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Special Education Law
DECISIONParent PrevailedIHO Case No. 211320

New York City Department of Education, Impartial Hearing Decision

September 30, 2022·Jean Marie Brescia·Representative

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 555238 - NYC: 211320

FINDINGS OF FACT AND DECISION

Case Number: 211320

Student’s Name: REDACTED REDACTED

Hearing Requested By: Parent

Dates of Hearing: July 18, 2022

August 8, 2022

Actual Record Close Date: September 16, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

July 18, 2022

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent For the Parent:

For the Department:

None

August 8, 2022 For the Parent:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent

REDACTED REDACTED, SETSS Provider

REDACTED REDACTED, Occupational Therapist

REDACTED REDACTED, Speech-Language Pathologist

REDACTED REDACTED, Physical Therapist For the Department:

REDACTED REDACTED, District Representative

On June 15, 2022, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of REDACTED REDACTED, after the appointment of another hearing officer was rescinded. REDACTED’s parent (“Parent”) requested a hearing on July 26, 2021, challenging the Department of Education’s failure to offer REDACTED a free appropriate public education for the 2021-2022 twelve-month school year and seeking funding for after-school services for REDACTED, consisting of SETSS (five 60-minute sessions per week individually), speech therapy (six 60-minute sessions per week 1:1), assistive technology services (four 60-minute sessions per week individually), occupational therapy (five 60-minute sessions per week individually), physical therapy (five 60-minute sessions per week individually), compensatory services and additional related services, including AT services. Ex. C. During the 2021-2022 twelve-month school year, REDACTED attended the REDACTED REDACTED School, a New York State approved nonpublic special education school (“REDACTED”). Exs. A at 1, C at 1, E.

A pre-hearing conference was scheduled for June 22, 2022. This pre-hearing conference was cancelled by the acceptance, on June 17, 2022, of an amended hearing request that had been filed by REDACTED’s parent, through counsel, on November 3, 2021. Exs. A at 9, B; Tr. 3.

The amended hearing request included an allegation that the Department had failed to implement REDACTED’s pendency entitlements. Ex. A at 2. Parent alleged that REDACTED’s pendency placement includes: placement at REDACTED in an 8:1:2 class with individual related services of OT (three 30-minute sessions per week), PT (three 30-minute sessions per week), speech (three 30-minute sessions per week) and assistive technology services (four 60-minute sessions per week); after-school individual SETSS (five 60-minute sessions per week and after-school individual related services consisting of OT (five 60-minute sessions per week), PT (five 60-minute sessions per week), speech (six 60-minute sessions per week) and assistive technology services (four 60-minute sessions per week); and an SGD for school and home.

After the conclusion of the resolution period subsequent to the acceptance of the amended demand, a conference was conducted on July 18, and the hearing on the merits was conducted on August 8, 2022. The Department failed to appear on July 18. Tr. 4-5. On July 18, Parent explained that placement at REDACTED and the services provided in school by school personnel were not in dispute and that transportation issues had been resolved. Parent withdrew all claims relating to bus transportation. Tr. 8-9.

In terms of compensatory services, Parent is seeking 10 hours of assistive technology services, 10 hour of speech-language therapy, 75 hour of occupational therapy and 10 hours of physical therapy. Tr. 34.

The Department appeared on August 8 but did not present any documentary evidence nor the testimony of any witnesses. Tr. 20-21.

The parties made a joint application on the record for an extension of the compliance date. The application was granted by a written Order of Extension dated August 8, 2022. Parent filed a written closing brief on September 16, 2022. The record closed on September 16, 2022, upon the hearing officer’s receipt and review of Parent’s closing brief, and the Actual Record Close Date is September 16, 2022.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

Findings of Fact

  • • REDACTED is REDACTED-year-old young woman whose disability, for the purposes of the IDEA, is classified as multiple disabilities. Ex. E at 1.
  • • REDACTED attends REDACTED. Exs. A at 1, E.
  • • REDACTED has been diagnosed with REDACTED REDACTED, REDACTED, a REDACTED and REDACTED and requires a REDACTED. She also experiences severe apraxia of speech and her limbs, is non-verbal and non-ambulatory, and is dependent upon adults for all activities of daily living and for mobility. Exs. Q, R, FF at ⁋⁋ 12-15, GG at ⁋⁋ 4-7.
  • • REDACTED REDACTED is a REDACTED disorder that affects one’s ability to make purposeful movements and causes a deterioration of functional abilities, including mobility and fine and gross motor difficulties. Tr. 79, 94; Ex. GG.
  • • REDACTED in unable to articulate words and relies upon her assistive technology device, a REDACTED REDACTED REDACTED, a high-tech REDACTED controlled speech generating device (the “REDACTED”) for expressive language and to indicate her comprehension of material. Tr. 113; Exs. E, EE, GG. With the REDACTED, REDACTED uses direct access REDACTED to make selections from computer-based programming. The programming enables REDACTED to express her wants and needs and to respond to questions related to academics. With adult supervision and facilitation, REDACTED can use the REDACTED to respond to questions; her school curriculum must be regularly updated to the REDACTED so she can follow and participate in academic instruction. Exs. G, H, J, M, AA at ⁋⁋ 9-10, EE, GG at ⁋ 8.
  • • The REDACTED is REDACTED’s primary means of communication, and she uses such devices at home and in school. Ex. EE at ⁋⁋ 12-13.
  • • REDACTED received Early Intervention and preschool services, including after-school home-based SETSS, speech and AT services and occupational therapy. Ex. GG at ⁋ 10.
  • • REDACTED continued to receive after-school home-based SETSS, speech and AT services and occupational therapy and was placed by the Department, as per her IEPs, at REDACTED, and she made progress with this intensive level of instruction and services. See, e.g., Exs. E, F, G, H, K, M, N, O, P, GG at ⁋ 11.
  • • In December 2020, REDACTED’s REDACTED became outdated and inoperable, and the speech therapist requested that the Department provide an updated and operable device. The Department did not provide such a device until December 2021, despite the efforts of REDACTED’s speech therapist and mother to address this problem. For the period from December 2020 through December 2021, REDACTED was limited to responding “yes” or “no” by looking at printed symbols. She otherwise lost her ability to communicate and was unable to participate in academics. Exs. L, M, V, W, EE at ⁋⁋ 28-30.
  • • The CSE convened on July 21, 2022 to develop an IEP for REDACTED for the 2021-2022 twelve-month school year. REDACTED’s mother participated in this meeting and provided extensive input about REDACTED’s needs. Tr. 130-131; Exs. E, GG at ⁋⁋ 19-23.
  • • During the 2021-2022 twelve-month school year, the SETSS teacher provided five sessions per week of SETSS to REDACTED outside of school, after the conclusion of the school day at REDACTED. Tr. 55, 60.
  • • The SETSS teacher, who is a New York State certified general and special education teacher, has worked with REDACTED for approximately five to six years. Tr. 55; Ex. AA at ⁋⁋ 1, 5-6.
  • • During the COVID-19 pandemic, the SETSS teacher worked with REDACTED remotely; REDACTED was successful with such instruction and made progress, in part because her family and speech therapist were able to set up the necessary technology, utilizing multiple platforms, for REDACTED. Tr. 57-59, 68-70; Exs. M, AA at ⁋ 12.
  • • The SETSS teacher focused on mathematics and writing with REDACTED. Tr. 59. She worked on reading comprehension (specifically characters, settings, events), vocabulary, sight words, combining icons with the REDACTED to write simple sentences, punctuation, addition, subtraction, multiplication, division, math word problems, equations, graphing, Ex. AA at ⁋⁋ 13-15.
  • • The SETSS teacher adapted school work and school assessments to be accessible for REDACTED. Tr. 63-65; Ex. AA at ⁋⁋ 13-15. This was necessary because REDACTED did not provide instructional material, texts assessments and worksheets that were accessible for REDACTED in light of her reliance upon REDACTED technology. Ex. AA at ⁋ 18.
  • • The SETSS teacher described in detail how she undertook the adaptations of material and assessments and modifications of curricula—basically, for example, every worksheet from REDACTED first needed to be adapted for REDACTED and then presented to REDACTED in a modified manner so she could access it visually (by, for just one example, presentation on a backlit monitor). Ex. AA at ⁋⁋ 13-15, 18-19.
  • • REDACTED needed, and was provided, “constant” interventions from the SETSS teacher: modeling, redirection, and repetition of information and activities. These interventions permitted REDACTED to participate in lessons and make meaningful progress. Ex. AA at ⁋ 16.
  • • REDACTED made progress in math: she worked diligently and was able to keep up with the REDACTED seventh-grade math curriculum Tr. 65-66, Ex. AA at ⁋ 17.
  • • REDACTED also made progress in reading comprehension, vocabulary, and creating sentences and paragraphs. Ex. AA at ⁋⁋ 13-14, 16.
  • • The SETSS teacher opined that REDACTED continued to require 1:1 SETSS, provided by an individual who understands her disability and how technology can be used with her to benefit her learning, in order to make academic progress. Tr. 67.; Ex. AA at ⁋⁋ 16-19.
  • • The hourly rate of $160.00 charged by the SETSS teacher is reasonable in light of her experience and REDACTED’s identified special education needs, which the SETSS teacher was able to meet. Ex. AA at ⁋⁋ 1-20.
  • • The speech therapist who works with REDACTED at home, after school, provides REDACTED with speech and language therapy and training in alternate and augmentative communication. Tr. 108.
  • • She is a New York State licensed speech-language pathologist. Ex. EE at ⁋⁋ 2-3.
  • • She also has extensive experience working with children with REDACTED’s REDACTED and providing assistive technology services to children with complex needs. Ex. EE at ⁋⁋ 5-8, 10.
  • • The speech therapist has worked with REDACTED since REDACTED was two and a half years old and was receiving Early Intervention Services. Tr. 108.
  • • The speech therapist provided REDACTED with six hours per week of speech and language services focusing on receptive and expressive language utilizing her REDACTED device and practicing “low-tech strategies” for when the device was not available; and oral-motor and feeding goals. Tr. 109, 113-115; Ex. L; Ex. EE at ⁋ 15.
  • • The speech therapy provided at REDACTED was not sufficient to address REDACTED’s identified needs. Ex. L at 3.
  • • In addition, the speech therapist provided eight hours per week of assistive technology services: four hours per week in school consulting with her teachers to assist them in making classroom learning accessible to REDACTED and updating the software on REDACTED’s assistive technology device so she can participate in the curriculum; and four hours per week at home. Tr. 110; Exs. M at 1, EE at ⁋⁋ 15-16.
  • • During the 2021-2022 school year, utilizing her AAC device (the REDACTED), REDACTED was able to participate and learn in at REDACTED. Tr. 111-112.
  • • The speech therapist opined that REDACTED needed both speech therapy and AT services as components of her program because: (a) speech therapy was a direct 1:1 related service that focused on her receptive and expressive language development; (b) AT services focused on improving REDACTED’s access to and use of her REDACTED by maintaining the devices’ functionality, vocabulary libraries, access features, and synchronicity of home and school devices and training the people who work with REDACTED (both at school and at home) to incorporate the device into their teaching of REDACTED; and (c) AT services also involved the speech therapist adapting academic tasks for REDACTED such that they were accessible via her REDACTED so she could be fully included in the academic curriculum. Ex. EE at ⁋ 17.
  • • During the 2021-2022 school year, REDACTED made progress through speech therapy and AT services: her language fluency, vocabulary and expressive language while using the REDACTED have improved; her feeding skills have improved, and she can finish a meal in a shorter period of time with less spillage; and she can utilize more features of her assistive technology to better access her curriculum. Ex. EE at ⁋⁋ 17-20.
  • • The hourly rate of $160.00 charged by the speech therapist is reasonable in light of her experience and REDACTED’s identified special education needs, which the speech therapist was able to meet. Ex. EE at ⁋⁋ 1-25.
  • • The occupational therapist has extensive experience working with students with developmental disabilities. Tr. 76-78. She has worked with REDACTED since REDACTED was three or four years old. Tr. 78.
  • • During the 2021-2022 school year, REDACTED received five hours per week of occupational therapy after school. Tr. 81-82, 90, 99.
  • • REDACTED’s occupational therapy focused on maintaining her functional engagement in tasks of everyday life, including educational tasks. REDACTED needed the support of occupational therapy in order to attend to and participate in learning through her visual-motor skills; use assistive devices (including visual motor control); use her hands; complete activities of daily living; engage in motor planning; maintain posture and muscle control and tone; and regulate her sensory system and attention to task. Tr. 79-80, 82-85, 94-97, 101. The home-based occupational therapists targeted these areas in their sessions with REDACTED. Id.
  • • The full five hours of REDACTED’s home-based occupational therapy, for the 2021-2022 twelve-month school year, did not begin until November 13, 2021. Tr. 80, 100.
  • • REDACTED needed occupational therapy both in school and after school because during the home-based sessions she has a full hour to allow for her “very slow reaction time” concomitant with REDACTED REDACTED and to work on functional tasks, learn strategies to plan motor actions, engage in practice and repetition of those strategies, and learn to integrate of those strategies in different tasks. Tr. 86-87, 101-102.
  • • The occupational therapist opined that five hours per week of home-based occupational therapy was appropriate for REDACTED. Tr. 87-88. Without these services, REDACTED would be “overpowered by stiffness and muscle spasms” and lose “complete control of her body and functional ability.” Tr. 102.
  • • The delays in receiving occupational under pendency resulted in regression: REDACTED’s hands because spastic, she could no longer straighten her fingers nor hold her head up, and her walking speed decreased. Exs. FF, GG.
  • • During the 2021-2022 school year, REDACTED received five hours per week of home-based physical therapy after school from a New York State licensed physical therapist. Tr. 121-122; Ex. FF at ⁋⁋ 2, 8, 16.
  • • REDACTED required one hour sessions because she needed increased time to achieve her motor goals and to continue to make progress. Exs. P, FF at ⁋ 20.
  • • REDACTED required intensive physical therapy in order to make progress with her gross motor skills. Ex. FF at ⁋ 20.
  • • REDACTED made progress in balance, walking, standing, sitting, changing positions, and hand function. Tr. 122, 124-126; Ex. FF at ⁋⁋ 9, 18-19.
  • • REDACTED did not receive home-based physical therapy until July 22, 2021. Ex. FF.
  • • The hourly rate of $150.00 charged by the physical therapist is reasonable in light of her experience and REDACTED’s identified special education needs, which the physical therapist was able to meet. Ex. FF at ⁋⁋ 1-22.

Decision

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).

A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). 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. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).

A board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985); Florence County School District v. Carter, 510 U.S. 7 (1993).

Did the Department of Education Offer REDACTED a Free Appropriate Public Education?

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85. In this case, the DOE did not present testimony or evidence with respect to its provision of FAPE to REDACTED for the 2021-2022 school year. Since the Department did not offer any evidence in support of its program for REDACTED, the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test.

Are the After-School Services and School-Based AT Services Appropriate for REDACTED?

REDACTED’s parent bears the burden of proof concerning the appropriateness of the after-school SETSS and related services (including after school AT services) and school-based AT services for REDACTED. See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S. Ct. 169 (2007).

To meet the above burden, REDACTED’s parent must show that the educational and related services provided through the after-school SETSS and related services (including after-school AT services) and school-based AT services addressed REDACTED's identified special education needs. See C.F., 74;6 F.3d at 82; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.... To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.”

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29 (2d Cir. 2020) (Summary Order).

Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.

The preponderance of the evidence establishes that the after-school SETSS and related services (including after school AT services) and school-based AT services were necessary components of an appropriate special educational program for REDACTED—a program that addressed her unique constellation of complex, interrelated and identified special education needs. REDACTED’s needs necessitate an intensive program of educational and related services provided by educators and therapists with experience and specialized expertise to modify instruction, adapt materials and implement accommodations for REDACTED to access learning. See paragraphs 3, 5-6, 20, 30 and 41-42. The after-school SETSS and related services (including after school AT services) and school-based AT services met REDACTED’s needs and were appropriate (as in necessary) for her. See paragraphs 11, 14-17, 22, 26, 28, 30, 35, 37-38 above. Furthermore, REDACTED’s constellation of challenges is such that her special educational needs cannot be met within the confines of a standard school day. As a result, as the witnesses credibly and consistently testified, REDACTED requires intensive services provided outside of the standard school day in order to make meaningful progress. This testimony was not controverted by the Department. See paragraphs 11, 14-17, 22, 26, 28, 30, 35, 37-38 above.

During the 2021-2022 twelve-month school year, REDACTED made progress. This progress is described in paragraphs 8, 17-19, 31 and 43 above. Through the after-school SETSS and related services (including after school AT services) and school-based AT services, REDACTED made progress across the range of her challenges, clearly demonstrating that these educational and related services were appropriate for her. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress).

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the after-school educational and related services (including home-based AT services) and school-based AT services were necessary components of an appropriate program for REDACTED for the 2021-2022 twelve-month school year. As a result, REDACTED’s parent prevails with respect to the second Burlington/Carter criterion as to the after-school educational and related services (including AT services) and school-based AT services.

It is important to note that REDACTED’s placement at REDACTED, including the speech and occupational therapies that REDACTED receives at REDACTED, are not in dispute in this proceeding and that, with one exception, this decision does not alter that placement or the educational or related services provided by and/or at REDACTED. The one exception is the order that the Department fund, for the reasons stated above, four hours per week of AT services to be provided for REDACTED at REDACTED.

Equities

With respect to the third Burlington criterion, whether equitable considerations support the parent’s claims, the evidence establishes that REDACTED’s parent cooperated with the CSE by attending CSE meetings, communicating with Department personnel, expressing her concerns to the CSE and providing repeated notice to the Department of the services that REDACTED required in order to learn. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district).

Equitable considerations favor the award of relief to REDACTED’s parent. As a result, REDACTED’s parent prevails with respect to the third Burlington/Carter criterion.

Compensatory Services The purpose of a compensatory educational services award is to remedy a denial of a free appropriate public education, such an award “should aim to place the student in the position she would have been in had the district complied with its obligations.” Application of the New York City Department of Education, Appeal No. 11-132 at p. 19 (internal citations omitted). While a one-to-one correspondence of hours missed to hours compensated is not required in formulating a compensatory services remedy, it can, in some instances, provide a useful method of computing hours of compensatory services.

With respect to speech and AT services, REDACTED was deprived of educational benefits, particularly by her inability to fully participate in the school-based curriculum, by the Department’s failure to replace her REDACTED device in a timely manner. The speech therapist/AT specialist recommended that REDACTED receive ten hours of AT services and ten hours of speech therapy for the time period REDACTED was without an updated and functioning REDACTED. See Ex. EE at ⁋ 32. The evidence of regression, as set forth in the record, is sufficient to demonstrate that REDACTED is entitled to such compensatory services as a result of the Department’s failure to either repair or replace REDACTED’s necessary assistive technology.

With respect to occupational therapy, REDACTED was deprived of five hours per week of occupational therapy for a period of 15 weeks due the filing of the hearing demand after the start of the school year and the Department’s failure to timely implement pendency, a time period during which REDACTED regressed.

With respect to physical therapy, REDACTED was deprived of five hours per week of occupational therapy for a period of two weeks at the beginning of the school year, a time period during which REDACTED regressed.

All other claims for relief set forth in the Amended Demand were either withdrawn at the hearing or were abandoned, and determinations with respect to such claims for relief are unnecessary.

Therefore, for all the above reasons, it is hereby ORDERED that:

  • • The Department of Education shall fund the following after-school special educational and related services for REDACTED for the 2021-2022 twelve-month school year:
  • • SETSS, five 60-minute sessions per week;
  • • Speech and language therapy, six 60-minute sessions per week;
  • • AT services, four 60-minute sessions per week;
  • • Occupational therapy, five 60-minute sessions per week;
  • • Physical therapy, five 60-minute sessions per week; and
  • • The Department shall compensate the providers at the providers’ usual and customary rates that, in any event, shall not exceed the rates charged by the current respective providers who work with REDACTED and testified at the hearing.
  • • The Department of Education shall fund the following related service for REDACTED for the 2021-2022 twelve-month school year to be provided at the REDACTED REDACTED School: AT services, four 60-minute sessions per week. The Department shall compensate the speech therapist who provided this service at the rate of $160.00 per hour.
  • • The Department of Education shall fund for REDACTED the following compensatory services:
  • • Ten hours of speech therapy;
  • • Ten hours of AT services;
  • • 75 hours of occupational therapy;
  • • Ten hours of physical therapy;
  • • Such compensatory services shall be provided by licensed therapists of REDACTED’s parent’s choosing;
  • • The Department shall compensate the therapists at the therapists’ usual and customary rates that, in any event, shall not exceed the current rates charged by the current respective therapists who work with REDACTED and testified at the hearing;
  • • The compensatory services hours shall be utilized by September 30, 2024.

Dated: September 30, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

If either party plans to appeal the decision, a notice of intention to seek review shall be 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.

DOCUMENTATION ENTERED INTO THE RECORD

Parent’s Exhibits

  • • 11/3/21 Amended Impartial Hearing Request with Delivery Confirmation (9 pp.)
  • • 6/21/22 Notice of Acceptance of the Amended Hearing Request (2 pp.)
  • • 7/26/21 Original Hearing Request with Delivery Confirmation (6 pp.)
  • • 11/8/21 Pendency Program (3 pp.)
  • • 7/22/21 IEP (22 pp.)
  • • 11/4/19 IEP (33 pp.)
  • • 6/17/21 Physical Therapy Annual Review (5 pp.)
  • • 6/9/21 Speech and Language Annual Progress Report (2 pp.)
  • • 6/18/21 Occupational Therapy Annual Report for 2020-2021 School Year (2 pp.)
  • • 6/22/21 Classroom Teacher Report (2 pp.)
  • • 7/22/21 IEP draft by REDACTED REDACTED School (11 pp.)
  • • 7/14/21 Annual Speech and Language Progress Report (6 pp.)
  • • 7/14/21 2020/2021Annual Progress Report for Assistive Technology (6 pp.)
  • • 7/15/21 SETSS Progress Report (4 pp.)
  • • 7/14/21 Occupational Therapy Progress Report (3 pp.)
  • • 7/13/21 Physical Therapy Annual Review (6 pp.)
  • • 6/30/21 Letter of REDACTED (2 pp.)
  • • 7/16/21 Letter of REDACTED (1 p.)
  • • 11/8/21 – 12/16/21 Email Correspondence between Parent’s Attorney and REDACTED, with attached RSA (5 pp.)
  • • 7/22/21 – 7/25/21 Email Correspondence between the Parent’s Attorney and REDACTED and REDACTED (2 pp.)
  • • 8/24/21-8/30/21 Email Correspondence between the Parent REDACTED (3 pp.)
  • • 7/23/21 – 11/1/21 – Email Correspondence between E. REDACTED and various DOE staff (3 pp.)
  • • 10/5/21 Email from REDACTED to REDACTED (1 p.)
  • • 6/17/21 Email from the Parent to REDACTED, with attached Decision in Case# 196792 (11 pp.)
  • • 6/17/21 – 6/18/21 Email Correspondence between the Parent and various DOE staff (2 pp.)
  • • 6/17/21 – 8/31/21 Email Correspondence between the Parent and REDACTED, REDACTED, and REDACTED (2 pp.)
  • • 7/15/22 Affidavit of REDACTED REDACTED (7 pp.)
  • • 7/19/22 Invoice for AT Services (2 pp.)
  • • 7/19/22 Invoice for SLT (2 pp.)
  • • 8/1/21 Invoice for PT services (1 p.)
  • • 8/2/22 Affidavit of REDACTED REDACTED (9 pp.)
  • • 8/5/22 Affidavit of REDACTED REDACTED (7 pp.)
  • • 8/2/22 Parent’s Affidavit (11 pp.)

IHO Exhibit

I 9/16/22 Parent’s Closing Brief (20 pp.)