NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 572998/ NYC 226372
Student’s Name: [REDACTED]
School District: [REDACTED]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: 05/12/2022
Hearing Requested by: Parent
Dates of Hearing: [REDACTED]
Record Close Date: 10/17/2022
Date of Decision: 11/03/2022
Names and Titles of Persons Who Appeared September 21, 2022
For the Student
[REDACTED], Esq.
[REDACTED], Center Director, Tutoring Facility
[REDACTED], Executive Director, Education Services Agency
[REDACTED], Board Certified Behavior Analyst
[REDACTED], Neuropsychologist For the New York City Department of Education
[REDACTED], Consultant Impartial Hearing Representative
Names and Titles of Persons Who Appeared October 11, 2022
For the Student
[REDACTED], Esq.
For the New York City Department of Education
[REDACTED], Consultant Impartial Hearing Representative
[REDACTED], Consultant Impartial Hearing Representative
[REDACTED], Special Education Teacher
Background
On [REDACTED], the Parent, by and through the Parent’s Attorney, filed a due process complaint (DPC) against the New York City Department of Education (DOE or Department), on behalf of the Student, under Case No. 226372, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”).[1] The DPC asserts that the Committee on Special Education (CSE) denied the Student a free and appropriate public education (FAPE), both procedurally and substantively,[2] with respect to program and placement recommendations found in the individualized education programs (IEPs) for the 2019-2020, 2020-2021, and 2021-2022 school years,[3] and that without compensatory education, compensatory services, further evaluations, and a modification of the Student’s program and placement, the Student is being denied a FAPE for the 2022-2023 school year as well.[4] As a result, the Parent seeks the following:
• That the DOE Central-Based Support Team (CBST) recommend placement for the Student at “an appropriate approved non-public school [NPS]” and, until “a placement can be located” that the Department be “ordered to provide immediate push-in ABA [Applied Behavior Analysis] into the current placement”;
• Independent educational evaluations (IEEs)[5];
• That the CSE reconvene after evaluations are completed, and “create an appropriate program” that includes “meaningful and measurable goals to address [the Student’s] social, emotional, behavioral, and academic deficits, and develop an IEP” with a 12-month program that includes speech-language therapy (SLT), occupational therapy (OT), counseling, assistive technology (AT), behavioral interventions, [and] transitional/vocational (TV) training”;
• The development of a functional behavior analysis (FBA), as well as a behavior implementation plan (BIP), by a board-certified behavior analyst (BCBA);
• 1,110 hours of Compensatory Education at the Tutoring Facility[6];
• Banks of Compensatory Services for SLT, OT, counseling and social skills training, ABA instruction, parent counseling and training (PCAT), BCBA supervision, and TV training;
• Transportation to and from the above services, in the form of a Metrocard;
• Copies of all the Student’s records created and/or maintained by DOE, including the meeting notes of the CSE the Chair for the previous two years, and a complete copy of all records maintained in the Department’s SESIS computer system.
Procedural History
I was appointed the impartial hearing officer (IHO) over this matter on June 28, 2022. On July 13, 2022, a pre-hearing conference was held, and that same day I issued a Pre-Hearing Conference Summary and Order.[7] The Parent moved for neuropsychological and TV IEEs,[8] which I granted by Interim Order on July 24, 2022.[9] I issued Scheduling Orders on September 1, 2022,[10] and on September 22, 2022,[11] as well Orders of Extension on July 13, 2022,[12] on September 1, 2022,[13] and on September 22, 2022.[14] The merits hearing was held before me on [REDACTED],[15] and on [REDACTED].[16] At the hearing, all the Department’s exhibits were admitted without objection,[17] while half of the Parents 40 exhibits were admitted without objection, and the other half were admitted over objection.[18] The Department attempted to produce two witnesses, a Department Special Education Teacher who testified, and another who was precluded from testifying,[19] while the Parent produced the Center Director of the Tutoring Facility, a TV evaluator, a BCBA, the Neuropsychologist who evaluated the Student, and the Parent herself.[20]
Findings of Fact
The following was not in dispute. The Student is [REDACTED] years old and, for the 2022-2023 school year, attends 11th grade at the Public School, which has been his high school since 9th grade.[21] The Student is classified by the CSE as a student with Autism.[22] The Student attended the Charter School for the 2017-2018 through 2019-2020 school years, i.e., the 6th through 8th grades, respectively.[23]
IEPs The IEP in effect for the Student’s 2019-2020 school year (8th grade) was developed at a meeting of the CSE held on May 23, 2019, to which the Parent attended.[24] The then-IEP team reviewed evaluation results indicating that the Student was reading at a 5th grade level, with writing and math skills at an early 6th grade level.[25] They noted that he avoided reading assignments and that “[h]e... often require[d] more than one reminder or redirection to pick up his book and keep it in his hands[.]"[26] He was not handing in his writing assignments with consistency and had problems with absences.[27] He exhibited difficulty focusing and staying on-task during class, and the Parent was concerned about the Student’s “forgetfulness when it comes to turning in homework and classwork.”[28] The “Management Needs” section recommended preferential seating near the front of the classroom, one-to-one (1:1) conferences or small groups, and the opportunity to look at teacher or student exemplars.[29]
Socially and emotionally, the Student was reported as shy, self-deprecating, defensive, and otherwise lacking confidence. The team noted that “his peers... can often be unkind to him, which has led to his preference to be on his own.”[30] Despite him “showing kindness and compassion to his peers[,]” he “has been bullied... which made him reticent around his peers. [The Parent] is concerned about the bullying and the effect it has on his self-esteem.”[31] The school counsellor recommended “counseling revolving around behavioral and emotional difficulties[.]”[32] The IEP recommended a program of integrated co-teaching (ICT) in a general education classroom for math, English language arts (ELA), sciences, and social studies, as well as 30 minutes of counseling per week, for a 10-month school year.[33]
The next IEP was developed on May 12, 2020, for the 2020-2021 school year (9th grade), when the Student would be entering high school at the Public School.[34] The meeting was again attended by the Parent.[35] The evaluative material noted by the IEP team indicated that the Student’s reading skills had increased to a 6th/7th grade level, that his writing remained at a 6th grade level, and that his math skills had regressed two grades, to a 4th grade level.[36] The Student was still having difficulty with focusing, understanding material, and completing assignments, which was noted to be exacerbated by working online during the COVID-19 pandemic.[37] The teachers were “concerned with his participation, engagement, attendance, and lateness to class” and found “that he benefits from small-group instruction and 1:1 adult support.”[38] His teachers informed the IEP team “that the Integrated Co-Teaching classroom was not providing sufficient support for him to access grade-level material” and that he had to “establish lower level skills prior to attempting grade-level work[.]”[39] The “Management Needs” section carried over the recommendations from the previous year and, inter alia, added scaffolding and chunking of information for the Student, visual aids (such as anchor charts), differentiated assignments, “daily check-ins with a trusted staff member[,]” and “spiral review of lower level skills.”[40]
Socially and emotionally, the team reported that teachers were concerned with the Student’s “sense of security[,]” his shying away from group activities, his “sense of helplessness that requires a high level of adult support[,]” and his avoidance of therapy sessions due to him “not want[ing] to be singled out’ and because “he ha[d] not been able to develop a strong relationship with his counselors[.]”[41] The Parent also reported that the Student was still “being bullied at school.”[42] The CSE recommended the same program as it had the previous year, with the addition of special education teacher support services (SETSS) for ELA three periods per week, and 30 minutes of PCAT at the school building.[43] The “Transition Needs” were described only as those “that focus on the student’s courses of study... as they relate to transition from school to post-school activities.”[44]
By the end of the 2020-2021 school year, the Student was failing ELA for the first marking period, which then raised one point for the second marking period, allowing him to pass with the absolute minimum score.[45]
The next IEP was developed on February 10, 2021, for the 2021-2022 school year (10th grade), and it was also attended by the Parent.[46] The IEP does not discuss the Student’s grade-level performance but it describes his difficulty attending class and keeping up with lessons during continued remote learning. He was only “able to complete assignments with maximum support.”[47] He also required “extra processing time, 1:1 teacher check-ins, multi-modal forms of presentation, direct instruction, modelled instruction and small group work when learning new content.”[48] His teacher reported that with SETSS, he was able to complete an ELA essay.[49] The recommended program was the identical, 10-month, ICT, SETSS, and in-school PCAT as the previous year, with an additional 10 minutes per week added to the counseling.[50]
The Post-Secondary Goals listed in the IEP were that the Student “attend a post-secondary institution that supports his career interests” and that he be “employed in his area of interest.”[51] The “Transition Needs” section discussed only how he needed 44 credits and passing scores on State Regents exams to obtain a diploma, and how he would consider tutoring and applying to go to “Coop Tech” for his senior year, but nothing about transitioning to life after high school, other than “creation of a resume to help with job readiness.”[52] In the “Coordinated Set of Transition Activities” section, the IEP reiterated the Student’s need to graduate and develop a resume, and it added “development of time management, study habits, and organization,” developing interview skills.[53] The only socio-emotional factors mentioned were that the Student is very shy during video learning sessions, that he has one friend with whom he will engage, and that the Parent was concerned about him “not advocating for himself enough during school hours."[54] By the end of the 2021-2022 school year, he had failed Geometry and Earth Science.[55]
The last and most recent IEP in evidence was developed on February 7, 2022, for the current, 2022-2023 school year (11th grade), which was also attended by the Parent.[56] Again the functional grade levels for reading, writing, and math were not recorded. In the “Present Levels of Performance and Individual Needs” section, the IEP states that the Student “continues to demonstrate a high need for maximum support and very close oversight.” The team also found that in the ICT classroom, he “struggles the most with his attendance” and “with completing homework on his own and turning it in on time.”[57] Office hours and after school tutoring opportunities were recommended “in order to keep him on track with his classes.”[58] Socio-emotional developments included that he “need[ed] more time to allow for readjustment to the school community” post-remote learning, and that he felt “overwhelmed with his course load due to his inconsistency with attendance to school.”[59] The CSE recommended the same ICT with SETSS for ELA program as it had for the previous two years, but this time it removed PCAT, while keeping counseling, again for a 10-month school year.[60] Post-secondary goals, Transition Needs, and the “Coordinated Set of Transition Activities” sections were identical to those in the 2021 IEP.[61]
Evaluations The oldest evaluation in evidence was a psychoeducational evaluation of the Student on May 24, 2018.[62] The Student scored “low” or “very low” in reading comprehension, spelling, written expression, math computation, math concepts, fluid reasoning, working memory, IQ, and verbal comprehension.[63] His “Behavioral and Emotional Risk Index” scores placed him in the “Normal Risk” category, although the teacher-report information placed him within two points of “Elevated Risk.”[64] The evaluator added that “his executive functioning abilities suggest concerns with his ability to regulate and monitor behavior effectively, [and] his flexibility and ability to regulate emotional responses,”[65] but also that he exhibited “age-appropriate social skills[.]”[66]
After years of attending the IEP meetings that reported little-to-no progress while offering essentially the same program, the Parent had the Student evaluated by the Tutoring Facility, on March 23, 2022, while the Student was in 10th grade.[67] According to the report of its “Student Academic Evaluation Results,” the Student achieved a score of 20 on the “Slossen Visual Motor Performance Test,” which is “poor” (the standard score being 58).[68] His phonetics scores were between per-kindergarten level and less than 3rd grade level,[69] while his math skills were determined to be at a less-than 4th grade level and his reading comprehension was at a 7th grade level.[70]
In a letter sent to the Department on April 29, 2022 (and again through the DPC), the Parent requested updated comprehensive evaluations, specifically in neuropsychology, SLT, OT, TV, and AT.[71] The Department agreed to perform OT, SLT, and AT evaluations.[72]
The OT evaluation was conducted on August 15, 2022, and the evaluator made the following findings and recommendations. No classroom observation could be conducted and there was no OT Teacher Report to review because the evaluation “was conducted during the summer session[.]”[73] The Student followed directions and rules, except that he had “some difficulties submitting schoolwork on time” and “struggle[d]... with his attendance for in-person classes and... [he] struggled to complete his assigned work in a timely manner independently.”[74] He was able to complete a functional assessment task.[75] There were no significant difficulties in his ability to physically move and access objects, to engage in activities of daily living (ADLs), to manage classroom tools and materials, or to use of sensory skills for learning, and he exhibited proper oculomotion for reading, writing and copying.[76] His hand manipulation, pencil/pen grasp for handwriting, typing skills, and visual motor integration (VMI, i.e., eye-hand coordination) were all functional and sufficient, except that his visual-perception skill was found to be below average by one standard deviation from average.[77] His THS-R test (“Test of Handwriting Skills Revised”), however, was above average.[78]
Overall, the OT evaluator determined that there were “decreased self-monitoring and work checking habits[,]”[79] but also found that this could be addressed by the Student receiving support from “external structures, visual supports, and behavioral routines built into the environment and implemented by... the adults who work with him to optimize his ability to monitor his own performance and complete tasks independently[.]”[80] The evaluator also recommended meta-cognitive strategy, a checklist for independent assignments, an auditory and visual timer, the use of visual cues, attention breaks, setting accuracy goals, and assigning a peer model “learning buddy” to assistant the Student with completing assignments.[81] With these recommended supports, the OT evaluator was of the opinion that “occupational therapy is not recommended.”[82] The AT evaluation was conducted on August 19, 2022.[83] The evaluator found, with respect to reading, that the Student “demonstrated appropriate decoding skills and comprehension” when reading independently and concluded that his “independent reading skills were better than [that] provided by technology.”[84] The Student was struggling in writing, but he demonstrated the ability to sufficiently use a keyboard, which the AT evaluator therefore recommended, specifically “a cloud-based laptop computer with the support of word processing, built-in spelling support, and annotation to assist in meeting academic needs.”[85] The SLT evaluation was conducted on August 24, 2022.[86] The evaluator found that the Student’s “core and receptive language skills fell within the low to moderate range” and that “[h]is expressive language skills were within the borderline range” which was “suggestive of a mixed expressive/receptive language delay.”[87] His ability to understand spoken paragraphs, to recall sentences, to understand semantic relationships, and structured writing, were all in the “low to very low” range.[88] The Student was also determined to be in the low to very low range for reading comprehension.[89] Based upon these findings, the evaluator recommended SLT.[90]
The Student underwent a comprehensive TVA on August 1, 2022 and August 2, 2022, while the Parent was interviewed on August 16, 2022, and the report was generated on August 29, 2022.[91] Both the Parent and the Student’s responses to the interview “indicated that [the Student] does not have deficits in organizational/attentional areas.”[92] His senses, balance, motion, and planning and completion of motor tasks were all typical.[93] In the area of self-determination, the Student scored “low autonomy” with respect to his post-school choices, and he was scored with “low self-regulation” and “goal setting.”[94] On the Vocational Interest and Skills Survey, he scored in the mid-range of interest for all categories, indicating that either “his skills are spread widely over many different areas” or “that he rated himself more harshly than other people do.”[95]
Based upon the assessments, the TV evaluator determined that the Student “requires specialized and targeting intervention to promote self-determination skills related to choosing leisure activities” and “practic[ing] self-determined goal setting and planning skills.”[96] The evaluator recommended “a program that has a strong focus on learning and applying prevocational skills and independent living skills to promote a successful transition into adulthood[,]” including on-the-job training from a job coach, a bank of hours for TV services, interviewing and job application techniques, the development of an Action Plan to track his progress, engage in simulated interviews, interview employees in potential fields of interest, set goals with a plan to achieve each, open a bank account, set and follow a budget, and create a “safety plan” for three emergency scenarios he might face.[97]
The last evaluation was from the Neuropsychologist, whose September 9, 2022,[98] report confirmed that the Student had “low,” “very low,” and “extremely low” scores in multiple categories that gauged his skills in reading, written expression, and mathematics.[99] She noted, however, that his “math and written composite scores... were less than what was expected based on his [full-scale] IQ score.”[100] In comparing the Student’s capabilities to his actual performance (reading at 6th grade level, written expression at 5th grade level, and math at 4th grade level), the Neuropsychologist determined that the Student “present[ed] with significant unmet learning needs[,]” which she concluded was the result of the Student having “not received an appropriate educational program to address his multiple learning disorders and to prepare him for life.”[101] The Student was unable to complete auditory and visual modality tests designed to gauge his capacity to control attention, which the Neuropsychologist found to be indicative of an unspecified Attention-Deficit/Hyperactivity Disorder.[102] The Student’s “lowest scores clustered on tasks measuring Executive Functioning” including “attention, planning, shifting frames of reference, applying strategies and time sense.”[103] The Neuropsychologist also assessed the Student’s behavioral factors that affected his school performance. He was found to have “difficulty reading social cues” and “a tendency to withdraw and shut down.”[104] In her opinion, this had been exacerbated by his recommended program, because as the Student “has fallen further behind, he has become more avoidant, more isolated and the emotional impact has been amplified.”[105] In addition, he has an “internal distractibility” that contributes to him shutting down, which then requires “an adult to help engage him.”[106] He also has deficits in social-emotional reciprocity, in communicative behaviors for social interaction, and in developing, maintaining, and understanding relationships.[107] The Neuropsychologist determined that these symptoms “have been present since the [Student’s] early developmental period and” they have now “exceeded his limited capacities in emotional intelligence.”[108] It is the Neuropsychologist’s opinion that his challenges “cannot be explained by intellectual disability or global developmental delay” but rather they “are at the root of his lack of progress in the general education setting” and they serve as an additional reason the Student now “needs specialized instruction in order to access his education.”[109]
On the above findings, the Neuropsychologist listed the Student’s diagnoses as Autism Spectrum Disorder (Level 2, without intellectual disability), ADHD (Combined Type), Specific Learning Disabilities (in reading, written expression, and mathematics, all “severe”), and Social Pragmatic Communication Disorder.[110]
The Neuropsychologist also offered a number of recommendations, including referral to the CBST for a NPS placement that utilizes a small student-to-teacher ratio, specializes in students with multiple learning disorders who have cognitive potential, and offers a multi-sensory based curriculum that includes a program such as Orton-Gillingham or the Wilson Reading Program; post-secondary transition goals based upon a comprehensive vocational assessment with counseling and community experiences; an SLT evaluation and compensatory services; an OT evaluation with recommendations incorporated into the Student’s IEP; the use of AT, including a computer for written work; compensatory services to address the Student’s lags in written language, math reasoning, and reading skills; 1:1 ABA instruction as part of the program in the Student’s IEP and 15 hours per week of ABA at-home, provided after school and on weekends; a FBA by a licensed BCBA that “include[s] addressing needs at home and in the community to improve social navigation skills and coping”; counseling (1x30 minutes per week); two hours of PCAT per month; coordination and meetings among the various therapists and aids; a bank of hours for social skills training; an extended, 12-month program “in order not to lose progress made during the school year”; and a comprehensive vocational assessment to meet his potential for gainful employment.[111]
The Department’s Witness
Special Education Teacher The Department’s witness was the Student’s Special Education Teacher, who testified as follows. She has taught ICT and SETSS at the Public School for five years.[112] The Student’s most recent IEP, developed on February 7, 2022, offered a similar program as the IEPs developed in 2021 and in 2020.[113] In developing the 2021 IEP, she relied upon teacher reports, observations, and transcripts.[114]
During remote learning due to the COVID-19 pandemic, the Student would not pay attention and had to be told when students had moved on to a different class.[115] School officials had to call every other day to get him to switch over to the correct remote connection, but the Parent had to work and was not there to assist.[116] The Student had a lot of tardiness and absences, and “[h]im not showing up to school really impacted his grades majorly.”[117]
SETSS had been added to the Student’s program to add structure to what he learned and to keep track of his work. The IEP team did consider a more restrictive program than ICT with SETSS but she recalled that the Parent “didn’t want to have... a negative stigma attached towards him being in a smaller environment.”[118] When the Student attended in-person learning, he did well with the support of two teachers in ICT,[119] but his poor attendance would cause him to fall behind, and he would not take advantage of the after school program.[120] They used laptops, graphic organizers, sentence starters and other supports.[121] When asked how much 1:1 assistance the Student received in 9th grade and 10th grade, the Teacher answered by stating that the Student did not attend the before-school or after school tutoring services the Public School offered,[122] and that SETSS offered during the day was not 1:1 but 10:1 with individual “check ins[,]”[123] but 20 hours of 6:1 “Special Education Recovery Services” (SERS) services were offered at 6:1 or fewer, between November 1, 2021, and January 14, 2022,[124] which the Student did not utilize. In her opinion, the Public School did everything reasonably possible and appropriate for the Student to progress and succeed.[125]
On cross-examination and upon further questioning, the Special Education Teacher testified as follows. Goals listed in each IEP were developed from information gathered from teachers, including from previous IEPs and teacher observations.[126] She agreed that goals should be measurable so that progress can be reported,[127] and that it is difficult for a student with Autism to get out of the house,[128] and that the Student’s promotional criteria was “standard,” meaning that he had to take the same State and district tests as general education students.[129] She saw that the IEP developed for 10th grade included that the Student was behind in ELA and math and that teachers were reporting that the ICT classroom “is not providing [the Student] with enough support[,]” and she explained that SETSS was added for ELA but not math because the Public School did not have math SETSS, although teachers would “help as much as possible in whatever way” they could.[130] She acknowledged that they did not work on the IEP math goals.[131] She also saw that the Student’s math abilities regressed from a 6th grade level in the 9th grade IEP to a 4th grade level in the 10th grade IEP, but she added that many students regressed in math during the pandemic.[132] She agreed that the 2021 IEP developed for the Student’s 10th grade (2021-2022 school year) contained only three goals, a math goal, a counseling goal, and one ELA goal,[133] and that the single ELA goal indicated “he [had] made little progress.”[134] She also agreed that the most recent IEP, covering the current school year, carried over the same ELA goal and the same math goal,[135] notwithstanding that his ELA functioning was still 6th grade and his math functioning was at 4th grade, and he was entering 11th grade.[136]
The Parent’s Witnesses
Tutoring Facility Center Director The Parent’s first witness was the Center Director of the Tutoring Facility, who testified as follows. The Tutoring Facility offers individualized tutoring in reading, writing, math, and exam preparation, and she is responsible for the management of the Facility’s operations, including all tutoring.[137] The Student was “administered... [a] battery of tests in order to determine his highest level of skill mastery, to identify any gaps in his academic skills, and to develop a program in instruction that would meet his needs.”[138] The results of the tests demonstrated that the Student was “found... to have significant gaps in his academic skills across all areas” including “operating at least five years below grade level in verbal (ELA) and seven years below grade level in math skills.”[139] It is the Center Director’s opinion, in fact, that the Student’s “independent level” of skill is “third grade in verbal (ELA) and second grade in math.”[140] In order to design a program to address how far behind the Student had become academically, the Facility prepared a document it calls the “C767,”[141] which breaks down the specific targeted areas where the Student underperformed (verbal, vocabulary/spelling, written language, math, and study skills), and it assigned the number of hours determined necessary to bring the Student to grade-level performance.[142] Based upon the results of the Student’s testing, the Facility has deemed that the Student requires the most hours in math (440), followed by verbal (360), and then vocabulary/spelling (220), written language (60), and study skills (30), for a total of 1,110 hours of tutoring. According to the Center Director, this is what it would take “to remediate [his] deficits and allow him to reach eleventh grade level[.]”[143]
Tutoring is performed 1:1 with highly training teachers, “many with special education certifications[,]” using multi-sensory instruction for students with learning disabilities.[144] It “start[s] at a student’s mastery level in each skill area... then build[s] upon that in a logical and sequential manner” and it “has been extremely successful with students with disabilities such as those exhibited by” the Student.[145] The Facility charges $295 for the evaluation, $100 to register the Student, and tutoring services are billed at $110 per hour.[146] The Facility is open seven days a week, both in-person or online, to allow for maximum flexibility.[147]
On cross-examination and upon further questioning, the Center Director testified as follows. She was unaware if the Facility’s testing methods had been reviewed and evaluated by any independent organizations.[148] She did not have special education training.[149] She calculated the hours the Student would need in each category by going through the lists of skills in each topic where the Student was behind, and the applied the number of hours it would take to advance the Student in that particular skill for each level up to the target 11th grade.[150] The Student would be tutored by special education teachers on staff if it was the right fit or if the Facility were so ordered.[151] Progress is measured by notes taken by the instructors during each session, which are reviewed weekly by full-time staff and then by the Director in preparation for conferences with parents; students are also retested after every 75 hours of instruction.[152] An individual student’s “intrinsic motivation is a very helpful component of their progress” but the Center Director has “seen very reluctant young men make progress in spite of their best efforts to, to resist.”[153] If the Student becomes regularly absent, there will be a conversation with the Parent at their conference, and if “the student is determined not to attend or not to benefit, then... students withdraw from the program because of that.”[154] It would be rare for a student to complete the number of recommended hours in two years, so three would be more likely for completion, and four years would be a “more comfortable” range.[155]
Education Services Agency Executive Director The Executive Director testified with regard to the Student’s TV assessment and proposed services, as follows. She holds Master’s degrees in Education and ABA/Autism, holds teaching certificates in special education and general education, and is the Executive Director of the Education Services Agency.[156] The Agency provides a range of educational services, including SLT, OT, and AT and all of its providers hold at least a Master’s degree in their fields.[157] The Executive Director conducted a TV assessment of the Student,[158] and determined that the program offered by the Department “to date... did not sufficiently support his needs to successfully transition to postsecondary education or a vocation[,]” so the Agency “recommend[ed]... a bank of compensatory hours to address these needs” that included “a strong focus on learning and applying prevocational skills” and “independent living skills to help [him] transition into adulthood”[159] They determined the sufficient number of banked hours for TV services to be two hours per week at 46 weeks per year, for two years, for a total of 184 hours.[160] The Agency charges $180 per hour for TV services.[161]
The Agency also reviewed the Student’s existing SLT, AT, and OT recommendations and engaged with a SLT consultant and an OT consultant. The SLT consultant reviewed the DOE SLT evaluation, and concluded that its lack of pragmatic language assessment and lack of testing of the Student’s phonemic awareness through decoding and written expression was grossly inadequate.[162] Moreover, the Department’s SLT evaluator did not recommend any specific services.[163] The Executive Director is in agreement with the SLT consultant and the Neuropsychologist that the Student is in need of an updated, more comprehensive SLT evaluation with recommendations for goals and deliveries specific to the Student.[164] The evaluation costs $1,450, which is within the range of normal SLT evaluations of $1,350 to $2,500 in the New York City area.[165]
To make up for the lack of SLT in the past, the consultant recommends compensatory SLT, specifically 2 hours per week at 46 weeks per year, for two years, for a total of 184 hours.[166] The Agency charges $180 per hour for SLT, which is within the New York City area normal range of $130 to $250 per hour for such service.[167] The service can be provided after school or on weekends, and the Agency only bills for hours actually used.[168]
The Agency’s OT consultant reviewed the Department’s records and likewise concluded that it was lacking in recommendations, including none for functionality in organization and time management; failed to mention of typing accuracy; and documented visual perception in the “below average range” without further VMI assessment of writing errors.[169] The Student’s expressive writing was also not age or grade level appropriate.[170] The Agency’s OT evaluation charge is $1,450, which is within the range of normal SLT evaluation range of $1,350 and $2,500 in the New York City area.[171]
On cross-examination and further questioning, the Executive Director testified as follows. The recommendation of 184 hours of TV services was “based... on... the findings of the evaluation, the recommendations made in her evaluation, and the fact that [the Student] has not to date [been] provided with any planning activities or services for transitional vocational” services.[172] When asked how it came to be that compensatory SLT was recommended at two hours per week, she explained that it was the SLT consultant’s clinical opinion, “until a comprehensive evaluation could be conducted and analyzed, and formal goals developed and implemented.”[173] Once the services are implemented, the hours would be applied to the categories of deficits that the therapists want to target, including receptive, receptive, and pragmatic, and the Agency defines “success” as reaching a mastery of 90% correct in four of five trials, over a consecutive period of four weeks.[174]
Board-Certified Behavior Analyst The next witness was the BCBA, who testified as follows. She has a Master’s degree in Clinical Psychology and ABA, and has conducted approximately 30 FBAs since beginning her Behavior Services Company.[175] She is familiar with “the full continuum of [DOE] services [and] classrooms[,] from general education to District 75 small classes as well as New York State approved nonpublic school classrooms and programs[.]”[176] The BCBA performed a behavioral assessment of the Student’s records in August and September of 2022, and a home observation of the Student on August 29, 2022.[177] During the observation, she noticed that the Student exhibited “social skills deficits, as he required prompts to greet me, [to] provide sustaining eye contact and [to] answer questions with more than just one or two word answers.”[178] He “responded incorrectly to familiar questions such as, ‘What grade are you going into?’”[179] Her records review confirmed what the Neuropsychologist had concluded, specifically that the Student has difficulties with social cues, communication, distractibility, self-directed behavior, and significant social deficits, including the need for prompts and support and a tendency to shut down.[180] The most recent IEP stated that the Student requires close oversight, and the TV evaluator reported that he shut his eyes when he did not want to participate.[181]
Based upon the above, it is the BCBA’s opinion that the Student should have received ABA services for the past two years, specifically the 2020-2021 and 2021-2022 school years, as ABA is “the only research-based specific treatment for children with Autism” and it can address the Student’s “functional skills that will increase his independence and prevent him from being isolated.”[182] The BCBA recommends that the Student receive two years of make-up ABA services, as follows: five hours of ABA services per week (2 hours for social skills, 1 hour for self-management skills, 30 minutes for ADL, and 90 minutes for navigating the community, e.g., travel training, shopping, and appropriate interactions), at 46 weeks per year for two years, for a total of 460 hours.[183] The service provider should be ABA-certified, have experience working with students with Autism, and be supervised by a BCBA for 1.5 hours per week for the same period (46 weeks per year, for two years), for a total of 138 hours, to oversee the ABA program, collect data, and adapt any changes necessary for the Student to make meaningful progress.[184] Finally, the Parent should receive one hour of PCAT per week, provided by a BCBA, in learning how to respond to the Student’s behaviors, also at 46 weeks per year for two years, for a total of 92 hours.[185] The BCBA’s Behavior Services Company charges $150 per hour for home-based ABA services, $200 per hour for BCBA supervision, and $200 per hour for PCAT, which are all within the New York City range of $150 to $375 hour for these services.[186]
On cross-examination and upon further questioning, the BCBA testified as follows. She attempted to speak with the Student’s teachers but was unsuccessful.[187] She did not perform a classroom observation.[188] In the time she spend with the Student, he had “trouble with intro verbal skills” and “trouble remaining on topic” and “trouble expanding his thoughts, as well as engaging in conversation[s] that are not preferred” and he “struggle[d] with providing and sustaining eye contact, as well as just giving additional information other than responding ‘yes’ or ‘no.’”[189] This was consistent with the IEP, which noted the Student’s difficulties with sustaining attention and completing tasks, and that he requires a lot of prompting and redirection.[190] The BCBA considered these behaviors “severe in [the] sense” that they “will isolate him from others” and “prevent him from acquiring the skills that he can learn” because “[a]t this age and at this level, he really should be able to perform independently” and he is near “leaving high school” and “need[s] to develop the skills where he is able to self-manage without someone else’s support.”[191] She also considered his behavior “[u]ncooperative in [the] sense that he will refuse to do non-preferred tasks” even though “not... explosive behaviors” or “physical aggression” or “property destruction.”[192] As a “clinician, [the BCBA is] thinking about behaviors that will prevent him from learning and prevent him from... interacting in, in society.”[193] Right now, “he does not have the skills to be able to navigate certain environments” and at “this age, he should... have intrinsic motivation. But he does not” and “he should have... developed these skills a long time ago[.]”[194] The IEPs discuss these issues, specifically not completing assignments and trouble coming to school organized with all required materials, and ABA would address these issues, by providing him the support to self-manage, which would also help him with every day activities such as chores and cooking.[195] In her opinion, BCBA is necessary to implement the ABA because the BCBA is the one who reviews the data, targets the behaviors, creates the program, and decides when supports can be phased out.[196] Even with the Student’s motivation issues, the ABA and BCBA will offer a “great opportunity for him to be receiving... tutoring” and those “other services” because “[i]f he was not receiving ABA, and he was receiving those other compensatory services, he would not be available for learning and may not retain the skills that are being taught.”[197] With ABA, “he’s learning these skills” and “can certainly practice them in those other sessions.”[198]
Neuropsychologist The next to testify was the Neuropsychologist. Her evaluation, conducted on September 2, 2022, included: a comprehensive history of the Student; examinations of cognitive functioning, academic achievement, social/emotional/behavioral aspects; attention/executive functioning; memory; language; motor skills; and then the creation of the report.[199] She went over the diagnoses described in her report, as well as the low average scores in math, ELA and writing,[200] and offered her conclusion that the Student “has never received appropriate instructional services and methodologies to address these significant and complex language and learning disorders, and therefore his skills are now far below grade despite having the cognitive ability to have been successful academically in school.”[201] She added that “it is essential to understand that the school district could just graduate him... but he will not be able to function successfully post-high school.”[202] The Student’s pragmatic language deficits and social delays have led to him “become more avoidant, more isolated, and the emotional impact has amplified.”[203] She reiterated that he exhibits self-directed behavior, has a tendency to “shut down,” and cannot adjust his behavior in varying social contexts.[204] It is also her opinion that the Student’s “symptoms cause clinically significant impairments in social, academic and family functioning” which “are at the root of his lack of progress in the general education setting.”[205] The Neuropsychologist’s recommendations are consistent with her report, namely that the Student should be provided with: a small class with a low student-to-teacher ratio in an extended year school program at a NPS that specializes in students with multiple learning disorders; TV training with measurable post-secondary transitional goals; counseling; home-based and community ABA therapy/instruction with BCBA supervision; and comprehensive remediation services, including tutoring, SLT and other related services.[206] The Neuropsychologist reviewed the Tutoring Facility’s program and agrees with the areas of instruction it targets,[207] and she believes that the proposed services from the BCBA and the Education Services Agency “are appropriate to remediate the significant and broad harms suffered by” the Student “due to the inappropriate educational program he has received over the last few years. In addition, his mother must be provided parent counseling and training one-to-one in the home to support” the Student.[208]
On cross-examination and upon further questioning, the Neuropsychologist testified as follows. Her evaluation and recommendations were based in part on “test[ing] him for an entire day” and on “an interview with his mother” as well as an “interview with his brother[.]”[209] She was unable to speak to the Student’s teachers because it was the summer and she would have had to wait six weeks for the current teachers to get to know him before interviewing them, so she relied on the provided DOE documents.[210] She considered the least restrictive environment (LRE) standard, but “when someone [is] not making gains, and is of a certain age, and whose gap is widening in terms of mastery of the curriculum... I feel a sense of urgency that we need to look for appropriate ways to enable this child to access their education.”[211] The Neuropsychologist also found the Student to have many significant, maladaptive behaviors that get in the way of his otherwise high-functioning, Level 2 Autism, characterized by no intellectual impairments, being conversant, and having basic skills but poor judgment, and behavioral challenges.[212] She is particularly concerned because “there are significant symptoms getting in the way of his functioning” but “he appears higher functioning [than] he truly is” and has “many behavioral characteristics that we have to try to cut through.”[213]
As for the Student’s attendance issues, she believes that “non-participation in a program is very problematic, but it also reflects the fact that we’re not reaching that particular individual.”[214] To her, the Student’s “lack of engagement is a symptom of the inappropriateness of the educational program” and she noted that “[t]here are other supports that... can and should be put in place for a student who... is non-participatory.”[215] She added that absenteeism, tardiness, and sleeping in class are all associated with Autism.[216] When asked about her opinion regarding the necessity of tutoring, behavioral, and TV services, the Neuropsychologist explained that “these are wraparound services that really address the heart of the matter with” the Student”[217] and she “believe[s] that there is a very good chance of [them] working” to address his behavioral issues, as well as his ability to be able to transition into life as an adult.[218]
Parent The final witness was the Parent, who testified as follows. The Student was diagnosed with Autism at an early age, and had an IEP for kindergarten.[219] Since then, he has “never received the services he needed from the Department of Education[.]”[220] He “just scraped by year after year” and “his skills always lagged behind.”[221] It was worse during COVID-19 remote learning, when he could not focus on the video instruction during the Spring of 2020 and the 2020-2021 school year.[222]
The DOE provided him no support for the bullying he endured and the resulting feelings of isolation.[223] “His teachers were always saying he was getting enough support” but “[w]hen he entered High School in September of 2020, he just did not have the skills he needed to do the work” and “was always close to failing.”[224] She felt that from 9th grade to 10th grade, “he did not want to go to school... because he just could not do the work[.]”[225] She attended the February 2022 IEP meeting and was “surprised to see how far behind he still was academically.”[226] She then brought him to the Tutoring Facility, hoping “it would be enough” to help him but when he was evaluated, she “was shocked by how far behind he really was.”[227]
She was angry and upset when she learned from the Neuropsychologist that, as a result of the Department’s inappropriate program, “he never received the support he needed to prepare him for after high school or to even make friends.”[228] She agrees with all of the make-up and future services that the service providers are recommending, including at-home ABA and PCAT for herself.[229] She “will make [him] available for his make-up hours” and will also make herself “available for the parent counseling and training and assistive technology training[,]” as the Student “has been without an appropriate program... for the past three years[.]”[230]
Closing Arguments
DOE Closing In closing, the DOE Representative argued the following.[231] The Department provided the Student a FAPE for the 2021-2022 and 2022-2023 school years, in that the IEPs and prior written notices (PWNs) were procedurally sound and based upon the evaluative information the CSE had at the time each IEP was developed. The IEPs included measurable goals and were reasonably calculated to meet the Student’s unique needs and make educational progress. The placement and program offered by the Department was appropriate, but no matter how rigorous the program, it cannot be successful if the student resists learning. The Student here had significant trouble with attendance and timeliness, which impaired his ability to learn, even after teachers alerted the Parent of the issues and offered him after-school sessions and the SERS COVID recovery program.
Under the DOE’s recommended program, the Student made progress, in that he passed his courses. This may not have been the level of progress the Parent wanted but it was meaningful progress. The Parent’s allegations suggest that the DOE must maximize the Student’s potential or provide a particular result in order to provide a FAPE, which the law does not require. The relief, therefore, should be denied. Even if it were determined that the Student was denied a FAPE, the Parent’s requests were not appropriate or supported by the evidence, including there being no evidence that the Parent requested IEEs or a FBA or BIP before filing the DPC. The evidence also did not demonstrate that there is any need for a more restrictive placement, or a NPS.
There are many services requested but they would be wasted without the Student being sufficiently motivated to learn. The Parent did not establish that the Tutoring Facility or the related services will provide that motivation. Finally, the equities favor the Department where the Parent impeded the implementation of the IEPs by not ensuring the Student attended school and therefore meaningfully participated in the education he was offered.
Parent Closing In closing, the Parent’s Attorney contended the following.[232] The Department’s own records prove that the Student was not provided a FAPE, in that there is no evidence of progression and, in fact, evidence of regression from 8th grade to 11th grade. The Department’s witness acknowledged that she knew the Student had trouble getting to school, which affects attendance and is a symptom of Autism. He is, in fact, not intellectually impaired, he can learn, but they placed him in a general education classroom without adequate supports for his disabilities, and when he underperformed in ICT, they only added SETSS and kept his goals and did not properly address his deficits.
The SERS “covid recovery” was to provide some extra tutoring for only two months after over a year of remote learning. And it was only offered before school and after school, when the Student had problems getting to school and his single mom who had to take care of him and needed him to come home after school. The DOE accuses the Parent of not ensuring implementation of the IEPs, but the IEPs themselves recognized the lack of any progress year after year and failed to modify the program to finally address his needs. The report cards show that he was failing classes and would be given a 65, the minimum score to pass many classes, just to move him up to the next grade, so they can get him a diploma and push him out. He was even given waivers for some of his Regent’s exams, which normally have to be passed in order to graduate. The Department did all of this knowing that he is in an 11th grade ICT class while he reads at a 6th grade level and has 4th grade math skills, and the Department’s witness admitted that the Student’s class teaches at the sitting grade level. There is nothing in the IEP to address that lack of access for the Student.
The remedy the Parent seeks is to make the Student whole again, so he can finally make some progress, rather than the regression shown to date. The Tutoring Facility will provide the Student with the foundations he missed, and the Neuropsychologist explained what supports and methods he needs, academically, socially, and behaviorally, to learn and to extinguish the maladaptive behaviors such as disorganization and school avoidance. He requires ABA instruction with BCBA supervision. And given his age, he needs to graduate and be provided with transitional services, from the TV agency, and the Parent needs PCAT to ensure he is on track and learning what he needs. And he was not properly evaluated for SLT, OT, and AT, all services that he still requires, and will require as compensatory services for what he should have bene provided for years. Finally, in order to access his education going forward, he should be ordered to be placed in a NPS by the CBST, where he can be taught in a smaller school with an individualized program that can be tailored to his needs. While there are a multitude of services being requested, they are not meant to maximize all his educational opportunities; they simply reflect what is needs to bring him up to 11th grade learning, which he is capable of achieving.
Credibility
Upon considering the evidence, including all admitted non-testimonial documents and the testimonies of the witnesses, I determine the following. In admitting the documents, I found them all relevant and representative of the facts for which they were offered. I therefore credit all the non-testimonial exhibits, and the weight I afford them will be reflected in the analysis. As for the witnesses, whether by affidavit or live testimony, I found no reason to doubt anyone’s veracity or their statements, or the earnestness of their opinions, and I therefore find all the witnesses credible; however, I do not give equal weight to all the documents and testimony, which will be reflected in the analysis.
Legal Framework
Independent Educational Evaluations
An “IEE” is defined under the IDEA as “an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question.”[233] It includes “a comprehensive assessment of the child... in all areas of their disability.”[234] Parents have an absolute right to obtain independent educational evaluations,[235] and “[i]f the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense[,]”[236] so longs as the parents notify DOE of their disagreement with DOE’s evaluations, and they must also expressly request that the IEE(s) they seek be conducted at public expense.[237]
Once the parent has communicated both requirements, “the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.”[238] If the Department does not file a DPC, the right to the IEE(s) becomes readily apparent; a Parent, in fact, should not need to file a DPC unless “the school unnecessarily withheld a requested IEE or failed to file its own [DPC] to defend its challenged evaluation as appropriate”; in other words, when the Department “ignored its express obligation under the IDEA.”[239]
At a due process hearing, the district bears the burden of proving that “its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.”[240] When making their determinations, impartial hearing officers are to exercise sound discretion in ordering publicly funded IEEs[241] Finally, hearing officers may order IEEs even where the parents have not requested evaluations, and the regulations impose no limitation or guidance regarding sua sponte directives for IEEs.[242]
Free and Appropriate Education The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[243] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[244] When the education district complies with the procedural requirements set forth in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits within the LRE, a FAPE has been established.[245]
If a procedural violation is alleged, a court or IHO may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits.[246]
In general, the IDEA directs that a determination should be on substantive grounds, upon a review of whether the student received an appropriate program or placement.[247] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”[248] School districts are not required to "maximize" the potential of students with disabilities,[249]; however, demonstrating a FAPE requires “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement.’”[250] The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”[251]
Whereas here, the parent is not seeking tuition reimbursement for a unilateral placement, the DOE has the burden of proof with respect to all aspects of a FAPE.[252] The applicable standard is proof by a preponderance of the evidence.[253] Equitable considerations are relevant in fashioning relief, and IHOs have broad discretion in doing so.[254]
It is against this backdrop that I analyze the circumstances of the Student, the IEPs developed for the Student and, if a FAPE has been demonstrated, the appropriate award(s). In considering the following options, I am mindful that I have at my disposal “various forms of retroactive and prospective equitable relief, including... compensatory education, and other declaratory and injunctive remedies,”[255] with the only limitation being that the remedy “be appropriate in light of the purpose of the Act,”[256] and that damage awards are not available under the IDEA.[257]
Compensatory Education and Compensatory Services
Compensatory education and services are equitable remedies tailored to meet the unique circumstances of each case.[258] An award must be designed to “make up” for past denials of FAPE and place the student in the position they would have been had the district complied with its obligations under the IDEA.[259] “[T]he inquiry must be fact-specific, and [in order] to accomplish IDEA’s purposes, 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.”[260] The compensation may take the form of supplemental special education or in related services, with the goal of fashioning appropriate relief for a denial of a FAPE.[261] It is calculated by either a “quantitative” approach (provided equal to the period of the FAPE deprivation) or a “qualitative” approach (provided as needed to address the student’s educational deficits resulting from the FAPE deprivation) approach. Courts have noted that when the qualitative analysis is available, it can be the more “flexible approach, rather than a rote hour-by-hour compensation award, [and thu]s more likely to address [the student’s] educational problems successfully.”[262] In New York, when there is a lack of FAPE and the a parent or guardian seeks a compensation award, the burden lies with that district to “describ[e] its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that [they] would have been but for the denial of FAPE.”[263] However even where DOE fails to offer its “position regarding the appropriate compensatory education remedy... an outright default judgment awarding compensatory education... and all of the relief requested without question... is a disfavored outcome[, including] where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious[.]”[264] The specific award sought therefore must be evaluated, because (1) “services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity[,]”[265] and (2) “[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education.”[266] Finally, a full award may be tempered when a student “did make some advancement over the course of [their] time in... school, even though [they] were not presented with what [they] were due under [the] IDEA.”[267]
Analysis
IEEs
On April 29, 2022, the Parent sent a letter to the CSE and to the Public School’s psychologist, informing them of her disagreement with the evaluations that had been conducted and reviewed to date, including the TV assessment that was reviewed by the CSE for the February 7, 2022 IEP meeting.[268] She explained in detail why the Student required independent evaluations in OT, neuropsychology, AT, SLT, TV, and she specifically “request[ed] the[se] IEEs of [her] son at public expense”[269] in compliance with the relevant statute and rules.[270]
During the course of the litigation, the parties stipulated for the Department to perform OT, SLT, and AT evaluations, and I ordered the neuropsychological and TV assessments to be performed.[271] All five evaluations were entered into evidence.[272] With respect to the three evaluations performed at the direction of the Department, the OT evaluator found that the Student’s deficits could be addressed by supports in the classroom, and determined that “occupational therapy is not recommended”[273]; the AT evaluator found that the Student did not require any reading technology,[274] but that the Student’s writing abilities would benefit from AT, specifically with “a cloud-based laptop computer with the support of word processing, built-in spelling support, and annotation to assist in meeting academic needs”[275]; and the SLT evaluator recommended SLT, noting the Student’s low to very low scores for, inter alia, structured writing and reading comprehension.[276]
The Parent did not disagree with the Neuropsychologist’s evaluation or that of the TV assessor, but during the hearing, the Parent’s Attorney argued that there is still a need for more comprehensive SLT and OT evaluations,[277] and the Parent’s witnesses explained how those evaluations would be performed, as well as their costs.[278] I note here that the Parent did not expressly disagree with the result of the Department’s AT evaluation,[279] and the Executive Director of the Education Services Agency did not recommend or request a new AT evaluation, notwithstanding that her company engaged with a consultant to review the DOE AT report.[280] I therefore conclude, with respect to the AT evaluation in evidence, that the Parent did sufficiently express a disagreement with the Department’s AT evaluation, or expressly request that one be conducted at public expense after the Department offered its evaluation.[281] I also find no basis to order a new AT evaluation sua sponte,[282] and therefore the DPC request for an AT IEE will be dismissed.
As for the SLT and OT reports the Department submitted,[283] the Parent did express a disagreement, and since they had not been performed in the preceding three years, I treat it as an original disagreement, which obligated the Department to provide for the requested IEEs in these areas, or to file its own DPC to prohibit them from occurring.[284] There is nothing in the record to suggest the Department has done either, so I find that they must occur, and at public expense. In addition, the Department offered nothing to challenge the Parent’s evidence that $1,450 is reasonable and within the standard charge for each evaluation in the New York City area.[285] The evaluations will be ordered accordingly.
FAPE
I find, on this record, that there is more than sufficient evidence make a determination that the Student was substantively denied a FAPE, and I need not address the Parent’s assertions of procedural denials that constitute a lack of a FAPE.
The Parent contends that a FAPE was denied to the Student for the 2019-2020, 2020-2021, and 2021-2022 school years, and that the deprivations have continued into the current, 2022-2023 school year.[286] The Department argues that the program developed for the Student over these years was appropriate to meet the Student’s needs, as was its burden to demonstrate.
I agree with the Department that the IEPs for the above school years contained requisite information, including assessments reviewed, then-present levels of performance and functional needs, management needs, measurable goals, and a list of recommended special education programs and services.[287] I do not agree, however, with the Department’s position that the chosen programs for the school years at issue were reasonably calculated to meet the Student’s unique needs and make educational progress, or its contention that the Student’s academic, behavioral, and socio-emotional challenges recorded in those IEPs was more likely the result of his personal motivations rather than deficiencies in the DOE’s program.
With respect to his academics, the Student was first placed in an ICT classroom for the 2017-2018 school year, when he was in 6th grade.[288] By May 23, 2019, when his 7th grade was ending, an IEP was developed for his 8th grade. He was still in ICT and was reading at the level of a 5th grader, writing at the level of a 6th grade, and had the math skills of a 6th grader.[289] The “Management Needs” section included preferential seating near the front of the classroom and review of teacher or student exemplars,[290] but there is no evidence that these were provided. Despite this lack of progress, the CSE continued to recommend ICT for core classes only, plus counseling.[291]
In the IEP developed for the Student’s 9th grade, there was some progress and regression noted, in that his reading skills had increased to a 6th/7th grade level, but his math skills had decreased to a 4th grade level.[292] His writing remained at a 6th grade level.[293] This IEP also describes how teachers were reporting “that the Integrated Co-Teaching classroom was not providing sufficient support for him to access grade-level material” and that he had to “establish lower level skills prior to attempting grade-level work[.]”[294] The “Management Needs” section now added new recommendations to the previous year, including scaffolding and chunking of information for the Student, visual aids, differentiated assignments, “daily check-ins with a trusted staff member[,]” and “spiral review of lower level skills.”[295] Again, however, nothing in the Department document’s or the Special Education Teacher’s testimony demonstrates that these supports were actually provided. Moreover, the CSE steadfastly continued to recommend ICT for core subjects in a general education classroom, despite the Student not demonstrating foundational knowledge and notwithstanding his teachers’ admonitions to the IEP team that ICT was insufficient for the Student. All the CSE did was add SETSS (and only for ELA) and PCAT for the Parent (at school only, despite that she worked).[296] By the end of the 9th grade, the Student had failed Geometry, failed Earth Science, Failed Digital Web Design, and he received only one (1) point above a failing grade in English, World History, Living Environment, Spanish, and Health.[297]
The February 10, 2021 IEP (developed for the Student’s 10th grade school year) did not include any grade-level performance,[298] but it described his difficulty keeping up with lessons and how he could only “complete assignments with maximum support.”[299] One positive report was that with SETSS, he was able to complete an ELA essay.[300] The only change to the Student’s program recommendation was to add 10 minutes to the counseling, and by the end of 10th grade, he had failed Geometry and Earth Science again, and also failed Research Literacy.[301]
The most recent IEP, dated February 7, 2022 and developed for the current school year (his 11th grade), also did not record grade-level performance, but it describes his “continu[ing]... high need for maximum support and very close oversight[.]”[302] As with all the years in question, the only classroom the CSE offered the Student was ICT, and it continued to recommend SETSS for ELA and counseling, but it removed PCAT.[303]
The IEPs created over the last three school years does not reflect a pattern of offering the Student an opportunity to learn and progress, or even an opportunity for more than mere trivial advancement (such as completing a single essay).[304] While there was some evidence that the Student’s reading improved, taken in their totality, the recommendations over the three school years in question were not “reasonably calculated to provide some ‘meaningful’ benefit.”[305] The DOE’s primary argument was to suggest that the Student’s academic challenges and poor performance resulted from his lack of motivation to come to school and to attend to his lessons. I find this position unavailing in this case for three reasons. First, it is difficult to find that a FAPE has been facially established when the Public School teachers themselves implored the CSE to change the ICT classroom that was clearly not working, and the CSE responded by offering ICT year after year. At the very least, the Department should have, consistent with its burden of proof, shown why ICT or ICT with SETSS in ELA was still appropriate despite those protests from within, especially where the Student’s underperformance increased in multiple core subjects over years. Second, the Student was absent 37 times during the 2021-2022, which is concerning, but this also means he attended school 133 days out of the total 170 school days.[306] Neither the Special Education Teacher nor the Department exhibits show what the Student lost in those 37 absences and thus how they explained his poor performance. This also fails to explain how he was able to pass classes. I therefore do not find the absences prima facie proof that the Student’s performance had less to do with the IEP’s program, especially when that program had been failing for years and other teachers had petitioned for it to change.
Finally, the absences did not affect the deficiencies in the COVID-19/remote learning supports the Public School offered. When asked if SETSS was ever 1:1, the Special Education Teacher stated that the Public School actually offered 10:1 with individual “check ins[,]”[307] and while there were 6:1 tutoring services available before and after school, it was only for 20 hours maximum, and offered only over a 10-week span (from November 1, 2021, to January 14, 2022) under the SERS program, which was difficult for the Student to attend.[308] I therefore give little weight to the Special Education Teacher’s position that the Public School did everything reasonably possible and appropriate for the Student to progress and succeed,[309] and I conclude that whatever effect the Student’s attendance had on his performance, it was a much smaller effect than the clear evidence that DOE simply failed to provide a FAPE with respect to the Student’s academic opportunities. Indeed, the evidence suggests that his lack of eagerness to engage with learning was likely more related to the fact that he had been denied foundational education and was in a grade-level class.
The Department also failed to appropriately address the Student’s behavioral and socio-emotional needs, as there was evidence before the CSE that the Student was developing negative self-directed behaviors and nothing was done to investigate or address the source of those behaviors. In the 2019 IEP, the Student was reported as shy, self-deprecating, defensive, and lacking in confidence.[310] Also, the Parent explained to the IEP team that he “ha[d] been bullied... which made him reticent around his peers” and she “[wa]s concerned about the bullying and the effect it has on his self-esteem.”[311] In the 2020 IEP, The teachers were “concerned with his participation, engagement, attendance, and lateness to class[,]”[312] as well as his “sense of security[,]” his shying away from group activities, his “sense of helplessness that require[d] a high level of adult support[,]” and his avoidance of therapy sessions due to him “not want[ing] to be singled out [.]”[313] The Parent also reported that the Student was still “being bullied at school.”[314] In the 2021 IEP, the CSE noted that he was very shy during video learning sessions, and acknowledged that the Parent was concerned about him “not advocating for himself enough during school hours."[315] The 2022 IEP mentions him feeing “overwhelmed with his course load due to his inconsistency with attendance to school.”[316]
Neither the IDEA nor the New York Education Law or their implanting regulations compel a school district to conduct an FBA,[317] or to develop a BIP.[318] Thus, an IEP is not necessarily inappropriate under the IDEA without them, so long as the IEP adequately identifies a student's behavioral impediments, and then implements strategies to address that behavior.[319] I find on this record, however, that there were clear behavioral impediments that were identified, but not adequately, and that strategies were not developed to address the Student’s behavioral and socio-emotional challenges The CSE knew that the Student had attendance problems and that there was some degree of bullying. When a student classified with a disability becomes school avoidant, and that student is already known to the CSE as someone who is bullied,[320] is falling behind in class and has issues with attention, focus, and turning in assignments on time, the CSE cannot, consistent with a FAPE, simply assume that the negative behavior is likely more related to the student’s personal motivation rather than some deficit(s) in the program, as the DOE argued. The fact that the behaviors were apparent was enough to require further investigation. But here there was more; his maladaptive behaviors began when he was being mistreated and when he was kept in a program that was not providing sufficient supports. His teachers noted these simultaneous factors when they described him to the IEP team as having issues with “participation, engagement, attendance, and lateness to class”[321] and were concerned about his “sense of security” and his “sense of helplessness[,]” as well as his avoidance of therapy sessions due to him “not want[ing] to be singled out [.]”[322] The Student’s attendance, security, helplessness and avoiding therapy sessions in light of his circumstances should have been viewed as “behavior[s] imped[ing] his... learning[,]”[323] which triggers the requirement for a FBA, if not also a BIP. The Neuropsychologist was also of the opinion that the Student required a FBA.[324] Yet none of the IEPs describe the need for any behavioral assessment. I find that failing to conduct at least a FBA was an independent failure to provide the Student a FAPE.
Compensatory Education and Services
Tutoring/Speech-Lang. Therapy/Transitional-Vocational/Parent Counseling & Training
Having found that the Department has failed to provide the Student a FAPE in the IEPs developed for the 2019-2020, 2020-2021, 2021-2022, and now the 2022-2023 school years, I turn to the remedies requested by the Parent, first with compensatory education in the form of 1,110 hours of tutoring, and compensatory services in the form of 184 hour of SLT,[325] 92 hours of PCAT,[326] and 184 hours of TV training (184 hours over two years).[327]
Before, however, I address the above services, I pause to note that, although requested in the DPC, no evidence was offered with respect to whether make-up services should be awarded for OT or counselling/social skills training. That said, I find that neither of these should be awarded as compensatory services, for reasons beyond the lack of supporting evidence. With respect to OT, the Department’s evaluation resulted in a recommendation of no therapy, and the Parent disagreed. I have ordered an IEE for OT and, until that evaluation is complete, it would be premature to declare whether compensation is due. As for counseling and social skills training, the Student was offered and has received counseling for the duration of the school years in question, and the Parent’s evidence points to social skills training being an aspect of both ABA instruction and TV training. I therefore find that the Student must be provided with banks of hours for tutoring, SLT, TV training, and PCAT (for the reasons delineated below), but not for OT or counseling/social skills training.
In calculating the number of hours for each of the above remedies, I will consider my equitable authority as well as the fact that the Department failed to offer an alternative to the Parent’s request or otherwise “describ[e] its views... regarding an appropriate compensatory education remedy[.]”[328] In fact, the Department only took the position that the proposed awards were too “ambitious[,]”[329] which I acknowledge is in line with my obligations to consider whether the amount of hours requested by the Parent is an “overwhelming quantity[,]”[330] or if the overall award has the effect of “punish[ing the] school district[.][331] I will follow the qualitative and focus on the number of hours that best address the student’s educational deficits resulting from the FAPE deprivation, which will avoid “a rote hour-by-hour compensation award, [and be] more likely to address [the student’s] educational problems successfully.”[332]
Upon my review of the record, I find first that the testimony and documents describing the Student’s deficits not only prove there was a lack of FAPE, they also confirm what level of services he needs to make up for what he has lost since the 2019-2020 school year. I have credited the Neuropsychologist’s testimony and her report, which show that the Student was capable of learning much more than he had, and perform much better than he did, but-for the denial of appropriate education and services. Given his capabilities, and given how many school years he was left behind, I agree with the Neuropsychologist, the Tutoring Facility Center Director, the BCBA, and the Executive Director of the Education Services Agency that hundreds of hours of services the Student was denied must now be provided in order to give him a chance to catch up to his grade level, and I do not find that he will be overwhelmed if those services are properly spaced out.
I must next determine whether the specific number of requested hours that will properly “make up” for the past denials of FAPE.[333] In considering the length of time for each compensatory award, I consider it a factor that deprivations are made worse over time with each year that a student is not provided with opportunities for progression. Here, with respect to math skills, the Department’s offered program made the Student’s situation worse each year: he could perform in math at a 6th grade level in the 2019-2020 school year (8th grade),[334] but then he decreased to a 4th grade level in the 2020-2021 school year (9th grade),[335] and while his math skills were not recorded for the 2021-2022 school year (10th grade), he had failed Geometry twice.[336] As I have already determined, this was a failure of the recommended program, not caused by the Student’s attendance or changes in the program caused by COVID-19.
With respect to the Student’s writing abilities, he performed at a 6th grade level in 2019-2020,[337] remained at a 6th grade level in 2020-2021,[338] and exhibited mixed results for 2021-2022, whereby the Department barely passed him but he was able to write a 10th grade level essay.[339] Having found that the Department denied the Student a FAPE for the 2021-2022 school year, I do not see the Student’s writing reflecting progress. As to the Student’s English reading abilities, there was some progress. He performed at a 5th grade level in 2019-2020,[340] his skills increased to a 6th/7th grade level in 2020-2021, where he achieved a final grade of 70,[341] and for the 2021-2022 school year, his English grade improved again to a 75, with an 80 in the second marking period.[342] This is consistent with the Neuropsychologist’s evaluation, which noted some reading skills in the Extremely Low range, but also that he “demonstrate[d] some reading skills at about the 6th grade level[.]”[343] I therefore find that while the program overall did not provide a FAPE, I must take into account that the Student’s reading abilities appeared to have been somewhat improving every year for the years in question.
On the above record, I find that the Student is entitled to full compensation for the three years he experience no progress and even regression in mathematics, full compensation for the three years he experienced no progress in writing, and partial compensation for reading, as is warranted when a student “did make some advancement over the course of [their] time in... school, even though [they] were not presented with what [they] were due under [the] IDEA.”[344] I am also mindful, however, that the problems caused by unchanging circumstances would exacerbate as time goes by. A 9th grader writing at a 6th grade level is in a relatively worse position than an 8th grader writing at a 6th grade level.[345]
I therefore conclude the following. I will treat each successive year of deprivation worse by a multiplier of the first year’s deprivation (second year twice the first year, and third year three times the first year). Therefore, the Student’s losses in the 2019-2020 school year represent 17% of the deprivation, the 2020-2021 school year represents 33% of the deprivation, and the 2021-2022 represents three times the original deprivation, or 50%, for a total of 100%. Given that there was no progress in math or writing, I will award 100% of the requested education and services that pertain to math and writing, including the math and writing components of tutoring and SLT.[346] As for reading, however, I am finding that the Student is entitled to the full 17% of total education and services for the 2019-2020 school year, as he was three grade-levels behind at the time, but only two-thirds of the 33% and 50%, respectively, of the education and services for the 2020-2021 and 2021-2022 school years, because he had some improvement (to only two grade levels behind in 9th grade), and because he improved his English reading grade by 10 points in the 10th grade. This results in the following distribution of the awards:
School Year (grade) % Depr (math) % Depr. (writing) % Depr. (reading)
2019-2020 (8th) 17% 17% 17%
2020-2021 (9th) 33% 33% 22%
2021-2022 (10th) 50% 50% 33%
100% 100% 72%
Applying the above formula to the requested hours, the Parent receives everything she is requesting with respect to the 184 hours of TV training and 92 hours of PCAT, and a 28% reduction in hours for the reading components of tutoring and SLT. For tutoring, I find that three of the eight (37.5%) of the targeted “Verbal” skills listed in the Tutoring Facility’s assessment of hours are related to reading.[347] The tutoring facility applied 360 hour to Verbal skills, and 37.5 of that number is 135 hours. Applying the 28% reduction to that number means that the Verbal skills should be reduced by 38 hours, resulting in a total of 1,072 hours of awarded tutoring.
As for SLT, the reading component is found in three of the nine categories the Department evaluated, the “Behavioral Observation” category,[348] the “Relationship to Curriculum and Classroom Performance” category,[349] the “Recalling Sentences Subtest” category,[350] and the “Reading Comprehension” category.[351] In all, I find that reading is about one-third of the proposed SLT, and 28% of one-third is 9.3%, which is the percentage reduced from the 184 hours of requested SLT (17 hours), resulting in a total SLT award of 167 hours.
I further find that it should not take more than three years for the Student to receive 1,072 hours of tutoring, and two years for the Student to receive 167 hours of SLT, 184 hours of TV training, and no more than two years for the Parent to receive 92 hours of at-home PCAT. Finally, the experts credibly explained the basis of the rates charged for these services, and the DOE offered nothing in rebuttal; I therefore will apply $110 per hour for tutoring[352]; $180 per hour for SLT[353]; $180 per hour for TV training[354]; and $200 per hour for at-home PCAT.[355] I will also order funding for the Tutoring Facility’s charges of $295.00 for its diagnostic evaluation and $100.00 for registration.[356]
At-Home Applied Behavior Analysis and Board-Certificate Behavior Analyst Supervision The Parent also seeks specific at-home instruction, specifically 460 hours of ABA home instruction,[357] and 138 hours of BCBA supervision,[358] as recommended by the Neuropsychologist[359] and the BCBA.[360]
The courts have recognized that a home-based ABA program is primarily to generalize skills outside the classroom, and while that undoubtedly provides a benefit to a disabled student, the development of non-educational skills is not by itself required by the IDEA.[361] If, however, the “student’s difficulty in generalizing skills prevents [the]m from making [classroom] progress required under the IDEA[,]”[362] or the “difficulty generalizing skills [is] so severe that it prevents [the student] from receiving any educational benefit[,]”[363] then the district may properly be ordered to provide ABA instruction and BCBA supervision.
Here, the Neuropsychologist listed the Student’s Autism as “Level 2, without intellectual disability, requiring support for deficits in social communication and restricted behaviors[,]” as well as “Social Pragmatic Communication Disorder[,]” which together “require[] very specific targeted supports that target his language, communication, and maladaptive, interfering behaviors associated with Autism.”[364] She noted his patterns of negative behaviors, “including zoning out and social avoidance[, how] he lacks coping skills[,]”[365] and how his social deficits, internal distractibility, self-directed behavior have contributed to him being “very dependent in the learning environment[, where he] has a tendency to shut down.”[366] It is the Neuropsychologist’s opinion that these challenges both “cause clinically significant impairments in social, academic and family functioning” and “are at the root of his lack of progress in the general education setting.”[367] I take this to mean that failing to address the Student’s socio-emotional and behavioral issues generally will directly impact whether the Student will be able to progress in the classroom. The Neuropsychologist believes as much:
home-based and community component... ABA, overseen by a licensed... BCBA... should be applied to instruction and... promote independence in learning. This ABA component should be provided at home after school and on weekends to enable him to consolidate what he has learned at school and apply it at home and in the community. He requires mastery of these targeted skills with various people and in various settings in order to master the skills being targeted at school.
I have credited the Neuropsychologist’s testimony and her report, and I conclude from the above that there is a sufficient nexus between the way the Student’s challenges affect his life generally and their effects on his ability to learn in school, such that his “difficulty in generalizing skills prevents him from making [classroom] progress [as] required under the IDEA[.]”[368] Home-based ABA services and concomitant BCBA supervision are therefore warranted. The Department did not offer any evidence to rebut the specific hours or the rates charged for these services, so I will award what is requested, namely 460 hours of ABA at $150.00 per hour,[369] and 138 hour of BCBA supervision at $200.00 per hour.[370] I also conclude that it should not take more than two years for the Student to receive these services.
Current Placement and Services and Prospective Relief
Having determined that the ICT plus SETSS classroom setting fails to provide a FAPE, and given that this is the program that was recommended for the current, 2022-2023 school year,[371] I must address what needs to change in order for the Student to be provided an appropriate placement and program.
The evidence from the Neuropsychologist, the BCBA, the Executive Director of the Education Services Agency all persuasively demonstrate why the Student needs a small class with a low student-to-teacher ratio in an extended year school program that specializes in students with multiple learning disorders, and that utilizes a multi-sensory based curriculum that includes a program such as Orton-Gillingham or the Wilson Reading Program, along with: 1:1 ABA instruction as part of the program; the development of a FBA by a licensed BCBA that “include[s] addressing needs at home and in the community to improve social navigation skills and coping”; post-secondary transition goals based upon a comprehensive vocational assessment with counseling and community experiences, with TV training with measurable post-secondary transitional goals; counseling and SLT incorporated into the Student’s IEP; the use of AT, including a computer for written work; PCAT; and coordination and meetings between the various therapists and aids.[372]
In the Neuropsychologist’s opinion, obtaining this more appropriate level of education and services requires the Student to be referred to the CBST for a NPS placement.[373] The DOE did not offer any evidence to contradict these recommendations, other than to label it “ambitious” and to focus on the Student’s motivations and attendance, all positions I have rejected. That said, I must still consider the extent of my equitable authority before directing future services.
An award of prospective equitable relief is an available remedy for a school district’s denial of FAPE,[374] and “[w] hile ‘retrospective relief [is] designed to compensate for yesterday's IDEA violations,... prospective relief [is] aimed at ensuring that the child receives tomorrow the education required by IDEA.’”[375] Private placements can be awarded, but this is generally disfavored, as courts prefer to direct school districts to reconvene and revise a student’s IEP for the purpose of recommending an appropriate program and placement.[376] Here, however, there are compelling justifications for deferring the Student to the CBST to identify and recommend a NPS. First, it has been determined that the Department substantially failed this student, in continually offering a clearly inappropriate program for years, despite protestations from the Student’s teachers and the Parent. Second, the experts who have evaluated the Student agree that he needs a more restrictive program, one that will more likely be only provided by a NPS rather than through adjustments to the IEP’s placement and program. Third, and not at all the least important, is the fact that the Student is nearing graduation, and the Executive Director, the Neuropsychologist, and the BCBA make the compelling argument that the Student is far behind in the foundational skills he will need to complete his education and prepare him for life as a functioning adult. After the many years of leaving him behind, he must be afforded a more meaningful opportunity to gain these academic, behavioral, and socio-emotional skills.
The record here fully supports a NPS with an ABA program. Accordingly, the CSE will be directed to immediately convene and develop an IEP for the Student to appropriately address his significant deficits across all academic, social, daily living, self-help, community, and communication domains, and to defer his case to the CBST to recommend an appropriate nonpublic school ABA placement and program and placement for him that is consistent with this decision. Pending the Student’s placement in an approved nonpublic school, the Student shall immediately be provided with 30 hours a week of push-in ABA services in his current educational program. However, I do not find that the award must be for an extended school year. The record is devoid of any evidence that the Student regressed further during the Summer breaks, or that he would have regressed during breaks even if an appropriate program would have been offered at the Public School. Moreover, the Student will not be left without an opportunity for services, as the Executive Director of the Education Services Agency testified that most of the compensatory services I am awarding are available year round.[377] Therefore, I will defer the question of whether an extended school year should be offered to the Student to the CSE and the CBST.
Remaining Contentions To the extent any further contentions have been made by the parties that are not addressed in this decision, I have found them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any claims or relief not specifically discussed in this decision are dismissed with prejudice, or denied, respectively.
DECISION AND ORDER
Upon the foregoing, it is hereby,
Ordered, that the New York City Department of Education shall fund a comprehensive Speech-Language Therapy Independent Educational Evaluation by the Education Services Agency, or a comparable therapist, at a rate not to exceed $1,450.00, with payment to be made within thirty (30) days of the Parent’s submission to the DOE of the provider’s invoice for such services; and it is further, Ordered, that the DOE shall fund a comprehensive Occupational Therapy Independent Educational Evaluation by the Education Services Agency, or a comparable therapist, at a rate not to exceed $1,450.00, with payment to be made within thirty (30) days of the Parent’s submission to the DOE of the provider’s invoice for such services; and it is further, Ordered, that the Parent shall provide to the DOE copies of the reports of the results of the SLT IEE and of the OT IEE, within ten (10) calendar days of the date each such completed report is received by the Parent; and it is further, Ordered, that the Parent’s requested relief for an assistive technology (AT) Independent Educational Evaluation is hereby denied; and it is further, Ordered, that the DOE shall fund a total of 1,072 hour of compensatory education at the Tutoring Facility, or a comparable tutoring agency, at a rate not to exceed $110.00 per hour, with payment to be made within thirty (30) days of the Parent’s submission to the DOE of the provider’s invoice for such services, and provided further, that the tutoring services must be fully used no later than December 3, 2025; and it is further, Ordered, that the DOE shall fund the Tutoring Facility’s fee for a comprehensive evaluation of the Student, in the amount of $295.00, and shall also fund the Tutoring Facility’s registration fee of $100.00, to be paid directly to the Tutoring Facility unless the Parent submits proof of payment, in which case the Parent shall be reimbursed these amounts, with payment to either the Tutoring Facility or the Parent within thirty (30) days of the Tutoring Facility or the Parent’s submission to the DOE of the provider’s invoice for such fees, and it is further, Ordered, that the DOE shall fund 460 total hours of compensatory home-based and community 1:1 ABA instruction services for the Student, provide by a certified ABA with the Behavior Services Company, who has experience working with student with Autism, or a comparable ABA, at a rate not to exceed $150.00 per hour, with payment to be made within thirty (30) days of the Parent’s submission to the DOE of the provider’s invoice for such services, and provided further, that the ABA services must be fully used no later than December 3, 2024; and it is further, Ordered, that the DOE shall fund 138 total hours of compensatory 1:1 BCBA supervision of the home-base and community 1:1 ABA instruction services for the Student, provided by a qualified BCBA with the Behavior Services Company, or a comparable BCBA, at a rate not to exceed $200.00 per hour, with payment to be made within thirty (30) days of the Parent’s submission to the DOE of the provider’s invoice for such services, and provided further, that the BCBA services must be fully used no later than December 3, 2024; and it is further, Ordered, that the DOE shall fund 92 total hours of compensatory 1:1 Parent Counseling and Training, provided by a qualified BCBA with the Behavior Services Company, or a comparable BCBA, at a rate not to exceed $200.00 per hour, with payment to be made within thirty (30) days of the Parent’s submission to the DOE of the provider’s invoice for such services, and provided further, that the PCAT services must be fully used no later than December 3, 2024; and it is further, Ordered, that the DOE shall fund 167 total hours of compensatory 1:1 Speech-Language Therapy, provided by a qualified therapist with the Education Services Agency, or a comparable therapist, at a rate not to exceed $180.00 per hour, with payment to be made within thirty (30) days of the Parent’s submission to the DOE of the provider’s invoice for such services, and provided further, that the SLT services must be fully used no later than December 3, 2024; and it is further, Ordered, that the DOE shall fund 184 total hours of compensatory Transitional-Vocational training, provided by a qualified TV service provider with the Education Services Agency, or a comparable TV service provider, at a rate not to exceed $180.00 per hour, with payment to be made within thirty (30) days of the Parent’s submission to the DOE of the provider’s invoice for such services, and provided further, that the TV services must be fully used no later than December 3, 2024; and it is further, Ordered, that the Parent’s requested relief for compensatory Occupational Therapy and Counseling/Social Skills Training are hereby denied; and it is further, Ordered, that the DOE shall immediately provide the Student with an AT device and AT services, specifically a cloud-based laptop computer with the support of word processing, built-in spelling support, and annotation to assist in meeting academic needs, for use throughout the school day and at home, together with programmatic and instructional technology and supports to ensure that the computer is updated and programmed no less frequently every other month, and provided that the CSE shall offer training to the Student, the Parent, school staff, and any individual who spends significant time caring for the Student, with appropriate training on how to use and program the computer and the software, as the CSE deems necessary; and it is further, Ordered, that the DOE shall promptly provide a Metrocard to the Student and the Parent for transportation to and from the Tutoring Facility, and it is further, Ordered, that the DOE shall provide for a comprehensive FBA, to be conducted and developed by a BCBA; provided, however, that if, based upon the FBA, the BCBA determines that a BIP is necessary, the Department shall likewise provide for a comprehensive BIP, to be developed by a BCBA; and it is further, Ordered, that within thirty (30) days of the date of this decision, the DOE shall convene a meeting of the CSE to develop an IEP for the Student that will (i) appropriately address the Student’s significant deficits across all academic, social, daily living, self-help, community, and communication domains, consistent with this decision; (ii) recommend related services for the Student consisting of appropriate levels of SLT services, counseling and social skills development services, AT services, TV training, PCAT, and a continuation of current transportation services; provided that the CSE shall also evaluate any report from the OT IEE authorized in this decision, and determine the type and duration of OT necessary to carry out its recommendations; (iii) recommend an appropriate special education program and placement for the Student consistent with the findings and recommendations contained in the Neuropsychological Evaluation; provided that the CSE shall determine whether the new program developed should be based upon an extended school year; and (iv) defer the Student’s case to the CBST to recommend an appropriate nonpublic school 1:1 ABA program and placement for him that is consistent with the findings and recommendations contained in the Neuropsychological Evaluation; and it is further, Ordered, that until an appropriate nonpublic school, 1:1 ABA program and placement are identified and provided to the Student, he shall be provided with 30 hours a week of push-in 1:1 ABA instruction and services in his current educational program, consistent with this decision; and it is further, Ordered, that the New York City Department of Education Implementation Unit shall authorize the services hereby ordered, within fifteen (15) days; and it is further, Ordered, that the DOE shall provide copies of meeting notes of the Chair of the IEP teams for the Student for the previous two years, as well as a copy of the Student’s records kept in the DOE’s SESIS computer systems.
So Ordered.
___________________ Dated: November 3, 2022
Richard J. Zeitler, Jr. (signed electronically)
Impartial Hearing Office
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DISTRICT EVIDENCE
Exhibit
Title
Date
Pages
1
IEP
05/12/2020
18
2
IEP
02/10/2021
18
3
IEP
02/07/2022
18
4
Prior Written Notice
06/03/2019
4
5
IEP Attendance
05/23/2019
1
6
Level 1 Vocational Assessment
(undated)
2
7
Occupational Therapy Evaluation
08/15/2022
17
8
Occupational Therapy Family Checklist
(undated)
2
9
Speech/Language Evaluation
08/25/2022
7
10
Transitional/Vocational Evaluation
08/29/2022
33
11
Special Education Recovery Services Letter
11/01/2021
3
12
Report Card for 2020-2021 Marking Period # 1, Term 2
(undated)
1
13
Report Card for 2021-2022 Marking Period # 2, Term 2
(undated)
1
14
Report Card for 2021-2022 Marking Period # 3, Term 2
(undated)
1
15
Student Transcript
09/15/2022
1
16
Student Permanent Record
09/15/2022
1
17
Student Attendance History Report
09/15/2022
1
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A
Demand for Due Process Hearing
05/12/2022
12
B
Parent Letter Requesting IEE
04/29/2022
3
C
Affidavit of Dr. [REDACTED]
07/14/2022
2
D
Affidavit of [REDACTED]
07/14/2022
4
E
IEP
02/07/2022
18
F
IEP
05/23/2019
16
G
NYC DOE Occupational Therapy Evaluation
08/15/2022
17
H
Neuropsychological Evaluation
09/02/2022
30
I.
Transitional/Vocational Evaluation
08/29/2022
33
J NYC DOE Speech/Language Evaluation 08/25/2021 7
K NYC DOE Assistive Technology Evaluation 08/19/2022 13
L NYC DOE Student Permanent Record 04/12/2022 1
M NYC DOE Student Transcript 04/04/2022 1
N 10th Grade, 2021-22 1st Quarter Report (undated) 1 O NYC DOE Student Report Card, 2021-2022, Term 2 06/21/2021 1 P NYC DOE Student Report Card, 2020-2021, Term 2 06/21/2021 1
Q
E. Harlem Scholars Academy Rpt Card,’19-’20 Trimester 1
(undated)
4
R 4th Quarter 2018-2019 Year End Summary 06/06/2019 1 S 4th Quarter Report Card, 2018-2019 05/10/2019 4
T IEP Goal and Progress Report, 2018-2019 (undated) 3
U Related Services Progress Report: Counseling 03/15/2019 1
V Related Service Progress Report: Speech 03/12/2019 1
W Student Progress Report, 2018-2019, 3rd Quarter (undated) 1
X Related Services Progress Report: Speech 01/03/2019 1
Y Academic Status Summary 2018 (undated) 1
Z NYC DOE Psychoeducational Evaluation 05/24/2018 9
AA NYC DOE Prior Written Notice 06/02/2019 4
BB HLC Student Academic Evaluation Results, C752 03/23/2022 3
CC [REDACTED] Individualized Prescribed Hours, C767 03/23/2022 3
DD [REDACTED] Testing Booklet (undated) 43
EE Affidavit of [REDACTED] 09/13/2022 12
FF Affidavit of [REDACTED] 09/19/2022 7
GG Resume of [REDACTED] (undated) 3
HH Curriculum Vitae of Dr. [REDACTED] (undated) 2
II Resume of [REDACTED] (undated) 2
JJ Resume of [REDACTED] (undated) 3
KK Resume of [REDACTED] (undated) 4
LL Affidavit of [REDACTED] 09/16/2022 6
MM Affidavit of Dr. [REDACTED] 09/16/2022 8
NN Affidavit of Parent 09/19/2022 6 IHO EVIDENCE Exhibit
Title
Date
Pages
I
Pre-Hearing Conference Summary and Order
07/13/2022
3
II
Order of Extension
07/13/2022
1
III
Parent’s Memo in Support of Motion for IEEs
07/15/2022
9
IV
Parent’s Exhibits in Support of Motion for IEEs
07/15/2022
22
V
Interim Order for Independent Educational Evaluations
07/24/2022
8
VI
Order of Extension 2
09/01/2022
1
VII
Scheduling Order
09/01/2022
2
VIII
Order of Extension 3
09/22/2022
1
IX
Scheduling Order 2
09/22/2022
2
X
Order on Application to Limit Time for Testimony
10/06/2022
5
Footnotes
[1] See 20 U.S.C. § 1415(f), and New York State Education Law §§ 4404(1) and 3602-c (2)(b)(1); see Ex. A.
[2] Id.
[3] See Ex. A-2 to A-5.
[4] Id. at A-5 to A-10.
[5] These include a neuropsychological evaluation costing $6,000, an OT evaluation costing $1,450, a SLT costing $1,450, a TV assessment costing $1,500, and an AT evaluation costing $1,850. I ordered the neuropsychological evaluation and the TV assessment by Interim Order on July 24, 2022. See IHO Ex. V. During the course of this litigation, the Department offered, and the Parent accepted, public evaluations for OT, SLT, and AT, see Tr.1 at pg. 53. At the hearing, the Parent’s Attorney requested that new OT, SLT, and AT evaluations still be ordered, on the basis that the Department’s SLT evaluation was insufficient because it failed to “test any pragmatic skills[,]” which is one of the Student’s “biggest deficit[s].” Id. at pp. 55 and 58.
[6] This is at a rate of $105 per hour for tutoring instructional services. The Parent also seeks funding for the Tutoring Facility’s assessment ($295) and its registration of the Student ($100).
[7] See IHO Ex. I.
[8] See IHO Exs. III and IV.
[9] See IHO Ex. V.
[10] See IHO Ex. VII.
[11] See IHO Ex. IX.
[12] See IHO Ex. II.
[13] See IHO Ex. VI.
[14] See IHO Ex. VIII.
[15] The transcript from the first day of the hearing shall be denoted “Tr.1.”
[16] The transcript from the second day of the hearing shall be denoted “Tr.2.”
[17] See Exs. 1 through 17.
[18] See Exs. A through NN; see also Tr.1 at pp. 14 to 30 (describing reasons for admitting the exhibits to which the Department objected).
[19] The Department’s witnesses did not comply with the Tribunal’s schedule on both hearing dates. On the first date, after over an hour of preliminary matters, the Department’s Representative informed me that they would have to leave halfway through the allotted time, which did not allow for direct and cross of either witness. See Tr.1 at pp. 59 to 64. The Parent agreed to present her witnesses first, see id., and the Department’s witnesses were to testify on the second hearing date. Before that second date, the Department informed me that the witnesses did not want to testify more than one-half hour each, inclusive of direct testimony. I ordered the Department to submit affidavits for the witnesses, see IHO Ex. X, but the Department then offered to make the witnesses available for at least one hour each. We were able to hear the DOE Special Education Teacher’s entire testimony, but the second witness insisted on leaving, see Tr.2 at pp. 60 to 66, which would have provided only “a few minutes” for testimony. See id. at pg. 61. With that restriction and based upon the witness’s non-compliance with my expectations for both hearing dates, and given the overall protracted history of this case, I precluded the second witness. See id. at pp. 65 to 66.
[20] All the Parent’s witnesses provided their direct testimony via affidavit, and they were all cross-examined except the Parent. On the first hearing date, I agreed with the Parent’s Attorney that the Parent should not be cross-examined before the Department presented its witnesses. See Tr.1 at pp. 62 to 65. On the second hearing date, the Department rested without requesting cross of the Parent after its witness testified. See Tr.2 at pg. 66. I therefore find that the Department waived its cross-examination of the Parent.
[21] See Ex. A-1.
[22] See Exs. 1-1, 2-1, 3-1, E-1, and F-1.
[23] See Ex. A-2 and A-3.
[24] See Exs. F-16 and 5-1.
[25] See id. at F-1.
[26] Id. at F-2.
[27] See id.
[28] Ex. F-4.
[29] Id. at F-.6
[30] Id. at F-5.
[31] Id.
[32] Id.
[33] See id. at F-10 to F-11.
[34] See Ex. 1.
[35] See id. at 1-18.
[36] See id. at 1-1.
[37] See Ex. 1-2.
[38] Ex. 1-3.
[39] Id.
[40] Id. at 1-5.
[41] Id. at 1-4.
[42] Id.
[43] Id. at 1-13. I note that the 2020 IEP also mentions how the Parent disagreed with a more restrictive program, specifically a 12:1 classroom setting. For purposes of the burden of proof with respect to FAPE, however, what is more important is that the Department chose against a more restrictive setting.
[44] Id. at 1-7.
[45] See Ex. 12; see also Tr.2 at pp. 51 to 52 (explaining that “NX” meant a failing score).
[46] See Ex. 2-18.
[47] Id. at 2-2.
[48] Id.
[49] See id.
[50] See id. at 2-9 to 2-10.
[51] Id. at 2-5.
[52] Id. at 2-6.
[53] Id. at 2-13.
[54] Id. at 2-3.
[55] See Ex. 14.
[56] See Exs. 3-18, 5-1, and E-18.
[57] Id. at E-2.
[58] Id.
[59] Id. at E-3.
[60] Id. at E-10 to E-11.
[61] Id. at E-5, E-6, and E-13.
[62] See Ex. Z-1.
[63] See id. at Z-2 to Z-6.
[64] Id. at Z-7. His scores were 59, based upon information from the teacher, and 49, based upon the evaluation of the Student, respectively, where “normal risk” is a score of 0-60, “elevated risk” is a score of 61-70, and “extremely elevated risk” is a score of 71 or higher.
[65] Id.
[66] Id. at Z-8.
[67] See Ex. BB.
[68] Id. at BB-1.
[69] See id.
[70] See id. at BB-2.
[71] See Ex. B-1 through B-3, and Ex. A-11
[72] See Exs. G, J, K, 7, and 9.
[73] Exs. G-2 to G-3, and 7-2 to 7-3.
[74] Id. at G-3 and 7-3.
[75] See id.
[76] See id. at G-5 to G-7 and G-10, and 7-5 to 7-7 and 7-10.
[77] See id. at G-7 to G-8, and 7-7 to 7-8.
[78] See id. at G-8 and 7-8.
[79] Id. at G-13 and 7-13.
[80] Id. at G-14 and 7-14.
[81] See id at. G-16 to G-17, and 7-16 to 7-17.
[82] Id. at G-15 and 7-15.
[83] See Ex. K.
[84] Id. at K-5 to K-7.
[85] Id. at K-7 to K-11.
[86] See Exs. 9-1 and J-1. The report was generated on August 25, 2022. See Exs. 9-6 and J-6.
[87] Id. at 9-2 and J-2.
[88] See id. at 9-3 to 9-4, and J-3 to J-4.
[89] See id. at 9-6 and J-6.
[90] See id. at 9-2 and J-2.
[91] See id. at I-1 to I-2, and 10-1 to 10-2.
[92] Id. at I-2 to I-3, and 10-2 to 10-3.
[93] See id. at I-3 to I-11, and 10-2 to 10-11.
[94] Id. at I-13 and 10-13.
[95] Id. at I-14 to I-15, and 10-14 to 10-15.
[96] Id. at I-25 and 10-25.
[97] Id. at I-25 to I-28, and 10-25 to 10-28.
[98] See Ex. H.
[99] See Ex. H-9 to H-13.
[100] Id. at H-3 (emphasis in original).
[101] Id. at H-14.
[102] See Ex. H-18.
[103] Id.
[104] Id. at H-20.
[105] Id.
[106] Id.
[107] See id.
[108] Id.
[109] Id.
[110] Id. at H-21.
[111] Id. at H-21 to H-24.
[112] See Tr.2 at pg. 11.
[113] See id. at pp. 12 to 13.
[114] See id. at pp. 13 to 15; see also Ex. 3-18.
[115] See id. at pp. 18 to 19.
[116] See id. at pg. 20.
[117] Id.
[118] Id. at pg. 18.
[119] See id. at pg. 21.
[120] See id.
[121] See id. at pg. 24.
[122] See id. at pp. 22 to 23.
[123] See id. at pg. 23.
[124] See Ex. 11.
[125] See id. at pg. 24.
[126] See id. at pp. 27 to 28.
[127] See id. at pp. 28 to 29.
[128] See id. at pg. 28.
[129] See id. at pg. 23.
[130] Id. at pp. 35 to 36.
[131] See id. at pg. 36; see also Ex. 1-7 and 1-8.
[132] See id. at pp. 40-41.
[133] See id. at pp. 44 to 46; see also Ex. 2-6.
[134] Id. at pp. 44 to 45.
[135] See id. at pp. 49 to 50; see also Ex. 3-6 to 3-9.
[136] See id. at pg. 51; see also Ex. 3-16.
[137] See Ex. EE ¶¶ 1 and 3.
[138] Id. ¶ 5.
[139] Id. ¶ 9.
[140] Id. ¶ 28.
[141] See Ex. CC.
[142] See id. at CC-1.
[143] Ex. EE ¶ 30.
[144] Id. ¶¶ 3 and 43.
[145] Id. ¶ 33.
[146] See id. ¶ 45.
[147] See id. ¶ 46.
[148] See Tr.2 at pg. 81.
[149] See id. at pg. 82.
[150] See id. at pp. 82 to 85.
[151] See id. at pp. 85 to 86.
[152] See id. at pp. 86 to 87.
[153] Id. at pp. 88 to 88.
[154] Id. at pp. 88 to 89.
[155] See id. at pp. 90 to 91.
[156] See Ex. LL ¶¶ 1 to 2.
[157] See id. ¶¶ 6 to 8.
[158] See Ex. I.
[159] Ex. LL ¶¶ 8 to 10.
[160] See id. ¶ 11.
[161] See Tr.1 at pg. 103.
[162] See id. ¶ 16.
[163] See id. ¶ 17.
[164] See id. ¶ 18.
[165] See id. ¶¶ 31 to 32.
[166] See id. ¶ 19.
[167] See id. ¶ 20.
[168] See id. ¶ 38.
[169] See id. ¶ 23.
[170] See id. ¶ 24.
[171] See id. ¶ 36.
[172] Tr.1 at pp. 104 to 105.
[173] Id. at pp. 107 to 108.
[174] Id. at pp. 109 to 110.
[175] See Ex. FF ¶ 1, 7, and 8.
[176] Id. ¶ 8.
[177] See id. ¶ 17.
[178] Id. ¶ 19.
[179] Id.
[180] See id. ¶ 20.
[181] See id.
[182] Id. ¶¶ 21 and 23.
[183] See id. ¶¶ 21 to 23.
[184] See id. ¶¶ 24 to 25.
[185] See id. ¶ 26.
[186] See id. ¶ 27.
[187] See Tr.1 at pg. 122.
[188] See id.
[189] Id. at pg. 123.
[190] See id. at pp. 123 to 124.
[191] Id. at pp. 124 to 125.
[192] Id. at pg. 125.
[193] Id.
[194] Id. at pp. 125 to 126.
[195] See id. at pg. 127.
[196] See id. at pg. 128.
[197] Id. at pp. 131 to 132.
[198] Id. at pg. 132.
[199] See Ex. MM ¶¶ 8 and 10.
[200] See id. ¶¶ 11 to 14.
[201] Id. ¶ 15.
[202] Id.
[203] Id. ¶ 16.
[204] See id.
[205] Id. ¶ 17.
[206] See id. ¶¶ 18 to 22.
[207] See id. ¶ 23.
[208] See id. ¶ 25.
[209] Tr.1 at pg. 141.
[210] See id. at pp. 141 to 142.
[211] Id. at pg. 143.
[212] See id. at pp. 143 to 145.
[213] Id. at pg. 145.
[214] Id. at pp. 146 to 147.
[215] Id. at pg. 147.
[216] See id. at pp. 147 to 148.
[217] See id. at pg. 149.
[218] Id.
[219] See Ex. NN ¶ 3.
[220] Id. ¶ 4.
[221] Id.
[222] See id.
[223] See id. ¶ 5.
[224] See id. ¶¶ 6 to 7.
[225] Id. ¶ 7.
[226] Id. ¶ 8. She notes also, with respect to the notation in the IEP that she did not want more restrictive services for the Student, she was concerned that placing the Student in a smaller special education classroom would mean that he would not receive a diploma. See id. ¶ 16.
[227] Id. ¶ 9.
[228] Id. ¶ 10.
[229] See id. ¶¶ 11 to 15.
[230] Id. ¶ 17.
[231] See Tr.2 at pp. 67 to 70.
[232] See Tr.2 at pp. 71 to 82.
[233] See 34 CFR 300.502(a)(3)(i); see also 8 NYCRR § 200.1(z).
[234] D.S. v. Trumbull, 975 F.3d 152, 163 (2d Cir. 2020) (emphasis in original). The statute provides mandatory procedures, including “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information,” 20 U.S.C. § 1414(b)(2)(A]); using “technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors,” 20 U.S.C. § 1414(b)(2)(C); and assessing the child “in all areas of suspected disability,” 20 U.S.C. § 1414(b)(3)(B).
[235] See 8 NYCRR § 200.5(g); 20 U.S.C. § 1415(b)(1); 34 CFR § 300.502(a)(1); and D.S. v. Trumbull, 975 F.3d at 157.
[236] NYCRR § 200.5(g)(1); see also 34 CFR § 300.502(b)(1) (the “parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency”).
[237] See 8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b); see also K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. 2012) (stating that New York law is clear that disagreement with a specific district-conducted evaluation is a prerequisite for an IEE ), and R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 (D. Conn. 2005) (finding no entitlement to IEE at public expense where parent did not disagree with evaluation obtained by a public agency).
[238] NYCRR § 200.5(g)(1)(iv). Impartial Hearing Officers may also order IEEs on their own, before a parent makes the request and without the restrictions or conditions imposed on parental requests. See 8 NYCRR § 200.5(g)(2).
[239] D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 168-169 (2d Cir. 2020).
[240] D.S. v. Trumbull Bd. of Educ., 975 F.3d at 168.
[241] “The statute directs the court to ‘grant such relief as [it] determines is appropriate.’ The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be ‘appropriate.’ Absent other reference, the only possible interpretation is that the relief is to be ‘appropriate’ in light of the purpose of the Act... this is principally to provide handicapped children with ‘a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.’” Burlington School Committee, et al., Petitioners v. Massachusetts Department of Education et al., 471 U.S. 359 (1985). A hearing officer’s authority to order relief pursuant to Section 1415(i)(2)(c)(iii) is co-extensive with that of a court. See, e.g. Cocores v. Portsmouth, New Hampshire, Sch. Dist., 18 IDELR 461 (DNH, 1991).
[242] See 8 NYCRR §200.5(g)(2); 34 CFR § 300.502(d); and 8 NYCRR §200.5(j)(3)(viii).
[243] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[244] See 34 C.F.R. § 300.13.
[245] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Board of Ed. v. Rowley, 458 U.S. 176, 206-07 (1982).
[246] U.S.C. § 1415(f)(3)(e)(ii); 34 C.F.R. § 300.513(a)(2); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
[247] U.S.C. § 1415(f)(3)(e)(i)
[248] Rowley, 458 U.S. at 203.
[249] Rowley, 458 U.S. at 189, 199; see also Grim v. Rhinebeck Central Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003), and Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998), at 132 (an “appropriate” education is “not one that provides everything that might be thought desirable by loving parents”).
[250] Cerra v. Pawling Cent. Schl. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130.
[251] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
[252] See NYS Educ. Law § 4404(1)(c).
[253] See 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak at 119.
[254] See Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993).
[255] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted)
[256] Id.
[257] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[258] See Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997].
[259] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].
[260] Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").
[261] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, 546 F.3d at 123.
[262] Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007).
[263] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
[264] Application of a Child with a Disability, Appeal No. 22-004 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005).
[265] M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8, supra.
[266] C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 838 (3d Cir. 2010).
[267] Somberg v. Utica Community Schs., 2017 WL 242840, at *4 (E.D. Mich. 2017).
[268] See Ex. B-1.
[269] Id. at B-1 to B-2.
[270] See 8 NYCRR § 200.5(g)(1), and 34 CFR § 300.502(b).
[271] See IHO Ex. V.
[272] See Exs. G through K, 7, and 9.
[273] Exs. G-15 and 7-15.
[274] See Ex. at K-5 to K-7.
[275] Id. at K-7 to K-11.
[276] See Exs. at 9-2 to 9-4 and 9-6, and J-2 to J-4 and J-6.
[277] See Tr.2 at pp. 78 to 79.
[278] See Ex. LL ¶¶ 31, 32, 36, and 37.
[279] See Tr.2 at pp. 78 to 79.
[280] See id. ¶ 22.
[281] See K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. 2012) (disagreement with a specific district-conducted evaluation is a prerequisite for an IEE ), and R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 (D. Conn. 2005) (finding no entitlement to IEE at public expense where parent did not disagree with evaluation obtained by a public agency).
[282] See 8 NYCRR §200.5(g)(2); 34 CFR § 300.502(d); and 8 NYCRR §200.5(j)(3)(viii).
[283] See Exs. 7, 9, G, and J.
[284] NYCRR § 200.5(g)(1)(iv) and (g)(2).
[285] See Ex. LL ¶¶ 31, 32, 36, and 37. I note as well that, to the extent that the Department had not recommended an SLT or an OT evaluation before the development of specific IEPs, the U.S. Department of Education Office of Special Education Programs (“OSEP”) has issued informal guidance indicating that if a parent disagrees with an evaluation because a child was not assessed in a particular area, "the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs." Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[286] See Ex. A-1.
[287] See Exs. 1, 2, 3, E, and F.
[288] See Ex. A-2.
[289] See Ex. F-1 and F-16, and Ex. and 5-1.
[290] Id. at F-.6
[291] See id. at F-10 to F-11.
[292] See id. at 1-1.
[293] Id. at 1-3.
[294] Id. (emphasis added).
[295] Id. at 1-5.
[296] Id. at 1-13.
[297] See Ex. L-1.
[298] See Ex. 2-18.
[299] Id. at 2-2.
[300] See id.
[301] See Ex. 14.
[302] Ex. E-3.
[303] See id. at E-10 to E-11.
[304] See Cerra v. Pawling Cent. Schl. Dist., 427 at 195, and Walczak, 142 F.3d at 130.
[305] Mrs. B. v. Milford Bd. of Educ., 103 F.3d at 1120, and Rowley, 458 U.S. at 192.
[306] See Ex. 17-1.
[307] See Tr.2 at pg. 23.
[308] See Ex. 11.
[309] See id. at pg. 24.
[310] Id. at F-5.
[311] Id.
[312] Ex. 1-3.
[313] Id. at 1-4.
[314] Id.
[315] Ex. 2-3.
[316] Id. at E-3.
[317] See 8 NYCRR § 204.2(b)(v) (regarding initial evaluations, which requires a CSE to conduct “other appropriate assessments or evaluations” for a student, including an FBA for a student “whose behavior impedes his or her learning or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities”).
[318] See 8 NYCRR § 200.1(mmm) (defining a BIP as “a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior”).
[319] See M.W. v. NYC Department of Education, 725 F.3d 131 (2d Cir. 2013), and A.C. ex rel. M.C. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 533 F.3d 165(2d Cir. 2009).
[320] I note that the decision cited by the Parent in the DPC, T.K. v. New York City Dept. of Educ., 31 F.Supp.3d 405 (E.D.N.Y. 2014), held that a procedural violation of the IDEA results when, in the face of severe bullying, the school district fails to recognize or develop an IEP program to address the bullying, which results in a substantial likelihood of a negative impact on the student’s educational opportunities. While any bullying is concerning, it is not clear on this record if the Student here endured the same degree of daily, protracted bullying accompanied by multiple instances of physical injury that triggered a FAPE under the IDEA and Section 504 of the Rehabilitation Act as in T.K. That said, the T.K. decision is instructive because it describes the effect bullying can gave on a student’s desire to attend school. See id. at pg. 419 (noting the parents’ explanation that the student was late or absent 46 times in one year because the student did “not want to go to school due to a fear of being ostracized”).
[321] Ex. 1-3.
[322] Id. at 1-4.
[323] See 8 NYCRR § 204.2(b)(v) (standard for a FBA).
[324] See Ex. H-21 to H-24.
[325] See Ex. LL ¶ 19.
[326] See Ex. FF ¶ 26.
[327] See Ex. LL ¶ 11.
[328] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
[329] Tr.1 at pg. 131.
[330] M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8, supra.
[331] C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 838 (3d Cir. 2010).
[332] Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007).
[333] See P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].
[334] See Exs. F-16 and 5-1.
[335] See Ex. 1-1.
[336] See Exs. 14 and L-1.
[337] See Ex. at F-1.
[338] See Ex. at 1-1.
[339] See Ex. 2-18.
[340] See Ex. F-1.
[341] See Ex. 13.
[342] See Ex. 14.
[343] Ex. MM ¶ 13.
[344] Somberg v. Utica Community Schs., 2017 WL 242840, at *4 (E.D. Mich. 2017).
[345] I also find that the effects of these deprivations have carried over into the 2022-2023 school, warranting a change in the program. That will be addressed in my discussion regarding prospective relief.
[346] The PCAT is for the Parent, and thus will not be reduced.
[347] See Ex. CC. List does not perfectly coincide with tested skills on pg. CC-2, but the Facts, Contexts, “Working within Words,” Main Idea, and Sequence categories come from the apparently non-reading “Splinter Skills” section, which leaves the other three (“Locating the Answer,” “Following Directions,” and “Sullivan Programmed Reading”) skills related to the “Core Readers” section.
[348] I note that the Behavioral Observation includes that the Student’s “reading was judged to be rapid in rate with good decoding skills” and while he had some difficulty reading some words, “[h]e was observed using the text elements to answer questions.” Ex. J-2.
[349] Id. at J-4.
[350] Id. at J-5.
[351] Id. at J-6.
[352] See Ex. EE ¶ 45.
[353] See id. ¶ 20.
[354] See Tr.1 at pg. 103.
[355] See Ex. FF ¶ 27.
[356] See Ex. EE ¶ 45.
[357] See Ex. FF ¶¶ 21 to 23.
[358] See Ex. FF ¶¶ 24 to 25.
[359] See Ex. MM ¶¶ 18 to 22.
[360] See Ex. FF ¶¶ 21 to 23.
[361] See F.L. and M.L. ex rel. F.L. v. New York City Dept. of Educ., 2016 WL 3211969, at *11 (S.D.N.Y. 2016); P.S. v. New York City Dept. of Educ., 2014 WL 3673603, at *13-14 (S.D.N.Y. 2014); C.M. and S.M. ex rel. L.M. v. Mount Vernon City Sch. Dist., 2020 WL 3833426, at *26 (S.D.N.Y. 2020); L.K. v. New York City Dept. of Educ., 2016 WL 899321, at *8-10 (S.D.N.Y. 2016), aff’d in part, L.K. v. New York City Dept. of Educ., 674 Fed. App’x 100 (2d Cir. 2017).
[362] L.K., 2016 WL 899321, at *9.
[363] R2-J Sch. Dist. v. Luke P., ex rel. Jeff P., 540 F.3d 1143, 1152 (10th Cir. 2008).
[364] Ex. MM ¶ 12.
[365] Id. ¶ 16.
[366] Id.
[367] Id. ¶ 17.
[368] L.K., 2016 WL 899321, at *9.
[369] See Ex. FF ¶¶ 21 to 23, and 27.
[370] See id. ¶¶ 24 to 25, and 27.
[371] See Ex. E-10 to E-11.
[372] See Exs. H and MMH.
[373] See idH.
[374] See Doe v. East Lyme, 790 F.3d at 454 (holding that a court may award various forms of retroactive and prospective equitable relief under the IDEA).
[375] Collette v. Dist. of Columbia, 2019 WL 3502927, at *14 (D.D.C. 2019) (quoting Branham, 427 F.3d at 11) (emphasis in original).
[376] Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393 (D.D.C 2018) (“the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school”); see also G.G. ex rel. Gersten v. Dist. of Columbia, 924 F. Supp. 2d 273, 282 (D.D.C. 2013) (“the consideration of prospective placement is frustrated without an IEP and an accompanying determined placement”), and Eley, 2012 WL 3656471, at *11 (holding that prospective placement should not be addressed by the court, but by the IEP team).
[377] See Tr.1 at pg. 114.