New York City Department of Education, Impartial Hearing Decision

NYSED #568552 / NYC # 223491

FINDINGS OF FACT AND DECISION

Case Number: 223491

Student's Name: REDACTED

School District: REDACTED

Scho Hearing Requested By: Parents

Record Closed Date: September 12, 2022

Hearing Officer: Dora M. Lassinger The student’s parents filed a request for an impartial hearing on January 5, 2022 challenging the student’s educational program for the 2019-2020, 2020-2021 and 2021-2022, school years and requesting independent evaluations, a deferral to the Central Based Support Team (“CBST”) for a new nonpublic school placement and various forms of compensatory education. I was designated to hear this matter on February 16, 2022, pursuant to 20 U.S.C. Section 1415(f)(1).

A pre-hearing telephone conference was held on March 1, 2022. By agreement of the parties, I ordered the DOE to fund the following independent evaluations:

1. Autism Skills Assessment,

2. Central Auditory Processing Evaluation,

3 Sensory Integration and Praxis Test.

The CSE was also ordered to reconvene to review the independent evaluations, within 15 school days following receipt thereof. (IHO Ex. I).

Following the CSE reconvene, the parents filed an amended complaint, challenging a May 27, 2022 IEP and adding a claim for relief with respect to the 2022-2023 school year. (Par. Ex. F).

A hearing on the merits was held on August 8, 2022. The compliance date was extended twice, with a final compliance date of September 21, 2022. (IHO Ex. II).

Parent’s Position The parent is requesting that the student’s placement be deferred to the CBST for placement in an appropriate Non-public school (“NPS”) with 10 hours per week of at home Applied Behavior Analysis (“ABA”), Parent Counseling and Training (“PCAT”) four hours per month individually, Board Certified Behavior Analyst (“BCBA”) supervision eight hours per month. The parent also requests a feeding evaluation and feeding therapy once per week for 45 minute sessions; Occupational Therapy (“OT”) twice per week for 45 minute sessions, individually; Speech/Language Therapy (“SLT”) three times per week for 30 minute sessions (twice individually and once in a group);and Physical Therapy (“PT”) twice per week for 30 minute sessions;

The parent also requests the following items of compensatory relief:

1,380 hours of ABA [10 hours per week, over 3 extended school years (46 week)], plus 276 hours of BCBA supervision (2 hours per week for 138 weeks);

138 hours of make-up PCAT

506 hours of academic remediation at REDACTED, (hereinafter “the tutoring center”) with an assessment charge of $295 and a $ 100 registration fee;

Metro cards for parent and child to access the remediation;

PT- 46 hours

138 hours of OT (1.5 hours per week x 46 weeks x two years);

207 hours of SLT (1.5 hours x 46 weeks x 3 years);

A Functional Behavioral Assessment (“FBA”) and a Behavior Intervention Plan (“BIP”) by a BCBA;

An Assistive Technology (“AT”) evaluation, and 69 hours of compensatory AT (1.5 hours x 46 weeks); plus 46 hours of PCAT for AT.

Feeding evaluation, plus 138 hours of make -up feeding therapy (1.5 hours x 46 weeks for 2 years). (Tr. pp. 44-55).

The parents request that until such time as an NPS is identified for the student, that he continue to attend his current placement, with push-in ABA services. (Tr. p. 245).

Department of Education (“DOE”) Position The DOE did not present any evidence or make any argument at the hearing. (Tr. p. 31).

Evidence at Hearing The parent testified that the student attended preschool, through the 2018-2019 school year. The student’s teacher noted the student’s difficulty with transitions, social skills and in academics. It was agreed that there would be an evaluation, which was conducted in February and March 2019. (Tr. pp. 200-201).

A psychological evaluation was performed on January 23, 2019. It was reported that recent assessments showed that the student was performing at a first grade level for Math and ELA. The student’s cognitive functioning was in the below average range. On the Vineland Adaptive Behavior Scales III, his score was in the Moderately Low range for Communication, Daily Living Skills and Socialization; and in the adequate range for motor scales. (Par. Ex. EE).

An Educational Evaluation was performed on February 7, 2019. On the Developmental Assessment of Young Children-2 (“DAYC-2”), his scores were in the below average range for cognitive, receptive and expressive language, total communication, adaptive and fine motor skills. His score on a test of gross motor skills was in the average range. His social-emotional score was in the poor range. The student’s Gross Motor and Fine Motor Skills were judged to be in the average range based upon parent report, observation and informed clinical opinion supported by the DAYC-2. The student’s teacher reported that the student’s behavior was very inconsistent, and progress had not been noted. (Par. Ex. BB).

An Occupational Therapy evaluation was performed on February 5, 2019. The parents were concerned with the student’s attention span, focus and coordination. He demonstrated deficits in sensory integration skills, grasping and visual motor skills and self-help skills. OT was recommended. (Par. Ex. DD).

A Speech/Language Evaluation was performed on February 8, 2019. The parent denied the student having feeding, swallowing or chewing difficulties. She described him as a picky eater, who likes certain fruits, chicken and rice, but does not like any vegetables. His verbal output was judged to be poor for his age. His receptive language skills and articulation were judged to be age appropriate. His expressive language skills were moderately delayed. (Par. Ex. AA).

An IEP meeting was held on March 28, 2019. and the parents attended. The student was classified and recommended for a special class (12:1:2) with related services of SLT and OT (2 x 30 individually, for each service), to commence on April 23, 2019. (Par. Ex. K). A preschool was located for the student to attend for the last seven weeks of the 2018-2019 school year. (Tr. p. 202).

Another IEP meeting was held on May 23, 2019. The student was classified with a Speech or Language Impairment. The parent testified that the parents communicated that the student should continue in a class of 12 students; however the CSE recommended a general education setting with Integrated Co-Teaching (“ICT”) with related services. (Tr. p. 204). The May 23, 2019 IEP reported that the student was functioning on a pre-kindergarten level for reading and math. The student was recommended for ICT services 29 periods per week with related services of OT once per week individually and once in a group of three; and SLT once per week individually and once in a group of three. (Par. Ex. J).

During the 2019-2020 school year, the student’s teachers were reporting behavioral outbursts and regression. The school did not have an OT provider, so the parents were given an RSA for OT. The parent testified that the student received one OT session in February, before the COVID-19 shutdown; and then telehealth, from March of 2020. The student’s SLT provider expressed concerns about his progress in SLT. (Tr. pp. 205, 231). The parent testified that there was some disruption in the student’s SLT services during the period of school closure. (Tr. p. 234).

The parent obtained an independent evaluation from a Certified School Psychologist, and BCBA in November 2019. The evaluator suggested a diagnosis of Autism Spectrum Disorder (“ASD”). The evaluator observed the student in his collaborative team teaching classroom and found that the teachers in the class worked well with the student’s symptomatic presentation. It was recommended that the parents apply for insurance based ABA and parent training, to help him develop better communication and play skills, and to partner with the school based support staff to develop better wrap-around services for the student. Further recommendations were made for teaching social skills through basic skills training. Modifications were recommended to the student’s current behavior chart. It was further recommended that consideration be given to providing a paraprofessional for the student and that the student receive an auditory evaluation. (Par. Ex. Y).

The parent testified that she provided the evaluation to the district in early January 2020, during a meeting; however no changes were made to the IEP until later in the year, when he was classified with autism. She testified that the only change made to the methodologies used was a change to the behavioral chart, the use of a timer on the student’s desk and visual, laminated schedules. (Tr. pp. 206-207). The parent testified that the student’s behaviors only increased, and that he felt the children were calling him stupid, and would point out that he had to leave the class for services. (Tr. p. 207).

An IEP meeting was held on May 20, 2020, during the period of school closure. The student’s behavioral difficulty is noted throughout the IEP. It was noted that he requires attention, and requires one-to-one support to complete assignments. Although the student’s prior IEP’s did not include counseling, the May 20, 2020 IEP indicates that he was receiving counseling, and was learning to interact, engage and verbalize his feelings and needs with others and himself. ^[1] As far as physical needs, it was noted that the student had good fine motor skills and no physical limitations; and that he is able to run quickly in the gym and participate in all activities. The student’s classification was changed to Autism, and he was recommended for ICT services 25 periods per week with related services of OT once per week individually and once in a group of three; and SLT once per week individually and once in a group of three. Counseling, once per week in a group of three, and a full-time paraprofessional were added to the student’s IEP. It was reported that the student was still reading on a pre-kindergarten level, but performing math on a kindergarten level. The IEP refers to a BIP. (Par. Ex. I). The parent testified that her request for 12 month programming was denied. She testified that the student struggled with remote learning, and also left without socialization. Nevertheless, the student attended his remote speech sessions. (Tr. pp. 208-209).

The parent testified that the student started the 2020/2021 school year without counseling, OT or SLT for several months. (Tr. p. 211). She testified that the student did not respond well to the addition of the paraprofessional, which he felt was more of a way to control him, than a support. He grew more resistant to getting on the bus and attending school, and his aggression toward family and school staff and students increased. (Tr. p. 212). The parent felt the student was regressing, and having difficulty regulating his emotions. (Tr. p. 214). The parent later testified that the student did not receive any SLT at all during the 2020/2021 school year. (Tr. p. 235).

She testified that the student did not receive OT at school during the 2020-2021 school year, and she was provided an RSA. She was unable to find a provider until the Summer of 2021, and he did not receive OT for the entire 2020-2021 school year. (Tr. pp. 232-233)

Another IEP meeting was held on May 11, 2021. It was noted that SLT via teletherapy was scheduled as of February 2021, when the parent consented; but that the student’s attendance was very limited, and his present levels of performance could not be reported. The student’s behavioral difficulty is noted throughout the IEP. It was noted that he the student refuses to participate in counseling sessions and that he would benefit from individual and group counseling. It was noted that a contract with visuals would be in place at the start of the 2021/2022 school year. As far as physical needs, it was noted that the student’s handwriting and visual motor skills are developing typically, except for decreased hand stamina. His behavior interfered with his participation in OT, he had poor sensory regulation, and refused to come to teletherapy sessions. It was noted that the student received ABA therapy in the past, and may benefit from a hybrid model that slowly fades out the ABA techniques. ^[2] His management needs, as described in the IEP, included visuals, constant breaks, breaking tasks down into smaller steps, schedule cards on desk, and timer on desk. He was recommended for ICT services 10 periods per week with related services of Counseling, once per week individually and once in a group; OT twice per week individually; and SLT once per week individually and once in a group of three. A full-time paraprofessional was also recommended. It was reported that the student was still reading and performing math on a kindergarten level. The IEP refers to a BIP). (Par. Ex. H).

The parent testified that the student’s behaviors became worse at the start of the 2021/2022 school year. (Tr. p. 215). On October 1, 2021, the student’s teachers wrote to the parent describing the student’s negative reaction to the one-to-one paraprofessional, and their efforts to work with her, to better support him. They also reported that the student was resistant to attending SLT and Counseling, and missed sessions. As of that date, there was no OT provider. They also described their effort to overcome his resistance to academic challenges, by gradually increasing his workload. They also described an incident when he interacted inappropriately with peers, as well his progress in seeking social interactions, while respecting boundaries. Finally, they described an incident when he bit his paraprofessional. They concluded by stating that the student requires highly individualized attention, repetition, continuous reinforcement and frequent breaks; and suggested that he be placed in a smaller class. (Par. Ex. HH). Nevertheless, the parent testified that the school’s only response was to give the student a desk and chair outside of his classroom. (Tr. p. 216).

The parent testified that the student did not receive OT during the 2021-2022 school year and that she has been recently contacted about summer make up sessions, but she could not state how many were offered. (Tr. p. 233). She also testified that the student’s attendance in SLT sessions was inconsistent, and that push-in services were attempted. (Tr. p. 235).

The parent testified that the student needs longer periods of time to eat, and is sensitive to light and sound. He eats a limited diet, which also causes him to be hungry and affects his ability to self-regulate and communicate. (Tr. p. 218). She testified that the student will not accept the breakfast choices that are offered at school. (Tr. p. 230). The parent also feels that the student requires assistive technology. (Tr. pp. 219-220). She believes it would be beneficial for an ABA provider to work alongside the student’s other providers, at least initially. (Tr. pp. 221-222).

An independent speech/language evaluation was performed in two sessions, via videoconferencing, in April 2022.^[3] The student’s articulation/speech intelligibility was within normal limits. His speech/language functioning was in the mildly deficient range. His pragmatic language skills were in the moderately deficient range of functioning. It was recommended that the student receive SLT three times per week for 30 minute sessions two times individually and once in a group of three (Par. Ex. P).

An independent OT evaluation was performed on March 29, 2022. The student performed in the average range for motor coordination and visual-motor; however he required compensatory strategies to improve his handwriting. Specialized intervention was recommended to address difficulties with ocular-motor skills. Deficits in vestibular processing and bilateral integration were noted. Sensory processing was also determined to be an area requiring intervention. The OT evaluator also stated that the student would benefit from feeding therapy to expand his diet and promote healthy development. ^[4]It was also determined that the student requires assistance with various activities of daily living (“ADL”s), including tying shoes and toileting hygiene. It was recommended that he receive OT two times per week for 45 minute sessions, individually and feeding therapy, once per week for 45 minute sessions, individually. (Par. Ex. Q).

A separate OT Sensori-Motor Evaluation was also performed by a different OT evaluator. This evaluation also recommended OT twice per week for 45 minute sessions, using a sensory approach coupled with behavioral strategies. It was recommended that the student be assessed by a nutritional specialist with a biomedical background to assess him for a need for nutritional intervention to support self-regulation. (Par. Ex. U).

An Auditory Processing Evaluation was performed on March 18, 2022. The evaluator found that the student presented with an auditory processing disorder and recommended, among other things, an FM system or low gain noise reducing hearing aids, with microphone clip for teachers; SLT three times per week (once individually and twice in a group of three), extended school year services, multisensory reading instruction. (Par. Ex. V).

An independent PT evaluation was performed on May 5, 2022. The student performed in the average range for bilateral coordination, but was unable to complete a test of balance. He demonstrated below average strength and agility. It was recommended that he receive PT two times per week for 30 minute session, individually. (Par. Ex. R).

A neuropsychological evaluation was performed in February and March 2022. At the time of the evaluation, the student was enrolled in an ICT class, in the REDACTED grade. The evaluator also testified that the student had at least average intelligence. His word reading skills were in the average range; however his reading comprehension skills were delayed at a mid-kindergarten level. His math problem skills were in the average range, but his score for numerical operations was at the fifth percentile.

The neuropsychologist diagnosed the student with Autism Spectrum Disorder (“ASD”) Level 2, without intellectual impairment, Social Pragmatic Language Disorder, and Specific Learning Disorders with severe impairments in reading, written expression, and Math and Attention Deficit Hyperactivity Disorder (“ADHD”). She recommended placement in an NPS, with a small student teacher ratio (6:1:2). She recommended that he receive ABA instruction to increase his skills while decreasing problematic behaviors. She recommended that staff be under the supervision of a New York State Licensed Behavioral Analyst/BCBA. She further recommended an FBA and a BIP, to be implemented at home and school. She also recommended SLT three times per week (once individually and twice in a small group), and compensatory academic instruction (400 hours in writing, 400 hours in reading comprehension and 400 hours in math), as well as compensatory ABA services and related services. She also recommended counseling twice per week individually, as well as compensatory counseling. She recommended PCAT two hours per month. Twelve month programming was also recommended. (Par. Ex. T).^[5]

The neuropsychologist described the student as a very bright, very verbal boy who is very internally directed and hypersensitive to the environment. (Tr. p. 93). She testified that his nonverbal intelligence scatters up to the superior range, but he can’t transfer that information to paper and pencil, and his processing time is slow. (Tr. pp. 94-95). Despite his vocabulary and world knowledge, he is unable to maintain a conversation. (Tr. p. 96). She testified that he requires a specialty program designed for children on the autism spectrum. (Tr. p. 99).

An IEP meeting was held on May 27, 2022. It was noted that the student’s attendance in SLT sessions was inconsistent, as he does not like to get pulled out; and he is not engaged in push-in services. He was often distracted and easily frustrated. The SLT provider reported that the student would benefit from individual SLT twice per week. The IEP described the student’s maladaptive behaviors including tantrums and elopement. The IEP described the student as having no physical limitations, and appropriate gross motor skills. The IEP describes his sensory deficits. His present levels of performance could not be reported. Although the intent of the CSE appears to have been to place the student in a in a DOE specialized school, (See Par. Ex. G-19, 21), the IEP includes related services only, (Counseling twice per week, once individually and once in a group; OT three times per week individually; PT once per week individually and once in a group; and SLT twice per week individually, a full-time paraprofessional, a BIP and 12 month programming). The IEP states that the student is performing on a first grade level for reading and a kindergarten level for math. The parent never received a site offer following the meeting. (Par. Ex. G; Tr. p. 225).

The DOE performed an AT evaluation of the student on May 17, 2022. It was reported that the student demonstrated fluency in using and operating an iPad, including opening tabs, navigating apps and browsing the web. The student typed with his right index finger and left thumb, and enjoyed typing. The student’s performance was improved by typing on the touchscreen tablet keyboard, with the support of word processing word prediction, auditory feedback and dictation, as needed. It was recommended that the student receive a trial of a touchscreen tablet with various applications, to assist him with reading and writing (word processing, word prediction, auditory feedback, dictation as needed and PDF annotation for writing). It was reported that the student’s teachers were trained in the use of the suggested trial applications. (Par. Ex. O). The results of the trial of the iPad and applications was not reported, and AT was not added to the student’s IEP. The parent testified that the student was provided with a new iPad, with three new applications; but that she was never trained in the use of the applications. (Par. Ex. G; Tr. p. 227).

On January 17, 2022, an academic evaluation of the student was performed by the tutoring center. The student performed poorly on tests of reading comprehension, mathematics and writing. It was recommended that he receive 126 hours of instruction in reading, 120 hours in phonics, 105 hours in vocabulary, 60 hours in writing and 95 hours in math, for a total of 506 hours of instruction. (Par. Ex. KK).

The tutoring center provides tutoring services to special education students with a variety of classifications. (Tr. pp. 109-110). The student was able to sit and complete academic assessment. The tutoring center employs both general and special education teachers. (Tr. p. 111). The recommendation for 506 hours of instruction is based upon the amount of time it typically takes a student to complete all of the pieces of curriculum which have been recommended for this student. (Tr. pp. 130, 133). Tutoring is provided at the rate of $110 per hour. There is also an assessment fee of $ 295 and a registration fee of $100. (Tr. p. 134). The tutors may use a variety of methodologies, including multisensory curriculum. (Tr. p. 135). Staff at the tutoring center are very experienced in dealing with students who are distractible and exhibit behaviors. (Tr. p. 137). The Director of the tutoring center testified that a certified special educator could be assigned to provide tutoring for the student. (Tr. p. 140).

An Autism Skills Assessment was conducted in March and April 2022, by a Board Certified Behavior Analyst, (hereinafter “the BCBA”) who is the owner of an agency which conducts FBA’s, BIP’s, and provides ABA interventions, BCBA supervision, specialized tutoring services and parent training. The BCBA has a Master’s Degree in Clinical Psychology, with a specialization in ABA and is a Licensed Behavior Analyst (“LBA”). (Tr. pp. 142-144).

She testified ABA is “the gold standard methodology for students with autism”, and is a very systematic way of increasing skills as well as decreasing inappropriate behaviors. (Tr. p. 146). ABA must be provided under the supervision of the BCBA. It’s also important the BCBA collaborate with the parents and all teachers and service providers. (Tr. p. 148). PCAT is provided by the BCBA. (Tr. p. 149).

The Agency provides ABA at a cost of $150.00 per hour; and BCBA supervision and PCAT at a cost of $200 per hour (Tr. pp. 150-151).

The BCBA performed an observation of the student and at home and at school, and spoke with his teacher, and principal, and reviewed relevant evaluations and IEP’s. She observed how his behaviors are impeding his learning, and that the paraprofessional was not implementing any systematic plan. She observed that he has skills, but that his behaviors impede his ability to acquire new skills. (Tr. pp. 152-160). The principal of the school shared how inappropriate the school was for the student; and that it took 30 to 40 minutes to get the student to enter the building. (Tr. p. 156).

The BCBA recommended that the student receive ABA throughout the day in an NPS. Until such a school is located, she recommends that he receive a full-time ABA (30 hours per week) to push into his school setting, to prevent additional harm. She also recommended that he receive 10 hours per week of home ABA so he is able to generalize skills across settings, to decrease his inappropriate behaviors, and to replace them with skills that are functional. (Tr. pp. 161-166). She recommended BCBA supervision 8 hours per month, for all parts of the student’s program, including teachers, providers and the parents; and PCAT, 4 hours per month. (Tr. pp. 169-170).

She recommended that the student receive an FBA and BIP while in the public school. (Tr. p. 165). Her agency can conduct the FBA at a cost of $1,500; and prepare a BIP at a cost of $450. (Tr. p. 175).

She recommended that the student receive a make-up program of 1,380 hours of ABA tutoring (10 hours per week of ABA x 46 weeks for three 12 month academic years), in addition to an appropriate educational placement. She recommended that the compensatory hours be provided in the home and community to increase his verbal skills, his self-care skills, increase his tolerance for non-preferred activities, and increase his social skills. These hours would take place after school, on weekends, holidays and during breaks. She further recommended that the student be awarded 276 hours of compensatory BCBA supervision as a component of the ABA program. (Tr. p. 174). She also recommended 138 hours of PCAT, (1 x 46 weeks x 3 years). (Tr. pp. 174, 192). She testified that these hours could be used to provide longer training sessions, initially; and to provide support for areas where the student has a difficult time, such as going to the doctor. (Tr. pp. 198-199).

She testified that the student would need an ABA provider, to support him throughout his other services, at least initially; until his behaviors have decreased. (Tr. pp. 183-184).

The parent presented in evidence a Compensatory Services Plan, created by the Executive Director of an Agency (hereinafter “the Director”), in consultation with various therapists employed by her Agency, who performed independent evaluations of the student, and based upon a variety of records including independent evaluations other evaluations, IEP’s and reports. (Par. Ex. JJ)

The Director testified that she has Master’s Degrees Special Education and in ABA and Autism. She also has training as a reading specialist. (Tr. pp. 57-58). The Agency provides services to students with disabilities including SLT, PT, OT AT, PCAT, Counseling and Special Education Services. The Agency also performs various evaluations, including multidisciplinary feeding evaluations. (Tr. p. 59). A sensory based feeding evaluation was recommended for the student, at a cost of $2,000. (Tr. pp. 62, 69). The compensatory services plan contains the following recommendations, which the Agency is available to provide:

46 hours of PT

138 hours of Compensatory OT

138 hours of Feeding Therapy

69 hours of AT and 46 hours of AT training for parent;

207 hours of compensatory SLT

All of these services can be provided, by the Agency, at the rate of $180 per hour, for each service. (Par. Ex. JJ, Tr. pp. 62-74).

A Feeding evaluation can be provided at a cost of $2,000. (Tr. p. 69). An AT evaluation at a cost of $2,000 (Tr. p. 71).

The Director of the Agency testified that no AT was trialed with the student, in making the recommendation for compensatory AT training. (Tr. p. 79).

Findings of Fact, Conclusions of Law and Order The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The IEP must be reasonably calculated to enable the child to make progress appropriate in light of the student’s circumstances. Id. at 1002.

I find that the DOE failed to meet its burden of proving the appropriateness of its recommendations and programs for any of the school years at issue. The DOE failed to present any evidence to support its recommendations. While the ICT teachers were observed to work well with the student (during the 2019/2020 school year), the lack of behavioral supports prevented the student from making appropriate progress academically and in his therapies. In subsequent school years, the student’s behaviors increased, he was unable to access his therapies, and had difficulty even entering the school building. The one-to-one paraprofessional assigned to assist the student was not effective in managing his behaviors. The student suffered emotionally from being in an inappropriate setting.

The independent evaluators have recommended that the student be placed in an appropriate NPS, with 10 hours per week of at home ABA therapy, BCBA supervision 8 hours per month, 4 hours per month of PCAT, and related services of OT twice per week for 45 minute sessions, individually; SLT three times per week for 30 minute sessions (twice individually and once in a group); PT twice per week for 30 minute sessions, individually; and feeding therapy once per week for 45 minute sessions. Most of these recommendations are supported by the record, and will be ordered (with some modification to the amount of BCBA supervision, described below). The request for feeding therapy is not supported by the record; however, a feeding evaluation will be ordered.

Although the student has been recommended for counseling, twice per week, in his last IEP (and in the neuropsychological evaluation); at the hearing, the parent did not requested that this be part of the student’s program. Nevertheless, counseling was requested in the due process request, and I will order that counseling continue. In addition, I will order that the CSE provide the AT that has already been recommended (tablet with various applications, as described in AT evaluation; FM system or hearing aids, as described in the auditory processing evaluation).

The parent ‘s request that until such time as an appropriate NPS is located, the student shall receive 30 hours per week of ABA therapy, pushed-in to his current setting, will also be granted. While I agree that two hours per week of BCBA supervision is warranted, during the time period when the BCBA needs to supervise a school and home program; after the student is placed in an appropriate NPS, the amount of BCBA supervision ordered will be reduced to one hour per week.

Compensatory Remedy In P. v. Newington Board of Education, 546 F. 3d 111 (2d Cir. 2008), the Second Circuit held that upon a finding of a denial of FAPE, a hearing officer may fashion an appropriate remedy, including compensatory education to make up for a denial of FAPE. The ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place. See Doe v. East Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015) (quoting Reid ex rel. Reid v. D.C., 401 F.3d 516, 524 (D.C. Cir. 2005).

In Reid ex rel. Reid v. D.C, supra, the Court rejected an “hour-for-hour, day for day formula” in calculating an award, as being a form of damages; in favor of a flexible approach, in the discretion of the court or hearing officer. This could include prospective injunctive relief. Id., citing G. ex rel. RG v. Fort Bragg Dependent Schs., 343 F. 3d 295, 309 (4th Cir. 2003).

I find that the following items of compensatory relief will provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.

Academic Remediation The request for 506 hours of compensatory tutoring (and related fees) is granted. The student’s placement in a setting with inadequate behavioral supports, over a three year period, contributed to his lack of progress in reading, math and writing. The requested compensatory tutoring will compensate the student for his lack of academic progress, resulting from his inappropriate placement.

SLT, OT

The requests for 138 hours of compensatory OT and 207 hours of compensatory SLT are reasonable, and are supported by the record. There were large gaps in the provision of OT services to the students during the three years in question. Even though SLT was available to the student, for most of the time period covered by this due process complaint; he was on many occasions, unable to participate in it, due to his behaviors. When recently evaluated, the student’s speech/language functioning was in the mildly deficient range and his pragmatic language skills were in the moderately deficient range of functioning. The student’s OT needs are well documented in the record.

Physical Therapy

PT, as a related service, for two thirty minute sessions, was recommended in the independent evaluation performed on May 5, 2022. The DOE also incorporated this recommendation into the most recent IEP (with a slight modification, providing for one individual and one group session). In this hearing, the DOE did not challenge the request for two individual sessions per week of PT. Therefore, that request will be granted.

I do not find that 46 hours of compensatory PT requested by the parent is warranted. Prior to the recent independent evaluation, there was no indication that either the parent or school staff believed that the student required PT in order to benefit from special education. Nor do I find that the failure to provide PT in the past resulted in a lack of educational progress. Nevertheless, as it does not appear that the service was implemented, when recommended in the May 22, 2022 IEP; I will order that the DOE provide the student with 15 hours of compensatory PT, for the delay in the provision of the service, from May 22, 2022 until the date of this decision.

Assistive Technology Evaluation and Training

Based upon the documents and testimony in the record, I find that an AT evaluation is warranted. While the DOE has recently performed an AT evaluation, and determined that the student would benefit from AT; the specific applications recommended were not identified in the AT report, and there is no report of what occurred when the AT was trialed. Nor were the recommendations incorporated into the student’s IEP. Therefore, I will order the DOE to provide the student with an independent AT evaluation, at the requested rate; to reconvene to review the independent evaluation, and to recommend appropriate AT, including support for the student and his teachers in its use. In the interim, the student should be provided with the AT that was already recommended for him in the DOE’s AT evaluation, and the FM system (or hearing aids) recommended in the auditory processing evaluation.

I find that there is an insufficient basis in the record for an award of 69 hours of compensatory AT and 46 hours for the parent, as requested in the compensatory services plan. When evaluated by the DOE, the student demonstrated fluency in using and operating an iPad, including opening tabs, navigating apps and browsing the web.

I find that an award of 25 hours of AT training for the student and 10 hours for the should be sufficient to compensate for the DOE’s failure to provide AT to the student in the past.

Feeding Assessment and Training

• • An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related service needs, 8 NYCRR 200.4[b][6][ix]).

A service must be provided as a related service if it is necessary to assist the child with a disability to benefit from special education. Application of a Child with a Disability, Appeal No. 04-060, citing Irving Independent School District v. Tatro,, 468 U.S. 883 (1984). The issue of feeding was raised for the first time during the independent evaluations by the Agency that is now proposing to provide the feeding therapy.

The request for compensatory feeding therapy is denied. There has been no showing that the student’s limited diet resulted in a denial of FAPE. Nevertheless, the degree of the student’s dysregulation is concerning. A feeding evaluation should be performed, and the evaluation reviewed by the CSE; to determine whether the student requires feeding therapy, as a related service, to benefit from special education.

ABA Therapy/BCBA Supervision/PCAT The BCBA recommends 1380 hours of compensatory ABA therapy, to address the student’s maladaptive behaviors, increase his verbal skills, his self-care skills, increase his tolerance for non-preferred activities, increase his social skills and to improve his academic, social and daily living skills. The number of hours was computed using a quantitative analysis, based upon the BCBA’s opinion that the student should have received 10 hours per week x 46 weeks for 3 years.

The award of compensatory SLT, OT, and Tutoring will address the deficits in the student’s verbal skills, self-care skills, academic skills and daily living skills, which resulted from the denial of FAPE. Some BCBA/ABA support will be required, at least for a period of time, for the student to access his compensatory therapies and tutoring. ABA therapy will also be needed to reduce the student’s maladaptive behaviors, and support him in developing his social skills.

I find that 800 hours of compensatory ABA therapy, combined with the compensatory therapies and tutoring, will adequately compensate the student for the failure of the DOE to provide sufficient behavioral supports in the past, or provide any home ABA services. The record indicates that while the student requires a strong behavioral component to benefit from his educational services; he has acquired skills in academics, language, and daily living skills, without ABA instruction In arriving at an amount of compensatory ABA instruction, I have considered that the ABA therapist may need to work alongside other service providers, at least initially; teach the student social skills, and provide additional support to the student, during weekends and vacations.

180 hours of compensatory BCBA supervision is also awarded, to provide support and supervision for the other compensatory services, including the compensatory ABA therapy.

The parents will be awarded 72 hours of compensatory PCAT, with a BCBA. I find that this award, combined with ongoing PCAT (four hours per month) will provide the parents a sufficient amount of support to compensate for the DOE’s failure to previously provide PCAT. I also note that the award of four hours per month of PCAT, going forward, is twice the amount recommended in the the neuropsychologist’s evaluation.

Counseling The record indicates that the student missed mandated counseling services, and that he has suffered emotionally as a result of his inappropriate placement. For the foregoing reasons, I find that an award of 40 hours of compensatory counseling is warranted.

ORDER

For all of the foregoing reasons, it is hereby ordered as follows:

• • The CSE shall reconvene by October 3, 2022, to recommend the following program:
• • Defer the student’s placement to the Central Based Support Team for placement in an appropriate NPS;
• • PT twice per week for 30 minute sessions, individually;
• • OT twice per week for 45 minute sessions (or 3 times per week for 30 minute sessions) individually;
• • SLT three times per week for 30 minute sessions, twice per week individually; and once in a group;
• • Counseling twice per week for 30 minute sessions, at least one session to be provided individually;
• • At home ABA therapy 10 hours per week, with one hour per week of BCBA supervision;
• • PCAT with a BCBA four hours per month, individually;
• • Until such time as the student is placed in an appropriate NPS, he shall be provided with 30 hours per week of push-in ABA therapy, in his current placement and an additional 1 hour per week of BCBA supervision (for a total of two hours per week);
• • AT, as recommended in the DOE’s AT evaluation (touch screen tablet with applications for word processing, word prediction, auditory feedback, dictation as needed and PDF annotation for writing) with such support as shall be required for the student to access the AT;
• • FM system or hearing aids, as recommended in the Auditory Processing Evaluation;
• • The DOE shall forthwith fund an independent AT evaluation at the rate of $2,000, an independent sensory feeding evaluation at the rate of $2,000; an independent FBA at the rate of $1,500; and a BIP, at the rate of $450.00;
• • The CSE shall reconvene within 15 days of receipt of the independent FBA and BIP, to recommend an appropriate BIP, to be added to the student’s IEP, until such time as he is placed in an NPS;
• • The CSE shall also reconvene within 15 days of receipt of the AT and feeding evaluations to determine whether the student requires feeding therapy and additional AT; and to add such additional services and supports for the student, his teachers and parents, which may be required, in order for the student to benefit from the AT;

5. The DOE shall fund the following compensatory services, with qualified providers of the parent’s choosing and at the rate of $180.00 per hour, to be used within three years of this order:

a. 207 hours of SLT; b. 15 hours of PT c. 138 hours of OT d. 25 hours of AT training for the student, and 10 hours of AT training for the parent. e. 40 hours of Counseling

3. The DOE shall also fund the following additional compensatory services to be used within three years of this order.

(a) 800 hours of ABA therapy, at the rate of $150.00 per hour,

(b) 180 hours of BCBA supervision, at the rate $200.00 per hour,

(c) 72 hours of PCAT, at the rate of $200.00 per hour, and

(d) 506 hours of tutoring by a certified special education teacher at the rate of $110. per hour plus an assessment fee of $ 295 and a registration fee of $100;

(e) Metro Cards for the student and parent to access all compensatory services and tutoring.

Dated: September 17, 2022 Dora M. Lassinger

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer

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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 Office (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.

DOCUMENTATION ENTERED INTO THE RECORD

Impartial Hearing Officer Exhibits

I. Interim Order, 3-1-22 1 p.

II Orders of Extension, various dates 4 pp.

Parent’s Exhibits

Exhibit Number

Number Exhibit Date of Pages

REDACTED

Footnotes

[1] The parent testified that counseling was being provided throughout the pandemic, despite that it was not part of his IEP, to provide additional support. (Tr. p. 210).

[2] The ABA therapy referred to in the IEP was secured through the parent’s insurance, but was very minimal, (three to four hours up until the time of hearing); and did not commence until the Summer of 2020, due to the pandemic. (Tr. p. 213).

[3] Due to the fact that the evaluation was conducted remotely, the evaluator was unable to examine the oral peripheral mechanism. (Par. Ex. P3).

[4] The basis for this recommendation does not appear in the report. The only information contained in the report regarding a feeding problem is the parent’s report that the student can use a fork, but has more success controlling his food with a spoon, and that he reacts strongly to smells.

[5] Parent’s counsel stated that an order simply directing placement in an appropriate NPS would be preferable to specifying staffing ratios, and methodologies. (Tr. p. 55).