New York City Department of Education, Impartial Hearing Decision

NYSED # 559274 / NYC # 215277

FINDINGS OF FACT AND DECISION

Case Number: 215277

Student’s Name: [REDACTED]

(hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: [REDACTED]

(hereinafter referred to as “the Parents”)

Record Close Date: August 22, 2022

Decision Date: September 1, 2022

Hearing Officer: Lisa S. Rusk, Esq.

__________________________________________________________

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 8, 2022

For the Student:

[REDACTED], Attorney

[REDACTED], Parent

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 29, 2022

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 2, 2022

For the Student:

[REDACTED], Attorney

[REDACTED], Parent

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 23, 2022

For the Student:

[REDACTED], Attorney

[REDACTED], Parent

[REDACTED], Executive Director, [REDACTED]

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 27, 2022

For the Student:

[REDACTED], Attorney

[REDACTED], Parent

For the Department of Education:

[REDACTED], Attorney

[REDACTED], Unit Coordinator, [REDACTED]

[REDACTED], Special Education Teacher, [REDACTED]

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 18, 2022

For the Student:

[REDACTED], Attorney

[REDACTED], Parent

[REDACTED], Neuropsychologist

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 27, 2022

For the Student:

[REDACTED], Attorney

[REDACTED], Parent

[REDACTED], LBA Supervisor, [REDACTED]

For the Department of Education:

[REDACTED], Attorney

PROCEDURAL HISTORY

A due process complaint (DPC) dated September 2, 2021 was filed by the Parents on September 3, 2021, alleging a failure to provide the Student with a Free Appropriate Public Education (FAPE) for the 2019-20, 2020-21 and 2021-22 school years. The undersigned impartial hearing officer (IHO) was assigned on January 18, 2022. A prehearing conference was held on January 26, 2022.^[1] In the complaint, the Parents requested an interim order for independent evaluations including a neuropsychological evaluation, educational assessment by a board certified behavior analyst (BCBA) or a PhD or PsyD with experience treating/testing children with severe autism, a speech and language evaluation, an occupational therapy evaluation, a physical therapy evaluation, an assistive technology evaluation and a functional behavioral assessment and a behavior intervention plan.

In addition to the independent evaluations, the relief requested by the Parents in the DPC, generally stated, is:

• • A FAPE violation for 2019-20, 2020-21 and 2021-22.
• • A finding that the District subjected the Student to blanket policies and predetermination and discriminated against the student based upon her disability.
• • Immediate funding of same Applied Behavior Analysis (ABA) services received in Early Intervention (EI).
• • Placement in a 1:1 ABA school program, 35 hours of 1:1 ABA at a center-based program or 35 hours of push-in ABA services.
• • 20 hours 1:1 ABA services at home.
• • Parent training by a BCBA and BCBA supervision.
• • Assistive technology services and training for the parents.
• • 1:1 Speech-Language therapy (SLT) at frequency determined by evaluation.
• • 1:1 Occupational therapy (OT) at frequency determined by evaluation.
• • 1:1 Physical therapy (PT) at frequency determined by evaluation.
• • Assistive technology (AT).
• • 12 month school year.^[2]
• • 1:1 paraprofessional.
• • Special education transportation with ac and short bus run with paraprofessional.
• • Immediate providers upon DOE authorization of funding.
• • Compensatory education for the denial of FAPE and any deprivation of pendency, including 1:1 SEIT, 1:1 ABA, ABA supervision, AT, AT training, toileting, feeding, recreation, behavioral support services, OT, SLT, PT, parent training and any other services recommended as a result of IEEs.
• • Providers at “enhanced rates”.
• • A legally valid IEP including 1:1 ABA, home-based ABA services, parent training at home, speech language therapy, occupational therapy, 1:1 instruction, feeding and toileting services.
• • Funding for transportation to and from the above-mentioned programs/services.^[3]

A hearing on interim evaluations was held on February 8, 2022. By decision and order dated February 16, 2022, it was ordered that the District provide the Student with an immediate independent functional behavior assessment (FBA) and development of a behavior intervention plan, if necessary, and an assistive technology evaluation at public expense. Decision was reserved on the remainder of the requested evaluations.

A status conference was held on February 17, 2022, following the issuance of the interim order on evaluations. Additional hearing dates were held on March 29, 2022^[4], May 2, 2022, May 23, 2022, June 27, 2022, July 18, 2022 and July 27, 2022. Extensions of the timelines were requested by the parties and granted on February 17, 2022, March 29, 2022, May 23, 2022and July 27, 2022. District exhibits 1, 3-9 were entered into evidence. Parent exhibits A-J^[5], L, M were entered into evidence.^[6] The Parent testified along with three other witnesses. The District presented two rebuttal witnesses. Closing briefs were submitted by both parties on August 22, 2022.

DISTRICT’S POSITION The District did not call any witnesses or present any evidence to defend the 2019-20, 2020-21 and 2021-22 IEPs (T:262-263). The District stated that it intended to present a rebuttal witness or witnesses regarding the issue of compensatory education (T:106-107). The District presented 2 witnesses to rebut the need for an award of compensatory education. The District argues that in light of the progress made by the Student, no award should be made, despite the admitted denial of FAPE for all three school years in question^[7]. In addition, the District argues that the IHO lacks the authority to order the type of prospective relief requested by the Parents. The District also challenged the IEEs requested (T:34-35).

PARENTS’ POSITION The Parent presented her testimony as well as the testimony of the independent neuropsychologist and two representatives from the private ABA provider in support of the relief requested in the DPC. The Parents argue that the Student should have received 1:1 ABA instruction during the 2019-20, 2020-21 and 2021-22 school years as well as make-up SLT and OT services for those not received during the years in dispute^[8]. The Parents also argue that the Student is entitled to the independent evaluations requested but not yet awarded. In addition, the Parents seek a finding that the District discriminated against the Student based upon her disability.

FINDINGS OF FACT

The Student is a [REDACTED] year old girl classified with Autism (T:60). She attended kindergarten during the 2021-22 school year at a [REDACTED] school. She first qualified for early intervention (EI) services and was diagnosed with autism spectrum disorder (ASD) when she was two years old (T:47, Ex 1-1). She received ABA, OT and SLT through EI until she transitioned into preschool. She was evaluated in June and July of 2019. The evaluator was unable to administer the Bayley Scales of Infant and Toddler Development, 3rd Edition due to reported self-direction and lack of interest (Ex. F-1). Based upon clinical observation and parent and teacher reports, her cognitive abilities were estimated to be well below average. Her adaptive functioning was within the low range and her social-emotional and motor skills were in the moderately low range. Her scores on the Childhood Autism Rating Scale, Second Edition (CARS-2) indicated severe symptoms of ASD (Ex. F, Ex. 1 2-3). The parent felt the evaluation results were representative of the Student’s typical behavior and functioning at that time (Ex. F-10). A speech evaluation was conducted in July of 2019 placing her auditory comprehension in the 1st percentile and expressive communication in the 5th percentile (Ex. F-19). She was observed at her daycare to have trouble following directions, attending to tasks and transitioning appropriately between tasks (Ex. F-32).

The Committee on Preschool Special Education (CPSE) met on July 24, 2019 and recommended placement in a 6:1:2 class with SLT and OT services two time per week for 30 minutes individually for each. (Ex. 1-2, Ex. A). The Parent arranged for the Student’s CPSE placement at [REDACTED] ([REDACTED]) (T:430-31).

In March of 2020, [REDACTED] shut down during the pandemic along with the public schools in the District and State (T:124-126, 432-33). Given the Student’s limited attention span, she was unable to engage in or participate in virtual school for the scheduled 30 minutes per day of story time or related services. Speech got in three or four lessons of less than 2 minutes, but eventually they did not even schedule it anymore (T:433-434). OT tried one time and it did not work (T:434).

In August of 2020, the CPSE recommended a continuation of her CPSE program and services (Ex. B)^[9]. In the Fall of 2020, the Parent arranged for a psychological evaluation of the Student for services through the Office of People with Developmental Disabilities (OPWDD). The evaluator attempted to administer the Stanford-Binet Intelligence Scales, 5th edition (SB5), but the Student had difficulty in responding to test directives and no basal was reached, suggesting little to no comprehension of testing items and possibly lower cognitive levels than the SB5 could capture (Ex. 1 – 4)^[10].

The evaluator also attempted to administer the Primary Test of Nonverbal Intelligence (PTONI). The Student required substantial redirection, started crying and did not want to complete tasks. She failed to get any sample items correct and was not able to reach a basal score (Ex. 1 – 5).

The Parents completed the Vineland Adaptive Behavior Scales, Third Edition (Vineland-3). Her adaptive behavior composite, communication, daily living skills, socialization and motor skills all fell in the low range in the first or less than first percentile (Ex. 1-5-6). Her scores on the CARS-2 once again assessed her with severe symptoms of ASD (Ex. 1-7).

The OPWDD evaluator recommended a small, structured class, SLT, OT, ABA therapy, developmental pediatric or psychiatric evaluation, parent training and counseling, after-school/weekend program, community habilitation and Medicaid waiver (Ex. 1-10).

[REDACTED] started with a 2 day per week in school hybrid model in September of 2020 until March of 2021 (T:128). On virtual days, she received 30 minutes of story time and she did not get her therapies. The lack of structure caused her to regress even more (T:129-130).

The providers at [REDACTED] issued annual progress reports in January of 2021 (Ex. H).^[11] The special education teacher in her 6:1:2 classroom reported that she had difficulty maintaining attention and integrating herself into the class. She often cried or fell asleep during the school day but did show improvement in staying awake. She would become overwhelmed by stimuli but was able to engage and follow commands in one-to-one adult interactions (Ex. H-6).

Her teacher reported she had shown improvement in her cognitive abilities. She could complete simple puzzles by indicating the placement of pieces, look at storybooks for a few minutes, point to simple shapes, colors and numbers, follow simple one-step commands, point to some body parts and match by color and join in simple social games with adults and peers. She was unable to copy simple shapes, demonstrate 1:1 correspondence, point to numbers^[12] or answer simple “wh” questions (Ex. H-7).

She had shown some improvement in her communication skills. Her speech was very limited, and she communicated her needs with gestures, single words and pointing. Her vocabulary contained about 15 words (Ex. H-7).^[13]

Her motor skills had shown improvement, but as of January 2021, she was not yet able to use scissors, walk up and down stairs using alternating feet, stand on one foot, hop a few feet, throw and catch a large ball or pedal a tricycle. Her coordination and muscle strength were poor. She was able to run and jump and climb in playground equipment, albeit awkwardly and with some difficulty (Ex. H-7, see also PT and OT reports at Ex. H - 16-21).

Socially, her teacher reported she had difficulty engaging in most classroom activities and maintaining attention. She showed interest in social interactions but required maximum interventions from adults to stay focused. The Parents reported similar skills were demonstrated at home (Ex. H-8).

She was recently toilet-trained but required adult prompting. She pulled her pants up and down and washed her hands with minimal help. She drank from a cup and fed herself finger foods. She was learning to eat with a spoon. She was able to remove her outer clothing but required assistance with buttoning and zippering (Ex. H-8).

Her speech therapist reported that the Student presented with depressed pragmatic language skills and significantly delayed expressive and receptive language skills. Her speech production skills were significantly reduced. Her strengths demonstrated on assessment included identifying basic nouns by matching pictures in a limited field, emerging use of her picture exchange communication system (PECS) with support, increasing joint attention, use of gestures and developing play skills (Ex. H-13).

On March 9, 2021, a District evaluator observed the Student virtually in the classroom. She required one on one interactions with adults to remain focused. She did not display any verbal language, although it was reported she had a small vocabulary. She was more engaged when she was interested in the task (Ex. 5).

[REDACTED] testified that she began as the Student’s ABA supervisor through [REDACTED] (hereinafter referred to as “the Agency”) in February of 2021 (T:389). She supervises the therapists, conducts assessments, trains the Parents and sees the Student in her home for two to three hours per week (T:389-40). Services began at the end of March of 2021 after insurance approval was received (T:394). As of May 1, 2021, she was receiving 16.5 hours per week.^[14] The Agency reported that during the short time they were working with her, she demonstrated growth across several domains.

At the commencement of services, she was unable to sit at a table, play appropriately with toys or communicate her wants and needs in any formal way. She engaged in crying to communicate her needs and was rigid and would cry or scream when an adult tried to change the way she played with toys (T:390-92). The Agency collected data and assessed her using a formal assessment tool^[15] (T:392). They implemented a token economy with identified reinforcers and a visual schedule and addressed functional skills she would need for school – sitting, following simple directions (T:392-93). In May of 2021, the Student was using her PECS with assistance to communicate her wants and needs to her Parents, and her crying episodes at home decreased (Ex. J).^[16] She is now able to sit at a table for up to 2 hours and remain on task with breaks. She no longer elopes. (T:395-96). She mastered one-step directions and is now working on two step directions (T:395). She is now able to request things, engage in motor imitation, follow directions (T:409).

[REDACTED], the Executive Director and owner of the Agency confirmed the Student’s tremendous progress since the Student started working with the Agency (T:216-18). [REDACTED] opined that the Student requires 1:1 ABA to learn (T:409). They have worked on things like matching^[17] and play skills, but insurance prohibits them from working on academic skills (T:395-96). Although the ABA was covered by the Parents’ health insurance, they were responsible for copays and were billed $500 to $600 every three months (T:147).

[REDACTED] opined that the Student definitely has the capacity to learn with 1:1 ABA therapy/1:1 attention. She is bright and picks up things quickly. She is relatable and finds pleasure in social praise (T:408-09). [REDACTED] concurred that the Student requires 1:1 ABA therapy to learn (T:233). She recommended a private ABA school, or in the alternative 30 hours per week pushed into a public school program, 20 hours per week of a homebased program and three hours per week of supervision (T: 231). [REDACTED] testified that the Student’s preschool teacher [REDACTED] also recommended that the Student receive ABA (T:237). This was uncontroverted.

[REDACTED] emphasized that the school staff have reported in meetings that the skills mastered at home through 1:1 ABA have not yet emerged in the school setting. She attributes it to the school failing to appropriately promote her progress (T:222, 236).

The CSE met for the Turning 5 meeting in May of 2021. The Parents did not agree with the 6:1:1 recommendation and argued that she needed 1:1 ABA. The meeting was adjourned, and the District representative called the Parent and stated that he was going to do a home assessment (T:51).

On May 7, 2021, a District school psychologist conducted a virtual observation of the Student from her home. The Student was non-verbal, was unable to identify letters A-G, numbers 1-5 or colors by pointing and became irritated and ran off crying (Ex. D).

On May 20, 2021, the Student visited [REDACTED] a developmental pediatrician for a developmental behavioral follow-up. The doctor recommended a 1:1 setting for kindergarten since “she has had the most success with this type of setting to date with her 1:1 ABA therapy.” (Ex. L-1).

The CSE reconvened on May 28, 2021 to recommend the Student’s Turning 5 program. The CSE recommended a 6:1+1 classroom and 1-time group and 1-time individual therapies for 30 minutes each for OT, PT and SLT and a 1:1 paraprofessional on a 12-month basis (Ex. C). The Parents argued for 1:1 ABA, disagreed with the recommendation and raised concerns that she was more communicative and attentive at home than at school (T:150-52). The Parent testified that the meeting was ugly, and she was hung up on (T:51).

Pursuant to the February 16, 2022 order of this IHO, the District conducted an AT evaluation in March of 2022 (Ex. 8). As part of the evaluation, the Student engaged in trials of three programs. During the evaluation, the Student was able to label nouns and descriptors, use verbs to direct actions with support, use single words and build two-word phrases to make requests. The Student demonstrated communication behaviors that suggested she could use the device to help facilitate her ability to make requests, generate basic comments on activities, direct actions and answer “Wh” questions. The evaluator recommended a dynamic display speech generating device, case with kickstand, keyguard and LAMP Words for Life communication application. The Student began using the device in April of 2022.

In dates in April, May and June, 2022, neuropsychologist [REDACTED] conducted the FBA ordered on February 16, 2022. As part of the assessment, the Student was observed virtually at home and in-person in school. Interviews were conducted with her special education teacher, ABA provider and Parent. The target behaviors were refusal, crying and flopping. [REDACTED] observed zero occurrences of the target behaviors in either setting, and it was determined that no formal BIP was required at this time (Ex. M-8-9). She opined that the Student’s infrequent behaviors were the result of her limited means in communicating her basic thoughts, desires and preferences.

[REDACTED] testified that during her observations at the school, she did not observe much learning happening and that there were large chunks of the day when she was receiving no instruction and/or no intensive and systematic instruction which resulted in missed opportunities for skill acquisition (T:362-63)(see also Ex. M 9-10). [REDACTED] reviewed the recent Assessment of Basic Language and Learning Skills-Revised (ABLLS-R) testing of the District which demonstrated that the Student had very little early or pre-academic learner readiness skills (T:357). She recommended full time ABA instruction due to both her autism and the lack of instruction occurring in her then current school setting (T:363-364). She also recommended home based hours for skill carry-over (T:365). [REDACTED] opined that the Student required a comprehensive ABA program in order to meaningfully access her education (Ex. M-10). [REDACTED] fully agreed with her recommendations (T:412). [REDACTED] recommended placement in a school that offers full time ABA but did not recommend any specific school placement (T:367).

In addition to a full-time ABA program in school and at home, [REDACTED] recommended extended school year programming, adaptive skills training, SLT, an augmentative communication device, OT, behavior consultation and parent counseling and training (Ex. M-11-12). She recommended a neuropsychological evaluation in 18 to 24 months.

As part of its rebuttal case, the District introduced the April 8, 2022 IEP as an indicator of the Student’s current levels of functioning (Ex. 7). The District assessed the Student using the ABLLS-R in February and March of 2022. The results indicated an early level range. The IEP notes she has minimal tolerance for participating in a variety of teacher-directed activities and often requires gestural or physical prompting to effectively use language skills to express her wants and needs with her PECS (Ex. 7 1-2). In math and ELA she was functioning on a prekindergarten level.

[REDACTED], Unit Coordinator for [REDACTED] school testified on behalf of the District. She described the Student as an “early learner” (T:273). She described her presentation as on par with other 6:1:1 students entering kindergarten (T:277). She listed her progress the past year as: coming out of her shell a little bit, listening to directions, interacting and engaging more and interacting with her communication device (T:274-75). She testified that she is a happy child who loves school and took a bit of time to get used to the people and routines (T:277-278). On cross-examination, she reviewed the goals of the 2019-20 IEP and concurred that she still was unable to perform those tasks (T:288-90). She also testified that the Student was assessed in February and March of 2022 with the ABLLS and unable to master any of the skills. Mastery of the selected skills would indicate functioning at an entry kindergarten level (T:292-94). She testified that she believes the ABA is helping (T:279).

Special education teacher [REDACTED] testified that she began teaching the Student’s 6:1:1 class in October of 2021. She testified at that time the Student could not identify letters or numbers or write anything. She was nonverbal, not social and had difficulty attending or engaging (T:303). She testified that in her 11 years of teaching experience, the Student’s skill presentation was not atypical of kindergarten students on the spectrum (T:304). She also testified as to the progress made by the Student by June of 2022. She was speaking^[18], could identify all of her letters, identify her numbers, match pictures and objects and was learning to utilize her new augmentative communication device (T:305,329). Her attention span grew to 20 to 25 minutes during 1:1 instruction and 5 to 25 minutes in a group (T:328). She described her progress as satisfactory (T:306). She acknowledged that it was reported the Student was demonstrating more skills at home than at school, but the home ABA provider told her she was not surprised since it took the Student a while to warm up (T:322-23).

DECISION

The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). 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). In order 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. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988 (2017). The burden of proof is on the school district to demonstrate that it has offered the student a FAPE.

The Student has significant deficits and, there is no dispute that the she was not offered a FAPE for the 2019-20, 2020-21 and 2021-22 school years. The questions for this IHO is what, if anything, shall the remedy be.

INDEPENDENT EVALUATIONS

Pursuant to Section 200.5(g)(1)(iv) of the Commissioner’s Regulations:

“If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.” A parent is entitled to one IEE at public expense each time the school district conducts a comprehensive evaluation with which the parent disagrees (34 CFR 300.502[b][5]).

The District argued that the Parents did not indicate any disagreement with an evaluation of the District and that there was no need for any independent evaluation (T:34-35). The Parents argued that the Turning 5 evaluation failed to evaluate the Student in all areas of disability and was therefore insufficient (T:38-42). The Interim Order ordered an FBA and assistive technology evaluation. The remaining requested evaluations are:

a neuropsychological evaluation, educational assessment by a BCBA or a PhD or PsyD with experience treating/testing children with severe autism, a speech and language evaluation, an occupational therapy evaluation and a physical therapy evaluation.

It appears that the DPC was the first time that the Parents requested IEEs. It also appears that the District failed to respond to that request. Although vague, the DPC did raise objections to the adequacy of the District’s evaluations (Ex. E at ¶¶ 42[m], 64, 80[m] and [bb] and 103).

A District must ensure that a student is evaluated in all areas related to her disability and that such evaluation is sufficiently comprehensive to identify all of the student’s special education and related services needs (34 CFR 300.304[c][4] and [6]; 8 NYCRR 200.4[b][6][ix] and[x]). The District introduced the Turning 5 reports of [REDACTED]. The Speech-Language report contains a variety of tools, including, testing, observations and teacher and parent reports (Ex. 4 1-7), as does the Physical Therapy report (Ex. 4 14-16)^[19]. The education and occupational therapy reports contains a summary of her functioning, but no standardized testing was attempted (Ex. 4 8-13). With regard to the request for a neuropsychological evaluation, [REDACTED] opined that the Student should be evaluated by a neuropsychologist in 18 to 24 months (Ex. M-12).

In order to ensure that the CSE has sufficient current information to develop appropriate recommendations for the Student, I find that the Parents are entitled to an independent educational assessment by a BCBA or a PhD or PsyD with experience testing children with autism and an independent occupational therapy evaluation. Based upon the opinion of [REDACTED], I do not recommend a neuropsychological evaluation at this time.

COMPENSATORY EDUCATION

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]; (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]).  The purpose of an award of compensatory education is to “make up for” a denial of a FAPE and place the student in the position he or she would have been had the IDEA not been violated (see E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 & n.12 [2d Cir. 2014]; P. v. Newington Board of Educ., 546 F.3d 111,123 [2nd Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123).

The Parents argue they are entitled to compensatory education to make up for the denial of a FAPE during the 2019-20, 2020-21 and 2021-22 school years. The Parents request 4,140 hours of ABA services (46 weeks x 30 hours x 3 years) with no expiration date. [REDACTED], [REDACTED], [REDACTED] and [REDACTED] all opined that the Student requires 1:1 ABA services. District Unit Coordinator [REDACTED] testified that the ABA was helping. According to the uncontroverted testimony of [REDACTED], the Student’s preschool teacher also recommended that she receive ABA. The Parents are requesting 30 hours per week for 3 years as a compensatory award. The District both failed to offer a FAPE for three years, failed to provide any ABA for the 3 years at issue and failed to provide the Student with an academic program during the remote lessons of the pandemic.

The District acknowledges that it did not offer the Student a FAPE. It argues, however, that the Student progressed satisfactorily during this time period. Its own documentary evidence does not support that assertion. Prior to the initiation of the 1:1 ABA home therapy, and according to the January 2021 reports, the Student lacked the attention or engagement to participate effectively in an academic setting. Her crying and refusal/inability to attend or engage interfered with her learning. Her lack of an appropriate tool to communicate only exacerbated her frustrations. She was unable to benefit from any remote instruction during the pandemic. The CSE has not addressed this lack of instruction in any meaningful way. The Student’s scores on the ABLLS from February and March of 2022 described a child that had not mastered a single skill expected for a student entering kindergarten. The District argues that her performance and skill acquisition is commensurate with her cognitive abilities. However, it is not clear how much the lack instruction and lack of an effective communication device have hindered her ability to demonstrate what she knows or is able to achieve. For example, based upon the District’s records, in January of 2021, the Student had an oral vocabulary of 15 words. At the end of June 2022, it was four. This is regression, not meaningful educational progress.

It is my opinion that a flexible qualitative approach to a compensatory education award is more appropriate in this case, rather than a rote hour-by-hour compensation award given the Student’s needs and the unwieldy nature of providing 4,140 hours of 1:1 ABA in addition to her school day. Therefore, I find that the Student is entitled to a bank of 2070 hours, which takes into account her lack of instruction during virtual learning and hybrid learning from March 2020 through March 2021 and recognizes that she did make some academic progress with the combination of the 6:1:1 academic class and home ABA provided by the Parent’s insurance from March 2021 through June 2022. It is difficult to parse out and unlikely that only school and/or only home was responsible for her progress, especially given the fact that the home program admittedly did not work on academic skills. The bank of 2070 hours shall expire 3 years from the date of this decision.

Given the evidence of the progress made during the home ABA program, I find that the Parents are entitled to reimbursement of their insurance co-pays under a Burlington/Carter analysis. (see School Committee of Burlington v. Dept. of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).^[20]

The Parents also request a bank of SLT and OT services that she did not receive during the years in question but have not specified the number of hours missed. Given the Student’s inability to participate in virtual therapies during the virtual lessons of the pandemic from March 2020 through March 2021, I find the Student is entitled to a bank of 46 hours of SLT and 46 hours of OT (46 weeks x 2 x 30 minutes). The record does not provide records of missed services either before or after the pandemic. The record does reflect a lack of progress and regression in the Student’s speech skills and a lack of adequate progress in her OT skills. The banks shall expire three years from the date of this decision.

PROSPECTIVE RELIEF

Relief in the form of the prospective placement of a student in a particular type of program and placement such as a full-day ABA program with related services or ABA services pushed into a public school placement, such as the order sought by the Parents in this matter, have the effect, in most circumstances of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the 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 Dept. 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"]). Application of a Student with a Disability, SRO Appeal No. 21-207.

It is undisputed that I do not have jurisdiction over the 2022-23 school year IEP (T:261-62). Additional evaluations have been ordered and the District’s CSE has not yet convened to review the IEEs. The CSE shall be responsible to reconvene, review the IEEs and update the IEP for the Student for the 2022-23 school year, as necessary.

SECTION 504 DISCRIMINATION

The Parents assert that the District has discriminated against the Student based upon her disability. The Parents argue that the District violated Section 504 of the Rehabilitation Act by failing to identify, screen or evaluate the Student in all areas of disability and subjected her to illegal policies. The failure to evaluate is appropriately addressed above under the IDEA. With a regard to illegal policies, the record does not contain any evidence of illegal policies of the District. Certification of a class in a federal action and citation to deposition testimony from 2014 or 2015 does not serve as evidence or a determination of an illegal policy or policies in this matter. The Parents have failed to meet their burden that the District has either acted in “bad faith or with gross misjudgment.” (Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp2d 282 (SDNY 2010). I find that the record does not support a finding that the District discriminated against the Student based upon her disability.

ORDER

IT IS HEREBY ORDERED that the [REDACTED] is directed to provide the following compensatory services: two thousand seventy (2070) hours of 1:1 ABA; and it is further

ORDERED that the [REDACTED] is directed to provide the following compensatory services: forty-six (46) hours of speech language therapy; and it is further

ORDERED that the [REDACTED] is directed to provide the following compensatory services: forty-six (46) hours of occupational therapy; and it is further

ORDERED that the compensatory services shall expire three years from the date of this decision if the Student has not used them by such date; and it is further

ORDERED that the [REDACTED] shall reimburse the Parents for health insurance copays made for 1:1 ABA home services from March of 2021 through June 2022 within 30 days of receipt of proof of payment.

ORDERED that the [REDACTED] shall fund an independent educational assessment by a BCBA or a PhD or PsyD with experience testing children with autism and an occupational therapy evaluation.

Dated: September 1, 2022

_____________________

Lisa S. Rusk, Esq.

Impartial Hearing Officer

_______________________________________________________________________

NOTICE OF RIGHT TO APPEAL

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

DISTRICT

1 Comprehensive Psychological Evaluation, dated 11/6/20 10 pages

3 Social History Update, 3/03/21 2 pages

4 Turning 5 Reports, 1/11/20-1/12/21 16 pages

5 Classroom Observation, 3/9/21 2 pages

6 ABA Progress Report, 5/01/21 1 page

7 IEP, dated 4/08/22 37 pages

8 Assistive Technology Evaluation, dated 3/31/22 13 pages

9 Student Progress Report, 6/13/22 3 pages

PARENT

A 2019-20 IEP, dated 7/24/19 18 pages

B 2020-21 IEP, dated 8/18/20 27 pages

C 2021-22 IEP, dated 5/28/21 26 pages

D Observation, dated 5/7/21 1 page

E Impartial Hearing Request, dated 9/2/21 15 pages

F Preschool student evaluation summary report, 2019 35 pages

G [REDACTED] psychological exam, 10/26 and 11/06/22 10 pages

H [REDACTED] reports, 2021 23 pages

I [REDACTED] Individual Learning Plan, 2/25/21 7 pages

J [REDACTED] ABA Progress Note, 5/01/21 1 page

L Treatment Plan 2 pages

M Functional Behavioral Assessment, 4/4, 5/24 and 6/1/22 12 pages

Footnotes

[1] A pendency hearing was also scheduled for January 26, 2022. Parents’ counsel advised on January 24, 2022 that the Parents were no longer seeking a pendency hearing and that she would advise if anything changed.

[2] The parties are in agreement that the Student requires 12 month programming.

[3] See Ex. E at pps. 11-13.

[4] The District determined that it would not be presenting a case-in-chief for any of the three school years at issue (T:86).

[5] With consent of both parties, P-E was admitted into evidence via email on February 10, 2022.

[6] Both of the ordered evaluations were completed and submitted into evidence – Ex. 8 and Ex. M.

[7] DOE closing brief at pg. 8.

[8] Parents’ closing brief at pps. 13-14.

[9] Although PT is not listed on the August 2020 IEP, the Birch progress reports indicate she was receiving PT 2 times per week (Ex. B and Ex. H-16).

[10] The [REDACTED] evaluation is also in the record as Ex. G.

[11] The record also contains quarterly progress reports from March of 2021.

[12] Seemingly contradicting the earlier statement in the paragraph that she could point to numbers.

[13] The Parent testified in February of 2022, that the Student’s language skills had regressed and she was saying only 3 or 4 words (T:60).

[14] [REDACTED] testified in July of 2022 that she was currently receiving 21 hours per week (T:394).

[15] Verbal Behavioral Milestone Assessment (VB-MAPP)(T:393).

[16] Ex. J is also in evidence as Ex. 6.

[17] The Student was able to match in large fields at home, but was not exhibiting that skill at school (T:406).

[18] She testified that the Student could say hi, bye, the teacher’s name and said bathroom once the last week of school.

[19] The Parents failed to raise any specific objections to these reports which used a variety of assessment tools and strategies to gather relevant evaluative information.

[20] The District did not introduce any equitable factors that would weigh against an award of reimbursement of copays.