New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No.: 220584

Student’s Name: [REDACTED]

(hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: [REDACTED]

(hereinafter referred to as “Parent”)

Hearing Dates: January 6, 2022

January 25, 2022

Record Close Date: March 3, 2022

Hearing Officer: Anjelica Cappellino

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 6, 2022 AND JANUARY 25, 2022

For the Student:

[REDACTED]

[REDACTED]

INTRODUCTION

This matter comes before the undersigned hearing officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on October 29, 2021. See P-Ex. A.^[1] The Parent is asserting that the New York City Department of Education (“the District”) did not provide the Student with a free appropriate public education as required under the Individuals with Disability Education Act (“IDEA”) for the 2019/2020, 2020/2021 and 2021/2022 school years.

PROCEDURAL HISTORY

The undersigned Impartial Hearing Officer was appointed to the above matter on November 4, 2021. A prehearing conference was held on December 14, 2021, during which time counsel for the Parent and the District representative agreed to a hearing date on January 6, 2022. On January 6, 2022, the District failed to appear at the hearing and advised via email that the hearing was not in their schedule due to what appeared to be an error of the Impartial Hearing office. Based on the fact that the District previously agreed to this date on the record and were further reminded of the date in the Parent’s email disclosures, as well as the fact that the scheduling error did not hinder the appearance of Parent’s counsel nor the undersigned Impartial Hearing Officer, I found good cause to proceed with the hearing on January 6, 2022. Tr. 28-29. The Parent presented part of its case, and Parent Exhibits A through P were admitted into evidence, but the matter was adjourned to January 25, 2022 for additional witness testimony.

On January 6, 2022, the parties were contacted by the undersigned via email regarding the scheduling of the second hearing date. The parties were given two options for the date, both of which were in January. The following day, Parent’s counsel confirmed their preference for January 25, 2022.

On January 11, 2022, the District filed a motion to dismiss Parent’s claims regarding the 2019/2020 school year on statute of limitations grounds. See D-Ex. 1, Motion to Dismiss.^[2] For reasons set forth in the undersigned’s Order, dated January 25, 2022, that motion was denied. See IHO-Ex. I, Order on Motion to Dismiss^[3]; See also Tr. 75-76.

On January 14, 2022, the District responded to the undersigned’s January 6th email, stating that the District would not be available until after February 28th. The District was advised to file an adjournment request and the underlying reasons for the request with the Impartial Hearing Office. No such request was filed.^[4]

The hearing reconvened on January 25, 2022. The District did not appear, and when emailed by the undersigned, the District representative’s email sent back an out-of-office reply to contact another representative. The automated reply did not provide a contact number nor email address for this other representative. Tr. 75. As such, the hearing continued that day without the District’s presence. The Parent presented an additional exhibit, Exhibit S, which was the affidavit of [REDACTED], as well as the live testimony of [REDACTED] from Applied Behavior Analysis provider, [REDACTED]. As the District did not appear, they did not put forth a case, admit evidence, or present witnesses. On February 18, 2022, both the District^[5] and the Parent^[6] submitted post-hearing briefs.

At the impartial hearing, the Parent sought the following relief:

• • For a finding that the District failed to provide a free appropriate public education (“FAPE”) to the Student for the 2019/2020, 2020/2021 and 2021/2022 school years;
• • For the District to fund an interim home-based 1:1 Applied Behavior Analysis (“ABA”) program for 35 hours per week of services at the rate of $250 per hour, including four hours per week of BCBA supervision at a rate of $300 per hour, and one hour per week of parent training at $300 per hour, for the 12-month 2021/2022 school year, or until an appropriate state-approved or private school with a 1:1 ABA program can be located;
• • For the District to fund speech-language therapy five times per week at the rate of $250 per hour;
• • For the District to fund occupational therapy three times per week at the rate of $250 per hour;
• • For the District to fund physical therapy three times per week at the rate of $250 per hour;
• • For the District to fund compensatory one-on-one reading and mathematics tutoring services in the amount of 800 hours at the rate of $140 per hour;
• • For the District to fund an independent occupational therapy evaluation at the rate of $2,000; and
• • For the District to fund an independent assistive technology evaluation at the rate of $2,500.

FINDINGS OF FACT

The Student’s Background and History The Student is REDACTED years old and in the fourth grade but is not currently attending school due to the below issues. Tr. 54. As per a neuropsychological evaluation, the Student is diagnosed with Autism Spectrum Disorder, with accompanying intellectual and language impairment in conjunction with a complex medical history. See P-Ex. C, December 2020 Neuropsychological Evaluation at 1; 10-11; See also P-Ex. S, [REDACTED] Affidavit, dated January 21, 2022 at 3.

The Student has been receiving special education services since age 3, attending three different pre-schools during this time. Tr. 54. As the Parent testified, the Student “suffers from people anxiety so she would scratch, bite, throw saliva at others…attack, become aggressive,” so the Parent would need to “remove her from the environment.” Tr. 52. In school, as the Parent explained, “[i]t’s a constant struggle. The teachers cannot get her to focus, to sit, to participate. The related services providers, they cannot get her to do any work – like PT, OT, speech – to engage. She puts up a barrier.” Tr. 53. Due to the Student’s medical issues at birth, “she has weak muscles on the right side” which affect her balance. Tr. 53. “She cannot bend her right knee. She cannot use a spoon. She cannot close her mouth on a cup. She cannot use a straw…And she’s yet to be toilet trained.” Tr. 53. The Student “was constantly struggling. She was not progressing. Her behaviors were becoming more aggressive. I was constantly being told that they…do not know how to handle her, how to get her to…participate in anything…” Tr. 54. The Student started kindergarten in a 12:1:4 placement, but after becoming overwhelmed, she switched schools to a 6:1:1 setting. Tr. 55. According to the Parent, the Student did not progress in kindergarten and the teachers would say that “[t]hey don’t know how to handle her behaviors.” Tr. 56. The Parent requested an IEP meeting, after discussing her concerns with the Student’s physician, who recommended Applied Behavior Analysis in a small setting. Tr. 56-7.

Pursuant to an Individualized Education Program dated March 21, 2019, the Student was classified with autism. See P-Ex. D, March 21, 2019 IEP at 1. Her assessment scores per the Student Annual Needs Determination Inventory (SANDI) conducted the two previous years, were markedly low in reading, writing, math, and communications. Id. at 1; 6. The Student is mostly non-verbal, with the IEP indicating that she is able to “communicate using sounds, gestures and facial expressions” and “requests desired objects and snacks using sounds and gestures.” Id. at 2. Per the IEP, the Student was following “an alternate assessment curriculum,” Id., because “[g]iven her global delays, [the Student’s] progress is best demonstrated via alternate assessment.” Id. at 22. “Based on teacher observations, [the Student] requires frequent redirections to sit, attend, and complete her work. She responds better to one-on-one or small group instruction, and learns better through frequent repetition.” Id. at 4.

In the assessment of the Student’s physical development, it was noted that “she has a medical history of [REDACTED], and “has a history of [REDACTED].” Id. at 6. The Student “wears a diaper and does not indicate when she needs to use the bathroom throughout the day.” Id. at 3. The Student exhibited the need for hand-held assistance in certain school functions, such as busing and other transitions and negotiating the stairs. Id. at 6-7. She also demonstrated “poor visual motor perceptual skills and poor bilateral hand coordination,” which impeded “her ability to complete fine motor tasks with independence.” Id. at 7.

According to the IEP, the Parent and her advocate expressed “concerns with [the Student’s] current placement.” Id. at 5. As explained:

Both parent and advocate stated the need for specialized therapy in a state-approved school. It was explained to the parent that specific teaching methods are not mandated by the DOE and that [the Student’s] current placement is meeting her needs. At the time of the IEP meeting, teachers and providers noted that [the Student] has demonstrated progress across areas since they began therapy with her. Parent also noted concerns for [the Student’s] safety. [The Student’s] school noted that [the Student] engages in maladaptive behaviors such as scratching, pinching, and biting. [The Student’s] teacher reported that she responds well to modeling and redirection, and while her behaviors are not an appropriate response, they have not impacted her ability to learn. School staff also reported that biting behavior is rare and always follows when an adult has seemingly invaded [the Student’s] personal space. It was determined that while [the Student’s] safety is being monitored by classroom staff, and additional school staff during lunch periods, a Functional Behavior Assessment would be conducted as part of a re-evaluation following the closing of this process.

Id. at 5; See also P-Ex. D at 25.

The IEP further noted that the Parent expressed concerns with the Student’s behavior, but “[w]hile it was reported that her behavior was not appropriate, it has not prevented her from learning. The IEP team determined that the next best steps would be to close this process stage and open a re-evaluation to conduct a functional behavior assessment to determine how best to meet [the Student’s] behavioral needs, as parent and advocate were not satisfied with current interventions.” Id. at 6.

The IEP recommended a 6:1:1 special education classroom setting, with a full-time health paraprofessional as well as a transportation paraprofessional. In addition, the IEP recommended individual occupational therapy, three times per week for 30 minutes, individual speech-language therapy, three times per week for 30 minutes, and individual physical therapy once per week for 30 minutes. Id. at 7; 19. Parent counseling and training as part of a 90-minute once-a-month workshop, was also recommended. Id. at 19.

A physician’s letter from the Student’s pediatrician after the 2019 IEP confirmed the same issues, namely, that the Student has autism spectrum disorder, speech and language impairments, and other medical issues, is nonverbal, and is not yet toilet trained. See P-Ex. K, Letter from [REDACTED] dated August 30, 2019 at 1. The letter further stated that the Student “continues to require intensive supports to promote her overall development,” including a small specialized class and Applied Behavior Analysis. Id. at 2. A Functional Behavior Assessment, ABA therapy, speech and language therapy, feeding therapy, occupational therapy, and physical therapy were also recommended. Id.

The next IEP was conducted on February 28, 2020 and continued to document the Student’s disability classification as autism. See P-Ex. E, February 28, 2020 IEP at 1. The Student was evaluated by numerous assessments including the Assessment of Basic Language and Learning Skills-Revised (ABLLS-R), an assessment tool used for those with autism and other developmental disabilities. The Student scored in the “early learner” category in this assessment. Id. Among other findings, the Student scored a 77/236 in the gross motor section of the Student Annual Needs Determination Inventory, with her teacher indicating that the Student had difficulties in the area of school mobility. Id. Per a psychological evaluation conducted on May 17, 2019 and referenced in the IEP, the Student’s developmental age equivalent was deemed to be “4 months 20 days” per the Bayley Scales of Infant and Toddler Development, indicating a “severe intellectual disability” range. Id. at 2. The Student also scored in the low ranges on the Vineland Adaptive Behavior Scales. Id. The Student continued to remain nonverbal, communicating via vocalizations, universal signs, and her picture book. Id. at 3. The IEP indicated that due to the Student’s “severe cognitive, social-emotional and behavioral delays, her academic needs cannot be met in a General Education program,” and as such, was participating in a curriculum connected to the Common Core Learning Standards. Id. at 8.

In terms of physical development, the Student was not yet toilet trained at the time of this IEP, Id. at 5, and continued to indicate the need for assistance in some areas, such as clothing management and walking up and down the stairs. Id. at 6. The Parent expressed concerns that the Student was still unable to write, color within the lines, and use utensils to self-feed. Id. at 7. The Student required a 1:1 health paraprofessional to monitor her feeding as well as to ensure her safety in light of the Student’s “decreased strength and visual deficits” and lack of “safety awareness.” Id. at 8.

The Student’s teacher and paraprofessionals reported that for the first part of the year, the Student was “very resistant and did not participate in most activities” and that the staff has since built a rapport with her. However, staff reported that at times, the Student could “be aggressive with peers and adults by pushing or pulling them,” and “[a]t times, [the Student] will bite and spit, but that occurs less frequently.” Id. at 3. The Parent reported concerns regarding the Student’s aggressive behaviors, noting that she had “not seen any changes in those behaviors at home or in school.” Id. at 5.

Per the IEP, the Parent indicated that she would like her daughter to acquire more skills. She did not believe her daughter’s needs were being met in her current setting and wanted her case to be deferred to CBST (Central-Based Support Team). Id. at 4. The IEP indicated that deferral to CBST for placement in a non-public school was discussed “but could not be considered during an annual review,” and that the team would “further consider” the Parent’s request at the reevaluation meeting” after the annual review process is culminated. Id. at 21; 24. The Parent also indicated that she feels the Student needs Applied Behavior Analysis and would like to explore the possibility of Verbal Behavior Therapy. Id. at 5. The IEP did indicate that the Student makes progress when these instructional approaches were used. Id. at 8. Similar to the previous year’s IEP, this IEP continued to recommend a 6:1:1 special education classroom setting, with a full-time health paraprofessional as well as a transportation paraprofessional, as well as occupational therapy, speech-language therapy, physical therapy, and parent counseling. Id. at 15-16.

The following IEP, conducted on June 11, 2020, referenced the same assessment measures and observations as in the February 28, 2020 IEP. See P-Ex. F, June 11, 2020 IEP at 1-3. Notably, at the time of this IEP, due to the onset of the COVID-19 pandemic, the Student was not attending any live remote classes or related services. The Student was “resistant to participate in the work” posted on Google Classroom due to her limited attention span. Id. at 4. The Parent expressed concerns that the Student would not be able to participate in virtual learning. At the time of the IEP, the Student had not made progress in meeting her goals so the goals previously discussed were to “be carried over.” Id. at 8. The Student’s recommended setting continued to be in a 6:1:1 special education classroom with the same related services as the previous IEP. Id. at 19; 24.

Placement at [REDACTED] In September 2020, the Student started remotely attending a new placement at [REDACTED]. Tr. 58. According to the Parent, the Student attended the school virtually until January 2021, at which point, “she didn’t have any services.” Tr. 60. The Student only attended two days in March of 2021. Tr. 60-1. On March 1st, four of the staff members had to carry her up the stairs to the classroom and the Student did not socialize with anyone nor eat. The next day, on March 2nd, the Student sat all day in the school hallway and when picked up by the Parent, the Student “was wearing two pull-ups and she had a bruise in the back of her ankle. She didn’t eat. She was hungry.” Tr. 61.

The most recent IEP, conducted on June 24, 2021, was the first IEP since the Student’s transfer to the new placement, a 8:1:3 setting at [REDACTED]. See P-Ex. G, June 24, 2021 IEP at 1. However, due to the COVID-19 pandemic, the Student attended her new placement virtually via the Microsoft Teams platform. The IEP confirmed the Parent’s recollection of the Student’s two-day in-person experience in 2021. Per the IEP, on her first day, she “engaged in hitting, spitting, and scratching behavior with staff” when transitioning in and out of the school building and to the restroom. While in school, the Student did not attend any teacher-led lessons. She engaged with classmates by hitting and throwing objects. Id. at 1. On her second day at school, the Student’s “hitting, spitting, and scratching behavior precluded her coming into the classroom. [The Student] spent her second day in school seated in the hallway with staff.” Id. at 2. “Progress monitoring and data collection were not able to be accurately completed during this time.” Id. at 2. As such, it was “strongly recommended” that the Student “remain in her current placement of a 8:1:3 classroom when fully in-person learning” resumed so that the “highly structured, small environment, along with the assistance of classroom staff” could help the Student “develop the skills necessary for her to meet her goals.” Id. The IEP noted that the Parent “had concerns” regarding the Student’s return to in-person learning and that the Student required 1:1 supervision throughout the school day in order to ensure her safety. Id. at 4. The IEP concluded by recommending a 8:1:3 setting in a special education classroom in a non-public state-approved school, with related services including individual occupational therapy three times a week for 30 minutes, individual physical therapy two times a week for 30 minutes, individual speech-language therapy three times a week for 30 minutes, and parent counseling and training once a month for 60 minutes. Id. at 17.

The Student began the 2021/2022 school year at [REDACTED] but was only able to attend in-person on one day in September. As the Parent testified: “The staff couldn’t get her off the bus. She stayed on the bus all day. She was wet, dirty, and hungry.” Tr. 62.

The Parent then filed a request for the Student to receive home instruction. See P-Ex. J, September 30, 2021 Home Instruction Application. Per the referral form completed by the Student’s physician in support of home instruction, the physician stated that: “[The Student] has severe difficulties with behavioral regulation. She reportedly refuses to get off of the school bus to go to school. She engages in aggressive behaviors like pinching and biting. She requires home instruction until an appropriate educational setting is found for her. A 1:1 ABA-based program was recommended. Teachers working with [the Student] should be trained in using an ABA-based approach.” Id. at 2. Annexed to the form was a letter from another physician, the Student’s pediatrician, requesting that the Student receive home instruction for the 2021/2022 school year. As the pediatrician explains, the Student “is a medically complex child,” and due to sensory issues stemming from autism, she is unable to keep a mask on her face. As such, she is at an increased risk of contracting COVID-19. Id. at 5. The pediatrician also requested home instruction.

The Student’s November 2021 Quarterly Progress Note indicated “minimal progress observed/reported” toward annual goals and short-term objectives. See P-Ex. L, Quarterly Classroom Progress Report, dated November 21, 2021, at 1. As indicated in the Student’s Quarterly Progress Note for physical therapy, the Student had only attended school one time in September and during that time “refused to transition off the school bus and refused to engage with [the] therapist in any physical therapy activities. [The Student] has yet to return to school” but engaged in virtual sessions. See P-Ex. M, Quarterly Physical Therapy Report, dated November 17, 2021 at 1. “She continues to not perform activities when [the] therapist is present on the video screen.” Id. The Student had “not yet met all of her goals” and required more time to achieve them. Id. at 2. Per the Student’s Quarterly Progress Note for occupational therapy, the Student had only been in school one day so “she has not received therapy and progress has not been noted.” See P-Ex. N, Quarterly Occupational Therapy Report, dated November 17, 2021 at 1.

On November 4, 2021, the Parent received a letter from the school indicating that they were “significantly short staffed” which created “a challenging safety issue at the issue.” See P-Ex. H, November 4, 2021 Letter from School at 1. The letter explains that they “have had multiple incidents where the decreased staffing has created dangerous situations for both students and staff.” Id. On November 22, 2021, [REDACTED] sent a follow-up letter indicating that they were asking for “classroom variances” to allow them to “over-enroll some classrooms and re-distribute the current staff to meet the needs of all the children.” See P-Ex. I, November 22, 2021 Letter from School at 1.

In response to these letters, the Parent continued to look for another placement outside of [REDACTED]. The Parent applied to seven non-public state-approved schools but the Student was not accepted because the schools believed that “she needs to build skills at home first before she could transition to a school program.” Tr. 65. Her home instruction application is currently “on hold” because the Parent was told that the Student “needs to be affiliated back to a public school.” Tr. 64. Therefore, the Student is currently receiving no services nor home instruction. Tr. 64.

The Independent Neuropsychological Evaluation In November 2020, approximately two months after the Student’s new placement at [REDACTED], the Parent sought an independent neuropsychological evaluation for the Student because, as the Parent describes: “she was not making any progress, she wasn’t learning. Her academic skills are poor. You know, the constant challenge she was facing. Her needs not being met. She was not in an appropriate program.” Tr. 58-9. As the Parent further explains, the neuropsychological evaluation helped her “to better understand her diagnosis,” as “[i]t pinpoints all the issues and helps create a recommendation services,” including the importance of full-time one-to-one ABA services and related services. Tr. 59. The neuropsychologist that conducted the evaluation, [REDACTED], advised the Parent that [REDACTED] was inappropriate and that the Student “needs home-based services to help build skills until a full-time ABA program can be found.” Tr. 59.

As part of the neuropsychological evaluation, [REDACTED] reviewed the Student’s previous IEPs, medical records and evaluations, and school progress reports along with adaptive and behavioral rating scales completed by the Parent and the Student’s teacher. [REDACTED], as stated in her affidavit, conducted an interview with the Student and the Parent, observed the Student in her virtual learning environment, and attempted “an extensive variety of quantitative neuropsychological tests” to assess the Student’s “cognitive functioning, memory, language skills, executive functioning, academic skills, and social-emotional functioning.” See P-Ex. S. at 2-3; See also, generally, P-Ex. C. Though the doctor notes that “[d]ue to [the Student’s] great difficulties with engagement, sustaining attention, and following directions none of the standardized measures of neurocognitive testing were able to be completed.” See P-Ex. S at 3. Thus, the findings “are primarily based on a thorough and detailed review of [the Student’s] records…clinical observations…and interviews with her parents and school staff.” Id. Based on [REDACTED] evaluation, the Student was diagnosed with Autism Spectrum Disorder with accompanying intellectual and language impairment. Id. at 3; See also P-Ex. C. at 10.

The doctor found that the Student is “largely nonverbal” and “can only say a few words and uses a few signs or gestures.” See P-Ex. S at 4. She “wants to engage with other children but does not know how to do so. She may hit to gain others’ attention.” Id. Her adaptive functioning skills, “such as the ability to navigate the home and school environments; conceptual skills such as functional academics and self-direction; interacting socially with others; and understanding of health and safety concepts were well below average as reported by [the Parent].” Id. Her medical conditions resulting from complications at birth makes it difficult to engage in school activities and interferes significantly with learning. Id. She “lacks social-emotional reciprocity” in that she does not know how to engage with others which results in “inappropriate behaviors as a way to gain attention.” Id. The Student’s “extreme sensory seeking behaviors are some of her most difficult challenges. These behaviors can sometimes be aggressive like pinching, pushing, biting, scratching, and spitting on others. She often has her hands or fingers in her mouth and touches everything in her environment. She is also overwhelmed by loud noises. These behaviors have increased significantly since 2019.” Id.

[REDACTED] concluded that the Student’s needs have not been addressed appropriately by any of her academic settings and “has made extremely limited progress,” still performing at a pre-kindergarten level. Id. at 5. The Student has regressed behaviorally since the COVID-19 pandemic and has shown an increase in aggressive behaviors. In [REDACTED]’s opinion, the Student “has the potential to make progress, if she is provided with the appropriate intensive support needed to build her foundational skills.” Id. Specifically, she recommends a full-time 1:1 ABA program for 35 hours per week of ABA therapy, speech and language therapy five times per week, and occupational and physical therapy both for three times per week. Id. It is recommended the Student obtain an independent assistive technology evaluation to address her communication needs, and an independent occupational therapy evaluation due to her extreme sensory issues. Id. In [REDACTED]’s opinion, the Student requires “substantial compensatory remedial one-on-one instruction in reading, writing, and math provided outside of school,” delivered using an evidence-based, multi-sensory approach, “because her skills have regressed due to the lack of appropriate special education services.” Id. at 6. In light of the fact that several state-approved, nonpublic, and independent private schools were unable to accept the student, the doctor strongly recommends that the Student “be provided with the above-described services at home immediately.” Id.

ABA Home Instruction, Related Services, and Independent Evaluations In support of the Parent’s request for 1:1 ABA home instruction, at 35 hours per week, with four hours per week of Board-Certified Behavior Analyst supervision and one hour per week of parent training and counseling, the Parent presents the testimony of [REDACTED], the clinical director of [REDACTED]. [REDACTED] testified that she reviewed the Student’s neuropsychological evaluation and records and spoke at length to the Parent. Tr. 87. [REDACTED] would be able to provide the recommended 35 hours of ABA therapy, along with four hours per week of BCBA supervision and one hour per week of parent counseling and training. As [REDACTED] explained, BCBA supervision is required under New York State law, and the licensed behavior analyst would be in charge of the creation and implementation of the program as well as conducting the FBA and BIP. Tr. 88. Parent training would provide the Parent “with the tools and training that they need to carry over all the programs and interventions that the providers are working on with” the Student. Tr. 89. The provider will first work with Parent to really understand the Student as she is assessed with various tools such as the FBA. Then the provider would work one-on-one with the Student to implement the created program based on those assessments. Tr. 89. [REDACTED] testified that [REDACTED] works with students of similar profiles and as such, believes the Student can benefit from their services. Tr. 90.

The Parent submitted evidence from [REDACTED] outlining the costs of these services, which include $250 per hour for ABA therapy, behavior intervention services, and behavior intervention consultation, $300 per hour for Board-Certified Behavior Analyst Supervision, and $300 per hour for parent training and counseling. See P-Ex. P, [REDACTED] Rate Sheet at 1. In addition, the cost of a Functional Behavior Assessment is $2,750 and a Behavior Intervention Plan is $1,200. Id. [REDACTED] testified that these rates “are within normal market rates for New York City,” and are “justified by the amount and complexity of the work that’s required to work with a student of [the Student’s] profile.” Tr. 92.

In support of the Parent’s request for speech and language therapy five times per week, occupational therapy three times per week, and physical therapy three times per week, the Parent submitted a rate sheet from provider, [REDACTED] indicating the cost of each of these services is $250 per hour. See P-Ex. R, [REDACTED] Rate Sheet at 1. This provider also conducts an occupational therapy evaluation at a rate of $2,000, and an assistive technology evaluation at a rate of $2,500. Id. Per [REDACTED] affidavit, she supervises a team of licensed speech and language pathologists, occupational therapists and physical therapists who provide these services and conduct these evaluations. See P-Ex. O, [REDACTED] Affidavit, dated December 29, 2021, at 1.

Compensatory Tutoring Services

Lastly, in support of the Parent’s request for 800 hours of compensatory one-one-one tutoring services at a rate of $140 per hour, the Parent submits an affidavit from [REDACTED], the founder and director of [REDACTED] confirming these rates. See P-Ex. Q, [REDACTED] Affidavit, dated December 30, 2021, at 1. [REDACTED], who founded [REDACTED] 18 years ago, testified that, after reviewing the Student’s records, she recommends 800 hours of compensatory tutoring, which is calculated by an average of ten hours per week over a two-year school time span. Tr. 47. That number is based on a variety of factors, including the Student’s diagnosis, her significant academic weaknesses, the lack of foundation, and her limited progress. Tr. 47-8. [REDACTED] believes the Student “absolutely needs significant remediation in order to build these skills.” Tr. 48. The tutoring “would focus on building her very early foundations in reading, writing, and math using a real multisensory approach. And then would build upwards from there.” Tr. 49.

CONCLUSIONS OF LAW AND DECISION

Applicable Law The Individuals with Disabilities Education Act (“IDEA”) offers States federal funds to assist in educating children with disabilities. 20 U.S.C. § 1400 et seq.; See Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 295 (2006). In exchange for the funds, a State pledges to comply with a number of statutory conditions. Among them, the State must provide a free appropriate public education—a FAPE, for short—to all eligible children. § 1412(a)(1); Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 993 (2017). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).

A FAPE, as the Act defines it, includes both “special education” and “related services.” § 1401(9). “Special education” is “specially designed instruction... to meet the unique needs of a child with a disability,” while “related services” are the support services “required to assist a child... to benefit from” that instruction. 20 U.S.C. §§ 1401(26), (29). A State covered by the IDEA must provide a disabled child with such special education and related services “in conformity with the [child's] individualized education program,” or IEP. 20 U.S.C. § 1401(9)(D); Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. at 994.

Although courts may not award damages for violations of the IDEA, Polera v. Bd. of Educ., 288 F.3d 478, 486 (2d Cir. 2002), they may award retrospective and prospective equitable relief, including reimbursement of paid expenses, compensatory education, and other declaratory and injunctive relief. Doe v. E. Lyme Bd. Of Educ., 790 F.3d 440, 454 (2dCir.2015). Compensatory education is “prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education.” Somoza v. N.Y.C. Dep't of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008). In other words, compensatory education aims to make up for educational services the child should have received in the first place. Doe v. E. Lyme Bd. of Educ., 962 F.3d 649, 659 (2d Cir. 2020).

Discussion

In its post-hearing brief, the District conceded its failure to offer a free appropriate public education to the Student for the years at issue. See D-Ex. 3. Therefore, an analysis and independent determination of whether the District offered a FAPE is unnecessary. The District did not meet its obligations under the IDEA nor did it present any evidence or witnesses to the contrary. The only remaining inquiry, given the District’s concession, is to address the remedy.

1. 1:1 ABA Home Instruction & Related Services

Firstly, the Parent’s request for at-home instruction is wholly appropriate and supported by the record. It is clear that the Parent tirelessly attempted every placement alternative before requesting at-home instruction, which included three different preschools, Tr. 54, two different kindergarten placements, Tr. 55, and her eventual placement at the non-public, state-approved, [REDACTED]. At all junctures, these placements proved to be inappropriate, with the Student showing little progression, and in many cases, regression, on every IEP. See, generally, P-Ex. D through G. The Student’s placement at [REDACTED] particularly highlighted the inappropriateness of such a setting, with the Student only attending in-person class twice during the 2020/2021 school year. Tr. 60-1. As the Parent described, those two days in March 2021 resulted in the Student being physically carried into the classroom on the first day, and left in the school hallway on the second. Tr. 61. She fared no better at the beginning of the 2021/2022 school year, when in September the Student was left on the bus all day because staff was unable to transition her into the school. Tr. 62. The Student has since received no instruction, despite the Parent’s home instruction application. See P-Ex. J. In the interim, the Parent has been unable to locate a school that will accept the Student since the schools state the Student “needs to build skills at home first.” Tr. 65.

It is clear that the Student cannot progress in her current setting and that the Parent has tried to place her in other schools to no avail. Per the two physicians who supported the Student’s home instruction application, the Student requires a home-based setting until an appropriate program can be located. See P-Ex. J at 2-5. Therefore, home-based instruction is currently the only available and appropriate placement for the Student.

Secondly, the request for 1:1 ABA instruction is likewise reasonable and supported by the record. Such instruction, in the amount of 35 hours per week, was recommended by [REDACTED], who conducted the independent neuropsychological evaluation. See P-Ex. S at 5. This recommendation was based on the Student’s autism diagnosis, her global deficits, and the finding that the Student needs intensive support to build her foundational skills. Id. The record is persuasive that 1:1 ABA therapy for 35 hour per week, including four hours per week of BCBA supervision and one hour per week of parent counseling and training, at the abovementioned rates, is appropriate given the Student’s deficits, lack of progression, and regression in recent years.

Likewise, the Student’s need for speech and language therapy, occupational therapy, and physical therapy has been well-documented in all of her previous IEPs. The recommendations of speech and language therapy five times per week, and both occupational and physical therapy for three times per week are all appropriate in light of her lack of progress in these areas.

2. Independent Evaluations The Parent requests an occupational therapy evaluation, which is wholly appropriate given the Student’s physical deficits, her sensory issues, and her currently poor progress notes in this area. See P-Ex. N. Similarly, the Parent’s request for an assistive technology evaluation is reasonable in light of the fact that the Student is nonverbal and often communicates through picture books and other means. Such an evaluation would assist in the Student’s communication development. See P-Ex. S at 5.

3. Compensatory Tutoring Services The District’s sole objection to the requested compensatory amount is on the basis that the 2019/2020 school year should not be included in the calculation on the basis of statute of limitations grounds. See D-Ex. 3 at 1. Although the undersigned previously denied the District’s Motion to Dismiss, See IHO-Ex. I, and then denied the District’s Motion to Reopen the Record on this issue, See IHO-Ex. II, I note that the issue is further mooted by the Parent’s own compensatory tutoring calculation, which is based on only two school years, and if using a 46-week computation, is actually an underestimate. Tr. 47. The estimate of ten hours per week for a total of 800 hours, is reasonable in light of the fact that the Student received nearly no meaningful academic instruction for the past two years. As [REDACTED] credibly testified, the ten-hour calculation is based on a variety of factors, including the need for significant remediation. Therefore, I find that 800 hours of compensatory one-on-one tutoring is appropriate.

ORDER

Based upon the Findings of Fact, the District failed to offer a free appropriate public education for the 2019/2020, 2020/2021 and 2021/2022 school years. It is hereby:

• • ORDERED that the District shall fund 1:1 ABA at-home instruction, for 35 hours per week at a rate of $250 per hour, in addition to four hours of BCBA supervision per week at a rate of $300 per hour, and one hour of parent counseling and training per week at a rate of $300 per hour, for the remainder of the 12-month 2021/2022 school year or until an appropriate non-public, state-approved or private school that provides these services can be located;
• • ORDERED that the District shall fund the following home-based services – a) speech and language therapy, five times per week, at a rate of $250 per hour; b) occupational therapy, three times per week, at a rate of $250 per hour; and c) physical therapy, three times per week, at a rate of $250 per hour;
• • ORDERED that the District shall fund the following independent evaluations – a) an occupational therapy evaluation at a rate of $2,000 and b) an assistive technology evaluation at a rate of $2,500; and
• • ORDERED that the District shall fund 800 hours of compensatory 1:1 tutoring in reading and math at a rate of $140 per hour.

SO ORDERED

DATED: March 3, 2022

Impartial Hearing Officer

Anjelica Cappellino, Esq.

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.

DOCUMENTS ENTERED INTO THE RECORD

Impartial Hearing Officer’s Evidence

Exhibit Date Pages

I Order on District’s Motion to Dismiss 1/25/22 3

II Order on District’s Motion to Reopen Record 2/21/22 5

District’s Evidence

Exhibit Date Pages

1 Motion to Dismiss 1/11/22 66

2 Motion to Reopen Record 2/17/22 25

3 Post-Hearing Brief 2/18/22 2

Parent’s Evidence

Exhibit Date Pages

A Due Process Complaint 10/29/21 15

B [REDACTED] Curriculum Vitae N/A 5

C Neuropsychological Evaluation Report 12/15/20 14

D Individualized Education Program 3/7/19 23

E Individualized Education Program & PWN 2/28/20 27

F Individualized Education Program 6/11/20 26

G Individualized Education Program 6/24/21 24

H Letter from [REDACTED] to Parents 11/4/21 1

I Letter from [REDACTED] to Parents 11/22/21 1

J Home Instruction Application 9/30/12 11

K [REDACTED] 8/30/19 3

L Quarterly Classroom Progress Report 11/21/21 2

M Quarterly Physical Therapy Progress Report 11/17/21 2

N Quarterly Occupational Therapy Progress Report 11/17/21 2

O [REDACTED] Affidavit 12/29/21 2

P [REDACTED] Rate Sheet N/A 1

Q [REDACTED] Rate Affidavit 12/30/21 1

R [REDACTED] Rate Sheet N/A 1

S [REDACTED] Affidavit 1/21/22 6

T Post-Hearing Brief 2/18/22 10

Footnotes

[1] Parent's exhibits are collectively referred to as "P-Ex."

[2] District exhibits are collectively referred to as “D-Ex.”

[3] Impartial Hearing Officer exhibits are collectively referred to as “IHO-Ex.”

[4] On February 17, 2022, the District filed a motion to reopen the record in order to further argue statute of limitations claims. See D-Ex. 2, Motion to Reopen Record. For the reasons set forth in an order, dated February 21, 2022, that motion was denied. See IHO-Ex. II, Order on Motion to Reopen Record.

[5] See D-Ex. 3, District’s Post-hearing Brief.

[6] See P-Ex. T, Parent’s Post-hearing Brief.