NY IHO #219829: New York City... | Special Education Law

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

NYSED # 564229 / NYC # 219829

FINDINGS OF FACT AND DECISION

Case Number: 219829 (incorporating #220562)

Student’s Name: REDACTED

School District: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: Harry A. Christodoulou

Date of Filing: 10/18/2021 (10/28/2021)

Hearing Requested by: Parent(s)/Guardian(s)

Date of Hearing: 11/30/2021; 05/03/2022; 05/04/2022; & 07/07/2022

Record Close Date: 07/27/2022

Date of Decision: 07/30/2022

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 30, 2021:

For the Student:

REDACTED

For the Department of Education (“DOE”):

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 03, 2022:

For the Student:

REDACTED (hereinafter referred to as “Parents’ representative”)

For the DOE:

REDACTED (hereinafter referred to as “District’s representative”)

Other:

REDACTED (Observer)

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 04, 2022:

For the Student:

Parents’ representative

REDACTED (hereinafter referred to as “Parents’ Witness”)

For the DOE:

District’s representative

Other:

REDACTED (Observer)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 07, 2022:

For the Student:

Parents’ representative

REDACTED (Observer)

For the DOE:

District’s representative

BACKGROUND AND PROCEDURAL HISTORY

Student is a REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute.

A due process complaint (“DPC”) was filed for the DOE on October 18th, 2021, under case number 219829 regarding the Parents’ request for Independent Educational Evaluations (“IEEs”) (“DPC 1”) (Exhibit IHO-I) relating to the Student. A second DPC was filed by the Parents’ representative(s) on behalf of the Parents on October 28th, 2021^[1] under case number 220562 regarding the same Student and includes, inter alia, a request for interim IEEs (“DPC 2”) (Exhibit P-A).

I was appointed to preside over this case on November 2nd, 2021, in both matters to conduct an impartial hearing(s) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC 1 and DPC 2, concerning the special education program of the Student.

On November 15th, 2021, an Order on Consolidation was granted consolidating DPC 2 under case number 220562 with DPC 1 under case number 219829 and ordering that the consolidated DPCs will move forward under case number 219829 (Exhibit IHO-II). On November 30th, 2021, a limited hearing was held in the consolidated case to address the relief in DPC 1 and DPC 2 as it relates to the IEEs. Written closing briefs were submitted by the parties (Exhibits IHO-III, & -IV). Partial relief was ordered as interim relief for certain of the requested IEEs and the outstanding IEEs were held over for determination together the final relief sought by Parents (Exhibits IHO-V, -VII, -VIII, & -IX). Additional background and procedural history are on record in these interim orders and is therefore not repeated in this decision.

JURISDICTION

A decision in this matter is being rendered, pursuant to the IDEA^[2], and its implementing regulations^[3], and the New York State Education Law^[4], and its implementing regulations^[5].

PARTIES’ POSITIONS AND CASES PRESENTED

DOE:

At the impartial hearing (“IH”) held on May 03, 2022, District’s representative confirmed that the DOE was not putting on a case in the sense that it would not be calling witnesses, but that it intended to submit documentation for admission and ‘rest’ on the documents. The District also waived its opening statement (T. P41, L2-6).

The DOE, through District’s representative, submitted nineteen documents in support of the DOE’s case. Four were duplicates and were withdrawn. The remaining proposed exhibits were admitted into evidence after confirming with Parents’ representative that there were no objections to thirteen of the documents being admitted into evidence, and two were admitted notwithstanding Parents’ representative’s objections, which were noted on record to Exhibits DOE-1 and DOE-12^[6] (T. P42, L19-22; P54, L25; P55-59; P75; P76, L1-22).

Once District’s documents^[7] were admitted into evidence, the DOE rested its case (T. P60, L4-7).

In a closing statement at the IH, District representative addressed some of the Parents’ requested relief, noting that the DOE had not presented any witness testimony (T. P116, L25; P117; P118, L1-20).

Parents:

Parents, through the Parents’ representative, submitted documents in support of the Parents’ case.

Some of the proposed exhibits were admitted into evidence after confirming with District’s representative that there were no objections from the DOE to those documents being admitted into evidence (T. P42, L1-5; P45, L7-17; P69, L22-25; P70, 1-4; P84, L24-5; P85, L1-8; P112, L10-18). Certain affidavits were initially held back in accordance with my policy pertaining to affidavit testimony, but later admitted to the record. A list of the documents admitted into evidence is provided at the end before the Appendix.

Parents’ representative presented the testimony of four witnesses^[8] by way of affidavit (Exhibits P-PP, -ZZ, -AAA, -BBB, & -FFF). The deponents to the affidavits (defined on page 40) were not required for cross-examination and/or clarifying questions and were excused from appearing at the IH, save for Parents’ Witness (defined on page 40).

In an opening statement at the IH, Parents’ representative, inter alia: Asserted that the DOE failed, both substantively and procedurally in several ways to offer the Student a FAPE for three school years (“SYs”), also connecting the asserted failures to past events; summarized the Parents’ witnesses’ findings and recommendations; and indicated the relief sought (T. P60, L15-25; P61-9).

The final relief was reiterated in Parents’ representative’s closing statement (T. P113, L7-25; P114-5; P116, L1-21).

PREVAILING PARTY

Parents are the prevailing party, and an award is granted in their favor.

LEGAL FRAMEWORK

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the Individualized Education Program (“IEP”) developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits^[9].

If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits^[10].

The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE^[11].

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"^[12].

School districts are not required to "maximize" the potential of students with disabilities^[13], but must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'"^[14]. The IEP must be "reasonably calculated to provide some 'meaningful' benefit"^[15].

To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP^[16]. Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material"^[17].

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA 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 burden of production on the appropriateness of such placement^[18].

Since this case does not involve a unilateral placement or tuition reimbursement claim, the DOE has the burden of proof on all issues.

FINDINGS OF FACT AND DECISION

Parents filed, through their representatives, a comprehensive DPC that: described the Student’s educational history, need, and abilities (Exhibit P-A-3, through P-A-12); the ways in which the DOE failed to meet its obligations to provide the Student with a FAPE (Exhibit P-A-12, through P-A-18); and Parents’ proposal on how to remedy such failure (Exhibit P-A-18, through P-A-20). Parents’ set out seven bases, both procedural and substantive in nature, in terms of which Parents assert that the DOE denied the Student a FAPE during the SYs in issue.

Although not the Parents’ obligation in the first place, the Parents have made out a compelling case that the DOE denied the Student a FAPE for the 2019-2020, 2020-2021, and 2021-2022 SYs.

Parents’ Witness (defined on page 2) unsigned affidavit & live testimony (Exhibit P-BBB)

Parents’ Witness set out in her unsigned affidavit (Exhibit P-BBB) her credentials, qualifications, experience^[19], and the approach and methodologies used by Service Provider 3 (defined on page 40) (paras. 2-14), detailed her familiarity with the Student, the documents reviewed, and referenced the assessments or tests administered to assess the Student (paras. 15-17, & 20); detailed what the evaluation results showed and which grade levels the Student tested at for decoding, spelling, and mathematics (para. 19). She also covered what she found, and her recommendations (paras. 22-23).

Parents’ Witness was required to attend the IH so that she could attest (swear and affirm) to the contents of her unsigned affidavit after being placed under oath (T. P85, L14-19; P86, 21-25; P87; P88, L1-17). She was also cross-examined by District’s representative (T. P89, L7-25; P90. Parents’ Witness provided testimony (Exhibit P-BBB, par. 6) to the effect that:

Student’s skills were found extremely low in the areas of communication, community use, functional academics, home living, health and safety, leisure, self-care, self-direction and social, and that her weakest areas included functional academics, self-direction, communication, community use, health and safety and leisure.

The assessment identified factors impeding Student’s learning, which included inter alia: “behavior problems, instructional control, impaired mand, impaired tact, impaired imitation, impaired echoic, impaired VP-MTS, impaired listening, impaired intraverbal, impaired social skills, prompt dependence, scrolling, impaired scanning, impaired conditional discrimination, failure to generalize, weak motivators, response requirement weakening motivating operation (motivation), reinforcer dependent, self-stimulation, impaired articulation, obsessive-compulsive behavior, hyperactive behavior, failure to make eye contact, and sensory defensiveness”.

Student’s “scores were elevated in the areas of impaired imitation, impaired visual-spatial perception, impaired listener skills, prompt dependence, scrolling, impaired conditional discrimination, failure to generalize, response requirement weakens the MO, reinforcer dependent, self-stimulation, and hyperactive behavior”.

Student has a difficult time learning from others by observing what they do and repeating it, which means she will require targeted teaching of skills most other children will learn naturally from their caregivers.

Student requires prompting to complete actions demanded of her and prompting fading will also have to be an integral part of her teaching to increase her independence with skills. Student also engages in high levels of self-stimulatory behaviors (motor movements and non-contextual vocalizations), which will impede her learning and rate of acquisition.

Affiant 1’s (defined on page 40) affidavit testimony (Exhibit P-PP)

Affiant 1 set out in her affidavit (Exhibit P-PP) her credentials, qualifications, experience^[20] (paras. 1 & 2), detailed her familiarity with the Student, the documents reviewed, and referenced the assessments or tests administered to assess the Student (paras. 3-5); detailed what the evaluation results showed (para. 6); and information gathered from interviewing the Student’s teachers at her Attending School (defined on page 40). She also covered what future testing should be conducted, and her recommendations (paras. 8-10).

Affiant 1 was not cross-examined by District’s representative. Affiant 1 provided affidavit testimony (Exhibit P-PP, par. 21) to the effect that: Student is in critical need of one-on-one tutoring in reading and spelling, particularly using the Orton Gillingham method. It also important that she receive structured, multi-sensory instruction to build her written language, mathematics, and reading comprehension skills.

Affiant 2’s (defined on page 40) affidavit testimony (Exhibit P-ZZ)

Both a speech-language (“S/L”) evaluation and an assistive technology (“AT”) evaluation was ordered as an interim IEE, which were both conducted by Affiant 2 of Service Provider 1 on February 25, 2022 (Exhibits P-HH, & P-II). The OT evaluation sets out inter alia: the documentation reviewed by the evaluator; the formal and informal assessments administered; the evaluator’s home observations; assessment of the Student’s present physical condition, abilities, and limitations; testing results; and the evaluator’s recommendations (Exhibit P-EEE).

Affiant 2 set out in her first affidavit (Exhibit P-ZZ) her credentials, qualifications, experience (paras. 1-7), referenced her resume (Exhibit P-WW); detailed her familiarity with the Student, and referenced the “assessments, tools and evidence” she relied upon while conducting the evaluations of the Student, referring to her reports (par. 9); detailed what the evaluation results showed and the severe delays exhibited by the Student (paras. 10 & 11); and information reported by the Student’s teacher (paras. 12, & 15). She also covered in detail the assessments and tests she conducted of the Student, the results thereof, what she found (paras. 13 through 21; and 29), and her recommendations (paras. 22 through 30).

Affiant 2 was not cross-examined by District’s representative. Affiant 2 provided affidavit testimony (Exhibit P-ZZ, paras. 10-15, 18-21) to the effect that:

Student exhibits significant global delays in all areas and is functioning significantly below age and grade expectancy, which delays are having, and will continue to have, a negative impact on her ability to access and understand the school curriculum.

The S/L evaluation results showed that the Student presents with severe delays in receptive language skills, expressive language skills, pragmatic skills, phonemic awareness, and literacy skills, and that she exhibited severe delays across all areas assessed.

Student’s Teacher (defined on page 40) reported that the Student is reading at a first-grade level and needs one-on-one support to discuss what she has read, that since the Student is in the fourth grade, this is concerning because it demonstrates that she has not been provided appropriate support and is significantly delayed in her reading skills.

Student’s deficits impact: her comprehension and communication skills, which includes difficulty understanding and following directions in the classroom as well as difficulties with reading comprehension, learning new vocabulary words, and forming meaningful sentences; her ability to functionally communicate with others, as she does not have the vocabulary or language to communicate effectively; and her ability to follow along in a conversation and access grade-level curriculum.

Student is functioning with the vocabulary skills of approximately a four-year old, six years below where she should be. This is a severe need, that has not been addressed or remediated appropriately because she has not been provided with appropriate S/L mandates or other support services (e.g., AT devices, multisensory reading instruction, etc.) to assist her with communication and access to the curriculum.

Student presents with significant articulation issues that have not been addressed appropriately. These issues should and could have been resolved with appropriate S/L intervention services in the past, but Student still has not achieved mastery in these areas. Student’s IEP goals do not address or appropriately address these issues, for example the October 9, 2020, and June 21, 2021, IEPs do not include any goals to address her significant articulation issues.

Student’s pragmatic skills, which also revealed significant delays, have not been appropriately addressed in therapy as evidenced by carry over of the same goal (e.g., S/L 1/2: Student will maintain topic of conversation across 5-6 turns with staff and peers by initiating communication, responding appropriately, asking questions, and commenting with 80% accuracy independently during structured and unstructured activities) from her October 09, 2020, IEP to her June 21, 2021, IEP. If not addressed, this will lead to social and emotional issues.

According to the S/L evaluation from June 21, 2021 (Exhibit P-P), Student exhibited more skills than she currently presents with, such as producing 4-5 word utterances, communicating a variety of early and later developing communicative functions, age-appropriate articulation skills that do not impact her intelligibility, participates appropriately during social activities, independently makes 3-4 conversational exchanges, comprehends most simple and complex sentence forms, answers a variety of questions, recalls information about story and grammar elements of characters/settings/emotions independently, produces complex sentences (verbally), and narrates. The Student however struggled significantly with all of these tasks during the evaluation that she conducted, indicating potential regression in skills since June 2021.

While Student received S/L therapy, the mandate was insufficient for her to make meaningful progress and she did not receive any specialized literacy instruction in the past, which likely hindered her ability to acquire both language and literacy skills.

Based on her assessment, an AT device was not recommended for the Student, given the Student’s age and her current levels of functioning, and expected progress with an appropriate program. The introduction of an AT device at this time could hinder the Student’s communication, reading, and writing skills.

Affiant 3’s (defined on page 40) affidavit testimony (Exhibit P-AAA & P-FFF)

Affiant 3 set out in her first affidavit (Exhibit P-AAA) her credentials, qualifications, experience (paras. 1-8), referenced her resume (Exhibit P-YY); her records review (paras. 9 & 10) and provided reasons (paras. 12 to 17) to support her clinical opinion and recommendation that an OT evaluation was warranted and required (paras. 11 & 18).

An OT evaluation was subsequently ordered as an interim IEE, which was then conducted by Affiant 3 of Service Provider 1 on June 06, 2022. The OT evaluation sets out inter alia: the documentation reviewed by the evaluator; the formal and informal assessments administered; the evaluator’s home observations; assessment of the Student’s present physical condition, abilities, and limitations; testing results; and the evaluator’s recommendations (Exhibit P-EEE).

Affiant 3 set out in her second affidavit (Exhibit P-FFF) her credentials, qualifications, and experience once again (par. 1-5); detailed her familiarity with the Student, including her observations of the Student (par. 6 & 8); detailed information reported by the Student’s ABA Therapist (defined on page 40) (par. 9); and information reported by the Student’s teachers (par. 10). She also covered in detail the assessments and tests she conducted of the Student, the results thereof, what she found (paras. 11 through 19; and 21), and her recommendations (paras. 22 through 25).

Affiant 3 was not cross-examined by District’s representative. Affiant 3 provided affidavit testimony (Exhibit P-FFF, paras. 20, 21 & 24) to the effect that:

Based on her evaluation and a review of the Student’s educational records, including Student’s IEPs dated 6/21/21, 1/30/17, 11/15/18, 10/22/19, and 10/09/20, the Student did not receive “consistent or adequate occupational therapy (“OT”) services since the 2018-2019 school year”, including when the DOE discharged the Student in October 2020 without a re-evaluation, when she still needed services.

This significantly impacted her ability to improve strength, fine motor control, write efficiently, manipulate materials efficiently, and be independent in her self-help skills and community/home skills.

The recommendation of OT once a week in a group of two for the 2019-2020 SY was not appropriate, that the recommendation was not sufficient for the Student, who presented with significant deficits in all areas.

The only goal the DOE recommended for Student was one vague goal for her to “demonstrate improved graphomotor skills by demonstrating improved line orientation, letter formation and spacing when copying and writing 3-4 sentences using lined paper with no more than 2 verbal or gestural cues”, such goal being vague. Three years later the Student still presents with these same issues.

There were no goals for the Student’s daily living skill deficits, visual motor deficits, or attention deficits, which was inappropriate.

While the Student demonstrated challenges in many functional areas for the last three years, with the proper clinical program and appropriate support, accommodations, and modifications to her academic program, the Student would make progress and gain confidence in her skills.

The Student’s clinical program did not adequately address her needs and she was discharged from OT services while concerns were still present, and no re-evaluation took place at the time of discharge. This left the Student “at a loss for gaining the skills needed, especially within the areas of motor coordination and fine motor control, strengthening, executive functioning, visual motor skills, and self-help”.

I find that Parents’ Witness, Affiant 1, Affiant 2, and Affiant 3 are suitably experienced and qualified to express the findings and recommendations that they expressed (Exhibits P-PP, P-VV, -WW, -XX, -YY, -ZZ, -AAA, -BBB, & -FFF).

Parents’ witnesses’ (Parents’ Witness, Affiant 1, Affiant 2, and Affiant 3) testimony supports Parents’ assertions that the DOE failed to: recommend appropriate related services (Exhibit P-A-13); comprehensively evaluate the Student (Exhibit P-A-14); and failed to develop attainable, meaningful, and measurable goals to address all areas of Student’s needs Exhibit P-A-18), and the DOE has failed to discharge its burden to prove otherwise. These failures cumulatively have caused a deprivation of educational benefits for the Student and the DOE has not met its burden in this regard.

The District did not offer or provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"^[21] (my emphasis). I am also unable to find that the Student was adequately assessed in the earlier SYs, as the evaluations that have been entered into evidence are not supported by any witness testimony that attempts to addresses the assertions of Parents’ Witness, Affiant 1, Affiant 2, and/or Affiant 3.

The record supports Parents’ representative’s assertions that: the Student’s IEPs indicate “trivial progress, at best, in four school years”; the DOE “not only continued to recommend a less restrictive placement going from an 8:1:1 class size to a larger 12 to 1 to 1 class size beginning in the 19/20 school year” (T. P60, L24-25; P65, L1-9).

Parents initially sought in DPC-2 an order that the DOE recommend an appropriate placement, including an educational environment that can provide structure, individualized support, and a peer-reviewed research-based method for students with Autism, and can appropriately address all of Student’s educational needs (Exhibit P-A-19). This relief has not been pursued as the Student has been placed at the Attending School (T. 68, L4-5; Exhibit P-JJ-25).

Parents’ representative’s asserts that despite referring the Student in November 2021, she was only placed at the Attending School during April 2022 (T. P60, L16-18), which falls within the 2021-2022 school year. For almost three SYs, the Student was placed in an inappropriate school setting, where she was not receiving sufficient support services to permit the child to benefit educationally from that instruction.

While the DOE provided documents that, on the face of those documents, lend support for the assertion that the DOE was complying with its obligations under the IDEA – which has been factored in when determining the appropriate remedy – the burden is on the DOE. If, on a balance of probabilities (even if it were 50-50), the fact finder is unable to find that the student was provided with a FAPE, the parents would be the prevailing party by virtue of the DOE failing to meet its burden.

Given the testimony of Parents’ Witness, Affiant 1, Affiant 2, and Affiant 3, I am unable to find based upon the DOE documents alone, without any testimony from the DOE’s evaluators and/or the CSE team members that recommended the programs encapsulated in the Student’s various IEPs, that the assessments conducted were appropriate and sufficient or complete, or that the program and services recommended were adequate to provide the Student with a FAPE.

Given the evaluations and direct testimony of the Parents’ Witness, Affiant 1, Affiant 2, and Affiant 3, all of which the DOE had advance notice of before the various hearing dates^[22], the findings and conclusions of those witnesses demanded an affirmative response from the DOE.

Not only did the DOE elect not to call witnesses in support of its case to defend its evaluation(s) pursuant to DPC-1 under case number 219829, the DOE also chose not to call any witnesses to gainsay the evidence of Parents’ witnesses supporting the Parents’ relief sought in DPC-2 under case number 220562 and elected not to cross-examine those witnesses to challenge the veracity of their testimony, save for some limited cross-examination of Parents’ Witness.

I find that the DOE has not discharged its burden in these proceedings to prove that the Student was provided with a FAPE for the 2019-2020, 2020-2021, and 2021-2022 SYs and the Parents are entitled to relief.

APPROPRIATE REMEDIES

Compensatory Services:

Parents are seeking compensatory education or compensatory services for the DOE’s failure to provide the Student with a FAPE. A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE^[23].

An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position the student would have been in had the district complied with its obligations under the IDEA^[24].

A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).

Given the duration of the deprivation and the testimony on record, this case lends itself more appropriately towards the qualitative approach, but also not wholly unconnected to the period of the deprivation (i.e., the quantitative approach). Each domain however has been assessed according to its own merits, given that the Parents’ witnesses have not used the same approach when determining recommended compensatory hours.

A District must provide extended school year (“ESY”) programming services when a student's IEP team determines on an individual basis that the services are necessary for the provision of FAPE to the child^[25]. The term ESY services means special education and related services that: are provided to a child with a disability i) beyond the normal school year of the public agency; ii) in accordance with the child's IEP; iii) at no cost to the parents of the child; and iv) meet the standards of the state educational agency^[26].

Based on the IEP teams’ findings and recommendations in the IEPs prepared for the Student for all SYs at issue, services for the ESY were found necessary and recommended. There is no reason, based on the record before me, to disturb such findings and recommendations and accordingly my computation of the awarded compensatory hours is based on the provision of a FAPE for the ESY.

Parents’ representative took a position and made clear the compensatory hours that the Parents asserts the Student should be awarded with respect to the type and scope of compensatory education that would be appropriate, in the event that a FAPE deprivation were to be found. Parents’ witnesses detailed, as part of their recommendations, compensatory related services as follows: 600 hours of compensatory Tutoring; 414 hours of compensatory S/L therapy services; 207 hours of compensatory OT; 1,840 hours of compensatory ABA services; and 276 hours of compensatory parent counseling and training (“PCAT”). Parents preferred or proposed providers and their rates are specified, save in relation to the requested ABA services, where market rate is referenced.

Although no witnesses were called by the DOE to substantiate the number of compensatory hours that would be appropriate in the event that a FAPE deprivation being found, District’s representative challenged the veracity of the Parents’ position through very limited cross-examination of Parents’ Witness and raised some legal argument.

I address each related service separately, relative to the relief for compensatory services sought, before turning to equitable considerations.

Compensatory hours sought - Tutoring

Affiant 1 recommended in her affidavit that the Student receive “receive an average of 6-8 hours per week of one-on-one instruction over a two year school time period, for a total of 600 hours. This one-on-one multi-sensory tutoring would use the Orton Gillingham methodology to develop her decoding and spelling skills, as well as similar multi-sensory tools to build her reading comprehension, mathematics, and writing skills.” (Exhibit P-PP; par. 22).

Affiant 1 has not expressly indicated whether she used a quantitative, qualitative, or hybrid approach in arriving at the recommended hours. Affiant 1 states in her affidavit that she is “confident that this type of instruction will help [Student]‎ tremendously”. This recommendation is neither based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation), nor based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits), whilst it can be said, having regard to the contents of Affiant 1’s affidavit, to be focused on the Student’s needs.

Such factor, together with other equitable considerations (which I address below), necessitates an adjustment to the final award of compensatory hours being granted.

Compensatory hours sought – S/L Therapy

Affiant 2 recommended in her affidavit that the Student receive an average 414 compensatory S/L therapy services, “with approximately 3 hours per week for 46 weeks, for approximately 3 years. … This recommended amount was derived from a qualitative clinical approach, considering [Student’s] current needs and the time she will need to catch up to make her whole” (Exhibit P-ZZ; par. 27). It is noted that Parents’ Witness supports the recommended hours (Exhibit P-BBB-5).

Affiant 2’s use of an invariable approach for all three SYs fails to take into account the Student’s deficits in each year, linked to the Student’s present levels of performance (“PLOPs”) at the time (noting that Affiant 2 never had an opportunity to evaluate the Student until much later (i.e., +3 years after the start of the 2019-2020 SY, +2 years after the start of the 2020-2021 SY, etc.), also omitting to manifestly factor in what the DOE did provide per SY for the Student.

For example, it seems improbable that according to Affiant 2’s computation of compensatory services for S/L, which is stated to rely upon only a qualitative approach, that the required make-up services for the 2019-2020 SY would be 138-hours, where the Student had 2 x 30 mins. individual service, plus 2 x 30 mins., group of 3 (later increasing group service to 3 x 30 mins. group service; later reducing individual service to 1 x 30 mins. and group service back to 2 x 30 mins.), mandated on her IEPs (Exhibits P-E-20; P-F-21; P-G-16; P-H-17^[27]), and the required make-up services for the subsequent SY (2020-2021) would be identical (i.e., also 138 hours), where S/L was only mandated on the Student’s IEP as individual service to 1 x 30 mins. and group service 2 x 30 mins. (Exhibits P-I-15; P-J-15; P-K-12), AND the required make-up services for the subsequent SY (2021-2022) would still be identical to the two previous SYs (i.e., also 138 hours), where S/L was mandated on the Student’s IEP as individual service to 1 x 30 mins. and group service 2 x 30 mins., and later individual service was increased to 4 x 30 mins., with group service reducing to 1 x 30 mins. (Exhibits P-J-15; P-K-12; P-JJ-25).

Such factor, together with other equitable considerations (which I address below), necessitates an adjustment to the final award of compensatory hours being granted.

Compensatory hours sought - OT

Affiant 3 recommended in her affidavit that the Student receive 207 compensatory OT service hours, “which is approximately 1.5 hours per week for 3 years at 46 weeks per year, based on a qualitative and quantitative approach. This is what she should have been receiving for the past three years” (Exhibit P-FFF; par. 24).

Affiant 3’s use of an invariable approach for all three SYs fails to take into account the Student’s deficits in each year, linked to the Student’s PLOPs at the time (noting that Affiant 3 never had an opportunity to evaluate the Student until much later (i.e., +3 years after the start of the 2019-2020 SY, +2 years after the start of the 2020-2021 SY, etc.), also omitting to manifestly factor in what the DOE did provide per SY for the Student.

For example, it seems improbable that according to Affiant 3’s computation of compensatory services for OT, which is stated to rely upon both a qualitative and qualitative approach, that the required make-up services for the 2019-2020 SY would be 69-hours, where the Student had 1 x 30 mins. individual service, plus 1 x 30 mins., group of 2 (later only including the group service), mandated on her IEPs (Exhibits P-E-19; P-F-21; P-G-15; P-H-16), and the required make-up services for the two subsequent SYs would be identical (i.e., also 69 hours for each SY), where there was no OT mandated on the Student’s IEP at all, group or individual (Exhibits P-I-15; P-J-15; P-K-12; P-JJ-25).

Such factor, together with other equitable considerations (which I address below), necessitates an adjustment to the final award of compensatory hours being granted.

Compensatory hours sought – 1:1 ABA services

Parents’ Witness recommended in her unsigned affidavit that the Student receive 1,840 hours of compensatory 1:1 ABA hours, “to provide an appropriate remedy for failing to provide FAPE, [Student] should be provided with compensatory 20h per week of 1:1 ABA for the total of 46 weeks per each year (92 weeks total for the two-year period)” (my emphasis) (Exhibit P-BBB-4).

A similar criticism regarding the use of an invariable approach adopted by the Affiants can be made here. In addition, Parents’ Witness’s recommendation compounds the services that are asserted to be necessary or required.

Parents’ Witness asserts that it is “recommended that [Student] receive 10 hours of home-based ABA to further aid the carry-over of all skills from the school to the home setting and to promote generalization of all skills targeted. It is important for there to be continuity in [Student’s] programming for optimal results to be achieved. It is recommended that the 10 hours of home-based ABA should continue in upcoming years to ensure that all skills targeted at school are being generalized to the home setting and are more likely to be part of [Student’s] overall skill repertoire.”

Besides there being no obligation on the DOE to ensure that “optimal results to be achieved”, the home-based services are recommended for the express purpose of ensuring that “all skills targeted at school are being generalized to the home setting”. Parents’ Witness however arrived at the number of compensatory hours needed (1,840 hours) for the express purpose “to address the lack of ABA that would have been instrumental to [Student] in developing and maintaining pivotal learning skills in prior years. [Student] also exhibits difficulties in generalizing new skills to new environments and individuals whereas if she had these services before, this skill could have been targeted” (my emphasis).

Accordingly, by including in her calculation the compensatory hours that are needed that were not previously provided to target the skills needed to generalize new skills to new environments and individuals (because they were not previously provided), the compensatory award of 1:1 ABA hours will be addressing the DOE’s failure to address those skills without the further need for the proposed 10 hours of home-based ABA to be awarded, for that very same purpose.

Such factors, together with other equitable considerations (which I address below), necessitates an adjustment to the final award of compensatory hours being granted.

Compensatory hours sought – PCAT

Parents’ Witness recommended in her unsigned affidavit that the Student “should be entitled to a bank of compensatory hours to enable her to reach the positions she would have been in had the DOE provided appropriate services. Two hours of parent training per week across 46 weeks in three years is a total of 276 hours of Parent Training” and asserts that “Parent training should emphasize skills development and support so that caregivers become competent in implementing treatment protocols across critical environments” (my emphases) (Exhibit P-BBB-4).

Parents’ claim for PCAT is being denied.

Parents’ Witness links the basis for providing a bank of compensatory PCAT services for the Parents/caregiver(s) to the DOE’s failure to provide appropriate services to the Student, failing to reach her “positions”. The Student is being awarded compensatory services for such failures by the DOE.

Additionally, there is no testimony from Parents on record that they tried to access or make themselves available for the mandated PCAT services that the DOE consistently provided for them on the Student’s IEPs year after year, or that they were unable to receive them. Even in Parents’ DPC-2, it is asserted that the “Parents report that, to date, they do^[28] believe that they have ever received PCAT related to Student”. Significantly, there is no testimony on record at all related to this assertion.

There is no mention of this being raised as a “parent concern” in any of the Student’s IEPs, even as far back as the IEP for the 2017-2018 SY held on January 30, 2017 (Exhibit P-C). It was documented in an IEP that it was discussed with the Parent that she is entitled to PACT and that this service is offered to perform appropriate follow-up intervention activities at home, and that parent workshops are held throughout the school year to support this service (Exhibit P-H) and would even cover student comprehension deficits (Exhibit P-I-7; P-J-7; P-K-8).

Even after ‘parent-coaching’ was recommended as appropriate (P-O-6) and PCAT recommended by the Psychologist (Exhibit P-S-19), no such “parent concern” was documented as having been raised by the Parents, including in the latest IEP (Exhibit P-JJ), which included notes regarding the “attorney supporting the family”. It is neither included as part of the comprehensive list of documented Parents’ concerns (Exhibit P-U), nor raised in Parents’ correspondence with the School Psychologist (defined on page 40) (Exhibits P-V, & -W). All of this undermines the legitimacy of the Parents’ claim for PCAT.

Since Parents “report that, to date, they do [not] believe that they have ever received PCAT related to Student”, to the extent that they did not, the DOE is being ordered to provide any missed PCAT services not used from the 2019-2020, 2020-2021, and 2021-2022 SYs, based on DOE’s attendance records.

Equitable considerations The formulation of the various recommended hours in each domain should not disregard in its entirety the program and related services provided to the Student as a whole over the years in issue, which the proposed formulations of the Parents’ witnesses manifestly seek to do.

In analyzing the complete educational program offered in each of the IEPs relevant to each SY in issue, I find that although the DOE’s offering did fall short of providing the Student with a FAPE, the DOE still attempted to meet its obligations, re-evaluate the Student albeit not comprehensively, revise her program as a whole, including enhancing management needs, interventions, and goals, compared to the prior programs offered.

The programs were not insubstantial and significant efforts were made by the DOE to provide the Student with "personalized instruction” and educational benefits, which would have contributed to address the Student’s deficits and diminish her maladaptive behaviors that interfere with skill acquisition, just not at a sufficient level that resulted in the DOE providing the Student with a FAPE under the regulations.

Whilst the Parents’ witnesses address the Student’s deficits and the inadequacy of the recommended programs and mandated related services to provide the Student with a FAPE, their evidence is more relevant to the most recent school year at issue (2021-2022) given such witnesses’ recent evaluation of the Student. Whilst the Parents’ witnesses make assertions regarding prior SYs, these allegations are, by and large, not supported by personal observations or evaluations conducted in those prior SYs at that time. Such evidence must be received with some level of circumspection, especially where the ultimate recommendations rely upon an invariable approach over a protracted period (three SYs). Under such an approach, the recommendations for each prior SY become less reliable the further back one goes, especially where it does not directly address the Student’s specific educational deficits that resulted from the FAPE deprivation.

Although it was long-overdue, the placement that the DOE finally provided for the Student is, inter alia, meeting Student’s needs according to Parents’ Witness. This is addressed further below^[29].

This occurred during the 2021-2022 SY (T. P60, L16-18) and is an equitable factor, especially as it has resulted in the Parents no longer be forced to pursue their relief sought for an appropriate placement (Exhibit P-A-19). By virtue of the DOE’s conduct, the Student was no longer forced to remain in the inappropriate placement setting for the entire 2021-2022 SY.

By the same token, the DOE still has failed to address the Student’s OT needs on her latest IEP, despite all the evidence presented in these proceedings, seeking instead to defend its evaluation, and then failing to do much after being afforded more than one opportunity to present evidence^[30]. Although the OT evaluation was only finalized in June 2022, which occurred after the last IEP meeting in March 2022, Parents’ representative asserted at the last day of the IH that the DOE has not added any OT as a related service to date (T. P114, L17-18), necessitating Parents’ request for relief pertaining thereto on the Student’s IEP.

Lastly, there is also authority that also bears mentioning in the context of the relief sought, namely: “Indeed, an award ordered without considering the nature of the FAPE violation to be remedied and the impact of the award on the child's educational needs could ultimately do more harm than good for a student (see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 30, 2017] ["Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity"]”.

I am mindful that an overwhelming quantity of hours awarded has the potential to be burdensome. Given that: Parents are seeking these hours to be used outside of school hours^[31]; the travel time to and from school (addressed below); that the Student is on an ESY; and the Student’s age and PLOPs, these considerations are certainly germane. For example, Parent had indicated that she was looking at scheduling speech services at home through her insurance, but that these services were difficult to schedule due to their daily schedules (Exhibit P-G-6).

These considerations have factored into my calculation of compensatory hours awarded (also considering the complete relief being awarded) as follows (rounding has been used in the calculations, where required):

• 600 compensatory hours of Tutoring claimed - adjusted award: 258 compensatory hours of tutoring being awarded (i.e., +43%), being the sum of:
• 20/21 SY: 6-8 hours (average used) per week x 46 weeks x 0.50 = 161
• 21/22 SY: 6-8 hours (average used) per week x 46 weeks x 0.30 = 97 Total: = 258 hours
• 414 compensatory hours of S/L therapy claimed - adjusted award: 131 compensatory hours of S/L therapy being awarded (i.e., +32%), being the sum of:
• 19/20 SY: 3 hours per week x 46 weeks x 0.25 = 35
• 20/21 SY: 3 hours per week x 46 weeks x 0.35 = 48
• 21/22 SY: 3 hours per week x 46 weeks x 0.35 = 48 Total: = 131 hours
• 207 compensatory hours of OT claimed - adjusted award: 135 compensatory hours of OT being awarded (i.e., +65%), being the sum of:
• 19/20 SY: 1.5 hours per week x 46 weeks x 0.20 = 14
• 20/21 SY: 1.5 hours per week x 46 weeks x 0.80 = 55
• 21/22 SY: 1.5 hours per week x 46 weeks x 0.95 = 66 Total: = 135 hours
• 1,840 compensatory hours of 1:1 ABA Services - adjusted award: 506 compensatory hours of OT being awarded (i.e., +28%), being the sum of:
• 20/21 SY: 20 hours per week x 46 weeks x 0.35 = 322
• 21/22 SY: 20 hours per week x 46 weeks x 0.20 = 184 Total: = 506 hours Other than the reasons provided for adjusting the award for compensatory services and for denying part of the award (see below), I do not find any other equitable factors applicable.

Evaluations:

Functional Behavior Assessment (“FBA”) & Behavior Intervention Plan (“BIP”)

Parents are requesting an order that the DOE fund an FBA, and if deem necessary a BIP at the rate of $3,375 and $1,125.00, respectively (Exhibit P-A-18, & -19; T. P65, L24-5; P66, L1-7; P113, L12-15).

It is asserted in DPC-2 that the “Department has failed to ensure an evaluation of the Student is sufficiently comprehensive to identify all her needs. The Department failed to conduct an FBA or develop a BIP, despite evidence that the Student’s behaviors impeded her ability to access his (sic) education” (Exhibit P-A-15).

Parents’ representative asserts that in the “Reevaluation, the Department failed to conduct a Functional Behavior Assessment of the Student, nor did it prepare a Behavior Intervention Plan.... The Department has noted that the Student engages in self-direct behaviors, is easily distractable, and requires prompting to stay on task.... The Department has noted that these behaviors impede the Student’s learning and that they have to engage in informal behavior interventions, which would normally be addressed by a BIP…” (Exhibit IHO-IV-3 & 4).

The purpose of an FBA is to isolate a target behavior and develop a hypothesis regarding the function of the target behavior. A target behavior is one that interferes with a student's ability to progress in the curriculum and to achieve the student's IEP goals. Once the target behavior is identified and the hypothesis developed, a positive behavior intervention plan can be prepared to address the target behavior with strategies and interventions, if necessary, or the target behavior can be addressed using a more informal approach^[32].

Aside from the specific circumstances in which either the IDEA or state law requires an FBA, not applicable here, IEP teams have discretion whether to conduct one.

Because IEP teams have an obligation to provide FAPE to students with disabilities, they also must conduct an FBA if they determine that doing so is necessary to develop an appropriate IEP^[33]. Based on the DOE’s response to the Parents’ IEE request, DOE had clearly determined that doing so was unnecessary.

Whilst these evaluations (FBA & BIP) had been supported by the testimony Parents’ witnesses, I find that these evaluations are currently not required. Parents’ Witness provided testimony (Exhibit P-BBB, par. 7, 8) to the effect that:

Student’s teachers were interviewed to gather information on her performance in the classroom setting. At the time of the interview Student had been in the classroom for 15 school days and her teachers were still getting to know her.

Student accesses reinforcement both individually with a “6 check token system” and with a classroom-wide system. She is also allowed frequent movement and sensory breaks to address her sensory needs. Student’s work with her in small group instruction and during large group instruction she is given more intensive support to be successful.

Student’s teachers are currently taking data on the behaviors they are observing which included spontaneously standing up from the seat and sitting back down, frequently asking to go to the bathroom or nurse’s office and repetitive behavior including non-contextual vocalizations.

At this time, it was her recommendation that Student continues at the Attending School as her needs are currently being met to address her language and communication deficits, small group learning style, sensory needs as well as additional reading and speech services that she needs. When asked during cross-examination what she is basing her opinion on regarding this recommendation, Parents’ Witness testified that “after speaking with her teachers, hearing about the reinforcement systems that they have, the speech and reading programs that they're providing [Student], which addresses her deficits in communication, and also the behavioral, the movement breaks that she's getting, this, this school does seem to provide and meet the needs of [Student] from what I was able to see during the observation” (my emphasis).

Parents’ representative has confirmed that “the student has begun a new, more, a new appropriate placement that a BCBA has found is more appropriately addressing her needs” (T. P97, L12-14). Although it was long-overdue, according to Parents’ Witness the DOE has confirmed that the placement that the DOE has finally provided for the Student is, inter alia, taking data on the behaviors they are observing and providing reinforcement systems that also address behavioral deficits and importantly, is meeting Student’s needs.

ABAS3 & AT evaluation

Parents are also seeking an order that an ABAS-3 assessment be done in one year by a provider of the Parents choosing at that provider's normal and customary rate, together with 20 hours per week of push-in ABA services at the Attending School by a DOE provider (or if the DOE cannot find a provider within 20 days of those ABAS-3 results, then those 20 hours of push-in ABA services to be provided by a provider of the Parents choosing at their normal and customary rates), if those results do not indicate the progress as required by the ABA skills assessment. Parents are also seeking an order that the DOE conduct an AT evaluation within one year of this final decision, but if the DOE fails to do so, that it then be ordered to fund an independent AT evaluation by a provider of the Parents choosing at their normal and customary rate (T. P113, L15-25; P114, L1-5). This relief presumably falls under Parents’ proposed solution #6 (Exhibit P-A-19).

This relief is requested pursuant to the recommendations of Parent’s Witness (Exhibit P-BBB-2, & -3; paras. 8 & 9), as well as Affiant 2 (Exhibit P-HH-9).

This relief is being denied based upon the following:

An award of compensatory services is being granted to remedy the DOE’s failure to provide the Student with a FAPE during the three SYs at issue. An award of additional services should aim to place a student in the position the student would have been in had the district complied with its obligations under the IDEA^[34]. Such awards are either based on the amount of time that comprised the FAPE deprivation (“quantitative” approach) or are focused on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (“qualitative” approach). In either case, it is awarded based upon past failures by the DOE.

Once determined, that is the remedy provided for based upon the DOE’s failure to provide the Student with a FAPE in the past. The remedy however that is being proposed either envisages some sort of future anticipatory breach by the DOE based upon its future obligations or is seeking to guarantee that the Student will reach a particular progress target or milestone. The IDEA does not guarantee any such right.

The purpose of compensatory education is neither to punish the District^[35] nor to “maximize the student's potential or to guarantee that the student achieves a particular grade-level in his areas of need. Thus, it would, for certain, be a pyrrhic victory if the delivery of an award of compensatory educational services only served to overwhelm the student or outpace the student's ability to make progress”^[36] (my emphasis).

Additionally, the second circuit addressed a parent’s entitlement to IEEs under the IDEA in the Trumbull Bd of Educ. Case^[37]. In dealing with the alternative basis for the parents’ claim to IEEs based upon their disagreement with the October 2014 Triannual Evaluation, which the District Court had found to be untimely, the Court wrote:

“A parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees.” 34 C.F.R. § 300.502(b)(5). Because the only evaluations that trigger a parent’s right to an IEE at public expense are the initial evaluation and triennial reevaluations discussed in Section 1414 of the Act, a parent’s right to an IEE at public expense ripens each time a new evaluation is conducted.” (my emphases).

Parents have now been granted IEEs at public expense pursuant to these rights afforded them under the IDEA. As such, Parents’ right to an evaluation at public expense will once again ripen when a new DOE evaluation takes place as discussed in Section 1414 of the Act. The requested order is therefore currently premature.

Reimbursement of cost re: Parents’ evaluation

Parents are seeking an order for reimbursement of the cost of the independent psychological evaluation conducted by Psychologist in the sum of $4,500.00 (Exhibit P-S).

Parents’ representative asserts that: the DOE considered and used that evaluation in making program recommendations, including finally deferring the Student to the central based support team, which led to her being placed at the Attending School; it used and considered that evaluation at the November, 2021 IEP meeting, the Parents had to obtain that private evaluation to determine the Student's needs; it even listed this evaluation in their DPC-1 as a recent evaluation (Exhibits DOE-15, & -16); and referred to this report as an independent evaluation obtained by the Parent (Exhibit P-B).

I find Parents’ representative’s argument compelling. The DOE has utilized the Parents’ evaluation. Additionally, the purpose of IEEs as expressed in the Trumbull Bd of Educ. case is to “level the playing field” between parents and government by securing a parent's ability to obtain an independent assessment of their child's disability if the school's falls short^[38]. Parents could have sought is as an interim IEE together with the other evaluations sought, had they not funded it upfront. Based on the record, Parents would likely have prevailed in that event, in these proceedings and it would have then been funded. Parents should not be penalized for doing it beforehand, at their financial risk, especially where the DOE had failed to comprehensively assess the Student.

Whilst a copy of Psychologist’s invoice has been included in the record, together with proof of payments, it is unclear on the face of the documents submitted who made these payments, and no testimony was provided to confirm that the Parents funded the report. The order therefore will require proof to be submitted to the DOE’s Implementation Unit, as had been suggested by Parents’ representative (T. 72, L24-5; P73, L1-5).

Reconvene & changes to the Student’s IEP

Reconvene

• Whilst the DOE held an IEP meeting March 11, 2022 and developed an IEP that would fall over some of the 2021-2022 SY and some of the extended 2022-2023 SY^[39], it did not have the benefit of all of the IEEs obtained pursuant to this IH. Some were not yet in existence at the time of the meeting (Exhibits P-CCC, & -EEE), others were not formally included in the DOE’s prior written notice of documents relied upon (Exhibit DOE-19-2) even though they did exist at the time of the meeting (Exhibits P-HH, & -II).
• In the circumstances, the Parents’ request for an order to reconvene is being granted.

Parents’ request for the recommended OT services to be included in the Student’s IEP is being granted, as it is supported by the evidence record.

Medical accommodation: transportation

Parents’ representative asserts that the DOE has been presented with evidence that the Student requires a medical accommodation to attend the Attending School, but that the DOE has failed to provide it. Parents are therefore seeking an order that the DOE be required to place limited-time travel of no more than one hour and last pick up and first drop off on the Student’s IEP as the DOE has failed to do so (T. P103, L19-25; P104, L1-3). It is noted that Student’s Pediatrician (defined on page 40) had motivated for one of those accommodations, not for both, for the Student (Exhibit P-NN).

Parents’ representative asserts that at the most recent IEP meeting, the issue of transportation required for Student was discussed and the Parents provided the medical accommodation form from Student's doctor that stated that she requires limited transportation time of 45 minutes to and from school due to her limited communications skills and being unable to adequately express her needs at all times. Furthermore, Student has limited ability to sit still for a long period of time.

Parents' representative further asserts that the DOE denied the medical accommodation request and that the Student was on the bus a little over an hour each way to and from school, as she is the first person picked up and the last dropped off.

It is also asserted that the DOE has ignored the Parents' repeated attempts to provide documentation to have the DOE reconsider this accommodation, and informed Parents that they must speak to the Attending School, but that the school informed Parents that they have no control over DOE transportation routes (T. P64, L14-25; P65, L1-18).

Parents have included: a letter of recommendations from Student’s Pediatrician (Exhibit P-FF), a medical accommodations request form (Exhibit P-GG); a letter from a BCBA supporting the Parents’ request (Exhibit P-MM); and a further letter from Student’s Pediatrician requesting limited travel time or that the Student be the last to be picked up and the first to be dropped off (Exhibit P-NN).

It was documented on the Student’s latest IEP that the Parents’ request for the medical accommodation could not be considered/added to the IEP as it required review from OSH and that the paperwork would be submitted for approval (Exhibit P-JJ-10, -12, & -32).

Included in the record is the Parents’ representative’s letter to the School Psychologist following up on the travel accommodation requested, as well as between Parents and the Attending School (Exhibit P-LL; -OO; -QQ through -TT). It is asserted that due to the Student’s behavior issues and tantrums, as well as her limited verbal abilities, a "lengthy commute may pose significant distress and anxiety to [Student]".

Parents’ representative stated the basis for the requested order as linked to the Parents’ DPC-2 and asserted that it is “appropriate and necessary for the student to be able to receive her education, to be able to get to school in a manner where she’s able to receive instruction” (T. P73, L13-25, P74, L1). I agree. This is supported by the Student’s diagnosis, the assessments/evaluations of Parents’ witnesses on record, and the recommendation of her Pediatrician and the Psychologist.

Generally, decisions over bus schedules and routes are generally left to the discretion of the district. However, if transportation is included as a related service in a student's IEP, a state educational agency may review the transportation provisions when they impact a student's access to a FAPE. Neither the IDEA nor Section 504 specifically addresses the appropriate length of bus rides for students with disabilities. Lengthy bus rides may however be discriminatory and may result in the denial of a FAPE^[40].

Generally, in many of the cases where districts are found to be discriminating or denying a student a FAPE due to the length of a bus ride, the daily commutes of students with disabilities have exceeded one hour each way^[41].

Student’s Pediatrician referred to the bus ride taking “up to two hours each way”. In Parents’ one email, a timeline is presented indicating a pickup time at 6:45am and arriving at the Attending School at 08:05am. Such duration has the potential to lead to a denial of a FAPE. Accordingly, I find that the recommended medical accommodation is warranted. Parents’ request for the medical accommodation for a special transportation accommodation is being granted, as it is supported by the evidence record.

DOE’s requested relief The DOE sent a prior written notice in response to Parents’ IEE request and thereafter issued its own DPC to defend it evaluation (Exhibit DOE-12; & IHO-I). By granting the interim orders in favor of the Parents in this consolidated case (and denying the Parents’ requested relief for the FBA and BIP), it has effectively disposed of the relief sought by the DOE in DPC-1.

Other than the relief set out in my Order below, I find that no basis and/or evidence in the record supports any additional relief.

ORDER

Based upon the above Findings of Fact, it is hereby:

• ORDERED that, the Student’s most recent IEP that is currently in effect as at the date of this Order is hereby amended, effective from 21 (twenty-one) days from the date of this Order, to reflect:
• Related Service: “Occupational Therapy, Individual (1:1), 3 time(s) per week, 30 minutes”.
• Special Transportation: “REDACTED requires door to door busing to get to her NPS safely. She also requires limited-time travel of no more than one hour, which may require her being picked up last from home before school and dropped off at home first after school”.
• ORDERED that, the CSE shall convene a review meeting within 21 (twenty-one) days to review the results of the independent evaluations obtained by the Parents as at the date of this order and prepare an appropriate IEP that includes at a minimum:
• The amendments reflected in #1 (a and b) of this Order.
• Accurate PLOPS.
• Specific, meaningful, and measurable goals tailored to the Student and based on the Student’s current academic and functional levels.
• Appropriate related services including OT, S/L therapy, PCAT, and counselling, as recommended by the independent evaluations, and at the recommended frequency and group sizes that the evaluations recommend.
• Appropriate modifications, and accommodations to be listed as part of the Student’s IEP program.
• ORDERED that, the DOE shall fund the following compensatory services for the Student, which may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations, by a provider of the Parents’ own choosing at the providers’ customary and regular rates (i.e., “an enhanced rate”), limited to the amounts set out in #3 of this Order for each of the services:
• 258 compensatory hours of 1:1 Tutoring by a New York State licensed specialist conversant in the use of the Orton Gillingham methodology; and
• 131 compensatory hours of S/L therapy by a New York State licensed speech pathologist; and
• 135 compensatory hours of OT by a New York State licensed occupational therapist; and
• 506 compensatory hours of 1:1 ABA services by a trained and experienced behavior analyst, by issuing payment directly to the provider(s) within 30 (thirty) days upon the submission of invoices for services rendered.
• FURTHER ORDERED that, the bank of compensatory services set out in #2 of this Order shall not expire until the expiration of 3 (three) years from the date of this Order and that the amount payable by the DOE for each of the services to the providers of the Parents’ own choosing shall be limited as follows:
• Compensatory Tutoring at a rate not to exceed $140 per hour.
• Compensatory S/L therapy at a rate not to exceed $250 per hour.
• Compensatory OT at a rate not to exceed $250 per hour.
• Compensatory 1:1 ABA services at the prevailing market rate of the Parents’ independent provider, capped at the lesser of: i) the lowest price the DOE’s Implementation Unit has paid for substantially similar services to the same provider during the twelve-month period preceding the date of this Order; or ii) $140 per hour.
• FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby ordered within 15 (fifteen) days.
• FURTHER ORDERED that, the DOE’s shall provide the Parents with all the missed PCAT that were mandated during the 2019-2020, 2020-2021, and 2021-2022 SYs, provided that any PCAT not used by the Parents within 1 (one) year from the date of this Order shall expire and be deemed to have been waived by the Parents.
• FURTHER ORDERED that, the DOE’s shall reimburse the Parents the costs of the psychoeducational evaluation (Exhibit P-S) in the sum of $4,500.00 (Exhibit P-DDD-1, & -DDD-2), upon the submission of satisfactory evidentiary proof required by the DOE’s Implementation Unit supporting the Parents’ payment(s) therefore in that amount.

SO ORDERED.

DATED: July 30, 2022

__H.A.C._(Signed Electronically)___

Impartial Hearing Officer

Harry A. Christodoulou

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.

DISTRICT’S EVIDENCE

Exhibit

Title

Date

Pages

SESIS Events Log

Various Dates

Withdrawn (duplicate Ex. P-BB)

Withdrawn (duplicate Ex. P-DD)

Withdrawn (duplicate Ex. P-EE)

Special Education Remote Learning Plan

05/21/2020

Special Education Remote Learning Plan

07/20/2020

Prior Written Notice (Notice of Recommendation)

10/19/2020

Prior Written Notice (Notice of Recommendation)

06/24/2021

School Assignment Form

08/27/2021

10.

Classroom Observation

09/28/2021

11.

OT Clinical Guide

10/05/2021

12.

Prior Written Notice (Notice of Recommendation) Regarding Parent Request for IEEs

10/15/2021

13.

Withdrawn (duplicate Ex. IHO-I)

14.

Social History

10/29/2021

15.

IEP

11/10/2021

16.

Prior Written Notice (Notice of Recommendation

11/24/2021

17.

Acceptance Letter

12/30/2021

18.

IEP

03/11/2022

PARENTS’ EVIDENCE^[42]

Exhibit

Title

Date

Pages

Impartial Hearing Request with Due Process Cover Sheet

11/01/21

DPC Notice

10/18/21

IEP

01/30/17

IEP

06/25/18

IEP

11/15/18

Amended IEP

11/15/18

IEP

10/22/19

Amended IEP

10/22/19

IEP

10/09/20

Amended IEP

10/09/20

IEP

06/21/21

AT Evaluation and Follow-Up

02/27/17

AT Follow-Up

04/05/17

Suggested Info. for Procurement of AT Equipment

04/05/17

Psychological Evaluation

12/15/20

S/L Evaluation

06/21/21

S/L Evaluation

08/27/21

Psychoeducational Evaluation Report

08/30/21

Independent Psychological Evaluation

09/09/21

Request for an IEE

09/28/21

Letter of Parental Concerns

06/22/21

Emails between the DOE and Parents

10/07/21

Letter to School Psychologist

10/07/21

Rate Sheet of Service Provider 1

Undated

Rate Sheet of Service Provider 2

Undated

Psychoeducational Evaluation Report

11/14/2018

AA.

Prior Written Notice

11/20/2018

BB.

Prior Written Notice

06/24/2019

CC.

DOE Request to Amend IEP

09/06/2019

DD.

Prior Written Notice

11/01/2019

EE.

Prior Written Notice

12/10/2019

FF.

Letter from Pediatrician re: Limited Travel Time

01/26/2022

GG.

Medical Accommodation Request Form

02/01/2022

HH.

AT Evaluation

02/25/2022

II.

S/L Evaluation

02/25/2022

JJ.

IEP (dated 03/12/21)

03/12/2022

KK.

Letter from Affiant 1 with Recommendations

03/23/2022

LL.

Email to DOE re Transportation

03/23/2022

MM.

Letter from BCBA regarding Travel Time

03/31/2022

NN.

Additional Letter from Pediatrician

04/06/2022

OO.

Email from Attending School re: Travel Time

04/08/2022

PP.

Affidavit of Affiant 1

04/08/2022

QQ.

Email chain with DOE re: Transportation

04/11/2022

RR.

DOE Response re: Medical Accommodation

04/12/2022

SS.

DOE Response re: Medical Accommodation

04/13/2022

TT.

Email to DOE from Parent with BCBA & Pediatrician Letters

04/25/2022

UU.

2019-2020 Report Card (Q1-Q3)

Undated

VV.

Resume of Parents’ Witness

Undated

WW.

Resume of Affiant 2

Undated

XX.

Resume of Affiant 1

Undated

YY.

Resume of Affiant 3

Undated

ZZ.

Affidavit of Affiant 2

04/27/2022

AAA.

Affidavit of Affiant 3

04/27/2022

BBB.

Unsigned Affidavit of Parents’ Witness

Undated

CCC.

ABA Skills Assessment by Parents’ Witness

04/29/2022

DDD.

REDACTED Invoice & Payments

09/07/2021

EEE.

OT Evaluation

06/06/2022

FFF.

Affidavit of Affiant 3

07/05/2022

IHO EXHIBITS

Exhibit

Title

Date

Pages

IHO-I

DPC 1, with email

10/18/21

IHO-II

Order on Consolidation

11/15/21

IHO-III

Written Brief on IEEs (District)

12/08/21

IHO-IV

Written Brief on IEEs (Parents), excluding attachments

12/08/21

IHO-V

Interim order on IEEs

01/13/22

IHO-VI

Email exchange with the Parties’ representatives

Various dates

IHO-VII

Interim order on IEEs (Second)

03/29/2022

IHO-VIII

Interim order on IEEs (Third)

05/05/2022

IHO-IX

Interim order: Interim Relief (Tutoring)

05/26/2022

APPENDIX

REDACTED

Footnotes

[1] The DPC was submitted after business hours to the Impartial Hearing Office on October 27, 2021, and therefore the “Date of Request” is reflected in my notice of appointment as October 28, 2021.

[2] U.S.C. § 1400 et seq.

[3] C.F.R. § 300 et seq.

[4] Educ. Law Art. 89 § 4404 et seq.

[5] NYCRR § Part 200.

[6] There was initially an objection raised to Exhibit DOE-9, which was later withdrawn (T. P58, L14-15).

[7] Save for two exhibits to which Parents’ representative had raised her objections. I had not ruled on the objections at that time.

[8] For the main case (i.e., not including the affidavit testimony related to the limited hearing held on November 30, 2021).

[9] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].

[10] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].

[11] U.S.C. § 1415[f][3][E][i].

[12] Rowley, 458 U.S. at 203.

[13] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.

[14] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.

[15] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.

[16] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]

[17] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].

[18] NYS Educ. Law § 4404(1)(c).

[19] Although Parents’ Witness does not reference her resume by exhibit lettering, it is on record (Exhibit P-VV).

[20] Although Affiant 1 does not reference her resume, it is on record (Exhibit P-XX).

[21] Rowley, 458 U.S. at 203.

[22] Even with respect to the affidavit testimony of Affiant 3, which was being obtained after the DOE had rested its case, I had indicated that I would be predisposed to the District calling a witness, should the District make such application, to gainsay any evidence later submitted based on the OT evaluation obtained (T. P49, L9-16; P52, L1-4). No such application was made.

[23] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].

[24] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].

[25] C.F.R. § 300.106[a][2].

[26] C.F.R. § 300.106[b].

[27] There is some overlap between the various projected implementation dates of the relevant IEPs relative to the SYs at issue.

[28] I am taking this sentence to read “do not”, which I understand was the intention, by including the word “ever”.

[29] See: B. Evaluations/FBA & BIP.

[30] First at the limited hearing, again at the main hearing when presenting its case, and even after being informed that if it requested an opportunity to call witness(es) to gainsay the testimony of Parent’s witness relating to OT (Affiant 3), I would be predisposed thereto, declining to do so.

[31] Compensatory services are being awarded but are not being limited to outside of school hours, to provide the Parents with flexibility and cater for any unforeseen circumstances.

[32] Broward County Sch. Bd., 110 LRP 38160 (SEA FL 05/07/10).

[33] C.F. v. New York City Dep't of Educ., 62 IDELR 281 (2d Cir. 2014).

[34] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].

[35] See C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 [3d Cir. Sept. 27, 2010].

[36] See Application of the Board of Ed. of the S.C.S.D, Appeal No. 21-065.

[37] F.3d 152 (2d Cir. 2020).

[38] F.3d 152 (2d Cir. 2020).

[39] The projected implementation dates are from 03/21/2022 through 03/11/2023. I understood from Parents’ representative that the wrong year was reflected on Parents’ copy of the IEP (Exhibit P-JJ-1).

[40] Letter to Anonymous, 20 IDELR 1155 (OSEP 1993).

[41] See, e.g., Covington Cmty. Sch. Corp., 18 IDELR 180 (SEA IN 1991) (One-way transportation must be limited to a maximum of one hour; the student must arrive at school not more than one-half hour after other students and leave school not more than one-half hour before the other students); Palm Beach County (FL) Sch. Dist., 31 IDELR 37 (OCR 1998) (A bus ride for students with disabilities was shortened to a total of 45 from 50 minutes, an amount of time similar to that scheduled for students without disabilities); and Hemet Unified Sch. Dist., 12 ECLPR 22 (SEA CA 2014) (A bus ride that would take an hour and 10 minutes each trip was inappropriately lengthy given child's acid reflux).

[42] Exhibits P-A through P-Y were admitted at the limited hearing held on November 30, 2021. Exhibits P-Z through P-AAA were admitted at the IH held on May 03, 2022. Exhibits P-BBB and P-CCC were admitted at the IH held on May 04, 2022. Exhibits P-DDD, P-EEE, and P-FFF were admitted at the IH held on July 07, 2022.

New York City Department of Education, Impartial Hearing Decision

JURISDICTION

ORDER