speech-language therapy annual review, PRIVATE SCHOOL, 12/7/21, 3 pages

H. Occupational therapy annual review, PRIVATE SCHOOL, 12/7/21, 3 pages

I. Functional behavioral assessment, PRIVATE SCHOOL, 12/3/21, 3 pages

J. Action plan, PRIVATE SCHOOL, 12/3/21, 3 pages

K. Academic annual review, PRIVATE SCHOOL, 6/9/21, 5 pages

L. Email to Parent from REDACTED, IEP coordinator, regarding ABA services, 1/23/21, 1 page

M. IEP, 1/20/21, 27 pages

N. Spring '21 SANDI results progress over time, unidentified date, 2 pages

O. Evaluation summary, 1/15/21, 9 pages

P. IEP, 1/17/20, 24 pages

Q. Assistive technology evaluation for District 75, 11/19/19, 7 pages

R. IEP, 6/25/19, 23 pages

S. Physical therapy evaluation, 5/10/19, 4 pages

T. Occupational therapy evaluation, 3/21/19, 6 pages

U. Speech-language evaluation, 2/23/19, 4 pages

V. Confidential neuropsychological evaluation, 2/19/19, 16 pages

W. Assistive technology evaluation for District 75, 1/29/19, 7 pages

X. IEP, 10/12/21, 2 pages

Y. Ten-day notice letter, 6/17/21, 2 pages

Z. Ten-day notice letter, 8/25/21, 2 pages

AA. School location letter, 6/22/21, 1 page

BB. Letter from Counsel to CSE 10 regarding school location letter, 8/16/21, 1 page

CC. Class schedule ’20/'21, undated, 1 page

DD. Class schedule summer '21, undated, 1 page

EE. Class schedule ’21/'22, undated, 1 page

FF. Parental guarantee of '20/'21 tuition, 3/4/21, 2 pages

GG. Parental guarantee of '21/'22 tuition, 6/22/21, 2 pages

HH. REDACTED brochure, undated, 2 pages

II. Affidavit of Assistant Principal, 9/9/22, 10 pages

JJ. Affidavit of Psy.D., 9/14/22, 4 pages

KK. Affidavit of Parent, 9/12/22, 5 pages