New York City Department of Education, Impartial Hearing Decision

Case Number: 555838 – NYC: 211880

FINDINGS OF FACT AND DECISION

Case No. 211880 Student’s Name: [Redacted] (“Student”)

Service District: [REDACTED]

Hearing Requested by: [Redacted] (“Parent”)

Date of Hearing: December 13, 2022

December 14, 2022

February 7, 2023

April 19, 2023

Record Close Date: May 10, 2023

Date of Decision: May 10, 2023

Hearing Officer: Mohammad Ezzati

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 13, 2022

For the Student:

[Redacted] (hereinafter referred to as “Parent Attorney”)

For the Department of Education:

[Redacted] (hereinafter referred to as “DOE Attorney”)

[Redacted] (hereinafter referred to as “DOE Attorney #2”)

[Redacted] (hereinafter referred to as “CPSE Administrator”)

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 14, 2022

For the Student:

Parent Attorney

For the Department of Education:

DOE Attorney

DOE Attorney #2

[Redacted] (hereinafter referred to as “Psychologist”)

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 7, 2023

For the Student:

Parent Attorney

For the Department of Education:

DOE Attorney

DOE Attorney #2

CPSE Administrator

Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 19, 2023

For the Student:

Parent Attorney

[Redacted] (hereinafter referred to as “Occupational Therapist”)

[Redacted] (hereinafter referred to as “Teacher”)

[Redacted] (hereinafter referred to as “Doctor”)

For the Parents:

[Redacted] (hereinafter referred to “Speech-Language Pathologist”)

For the Department of Education:

DOE Attorney

BACKGROUND

Parent, through Parent Attorney, filed a Due Process Complaint (“DPC”) on or about August 26, 2022. (P-A). In the DPC, Parent alleges that the New York City Department of Education (“DOE” or “District”) failed to offer Student with a free appropriate public education (“FAPE”) for the 2019-2020, 2020-2021, and 2021-2022 school years. Id.

Parent alleges, among other things, that the DOE failed to: (i) recommend an appropriate program and placement, (ii) appropriately evaluate Student, (iii) provide appropriate related services, (iv) adequately assess and address Student’s behavior management needs, and (v) develop meaningful and measurable goals. Id. By way of relief, Parent seeks: (i) compensatory education and services, (ii) funding for Independent Educational Evaluations; and (iii) reimbursement of out-of-pocket costs, including tuition ^[1]. Id. In light of the foregoing and as more fully discussed below, I find that: (i) the DOE failed to meet its burden that it offered Student a FAPE for the school years at issue, and (ii) Parent’s requested relief is partially appropriate.

JURISDICTION

A decision in this matter is being rendered pursuant to the IDEA^[2] and its implementing regulations,^[3] the NYS Education Law^[4] and its implementing regulations ^[5], and Section 504 of the Rehabilitation Act.

Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement . . . a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s] parents or guardian and representation by counsel, and a review procedure.”^[6] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (“LEA”). The DOE delegated to the New York City Office of Administrative Trials and Hearings the authority to adjudicate due process complaints under Section 504. 7

PROCEDURAL HISTORY

I was appointed as the Impartial Hearing Officer on August 24, 2022. On September 10, 2021, prior to my appointment, an Order on Pendency was issued that identified Student’s pendency program as consisting of: (i) Special Education Itinerant Teacher (“SEIT”) services, individual services, ten hours per week; (ii) Speech-Language Therapy (“SLT”), individual service, two times per week, thirty minutes per session; (iii) SLT, group service (2:1), once per week for thirty minutes; (iv) Occupational Therapy (“OT”), individual service, three times per week, thirty minutes per session. The Order on Pendency also listed extended school year services consisting of: (i) SEIT services, individual service, three hours per week; and (ii) OT, individual service, two times per week, thirty minutes per session.

On April ^[7], 2022, also prior to my appointment, an Interim Order was issued that granted relief in the form of three Independent Educational Evaluations (“IEE”): (i) Neuropsychological Evaluation, (ii) Speech and Language Evaluation; and (iii) Occupational Therapy Evaluation. On July 6, 2022, a Second Interim Order was issued that modified the initial Interim Order by granting additional time for the IEEs to be conducted.

On August 31, 2022, the parties appeared for a virtual Pre-Hearing Conference. On that same day, I issued a Pre-Hearing Conference Summary and Order. (IHO-II). Subsequently, numerous Status Hearings were held, and extensions were granted to allow the parties time to engage in settlement discussions and obtain the IEEs.

On December 13, 2022, both parties appeared for a virtual Due Process Hearing. (12/13/2022 Transcript). DOE Attorney submitted exhibits 1-60 into the record on consent of Parent Attorney. Id. Parent Attorney submitted exhibits A-J, L, T, V-BB, DD-FF, HH, JJ, UUWW into the record on consent of DOE Attorney. Id. The remaining Parent exhibits were withdrawn as they were duplicates of DOE exhibits. Id. The parties made oral opening statements. Id. DOE Attorney introduced witness testimony from CPSE Administrator, who was cross-examined by Parent Attorney. Id.

On December 14, 2022, both parties appeared again for a virtual Due Process Hearing. (12/14/2022 Transcript). DOE Attorney introduced witness testimony from Psychologist, who was cross-examined by Parent Attorney. Id. On February 7, 2023, both parties appeared again for a virtual Due Process Hearing. (2/7/2023 Transcript). DOE Attorney introduced witness testimony from CPSE Administrator and Psychologist. Id. Parent Attorney cross-examined both witnesses. Id.

On April 19, 2023, both parties appeared again for a virtual Due Process Hearing. (4/19/2023 Transcript). Parent Attorney submitted exhibits XX-GGG into the record on consent of DOE Attorney. Id. Parent Attorney introduced witness testimony from Occupational Therapist, Speech-Language Pathologist, Teacher, Doctor, and Parent. Id. DOE Attorney cross-examined the witnesses. Id.

On May 3, 2023, the parties submitted Closing Briefs. (IHO-XII, XIII). A list of the documentary evidence in this proceeding is appended to this Decision.

LEGAL STANDARDS AND FRAMEWORK

Both the IDEA and the New York State Education Law provide that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive Individualized Education Program (“IEP”). 20 U.S.C. §§ 1401(9), (29). A school district has offered a student a FAPE when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “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 County Sch. Dist. RE-1, 137 S. Ct. 988, 999 [2017]). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381-82 (2d Cir. 2003; W.G. v. Bd. of Trustees of Target Range School Dist. No. 23, 960 F. 2d 1479, 1484 (9th Cir. 1992); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); 8 NYCRR § 200.5(4)(ii). School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d).

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 v. Florida Union Free School Dist., 142 F.3d 119, 130 [2d Cir. 1998]; Rowley, 458 U.S. at 189). “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created” (Endrew F., 137 S. Ct. at 1001). The IDEA 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]). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189; 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 v. Pawling Central School Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak, 142 F.3d at 130). 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 also Endrew F., 137 S. Ct. at 1001 [holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”]; Rowley, 458 U.S. at 192).

In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 [2d Cir. 2015] [citation omitted]). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 [2d Cir. 2002]), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454).

Under the Education Law, school districts have the burden of proof, including the burden of persuasion and the burden of production, in due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and the burden of production on the appropriateness of such placement. Education Law § 4404(1)(c); T.K. and S.K. ex rel. L.K. v. New York City Dept. of Educ., 810 F.3d 869, 875 (2d Cir. 2016); C.F. ex rel. R.F. and G.F. v. New York City Dept. of Educ., 746 F.3d 68, 76 (2d Cir. 2014), R.E. v. New York City Dept. of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012).

FINDINGS OF FACT AND DECISION

In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017).

For the 2019-2020 and 2020-2021 school years, Student was classified by the DOE as a “Preschool Student with a Disability. (D-17; P-2). For the 2021-2022 school year, Student was classified by the DOE as a child with Autism. (P-8). Student is also diagnosed with Attention-Deficit/Hyperactivity Disorder. (P-AAA). Student’s classification and entitlement to special education programming and services is not in dispute.

2019 – 2020 School Year

With regards to the 2019-2020 school year, DOE Attorney submitted an IEP dated July 3, 2019 (“2019 IEP”) into the record. (D-17). The 2019 IEP recommended services consisting of: (i) SEIT services, individual service, five days per week, two hours per day; (ii) SLT, individual service, three times per week, thirty minutes per session; and (iii) OT, individual service, three times per week, thirty minutes per session. Id. A 10-month program was recommended. Id.

While the DOE submitted the 2019 IEP into the record, a review of same offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes Student, or whether the IEP is meaningfully calculated to confer educational benefit. DOE Attorney presented witness testimony on how an IEP is generally developed. (12/13/2022 Trans.; 12/14/2022 Trans.; 2/7/2023 Trans.). However, the witnesses did not have firsthand knowledge of the process and considerations taken with regards to the 2019 IEP. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating the IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”. Endrew F., 137 S.Ct. at 1002.

Therefore, I am constrained to find that the DOE failed to offer Student a FAPE for the 2019-2020 school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer a FAPE for the 2019-2020 school year.

2020 – 2021 School Year

With regards to the 2020-2021 school year, DOE Attorney submitted an IEP dated July 7, 2020 (“2020 IEP”) into the record. (D-37). The 2020 IEP recommended services consisting of: (i) SEIT services, individual service, five days per week, two hours per day; (ii) SLT, individual service, two times per week, thirty minutes per session; (iii) SLT, group service (2:1), once per week for thirty minutes; and (iv) OT, individual service, three times per week, thirty minutes per session. (D-37). The 2020 IEP also recommended 12-month services consisting of: (i) SEIT services, individual service, three times per week, sixty minutes per session; and (ii) OT, individual service, two times per week, thirty minutes per session. Id.

CPSE Administrator testified at length about the process and considerations taken with regards to the development of the 2020 IEP. (12/13/2022 Trans.). CPSE Administrator testified that she reviewed the previous IEP and progress reports from related service providers in preparation for the IEP meeting. Id. CPSE Administrator also testified that she did not believe any additional assessments were needed for the development of the 2020 IEP. Id.

CPSE Administrator also testified that, in her opinion, the program and services recommended in the 2020 IEP were sufficient to allow Student to make meaningful progress. Id. “The services that I recommended on my 2020 IEP were supporting [Student] in the least restrictive environment with special education support two hours per day to address the weaknesses that were established at the meeting.” Id. CPSE Administrator testified that the parties present at the IEP meeting agreed that the program and services offered were sufficient to address Student’s needs. Id.

However, the record clearly reflects that for the 2020-2021 school year the DOE materially failed to implement the 2020 IEP. Student was not provided a significant portion of the program and services. Moreover, while Student required positive behavioral supports and strategies, the DOE failed to conduct a Functional Behavior Assessment (“FBA”) and develop/implement a Behavior Intervention Plan (“BIP”). Finally, the goals contained in the 2020 IEP were inappropriate because: (i) the annual and short-term goals were not measurable; (ii) there is no accurate method to measure progress; and (iii) all areas of deficit were not adequately addressed.

Based on the foregoing, I find that the DOE failed to offer Student a FAPE for the 2020-2021 school year.

2021 – 2022 School Year

With regards to the 2021-2022 school year, DOE Attorney submitted an IEP dated July 1, 2021 (“2021 IEP”) into the record. (D-8). The 2021 IEP recommended services consisting of: (i) Integrated Co-Teaching (“ICT”) services for Math and ELA; (ii) Counseling services, group of three, once per week for thirty minutes; (iii) OT, individual service, two times per week, thirty minutes per session; (iv) Parent Counseling and Training (“PCAT”), group, four times per year, sixty minutes per session; (v) SLT, group of three, once per week for thirty minutes; and (vi) SLT, group of three, once per week for thirty minutes. Id. The Placement Recommendation was a DOE Non-Specialized School. Id. A 10-month program was recommended. Id.

While Psychologist testified to the appropriateness of the IEP meeting and the 2021 IEP that was developed, the DOE conceded that Student was not provided a FAPE for the 2021-2022 school year. (12/13/2022 Trans.; IHO-XIII). Therefore, I am constrained to find that the DOE failed to offer Student a FAPE for the 2021-2022 school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer a FAPE for the 2021-2022 school year.

Requested Relief

The relief requested by the Parent is equitable in nature, as she is asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide Student with a FAPE for the 2019-2020, 2020-2021, and 2021-2022 school years. Specifically, the Parent has requested that the IHO order the DOE to: (i) fund compensatory education services for the school years at issue; (ii) fund IEEs consisting of a: (a) Auditory Processing Evaluation; (b) Assistive Technology (“AT”) Evaluation; (c) Vision Processing Evaluation; (d) Autism Assessment; and (e) FBA; and (iv) reimburse of out-of-pocket costs, including tuition and private insurance. (P-A; IHO-XI).

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations”. See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy” (Boose v District of Columbia, 786 F. 3d 1054, 1056 [D.C. Cir. 2015], citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme, 790 F.3d at 454).

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education” (P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education” (Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008]). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate”, and “hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program’” (Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 522, 525 (D.C. Cir. 2005) (emphasis in original). “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves” (Reid, 401 F.3d at 522) (citations omitted). Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place” (Reid, 401 F.3d at 518).

There are generally two approaches to fashioning a compensatory education award, viz, the “quantitative” approach followed in the Third Circuit (see, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 [3d Cir. 1996] [holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation]), and the “qualitative” approach relied on by the 6th and D.C. Circuits (see, e.g., Reid, 401 F.3d at 518, 524 [requiring a flexible, fact-specific approach in which the award relies “on individual assessments” and is “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place”]).

The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion”, so long as “the relief is [] appropriate in light of the purpose of the Act” (Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 [2d Cir. 2016]; see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008] [noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated”, and awarding compensatory relief equal to the amount of time the student was deprived of services]). In calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP], or encompass analogous educational services appropriate to the Student’s current’s needs”; however, the ultimate award “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place” (Doe. v. East Lyme, 790 F.3d at 457) (internal citations omitted).

Under New York law, the DOE has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA. Education Law § 4404(1)(c). However, the Parent also has a responsibility to identify the specific remedy she is seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE for the years at issue. See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), [noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”]; Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017) [holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”] [internal quotes and citation omitted]. Here, the Parent has identified the specific remedy she is seeking and has provided documentary evidence and testimony in support of her request.

A. Tuition Reimbursement and ABA Instruction

The Parent is requesting tuition reimbursement under multiple theories of relief for the school years at issue. (P-A; 12/13/2022 Trans.; IHO-XI). For the 2019-2020 and 2020-2021 school years, Student attended Private School and Parent is requesting tuition reimbursement under compensatory education and/or Section 504. Id. For the 2021-2022 school year, Student attended Private School 2 and Parent is requesting tuition reimbursement under BurlingtonCarter, compensatory education, and/or Section 504. Id.

For the 2019-2020 and 2020-2021 school years, an award of tuition reimbursement under Burlington-Carter would not be appropriate. The Parent alleged that she was not aware of her right to request tuition reimbursement for these years. (P-A; 4/19/2023 Trans.; P-FFF). However, I find that this assertion is not supported by the record. On April 10, 2019, Parent executed a Consent for Initial Evaluation. (P-J). The Consent for Initial Evaluation form states in pertinent part: “I have received a copy of the New York State Education Department Procedural Safeguards Notice. My due process rights have been explained to me.” Id. Similar language can be found on the Final Notice of Recommendation, dated July 3, 2019. (D-17-17). It should also be noted that Parent participated in the July 3, 2019 IEP meeting with a special education advocate. (D-17-2). CPSE Administrator also testified that after the IEP meeting, she forwarded a number of documents to Parent, which included a copy of the New York State Education Department Procedural Safeguards. (12/12/2023 Trans.).

When asked why Student wasn’t offered a placement at a public school during the July 7, 2020 IEP meeting, CPSE Administrator testified that: “She was making progress in this class. There was no reason to move her.” (12/13/2022 Trans., 211-212). “And the Parent did not suggest moving her at all. The Parent chose this program. The Parent was supportive of the recommendation that I made for support within that program.” Id. Likewise, when asked why an IEP was developed at the July 1, 2021 IEP meeting instead of an IESP, Psychologist testified that: “We are developing an IEP for the Department of Education, unless the parent tells us specifically that they are going elsewhere. If they tell us they’re going to a private school in New York City, we develop an IESP. If they tell us they’re going to a school out of New York City, we don’t develop an IEP at all. Those are our directives. And if they tell us, we don’t know where my – I don’t know where my child is going, then we go with the IEP, assuming they’re going to be coming to the DOE. And then if they don’t, they take it from there. So in this particular case, because the parent informed us, I don’t know where my daughter was going to school next year, we developed an IEP based on the student’s needs and what we felt was, was an appropriate DOE program to address that.” (12/14/2022 Trans, 303-304).

I find the testimony of CPSE Administrator and Psychologist both credible and consistent with the record. For the school years at issue, Parent did not intend to enroll Student at a public school. For the 2019-2020 and 2020-2021 schools year, Student was parentally placed at a private school without any intention of seeking tuition reimbursement. This is further supported by the fact that a Ten-Days’ Notice was not provided for the 2019-2020 and 2020-2021 school years. The statute and regulations do not affirmatively require such notice or bar parents from enrolling their child in another school without such notice, but they establish a powerful incentive to give such notice by providing that reimbursement may be "reduced or denied" if parents fail to follow this procedure. See 20 U.S.C. § 1412(a)(10)(C)(iii)(I) (absent prior notice, reimbursement may be reduced or denied); 34 C.F.R. § 300.148(d) (same); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 240-41, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) (discussing circumstances under which court may reduce or deny reimbursement under 20 U.S.C. § 1412); M.C. ex rel. Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000) ("[C]ourts have held uniformly that reimbursement is barred where parents unilaterally arrange for private educational services without ever notifying the school board of their dissatisfaction with their child's IEP."). The Ten-Days’ Notice requirement makes it possible for the public school to reassess the IEP and cure any deficiency in it, thus minimizing the school's expenses by allowing it to adjust its plans and provide the child with what the parents, at least, consider to be a FAPE. See M.C., 226 F.3d at 68; also J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 672 (S.D.N.Y. 2011).

A Ten-Days’ Notice was submitted for the 2021-2022 school year, but only with the filing of the DPC. (P-A). Parent did not request an IESP for the school years at issue. There is a fundamental lack of notice by the Parent. Furthermore, it should also be noted that Parent acknowledges that the program offered by Private School 2 was not appropriate under Prong II of the Burlington-Carter analysis as it was a mainstream setting. (IHO-XII-28; April 19, 2023 Trans., 147). And, as discussed above, there are equitable considerations under Prong III of the Burlington-Carter analysis that would preclude tuition reimbursement.

There are also issues with Parent’s request for tuition reimbursement for the 2021-2022 school year at Private School 2 under the Burlington-Carter analysis. Parent submitted an invoice into the record as evidence of tuition costs. (P-E). The invoice is not a legally binding contract, contains no legal terms, is not executed, and does not indicate any obligation to pay. Id. Furthermore, the invoice indicates a charge of $1,800.00 dollars for “Early & Late” corresponding to “230 – 330.” Id. There is nothing in the record reflecting what this additional hour is for and/or whether any instruction/services were provided to Student.

However, I do find that tuition reimbursement for the school years at issues is an appropriate award of compensatory education. As previously discussed, Student was denied a FAPE for the school years at issue. Parent developed a program consisting of: (i) private school placement; (ii) related services to be provided by the DOE; and (iii) the provision of ABA instruction. This parentally developed program was reasonably calculated to enable Student to receive educational benefits in light of the DOE’s denial of a FAPE. Furthermore, tuition reimbursement, along with the other compensatory awards in this decision, constitutes an equitable remedy for the harm caused by the DOE’s denial of a FAPE for the school years at issue.

The cost of tuition at Private School for the 2019-2020 school year was $5,700.00 dollars. (P-WW). Parent also paid a registration fee of $600.00 dollars. Id. Therefore, the total tuition cost for the 2019-2020 school year at Private School was $6,300.00 dollars. Accordingly, Parent is entitled to reimbursement of tuition for the 2019-2020 school year in the amount of $6,300.00 dollars.

The cost of tuition at Private School for the 2020-2021 school year was $5,400.00 dollars. (P-GGG). Parent also paid a registration fee of $600.00 dollars. Id. Therefore, the total tuition cost for the 2020-2021 school year at Private School was $6,000.00 dollars. Accordingly, Parent is entitled to reimbursement of tuition for the 2020-2021 school year in the amount of $6,000.00 dollars.

The cost of tuition at Private School^[2] for the 2021-2022 school year was $10,450.00 dollars. (P-E). Parent made three separate payments of $8,400.00, $250.00, and $1,800.00 dollars for Student. Id. Parent also received a discount of $2,040.00 dollars that was applied to Student’s tuition costs. Id. Therefore, the total tuition cost for the 2021-2022 school year at Private School payments of $390.36 dollars. Id. For the 2021-2022 school year, Parent paid a total of $3,488.34 dollars, consisting of seven payments of $387.62 dollars and two payments of $387.50 dollars.

Id. Accordingly, Parent is entitled to reimbursement of insurance costs totaling $7,714.80 for the 2020-2021 and 2021-2022 school years.

Parent is also requesting at-home ABA services. (P-A; IHO-XI; P-AAA). In the Neuropsychological Evaluation dated April 12, 2023 (“2023 Neuropsychological Evaluation”), Doctor recommended: “[Student’s] parents should continue to implement Applied Behavior Analysis (ABA) services to specifically address tantrum behaviors and improve adaptive and self-help skills at home. At this time, [Student] is not proficient in several daily living skills, and she is unwilling to follow directions or accept suggestions from others without meltdowns that cause significant challenges for her family.” (P-AAA-12).

While there is undoubtedly a benefit to Student’s receipt of a home-based 1:1 ABA program, services that are intended to generalize skills outside the classroom are not required by the IDEA. See F.L. and M.L. ex rel. F.L. v. New York City Dept. of Educ., 2016 WL 3211969, at *11 (S.D.N.Y. 2016); P.S. v. New York City Dept. of Educ., 2014 WL 3673603, at *13-14 (S.D.N.Y. 2014); C.M. and S.M. ex rel. L.M. v. Mount Vernon City Sch. Dist., 2020 WL 3833426, at *26 (S.D.N.Y. 2020); L.K. v. New York City Dept. of Educ., 2016 WL 899321, at *8-10 (S.D.N.Y. 2016), aff’d in part, L.K. v. New York City Dept. of Educ., 674 Fed. App’x 100 (2d Cir. 2017). Although a school district may be required to offer services that seek to improve generalization “if a student’s difficulty in generalizing skills prevents him from making the progress required under the IDEA” (L.K., 2016 WL 899321, at *9), the hearing record fails to establish that Student is unable to make progress in the classroom without a home-based ABA program. The primary purpose of the home-based ABA program recommended for Student is to generalize skills outside the classroom. The DOE was under no obligation during the school years at issue to recommend or provide any home-based ABA services to generalize Student’s skills outside the classroom. Accordingly, the reasoning for home-based ABA instruction recommended for Student and requested by Parent is unavailing. Consequently, I further find that an order for BCBA or LBA supervision is not warranted.

B. Compensatory SEIT, SLT, and OT Services

The Parent has requested an order directing the DOE to provide Student with 468 hours of compensatory SEIT services, 40.5 hours of compensatory SLT services, and 37 hours of compensatory OT services to make up for the DOE’s failure to provide appropriate related services during the school years at issue. (P-XI). It should be noted that Parent’s Statement of Proposed Relief contains inconsistent calculations and does not address the 2021-2022 school year for these related services. Therefore, my calculations below are based on a thorough review of the entire record.

SEIT Services

For the 2019-2020 school year, the 2019 IEP recommended SEIT services, individual services, five times per week, two hours per day. (D-17). The 2019 IEP recommended a 10-month program. For the 2020-2021 school year, the 2020 IEP recommended SEIT services, individual service, five times per week, two hours per day. (D-37). The 2020 IEP recommended a 12-month program with SEIT services, individual service, three times per week, sixty minutes per session. Id. The 2021 IEP did not recommend SEIT services. (D-8).

Pursuant to New York State regulation, a 10-month school year from September through June consists of at least 36 weeks and a 12-month school year from June through July would generally consist of 42 weeks. This is based on the 180 instructional days in a 10-month school year, plus an additional 30 days during the 12-month portion of the school year that occurs over a summer, typically during a six-week program. (See Educ. Law § 3604[7]; 8 NYCRR 200.I[eee]).

During the 2019-2020 school year, Student was mandated 360 hours of SEIT services. Likewise, for the 2020-2021 school year, Student was mandated 468 hours of SEIT services (360 hours during 10-month program and 108 hours over the summer). Parent alleges that the DOE failed to implement the 2019 IEP and 2020 IEP. (P-A). Parent also alleges that during the 2019-2020 school year, Student only received 165 hours of SEIT services. Likewise, Parent alleges that during the 2020-2021 school year, Student only received 215 hours of SEIT services.

The DOE did not offer any documentation or testimony to rebut or contradict the allegations that the DOE failed to implement the SEIT services mandated in the 2019 IEP and SLT Services

For the 2019-2020 school year, the 2019 IEP recommended SLT, individual service, three times per week, thirty minutes per session. (D-17). For the 2020-2021 school year, the 2020 IEP recommended: (i) SLT, individual service, two times per week, thirty minutes per session; and (ii) SLT, group of two, once per week for thirty minutes. (D-37). SLT was not part of the 12-month program. Id. For the 2021-2022 school year, the 2021 IEP recommended: (i) SLT, group of three, once per week for thirty minutes; and (ii) SLT, group of three, once per week for thirty minutes. (D-8).

Student was entitled to 108 SLT sessions during the 2019-2020 school, 108 SLT sessions during the 2020-2021 school year, and 72 SLT sessions during the 2021-2022 school year. Parent alleges that the DOE failed to implement the 2019 IEP, 2020 IEP, and 2021 IEP. (P-A). Parent also alleges that Student only received 46 SLT sessions during the 2019-2020 school year,

59 SLT sessions during the 2020-2021 school year, and 66 SLT sessions during the 2021-2022 school year.

The DOE did not offer any documentation or testimony to rebut or contradict the allegations that the DOE failed to implement the SLT services mandated in the 2019 IEP, 2020 IEP, and 2021 IEP. Accordingly, I find that Student is entitled to 31 hours of compensatory SLT services for mandated services not provided during the 2019-2020 school year, 24.5 hours of compensatory SLT services for mandated services not provided during the 2020-2021 school year, and 3 hours of compensatory SLT services for mandated services not provided during the 2021-2022 school year. Therefore, Student is entitled to 58.5 hours of compensatory SLT services for mandated services not provided during the school years at issue.

OT Services

With regards to compensatory OT, Parent is requesting either a bank of 207 OT hours (as recommended by Occupational Therapist) or an award equal to the number of mandated OT sessions that the DOE failed to provide during the school years at issue. (IHO-XI). The recommendation made by Occupational Therapist is based on a calculation of: 1.5 hours per week, for 3 years, at 46 weeks per year. (P-DDD).

The recommendation made by Occupational Therapist is inappropriate for a number of reasons. First, the Occupational Therapist fails to consider the OT sessions already provided by the DOE for the school years at issue and the progress Student has made with OT during this time. Second, the recommendation is incorrectly based on 46 weeks. The 2019-2020 and 2021-2022 school years should have been calculated at 36 weeks, and the 2020-2021 school year should have been calculated at 42 weeks.

For the 2019-2020 school year, the 2019 IEP recommended OT, individual service, three times per week, thirty minutes per session. (D-17). For the 2020-2021 school year, the 2020 IEP recommended OT, individual service, three times per week, thirty minutes per session. (D-37). The 12-month program of the 2020 IEP recommended OT, individual service, two times per week, thirty minutes per session. Id. For the 2021-2022 school year, the 2021 IEP recommended: (i) OT, individual service, two times per week, thirty minutes per session. (D-8). Student was entitled to 108 OT sessions during the 2019-2020 school, 120 OT sessions during the 2020-2021 school year, and 72 OT sessions during the 2021-2022 school year. Parent alleges that the DOE failed to implement the 2019 IEP, 2020 IEP, and 2021 IEP. (P-A). Parent also alleges that Student only received 64 OT sessions during the 2019-2020 school year, 90 OT sessions during the 2020-2021 school year, and 88 OT sessions during the 2021-2022 school year. (IHO-XI-3).

The DOE did not offer any documentation or testimony to rebut or contradict the allegations that the DOE failed to implement the OT services mandated in the 2019 IEP, 2020 IEP, and 2021 IEP. Accordingly, I find that Student is entitled to 22 hours of compensatory OT services for mandated services not provided during the 2019-2020 school year and 15 hours of compensatory OT services for mandated services not provided during the 2020-2021 school year. The record reflects that Student received the mandated OT services for the 2021-2022 school year. (IHO-XI-3). Therefore, Student is entitled to 37 hours of compensatory OT services for mandated services not provided during the 2019-2020 and 2020-2021 school years.

COVID Period

When it comes to remote instruction and the switch to remote and hybrid learning necessitated by the COVID-19 pandemic, there is authority that bears mentioning.^[8] The State Review Officer (“SRO”) in this case specifically found that the missed services were missed due to the switch in the provision of instruction from in-person to remote learning in response to the COVID-19 pandemic. The SRO noted that the “CSE's review might include a discussion of whether the student has new or different needs compared to before the pandemic, whether the student experienced a loss of skill or a lack of expected progress towards annual goals and in the general education curriculum, whether evaluations of the student or implementation of an IEP was delayed, and whether some of the student's IEP services could not be implemented due to the available methods of service delivery or whether such methods of service delivery were not appropriate to meet the student's needs ("Return To School Roadmap," 79 IDELR 232; "Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at pp. 3-4; see "Supplement #2 -Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 1).

If the parent disagrees with a CSE's determination regarding the student's entitlement to compensatory services, State guidance notes that: Parents of students with disabilities may resolve disputes with school districts regarding the provision of a FAPE by pursuing one of the dispute resolution options provided for in the IDEA. A parent may file a State complaint directly with NYSED in accordance with Commissioner's Regulation section 200.5(l), request mediation in accordance with Commissioner's Regulation section 200.5(h), or file a due process complaint and proceed to hearing in accordance with Commissioner's Regulation section 200.5(j). ("Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at p. 5; "Supplement #2 -Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 6).

The SRO continued: “At this point, the CSE should have reconvened to develop an IEP for the student for the 2021-22 school year (see Parent Ex, B at p. 1 [showing a projected date of annual review of April 6, 2021]), and the parent was required to raise these concerns concerning the student's regression and compensatory education with the CSE in the first instance. As discussed above, the USDOE and NYSED's Office of Special Education have indicated that, under these unique circumstances, a CSE should have the first opportunity to consider the student's needs and whether any additional services may be warranted as a result of the pandemic. Accordingly, the IHO erred in ordering compensatory education at this juncture.”

Here, in the DPC, Parent has plead that Student received virtual instruction during the COVID-19 pandemic and services were provided inconsistently. As relief, Parent is requesting a compensatory award. The record supports a finding that the CSE has already considered Student’s needs and made a determination as to the additional services that may be warranted as a result of the pandemic.

CPSE Administrator testified that while Student did not meet “the profile of a student that would significantly regress,” there were concerns that the COVID-19 pandemic would negatively impact Student and therefore ordered 12-month services. Id. “I essentially increased services to 12 months due to the fact it was, you know, we were in the midst of a pandemic. The Parent was very concerned about the regression. I took that into consideration. I wanted, you know, [Student] to continue with the, she was in a less restrictive setting. I wanted to support that. That’s what we do. I wanted to make sure, you know, she returned in September with that level of skill. Is she a student where that platform is working really well for her? No, but she certainly was able to work with the Parent and attend for that amount of time just to keep her skills where they were and not, prevent significant regression. The Parent, in, you know, collaboration with myself and the SEIT, determined that that amount of time was appropriate, just so that [Student] did not regress.” Id. “We were in the thick of the pandemic. There were no services in-person, I don’t believe, at that time. And I know that the, yeah, the services were being delivered remotely and, yeah, a lot of consideration was taken in terms of, you know, the platform that it was being delivered and, you know, [Student’s] attention and how she was able to, you know, the amount of time that she would be able to participate in remote activities.” Id.

DOE Attorney also argued in the DOE Closing Brief that the CSE had considered the impact of the pandemic and, as a result, recommended a 12-month program. (IHO-XIII). This is further supported by the record since a 12-month program was not recommended for the 2019-2020 or 2021-2022 school years and there is no finding of “substantial regression” as that term is defined under Section 200.1(aaa).

DOE Attorney argued: “Relevant testimony regarding the addition of summer services at a frequency and rate agreed by all parties to avoid regression and assist Student during pandemic, even though she did not meet the profile of a [s]tudent who would require summer services, speaks to the individualization that occurred to develop a proper program uniquely tailored to the Student’s needs to assist her progress. This inclusion of summer services also speaks to the compensatory education that was provided to the Student as a result of the unprecedented COVID-19 Pandemic and resulting alterations to traditional school settings/services, and aimed to redress hardships incurred by [s]tudents during that time.” (IHO-XIII).

The record sufficiently supports the finding that the CSE has already considered Student’s needs and made a determination as to the additional services that may be warranted as a result of the pandemic. Therefore, the award for compensatory SEIT, SLT, and OT does not carve out the period during which Student’s program and services were impacted by the COVID19 pandemic.

Time Limit on Compensatory Award

The compensatory award in this decision has an expiration period to ensure that the compensatory services are used in a timely fashion to enable Student to receive maximum benefit and place Student where she would have been but for a denial of a FAPE as soon as possible. The purpose of a compensatory award is not to continuously carry forward a balance of compensatory services that remain unused. This decision addresses three school years. Therefore, Parent will be given three years to use the compensatory award.

C. Compensatory PCAT Services The Parent has also requested compensatory Parent Counseling and Training (“PCAT”) services. Specifically, Parent is requesting 116 hours of compensatory PCAT, calculated at one hour per week for one 10-month school year and two 12-month school years. (P-XI). The 2021 IEP recommended PCAT, group service, four times per week, sixty minutes per session. (D-8). PCAT was not recommended on the 2019 IEP or 2020 IEP. (D-17; D-37).

In educational programs developed for students with autism, “New York requires that an IEP include a ‘[p]rovision . . . for parent counseling and training . . . for the purpose of enabling parents to perform appropriate follow-up intervention activities at home’” (L.O. ex rel. K.T., 822 F.3d at 122 [quoting 8 NYCRR § 200.13[d]). This provision is intended to “assist[ ] parents in understanding the special needs of their child; provid[e] parents with information about child development; and help[] parents to acquire the necessary skills that will allow them to support the implementation of their child's [IEP]” (8 NYCRR § 200.1[kk]).

However, the quantity of compensatory PCAT services requested by Parent is inappropriate and not supported by the record. There is nothing in the record to suggest that Parent requires 116 hours of compensatory PCAT. In fact, there is nothing in the record recommending compensatory PCAT. Furthermore, Parent’s request fails to consider the fact that PCAT services were recommended on the 2021 IEP. Finally, Parent’s request for 116 hours is based on a miscalculation. As previously discussed, the record does not support a finding of ‘substantial regression’ as the term is defined in Section 200.1(aaa). 12-month services were provided during the 2020-2021 school year to address the impact of the COVID pandemic, even though Student does not meet the profile of a student suffering from substantial regression. Therefore, a calculation of one hour per week for three 10-month school years (36 weeks) would equal into 108 hours of compensatory PCAT services.

However, 108 hours of compensatory PCAT would still be excessive and not supported by the record. Again, the 2021 IEP recommended PCAT, group service, four times per week, sixty minutes per session. (D-8). There is nothing in the record indicating that these services were not provided by the DOE. I find the DOE’s determination of four hours of PCAT services per year to be appropriate. Accordingly, Parent is entitled to a total of 8 hours of compensatory PCAT services for the 2019-2020 and 2020-2021 school years.

D. Compensatory 1:1 Special Education Instruction and Services The Parent has also requested “compensatory 1:1 instruction using special education teaching instruction, ABA and/or Floortime equal 20 hours per week for each of the school years to make up for the fact that the DOE (a) did not offer an appropriate program that included ABA and/or sufficient 1:1 support; and (b) the parent had to use her insurance-based services to pushin to the program, which she should have been able to be use after school to address her daughter’s sever delays in communication, ADL skills and behavior.” (IHO-XI). Parent calculates this request over one 10-month school year and two 12-month school years to reach a total of 2320 hours of compensatory 1:1 instruction. Id. While Doctor did not specify an exact number for compensatory 1:1 instruction, she recommended “the equivalent of 12-month, full time 1:1 SEIT services.” (P-AAA-11).

For the reasons stated below, I find Parent’s request to be inappropriate, excessive, and not supported by the record. First, and as previously discussed, the record does not support a finding of ‘substantial regression’ as the term is defined in Section 200.1(aaa). 12-month services were provided during the 2020-2021 school year to address the impact of the COVID pandemic, even though Student does not meet the profile of a student suffering from substantial regression. Therefore, any calculation of compensatory 1:1 special education instruction should be based on a 10-month school year.

Second, Parent developed a program consisting of: (i) private school placement; (ii) related services to be provided by the DOE; and (iii) the provision of ABA instruction. This parentally developed program was reasonably calculated to enable Student to receive educational benefits in light of the DOE’s denial of a FAPE for the school years at issue. The record reflects that Student did in fact receive educational benefits. Parent has now been awarded tuition reimbursement and reimbursed for the cost of private health insurance that she obtained for the provision of ABA services. Additionally, the DOE provided 1:1 SEIT services during the 2019-2020 and 2020-2021 school years, albeit inconsistently. The Parent’s request and Doctor’s recommendation for compensatory 1:1 special education instruction fails to consider the ABA services Student received during the school years at issue. Doctor testified that she was not aware Student was receiving ABA services when she made the recommendations in the 2023 Neuropsychological Evaluation. (April 19, 2023 Trans., 102). Furthermore, Doctor testified that had she known Student was receiving ABA services, this fact would not have altered her recommendations. Id. I do not find the Doctor’s testimony credible as her testimony is inconsistent with other statements made regarding how the recommendations were developed.

Parent argues that Student received insufficient ABA services during the school years at issue and/or she was forced to use the ABA services to push-in to the program rather than be used at home. In the Neuropsychological Evaluation dated April 12, 2023 (“2023 Neuropsychological Evaluation”), Doctor recommended: “[Student’s] parents should continue to implement Applied Behavior Analysis (ABA) services to specifically address tantrum behaviors and improve adaptive and self-help skills at home. At this time, [Student] is not proficient in several daily living skills, and she is unwilling to follow directions or accept suggestions from others without meltdowns that cause significant challenges for her family.” (P-AAA-12). As previously discussed, a home-based 1:1 ABA program/services that are intended to generalize skills outside the classroom are not required by the IDEA. See F.L. and M.L. ex rel. F.L. v. New York City Dept. of Educ., 2016 WL 3211969, at *11 (S.D.N.Y. 2016); P.S. v. New York City Dept. of Educ., 2014 WL 3673603, at *13-14 (S.D.N.Y. 2014); C.M. and S.M. ex rel. L.M. v. Mount Vernon City Sch. Dist., 2020 WL 3833426, at *26 (S.D.N.Y. 2020); L.K. v. New York City Dept. of Educ., 2016 WL 899321, at *8-10 (S.D.N.Y. 2016), aff’d in part, L.K. v. New York City Dept. of Educ., 674 Fed. App’x 100 (2d Cir. 2017).

It is important to note here that it was Parent who chose Student’s program for the school years at issue, and she has been awarded the cost of tuition, coupled with related services and ABA instruction to augment the program in a way reasonably calculated to ensure that Student makes education progress. Parent could have placed Student in a school that offered ABA services, but for whatever reason chose not to. Moreover, Parent could have obtained additional ABA services through private health insurance and sought reimbursement, but again chose not to. Parent could have even paid for additional ABA services directly and sought reimbursement.

There are also equitable concerns with regards to an award of compensatory 1:1 special education instruction. For the 2019-2020 and 2020-2021 school years, Student was not classified by the DOE as a child with autism. (D-17; P-B). The record reflects that Parent, at the very least, resisted a classification of autism. A Psychological Evaluation dated April 10, 2019, conducted by the DOE, indicates that a Childhood Autism Rating Scale, 2nd Edition (“CARS 2”) assessment was administered. “The CARS 2 was utilized to further assess [Student’s] behaviors. This scale measures the child’s behavior in 15 areas, which focus upon autism spectrum disorders. Within the CARS 2, [Student] rated a score of 27; No-Minimal Symptoms of Autism Spectrum Disorder.” (D-16-14).

The CARS 2 assessment that was conducted as part of the Psychological Evaluation demonstrates convincingly that the DOE took reasonable measures to determine whether a classification of autism was appropriate. The CARS 2 assessment measured Student’s behaviors in 15 areas. The results indicated that a classification of autism was not appropriate at that time. Parent never argued that the Psychological Evaluation conducted by the DOE was not properly conducted or inappropriate. Furthermore, it should be noted that Student was in preschool at the time and may have only subsequently exhibited behaviors that showed autism. Therefore, the DOE took all reasonable steps with regards to Student’s classification of autism.

During the 2019-2020 school year, Private School made a recommendation to Parent that Student be assessed for autism. (April 19, 2023 Trans., 165). On July 1, 2020, Parent had an independent Psychological Evaluation conducted. (D-22). The Psychological Evaluation found: “As measured by the ADOS-II, [Student’s] autism spectrum-related behavior meets the clinical criteria of an autism spectrum disorder. Based on formal testing, review of records, observation, and clinical opinion, [Student] displays clinical indications consistent with autism spectrum disorder including a severe and pervasive impairment in the development of reciprocal social interaction, poor communication skills, and stereotyped, repetitive behaviors.” Id. The Psychological Evaluation was executed by the psychologist on July 7, 2020. Id.

While Parent mentioned a diagnosis of autism, she did not provide a copy of the Psychological Evaluation to the DOE until sometime around the 2021 IEP meeting, which is approximately a year after the Psychological Evaluation was executed by the psychologist. Parent testified that: “I believe you have it now. But I did not immediately bring that to the DOE. I can tell you a hundred – quite honestly, that I was very, like rattled and heartbroken by the outcome. Like, even though [Private School] had made the recommendation to pursue an autism evaluation, it wasn’t a diagnosis that she had yet received. And like, I was overwhelmed and like didn’t know like, whatever, autism has a lot of stigma. And like, I didn’t know what the conflict, what the ramifications would be for her presenting that like formally. So at that time, I, I, I, -- we had already had our meeting. And I didn’t – I did not at that time, when we received her ADOS report submitted. That said, [Psychologist], I did express to [Psychologist] that she had received A-, like, which is the following IEP meeting, like once I had, had some time to digest, I did present it. I, I did explain to [Psychologist] I believe during the social history that she did have an ASD diagnosis and I was receiving ABA services through insurance.” (April 19, 2023 Trans.,165). Parent’s testimony is consistent with the record.

A Social History Update dated February 25, 2021 states: “[Parent] reported that [Student] was evaluated for ASD and was diagnosed. She currently receives ABA (Floortime) services at home through insurance. Mother is ambivalent about having this as a classification of disability on a school-based IEP as she feels that it might make mainstreaming ultimately more difficult. Her goal is for [Student] to be in a general education classroom with support.” (D-33-2). Again, this is consistent with the record as Parent placed Student in a mainstream setting at Private School 2 for the 2021-2022 school year. Therefore, the record supports a finding that Parent resisted a classification of autism for Student. I find that Parent’s delay in notifying the DOE about Student’s diagnosis for over a year, coupled with the inability of the DOE to have known about Student’s diagnosis, given that Student was parentally placed in a private school and had recently been evaluated and not found to have such a diagnosis, requires me to reduce the amount of the award sought by Parent under my equitable authority.

The recommendations made by Doctor in the 2023 Neuropsychological Evaluation must also be discounted. On April 7, 2022, an Interim Order was issued that granted relief in the form of three IEEs, including a neuropsychological evaluation. Despite this, the 2023 Neuropsychological Evaluation was not finalized until April 12, 2023. (P-AAA; P-CCC-3). This significant delay meant that Student’s baseline, needs, and performance was being measured approximately one year after the last school year at issue and three years after the first school year at issue. The record also reflects that Student received fewer supports and services during the 2022-2023 school year (not at issue in this case) as compared to previous school years. (April 19, 2023 Trans.). Therefore, the 2023 Neuropsychological Evaluation is not a reliable assessment of Student’s deficits during the school years at issue and the appropriate relief to address the denial of an appropriate program/services.

Furthermore, Doctor testified that she was not aware Student was receiving ABA services when she made the recommendations in the 2023 Neuropsychological Evaluation. (April 19, 2023 Trans., 102). When asked how her recommendations for compensatory education were calculated, Doctor testified: “It was based on the, the know-, the review of her records, and the knowledge of the services that had been recommended and provide it to her thus far. And also taking into account what she should have been receiving this entire time in order to have essentially made appropriate progress and, you know, put her back into place where she should have been.” (April 19, 2023 Trans., 63). Finally, while Doctor reviewed numerous Student records for the 2023 Neuropsychological Evaluation, including a number of evaluations, it is unclear whether Doctor reviewed and considered the underlying data for these evaluations prior to making her recommendations.

Finally, the IDEA 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]). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189; Walczak, 142 F.3d at 132). While there is undoubtedly a benefit to Student’s receipt of 2320 hours of compensatory 1:1 instruction, such an award is not supported by the record and would be excessive. As previously discussed, the record reflects that Student did in fact receive educational benefits during the school years at issue.

However, I do find that Student is entitled to compensatory 1:1 special education instruction for the period during which she received virtual instruction during the COVID pandemic, such period being March 15, 2020 through August 31, 2020. (IHO-XIV). Parent testified that Student received inconsistent virtual SEIT services during this time and was not able to engage with the remote instruction provided. This was also acknowledged by the DOE. The DOE attempted to remediate this harm by recommending a 12-month program in the 2020 IEP that included SEIT services. Yet, the provision of these services remotely and the inconsistency with which they were provided meant that Student was not able to receive educational benefits. The DOE should have included additional time to make up for hours when Student was not able to access virtual instruction during this time.

While there was not a specific computation of the number of hours lost due to issues with virtual instruction, I am ordered additional make-up services. The period of March 15, 2020 through August 31, 2020 is comprised of 24 weeks. The 2020 IEP had recommended 10 hours of 1:1 SEIT services per week. Accordingly, I find that Student is entitled to 240 hours of compensatory 1:1 special education instruction.

E. Independent Educational Evaluations

Parent also requests reimbursement for an IEE and public funding for the following IEEs: (i) Auditory Processing Evaluation, (ii) Assistive Technology Evaluation, (iii) Vision Processing Evaluation, (iv) Autism Skills Assessment, and (v) Functional Behavior Assessment (collectively, the “Evaluations”). (P-A; IHO-XI).

During the 2019-2020 school year, Private School made a recommendation to Parent that Student be assessed for autism. (April 19, 2023 Trans., 165). On July 1, 2020, Parent had an independent Psychological Evaluation conducted. (D-22). A copy of the independent Psychological Evaluation was eventually provided to the DOE. The DOE did not present any evidence as to why Parent should not be reimbursed for the independent Psychological Evaluation. Accordingly, the DOE shall reimburse Parent in the amount of $400.00 dollars for the independent Psychological Evaluation.

Additionally, Parent is requesting public funding of the Evaluations. (P-A; IHO-XI). Once a parent requests an IEE at public expense, the district is automatically required, without unnecessary delay, to ensure that the IEE is provided at public expense or to file their own due process complaint. The DOE failed to offer any documentary evidence or testimony to rebut or contradict the need for the Evaluations. Accordingly, an award for public funding of the Evaluations is appropriate.

F. Transportation

Parent also requests reimbursement of transportation costs totaling $2,446.30. (IHO-XI). New York 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.” Education Law §§ 4401(1), 4402(4)(a); see also Education Law § 4401(2); 8 N.Y.C.R.R. § 200.1(ww). Special education transportation was not recommended on the 2019 IEP, 2020 IEP, or 2021 IEP. (D-17; D-37; D-8).

In support of her claim, Parent has submitted into evidence a number of invoices under the title “Carpool/Chauffeuring & Transportation Services.” (P-F). A review of the invoices does not show who was transported and the location/destination of the transportation services. In her affidavit, Parent also states that she is requesting: “reimbursement for our mileage.” (P-FFF-11). Parent did not provide any additional evidence or testimony in support of her claim for reimbursement of transportation costs. With regards to the invoices, Parent has provided insufficient evidence to determine who and what the transportation services were for. With regards to mileage, Parent failed to provide any evidence to the specifics of the mileage and the associated cost. Accordingly, Parent’s request for reimbursement of transportation costs is denied.

G. Section 504 Claims

In addition to Parent’s IDEA claim, Parent contends that the DOE violated Section 504 by discriminating against Student based on her disability, and by adopting and implementing systemic and blanket policies and practices which have affected the special education services offered to Student.

Section 504 provides in relevant part that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” (20 U.S.C. § 794[a]). Under the Act’s implementing regulations, “[a] recipient that operates a public elementary or secondary education program shall provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap” (34 C.F.R. § 104.33[a]).

An “appropriate education” within the meaning of Section 504 means “regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirement of §§ 104.34, 104.35, and 104.36” (34 C.F.R. § 104.33[b][1]) (emphasis supplied).

Therefore, unlike IDEA claims that are based on a school district’s alleged provision of inappropriate special education services, Section 504 claims “address[] discrimination against disabled students” (M.M. v. New York City Dept. of Educ., 2017 WL 1194685, at *12 [S.D.N.Y. 2017], citing S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 289 [S.D.N.Y. 2007]).

Accordingly, “a Section 504 claim may be predicated on the claim that a disabled student was denied access to a free appropriate education, as compared to the free appropriate education non-disabled students receive” (C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 841 [2d Cir. 2014]) (internal quotation marks omitted).

To establish a prima facie case of discrimination under Section 504, “a [parent] must show the following: (1) [the student] is a qualified individual with a disability; (2) [the student] was excluded from participation in a public entity's services, programs or activities or was otherwise discriminated against by [the] public entity; and (3) such exclusion or discrimination was due to [the student’s] disability" (B.C. ex rel. J.C. v. Mount Vernon School District, 37 F.3d 152, 158 [2d Cir. 2016]) (internal quotation marks and citations omitted). “Exclusion or discrimination may take the form of disparate treatment, disparate impact, or failure to make a reasonable accommodation” (Id.).

However, a claim alleging a violation of Section 504 also requires proof of bad faith or gross misjudgment. See C.L. v. Scarsdale, 744 F.3d at 841 [noting that “[s]omething more than a mere violation of the IDEA is necessary in order to show a violation of Section 504 in the context of educating children with disabilities, i.e., a plaintiff must demonstrate that a school district acted with bad faith or gross misjudgment”]; S.W. by J.W. v. Warren, 528 F. Supp. 2d at 290, [noting that parents can rely on Section 504 to claim they are denied access to a FAPE, “if they can show that the defendants acted with bad faith or gross misjudgment in the administration of disability services”]; M.M. v. New York City Dept. of Educ., 2017 WL 1194685, at *13 [holding that “a Section 504 claim predicated on the denial of a FAPE requires proof of bad faith or gross misjudgment”] (citation and internal quotation marks omitted); I.S. v. Binghamton City Sch. Dist., 486 F. Supp. 3d 575, 597 (N.D.N.Y 2020) [holding that “[b]ecause Section 504 addresses discrimination against disabled students, a plaintiff must show that a school district acted with bad faith or gross misjudgment to show a Section 504 violation, not a mere violation of the IDEA”].

The Parent’s discrimination claim under Section 504 is premised, not on a claim that the DOE acted with bad faith or gross misjudgment, but on the DOE’s alleged adoption of systematic blanket policies to decisions about Student’s evaluation, IEP, and placement.

Since Parent’s discrimination claim alleges systemic violations, her claim cannot be adjudicated in an administrative proceeding. See J.S. ex rel. N.S. v. Attica Central Schools, 386 F.3d 107, 113 (2d Cir. 2004) [holding that “administrative officers have no power to correct [systemic violations]” of the IDEA]; F.C. ex rel. T.C. v. New York City Dept. of Educ., 2016 WL 8716232, at *8 (S.D.N.Y. 2016) [noting that “where a systemic policy is at stake, the administrative officer has no power to correct the violation”] (internal quotation marks and brackets omitted) S.W. by J.W. v. Warren, 528 F. Supp. 2d at 294 [noting that “administrative hearing officers do not have the ability to alter already existing [school district] policies” regarding implementation of the IDEA]. Therefore, Parent must bring this claim before a different judicial forum.

Furthermore, a “violation of the IDEA, without more, is insufficient to support a claim of disability-based discrimination under Section 504” (A.K. v. Westhampton Beach Sch. Dist., 2019 WL 4736969, at *14 [E.D.N.Y. 2019], citing and quoting French v. N.Y. State Dept. of Educ., 476 F. App’x 468, 472 [2d Cir, 2011], for the proposition that a “‘fail[ure] to show that the alleged ‘discrimination’ is anything more than a rehashing of [the plaintiff's] allegation that the defendants failed to provide her with a FAPE’ warrants dismissal of plaintiff's ADA and Section 504 claims”). The Parent’s discrimination claims regarding the DOE’s alleged commission of violations of Section 504 which have contributed to the DOE’s denial of a FAPE is largely duplicative of her IDEA claim, and it seeks the same relief. Therefore, the Parent’s discrimination claim is nothing more than a rehashing of her allegations in support of her assertion that the DOE failed to provide Student with a FAPE for the 2019-2020, 2020-2021, and 2021-2022 school years.

Accordingly, to the extent Parent’s discrimination claim is duplicative of her IDEA claim, it has been addressed. Avaras v. Clarkstown Central Sch. Dist., 2017 WL 3037402, at *26 (S.D.N.Y. 2017).

A review of the DPC and Parent’s Statement of Proposed Relief does not appear to contain a claim for meal reimbursement. The record does indicate that Student has a very restrictive list of foods and Parent testified to the same. However, Parent did not provide any evidence or testimony in support of a claim for meal reimbursement. Accordingly, if Parent has sought meal reimbursement for the school years at issue, the request for relief is denied.

ORDER

IT IS HEREBY, ORDERED, that the DOE shall reimburse Parent in the amount of $6,300.00 dollars within 30 days of submission of proof of payment encompassing tuition costs paid by Parent to Private School for Student’s attendance at Private School for the 2019-2020 school year; and it is further, ORDERED, that the DOE shall reimburse Parent in the amount of $6,000.00 dollars within 30 days of submission of proof of payment encompassing tuition costs paid by Parent to Private School for Student’s attendance at Private School for the 2020-2021 school year; and it is further, ORDERED, that the DOE shall reimburse Parent in the amount of $8,410.00 dollars within 30 days of submission of proof of payment encompassing tuition costs paid by Parent to Private School 2 for Student’s attendance at Private School for the 2021-2022 school year; and it is further, ORDERED, that the DOE shall reimburse Parent in the amount of $7,714.80 dollars within 30 days of submission of proof of payment encompassing private health insurance costs paid by Parent for Student’s private health insurance for the 2020-2021 and 2021-2022 school years; and it is further, ORDERED, that the DOE shall fund a total of 448 hours of compensatory individual SEIT services for Student, to be provided by an independent qualified provider selected by Parent, who shall be paid at a reasonable market rate, such payment to be made within thirty (30) days of Parent’s submission to the DOE of the provider’s invoice for such services; and provided, that the compensatory individual SEIT services shall be fully used by June 30, 2026; and it is further, ORDERED, that the DOE shall fund a total of 58.5 hours of compensatory individual SLT services for Student, to be provided by an independent qualified speech-language pathologist selected by Parent, who shall be paid at a reasonable market rate, such payment to be made within thirty (30) days of Parent’s submission to the DOE of the provider’s invoice for such services; and provided, that the compensatory individual SLT services shall be fully used by June 30, 2026; and it is further, ORDERED, that the DOE shall fund a total of 37 hours of compensatory individual OT services for Student, to be provided by an independent qualified occupational therapist selected by Parent, who shall be paid at a reasonable market rate, such payment to be made within thirty (30) days of Parents’ submission to the DOE of the provider’s invoice for such services; and provided, that the compensatory OT services shall be fully used by June 30, 2026; and it is further, ORDERED, that the DOE shall fund 8 hours of compensatory individual PCAT services, to be provided by an independent qualified ABA or BCBA selected by Parent, who shall be paid at a reasonable market rate, such payment to be made within thirty (30) days of Parent’s submission to the DOE of the provider’s invoice for such services; and provided, that the compensatory individual PCAT services shall be fully used by June 30, 2026; and it is further, ORDERED, that the DOE shall fund a total of 240 hours of compensatory 1:1 special education instruction or ABA therapy services for Student, to be provided by an independent qualified ABA, LBA, or provider selected by Parent, who shall be paid at a reasonable market rate, such payment to be made within thirty (30) days of Parent’s submission to the DOE of the provider’s invoice for such services; and provided, that the compensatory 1:1 special education instruction or ABA therapy services shall be fully used by June 30, 2026; and it is further, ORDERED, that the DOE shall reimburse Parent in the amount of $400.00 dollars for the July 1, 2020 independent Psychological Evaluation; such payment to be made within thirty (30) days after submission of an invoice(s) for services rendered; and it is further, ORDERED, that the DOE shall fund an independent: (i) Auditory Processing Evaluation, (ii) Assistive Technology Evaluation, (iii) Vision Processing Evaluation, (iv) Autism Skills Assessment, and (v) Functional Behavior Assessment, from a qualified provider(s) of Parent’s choosing, at a reasonable market rate, such payment to be made within thirty (30) days after submission of an invoice(s) for services rendered, or if elected by Parent, as an alternative payment method, the DOE shall implement this Order by issuing a payment authorization(s) for the above listed evaluation(s) within no more than five (5) business days after the DOE’s receipt of Parent’s submission of the details regarding Parent’s provider(s); and provided further, that Parent shall provide the DOE with copies of the above listed evaluation(s) within ten (10) days of the date such report(s) is completed.

Dated: May 10, 2023

Mohammad Ezzati

Impartial Hearing Officer

DOCUMENTS ENTERED INTO THE RECORD

DISTRICT EVIDENCE

1. RSA Speech 10/15/2021 3 pages DOE

2. Child Outcomes Summary Form 4/14/2021 1 page DOE

3. Classroom Observation 3/8/2021 3 pages DOE

4 PWN – Consent Additional Assessments 3/8/2021

5 pages DOE

5. Consent for Additional Assessments – Signed 2/24/2022 1 page DOE

6. Consent for Email – Signed 3/8/2021 2 pages DOE

7. Diagnosis Letter 4/6/2022 1 page DOE

8. IEP 2021 4/14/2021 19 pages DOE

9. IEP Meeting Minutes 4/14/2021 3 pages DOE

10. Notice of IEP Meeting 3/18/2021 3 pages DOE

11. OT Goal Undated 6 pages DOE

12. OT Prescription 3/22/2021 1 page DOE

13. OT Progress Report 2/14/2021 2 pages DOE

14. OT Progress Report 3/31/2022 3 pages DOE

15. IEP 2020 - PLOP 7/7/2020 9 pages DOE

16. Preschool Evaluations Various 58 pages DOE

17. IEP 2019 7/3/2019 19 pages DOE

18. Placement 2019 7/3/2019 3 pages DOE

19. Preschool Referral 3/6/2019 7 pages DOE

20. Prior Written Notice Package for Placement 2021 4/15/2021 4 pages DOE

21. Psychoeducational Evaluation Report 4/4/2022 6 pages DOE

22. Psychological Evaluation 7/1/2020 6 pages DOE

23. Prior Written Notice – Reevaluation 2/22/2021 5 pages DOE

24. Psychoeducational Addendum 4/4/2022 2 pages DOE

25. Request for Reevaluation 1/6/2021 1 page DOE

26. Request for Reevaluation 2/4/2022 1 page DOE

27. RSA OT Approved 10/22/2021 1 page DOE

28. SEIT Progress Report 10/22/2021 3 pages DOE

29. SEIT Report 2/25/2021 4 pages DOE

30. SESIS Log 3/30/2022 16 pages DOE

31. RSA Speech (Group) – Signed 3/9/2021 2 pages DOE

32. RSA Speech (Individual) – Signed 5/5/2022 2 pages DOE

33. Social History Update 2/25/2021 2 pages DOE

34. Social History Update 3/30/2022 2 pages DOE

35. Speech Progress Report 3/9/2021 3 pages DOE

36. Speech Progress Report 2022 5/5/2022 4 pages DOE

37. IEP – Summary Section 7/7/2020 2020 17 pages DOE

38. Prior Written Notice – School Location Letter 5/21/2021 5 pages DOE

39. RSA OT 10/15/2021 3 pages DOE

40. RSA Speech 10/15/2021 3 pages DOE

41. RSA Speech (Individual) Approval Letter 10/22/2021 1 page DOE

42. RSA Speech (Group) Approval Letter 10/22/2021 1 page DOE

43. SEIT Attendance: April to June 2021 6/17/2021 12 pages DOE

44. SEIT Attendance: January to February 2021 2/12/2021 7 pages DOE

45. SEIT Attendance: October to December 2020 12/11/2020 11 pages DOE

46. SEIT Attendance: May to September 2020 9/30/2020 13 pages DOE

47. SEIT Attendance: February to April 2020 4/30/2020 11 pages DOE

48. SEIT Attendance: November 2019 to January 2020 1/31/2020 14 pages DOE

49. SEIT Attendance: September to October 2019 10/31/2019 6 pages DOE

50. SEIT Attendance: March 2021 5/31/2021 7 pages DOE

51. Related Services Billing Record: March to May 2022 Undated 2 pages DOE

52. Related Service Billing Record: September 2019 to April 2022 Undated 3 pages DOE

53. SEIT Quarterly Progress Report April 2020 to June 2021 Various 9 pages DOE

54. SEIT Service Increase: Rationale Undated 3 pages DOE

55. SEIT Annual Review Progress Report 2/9/2020 3 pages DOE

56. OT Progress Report 6/1/2020 2 pages DOE

57. Speech Progress Report 3/11/2020 3 pages DOE

58. Procedural Safeguard Notice Undated 51 pages DOE

59. Family Guide to Special Education Services Undated 84 pages DOE

60. CPSE Administrator Email 12/13/2022 30 pages DOE

PARENT EVIDENCE

A. Impartial Hearing Request 8/25/2021 17 pages

B. Individualized Education Program 7/7/2020 17 pages

C. Private School Contract 2020-2021 Various 5 pages

D. Psychological Evaluation Invoice 7/7/2020 1 page

E. Private School 2 Invoice 3/25/2021 1 page

F. Transportation Invoice Various (20 pages)

G. Proof of Insurance Various 1 page

H. Request for Records via Fax 11/12/2021 7 pages

I. Letter Regarding SEIT Hours in 2021-2022 11/23/2022 1 page

J. Consent for Initial Evaluation 4/10/2019 1 page

K. WITHDRAWN

L. SEP Evaluations Various 49 pages

M. WITHDRAWN

N. WITHDRAWN

O. WITHDRAWN

P. WITHDRAWN

Q. WITHDRAWN

R. WITHDRAWN

S. SEIT Annual Review Progress Report 1/13/2021 3 pages

T. RSA’s Various 18 pages

U. WITHDRAWN

V. Therapy Report 3/31/2022 3 pages

W. SEIT Report 3/31/2022 4 pages

X. New York City Independent Budget Office Report: Are Children Born Later in the Year More Likely To Be Identified as Student’s With Disabilities? Undated 2 pages

Y. New York City Independent Budget Office Report: Are Children Born Later in the Year More Likely To Be Identified as Student’s With Disabilities? Dated Version 2/3/2020 3 pages

Z. Regulation of the Chancellor A-101 3/31/2020 37 pages

AA. Regulation of the Chancellor A-101 2/17/2022 36 pages

BB. Continuum of Special Education Services Undated 23 pages

CC. WITHDRAWN

DD. Birth-to-Five Policy Handbook for New York City Early Education Centers (NYCEECs) Undated 280 pages

EE. New York State Prekindergarten Foundation for the Common Core Undated 62 pages

FF. The New York State Prekindergarten Learning Standards 2019 Undated 81 pages

GG. WITHDRAWN

HH. Elementary School Academic Policy Guide Undated 38 pages

II. WITHDRAWN

JJ. Subpoena Document List Undated 3 pages

KK. WITHDRAWN

LL. WITHDRAWN

MM. WITHDRAWN

NN. WITHDRAWN

OO. WITHDRAWN

PP. WITHDRAWN

QQ. WITHDRAWN

RR. WITHDRAWN

SS. WITHDRAWN

TT. WITHDRAWN

UU. Chancellors Regulation A-710 9/10/2021 18 pages

VV. Chancellors Regulation A-710 1/20/2011 10 pages

WW. Private School 2019 Agreement 7/5/2019 4 pages

XX. Occupational Therapy Evaluation 12/28/2022 17 pages

YY. Speech Language Evaluation 12/14/2022 17 pages

ZZ. SEIT Report 1/8/2023 4 pages

CCC. AAA Neuropsychological Evaluation 4/12/2023 20 BBB Affidavit of Speech-Language Pathologist 4/17/2023 4 Affidavit of Doctor Undated 4 pages

DDD. Affidavit of Occupational Therapist Undated 4 pages

IHO EXHIBITS

I. Student Schedule Undated 1 page IHO

II. Pre-Hearing Conference Summary and Order 8/31/2022 9 pages IHO

III. Witness Subpoena – Education Administrator 11/22/2022 2 pages IHO

IV. Witness Subpoena – Psychologist 12/5/2022 2 pages IHO

V. Witness Subpoena – Provider 11/22/2022 2 pages IHO

VI. Witness Subpoena – CPSE Administrator 12/12/2022 2 pages IHO

VII. Document Subpoena 1 – NYC Department of Education 11/22/2022 7 pages IHO

VIII. Document Subpoena 2 – NYC Department of Education 11/23/2022 5 pages IHO

IX. DOE Subpoena Response Letter 12/1/2022 4 pages IHO

X. DOE Position on Relief 5/2/2023 1 page IHO

XI. Parent’s Statement of Proposed Relief 5/2/2023 5 pages IHO

PARENT

XII. Closing Brief 5/3/2023 31 pages IHO

XIII. DOE Closing Brief 5/3/2023 15 pages IHO

XIV. Request for Clarification: Parent’s Email re Covid Period APPENDIX 5/3/2023 2 pages IHO

Redacted Information Term Used In FOFD

[REDACTED] Student

[REDACTED] Parent

[REDACTED] Parent Attorney

[REDACTED] DOE Attorney

[REDACTED] DOE Attorney #2

[REDACTED] Service District

[REDACTED] CPSE Administrator

[REDACTED] Psychologist

[REDACTED] Occupational Therapist

[REDACTED] Teacher

[REDACTED] Doctor

[REDACTED] Speech-Language Pathologist

[REDACTED] Provider

[REDACTED] CPSE Administrator

[REDACTED] Private School

[REDACTED] Private School 2

NOTICE OF RIGHT TO APPEAL

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

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

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

Footnotes

[1] P-A. The DPC also requests that the DOE pay attorney’s fees. Only a court can determine who is entitled to attorney’s costs, fees, and expenses, and I would be exceeding my authority by determining that Parent Attorney is the prevailing party entitled thereto. Other than the relief set out in the Decision and Order below, I find that no basis and/or evidence in the record supports any additional relief.

[2] 20 U.S.C. § 1400 et seq.

[3] 34 C.F.R. § 300 et seq.

[4] Educ. Law Art. 89 § 4404 et seq.

[5] 8 NYCRR § Part 200.

[6] 34 C.F.R. § 104.36.

[7] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act- 504-delegation-Signed.pdf.

[2] was $8,410.00 dollars. Accordingly, Parent is entitled to reimbursement of tuition for the 2021- 2022 school year in the amount of $8,410.00 dollars. Parent testified that during the 2020-2021 and 2021-2022 school years, Parent was forced to incur the costs of private health insurance to obtain ABA services for Student. (P-FFF). As the record reflects, the DOE failed to provide Student with a FAPE for the 2020-2021 and 2021- 2022 school years and Parent attempted to address the harm by obtaining ABA services for Student. ABA services were appropriate to address Student’s deficits. Doctor testified that ABA therapy is the “gold standard of intervention or service modalities for children with autism.” (April 19, 2023 Trans., 77). For the 2020-2021 school year, Parent paid a total of $4,226.46 dollars for private health insurance, consisting of nine payments of $382.86 dollars and two 2020 IEP. Accordingly, I find that Student is entitled to 195 hours of compensatory SEIT services for mandated services not provided during the 2019-2020 school year and 253 hours of compensatory SEIT services for mandated services not provided during the 2020-2021 school year. Therefore, based on the calculations above, Student is entitled to 448 hours of compensatory SEIT services for mandated services not provided during the 2019-2020 and 2020- 2021 school years.

[8] See Application of a Student with a Disability, Appeal No. 22-031.