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CASE NUMBER: 571123 - NYC: 225247
FINDINGS OF FACT AND DECISION
Case Number: 225247
Student's Name: [REDACTED]
School District: [REDACTED]
Hearing Requested By: Parents
Record Closed Date: February 17, 2023
Hearing Officer: Dora M. Lassinger
The student’s parents filed a request for an impartial hearing on March 17, 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 nonpublic school placement, limited time travel door-to-door transportation, and various forms of compensatory education. (Par. Ex. A). I was designated to hear this matter on April 20, 2022, pursuant to 20 U.S.C. Section 1415(f)(1).
An impartial hearing commenced before me on May 24, 2022 on the parent’s request for independent evaluations.
On May 25, 2022, I ordered the DOE to fund six independent evaluations and a Behavior Intervention Plan (“BIP”), if warranted. (Par. Ex. O). The evaluations were performed, and a BIP developed, and a hearing on the merits was held on November 23, 2022 and January 3,
2023.
Parent’s Position
The parents request a finding that the DOE denied the student a FAPE for the 2019-2020, 2020-2021, 2021-2022 school years; and an order for the DOE to reconvene to develop a IEP which includes placement in a small classroom setting that provides full-time Applied Behavior Analysis (“ABA”) instruction (one-to-one or dyadic); a nonpublic school placement (“NPS”),
Speech/Language Therapy (“SLT”) five times per week for 40-minute sessions; (four times individually and once in a group), Occupational Therapy (“OT”) four times per week ; that the IEP include appropriate goals, that the BIP be implemented, that an appropriate transition plan be developed and vocational services provided; and that the student be provided with an iPad with the Proloquo2Go application and carrying strap; 10 to 15 hours of at home ABA instruction services and one hour per week of parent counseling and training (“PCAT”). The parents also request a feeding evaluation, and an order that the CBST locate an appropriate placement for the student within 30 days or permit the parents to unilaterally place the student at a private placement (or in the alternative that the DOE fund 30 hours of one-to-one push-in ABA therapy).
The parents also request an order for limited time travel, less than one hour each way.
The parent also requests the following items of compensatory relief, including transportation in the form of MetroCard for the student and parent to access those services:
40 hours of Assistive Technology (“AT”) training;
301 hours of OT
12 hours of Physical Therapy (“PT”)
128 hours of PCAT
2,760 hours of ABA instruction
453 hours of SLT
The parents are also seeking to be reimbursed for their out of pocket expense ($1975) in providing the student with ABA therapy; and for direct payment of the balance owing ($675) for services which were privately obtained.(Tr. pp. 197-226, 230, 232, 234, 236).
Department of Education (“DOE”) Position
The DOE did not present any evidence at the hearing. (Tr p. 54).[1] It maintains that the student was provided a FAPE for the school years in question at REDACTED (hereinafter “the
NPS”), which provided the student with an ABA program. The DOE agrees that the student should be awarded make up services for services which were missed. The DOE disagrees with the request for at home ABA instruction. (Tr. pp. 227-229).
Evidence at Hearing
The student’s mother testified, by affidavit, that the student received early intervention services, and services as a preschooler. He attended a REDACTED placement (6:1:1); however, the parents felt he was not making any progress there and that he required an ABA placement.
In September 2016, the student was placed at the NPS. (Par. Ex. WW). While they were initially pleased with the NPS, which provided discrete trial teaching; they have become less satisfied with the quality of his education over the past few three years. (Par. Ex. LL). In September 2017, the parents requested home based ABA services, and a re-evaluation was performed, at the parents’ request. (Par. Ex. WW).
The student’s mother testified that although the student’s behavior improved, and the school was a safe place for him; he was not receiving instruction. She testified that the discrete trials which were provided were of short duration. (Tr. p. 108)
In October 2019, the parents requested a new placement, due to the student’s lack of progress. When a new placement was not recommended, the parents secured services through REDACTED (hereinafter “the ABA Agency”). A BIP was developed on January 20, 2020.
(Par. Ex. WW).
The parents were able to secure coverage for the assessment and behavior therapy, through the father’s insurance; and were charged a total of $50.0) (2 x 25) for the assessment.
The parents were charged $25.00 per session for behavior therapy and are seeking to be reimbursed for those charges which they paid (and for any balance owing to be directly funded).
(Par. Ex. NN; Tr. pp. 235-236). The student’s mother testified that the student has been continuously receiving 15 hours per week of home-based ABA services since April 2018. (Tr. p.
144). The parent also receives one hour per week of PCAT from the ABA agency. (Tr. p. 145).
Typically, ABA sessions were for five hours, three days per week. (Tr. p. 146). Through these home services, the student started eating “real food”. He learned how to text, maneuver the internet, and do simple math. (Tr. p. 149).
The parents continued to be dissatisfied with the educational program provided by the DOE, including its failure to replace a broken AT device (in January 2020); the delay in provision of remote instruction during the pandemic, and the insufficiency of those services.
Another BIP was developed by the ABA agency in January 2021, and provided to the DOE; however, no BIP was developed by the DOE. The student’s mother testified that at a March 5, 2021 IEP meeting, the parents requested additional OT, PT and SLT services; however, their request was not granted. In addition, PCAT was removed from the IEP. (Par. Ex. I, WW).
She testified that the parents’ main concern was getting for SLT; however the provider stated the student would not benefit from additional services or from the Proloquo (speech assistant) device which the parents requested. (Tr. p. 129).
The parent also testified that in November 2, 2021, the NPS informed the parents that it was understaffed. She also testified that despite a request and a documented need for limited time travel (less than one hour each day), the request was not granted. She testified that the student has regressed in his academics, his communication skills and in his behaviors. She testified that during the 2021-2022 school year, the student did not receive most of his PT and SLT services, and also missed OT services;[2] and that the student has not been provided with vocational services.
The parent testified that the parents are currently paying out of pocket for the student to receive 15 hours per week of at home ABA instruction and two hours per week of PCAT. (Par.
Ex. WW).
She also testified that the student did not receive PCAT through the NPS during the 2019/2020 and 2020/2021 school year. (Tr. p. 229). She is unable to pay the $675 owing for ABA therapy. (Tr. p. 236).
A Speech/Language Evaluation was performed on December 8, 2017. It was reported that the student presented with a profound receptive and expressive language disorder and a severe pragmatic language disorder, secondary to autism spectrum disorder. (“ASD”), and that speech and language services are necessary to support his progress. (Par. Ex. D).
An IEP meeting was held on January 25, 2019. The student was classified with Autism and recommended for placement in a Special Class (8:1:3) at an Approved NPS with related services of SLT (2 x 30 individually) OT (2 x 30 individually), and PCAT (once per month for 60 minutes), and PT (1 x 30 individually). The student was also recommended for AT consisting of a Dynamic Display Speech Generating Device (SGD), with 12 month programming and special transportation. It was reported that the student was functioning on a first-grade level for reading and math. (Par. Ex. G).
From January 5 to January 20, 2020, the student was evaluated at the ABA Agency and a plan was implemented on January 20, 2020. It was reported that the student was able to complete missed due to the student’s absence); and 17 hours of OT out of 45 hours required (5 hours missed due to the student’s absence. During the 2020-2021 school year, he missed 11 out of 44 hours of SLT (5.5 hours missed due to the student’s absence); 4 hours of PT out of 22 hours required (3.5 hours missed due to the student’s absence); and
9 hours of OT out of 44 hours required (5.5 hours missed due to the student’s absence). During the 2021-2022 school year, the student missed 11 out of 44 hours of OT (3 hours missed due to the student’s absence), 3.5 out of 22 hours of PT (2 hours missed due to the student’s absence), and 14.5 out of 44 hours of SLT (2 hours missed due to student’s absence). (Par. Ex. ZZ). many self-help skills independently, that his food repertoire was limited, and that he required assistance with wiping. It was reported that he previously engaged in high levels of aggression at school until he received an Augmentative Communication Device (“ACD”) which lowered his aggression. It was reported that notwithstanding his IEP, the student’s classroom was a 6:1:1 setting with related services of OT, PT and Speech (3 x 30). Self-stimulatory behavior was noted. His mother reported that he had over 200 words, although this was not observed. Problem behaviors which were identified included aggression, self-stimulatory and disruptive behavior. A curricular assessment was performed, with the goal of increasing communication and social skills, and independent safety and leisure activities. A plan was developed providing for direct behavioral services (15 hours per week), indirect BCBA analysis and supervision (3 hours per week) and parent training by a BCBA (1.5 hours per week, for a total of 19.5 hours per week.
(Par. Ex. P).
A psychoeducational evaluation was performed on January 21, 2020. The student achieved a full-scale IQ of 40, in the moderately delayed range, with similar performance in verbal and nonverbal domains. On a test of academic achievement, the student’s reading score was in the very low range. He was able to identify letters and sounds, and was able to read some sight words. He was unable to decode any of the nonsense words. His core on a test of math was also very low, and significantly below grade level. He was able to identify numbers, count objects and label shapes. He was able to calculate how many and write the answer, and identify symbols for addition and subtraction. He was unable to perform math calculations. His writing skills were moderately delayed. He was able to write 11 out of 25 words, and could spell his name and write letters corresponding to first word sounds. His academic performance was found to be congruent with his cognitive skills. On the Vineland 3 Adaptive Behavior Scales, 3rd
Edition, his scores were significantly delayed in all areas. (Par. Ex. E).
On the same date, a Classroom Observation was performed of the student in his 8:1:3 classroom at the NPS. In an art class, he required hand over hand assistance to perform the task, and allowed the teacher’s aide to guide his hand. Academic instruction (math and identification of body parts from pictures) was provided in trials. The student required reminders to remain on task and maintain contact. He responded well to the teacher’s assistant. He had limited interaction with his peers. (Par. Ex. R).
A Social History was taken on January 22, 2020. The parent expressed her dissatisfaction with the student’s current school and requested that he be evaluated for a change in program and school location. She stated that the student had attended the NPS since fourth grade and had made progress; that he can read and recognize math symbols. She felt he was not being provided with enough challenge or stimulation in his current setting. At the time of the social history, the student’s iPad was not functioning, resulting in acting out behavior, as he was extremely dependent on it for his communication needs. (Par. Ex. S).
Another IEP meeting was held on February 25, 2020. It was reported that the student made gains in spelling, reading, counting and in his handwriting. The IEP describes his progress in discrete trials, speech sessions, in PT and OT. The student was again recommended for placement in a Special Class (8:1:3) at a NYS Approved NPS with related services of SLT (2 x 30 individually) OT (2 x 30 individually), and PCAT (once per month for 60 minutes), and Physical Therapy (1 x 30 individually). The student was also recommended for AT consisting of a Dynamic Display Speech Generating Device (SGD), with 12-month programming and special transportation. It was again reported that the student was functioning on a first-grade level for reading and math. (Par. Ex. H).
In a letter dated March 1, 2021, the student’s mother complained that instruction during the pandemic was limited to two hours per day, in addition to SLT and OT. She stated that she brought this to the attention of the classroom teacher, who has provided 2 x 30 trails (sic) to work on some of his IEP goals. She requested a different school placement. (Par. Ex. Y).
Another IEP meeting was held on March 5, 2021. The student’s work and progress during the COVID pandemic was described in the IEP. The student received remote instruction individually and in a group. Work using discrete trials was described. The IEP described his progress in his sight word recognition (100 words), and math (single digit addition); and work that was sent home. (Par. Ex. I at 1-2).
SLT was provided remotely. Minimal progress was reported in his SLT skills, and regression was described. Nevertheless, no increase in SLT services was recommended, despite the parent’s request for an additional speech session. (Par. Ex. I3-4).
On December 20, 2021, a developmental and behavioral pediatrician recommended home ABA therapy. (Par. Ex. J).
At the March 5, 2021 IEP meeting, the parents reported that the student was receiving ABA services at home, five days each week, for 3 hours, at the parents’ expense. (Par. Ex. I at 4-
5). Progress was noted in the student’s greeting staff and peers, during remote learning. The
IEP also describes behavioral data which was collected prior to school closure, including instances of aggression, frequently requesting to leave the class to go to the bathroom, and following directions in the classroom. (Par. Ex. I 5-6). OT and PT were provided remotely, and progress was noted. (Par. Ex. I 6-8).
The student was again recommended for placement in a Special Class (8:1:3) at an
Approved NPS with related services of SLT (2 x 30 individually) OT (2 x 30 individually), and Parent Counseling and Training (once per month for 60 minutes), and Physical Therapy (1 x 30 individually). The student was also recommended for AT consisting of a Dynamic Display Speech Generating Device (SGD), with 12-month programming and special transportation. It was reported that the student was functioning on a third -grade level for reading and math. (Par.
Ex. I). PCAT removed from the student’s IEP. (Tr. p. 77).
On November 4, 2021, the NPS wrote to the parents stating that it was short staffed, which has created a safety issue at the school. It wrote that it is exploring various options to address the situation, including going back to hybrid learning, or deferring students back to the CBST for placed in other NPS Schools. (Par. Ex. AA).
In an affidavit dated November 18, 2022, a BCBA testified that the student began receiving home-based services through the ABA agency in February 2020 and the services continued with a brief interruption due to the pandemic. He currently receives 20 hours per week of home-based ABA instruction (through a different agency) and that she supervises the home-based ABA provider, and provides 2 hours per week of parent training. She reported that as a result of these services, maladaptive behaviors have decreased, as the student has been taught replacement behaviors and functional communication. He is also working on self-help and sensory skills. She wrote that the student needs a full-time ABA educational program, home based ABA services, and that the parents need parent training. (Par. Ex. XX).
An independent vocational assessment was performed on June 20, 2022. The evaluator reported that the student has not received his OT since April; and this his PT provider was on maternity leave. The student was observed to communicate verbally, with difficulty. Significant delays were reported in areas of adaptive behavior. It was recommended that he receive formal vocational training with therapeutic support, including work or community-based work experiences, that he receive further assessment and training in AT, and that he continue to receive OT. (Par. Ex. T).
An independent OT evaluation was performed on the same date, by the same evaluator.
The student demonstrated deficits in sensory processing, fine motor control, manual coordination, visual-motor integration, visual perception, adaptive behavior and some aspects of executive functioning. He was able to type 48 letters per minute, using two hands, which is significantly below age expectation. It was recommended that he receive four sessions per week of OT for 30-minute sessions on a 12-month basis, to address his sensory processing, fine/gross motor strengthening, adaptive and executive functioning skills. It was further recommended that he receive compensatory OT (276 hours, based upon 2 hours per week for 46 weeks for 3 years), to address the same issues. (Par. Ex. U, VV). [3]
A neuropsychological evaluation was performed in August 2022. At the time of the evaluation, the student was enrolled in an 8:1:3 class at the NPS. The parents stated that while they were initially pleased with the NPS, which provided discrete trial teaching; they have become less satisfied with the quality of his education over the past few three years, and feel there has been limited progress in his academic and adaptive skills. They reported that he has been receiving home-based ABA instruction, through their private insurance (15 hours per week, with BCBA supervision and parent training), since March 2018. Some progress was noted in his adaptive skills; but less progress with his academic skills. His progress was also impeded by his negative behaviors.
The neuropsychologist performed an observation of the student at the NPS on August 11, 2022. He observed that the 8:1:3 staffing ratio was not maintained at the school; and that the classroom had one teacher and two paraprofessionals in the room; one of whom was assigned to an individual student. The student did not have his SGD device. The teacher stated that during scheduled one-to-one instructional time, described as “trials” on the class schedule; data is not taken. He was observed to engage in self-stimulatory behaviors. He was able to respond correctly to some of the math assignment. He was able to match some words with pictures, and numbers with pictures. He demonstrated difficulty with listening comprehension and pragmatic language.
On the Vineland Adaptive Behavior Scales, third Edition, the student scored in the severely deficient range for Communication, in the mildly deficient range for Socialization and
Play & Leisure Time and in the borderline range for Daily Living Skills, which represented an area of relative strength. On the Stanford Binet Intelligence Scales- Fifth Edition, the student achieved a full scale IQ of 44, in the moderately deficient range.
On a test of Educational Achievement, the student achieved a score of 1.3 grade equivalent in letter and word recognition (an area of relative strength), but otherwise scored at or below kindergarten level. His expressive vocabulary was at an age equivalent of 6:5. His
Academic Skills Battery Composite fell in the severely deficient range. He was able to count depicted items, but demonstrate little knowledge quantitative concepts. He could write a few words which were dictated, but could not construct a short sentence.
The neuropsychologist diagnosed the student with Autism Spectrum Disorder (“ASD”)
with accompanying intellectual impairment and accompanying language impairment- Level 3, requiring very substantial support. He was also diagnosed him with a Developmental Coordination Disorder.
He recommended that the student be placed in a specialized program for students with ASD and impairment in executive functioning, in a very small class with a small student /teacher ratio (no more than 8 students), with opportunities for instruction 1:1 or 2:1 instruction throughout the day; and that a BIP be implemented by a licensed psychologist or BCBA.
He also recommended that the student’s teachers have had training in ABA; and that strategies such as ABA, TEACCH and DIR Floor time be used in his classroom. He also recommended 12-month programming to prevent regression. He also recommended that the student receive ten hours per week of at home ABA therapy and two hours per month of BCBA supervision, as well as PCAT one hour per week. (Par. Ex. LL).
At the hearing, the neuropsychologist testified that while in the past (20 years ago) he observed the NPS, and found it to be an appropriate program for autistic students; when he conducted a recent observation, there were staffing issues which affected the quality of the program. It was for that reason that he recommended a change in program. (Tr. pp. 85, 89-90).
On January 29, 2022, the parents submitted a Medical Accommodations form to the CSE, in support of their request for limited time travel, less than one hour. The student’s doctor reported that this was necessitated by the student’s needs, including the fact that he is easily agitated. (Par. Ex. BB; CC).
The parents included in the record an email dated May 31, 2022 from the NPS, indicating that the student’s SLT Provider is on maternity leave until the fall; and that he will be receiving one session per week starting the following week. In addition, his OT resigned. (Par.
Ex. HH).
An independent speech/language evaluation was performed on July 13, 2022. The student presented with severe delays in receptive and expressive language, pragmatic, literacy and articulation skills. It was recommended that the student receive SLT five times per week for 40 minute sessions (four times individually and once in a group of three), with services provided on a 12-month basis to prevent regression. It was also recommended that he receive 414 hours of compensatory SLT (3 hours per week for 46 weeks for approximately three years),[4] It was further recommended that he receive a multisensory reading and writing assessment by a reading specialist. A feeding evaluation was also recommended, due to reports of picky eating. (Par. Ex.
V).
An AT evaluation was also performed on July 13, 2022. It was recommended that the student be provided with an iPad along with the ProLoQuo2Go speech-generating application to be used as a supplemental communication system. It was recommended that he receive a new iPad, or that his current device to programmed with appropriate applications and accessories, in addition to a carrying strap. It was recommended that the student, his mother, sister and academic support staff be provided 40 hours of training in the use of the device. (Par. Ex. W).
An FBA was performed on July 25, 2022 at the NPS by a Licensed Behavior Analyst and BCBA (hereinafter “the LBA”). It was noted that the student engaged in off-task behaviors, aggressions, and perseverate speech. It was recommended that he be placed in a private, full day ABA program, in a class setting no larger than 6:1:1 with access to a special education instructor/behavior analyst and BCBA who supervises the classroom. Ongoing parent training (1 hour per week) and in home ABA therapy, 10 hours per week, with a BCBA were also recommended. It was also recommended that he receive 2760 hours of compensatory ABA therapy, to make up for a denial of FAPE (10 hours per week x 2 years, x 46 weeks) and 92 hours of compensatory PCAT (1 hour per week for 46 weeks, over 2 years). (Par. Ex. X).[5] The compensatory hours could be provided by or under the supervision of a BCBA. (Tr. p. 178). The
LBA also developed a BIP. (Par. Ex. X).
The LBA testified that the student needed home based ABA services because he is not currently receiving ABA within the school setting; and because he requires at home services in order to maintain and generalize learned behavior. (Tr. pp. 174-175). She testified that he should receive 10 hours per week of ABA therapy during the week, and then some weekend hours. The recommendation for 2,760 hours of ABA therapy includes the 10 hours per week which is already recommended, on an ongoing basis. (Tr. p. 180).
The parents presented proof that they incurred out of pocket costs for ABA provided privately in the amount of $2,205.00 from December 2020 until October 2021, and that there is a balance owing of $675.00. (Par. Ex. NN).
A special education teacher employed by the CSE, testified that a social worker from CSE sent the parent consent for evaluation in June 2022; but that it was not returned until
December. He did not personally explain to the parent which evaluations were being requested.
Nor did he know exactly which consents were being sought; however, he stated a social history update, new medical information and an observation would be required, in order for the case to be deferred back to the CBST. (Tr. pp. 189-172).
An IEP meeting was held on December 20, 2022. The independent evaluations were reviewed. The student’s teacher reported that he continues to make slow and consistent progress in discrete trials, in a variety of areas. Progress was also noted in SLT. In OT, it was noted that the student demonstrated good progress in his graphomotor skills; and that “cognitive writing tasks”, such as placing words in alphabetical order, and composing paragraphs, have been introduced. In PT, it was reported that the student had made progress in his PT goals. The student’s case was deferred to the CBST for an NPS placement (8:1:3). It was recommended that effective January 3, 2023, the student receive increased related services, consistent with the independent evaluations. (OT, 4 x 30 individually; PT, 2 x 30 individually; SLT 4 x 40 individually and 1 x 40 in a group). PCAT was recommended four times per year for 60-minute sessions in a group. The student was also recommended for placement in a special class (6:1:1).
The only AT recommendation was for continuation of the prior speech generating device. 12- month programming was recommended. The IEP includes special transportation, including limited travel time (without indicating the duration of travel). It also provides for development of vocational skills through participation in vocational activities. It also provides for education/training with his AT device; participation in work-based learning experience or community based opportunities and working on ADL skills. It includes a goal of demonstrating improved fine motor strength to perform functional tasks with increased independence. The IEP states that the student needs a BIP, and that he has a BIP. (Par. Ex. DDD).
The parents presented evidence that on December 23, 2022, the student has been accepted in the [REDACTED] (the private school) effective January 30, 2023.
The program includes OT, PT and SLT, as recommended in the independent evaluations; ABA 23.65 hours per week and PCAT 4 x 60 per year. (Par. Ex. FFF). The parents have not specifically requested funding for the private school in these proceedings; however, they have requested an order that the CBST locate an appropriate placement for the student within 30 days or permit the parents to unilaterally place the student at a private placement. [6]
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. The record indicates that the level of SLT provided to the student (twice per week for 30 minute sessions) was inadequate to meet his significant language needs. The level of OT (2 x 30), was also insufficient to meet his needs. The parent was not provided with PCAT by the DOE for any of the school years in question. The recommended 8:1:3 staffing ratio was not consistently maintained at the NPS, and the student did not consistently have access to his AT device. The DOE failed to provide the student with any at home ABA services, despite his need for additional services to make progress and generalize skills.
The IEP developed on December 20, 2022 includes most of the items of relief requested by the parent; deferral to the CBST for an NPS placement, related services in the specific amounts recommended in the independent evaluations, a transition plan, reference to a BIP. It unilateral placement. (IHO Ex. III). The new case was not consolidated with these proceedings, as the hearing had already concluded, when the complaint was filed. (IHO Ex. IV). should be revised to include the recommended AT, one hour per week of PCAT and 10 hours per week of at-home ABA therapy, consistent with the recommendation of the independent neuropsychologist. The IEP should also include limited time travel (one hour each way). The recommendation, in the December 2022 IEP, for a staffing ratio of 8:1:3 is consistent with the recommendations of the neuropsychologist.
I will order the CSE to place the student in an appropriate NPS, by March 13, 2023. The alternative relief requested is denied for several reasons. First, although a full-time ABA program was recommended by a BCBA; the neuropsychologist recommended a specialized program for students with ASD and impairment in executive functioning, in a very small class, with a small student /teacher ratio (no more than 8 students), with opportunities for instruction
1:1 or 2:1 instruction throughout the day. The neuropsychologist’s recommendation for opportunities for 1:1 or 2:1 instruction will be incorporated into my order.
Whether the student is entitled to funding at the private school selected by the parents (as a contingent remedy for failure of the DOE to identify an appropriate NPS) is now the subject of separate proceedings; and no request has been made, in these proceedings, for a finding that the private school is an appropriate placement for the student. Therefore, I decline to make an order for the DOE to fund the unilateral placement, as a contingent remedy, as requested by the parents.
I also decline to order implementation, in a new school environment, of the BIP which was developed based upon an FBA performed at the NPS. Nevertheless, the student’s new school should review the independent BIP, make any modifications which may be warranted, and implement a BIP.
Finally, I decline to order the DOE to fund 30 hours of one-to-one push-in ABA therapy, as a contingent remedy; as this remedy no longer appears to be relevant, in light of the unilateral placement.
Request for Reimbursement/Funding for Privately Obtained ABA Therapy and PCAT
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch.
Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S.
359, 369-70 [1985].
The record indicates that during the time period when the parent privately obtained ABA therapy and PCAT, the student was not being provided with the staffing ratio recommended in his IEP, and the parent was not receiving PCAT. Furthermore, the student was not being provided with any at-home ABA therapy, although it had been recommended by the ABA agency and a developmental and behavioral pediatrician. I find that the services secured by the parent, through the ABA agency were appropriate, and that the student benefited from those services.
Therefore, the request for reimbursement for the parent’s out of pocket expenses in securing those services, and direct payment of the balance owed to the ABA agency is granted.
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).
ABA Therapy and PCAT
In the instant case, the parent seeks compensatory ABA therapy and PCAT during the same time period for which she seeks reimbursement/funding for the ABA therapy and PCAT which she privately secured. I also note that this order already provides for 10 hours per week of
ABA therapy.
I find that compensatory ABA therapy and PCAT is warranted for the time period from July 2019 through January 2020; before the parent privately secured ABA therapy and PCAT.;
280 hours of ABA therapy (28 weeks x 10 hours) and 28 hours (28 weeks x 1 hour) of PCAT. I will also order additional services to compensate for a brief period when services were suspended, during the pandemic.(40 hours of ABA therapy and 4 hours of PCAT).
I find that an additional award of 500 hours of compensatory ABA therapy is warranted, to compensate for loss of instruction resulting from the NPS’s failure to consistently provide the staffing ratio required to provide adequate instruction, and for deficiencies in instruction during the period of school closure, which resulted in academic regression.
I find that a compensatory award of 820 hours will benefit the student, by providing a bank of hours for use on weekends, over a three year period, consistent with the recommendations of the independent LBA.
SLT
For the three year period which is the subject of these proceedings, the student received two sessions per week of SLT, although the severity of his language impairment warranted daily
SLT. At the March 5, 2021 IEP meeting, minimal progress was reported in his SLT skills, and regression was described. When recently evaluated, the student presented with severe delays in receptive and expressive language, pragmatic skills, literacy skills and articulation skills.
Therefore, I will award 207 hours of compensatory SLT (46 weeks x 3 years x 1.5 hours per week); plus an additional 35 hours to make up for SLT services which were recommended but not provided, for a total of 242 hours of SLT. (I have excluded from the make-up SLT, services which were not provided due to the student’s absence).
OT
During the three years at issue, the student was provided two sessions per week of OT, when the intensity of his needs warranted four sessions per week of OT. I find that an award of 138 sessions ( 1 session per week x 46 weeks x 3 years) of OT is warranted plus an additional 24 sessions to make up for OT services which were recommended but not provided, for a total of
162 hours of OT. (I have excluded from the make-up OT, services which were not provided, due to the student’s absence).
PT
The student is also awarded four hours of compensatory PT, to make up for PT services which were recommended but not provided. (I have excluded from the make-up PT, services which were not provided due to the student’s absence).
Request for Additional Assessments
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). Although a feeding assessment was recommended by the independent SLT evaluator; nothing in the record indicates that feeding issues are interfering with the student’s ability to benefit from special education. Indeed, the mother testified that the student has expanded his food choices, following
ABA therapy. Therefore, the request for a feeding assessment is denied.
Nor do I find that a multisensory assessment is warranted. The student’s academic and language need has been adequately evaluated; and an appropriate program can be developed based upon those assessments.
Additional Relief Requested
AT
The student is awarded 40 hours of AT training, as recommended in the independent AT
evaluation.
Limited Time Travel
The record supports the parent’s request for travel time to be limited to one hour each way. Therefore, I will order that the student’s IEP be amended to provide this limitation.
ORDER
For all of the foregoing reasons, it is hereby ordered as follows:
1. The CSE shall reconvene by March 13, 2023, to make the following changes/additions to the December 20, 2022 IEP:
a. At home ABA therapy 10 hours per week;
b. PCAT one hour per month, individually;
c. Limited time travel (limited to one hour each way)
d. iPad along with the ProLoQuo2Go speech-generating application and carrying strap.
2. The DOE shall place the student at an appropriate NPS which provides opportunities for 1:1 or 2:1 instruction throughout the day, by March 13, 2023;
3. The DOE shall fund the following compensatory services, with qualified providers of the parent’s choosing and at the market rate, to be used within three years of this order:
a. 242 hours of SLT;
b. 820 hours of ABA therapy;
c. 32 hours of PCAT;
d. 162 hours of OT; e.[4] hours of PT
f. 40 hours of AT
g. Metro Cards for the student and parent to access all compensatory services.
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 | Subpoena, 5-4-22, 1 p. |
| II | Orders of Extension, various dates, 8 pp. |
| III | Impartial Hearing Request, 1-31-23, 11 pp. |
| IV | Order Denying Consolidation, 2-1-23, 1 p. |
Parent’s Exhibits
REDACTED
Footnotes
[1] Notwithstanding the fact that it made no disclosure, the DOE offered to call witnesses who were involved with the challenged IEP’s. I sustained the parent’s objection and the DOE was not permitted to present evidence in its case in chief, due to the lack of disclosure. (Tr. pp. 56-59).
[2] According to the parents’ attorney’s calculations, during the 2019-2020 school year, he missed 13.5 out of 45 hours of SLT (2 hours missed due to the student’s absence); 4.5 hours of PT out of 22 hours required (2.5 hours
[3] The parents are requesting an additional 37 hours of compensatory OT, due to missed services during three school years.
[4] The parents are requesting an additional 39 hours of SLT due to services missed during the three school years at issue. (Tr. p. 82).
[5] In addition to the 92 hours recommended by the BCBA, the parents are requesting an additional 36 hours of PCAT, as a result of the CSE’s failure to provide it for three years. (once per month x 12 x 3). (Tr. p. 225).
[6] I take administrative notice that on January 31, 2023, the parents filed another impartial hearing request (#245480), alleging that the parents unilaterally placed the student at the private school and requested funding for their
[4] The DOE shall, by March 13, 2023, reimburse the parents $2,205.00 and pay $675.00. directly to the ABA agency. Dated: February 22, 2023 Dora M. Lassinger DORA M. LASSINGER, ESQ. Impartial Hearing Officer . NOTICE OF RIGHT TO APPEAL Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Office (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.