New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No.: 223904

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: May 5, 2022

Record Close Date: July 3, 2022

Hearing Officer: Anjelica Cappellino

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 5, 2022

For the Student:

[REDACTED], Attorney

[REDACTED], Parent

For the Department of Education:

[REDACTED], District Representative

INTRODUCTION

This matter comes before the undersigned hearing officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on January 20, 2022. 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 (“FAPE”) as required under the Individuals with Disability Education Act (“IDEA”) for the 2020/2021 and 2021/2022 school years and is requesting the following relief to be funded by the District:

• • A home-based Applied Behavior Analysis (“ABA”) program for 70 hours per week (10 hours per day for seven days per week), which also includes:^[2]
• • Board-Certified Behavior Analyst (“BCBA”) Supervision for six hours per week;
• • Speech-language therapy for five 60-minute sessions per week;
• • Occupational therapy for three 60-minute sessions per week^[3];
• • Feeding therapy for one time per day for seven days per week;
• • Parent counseling and training for five hours per week;
• • A bank of compensatory services which include:
• • Compensatory ABA services in the amount of 7,280 hours, as well as compensatory BCBA Supervision services in the amount of 624 hours;
• • Compensatory speech-language therapy in the amount of 520 hours;
• • Compensatory occupational therapy in the amount of 312 hours;
• • Compensatory Feeding therapy in the amount of 730 hours; and
• • Compensatory parent counseling and training in the amount of 520 hours; and
• • An assistive technology evaluation funded at market rate.

PROCEDURAL HISTORY

The undersigned Impartial Hearing Officer was appointed to the above matter on January 25, 2022. A prehearing conference was held on March 4, 2022, during which time the Parent requested an Interim Order to obtain an independent neurological evaluation to help plan for the Student’s home-based program. Tr. 6. The District did not object. Tr. 10. An Interim Order was granted on March 16, 2022. See IHO-Ex I. A status conference was held on April 7, 2022 and Parent’s counsel advised that there was a delay due to the Student’s recent hospitalization but was confident they could proceed without it. Tr. 27. A hearing was held on May 5, 2022. The compliance date was extended on March 4, 2022, for 60 days, in order to obtain the evaluation. The compliance date was extended again on May 5, 2022 to permit the parties the opportunity to submit post-hearing briefs. At the hearing, Parent admitted Exhibits A, C, D, E, F, G, J, K, L, and N into evidence, which included testimonial affidavits from the Parent and [REDACTED], a service provider. The District waived cross-examination. The District admitted Exhibits 1-4 into evidence. The District did not offer an opening statement or present witnesses. Tr. 38. Both parties submitted post-hearing briefs, which I have admitted into evidence as P-Ex. O and D-Ex. 5, respectively. See P-Ex O, Post-Hearing Brief and D-Ex 5, Post-Hearing Brief.

STATEMENT OF FACTS

The Student’s Background and History The Student is [REDACTED] years old and has been home-bound for approximately two years without services. He is diagnosed with autism and Obsessive Compulsive Disorder, among other diagnoses. See P-Ex. M, Parent’s Affidavit, dated May 3, 2022, at 1; See also D-Ex. 1, November 26, 2019 IEP, at 2; D-Ex. 4, October 27, 2020 IEP at 4. His disability classification on his two most recent Individualized Education Programs (“IEP”) is autism. See D-Ex. 1 at 1; See also D-Ex. 4 at 1.

The Student was first evaluated through early intervention and received special education services since then. See P-Ex. M at 1. The Student is described as “severely intellectually impaired and non-verbal.” Id. He is on a variety of medications, which his Parent surreptitiously gives him by hiding it in pancakes, the one food he is currently eating, after experiencing feeding regression at his previous placement. Id. at 1-2. The Student can become aggressive and destructive. Behaviors include flipping furniture, barricading himself, and smearing fecal matter around the home. Id. The Parent states that the Student “is not independent in any activities of daily living and requires maximal assistance at all times.” Id. As it is difficult to travel with the Student, and because his Parent is unable to physically move him due to his size, he would not be able to use bus transportation provided by the District. Id.

On July 8, 2019, the Student began attending a state-approved residential program at the District’s recommendation. Id. As the Parent describes, the Student “suffered physical abuse and neglect while at [the residential program]. It was estimated that he lost 40 pounds while there based on his weight at his physical versus hospital admission. He was removed from [the program] and hospitalized…on 9/6/19 for severe malnutrition.” Id. at 3. He also suffered a seizure on the date he left the residential program, as he had not taken any of his medications. Id. The Parent was told that until the Student “was able to increase his food intake across a variety of settings, and voluntarily take his medications, it was unlikely that he would benefit from other residential programs.” Id. The Student remained in the hospital until September 23, 2019. Id.

The Parent was advised by the District that she would need to register the Student at his local high school in order to begin the process of convening the CSE [Committee on Special Education]. Id. The Parent registered the Student’s information but was told “that they would not be able to meet [the Student’s] needs given the severity of his behaviors and feeding struggles…” Id. Ultimately, the Student had not received any services from the District for the 2020/2021 and 2021/2022 school years and cannot access remote services due to the severity of his impairment. Id. at 4.

The Individualized Educational Programs The Parent met with the District on November 26, 2019 for a Committee on Special Education (“CSE”) meeting. “There were no evaluations or observations completed prior to this meeting,” nor was there a behavior intervention plan. Id. at 4. The Parent “was shocked when [the District] offered [the Student] less support than he had previously received. Although he just came out of a hospital and continues to require a 24/7 program, [the District] was only willing to recommend a [REDACTED] program at the CSE meeting.” Id. The Parent did not place the Student in the [REDACTED] program, as “the school was not safe for [the Student] and there was no way to get him there.” Id. The Student has not received services since his hospital discharge in 2019. Id.

The November 29, 2019 IEP recommended a 12-month program in a 6:1+1 special education classroom, individual occupational therapy for 30 minutes once per week, individual speech-language therapy for 30 minutes twice per week as well as group speech-language therapy for 30 minutes twice per week, as well as a full-time behavior support paraprofessional and a daily transportation paraprofessional. See D-Ex. 1 at 12. Per the IEP, the Student’s “needs cannot be met in a day program. A residential program was tried, but was not successful due to [the Student’s] refusal to eat and subsequent need for hospitalization.” Id. at 19; See also D-Ex. 2, January 3, 2020 Prior Written Notice at 2; D-Ex. 3, February 6, 2020 Prior Written Notice at 2.

According to the IEP, formal testing “was attempted but unable to be conducted.” See D-Ex. 1 at 1. Per his classroom teacher, the Student’s “communication, daily living and social skills all fall in the Low range. He requires support for all adaptive behavior.” Id. Per his classroom teacher for the 2018/2019 school year, the Student’s “symptoms and delays due to Autism will cause [the Student] to require very substantial support.” Id. The Student demonstrated “delayed cognitive abilities” and “minimal communication skills.” Id. at 2. Transitions comprised “a large part” of the Student’s day due to “flopping,” in the hallway or by a door, so transitioning is “extremely difficult,” though at the time, had been approving. Id. In terms of speech-language therapy, the Student’s “use of functional communication is limited,” and continues to use “maladaptive behaviors to communicate wants and needs…” Id. Food intake was inconsistent, with the Student “ingesting small quantities of food and drink then suddenly refusing for a day or two.” Id. As for occupational therapy, the Student was unable to “functionally grasp objects throughout his day,” and had “not demonstrated the ability to use utensils to eat.” Id. at 4. Among other suggested managed needs, a behavior support plan and a 1:1 behavior paraprofessional was recommended. Id. at 5-6. As stated, “[d]elays in academic skills, delays in adaptive skills, difficulty compliance and behavior, as well as delays in communication skills impact progress in the general education curriculum.” Id. at 5.

On October 27, 2020, another IEP was created. As noted in the IEP, because the Student had never attended the public school of the prior recommendation and was awaiting residential placement, the Student was not known to the clinician. See D-Ex. 4, October 27, 2020 IEP at 5-6. The recommendations included a 12-month program in a 5:1+4 special education classroom, individual occupational therapy for 30 minutes twice per week, individual speech-language therapy for 30 minutes twice per week, group speech-language therapy for 30 minutes twice per week, parent counseling 2-3 times per year, a behavior management/support plan, a behavior support paraprofessional, and a dynamic display speech generating device. Id. at 24-26. In addition, a residential state-approved non-public school was recommended. Id. at 11; 31. The Student was “being recommended for a NPS residential setting due to severe delays in the areas of adaptive, cognitive, academic, behavioral and social emotional areas. Upon completion of his program, [the Student] will work with the transition team at the site and apply to various day habilitation programs.” Id. at 12. Per the IEP, the Parent was in agreement with the placement recommendation and indicated that she would request at-home related services while the Student awaited admission into a residential setting. Id. at 7.

The IEP noted that the Student was previously enrolled in a residential non-public school but “was discharged from this program following a hospitalization due to malnutrition.” Id. at 4. Per a previous impartial hearing order, an assistive technology evaluation and a neuropsychological evaluation were completed, but the Student had not yet received evaluations for physical, occupational, and speech therapy at that time. Id. Per an assistive technology evaluation, a dynamic display Speech Generating Device (“SGD”) was recommended.^[4] Id. at 10; 12. The IEP indicated that Parent’s counsel reported that an independent functional behavior assessment and behavior intervention plan would be conducted independently. Id. at 8.

The IEP states that the neuropsychological evaluation reveals that the Student “has a diagnosis of Autism spectrum disorder with accompanying language impairment, accompanying intellectual impairment, associated with other neurodevelopmental, mental or behavior disorder, attention deficit hyperactivity disorder, unspecified and intellectual developmental disorder, mild.” Id. The Student’s mood and anxiety could not be assessed due to the Student’s inability to respond to self-reported inventories. Id. The Connors Parent/Teacher inventories indicated “significant aggressive behavior,” and “significant difficulties in social situations.” Id. The “examiner suggested that these issues can be addressed by ABA, family and individual counseling sessions. Id. The Student scored in the “extremely low” range on all assessed domains of adaptive functioning, including “interpersonal communications, learning and accessing academic resources, being able to self direct, planning and participating in leisure activities, maintaining age expected social contacts, functioning independently in the community, behaving self sufficiently at home, and maintaining self care, hygiene and safety.” Id.

The Student scored in the “extremely low range” of verbal comprehension, “revealing significant deficits in the areas of verbal expression, reasoning, and comprehension of verbal concepts,” as well as in the areas of working memory, processing speed, and academic functioning. Id. at 4-5.

The IEP also noted that the Student is not toilet trained, has a feeding disorder, is nonverbal, “and requires assistance in all areas of daily living…” Id. at 5. Also, he is not “travel trained” and requires accompaniment and close supervision inside and outside the home.

As the IEP explains, per the discharge summary from the Student’s previous residential placement, he “would benefit from an intensive applied behavior analysis treatment package that focuses on teaching him the skills that will help him have the greatest quality of life possible.” Id. at 11. The neuropsychologist recommended “a structured multi-sensory special education program with a limited student to teacher ratio with focus in the remediation of severe academic deficits to assist students with a history of autism spectrum symptoms…” Id.

Previous Evaluations

According to a November 23, 2020 speech and language evaluation conducted by an independent provider after the above IEP, the Student is non-verbal “with profound receptive and expressive language delays.” See P-Ex. C, November 23, 2020 Speech Evaluation at 1. The Student is unable to point, sign, or gesture, make greetings, or nod or shake his head to indicate yes or no. Id. at 2. He can follow simple directives and one-step commands. He is unable to label by pointing or point in response to questions. Id. Overall, the evaluation concluded the Student’s “poor language skills impact his ability to communicate in his daily life,” and recommends five, 30-minute sessions of individual speech-language services. Id. at 4.

According to an independent occupational therapy evaluation conducted on November 17, 2020, the Student appeared “to present with very low skills,” and “significant cognitive, language and motor delays which are negatively impacting his ability to participate age-appropriately in activities of daily living.” See P-Ex. D, November 17, 2020 Occupational Therapy Evaluation at 2-3. The evaluation recommended individual occupational therapy services three times per week for 60 minutes and also noted that, to address the Student’s “other challenging behaviors,” “a behavioral specialist/ABA would assist with developing a reinforcement schedule to reward positive on task behaviors and decrease challenging behaviors such as rigidity, impulsivity, off task behaviors and tendency to elope.” Id. at 4.

According to a Speech and Language Feeding Evaluation conducted on June 8, 2021, the Student “presents with severe delays in his feeding skills are equal to that of a 10 to 12 month old…” See P-Ex. J, June 8, 2021 Feeding Evaluation at 6. The Student only eats pancakes, does not finger feed himself, only drinks water from the sink, and exhibits poor chewing and biting skills. Id. As the evaluation explains, “[s]uch deficits may hinder [the Student’s] ability to eat a well-balanced diet. It may limit [the Student’s] feeding ability to function within the same level as his peers and cause him to have increase[d] medical issues.” Id. at 7. However, the examiner noted that “[t]here is potential for change at this time. Dynamic assessment procedures indicated [the Student] was stimulable to eating other textures as he was presented with repetition, choices provided with modeling from the evaluator and prompts and cues were use[d]. Id. The evaluator stated that “[i]t is absolutely required that [the Student] received feeding therapy at 7 hours per week to address the necessary skills in order to adequately select food, eat, chew and swallow appropriately.” Id. at 7. Five hours per week of speech and language services were recommended in addition to the feeding mandate. Id.

An independent Functional Behavior Assessment [FBA] was conducted in 2021.^[5] See P-Ex. K, 2021 Functional Behavior Assessment. A number of targeted problem behaviors were identified, such as inappropriate physical touching, elopement, dropping to the floor, task refusal, property destruction, ritualistic behavior, aggression, self-injury, inappropriate voiding, and food refusal. Id. at 4. The Student’s “[i]ntensity of maladaptive behaviors are considered severe, and dangerous. Duration and frequency of the maladaptive behaviors described herein are also considered severe and impede on every component of [the Student’s] day within the home setting.” Id. at 8. As the FBA explains:

Aggression was reinforced and maintained by parents, by complying with him “pulling” them to a designated space or location. Due to attempting to maintain [REDACTED] safety, parents must comply with the maladaptive behaviors provided. The parents have minimal behavioral training, or crises prevention intervention instruction in relation to [REDACTED] maladaptive behaviors. In order to keep themselves safe within the environment, they must comply with what is put forth and presented in relation to [REDACTED] maladaptive behaviors. Crises Prevention Intervention, compliance skills training, and behavior reduction protocols must be implemented for the safety of the family.

Id.

As per the recommendation of the FBA, a Behavior Intervention Plan [BIP] was developed. See P-Ex. L, May 2021 Behavior Intervention Plan. Per the BIP, “[i]t is absolutely required that [the Student] receive Applied Behavior Analysis (ABA) services to promote skill set deficits, decrease dangerous maladaptive behavior, and increase appropriate prosocial behavior. Moreover, toileting skills and feeding needs intensive intervention.” See P-Ex. L at 8. Furthermore, it was recommended that the Student receive ABA from 8:00 am to 6:00 pm seven days per week within a home-based, center-based, or ABA-specific school setting. Id. In addition, the BIP recommends five hours per week of parent counseling and training in order “to train the parents on the necessary interventions that he requires to function everyday,” as well as six hours per week of BCBA [Board-Certified Behavior Analyst] Supervision to oversee the program. Id. at 9.

Provider Testimony The Parent offered both affidavit and live testimony of [REDACTED], the owner and executive director of [REDACTED], the agency that conducted the FBA and BIP. See P-Ex. N, [REDACTED] Affidavit dated May 4, 2022; See also Tr. 58-59. [REDACTED] has a Bachelor of Science in Speech Pathology, a Master of Science in Early Childhood Special Education, a Master of Education in Curriculum and Instruction – Autism Studies, and holds a post-graduate certificate in Applied Behavior Analysis, among other certificates and trainings. See P-Ex. N at 1-2. [REDACTED] provides ABA and other related services. Id. at 3. As owner and executive director, [REDACTED] responsibilities including overseeing operations and supervising staff who provides these services as well as conducting trainings of staff and family members and under BCBA supervision, conducting assessments and creating student programs. Id. Prior to meeting the Student, [REDACTED] reviewed his educational records and evaluations. Id. at 4-6. [REDACTED] affirms that the Student needs 10 hours (8:00 am to 6:00 pm) of ABA therapy seven days per week, in light of the fact that the Student requires “constant safety monitoring and implementation of behavior reduction protocols at ALL times.” Id. at 7. [REDACTED] further recommends five hours per week of parent counseling and training, and six hours per week of BCBA supervision. Id. [REDACTED] also recommends 60-minute sessions, five times per week, of speech therapy “to allow for breaks and positive reinforcement as necessary due to severe maladaptive behaviors within his current repertoire and within his behavioral and learning history.” Id. Although the affidavit does not specify the occupational therapy recommendation, [REDACTED] testified at the hearing that the Student requires 60-minute sessions, six days a week, of occupational therapy due to “gross motor weakness, fine motor weakness” and sensory deficits. Tr. 58-59.

One hour per day of intensive feeding therapy, seven days per week, was also recommended. Id. at 8. Lastly, [REDACTED] recommends an updated Assistive Technology Evaluation, as the Student “has no vocal output of speech, and requires a modality to increase communicative intent.” Id. at 8. The Student has not received any devices previously recommended in his October 2020 Assistive Technology Evaluation. Id. at 7.

The Parent is in agreement with [REDACTED] recommendations, and believes the Student “has regressed to the point where he needs services at home before we can [try] a new residential program.” See P-Ex. M at 5.

The District’s Position

Although the District did not present an opening statement or testimony, it did submit a post-hearing brief asserting that the Parent’s request for compensatory education services must be reduced. See D-Ex 5 at 2. Specifically, the District argues that 3,640 hours of compensatory ABA services, based on a 10-hour per day, seven days per week calculation, along with the calculation of seven hours per week of feeding therapy, one hour per day of occupational therapy six days per week, and one hour per day of speech-language therapy five days per week “would amount to a situation in which the Student would receive services for most if not all of the Student’s waking hours, which is overly burdensome on the Student.” Id. at 2. As the program would also require some services on the weekend, it is the District’s “position that the parent has failed to show that weekend services are justified,” and the recommendation of a residential program “does not in and of itself justify a need for such a high level of service, 7 days per week.” Id. at 4.

Secondly, the District disputes [REDACTED] recommendation of speech-language therapy for five, 60-minute sessions, citing a speech-language evaluation from November 23, 2020 that recommends five, 30-minute sessions. See D-Ex. 5 at 4; See also P-Ex. C at 4. Likewise, the District disputes [REDACTED] recommendation of six, 60-minute occupational therapy sessions, when a November 17, 2020 occupational therapy evaluation recommended three, 60-minute sessions. See D-Ex. 5 at 4-5; See also D-Ex. 4 at 4. I note that in the Parent’s own post-hearing brief, occupational therapy in the amount of three sessions per week, as well as an award of 312 hours of occupational therapy based on a calculation of three sessions per week for 52 weeks for two years, was requested. See P-Ex. O at 12-13. At the hearing, Parent’s counsel requested six sessions per week. Tr. 42.

Lastly, the District asserts that the Parent’s request for an order requiring that the Student be provided with a specific program and placement must be denied “as it seeks improper prospective placement” and “would circumvent the statutory process of the IDEA.” Id. at 6.

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.

The individualized education program is “the centerpiece of the statute’s education delivery system for disabled children.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. at 994 (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)). A comprehensive plan prepared by a child’s “IEP Team” must be drafted in compliance with a detailed set of procedures enumerated in 20 U.S.C. § 1414(d)(1)(B). The IEP is the means by which special education and related services are tailored to the unique needs of a particular child.  Rowley, 458 U.S., at 181, 102 S.Ct. 3034.

The IDEA requires that every IEP include “a statement of the child’s present levels of academic achievement and functional performance,” describe “how the child’s disability affects the child’s involvement and progress in the general education curriculum,” and set out “measurable annual goals, including academic and functional goals,” along with a “description of how the child’s progress toward meeting” those goals will be gauged. 20 U.S.C. §§ 1414(d)(1)(A)(i)(I)-(III). The IEP must also describe the “special education and related services... that will be provided” so that the child may “advance appropriately toward attaining the annual goals” and, when possible, “be involved in and make progress in the general education curriculum.” § 1414(d)(1)(A)(i)(IV). Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. at 994; See also 8 N.Y.C.R.R. 200.4(d)(2)(i)-(v).

In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits.” Rowley, 458 U.S. at 206; See also Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. at 1001 (“The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”). Under New York law, the school district “shall have the burden of proof, including the burden of persuasion and burden of production” in an impartial hearing challenging whether FAPE was provided. NY Educ. Law § 4404.

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). Although “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies,” “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005).

Discussion

The District did not defend its failure to offer a free appropriate public education to the Student for the 2020/2021 and 2021/2022 school years. 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.

• • ABA Home Instruction & Related Services Firstly, the record was persuasive in establishing the Student’s needs for interim home-based instruction, in light of the District’s failure to find a residential placement for the Student, despite its own recommendation, See D-Ex. 4, October 27, 2020 IEP at 5-6, as well as the documented inability of the Parent to transport the Student to any other placement, rendering other placement alternatives impossible. See P-Ex. M at 3. However, by the District’s own admission, a residential program is not a viable placement as of now, due to the Student’s previous difficulties at a residential program which rendered him hospitalized. See D-Ex. 1 at 19 (“A residential program was tried, but was not successful due to [the Student’s] refusal to eat and subsequent need for hospitalization.”). See also D-Ex. 4 at 4. It is evident that the Student’s well-documented delays in functioning, speech, and daily living, including food intake or lack thereof, which were exasperated by two years of no instruction nor related services, makes home-based instruction the only available and appropriate placement for the Student until he is ready for a residential program.

In terms of the specific services, there is ample evidence that the Student would benefit from intensive ABA therapy. See P-Ex. D at 4; P-Ex. L at 8; P-Ex. N at 7. Also, in the District’s 2020 IEP, it noted that a previous neuropsychological evaluation suggested ABA may address the Student’s concerns. See D-Ex. 4 at 8. While the District asserts that a recommendation of a specific program or methodology such as ABA, would be improper, it offers no alternative, nor does it seriously challenge, the contention that ABA services would not only be appropriate, but at-home services might be the only possible placement at this juncture. Therefore, I find at-home instruction in the form of ABA therapy wholly appropriate.

As to the specific amount of ABA services, the recommendation of 10 hours per day, seven days per week, as testified to by [REDACTED] via affidavit, was made in light of the fact that the Student requires “constant safety monitoring and implementation of behavior reduction protocols at ALL times.” See P-Ex. N at 7. And as per the Behavior Intervention Plan, services from 8:00 am to 6:00 pm were recommended. See P-Ex. L at 8. [REDACTED] did appear at the hearing and was available for cross-examination, but the District declined to question her. Tr. 59. Therefore, there is no evidence on the record to rebut or otherwise challenge [REDACTED] recommendations of 10 hours per day, seven days a week of ABA instruction. Furthermore, in light of the Student’s significant deficits and delays, as well as his last recommended placement being a residential setting, 10 hours per day for seven days a week seems to be reasonably proportionate to the Student’s needs. Therefore, I find that the record is persuasive that ABA therapy for 10 hours per day, seven days per week, in addition to six hours per week of BCBA supervision, and five hours per week of parent counseling and training^[6], at market rate, is appropriate in consideration of the facts and circumstances of this specific case.

Secondly, I find that feeding therapy in the amount of one hour per day, seven days per week, is appropriate based on the well-documented record of the Student’s severe food restrictions, inability to feed himself, and risk of malnutrition and hospitalization if left untreated.

Thirdly, the Parent requests speech-language therapy in the form of 60-minute sessions, five hours per week. The last speech-language evaluation, dated November 23, 2020, recommended five, 30-minute sessions. See P-Ex. C at 4. By Parent’s counsel’s own explanation, the justification for these amounts is “how long it takes to work with this student in light of his behaviors,” but “would have no issue with referring to it as…sessions so that there is room to continue doing whatever is best for the student.” Tr. 52-53; See also P-Ex. N at 7 (The increase in session length is “to allow for breaks and positive reinforcement as necessary due to severe maladaptive behaviors within his current repertoire and within his behavioral and learning history.”). I find that the increase in session time was determined in the hypothetical, without [REDACTED] first conducting any speech-language therapy sessions to determine the need for breaks or the length of any potential delays. Without such information, I find no reason to deviate from the previous recommendation of five, 30-minute sessions of speech-language therapy per week and find such an amount to be appropriate.

Lastly, at the hearing, the Parent requests 60-minute sessions, six days per week, of occupational therapy. Tr. 42. Although [REDACTED] affidavit did not distinctly specify this recommendation, she testified as to this amount at the hearing. Tr. 58-59. As the District noted, the previous occupational therapy evaluation conducted on November 17, 2020 recommended three, 60-minute sessions. See P-Ex. D at 4. There is no evidence that [REDACTED] conducted an occupational therapy evaluation or any explanation as to why the services should be increased. I also note a discrepancy in the Parent’s own post-hearing brief, wherein three sessions were requested. See P-Ex. O at 10. Therefore, I defer to the previous recommendation of three, 60-minute sessions per week and find such an amount to be appropriate.

It should be noted that, in light of the fact that the current 2021/2022 school year was nearing its end at the time of the hearing, Parent’s counsel stated that: “We’re asking you to acknowledge the student’s program, as I have just outlined, moving forward. But we’re also asking for compensatory banks of services based on those numbers.” Tr. 41. Therefore, “[g]iven the fact that the Student has gone for practically the entire school year, we feel he’s entitled to the exact same awards of compensatory relief for both school years.” Tr. 42. But, as Parent’s counsel asserts, “[t]hat doesn’t, however, negate the fact that we are also asking you to acknowledge that his current program – and this is for purposes of establishing what pendency is – is the services that I outlined previously.” Tr. 42. That being said, I note that the Student’s previous IEP recommendation was for a 12-month residential program, so based on the evidence on record, the Student’s school year is not at a close. Therefore, acknowledgment of the above program as his current one for the 2021/2022 school year is beyond pendency purposes, but will also affect his services for whatever remains of his current school year.

• • Compensatory Services As Parent’s counsel explains, the calculation for all compensatory services for the two school years in question was based on a 52-week calendar year, with the acknowledgment that if the Student was not at home, he would be a residential student. Tr. 52. As explained: “We based that on the calendar year. So because he was previously a residential student and would have received what is the equivalent of 52 weeks, our calculations were based on the residential calendar as opposed to what would be…either a 10-month calendar or a 12-month calendar that has that six week session with breaks.” Tr. 53.

As explained above, in light of the Student’s specific needs and deficits, his prior recommendation of a residential program, as well as based on the recommendation as set forth in the Behavior Intervention Plan and the recommendation made by [REDACTED], 10 hours of ABA services per day for seven days a week is appropriate for this unique case. As such, any compensatory relief would start on the basis of this number. To be sure, a compensatory bank of 7,280 hours of ABA is extraordinary, and as is the case of any student who has experienced significant regression over years of FAPE denial, it cannot be guaranteed that the Student will be able to avail himself of all of these hours. Also, there is the question of whether a qualitative or quantitative approach would better serve the Student and his needs when calculating compensatory services. In this case, the Parent elected to use a quantitative approach, seeking hour-for-hour compensation. As the District has challenged a 10-hour per day ABA program, it is assumed it is also challenging a compensatory award based on such a program. The District is correct to note that such a program may be burdensome or unrealistic on the Student. However, as stated above, there is no other evidence to suggest any alternatives. If not utilizing a quantitative, hour-for-hour approach, the Student’s severe delays and unique challenges may have even warranted compensatory services beyond what is being asked, if the ultimate goal is to make the Student whole. Here, we have an instance of a student who is unable to function in an educational setting and who has been home-bound for two years after a hospitalization that was a direct result of an inappropriate placement. It is reasonable and appropriate, absent any other viable means of quantifying this Student’s profound delays, to calculate a compensatory award on an hour-for-hour basis. Therefore, I find 7,280 hours of compensatory ABA services, along with 624 hours of BCBA supervision (six hours per week for 52 weeks over the course of two years) to be reasonable.

Secondly, there is a documented need for parent counseling and training and there is no evidence that the Parent received any such services, which would clearly be critical to the ABA program. As such, I find 520 hours of compensatory parent counseling and training (five hours per week for 52 weeks over the course of two years) to be reasonable.

Thirdly, the record has established the Student’s significant deficits in feeding and eating and his immediate need for feeding therapy. I find that 730 hours of compensatory feeding therapy (once a day for 365 days per year for two years) to be reasonable.

In terms of speech-language therapy, I found that there was insufficient evidence to deviate from the prior recommendation of five, 30-minute sessions (opposed to 60-minute sessions). In terms of calculating a compensatory award, I find no reason to not use a quantitative approach as in the other calculations. The Student is nonverbal and his deficits in speech and language are well-documented. Therefore, I find that 260 hours of compensatory speech-language therapy (30 minutes five times a week for 52 weeks for two years) to be reasonable.

Lastly, I also found insufficient evidence to deviate from the previous occupational therapy recommendation of three times per week for 60-minute sessions. The record seems to be unclear as to how the Parent is calculating their compensatory occupational therapy amount as their post-hearing brief indicated three sessions as the basis of their calculation, requesting 312 hours throughout the brief. See P-Ex. O at 12-14. It also appears that their calculations of compensatory services on the record was based on three sessions (though they also asked for six sessions on record as well). Tr. 42. This lack of clarity is moot, as I find that that in any event, there was insufficient evidence to indicate six sessions was warranted. Therefore, I find that 312 hours of compensatory occupational therapy (three hours per week for 52 weeks for two years) is reasonable.

• • Assistive Technology Evaluation The District made no objection to the request for an assistive technology evaluation and the record is clear that despite a previous recommendation, the Student was never provided an assistive technology device. See P-Ex. F, October 20, 2020 Assistive Technology Evaluation. An updated evaluation was recommended by [REDACTED]. See P-Ex. N at 7-8. Therefore, I find that the District shall fund an assistive technology evaluation at market rate.

ORDER

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

• • ORDERED that the Committee on Special Education shall reconvene immediately, by no later than two weeks from this Order, to prepare an Individualized Education Program that reflects the Student’s need for the following at-home services for the remainder of the 2021/2022 school year, until an appropriate residential program is located:
• • 10 hours per day of Applied Behavior Analysis (“ABA”) services, seven days per week;
• • Six hours per week of Board-Certified Behavior Analyst (“BCBA”) supervision;
• • Five hours per week of parent counseling and training;
• • One hour of feeding therapy, seven days per week;
• • Five, 30-minute sessions of speech-language therapy per week; and
• • Three, 60-minute sessions of occupational therapy per week.
• • ORDERED that the District shall provide a bank of compensatory services, not to exceed market rate, for the following services:
• • 7,280 hours of ABA;
• • 624 hours of BCBA;
• • 520 hours of parent counseling and training;
• • 730 hours of feeding therapy;
• • 260 hours of speech-language therapy; and
• • 312 hours of occupational therapy.
• • ORDERED that the District shall fund an assistive technology evaluation of the Student, not to exceed market rate.

SO ORDERED

DATED: July 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

Parent’s Evidence

Exhibit

Date

Description

Pages

A 1/20/22 Due Process Complaint 7 B withdrawn

C 11/23/20 Speech Evaluation 5

D 11/17/20 Occupational Therapy Evaluation 5

E 11/19/20 Physical Therapy Evaluation 4

F 10/22/20 Assistive Technology Evaluation 6

G 7/18/17 Functional Behavioral Intervention 3 H withdrawn I withdrawn

J 6/21/21 Feeding Evaluation 7

K Varied Functional Behavioral Assessment 11

L May 2021 Behavior Intervention Plan 9

M 5/3/22 Affidavit of [REDACTED] 5

N 5/4/22 Affidavit of [REDACTED] 8 O n/a Parent’s Post-hearing Brief

14

District’s Evidence

Exhibit

Date

Description

Pages

1

11/26/19

IEP

20

2

1/3/20

PWN

4

3

2/6/20

IEP

6

4

10/27/20

PWN

34

5

5/27/22

District’s Post-hearing Brief

6

Impartial Hearing Officer Evidence

Exhibit

Date

Description

Pages

I

3/16/22

Interim Order

5

Footnotes

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

[2] See P-Ex. O, Post-Hearing Brief, at 10.

[3] As discussed further below, six sessions per week was requested at the hearing, although three sessions is indicated in the post-hearing brief. Tr. 41; See P-Ex. O at 10; 13.

[4] See also P-Ex. F, October 20, 2020 Assistive Technology Evaluation (“[The Student] demonstrated the ability to use a dynamic display Speech Generating Device SGD (iPad with application Go Talk Now +R) with communicative intent to make requests for desired objects. With further exposure the AAC device can be utilized as a means to increase his ability to communicate more effectively by offering an alternative mode of communication, provide further access to curriculum based information, and allow him to demonstrate his wants and needs without frustration. In collaboration with his parents, it is recommended that an outright recommendation be made for [the SGD] for communication during curricular activities in the classroom as well as during structured activities during related services.” Id. at 4.

[5] A specific date is not provided on the FBA.

[6] The immediate need for parent training and counseling was explained in detail in the FBA. See P-Ex. K at 8.