New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 555479 - NYC: 211542

FINDINGS OF FACT AND DECISION

Case Number: 211542

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 01/04/2022

02/07/2022 Status Conference

03/08/2022 Status Conference

04/01/2022 Status Conference

05/06/2022

06/01/2022

Actual Record Close Date: 06/08/2022

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/04/2022

(All Parties Appeared Via Teleconference)

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

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/07/2022

(All Parties Appeared Via Teleconference)

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

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/08/2022

(All Parties Appeared Via Teleconference)

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

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/01/2022

(All Parties Appeared Via Teleconference)

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

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/06/2022

(All Parties Appeared Via Teleconference)

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

[REDACTED], Parent

[REDACTED], Evaluator

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/01/2022

(All Parties Appeared Via Teleconference)

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

[REDACTED], Clinical Psychologist

[REDACTED], Parent

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

DOCUMENTS ENTERED INTO THE RECORD

PARENT DOCUMENTS

Exhibit Description of Document Date of Document Pages Entered

A Due Process Complaint 8.9.2021 19 01/04/2022

B Developmental Evaluation 9.21.17 10 05/06/2022

C Speech & Language Evaluation 10.7.17 6 05/06/2022

D Behavioral Observation 10.24.18 1 05/06/2022

E Psychological Evaluation 10.24.18 6 05/06/2022

F Social History 10.24.18 3 05/06/2022

G Classroom Observation 10.29.18 2 05/06/2022

H Educational Evaluation 11.12.18 9 05/06/2022

I Speech & Language Evaluation 11.12.18 5 05/06/2022

J Occupational Evaluation 11.16.18 7 05/06/2022

K Physical Therapy Evaluation 11.19.18 4 05/06/2022

L IEP 12.20.18 19 05/06/2022

M IEP 5.6.19 22 05/06/2022

N Annual Education Progress Report 3.24.20 4 05/06/2022

O CSE Educational Progress Report 11.30.20 4 05/06/2022

P IEP 4.7.21 16 05/06/2022

Q IEP 4.9.21 18 05/06/2022

R Psychological Evaluation 11.22.21 10 05/06/2022

S Classroom Observation 12.13.21 2 05/06/2022

T Speech & Language Evaluation 1.30.22 7 05/06/2022

U Physical Therapy Evaluation 2.5.22 6 05/06/2022

V Functional Behavior Assessment 4.11.22 27 05/06/2022

W ABA Skills Assessment 4.11.22 23 05/06/2022

X [REDACTED] Resume Undated 3 06/01/2022

Y Neuropsychological Evaluation 03.21.22 25 06/01/2022

HEARING OFFICER DOCUMENTS

Entered 01/04/2022

I Notice of appointment, 12/23/2021, 3 pages

Entered 02/07/2022

II Interim Order, 01/04/2022, 8 pages

Entered 06/06/2022

III DOE Closing Statement, 06/06/2022, 1 page

IV Parent Closing Statement, 06/06/2022, 5 pages

DEPARTMENT OF EDUCATION

None

INTRODUCTION

On 12/23/2021, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Due Process Complaint (DPC) alleges a failure of the DOE to provide an appropriate IEP and placement for the 2021/2022 school year. (Ex A 1)

DPC includes Student educational history, which includes:

• • REDACTED year old boy (Ex A 1);
• • In December 2018, the DOE Committee for Preschool Education (CPSE) classified [Student] as a child eligible for a free appropriate public education (FAPE) with the eligibility category Preschool Child with a Disability. In April 2021, the DOE Committee on Special Education (CSE) classified [Student] as a child eligible for a FAPE, beginning July 1, 2021, with the eligibility category “Autism.”;
• • Parent alleges that the DOE has failed to afford [Student] a FAPE for at least the 2019-20, 2020-21, and 2021-22 school years (Ex A 2)
• • Prior to the classification, by the CPSE, the Student received Early Intervention (EI) services, including: speech and language therapy (SLP) 2x/week for 30 minutes, occupational therapy (OT) 2x/week for 30 minutes, center-based Applied Behavior Analysis (ABA) therapy 10 hours/week, and home-based ABA therapy 10 hours/week;
• • In August 2018, the DOE evaluated Student to determine eligibility to receive services through the CPSE;
• • Student evaluations and observations took place, at the end of 2018, disclosing areas of Student delay (Ex A 2-6);
• • Student IEPs were developed, on 12/18/2018, 05/06/2019 (Ex A 6-7);
• • Student continued to be evaluated, and reports issued (Ex A 7-9);
• • The DOE failed to develop an IEP for the 20-21 school year (Ex A 9);
• • IEP was developed on 11/30/2020 (Ex A 10);
• • Student reports continued to be assembled (Ex A 9-12);
• • IEP developed, on 04/07/2021 (Ex A 12);
• • Parent alleges the IEPs developed failed to offer the Student a FAPE, for the 19-20, 20-21 & 21-22 school years, by failing to:
• • Appropriately evaluate the Student;
• • Appropriately consider evaluative data;
• • Offer an appropriate program;
• • Offer methodologies and/or strategies based on peer reviewed research;
• • Provide measurable annual goals (Ex A 16);
• • Provide appropriate related services;
• • Provide meaningful parental participation (Ex A 17)

Parent seeks a variety of forms of relief to remedy the alleged failure, including:

1. A finding that that District has denied [Student] a FAPE for at least the 2019-20, 2020-21, and 2021-22 school years;

2. A finding that the above-noted violations significantly impeded the Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE and caused a deprivation of educational benefits;

3. Provision of independent evaluations in the following areas: speech and language, physical therapy, occupational therapy, neuropsychological, ABA Assessment, and an FBA. (Addressed via IHO Order – IHO Ex II)

4. Provision of an appropriate IEP including placement in an appropriate program with related services, accommodations, and supports for [Student], consistent with the recommendations of the independent evaluations, in order to address [Student]’s specific needs. The IEP shall include appropriate, measurable, and meaningful goals and objectives to address the needs indicated;

5. Compensatory education, in an amount and type to be determined based upon the evidence at hearing; (Ex A 18)

Hearing commenced, on 01/04/2021, to allow the DOE an opportunity to present a defense to the allegations contained in the DPC.

Presently, the Student is in Kindergarten, in a Public School. (T 48)

The IHO noted, at Hearing, that newly acquired evaluations need to be presented to the Committee on Special Education (CSE) to allow an opportunity to develop an IEP and offer an appropriate program and placement. This is further discussed below. (T 48)

The DOE Attorney notes a CSE meeting should be held soon to consider the new evaluations, and make a program recommendation. (T 56)

Essentially, the matter came down to a compensatory education claim, which is based in the ABA Skills Assessment, further reviewed below. (T 48, Ex W-23)

Regarding rate for service, if awarded, the Parent Attorney noted satisfaction with reasonable market rate for services. (T 50-51)

THE POSITION OF EACH PARTY

Hearing commenced, on 01/04/2021, to allow the DOE an opportunity to present a defense to the allegations contained in the DPC.

The DOE Representative advised that Student evaluations were underway and a reconvene of the CSE was expected. (T 3-4)

Parent Attorney advised the IHO that the Parent had not received any evaluation(s), and was not aware they were being undertaken. (T 4 & 9)

Parent still therefore seeks Independent Educational Evaluations, as relief. (T 4)

The DOE Representative did not have any information relative to its position in defending against the allegations contained in the DPC. (T 5)

Ultimately, the DOE did not afford itself of the opportunity to defend against the allegations contained in the DPC. (T 5)

Parties discussed the Student need for evaluations, and Interim Order was issued, which included:

- DOE shall immediately authorize funding for the following Independent Educational Evaluations, at reasonable Market Rate:

- Speech and Language Evaluation;

- Physical Therapy Evaluation;

- Occupational Therapy;

- Neuropsychological Evaluation;

- ABA Assessment; and

- Functional Behavior Assessment. (IHO Ex 8)

Status Conference took place, on 02/07/022, to determine progress of the Ordered Evaluations. It was determined that evaluations were in the process of being completed

Status Conference took place, on 03/08/2022, to determine progress of the Ordered Evaluations. It was determined that evaluations were still in the process of being completed

Status Conference took place, on 02/07/022, to determine progress of the Ordered Evaluations. It was determined that evaluations were still in the process of being completed

Date was set, of 05/06/2022, for the Parent to being its case presentation. (T 35-36)

Testimony of Witnesses presented to support the Parent case are reviewed below:

[REDACTED], BCBA, Clinical Supervisor, REDACTED Group, PC

Testimony included:

• • Witness is evaluator who conducted ABA Skills Assessment (Ex W);
• • A review of qualifications and experience related to the matter at hand (T 60-63)
• • Witness observed the Student for two days and notes:

“My overall impression was his -- was that he's gaining very little from his current placement. Nearly every academic demand that was placed on

[Student], he shouted no to or he eloped from the table or he completely ignored with -- there were a few exceptions where he did respond, but overall, he seemed to simply refused to respond to most directions that were presented to him throughout the day“(T 64);

• • Staff related to the Student reports similar experience with the Student (T 65);
• • Recommendation for compensatory hours was made:

“I think that [Student] shows a lot of potential for growth. I think that getting him into, like, a smaller, more individualized program where his specific deficits (T 65) are targeted by somebody who's very experienced in working directly with somebody who is autistic and also using the data and being able to kind of manipulate the environment to try to get some of this correct responding, I think that [Student] can make great gains in that kind of setting, you know, based on my history in working with different kids and seeing…the type of responding that I was able to get out of [Student] directly when I pulled him from the classroom…he does show a lot of potential for being able…to get some of these behavioral issues under control, but I think that having somebody who is really experienced in working with autism and who is able to do a really individualized program with him that is data-based is going to be the way that he can possibly get there and get, you know, back into this kind of larger ratio down the line.” (T 66);

• • Witness makers recommendations regarding what she would consider an appropriate Student program (T 67-69);
• • Compensatory hours were calculated, for the 21-22 school year, based upon the current placement being inappropriate for the entire day (T 70-71);
• • “I calculated the 30…based on my evaluation of [Student] being that, across his entire current school day, he's not receiving appropriate services at all that I could tell. So he's not making progress, he's not making gains, and he is simply refusing to respond to most directives that are presented…Being that the history and the research has shown that a 30 to 40-hour-a-week ABA program is where kids will make the most gains and that he isn't currently making any gains for this core -- current school year, I'm requesting the full 30 hours per week” (T 78);
• • For the 19-20 and 20-21 school years recommendation was made based on a lack of behavioral programming, the lack of a Functional Behavior Analysis (FBS) and lack of a Behavior Intervention Plan (BIP) (T 71)
• • “For the previous two school years, the '19/'20 and '20/'21 school years, I requested ten hours per week, or I recommended ten hours per week, largely based on the fact that there wasn't a FBA provided or conducted. There wasn't a behavior plan provided to…the current teacher, or as he went into kindergarten, there was no behavior plan in place…And so there is sort of this apparent lack of behavioral programming in those two school years, and it's my professional opinion that had he had more robust behavioral programming in those initial two school years that he likely would have had a little bit more success transitioning into this current school year.” (T 78-79)
• • Witness believes the recommended hours could be utilized after school at a program or in the home (T 79-80);
• • Witness also recommends Parent Training services: “…an ABA program school is going to be to fade out or…to make sure that…the parents can implement strategies that will create a successful environment for the kiddo or that will aid in the client's progress in the school when there is no longer an ABA practitioner right there or when there isn't, you know, a moment-to-moment kind of ABA practitioner there…So we really do want to see parents start to acquire the skills necessary…to help support the kid's learning or to engage in additional support of the kid's learning, things like how to manage behavior from an ABA perspective, how to teach behaviors from an ABA perspective.” (T 76);
• • ABA provider may also be able to push into the Student current program (T 81);
• • Witness believes the Student requires ABA programming (T 74-77); and
• • Witness states that in the event the Student does attend an ABA school, at home services will still be required, though likely to a lesser degree (T 83-84).

DR. [REDACTED], Clinical Psychologist

Testimony included:

• • Accurate Resume is reflected in Exhibit X (T 93);
• • Review of his experience related to his field (T 93-94);
• • Conducted Neuropsychological Evaluation Report (Ex Y);
• • Student:
• • Is not able to access learning in a language based classroom;
• • Mostly able to engage with a 1:1 paraprofessional;
• • Does not participate in most group activities; and
• • Does not socialize much with his classmates (T 96)
• • Student Teacher was interviewed, and reported:

Student “…really only learns when he's engaging one-on-one with his paraprofessional and that…his language deficits prevent him from being able to socialize with the other children…he presents with some behavioral outbursts…in response to classroom demands that are being placed on him. And so those could be…language-based demands or…being asked…to complete a difficult task like writing. That is also an area…where [Student] struggles…He's not…participating in most of the group activities and…having…difficulty…in the classroom setting.” (T 96);

• • Witness is familiar with, and does not believe an Integrated Co-Teaching )ICT) class is a good match for the Student’s needs: “both because of [Student]'s…language deficits prevent him from participating in the language-based curriculum and also because it lacks…teachers with specialized training and specialized programs for students who have autism” (T 96-97);
• • During testing the Student was able to engage materials so long as they were modified (T 98);
• • With challenging tasks the Student would sometimes scream or go under the table and have trouble engaging (T 98-99);
• • Witness believes a fully appropriate program for the Student would include a specialized program for students with autism, structured around ABA, with social skills programs and FBAs conducted (T 100);
• • Related services would also be involved in Student placement: “So it's important for schools to use a team approach where…an approach where related service providers communicate…on a regular basis about a student's needs…usually a combination of, especially with OT and speech, but push-in and pull-out services so that they are aware of the student's…academic demands and functional demands when they're…in the classroom and in social settings…a specialized school where the teachers and the related service providers will have team meetings so that they're able to discuss effective strategies and also to be able to check in with each other that they're implementing the reinforcement schedules…based on the -- of the behavioral intervention plan designed by the BCBA just to make sure that there's consistency in how they're responding to [Student’s] behavior.” (T 101);
• • Student has responded well to ABA methodology, which would allow access to academic and social emotional learning (T 104);
• • Student requires a specialized methodology, namely ABA (T 106);
• • If services continue at the current placement Witness expects an increase in problematic behaviors (T 104); and
• • If awarded, compensatory services should be delivered in school and at home (T 107).

Documentary evidence submitted is found to be credible and supportive of the Parent Case, as reviewed below:

A Due Process Complaint (DPC) 8.9.2021

DPC details the Student’s educational history; Student IEP history; Documents related to Student educational history; allegations of the district failure to offer the student a FAPE; and outlines sought after relief.

B Developmental Evaluation 9.21.17

Evaluation confirms the Student need for special education services, and calls for an occupational therapy evaluation and a possible psychological evaluation. (Ex B 7)

C Speech & Language Evaluation 10.7.17

Evaluation confirms the Student need for special education services, related to speech language development.

D Behavioral Observation 10.24.18

Provides information related to observation of the Student in his home. It does not draw any conclusions regarding special education services.

E Psychological Evaluation 10.24.18

Evaluation confirms the Student need for special education services, and calls for additional evaluations in the areas of behavior, occupational therapy and speech language therapy. (Ex E 5)

F Social History 10.24.18

Details Student challenges related to Autism diagnosis, and recommends a variety of special education services, including bilingual education, and related service therapies.

G Classroom Observation 10.29.18

Classroom observation is actually an observation of one-on-one therapy where the Student is observed to be “intermittently present but evasive”. (Ex G 2)

H Educational Evaluation 11.12.18

Confirms Student range of cognition, receptive and expressive communication, social emotional development, gross motor skills and adaptive skill delays, and the need for special education services. (Ex H 8)

I Speech & Language Evaluation 11.12.18

Confirms Student need for special education services in this area.

J Occupational Evaluation 11.16.18

Confirms Student need for special education services in this area.

K Physical Therapy Evaluation 11.19.18

Confirms Student need for special education services in this area.

L IEP 12.20.18

Classifies Student: Preschool Student with a Disability. (Ex L 1)

Recommends services that include:

Special Class Full Day, 10:1:3, 5 days/week, 5 hours, Approved Preschool Program;

Speech-Language Therapy BIL, individual, 2x/week, 30 minutes, in school outside the classroom;

Occupational Therapy, individual, 2x/week, 30 minutes, in school outside the classroom;

Physical Therapy, individual, 2x/week, 30 minutes, in school outside the classroom; and

Parent Counseling and Training, group, 1x/month, 60 minutes, Approved Preschool

Program. (Ex L 16)

Includes 12 month services and special transportation. (Ex L 18-19)

M IEP 5.6.19

Classifies Student: Preschool Student with a Disability. (Ex M 1)

Recommends services that include:

Special Class Full Day, 10:1:3, 5 days/week, 5 hours, Approved Preschool Program;

Speech-Language Therapy BIL, individual, 2x/week, 30 minutes, in school outside the classroom;

Occupational Therapy, individual, 2x/week, 30 minutes, in school outside the classroom;

Physical Therapy, individual, 2x/week, 30 minutes, in school outside the classroom; and

Parent Counseling and Training, group, 1x/month, 60 minutes, Approved Preschool

Program. (Ex M 17)

Includes a mandate for a strategies to address behaviors that impede Student learning or that of others. (Ex M 7)

Includes 12 month services and special transportation. (Ex M 19-20)

P IEP 4.7.21

Classifies Student: Preschool Student with a Disability. (Ex P 1)

Recommends services that include:

Special Class Full Day, 10:1:3, 5 days/week, 5 hours, Approved Preschool Program;

Speech-Language Therapy BIL, individual, 3x/week, 30 minutes, in school outside the

Classroom;

Occupational Therapy, individual, 2x/week, 30 minutes, in school outside the classroom;

Physical Therapy, individual, 2x/week, 30 minutes, in school outside the classroom; and

Parent Counseling and Training, group, 1x/month, 60 minutes, Approved Preschool

Program. (Ex P 13)

Information regarding Student need for behavior intervention is blank. (Ex P 5)

Includes 12 month services and special transportation. (Ex P 14 & 16)

Q IEP 4.9.21

This IEP is anticipated for the Student’s Kindergarten school year.

Classifies Student: Autism (Ex Q 1)

Recommends services that include:

Integrated Co-Teaching (“ICT”) Services ELA 10 times per week, period, General Education Classroom;

ICT Services Math, 10 times per week, period, General Education Classroom;

ICT Services Sciences, 3 times per week, period, General Education Classroom;

ICT Services Social Studies, 2 times per week, period, General Education Classroom;

Occupational Therapy, individual, 1 time per week, 30 minutes, Separate Location Therapy Room;

Occupational Therapy, group, 1 time per week, 30 minutes, Separate Location Therapy Room;

Parent Counseling and Training, group, 2 times per year, 40 minutes, School Location, Remotely, Agency;

Physical Therapy, group, 1 time per week, 30 minutes, Separate Location Therapy Room;

Speech-Language Therapy, individual, 1 time per week, 30 minutes, Separate Location Therapy Room;

Speech-Language Therapy, group, 1 time per week, 30 minutes, Separate Location Therapy Room; and

Paraprofessional Behavior Support, individual, daily, full time. (Ex Q 11-12)

Despite additional services being added to the IEP and the need for a BIP, this IEP includes neither 12 month services nor special transportation. (Ex Q 15 & 17)

Despite information confirming the need for 12 month services, and a lack of evidence of progress, 12 month services were denied. (Ex N & O)

Though the IEP recommends positive behavioral interventions, and the need for a Behavior Intervention Plan (BIP), none is provided. (Ex Q 6 & 7)

IEP includes functional and instructional levels of pre-kindergarten for reading and math. (Ex Q 16)

The IEP includes odd statements that seem contradictory. For example, the Teacher is noted as stating the Student is self directed and requires adult intervention throughout the school day and may engage in throwing things, crying and yelling. Statement continues that the Student knows the letters of the alphabet. (Ex Q 3)

Student self direction seems to be resulting in adverse behaviors requiring a BIP, which is not presented. (Ex Q 6-7)

Goal is included for Student to identify all letters of the alphabet. (Ex Q 8)

Ultimately, this IEP fails to offer the Student a FAPE.

IEP is not defended by the DOE, nor does it address all areas of Student disability, such as providing a BIP to address behaviors.

Additionally, no justification is provided for removing 12 month services and special transportation services.

N Annual Education Progress Report 3.24.20

Report confirms Student continues to have significant delays across all areas of development; requires adult support throughout the day; works best with individual attention; and requires a 12 month school year. (Ex N 4).

O CSE Educational Progress Report 11.30.20

Report confirms Student continues to have significant delays across all areas of development; requires adult support throughout the day; works best with individual attention; and requires a 12 month school year. (Ex O 4).

Report also indicates the Student requires a 12 month school year to help “remediate significant delays across the developmental continuum”. (Ex O 4)

R Psychological Evaluation 11.22.21

Confirms the Student is still learning letters, delayed across all domains, and is not evidenced to have made much progress over the past several school years. (Ex R 9)

S Classroom Observation 12.13.21

Continues to evidence the Student need for individual attention, though the attention provided by the paraprofessional does not seem to be effective. (Ex S 1)

Behaviors impacting Student education continue. (Ex S 1-2)

T Speech & Language Evaluation 1.30.22

Student need for services is detailed, and goals set forth. (T 6-7)

U Physical Therapy Evaluation 2.5.22

Recommendation made, and goals included, evidencing Student need for services.

V Functional Behavior Assessment 4.11.22

Assessment includes observation indicating continued lack of engagement, of the Student, with his education. (Ex V 9-14)

Student behaviors impacting his education are detailed. (Ex V 15-23)

Recommendations are made to address Student behaviors and assemble an appropriate educational program. (Ex V 24-26)

Recommendation is also made regarding Compensatory services:

• • Award of compensatory ABA services. In order to provide an appropriate remedy for falling to provide fair and appropriate education during school year 2021-2022, [Student] should be provided with 30 hours per week of 1:1 ABA for the total of 46 weeks, which is the total of 1380 hours of 1:1 ABA. This number was calculated based on the one-year span of failing to provide [Student] with the services he required in kindergarten. Furthermore, considering that during 2021-2022 school year, [Student]’s parents did not receive any parent training services related to application of ABA methodology and its principles, the evaluator's professional opinion is that compensatory service must be granted to rectify the situation. Multiplying the 0.5 hour per week (2 hours per month) of parent training by 46 weeks, it is my professional opinion that the appropriate compensatory amount of parent training service for [Student] should not be less than 23 hours…In order to provide an appropriate remedy for falling to provide fair and appropriate education during school years 2019-2020 and 2020-2021, [Student] should be provided with 10 hours per week of 1:1 ABA for the total of 46 weeks, which is the total of 920 hours of 1:1 ABA. This number was calculated based on the two-year span of failing to provide [Student] with the services he required in preschool.” (Ex V 26)

W ABA Skills Assessment 4.11.22

Student developmental history, assessments, and educational history are reviewed. (Ex W 1-8)

Student observation was conducted. (Ex W 8-10)

Results of assessments and areas o delay are detailed. (Ex W 10-20)

Report concludes:

• • Student was alert and active in the classroom, and showed some of prerequisite skills for successful learning in the future, given that consistent behavioral management strategies are used and language is explicitly taught;
• • Student demonstrates strengths in the areas of labeling items, echoing words, and his linguistic structure;
• • Student is able to follow many directions that are within a routine, and seems to understand many simple naturalistic instructions;
• • Student barriers to learning are significantly impacting his success in a group setting;
• • Refusal to cooperate dominates [Student]’s day, including physical refusal (flopping to the floor or eloping) and vocal refusal (screaming and shouting, occasionally exceeding durations of 20-minute periods without pause);
• • It was observed, as well as reported by [Student]’s teachers, that this negative behavior is incredibly difficult to redirect, and most learning opportunities are forfeited due to screaming behavior. There is a tremendous need to improve [Student]’s functional communication to replace screaming and shouting behavior;
• • Student shows marked delays across all domains tested, including labeling different parts of speech, following directions, social skills, and intraverbal/conversational skills:
• • Assessments demonstrated that [Student]’s major deficits are in the domains of communication and social skills. Based on the assessment results, the evaluator is of the opinion that many of [Student]’s problem behavior are due to inconsistent implementation of behavioral strategies, as well as a lack of foundational understanding and utilization of language, communication, and cooperation skills;
• • The research has shown that by teaching individuals very specific requests, has a great impact on reduction of many problem behavior;
• • Student’s overall adaptive functioning is classified as Extremely Low and his profile of scores show significant generalized deficits in multiple areas.

(Ex W 20)

Based on the examiner’s findings regarding Student’s skill profile, the adaptive behavior assessment as well as a full understanding of effective intervention for young learners diagnosed with autism, the evaluator recommends the following, in part:

• • Several requirements for the Student’s educational program, such as a full time ABA program; and
• • One-on-one instructional format (Ex W 21);

A recommendation is also made for Compensatory services:

6. Award of compensatory ABA services. In order to provide an appropriate remedy for falling to provide fair and appropriate education during school year 2021-2022, [Student] should be provided with 30 hours per week of 1:1 ABA for the total of 46 weeks, which is the total of 1380 hours of 1:1 ABA. This number was calculated based on the one-year span of failing to provide [Student] with the services he required in kindergarten. Furthermore, considering that during 2021-2022 school year, [Student]’s parents did not receive any parent training services related to application of ABA methodology and its principles, the evaluator's professional opinion is that compensatory service must be granted to rectify the situation. Multiplying the 0.5 hour per week (2 hours per month) of parent training by 46 weeks, it is my professional opinion that the appropriate compensatory amount of parent training service for [Student] should not be less than 23 hours; and In order to provide an appropriate remedy for falling to provide fair and appropriate education during school years 2019-2020 and 2020-2021, [Student] should be provided with 10 hours per week of 1:1 ABA for the total of 46 weeks, which is the total of 920 hours of 1:1 ABA. This number was calculated based on the two-year span of failing to provide [Student] with the services he required in preschool.

(Ex W 22)

Evaluator explains basis for the detailed recommendations:

“The aforementioned recommended essential program components are key to appropriate and effective programming for [Student]. In the absence of the aforementioned fundamental program components, it is the evaluator’s determination that [Student] would most likely not make the educational progress he is capable of making. The presence of these components will assist in ensuring that meaningful, reliable and lasting changes in [Student]’s behavior/skill profile will occur. By providing [Student] with an opportunity to be exposed to the program with these components, it will allow him eventual enrollment in a less restrictive environment.” (Ex W 22)

Evaluator notes the difficulty in obtaining the recommended services:

“Due to the current shortage of LBAs in NYS, if a licensed clinician cannot be identified, 1:1 instruction may replace the ABA. This service should be performed by a BCBA or a special educator with ABA training under the supervision of a NYS LBA.” (Ex W 23)

X [REDACTED] Resume Undated

Qualifications of Dr, [REDACTED].

Y Neuropsychological Evaluation 03.21.22

Evaluation results are consistent with prior evidence which details delays across all areas for the Student.

Evaluation includes Student Diagnoses:

• • Autism Spectrum Disorder (DSM-V F80.89, Level 3, With accompanying language impairment,
• • Requiring Very Substantial Support)
• • Developmental Coordination Disorder (ICD-10 315.4)
• • Mixed Disorder of Scholastic Skills (F81.3)within the context of speech-language delays, learning challenges, and deficits in aspects of fine and gross motor skills. (Ex Y 18)

Recommendations are made regarding an appropriate Student program, which include:

• • An ABA Program (Ex Y 18-19);
• • Related Services;
• • 12 month school year;
• • An FBA and a BIP;
• • Individual Academic Support (Ex Y 20).

Recommendations are also made regarding the home, such as: OPWDD services, extracurricular activities, psychiatric consultation, and re-evaluation. (Ex Y 21)

Parties submitted Closing Arguments, in writing, which are considered below.

The Parent Closing Argument:

• • Parent focuses on the unsustainability of the DOE educational placement, which prompted the Parent into action;
• • Parent refers to uncontested failures of the DOE program as evidenced throughout the documents:
• • IEP, of 04/09/2021: Student lacks “functional communication and has behaviors that preclude effective participation in a large classroom. See Ex. Q pp. 1-2;
• • Student’s teacher, as reported on the April 9, 2021 IEP, felt “[T]hat a small class size in a community school would be beneficial as child is self directed. He struggles to follow directives and will display discontent as he will not follow directives requiring adult intervention and proximity throughout the school day. At times he may engage in throwing things of[f] the table, crying, yelling, and breaking a crayon.” Ex. Q p.3. This recommendation for a small class size contrasts with his then-current (and still-current) placement of ICT, which can have up to twenty-five students;
• • DOE’s psychological evaluation of November 22, 2021 IEP reported that Student has a Full Scale IQ score of 55 (despite much higher intelligence in primarily nonverbal subdomains), falling within “the Extremely Low range of intellectual functioning.” Ex. R pp. 3-4. It reported him within the first percentile in many domains of academic achievement. Id. p. 7;
• • DOE’s classroom observation of December 13, 2021 said that, even with a paraprofessional’s assistance, “he did not follow along with the pace of the class” and did not complete the assigned class problem with it being “unclear if he did not understand the assignment or chose to do what he wanted to do.” Ex. S p. 2;
• • The description of Student’s class participation was very concrete: “[Student] asks to go to the bathroom and stays in the bathroom a while, while the class works on counting. He refuses to come out of the bathroom.... The paraprofessional tries to keep him on the correct page, with the class, but [Student] hits her hand a few times. [Student] does not put his fingers in the air to count with the class, nor does he knock to count with the class.” Ex. S p. 1;
• • Independent evaluators [REDACTED] (Board Certified Behavior Analyst (BCBA)) and [REDACTED], Ph.D. (clinical neuropsychologist) confirmed that the ICT classroom setting was inappropriate. Ms. [REDACTED] observed [Student] in the classroom on two separate days and found him to be generally engaged in maladaptive behaviors and not participating in the classwork. Ex. V pp. 8-14;
• • In Ms. [REDACTED]’ report, [Student’s] teacher Mrs. [REDACTED] “reported that [Student] came from 10-student classroom and had difficulty with the larger ratio from the start of the school year.” Ex. V p. 16;
• • Mrs. [REDACTED] reported that “screaming and/or shouting dominates nearly every school day, and that screaming/shouting occurs following nearly every interaction during ‘work.’” Id. Ms. [REDACTED] found, “Through the direct observation of [Student] in the school setting during this evaluation, reviewed documents, and interviews with the parent and school staff involved in [Student’s] education plan, it is asserted that the current school placement and management needs in effect are most likely ineffective for optimizing [Student’s] performance.” Ex. V p. 23;
• • Ms. [REDACTED] summarized her own impression as follows: “My overall impression... was that he’s gaining very little from his current placement.” Tr. 64. In her written report, she noted, “[Student] still does not possess self-management skills necessary to participate in group-only instructions, without engaging in disruptive behavior such as screaming, shouting, getting out of his seat, throwing objects, aggression, and ignoring instruction.” Ex. W p. 21;
• • Dr. [REDACTED] also interviewed one of [Student’s] teachers, finding that “[Student] reportedly exhibits a lot of outbursts during class and is often reluctant to do any work. He appears overwhelmed by the classroom setting and the pace of the curriculum, and becomes defiant, screams, and says ‘no’ in response to academic demands placed on him.” Ex. Y p. 7.

(IHO Ex IV 2-3)

Parent argument highlights the impact of the Student’s inappropriate placement and the urgency with which the Parent needed to act to attempt to place the Student in an appropriate setting.

Parent sets forth the argument for a change in placement to be reflected in the Student’s IEP. These argumenta need to be presented to the CSE, to allow them an opportunity to draft an appropriate IEP. (IHO Ex 3)

Compensatory services Argument details the recommendations which grew out of the recent evaluations:

• • Ms. [REDACTED] made specific recommendations for an award of compensatory education composed of hours of applied behavior analysis (“ABA”) therapy. Ms. [REDACTED]’ professional opinion was that “having that one-to-one expert with him and kind of targeting these behavioral challenges specifically in conjunction with some kind of missing skill areas is going to get him the fastest learning based on... the ABA model in general.” Tr. 67;
• • Ms. [REDACTED] divided her recommendation into compensatory education for the 2021-2022 school year, and compensatory education for the 2019-2020 and 2020-2021 school years;
• • To make up for the deprivation of FAPE for the 2021-2022 school year, Ms. [REDACTED] recommended a compensatory award of 1,380 hours of one-to-one ABA therapy. Ex. W p. 23;
• • For the two prior school years, combined, Ms. [REDACTED] recommended a compensatory award of 920 hours of one-to-one ABA therapy, “based on the two-year span of failing to provide [Student] with the services he required in preschool.” Ex. W p. 23;
• • Ms. [REDACTED] also noted: “Due to the current shortage of LBAs in NYS, if a licensed clinician cannot be identified, 1:1 instruction may replace the ABA. This service should be performed by a BCBA or a special educator with ABA training under the supervision of a NYS LBA.” Ex. W p. 23.

(IHO Ex 3-4)

Parent Attorney notes that: “The DOE provided no alternative compensatory education proposal, nor did it put forth any evidence, of any kind, to challenge the proposal of Ms. [REDACTED].” (IHO Ex IV 4)

Parent seeks relief, based upon the recent evaluations, that includes:

• • A CSE meeting, with direction to defer the Student to the Central Based Support Team (CBST) for placement in a non-public school or an interim measure of a smaller self – contained class;
• • Compensatory services that include:
• • 2,300 hours of compensatory, 1:1 ABA therapy, funded by the DOE, by a provider of Parent’s choosing, at current market rates, with the following provisions:

▪ ABA therapy hours may be used, at Parent’s option, in the home, at a provider’s location, as a push-in service at a public or nonpublic school placement, or in some combination thereof;

▪ In the event Parent seeks to use compensatory ABA therapy hours as a push-in service at a public or nonpublic placement attended by Student, the DOE shall cooperate to effectuate the implementation of compensatory ABA therapy in that setting;

▪ At Parent’s option, 1:1 instruction may be substituted for ABA therapy hours, and if Parent so elects such instruction shall be funded by the DOE.

(IHO Ex IV 4)

• • And, any other relief deemed proper by the IHO. (IHO Ex 5)

The DOE Closing Argument:

• • Acknowledged the Student as a REDACTED year old, kindergarten student enrolled in Public School, known to the DOE as a student with an educational disability and classified under IDEA as a student with Autism;
• • For the 21-22 school year, a pendency agreement was signed in August of 2021 providing for continuation of his Pre-K services in an approved program with a ratio of 10:1:3 plus ST, OT, PT and PCAT. These pendency services were never implemented as his parent instead made the decision to enroll Student in the contested program;
• • Recommended Public School services have been in place for all of the 21-22 school year;
• • Interim Order directed independent evaluations be conducted;
• • The District did not call any witnesses or present a case in defense of the IEPs in question;
• • The District, however, takes the position that the requested relief of 2300 hours of compensatory services is excessive, out of proportion to any alleged denial of FAPE and unrealistic for a 6 year old child;
• • Furthermore, the parent had the option for pendency services in a small class of 10:1:3 and did not take advantage of this opportunity;
• • The District’s position is that no compensatory services should be awarded for the 21-22 school year as the parent made the choice to enroll in the contested program for that time period;
• • The District requests that any compensatory services awarded have an expiration date of no more than three years, which is the time period of the alleged denial of FAPE;
• • Finally, program recommendations should be made by legally constituted CSE teams and not by Orders. CSES is scheduled to review the independent evaluations on June 8th with the expectation that the case will be deferred to the Central Based Support Team for private school placement. (IHO Ex III 1)

As the evidence shows the Parent acted to remove the Student from a Program and Placement that delivered little, if any educational benefit. Adhering to the recommended DOE program and placement would only continue the Student’s denial of FAPE in an inappropriate program. Testimony reflected above actually indicates that continued placement in the DOE program would have worsened Student problematic behaviors. (T 104)

As indicated herein Compensatory services are warranted and in light of the uncontroverted Testimony of those most familiar with the Student, are Ordered below.

As indicated herein the Student will have a reasonable time to access the Compensatory

Services.

As indicated below the Student does need to allow the CSE to review the newly acquired evaluative material in order to allow the CSE an opportunity to develop an appropriate IEP and placement.

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

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

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

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

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 19-20, 20-21 & 21-22 School Years

DOE opted not to present a defense to the Parent’s allegations, beyond its arguments contained in its Closing Statement. (IHO Ex III)

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

The IEPs note worsening behavior, and need for a BIP. (Ex M, P, Q & N)

One IEP leaves the area intended to indicate the need for a BIP, entirely blank. (Ex P5)

The last IEP, in evidence, fails to address Student behavior issues, special needs transportation. and need for 12 month services. (Ex N & O)

No evidence of progress is indicated for any school year.

Lack of progress is noted in several areas, as set forth in Parent DPC, which compared various evaluations and reports, indicating a lack of progress. (Ex A 9-10 para 27 & 31)

In fact the worsening behavior, and the information obtained by the recent evaluations and observations, indicate the Student was receiving little, if any, educational benefit from the DOE program. (Ex Q 1-2 & 3, Ex S 1-2, Ex V 8-14, Ex V 23 & W 21)

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

I find the DOE failed to offer the Student a FAPE for the 19-20, 20-21 & 21-22 school years.

COMPENSATORY SERVICES

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).

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

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

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

FAPE has already been found to have been denied the Student for the 19-20, 20-21 & 21-22 school years. This FAPE deprivation continues as of the date of this Decision.

This, in part, is due to the lack of specifically tailored special education services for the Student. For example, the Student has been lacking a BIP for several years. This has negatively impacted his behaviors, which have grown worse. It also has prevented the Student from accessing the curriculum and participating with his class.

Compensatory service relief is identified, by the Parent Attorney, based upon recent evaluations and recommendations:

• • For the 2021-2022 school year:
• • 1,380 hours of one-to-one ABA therapy. (Ex V 26, W 23);
• • For 19-20 & 20-21 school years:
• • 920 hours of one-to-one ABA therapy (Ex V 26, W 23);

Notably, recommendation is made in consideration of: “…current shortage of LBAs in NYS”; and notes that “…if a licensed clinician cannot be identified, 1:1 instruction may replace the ABA. This service should be performed by a BCBA or a special educator with ABA training under the supervision of a NYS LBA.” (Ex W 23)

Regarding any compensatory service award, Witness states that, if awarded, compensatory services should be delivered in school and at home. (T 107)

Parent Attorney contends that, regarding any award of Compensatory services:

▪ ABA therapy hours may be used, at Parent’s option, in the home, at a provider’s location, as a push-in service at a public or nonpublic school placement, or in some combination thereof;

▪ In the event Parent seeks to use compensatory ABA therapy hours as a push-in service at a public or nonpublic placement attended by Student, the DOE shall cooperate to effectuate the implementation of compensatory ABA therapy in that setting;

▪ At Parent’s option, 1:1 instruction may be substituted for ABA therapy hours, and if Parent so elects such instruction shall be funded by the DOE.

(IHO Ex IV 4)

The Parent sought after Compensatory relief is supported by the Evidence.

The Student has been denied a FAPE for several years; evidence shows a decline in function; especially regarding behaviors; and a plan has been proposed to address the Student current circumstances.

Compensatory services are awarded below in accordance with the recommendations made as a result of the recent evaluations, and in light of the DOE failure to offer the Student a FAPE for several years..

PROGRAM AND PLACEMENT

When determining an appropriate placement on the educational continuum, a CSE should first determine the extent to which the student can be educated with nondisabled peers in a public school setting before considering a more restrictive nonpublic school option (see E.F. v New York City Dept. of Educ., 2013 WL 4495676, at *15 [E.D.N.Y. Aug. 19, 2013] [explaining that "under the law, once [the district] determined that [the public school setting] was the least restrictive environment in which [the student] could be educated, it was not obligated to consider a more restrictive environment, such as [the nonpublic school]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *8 [finding that "[o]nce the CSE determined that [public school setting] would be appropriate for the [s]tudent, it had identified the least restrictive environment that could meet the [s]tudent's needs and did not need to inquire into more restrictive options such as nonpublic programs"]). An IHO Order that the CSE refer the student to the CBST for placement in a nonpublic school, particularly when read in conjunction with his order that the CSE reconvene to consider the results of the various ordered evaluations of the student, would violate the CSE's duty to first determine if the student can be educated in a public school setting, and, as such, is premature (see Cooke Center for Learning and Dev. v. Mills, 19 A.D.3d 834, 836 [3rd Dep't 2005] ["The federal law prefers a 'public' education, where a 'child is educated in the school that he or she would attend if nondisabled,' if possible"]; Matter of Pelose, 66 A.D.3d 1342, 1344 [4th Dep't 2009] ["Indeed, the central purpose of the IDEA …and article 89 of the Education Law is to afford a 'public' education for children with disabilities"]).

Relief in the form of IEP amendments and prospective placement of the student in a nonpublic school is not appropriate in this instance as it would tend to circumvent the statutory process, under which the CSE is the entity tasked with reviewing information about the student's progress under current educational programming and periodically assessing a student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]).

At this point, the 2021-2022 school year is almost complete.

In this case, the Student is presently not receiving an appropriate education, as the 21-22 IEP has been found not to offer the Student a FAPE, in part due to a lack of 12 month services.

A considerable amount of newly acquired evaluative material has been accumulated. (Ex R, S, T, U, V, W & X)

An array of recommendations are made throughout, which are intended to be considered, and perhaps, made part of any appropriate Student program. Most notably are the detailed recommendations of the ABA Skills Assessment and the Neuropsychological Evaluation. (Ex W 21-23 & Ex Y 18-21)

The IHO noted, at Hearing, that newly acquired evaluations need to be presented to the Committee on Special Education (CSE) to allow an opportunity to develop an IEP and offer an appropriate program and placement. This is further discussed below. (T 48)

The DOE Attorney notes a CSE meeting should be held soon to consider the new evaluations, and make a program recommendation. (T 56)

Considering the obvious need for the Student to have a 12 month program, the Order below includes a directive to meet as quickly as reasonably possible.

TRANSPORTATION

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction... and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

Student had been receiving special education transportation, as part of his IEPs, for several years. Specifically, Mini-Bus and Air-Conditioned. (Ex L 19, M 20 & P 16)

No evidence is presented to contest the need for special education transportation services, which were left off the most recent IEP. (Ex Q 17)

I find the Student is entitled to special education transportation services, for the 21-22 school year.

ORDER

• • The Department of Education (DOE) failed to offer the Student a FAPE for the 19-20, 20-21 & 21-22 school years.
• • Student is found to be entitled to 12 month services, for the 21-22 school year.
• • Student is found to be entitled to special education transportation, inclusive of Mini-Bus and Air-Conditioned, for the 21-22 school year.
• • The DOE shall conduct an IEP meeting to consider newly acquired Student evaluations, along with any other information presented at any such meeting, and deliver an IEP to the Parent by July 8th, 2022.
• • The DOE shall fund compensatory services for the Student, to be utilized by 12/31/2024. Rate to be paid at reasonable market rate. Specific services detailed below:
• • 2,300 hours of one-to-one ABA therapy;
• • If a licensed clinician cannot be identified, 1:1 instruction may replace the ABA. This service should be performed by a Board Certified Behavior Analyst (BCBA) or a special educator with ABA training under the supervision of a New York State, Licensed Behavior Analyst (LBA);
• • ABA/1:1 Instruction, may be delivered at Parent and Provider option, in the home, at a provider’s location, as a push-in service at a public or nonpublic school placement, or in some combination thereof;
• • In the event compensatory ABA therapy hours are utilized as a push-in service at a public or nonpublic placement attended by Student, the DOE shall cooperate to effectuate the implementation of compensatory ABA therapy in that/those setting(s);
• • The DOE shall provide Parent with any documents or forms necessary to facilitate compensatory services, within ten days of the date of this Order.
• • 7. This decision is subject to appeal and review by the State Review Officer.

DATED: June 15th, 2022

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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.