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FINDINGS OF FACT AND DECISION
Case Number: 209229
Student’s Name: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parents
Hearing Officer: Martin J. Kehoe III, Esq.
Actual Record Close Date: September 15, 2023
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.
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.
II. Overview The primary issue in this matter is the Parent’s demand for “compensatory education” for alleged District failures during the 2019-2020 and 2020-2021 school years (“SYs”). 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].
The Parent filed the complaint notice on June 31, 2021. (Ex. A). I was appointed as the IHO on June 30, 2021. A hearing was held across multiple dates.[1] The Parents introduced exhibits A-R into the record and called three (3) witnesses: the Speech-Language Pathologist (“the Pathologist”) (Ex. P); the Pediatric Neuropsychologist (“the Neuropsychologist”) (Ex. Q); and the Parent/Mother (Ex. R).
a. Parents’ Position The Parents allege that the District failed to provide the Student a Free Appropriate Public Education (“FAPE”) for the 2019-2020 and 2020-2021 SY. (Ex. A-2) Specifically, the Parents claim that the District failed to implement the Student’s Individualized Education Plans (“IEPs”) for the SYs at issue. Additionally, the Parents claim that the District failed to (a) conduct timely, thorough, and appropriate evaluations, (b) appropriately identify and address her disabilities and needs, (c) offer her timely and appropriate special education services, supports, accommodations, and placement, and
(d) employ appropriate IEP-development and placement procedures. (Ex. A-2).
To remedy the above, the Parent seek the following compensatory education: i. A bank of 1:1 special education teacher services at an enhanced rate without an expiration date, equal to the hours of missed instruction that the Student was entitled to during the period from March 2020-August 2020 of the 2019-2020 SY and September 2020-May 2021 during the 2020- 2021 SY; ii. Banks of physical therapy, speech-language therapy, and occupational therapy services at an enhanced rate without an expiration date, equal to the number of hours of missed services that [the Student] was entitled to receive during the period from March 2020-August 2020 of the 2019-2020 SY and September 2020-May 2021 during the 2020-2021 SY; iii. Any other services recommended by any independent evaluator not known at this time. (Ex. A-14).
b. District’s Position The District did not present a Prong I case, introduce evidence, or bring any witness to testify on their behalf.
c. Background of the Case
[2] Prior to the SYs at issue, on March 23, 2017, the Student underwent a psychoeducational evaluation. (Ex. A-3). The District offered multiple placements, all of which the Parents found to be inappropriate. On August 11, 2017, the Parents sent the District a letter, advising them that she found a placement that could accommodate the Student’s needs. (Ex. A-5). The Parents placed the Student at the Private School, where she has been attending ever since.
In July of 2019, a CSE meeting was held to develop an IEP[3] for the Student. (Ex. A-7). The Parents claim that the IEP was not fully implemented during the period from March 2020 to August 2020. (Ex. A-8). The CSE reconvened on June 5, 2020, and updated their recommendations for the Student.[4] Again, the Parents claim that the IEP was not implemented, this time for the entirety of the 2020-2021 SY. (Ex. A-9). Finally, on June 31, 2021, the Parents filed the complaint.
d. Student History The Student was [REDACTED] years old at the start of the 2019-2020 SY. In the complaint, the Parents describe the Student as follows: [The Student] was born with hydrocephaly and spina bifida myelomeningocele, which is the most severe form of spina bifida. She also has a neurogenic bladder, which requires catheterization, and suffers from seizures, which require the immediate administration of oxygen at onset.
In addition, [the Student] has complete hearing loss in her right ear; ArnoldChiari Type II, which is a structural defect of the cerebellum, obstructive sleep apnea, and feeding issues that require liquids be thickened and foods be pureed. [The Student] is non-ambulatory. [The Student] has been classified with multiple disabilities and that classification is not in dispute.
Despite her medical conditions, which limit her mobility, [the Student] is capable of acquiring new skills and also of academic achievement, as described more fully below. (Ex. A-2). During the SYs at issue, the Student carried a disability classification of Multiple Disabilities.[5] (Ex.s C & D).
On or about December of 2021, the Student underwent a neuropsychological and educational evaluation. The neuropsychologist wrote the following summary of the Student: Despite’s [the Student’s] challenges on many of the standardized testing procedures, it is evident that she has many strengths that will continue to serve her well in an individualized and appropriate educational setting. She is a kindhearted child who is interested in songs, music, painting, outdoor activities, spending time on the beach, and engaging in school outdoor activities, such as going on the swing. [The Student] is affectionate, enjoying physical touch and praise from her parents. She can notice subtle visual details. [The Student] benefits from a multisensory setting that can provide her sufficient stimulation to effectively engage her. Lastly, she is patient, resilient, and adept at managing certain devices, such as her iPad.
The current clinical picture indicates that [the Student] is continuing to display significant cognitive, linguistic, motoric, adaptive, behavioral, social, and emotional delays compared to others her age. It does appear that [the Student] has regressed in certain areas of functioning. Most notably, she no longer can communicate in the same ways that she used to before. This has resulted in impairments in social functioning, which also have been compounded by lack of social engagement due to the pandemic. Further, [the Student] has a history of social communication delays and repetitive behaviors and restricted interests that have not received sufficient support through her educational program. [The Student’s] delays also can be contributed to her medical conditions. Specifically, the research literature indicates that children with myelomeningocele and perinatal hydrocephalus can experience deleterious cognitive outcomes, including a fall in IQ over time, suggesting that they are failing to acquire cognitive skills in the expected time frame as their peers. [The Student] also has a notable seizure history, which can further exacerbate cognitive impairments.
Further, it is important to highlight that [the Student’s] adaptive functioning is well below age expectation across all domains of functioning. Taken together, [the Student] still requires intensive supports across all areas of her development and functioning to stave off further delays and to provide her with the skills to function more independently, especially as she grows older. (Ex. N-12). In her testimony, the Neuropsychologist shared some of her most significant findings: Notable, was that [the Student] met the diagnostic criteria for Autism Spectrum Disorder, with accompanying intellectual impairment, with accompanying language impairment, associated with a known medical condition (spina bifida and hydrocephalus), requiring very substantial support (Level 3) for Social communication and requiring substantial support (Level 2) for restricted, repetitive behaviors; and an Intellectual Developmental Disorder. Children with ASD require distinctive programming and services from other disabilities. (Ex.
Q.5-6).
It is with this background 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 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 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 IEE 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. Whether the District Provided a FAPE for the Student i. Legal Standard
1. Procedural Standard Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).
In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s 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.
2. Substantive 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.
ii. Analysis
I first look to the Parents’ allegations to determine the scrutiny to apply in evaluating the District’s presentation. Regarding the 2019-2020 and 2020-2021 SYs, the Parents raise the following issues:
a. The IEPs was substantively inadequate;
b. The DOE failed to recommend special education in the form of specialized instruction;
c. The IEPs failed to recommend 1:1 instruction and remediation;
d. The DOE failed to recommend adequate related services and supports;
e. The IEPs team failed to consider, and the IEP failed to recommend, home services;
f. The IEP teams failed to consider "make up" services for services that were not implemented throughout the School Years at Issue;
g. The IEPs failed to contain multisensory instruction;
h. The DOE could not recommend and did not consider after-school and/or wraparound services;
i. The DOE could not recommend and did not consider remediation services;
j. The IEPs failed to adequately describe the Student’s strengths, weaknesses, and the ways her disabilities impact her ability to make progress in cognitive, developmental, academic, social, and functional areas;
k. The IEPs did not include a sufficient description of the Student and the Student’s present levels of performance, strengths, and weaknesses across numerous domains, settings, and people;
l. The IEPs failed to address the way in which the Student’s disability interferes with his ability to make progress;
m. The IEP teams failed to consider assistive technology (“AT”) and AT training and the IEPs failed to offer it;
n. The IEPs were not based upon adequate evaluations or reevaluations;
o. The DOE failed to ensure that the documents that the DOE claimed they were using to form the basis of the IEPs were present, reviewed and discussed at the meeting;
p. The evaluations upon which the DOE allegedly based their recommendations supported different services and did not support the IEP teams' recommendation;
q. The IEP teams recommendation was constrained by certain blanket policies and directives;
r. The IEPs failed to take into consideration participation in extracurricular activities;
s. The IEPs were drafted without sufficient input from the Student’s Parents;
t. The goals on the IEPs were vague, not measurable, did not contain adequate benchmarks and were not individually tailored to meet the Student’s individual needs;
u. The DOE failed to align or consider the learning standards for New York and/or the Core Curriculum in developing the goals;
v. The IEP teams were not properly constituted; upon information and belief, the team did not have required members and, to the extent that those individuals were present in name/title, they did not possess the required knowledge, training or independence to properly formulate a legal IEP for the Student;
w. The DOE predetermined the outcome of the IEP meetings, as there were only limited options available;
x. The DOE failed to provide legally sufficient prior written notice and safeguards;
y. Upon information and belief, across the board, on a citywide basis, the DOE’s remote learning services are inadequate and fail to ensure sufficient studenttoteacher interaction and instruction. Instead, students will be left to complete independent work.
z. The DOE did not ensure that related services will be adequately implemented during remote learning; aa. 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; bb. The DOE cannot rely upon the COVID-19 Pandemic to assert a defense that it did not provide a FAPE to this Student; cc. 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.
dd. The goals and services failed to sufficiently address the myriad of ways that the Student’s disability impacts his/her performance. Further, the goals failed to adequately address his/her needs in other areas, including, but not limited to, reading and writing, receptive language, focusing/attention, social interaction, sensory issues, fund of knowledge, behavior, and motor skills; ee. The DOE failed to recommend appropriate transportation; ff. The DOE failed to identify major areas of disability and delay; gg. The DOE ignored the input of the Parent, the Providers or independent evaluations presented to the teams; hh. The DOE violated the LRE; ii. The IEPs failed to address the student’s pragmatic language and social delays; jj. The IEPs failed to address the Student’s executive functioning delays and attention-related issues; kk. The IEPs failed to address the Student’s processing delays and delays in recall/memory; ll. The IEPs failed to address the Student’s severe sensory delays; mm. The IEPs failed to address the Student’s Gross Motor delays; nn. The IEPs failed to address the Student’s Fine Motor delays; oo. The IEPs failed to address the Student’s maladaptive behavior; pp. The IEP teams did not include positive behavioral interventions and support services even though the student’s behavior significantly interfered with his ability to make progress; qq. The IEPs failed to address delays in socialization; rr. The IEPs failed to address delays in ADL skills; ss. The IEP teams applied policies to the student, including but not limited to policies concerning the availability of PROMPT therapy, home-based ABA, ABA in general, after-school and home-based instruction, 1:1 instruction, and inclusion of home-based services in conjunction with a recommendation for services in a school or a school program. (Ex. A.10-11).
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.
The District conceded FAPE to the extent that they did not defend the complaint notice or the attack on the District’s responsibilities vis-à-vis this Student. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. There was no testimony indicating the nature of the CSE deliberations, or even if such deliberations occurred. Rather, I am left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the discussions that may or may not have contributed to a final recommendation. Further, given the myriad specific substantive allegations against the school, and the failure to defend, I find that the District fell short of their burden in this case.
iii. Conclusion
Upon review, I find that the District failed to demonstrate that they met their burden in providing the Student a FAPE. I, therefore, rule for the Parents on Prong I.
IV. Whether Compensatory Education is an Appropriate Award I now look to the testimony of the Parents’ witnesses to establish a basis for the relief sought.
i. 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]).
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.
ii. Analysis
On August 24, 2021, the Speech-Language Pathologist (“the Pathologist”) conducted both a speech-language and assistive technology evaluation of the Student. The Pathologist shared some of her observations for the record: [The Student] presents with cognitive delays and her primary mode of communication is approximations, gestures and physical manipulation although it was reported that she has used 1-2-word utterances in school and 3-4-word utterances in the home. Her verbal output is extremely limited with utterances ranging between 1-4 words, depending who [the Student] is speaking to and the expression. Individuals who are not familiar with her will have difficulty understanding her.
Notably, [the Student’s] communication and language skills were significantly better when she used an Augmentative and Alternative Communication ("AAC") device with speech generating. For example, [the Student] was able to answer questions, use negation, use a variety of social phrases to engage in reciprocal communication and use descriptors like high and out. [The Student] requires assistance with all self-help skills. [The Student] is non-ambulatory and uses a wheelchair. [The Student] was able to imitate a motor action independently and unprompted however inconsistently. [The Student] was able to functionally communicate with AAC device [The Student] responds most favorably to implementation of redirection, verbal prompts, repetition, and modeling to acquire and retain information. [The Student] responds to sound stimulation and speech by turning her head to localize the source of a sound and through following simple commands. [The Student] presented with adequate hearing skills given her hearing complications (deaf in right ear), she was able to localize a sound and respond to environmental stimuli. It was reported that [the Student] may have pain in the ear and at times she is sensitive to noises in the environment indicated by putting her finger in her ear in response to auditory stimuli. [The Student] presented with a severely limited attention span and object preoccupation.
Expressively, [the Student] presents as a primarily non-verbal communicator.
In terms of pragmatic language, [the Student] can request item/action; gain attention; protest/resist; greet/take leave; and request assistance in a familiar routine and in a restricted manner. [The Student] can minimally answer, ''wh" questions; she inconsistently answers, "yes/no" questions, often stating "yes" to indicate no. (Ex. P.4-5).
The Pathologist noted that the Student is a has an array of needs that must be met for her to benefit from her education. (Ex. P-6). She then made the following recommendations in support of compensatory education: Providing compensatory speech and language therapy will allow [the Student] to have the opportunity to address her specific needs in a consistent manner. [The Student] needs intensive therapy to develop the foundational language skills she is lacking.
I recommend that there shall not be an expiration on these compensatory services to allow [the Student] to utilize these hours with flexibility over an extended period. The compensatory services should occur in the home, or a combination of home and school if time permits in [the Student’s] school schedule. [The Student] should also receive compensatory SLT services for the 2019-2020 and 2020-2021 school years in the form of a bank of 414 hours with no expiration date. The recommended hours are derived from a qualitative approach, recognizing that [the Student’s] current deficits are reflective of the lack of appropriate services offered to her (for purposes of my recommendation, I presumed [the Student’s] IEP mandated SLT was implemented during the 2019-2020 and 2020-2021 SYs). Ideally, these services should be provided to [the Student] in three one-hour sessions per week over the next three years.
The speech services provided to [the Student] over the 2019-2020 and 2020-2021 school years was inadequate, as [the Student] required consistent access to assistive technology that would have allowed for linguistic growth (AAC), instruction in phonological and sound patterns to increase her literacy skills and carry-over of skills across educational and home environments.
Due to inadequate services and goals, [the Student] is now operating at a deficit.
The calculation of 3 hours/week is based on the amount of services that is projected to take [the Student] to a place where he can acquire the skills he is currently lacking in speech and language domains.
Providing these services will allow [the Student] to have the opportunity to address her specific needs in a consistent manner. [The Student] needs intensive therapy to develop the foundational language skills and functional communication skills she is lacking.
I recommend that there shall be an expiration on these compensatory services to allow [the Student] to utilize these hours with flexibility over an extended period.
The compensatory services should occur in the home, push-in at school (in class and/or other activities, for example, [the Student] should be provided feeding therapy at school during her lunchtime), and/or a combination of home and school, wherever time permits in [the Student’s] school schedule … (Ex. P.6-8).
The Pathologist’s support for compensatory education is joined by that of the Pediatric Neuropsychologist (“the Neuropsychologist”), who conducted the comprehensive neuropsychological evaluation of the Student, on or about December of 2021. (Ex.s N & Q-3). Her description of the Student is consistent with that of the Pathologist’s: [The Student] presents with a history of complex medical and developmental diagnoses include hydrocephalus, spina bifida, epilepsy, unilateral hearing loss in the right ear, Arnold Chiari malformation type 2, precocious puberty, paralysis, and obstructive sleep apnea. [The Student’s] daily medication regiment includes medications for seizures and for Urinary Tract Infections and bladder contractions, as well as additional seizure medications as needed. She has strabismus and an astigmatism. [The Student] is non-ambulatory and utilizes a Rifton Chair. (Ex. Q-4). The Student’s mother expressed her concerns to the Neuropsychologist, regarding her child’s struggles with remote instruction. (Ex. Q-5). With the proper in-person supports, the Student appeared to be relatively successful. (Ex. Q-5).
In her report, the Neuropsychologist also recommended compensatory education: [The Student] should receive compensatory 1:1 ABA services, accounting for both home-based ABA and school-based ABA. [The Student] requires a large bank of hours given her current functional needs and the time she will need to make progress to stave off further delays compared to her peers. These hours are recommended in addition to the services recommended above, so that she can minimize the current gaps in her functioning and continue to demonstrate progress. Without these additional supports, the gap will certainly widen, leading to even greater delays in time. These hours should be available without an expiration date so that [the Student] and her family can access them over time. (Ex. N-14).
In her testimony, the Neuropsychologist spoke to this recommendation:
On page 14 of my report (Exhibit N-14) I calculated compensatory hours for [the Student] based on the period at issue in this case (March 2020 - June 2021), as follows:
For the 2020–2021 SY: 1,380 hours of direct 1:1 home-based ABA instruction (30 hours per week x 46 weeks x 1 school years). There was a typographical error in the compensatory hours in my report – it should have stated included an additional 360 hours for March–June 2020 (30 hours per week x 12 weeks).
I will defer to an Occupational Therapist, Physical Therapist, and Speech Language Pathologist regarding appropriate compensatory awards for those domains.
The compensatory hours I have recommended should be used flexibly at the Parent’s discretion and should not have an expiration or “use by” date so that [the Student] can access the hours as needed, over time, in order for them to be most effective. (Ex. Q-6). When the Mother testified, she expressed her concerns regarding her daughter’s struggles. (Ex.
R.1-5). The Mother indicated that the Student had been benefiting from compensatory education from a previous case: The CSE has not considered compensatory services for [the Student] since she returned to school in-person, and has not considered if [the Student] benefited from or regressed during remote instruction.
Additionally, since the summer of 2021, [the Student] has been receiving compensatory 1:1 SETSS/ABA pursuant to the IHO's prior order. She has been benefiting from those l:1 services and ABA strategies. She has been using these services at home after-school and on weekends, and my hope is to have provider(s) work with [the Student] in class at CLC. [The Student] is very delayed but she has been able to make progress with 1:1 services and [the Student] is enjoying these services and been engaged and motivated; in fact, [the Student’s] only obstacle to using those compensatory services has been finding additional available (and appropriate) providers.
I have made considerable efforts to locate providers for Speech, OT, and PT for [the Student], should the IHO award compensatory related service in this case.
However, it has been challenging, among other reasons, providers have very full schedules and very few will provide services in a child's home. Additionally, providers who have availability are unwilling to commit until s/he knows the start date, amount of services, and rate/payment method. As a result, if the IHO awards any additional makeup services for [the Student], I am requesting the IHO order the DOE to locate providers for us. (Ex. R-6).
Together, the Parents’ three (3) witnesses have demonstrated that there is a need for compensatory education services, as the Student was placed in an academic deficit.
iii. Conclusion
I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the award. As amplified throughout the record and in this finding of fact, compensatory education is an appropriate remedy for the District’s denial of a FAPE. The District did not call any witnesses, nor did they enter any evidence into the record. The Parents provided an ample amount of expert advice advocating for the makeup services. Moreover, the Parents have established that such services are necessary to permit the Student to benefit from instruction.
Concluding Remarks and Rationale for Reducing the Award
I have reduced the requested award regarding compensatory education for three reasons:
1. I am confident in 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;
2. The current school for the Student is, by definition, appropriate so the compensatory remedy will be significantly aided by having the correct school; and
3. I recognize there are a finite number of hours per week, and the demands of the Student’s school year along with significant hours of additional services, may be daunting. Inherent limits of stamina, pace, concentration and the like could easily place an unintended burden on the Student and the family. I attempt to mitigate these unintended consequences with my order.
It is therefore ORDERED
For the District to fund the following bank of hours to be utilized within 4 years of this order:
• 1,200 hours of 1:1 ABA instruction
• 400 hours of Speech-Language Therapy
• 60 hours of Physical Therapy; and
• Compensatory OT: The District shall, within 35-days, provide Parent’s Counsel with a full accounting with attendance records of the mandated OT provided to the Student along with proposing the total hours of OT that the Student was entitled to from March 2020 through June 2021; and In the event the DOE does not provide a full accounting of the total hours provided and total hours the Student was entitled to within 35-days, then Maleah shall receive a bank of 80 hours of OT (16 weeks of 2019–2020 SY + 46 weeks of 2020–2021 SY x 1.5 hours per week, Ex. C-13).
Dated: September 15, 2023
Martin Kehoe, III 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.
Footnotes
[1] August 17, 2021; October 4, 2021; October 19, 2021; December 2, 2021; January 14, 2022; March 21, 2022; April 29, 2022; June 13, 2022; September 19, 2022; November 28, 2022; February 7, 2023; March 7, 2023; March 14, 2023; April 28, 2023; June 29, 2023; and July 6, 2023.
[2] For a more detailed background, see the ‘Background of the Case’ of the previous FOFD, which is included in this record as exhibit B.
[3] The CSE team recommended the following on a 12-month basis: a) Placement in as 12:1+4 NYSED-Approved Non-Public School- Day, 8x per day for a period; b) OT 3x30x1:1; c) Skilled Nursing Services, Individual, 5x weekly; d) PT 3x30x1:1; e) SLT 2x30x1:1 and 1x30 in a group; f) Testing accommodations including use of aid/assistive technology, adaptive or special equipment, extended time, and tests read for all assessments; and g) Special transportation accommodations including a Nurse, lift bus, air conditioning, door-to-door, and limited travel time. (Ex. A-7).
[4] The June 2020 IEP recommended the following on a 12-month basis: a) Placement in as 12:1+4 NYSED-Approved Non-Public School- Day, 5 hours and 30 minutes for a period; b) OT 3x30x1:1; c) Skilled Nursing Services, Individual- Full Time, 5 hours and 30 minutes for a period; d) PT 3x30x1:1; e) SLT 2x30x1:1 and 1x30 in a group; f) Dynamic Display Speech Generating Device- Individual, School Day, Full-Time g) Testing accommodations including spoken audio, single-switch system, and read aloud for NYSAA; and h) Special transportation accommodations including 1:1 nursing services, lift bus, air conditioning, door-to-door, and route with fewer students. (Ex. A-9).
[5] 8 NYCRR Part 200.1(zz)(8) Multiple disabilities means concomitant impairments (such as intellectual disability-blindness, intellectual disability-orthopedic impairment, etc.), the combination of which cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness.
[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).