NY IHO #226792: New York City... | Special Education Law

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NYC: 226792

FINDINGS OF FACT AND DECISION

Case Number: 226792

Student’s Name ^[1]: [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED] (“Parent”)

Request Date/Date Complaint Filed: 06/06/2022, Amended 09/01/2022

Date(s) of Hearing: 08/01/2023

Actual Record Closed Date: 08/21/2023

Date of Decision: 08/25/2023

Date of Distribution if Different than Decision Date: 08/25/2023

Hearing Officer: Andrea R. Cohen

NEW YORK CITY DEPARTMENT OF EDUCATION

IMPARTIAL HEARING OFFICE

IN THE MATTER OF IHO

STUDENT, [REDACTED] A MINOR,

BY AND THROUGH THE STUDENT’S PARENTS,

PETITIONERS,

- AGAINST –

NEW YORK CITY DEPARTMENT OF EDUCATION

RESPONDENT.

FINAL DECISION AND ORDER

ANDREA R. COHEN

IMPARTIAL HEARING OFFICER

Greetings:

I. JURISDICTION

This FINAL DECISION AND ORDER in the matter of [REDACTED] (“Student”) by and through his Parents against the New York City Department of Education is rendered upon consideration of Petitioner’s Due Process Complaint (“Complaint”); prior proceedings in this matter and the federal Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

II. INTRODUCTION AND PROCEDURAL HISTORY

This matter was commenced on behalf of Student, a student with a disability, by and through his Parents, on 06/06/2022 by filing the Compliant against the DOE pursuant to the IDEA and New York Law, relating to the 2021/2022 school year. An Amended Complaint adding 2022/2023 school year filed and entered into the record on or about 09/6/2022. (Ex. A) ^[2]

This Hearing Officer was appointed to preside over this case on 07/01/2022.

Student and his Parent will be referred to collectively as “Petitioners.”

The New York City Department of Education will be referred to as the “DOE”.

Petitioners allege that for the school years at issue, the DOE failed to offer and provide to Student a free and appropriate education. Student graduated from high school at the end of the 2022/2023 school. Parents seek compensatory services to make up for missing services.

The DOE conducted an investigation into the matter. In mid-February, 2023, the DOE initiated settlement negotiations. In May, 2023, the Parties determined the matter could not be resolved through settlement and the matter was set for Hearing.

A hearing was held on 08/01/2023. It was a closed hearing. Parent entered into evidence Exhibits A-M ^[3] and produced one witness, Student’s ABA Services Provider (“ABA Provider”). ABA Provider provided direct testimony by affidavit (Ex. M) and appeared and responded to cross examination during the 08/01/2023 hearing. Her testimony commences on TR 169.

DOE entered no documents into evidence and produced no witnesses. The DOE presented no defense as to Petitioners’ allegations relating to its failure to offer to Student a free and appropriate education. In its Closing Brief, the DOE argues, inter alia, that Student is not entitled to an award of compensatory services in that Student has made progress and thus has not been damaged by any deprivation of FAPE, The record was closed on 08/21/2023.

III. BACKGROUND

This dispute relates to the 2021/2022 and 2022/2023 school years. Student was born in 2003 and has long been diagnosed with Autism Spectrum Disorder. (Ex. D, p.1; Ex. E, p.1; Ex. F, p.1). He has been eligible for special education services and has receive same since he was three years old. (TR 169). Student attended high school during the years at issue, where he participated in a blend of ICT classes and specialized classes of no more than 15 students. (Ex.’s D and E) He graduated in June 2023.

PETITIONERS’ POSITION, RELIEF SOUGHT AND EVIDENCE

Petitioners allege that, for the 2021/2022 and 2022/2023 school years:

• The DOE failed to provide Student with a FAPE: it failed to offer appropriate IEP’s; it failed to provide mandated services; and it failed to provide appropriate services during the pendency of this matter; • A FAPE for Student’s required the following services: o 12 hours per week of push-in ABA, o 15 hours per week of home-based ABA therapy, o 1 hour per week of ABA training, and 6 hours per month of AT training • Student is entitled to compensatory services. Petitioners seeks the following remedies: o 400 hours of compensatory ABA therapy o 138 hours of compensatory occupational therapy o 240 hours of compensatory speech language therapy Parent entered into evidence Exhibits A-M and produced one witness, Student’s ABA Services Provider (“ABA Provider”). ABA Provider provided direct testimony by affidavit (Ex. M) and appeared and responded to cross examination during the 08/01/2023 hearing. Her testimony commences on TR 169.

THE DOE’S POSITION, EVIDENCE, AND RELIEF SOUGHT

The DOE presented no defense as to Petitioners’ allegations relating to its failure to offer and provide to Student a free and appropriate education. It seeks to have Parent’s request for relief denied in its entirely, or in the alternative, to have any award for compensatory education hours be minimal. The DOE produced no exhibits and no witnesses.

In its Closing Brief, the DOE argues that: (1) the record shows that the Student has made progress and thus has not been damaged by any deprivation of FAPE during the school years at issue. (“since the Student has successfully completed his coursework and graduated from high school, he is no longer eligible to receive services and is not obligated [sic] to receive post-graduation services. … [S]tudent is in same educational position—if not better than expected—than he would have been in if he had remained in the classroom”). (IHO Ex. I, first and fourth page).

(2) the record fails to establish a basis for any compensatory education services award. “The record, however, is devoid of any sound documentary or anecdotal evidence, or any clinical testimony, to support the request for 400 hours and how it was calculated—other than stating that it was an estimate. Tr. 186, 12-25; Tr. 187, 1-25. The Parent failed to show a sound basis for the amount requested and how the amount of hours would benefit the Student’s special education needs after graduation, or why or how the requested hours would place the student in the position he would have been if the DOE provided a FAPE.” (IHO Ex. I, first and fifth page).

(3) the equities favor the DOE such that the Student is not entitled to any of the requested relief. (DOE’s unpaginated Closing Brief, IHO Ex. I, first and fifth-sixth page).

(4) on a practical level, the parent has not proposed a place or a provider for the Student’s receipt of the requested compensatory special education instruction. (IHO Ex. I, fifth page).

IV. ISSUES

Whether or not:

• The DOE provided Student with appropriate a FAPE for the 2021/2022 and 2022/2023 school years; • Services sought by parent were required to provide Student with a FAPE; • Petitioners are to be granted an award of reimbursement/direct payment of cost incurred relating to any appropriate Special Education Services already provided to Student; • Post-eligibility compensatory services are to be awarded for services missed; • Equitable considerations.

V. STATEMENT OF LAW

A. FAPE

FAPE - GENERALLY

The Individuals with Disabilities Education Act (“IDEA”) provides that a child with a disability is entitled to a free and appropriate public education (“FAPE”), and ensures that included special education and related services are designed to meet “their unique needs to prepare the child for further education, employment, and independent living.”^[4] The FAPE providing this individualization must also conform to an individualized education program (“IEP”). ^[5]

The DOE bore the burden of production and persuasion to establish that it provided the Student with a FAPE for all of the school years at issue, as well as all other issues alleged in the DPC, except for the appropriateness of the private school, to which the Parent bore the burden of proof. ^[6]

A student is provided a FAPE when (a) the board of education complies with the IDEA’s procedural requirements, and (b) provides an IEP that is: “’likely to produce progress, not regression’ and if the IEP affords the student with an opportunity greater than ‘mere trivial advancement.’” ^[7]; is substantively appropriate – i.e., it is reasonably calculated to enable the child to receive educational benefits. ^[8]

A district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan. ^[9]

The Supreme Court has found that, while deference is due to decisions of school authorities, “A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” ^[10]

An IEP, on its own, does not establish that a FAPE has been offered to a student; instead, “testimony may be received that explains or justifies the services listed in the IEP.”^[11] A district does not meet its burden of proof to demonstrate that sufficient evaluative material was relied upon in creating the student’s educational program without testimony presented to that effect.^[12] Reliance on the views of DOE witness, which were against the clear consensus of the substance of the evaluative materials present at the CSE meeting and the views of student’s evaluators and educational instructors, was error. See A.M. v. New York City Department of Education, 845 F.3d 523 (2d Cir. 2017).

A procedural violation alone without a showing that the child’s education was substantively affected, does not establish a failure to provide a FAPE. ^[13]

FAPE - EVALUATIONS

An evaluation means procedures used in accordance with 34 C.F.R. §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs. ^[14]

The LEA must ensure that the IEP team revises the IEP, as appropriate, to address the results of any reevaluation or information about the child provided to, or by, the parents. ^[15]

The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student. ^[16]

If the parent obtains an independent educational evaluation (“IEE”) at public expense, or shares with the public agency an evaluation obtained at private expense, the evaluation (1) must be considered by the LEA if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child; and (2) may be presented by any party as evidence at a hearing on a due process complaint under subpart E of this part regarding that child. 34 C.F.R. § 300.502(c)

FAPE - RELATED SERVICES

The Individuals with Disabilities Education Act (“IDEA”) provides that a child with a disability is entitled to a free and appropriate public education (“FAPE”), and ensures that included special education and related services are designed to meet “their unique needs to prepare the child for further education, employment, and independent living.”^[17] The FAPE providing this individualization must also conform to an individualized education program (“IEP”). ^[18]

Under IDEA, related services are defined as: (A) In general The term “related services” means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 1401(26)

The definition is not meant to be exclusive and may cover unlisted services such as music therapy. Letter to Farbman, 34 IDELR 7 (OSEP 2000).

FAPE - TRANSITION SERVICES

Transition services means a coordinated set of activities for a child with a disability that is designed to be within a results-oriented process focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities (e.g., postsecondary education, vocational education, integrated employment, independent living, or community participation). 34 C.F.R. § 30043(a)(1); 8 NYCRR § 200.1(fff) and 8 NYCRR § 200.4 (d). ^[19]

Under the IDEA, when the student is no older than 16 (15 or younger in New York), the IEP team/CSE must conduct appropriate transition assessments relating to training, education, employment, and where appropriate independent living skills. 34 C.F.R. § 300.320(b)(1); 8 NYCRR § 200.4(d)(2)(ix)(b). Thereafter, the IEP must include appropriate, measurable postsecondary goals (based on the results of the assessments) and transition services (including courses of study) needed to assist the child in reaching those goals. C.F.R. § 300.320(b)(2); 8 NYCRR §§ 200.4(d)(2)(ix)(b) and (c).

Post-secondary goals are required in the IEP in the areas of training, education, and employment. (Analysis and Comments to the Regulations, Federal Register, Vol. 71, No. 156, Page 46668 (August 14, 2006). L.O. v. N.Y.City Dept. of Educ., 94 F. Supp3d 530 S.D.N.Y. 2015.)

Post-secondary goals are not required in the area of independent living, unless appropriate. It is up to the child’s IEP team to determine whether IEP goals related to the development of independent living skills are appropriate and necessary for the child to receive FAPE. (Analysis and Comments to the Regulations, cited immediately above.)

The DOE must provide written notice of the date upon which the student will no longer be entitled to receive tuition free educational services by reason of receipt of a high school diploma. ^[20]

Upon graduation from secondary school with a regular diploma, or due to exceeding the age eligibility for FAPE under State law, the school district must provide the child with a summary of the child’s academic achievement and functional performance, which must include recommendations on how to assist the child in meeting the child’s postsecondary goals. (34 C.F.R. § 300.305(e)(3). New York State regulations provides that the Student Exit Summary should be designed to assist the student in establishing eligibility for reasonable accommodations and supports in postsecondary settings, the workplace and the community and to aid the student in accessing adult services as appropriate. It should help the student better understand the impact of his/her disability and articulate individual strengths and needs as well as supports that would be helpful in post-school life. (8 NYCRR § 200.4(c)(4).)

If a participating agency fails to provide agreed-upon transition services contained in the student's IEP, the district responsible for the student's education shall, as soon as possible, initiate a meeting to identify (e) a statement of the responsibilities of the school district and, when applicable, participating agencies for the provision of such services and activities that promote movement from school to post-school opportunities, or both, before the student leaves the school setting. alternative strategies to meet the transition objectives and, if necessary, revise the student's IEP. Nothing in this Part shall relieve any participating agency of its responsibility to provide or pay for any transition service that the agency would otherwise provide to students with disabilities who meet its eligibility criteria. ^[21]

FAPE – POST-ELIGIBILITY TRANSITION SERVICES

Generally, the obligation to make FAPE available to all children with disabilities does not apply to those children who have graduated from high school with a regular high school diploma.^[22] However, and as more fully discussed in the section on compensatory services, below, the fact that a student has graduated from high school does not undermine a claim for compensatory education for past failure to provide FAPE in all circumstances. See: Letter to Riffel, 33 IDELR 188 (OSEP 2000); Dracut Sch. Comm. v. Bureau of Special Educ. Appeals, 737 F. Supp. 2d 35, 55, 55 IDELR 66 (D. Mass. 2010) (“Now that Dracut has issued the diploma, the proper remedy is compensatory services.”).

B. RELIEF/REMEDIES

REMEDIES - GENERALLY

In any action brought under the IDEA, the trier of fact “shall grant such relief as the court determines is appropriate.”^[23] The relief must be appropriate in light of the purpose of the Act. A court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies. ^[24]

“In enacting the IDEA, Congress did not intend to create a right without a remedy.”^[25] “Courts retain broad discretion in fashioning an award, restrained only by the Supreme Court’s directive that ‘the relief is to be “appropriate” in light of the purpose of the Act.’ ” ^[26] OSEP advises that, “based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary, inclusive of compensatory education, to ensure that a child receives the FAPE to which he/she is entitled.”^[27] New York law provides that a state-approved nonpublic school is a permissible placement for a school district to make on a student’s IEP upon a showing of, inter alia, detailed evidence of the student's lack of progress in previous less restrictive programs and placements. ^[28]

REMEDIES - RELATED SERVICES

The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400- 1482, sets forth a broad spectrum of services and as well as a definition of Related Services, including transportation:

20 U.S.C. § 1401(26)

Related services (A) In general

The term “related services” means transportation, and such developmental, corrective, and other supportive services … as may be required to assist a child with a disability to benefit from special education … .

REMEDIES - COMPENSATORY REMEDIES

Where a school system fails to provide special education or related services to a disabled student, the student is entitled to compensatory education. ^[29]

“Because compensatory education is a remedy for past deficiencies in a student's educational program,” a finding as to whether a student was denied a FAPE in the relevant time period is a “necessary prerequisite to a compensatory education award.” ^[30] Post-Eligibility Compensatory Services Under federal law, the obligation to make FAPE available to all children with disabilities does not apply to those children who have graduated from high school with a regular high school diploma (34 C.F.R. § 300.102(a)(3)(i)). Similarly, under New York law, “a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 C.F.R. § 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05- 084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 C.F.R. §300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).” (Application of a StudentWith a Disability, Appeal No. 11-132 (March 1, 2021.)

Accordingly, a request for compensatory damages to be delivered post-eligibility can be denied upon a finding of no harm and no loss of educational opportunity. Klein Independent School District v. Hovem, 690 F.3d 390, 59 IDELR 121 (5th Cir. 2012). However, the fact that a student has graduated from high school does not necessarily undermine a claim for compensatory education for past failure to provide FAPE. 31 The duration of compensatory services ordered as a remedy may extend beyond the otherwise applicable eligibility age for special education: “In order to give meaning to a disabled student's right to an education between the ages of three and twenty-one, compensatory education must be available beyond a student's twenty-first birthday. Otherwise, school districts simply could stop providing required services to older teenagers, relying on the Act’s time-consuming review process to protect them from further obligations. Although students able to front the costs of an appropriate education later could claim reimbursement under Burlington and Zobrest, absent a compensatory education award, courts would be powerless to aid intended beneficiaries who were over twenty-one but who had not sought out an alternative educational program.” ^[32]

Dracut Sch. Comm. v. Bureau of Special Educ. Appeals, 737 F. Supp. 2d 35, 55, 55 IDELR 66 (D. Mass. 2010) (“Now that Dracut has issued the diploma, the proper remedy is compensatory services.”) The Type and Measure of Compensatory Services Due A compensatory education “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.” 33 A compensatory education award is an equitable remedy that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” 34

Compensatory education requires a flexible approach to determine the nature of the services and amount of services needed for remediation.^[35] OSEP provides some guidance in determining the nature of services that can be awarded post-eligibility as a remedy for the past denial of educational and related services:

Case law in New York has applied a balancing of the equities in terms of reducing or eliminating an award in cases of net unreasonable parental conduct. ^[37]

It is reasonable to determine that a child’s right to compensatory education begins when a school district knew, or should have known, that a child’s Individualized Education Program (“IEP”) did not provide FAPE. ^[38]

Reid, 401 F.3d at 524. 34

Reid, 401 F.3d at 518. See also Somoza v. New York City Dep’t of Educ., 538 F.2d 106, 109 n.2 (2d Cir. 2008) (“prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education”). The SRO has reached the same definition under the rubric of “compensatory additional services.” See, e.g., N.Y. SRO Decision No. 13-048 (Sept. 18, 2013); N.Y. SRO Decision No. 12-235 (Sept. 3, 2013) (“an equitable remedy that is tailored to meet the Unique circumstances of each case,” citing Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997)).

C. EQUITABLE CONSIDERATIONS

Case law in New York has applied a balancing of the equities in terms of reducing or eliminating an award in cases of net unreasonable parental conduct. The doctrine of "[un]clean hands . . . closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, is applicable. ^[39]

VI. FINDINGS OF FACT

The findings set forth below are based upon my review and analysis of the testimony and exhibits presented and the relevant law. All findings relate to both school years at issue.

BACKGROUND

Student has been eligible for special education services and has receive same since he was three years old. He is eligible for, and has been provided with, an Extended School Year at least as far back as July 2021. (Ex D, p.2). During his high school years, the DOE provided Student with a full time paraprofessional. Additionally, during his high school years the DOE provided to Student several hours of home-based and school-based ABA services and ABA parent training, as well as OT and S/L Therapy, and Assistive Technology and training. Petitioners and the DOE have disputed the provision of ABA services each year, at least as far back as the 2019/2020 school year. ^[40]

In this matter, Petitioners allege the IEP’s developed by the DOE for the 2021/2022 and 2022/2023 school years would not provide Student with a FAPE. Petitioners also allege that the DOE failed to provide several hours of mandated services during the school years at issue, including those to be provided during the pendency of this matter.

ISSUE -FAPE

1. The DOE failed to satisfy its burden to show it provided Student with a FAPE for the school years at issue. The DOE submitted no argument, testimony or exhibits to support a finding that, for the school years at issue:

(1) the education and services it offered in its 2021 and the 2022 IEP’s would provide Student with a FAPE; and

(2) all mandated services were provided during the school years at issue, including those to be provided during the pendency of this matter.

2. Petitioners’ undisputed evidence supports their position that, for the school years at issue, the DOE was to continue to provide Student with the services set forth in the 06/06/22 FOFD, as set forth below:

Occupational Therapy -- Group - 3 x per wk- 40 min sessions Physical Therapy. -- . -- Group 2 x per wk- 40 min sessions Speech and Language. -- Group 2 x per wk- 40 min sessions Speech and Language -- Individ 2 x per wk- 40 min sessions Paraprofessional -- Individ full time School-based ABA -- 12 hours per week Home-based ABA -- 15 hours per week Parent Training -- 1 hour per week Home/School based AT Training 6 hours per week (Ex C, p. 16-17).

Petitioners produced evidence showing that, at least as far back as 2019, student required a significant number of hours (23-28 hours/week) of in-school and at-home ABA services, as well as a full-time paraprofessional for behavior management, OT, PT, S/L Therapy, and Assistive Technology and AT training. (Ex.’s L, B, C, G, H, F, I). The evidence shows (a) that the ABA services were specifically and repeatedly recommended by Student’s doctors, evaluators, and providers (id.); (b) that the DOE repeatedly failed to consider these recommendations, making virtually no reference at all to ABA in its IEP’s; (c) that the DOE repeatedly failed to include the recommended ABA services in the IEP’s it developed for Student (Ex. B, D, E); (d) that Petitioners repeatedly filed complaints such as this, and, significantly, (e) that Hearing Officers repeatedly issued FOFD’s ordering the DOE to provide the ABA services as set forth in the recommendations (23-28 hours/week) as well as compensatory services for sessions missed. (Ex. B, p. 9-10; Ex. C, p. 16-17). See: Chronology. ^[41] - (Ex. B) 12/30/2020 FOFD, relating to the 2019/2020 school year:

IT IS HEREBY ORDERED that the appropriate program for the Student for the 2019-2020 school year was as follows: placement in ICT classes for ELA and Social Studies, placement in 15:1 classes for Math and Sciences, full time 1:1 paraprofessional, the related services set forth in the Student’s May 13, 2019 IEP, and: - 12 hours per week of “push-in” 1:1 ABA services, - 10 hours per week of home-based 1:1 ABA services, - 1 hour per week of Parent ABA training, - 1 hour per month of assistive technology services at home, and - 4 hours per month of assistive technology services at school; AND IT IS FURTHER ORDERED that the New York City Department of Education is directed to provide Student with the following compensatory services: - one hundred and forty-four (144) hours of 1:1 ABA services to be provided by providers chosen by the Parent and funded at the providers’ customary and usual rate. - (Ex C) 06/06/22 FOFD relating to the 2020/2021 school year:

ORDER (Ex. C, p. 16-17)

Student’s 2020-2021 shall be amended to list the following as Student’s appropriate program/placement:

Occupational Therapy. -- Group - 3 x per wk- 40 min sessions Physical Therapy. -- . -- Group 2 x per wk- 40 min sessions Speech and Language. -- Group 2 x per wk- 40 min sessions Speech and Language -- Individ 2 x per wk- 40 min sessions Paraprofessional -- Individ full time School-based ABA -- 12 hours per week Home-based ABA -- 15 hours per week Parent Training -- 1 hour per week Home/School ba sed AT Training 6 hour per week

Related Services Compensatory services. The District will provide a bank of services that student did not receive as a result of the Districts failure to fully implement pendency and the proper related services as identified in this decision.

Student will receive a bank of hours based on the below services. Services that have been provided will be subtracted from the bank of services owed. Student has three years from the date of this decision to utilize the bank of services before said services expire.

Occupational Therapy. -- Group - 3 x per wk- 40 min sessions

Physical Therapy. -- . -- Group 2 x per wk- 40 min sessions

Speech and Language. -- Group 2 x per wk- 40 min sessions

Speech and Language -- Individ 2 x per wk- 40 min sessions

Paraprofessional -- Individ full time

School-based ABA -- 12 hours per week

Home-based ABA -- 15 hours per week (increased from 10hr/week)

Parent Training -- 1 hour per week

Home/School based AT Training 6 hour per week (increased from 5hr/week)

ABA services will be provided by qualified independent providers and compensated at a rate of $300 per hour.

Speech and Language, Assistive Technology Training, Occupational Therapy, Physical Therapy and Counseling Services will be provided by qualified independent providers and compensated at a rate of $250 per hour. - (Ex. G) 04/20/2021 Assistive Technology Report:

Increase AT training from 5 hr/mo to 12 hr/mo during Covid related remote learning. - (Ex D) 05/26/2021 IEP – There is no mention of ABA in the IEP and no such services were offered. There is no explanation for this omission. Similarly, AT Training services were not included. Occupational Therapy. -- Group 3 x per wk- 40 min sessions Physical Therapy. -- . -- Group 2 x per wk- 40 min sessions Speech and Language. -- Group 2 x per wk- 40 min sessions Speech and Language -- Individ 2 x per wk- 40 min sessions Paraprofessional -- Individ full time Ex. D, p.13 - (Ex F) 06/22/2021 Private Psychoeducational Evaluation, Recommendations (Id., p.4): Continue services outlined by his most recent IEP. [ I note that, at the time of this recommendation, the most recent agreed to plan was that set forth on pages 16-17 in the 06/06/02022 FOFD entered into the record as Petitioners’ Ex. C in this current case, Matter # 226792.] Continue supportive service with Applied Behavioral Therapist; Begin program that will assist in increasing independence. - 06/06/2022 Current Complaint filed. Relating to the 2021/2022 school year. (Amended 9/1/2022, Ex. A). - (Ex E) 06/10/22 IEP There is no mention of ABA in the IEP and no such services were offered. (Ex. E, p. 18-19). There is no explanation for this omission. Similarly, AT Training services were not included. Changes were made regarding OT and S/L Therapy. The FOFD Ordered (Ex. E, p. 18-19): Occupational Therapy. -- Group - 2 x per wk- 40 min sessions Parent Counseling and Training - 5x per year group Physical Therapy. -- . -- Group 2 x per wk- 40 min sessions Speech and Language. -- Group 3 x per wk- 40 min sessions Speech and Language -- Individ 1 x per wk- 40 min sessions Paraprofessional -- Individ full time - (Ex. A) Amended Complaint filed 9/1/2022. Amended to include the 2022/2023 school year. - (Ex. IHO/III) 6/14/2022 Pendency Agreement: the parties agree to provide services set forth on pages 16-17, in the 06/06/02022 FOFD entered into the record as Petitioners’ Ex. C in this current case, Matter # 226792. -(Ex. H) 07/26/22 Independent OT Evaluation (Ex H) [REDACTED]should receive 3 OT sessions per week at 40 minutes per session to address sensory processing, manual coordination, adaptive, and executive functioning skills. One session should be provided within the classroom to support him in his natural classroom environment and two sessions should be provided in a therapy space. One session should be provided on an individual basis and one session should be provided in a group of 2. (Ex H-18 ) 2. [REDACTED] requires occupational therapy services on a 12-month basis to maintain progress and prevent regression. 3. It is recommended that a vocational assessment should take place to further explore his strengths, challenges, and interests to prepare for planning after high school. 4. I recommend compensatory occupational therapy services in the form of a bank of 138 occupational therapy hours (approximately 1 hour per week for 46 weeks, for 3 years) based on a qualitative approach. These hours will allow [REDACTED] to consistently make improvements in his sensory processing, executive functioning, visual motor, manual coordination, adaptive skills, and executive functioning skills. His clinical program did not adequately address his needs. - (Ex I) 12/6/22 Independent Speech Evaluation Recommendations Petitioners’ undisputed evidence supports their position that, for the school years at issue, the DOE was to continue to provide Student with the related services set forth in the 06/06/22 FOFD. There is nothing in the record to support the DOE’s continued omission of ABA services and AT Training from Student’s IEP’s. There is nothing in the record showing the DOE satisfied its obligation to consider the independent OT and Speech/Language evaluations that called for a resumption of those services as provided by the 06/06/22 FOFD. (Ex. H; Ex. I).

Petitioners’ undisputed evidence shows Petitioners had previously been awarded banks of compensatory related services to be utilized during the school years at issue. (Ex. B; Ex. C).

3. The DOE’s failure to provide Student with the appropriate services caused Student harm.

I find that, to the extent the missing services addressed Student’s ability to accomplish his academic classroom goals, such omissions did not harm Student. Petitioners’ own testimony and exhibits show Student was provided with the supports needed to achieve his academic goals of graduating from high school and gaining admission to college.

I find that Student was harmed by missed services that addressed the goals set forth in Student’s IEP Transition Planning.

1. It is recommended that [REDACTED] continue to receive current mandated services at the same frequency with (2x40x I, 2 x 40 G)

2. Daily independent reading for 30 minutes utilizing teacher driven practices from reading program.

3. Compensatory speech hours in the amount of a bank of 240 hours with no expiration; this equates to 4- 45 minute sessions a week of instruction provided to [REDACTED] for approximately 2 years. This recommended amount was derived from a qualitative clinical approach, considering [REDACTED]’s current needs and the time he will need to make up for the almost complete lack of intervention he received in the 2020-2021 year. Providing these services will allow [REDACTED] to have the opportunity to address his specific needs in a consistent manner. [REDACTED] needs intensive therapy to develop the foundational language skills he is lacking and to develop the social and community based linguistic skills needed as he transitions out of high school. Unfortunately, without a robust clinical program, [REDACTED] will not succeed in the post high school environment due to his lack of independence and ability to communicate. I recommend that there shall not be an expiration on these compensatory services to allow [REDACTED] to utilize these hours with flexibility over an extended period. The compensatory services should occur in the home, or a combination of home and school and any customary environments.

IDEA and New York require school districts to include a Transition Plan in an IEP for students turning 15 years of age, and each year thereafter. A Transition Plan is defined as a coordinated set of activities for a child with a disability that is designed to be within a results-oriented process focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities (e.g., postsecondary education, vocational education, integrated employment, independent living, or community participation). 34 C.F.R. § 30043(a)(1); 8 NYCRR § 200.1(fff) and 8 NYCRR § 200.4 (d). Among the components of a Transition Plan is this:

The IEP shall, under the applicable components of the student’s IEP, include: … (d) needed activities to facilitate the student’s movement from school to post-school activities, including instruction, related services, community experiences, the development of employment and other post-school adult living objectives and, when appropriate, acquisition of daily living skills and functional vocational evaluation

For this Student, the DOE knew of, and was to plan for, this Student’s history of severe regression when facing unfamiliar experiences. When Student moved to middle school, and again upon moving to high school, there was a significant increase in Student’s interfering behaviors, including picking at his skin and overall non-compliance. (Ex. B, p.7-8; Ex. C, p. 9, 10, 15; Ex. M, p.2). This resulted in a regression in academic, social/emotional and behavioral performance. (Id). (See also, Exhibit B, 12/30/20 FOFD where ABA services were increased in part to enable Student to handle the transition to high school. (Ex. B, p. 7).

The DOE did include Transition Plans in both IEP’s at issue here, and both IEP’s identified the DOE as responsible. (Ex. D; Ex. E). The Transition Plans focused on improving Student’s functional achievement to facilitate his movement from school to post-school activities. For example, both IEP’s provided that Student would learn to advocate for himself in social situations; develop networks of community supports; visit potential post-high school providers of OT, PT, S/L services; research travel training programs; strengthen his ability to work independently, (increase executive function/organization skills; take breaks); build relationships with OPWDD and ACCESS-VR; build a resume; practice for job interviews and learn to handle simple purchases in shops. (Ex. D, p.16, 17; Ex. E, p. 11, 23) To the extent the Transition Plan services focused on activities improving Student’s functional achievement were not provided, Student was harmed. Student was deprived of an opportunity to attain the level of Transition skills he would have attained had all services been provided. Accordingly, compensatory services are to be awarded.

ISSUE – REMEDY - COMPENSATORY SERVICES

1. As noted above, compensatory services are to be awarded to provide Student the opportunity to attain the level of Transition skills he would have attained had all services been provided.

The compensatory education must be the type of educational and related services that were part of Student’s high school education. As noted above, OSEP provides some guidance in determining the nature of services that can be awarded post-eligibility as a remedy for the past denial of educational and related services:

“… [W]e concur with ISBE in its statement that Part B does not authorize a school district to provide a student with compensatory education, through the provision of instruction or services, at the postsecondary level. See 34 CFR §300.25. If a student is awarded compensatory education to cure the denial of FAPE during the period when the student was entitled to FAPE, the compensatory education must be the type of educational and related services that are part of elementary and secondary school education offered by the State.” 42 Accordingly, any compensatory services awarded are to be focused on improving functional achievement to facilitate Student’s movement from school to post-school activities. As noted above, these activities/goals included; inter alia, providing opportunities for Student to learn to advocate for himself in social situations; develop networks of community supports; visit potential post-high school providers of OT, PT, S/L services; research travel training programs; strengthen his ability to work independently, (increase executive function/organization skills; take breaks); build relationships with OPWDD and ACCESS-VR; build a resume; practice for job interviews; learn to handle making simple purchases in shops, etc. (Ex. D, p.16, 17; Ex. E, p. 11, 23)

2. Determining the number of hours of compensatory services.

First there must be a determination as to the number of hours that were to be provided for of each service. There are approximately 210 instructional days in an extended school year, or 42 weeks. Accordingly, multiply the number of hours per week for each related service by^[42] for each of the two school years in question. Additionally, add in the number of hours of compensatory services awarded in the 12/30/20 FOFD (Ex. B) and the 06/06/22 FOFD (Ex. C), as these hours were to be used during the school years at issue.

For each service, subtract the number of hours provided. (The parties’ own records should show the number of hours Student received and for which the DOE paid.)

The result will show the total number of hours of services missed for each service to have been provided during the school years at issue. Upon consideration of Student’s significant need of constant support to attain his academic achievements, I have determined it to be reasonable to assume approximately 20% of the missed hours would have addressed the Transition Plan activities and goals focused on improving Student’s functional achievement. That 20% will be the number of hours of compensatory services currently due Student.

3. Upon consideration of the above, I have determined it to be reasonable to allow Student one year from the date of this decision to utilize the bank of services before said services expire. A compensatory education award “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” . 43, 44 The compensatory award here is reasonably calculated to give Student the opportunity to gain the functional levels he would have achieved had the services been timely provided, and to do so within one year.

DOE ARGUMENTS

In its Closing Brief, (IHO Ex. I), the DOE first argues that the record shows Student has made progress and thus has not been damaged by any deprivation of FAPE during the school years at issue, (“since the Student has successfully completed his coursework and graduated from high school, he is no longer eligible to receive services and is not obligated [sic] to receive post-graduation services. … [S]tudent is in same educational position—if not better than expected—than he would have been in if he had remained in the classroom”). (IHO Ex. I, fourth page).

43 Reid, 401 F.3d at 524. 44 Reid, 401 F.3d at 518. See also Somoza v. New York City Dep’t of Educ., 538 F.2d 106, 109 n.2 (2d Cir. 2008) (“prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education”). The SRO has reached the same definition under the rubric of “compensatory additional services.” See, e.g., N.Y. SRO Decision No. 13-048 (Sept. 18, 2013); N.Y. SRO Decision No. 12-235 (Sept. 3, 2013) (“an equitable remedy that is tailored to meet the Unique circumstances of each case,” citing Wenger v. Canastota, 979 F. Supp.

147 (N.D.N.Y. 1997)).

As discussed above, I have found these assertions to be unsupported by the record.

As to the DOE’s second argument regarding calculation of a remedy, (id. first and fifth page) I have found the record to contain sufficient information from which to determine the number of hours of compensatory services to be awarded.

The DOE’s third argument, (id. first and fifth-sixth pages), that “the equities favor the DOE such that the Student is not entitled to any of the requested relief,” is not valid. In fact, the equities weigh heavily against the DOE. Indeed, the conduct of the DOE in failing to timely provide portions of services due falls afoul of the very concern of the First Circuit, as covered above and repeated below:

“In order to give meaning to a disabled student's right to an education between the ages of three and twenty-one, compensatory education must be available beyond a student's twenty-first birthday. Otherwise, school districts simply could stop providing required services to older teenagers, relying on the Act’s time-consuming review process to protect them from further obligations. Although students able to front the costs of an appropriate education later could claim reimbursement under Burlington and Zobrest, absent a compensatory education award, courts would be powerless to aid intended beneficiaries who were over twenty-one but who had not sought out an alternative educational program.”). ^[45]

Here, the initial complaint was filed on or about 06/06/2022. An Amended Complaint was filed and entered into the record on or about 09/6/2022. (Ex. A). The resolution period for the original and for the amended complaint had long passed before the DOE completed its investigation and first opened settlement negotiations in mid-February, 2023. A timely resolution of this matter would have resulted in remedies that could have been at least partially delivered before Student’s eligibility would become an issue. ^[46]

Finally, the DOE asserts that, on a practical level, the parent has not proposed a place or a provider for the Student’s receipt of the requested compensatory special education instruction. (IHO Ex. I, fifth page). I find this argument to be without merit. I also note that it is the DOE’s obligation to implement education plans; Implementation includes identifying a location and a provider.

ISSUE - EQUITIES

While this is not a case involving tuition reimbursement, I do find that equitable considerations favor Petitioners. Petitioners have conducted themselves reasonably cooperatively during the school years at issue and throughout the pendency of this current matter.

Moreover, and as more fully discussed above, I find equitable considerations to look with disfavor upon the failures of the DOE in timely providing services and timely responding to this complaint.

VII. CONCLUSIONS OF LAW AND DISCUSSION

1. For the 2021/2022 2022/2023 school years, DOE failed provide Petitioner with a FAPE in that the DOE failed to offer Student an appropriate IEP and failed to provide appropriate services during the school years at issue and during the pendency of this matter.

The DOE bore the burden of production and persuasion to establish that it provided the Student with a FAPE for the school years at issue.^[47] Here, the DOE produced no witnesses, exhibits, arguments or closing brief to rebut Petitioners’ assertion that the DOE failed to provide Student with a FAPE. The DOE has introduced no evidence upon which to support any its reductions and omissions of recommended services. The DOE did not meet its Prong I burden.

2. To have provided Student with a FAPE for the 2021/2022 and 2022/2023 school years, the DOE was to provide services as set forth in the 06/06/22 FOFD Ex. C.

Petitioners’ undisputed evidence supports their position that, for the school years at issue, the DOE was to continue to provide Student with the related services set forth in the 06/06/22 FOFD, as set forth below:

3. An award of compensatory services to be provided to Student post-graduation is appropriate under these circumstances.

“Because compensatory education is a remedy for past deficiencies in a student's educational program,” a finding as to whether a student was denied a FAPE in the relevant time period is a “necessary prerequisite to a compensatory education award.” 48 I have found the DOE has failed to provide Student with a FAPE for the 2021/2022 and 2022/2023 school years resulting in lost opportunities and harm to Student.

The fact that Student has graduated from high school does not undermine his claim for compensatory education for past failure to provide FAPE. 49 The duration of compensatory services ordered as a remedy may extend beyond the otherwise applicable eligibility age for special education.^[50] Here, to the extent the Transition Plan services focused on activities improving Student’s functional achievement were not provided, Student was harmed. Additionally, equitable considerations balance strongly in Petitioners’ favor.

The DOE is to provide to Student a bank of hours of compensatory services for each of the items set forth in Paragraph 2, directly above, equal to 20% of the number obtained from adding the number of hours the DOE failed to provide during the 2021/2022 and 2022/2023 extended school years, together with the number of hours remaining in the banks of compensatory services previously awarded.

Peak v. District of Columbia, 526 F. Supp. 2d 32, 36 (D.D.C. 2007).

Upon consideration of the above, I have determined it reasonable to allow Student one year from the date of this decision to utilize the bank of services before said services expire. A compensatory education award “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” . 51, 52 The compensatory award here is reasonably calculated to give Student the opportunity to gain the functional levels he would have achieved had the services been timely provided, and to do so within one year.

4. Equitable considerations support a full award of remedies sought.

Parent has been cooperative in all dealings with the DOE. There is nothing in the record that calls for a reduction of any remedy awarded. Equitable considerations strongly favor Petitioners and look with disfavor at the conduct of the DOE.

VIII. ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED:

1. The appropriate programs for the Student for the 2021/2022 and 2022/2023 school years were to include the following related services:

51 Reid, 401 F.3d at 524. 52 Reid, 401 F.3d at 518. See also Somoza v. New York City Dep’t of Educ., 538 F.2d 106, 109 n.2 (2d Cir. 2008) (“prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education”). The SRO has reached the same definition under the rubric of “compensatory additional services.” See, e.g., N.Y. SRO Decision No. 13-048 (Sept. 18, 2013); N.Y. SRO Decision No. 12-235 (Sept. 3, 2013) (“an equitable remedy that is tailored to meet the Unique circumstances of each case,” citing Wenger v. Canastota, 979 F. Supp.

147 (N.D.N.Y. 1997)).

2. To the extent that Parent has obtained such services privately, at Parent’s own expense, from appropriately credentialed providers, the DOE is Ordered to reimburse Parent for all actual costs, or pay directly to providers, at rates no higher than the rates set forth in the 06/06/22

FOFD, (Exhibit C), specifically:

a. ABA services will be provided by qualified independent ABA providers and compensated at a rate of $300 per hour.

b. Speech and Language, Assistive Technology Training, Occupational Therapy, Physical Therapy and Counseling Services will be provided by qualified independent providers and compensated at a rate of $250 per hour.

c. Upon receipt of billing statements from providers, and or upon receipt of proof of payment by Parents, the DOE is Ordered to rapidly complete all administrative/bookkeeping procedures and promptly issue such payment and/or reimbursement check.

3. The DOE is Ordered to provide to Petitioner a bank of hours of compensatory services for each of the items set forth in this Final Order, Paragraph 1 immediately above, equal to 20% of the number obtained from adding the number of hours the DOE failed to provide during the 2021/2022 and 2022/2023 extended school years, together with the number of hours remaining in the banks of compensatory services previously awarded.

a. The scheduling of these compensatory services is to be within the sole discretion of parent. Parent control includes, but is not limited to, frequency, spacing, and length of each session.

b. Student has one year from the date of this decision to utilize the bank of services before said services expire.

c. Upon receipt of timely notice from Parent to the DOE of Parent’s intent to commence any and each of these compensatory services, the DOE is Ordered to rapidly complete all administrative/bookkeeping procedures and issue all documents required (including, but not limited to, related service authorizations) to quickly implement these remedies.

d. Upon receipt of billing statements from providers, and or upon receipt of proof of payment by Parents, the DOE is Ordered to rapidly complete all administrative/bookkeeping procedures and promptly issue such payment and/or reimbursement check.

e. All such services are to be provided at rates no higher than the rates set forth in the 06/06/22 FOFD, (Exhibit C), specifically:

• ABA services will be provided by qualified independent ABA providers and compensated at a rate of $300 per hour. • Speech and Language, Assistive Technology Training, Occupational Therapy, Physical Therapy and Counseling Services will be provided by qualified independent providers and compensated at a rate of $250 per hour.

SO ORDERED.

This 25th day of August 2023

Impartial Hearing Officer

Andrea R. Cohen

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.

APPENDIX A – REDACTION IDENTIFICATION PAGE [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

SUBMIT THIS PAGE TO THE PARENT AND SCHOOL DISTRICT ONLY. DO NOT SUBMIT

TO THE NYSED.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

A. NYC DOE IHO Andrea Cohen PARENT EXHIBITS Entered into the Record on 08/01/23 A. Enter Enter # of Parent’s Amended Impartial Hearing Request 09/01/22 - 5 date of pages. Press exhibit. tab key to B Findings of Fact and Decision #190708 12/30/20 - 12 Press enter next C Findings of Fact and Decision #205337 06/06/22 - 18 tab item.

D. Individualized Education Program 05/26/21 - 22 key.

E. Individualized Education Program 06/10/22 - 29 pages

F. Private Psychoeducational Evaluation 06/22/21 - 4 pages

G. Assistive Technology Report 04/20/21 - 3 pages

H. Independent OT Evaluation 07/26/22 - 20 pages

I. Independent Speech Evaluation 12/6/22 n - 20 pages

J. School ABA Services Progress Report Jan 2020 - 7 pages

K. Home ABA Services Progress Report Jan 2020 L ABA Doctor Prescription 06/20/19 - 1 8 pages

M. Affidavit of [REDACTED]UNDATED - 2 pages

DOE’S EXHIBITS

1. None Enter date of Enter # of pages. Press exhibit. Press tab key to enter next tab key. item.

IHO’S EXHIBITS

III. I. DOE Closing Brief Enter date of Enter # of pages. II. Petitioners’ Closing Brief exhibit. Press tab Press tab key to key. enter next item. Pendency Agreement

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/01/2023

For the Student:

redacted, Esq.

[REDACTED], BCBA

For the Department of Education:

redacted, Esq.

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

[4] 20 U.S.C. § 1400(d)(1)(A).

[5] 34 C.F.R. § 300.320.

[6] N.Y. Educ. Law §4404(1)(c). M.H. v. New York City Dept. of Educ., 685 F.3d 217, 225 (2d. Cir. 2012).

[7] Walczak, 142 F.3d at 130 (quotations omitted). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005)

[8] Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3f 186, 192 (2d Cir. 2005); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Rowley, 458 U.S. 176, 207).

[9] Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121.

[10] Endrew F., 137 S. Ct. at 1002.

[11] R.E., 694 F.3d at 185Id. at 185-86.

[12] See L.O. v. New York City Dep’t of Educ., No. 15-1019, 2016 WL 2942301, at *9 (2d Cir. 2016).

[13] See, e.g., A.C. v. Bd. of Educ., 553 F.3d 165 (2d Cir. 2009) (the failure to complete an evaluation in a timely manner did not result in substantive harm to the child).

[14] 34 C.F.R. § 300.15; see also 8 NYCRR § 200.1(aa).

[15] 34 C.F.R. § 300.324(b)(1)(i); 8 NYCRR § 200.4(f); 34 C.F.R. § 300.324(b)(1)(ii); 8 NYCRR § 200.4(f)(2).

[16] 34 C.F.R. §§ 300.324(a)(1) and (2); see also 8 NYCRR §§ 200.4(d)(2) and (3).

[17] 20 U.S.C. § 1400(d)(1)(A).

[18] 34 C.F.R. § 300.320.

[19] 8 NYCRR § 200; Regulations of the Commissioner of Education - Section 200.4 (d) (2) (ix) Transition services. For those students beginning not later than the first IEP to be in effect when the student is age 15 (and at a younger age, if determined appropriate), and updated annually, the IEP shall, under the applicable components of the student’s IEP, include: (b) appropriate measurable postsecondary goals based upon age appropriate transition assessments relating to training, education, employment and, where appropriate, independent living skills; (c) a statement of the transition service needs of the student that focuses on the student’s courses of study, such as participation in advanced-placement courses or a vocational education program; (d) needed activities to facilitate the student’s movement from school to post-school activities, including instruction, related services, community experiences, the development of employment and other post-school adult living objectives and, when appropriate, acquisition of daily living skills and functional vocational evaluation; and

[20] 8 NYCRR § 200; Section 200.4(i)

[21] Section 200.4 (d)(4)(e) (6)

[22] (34 C.F.R. § 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05- 084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 C.F.R. §300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).” (Application of a Student With a Disability, Appeal No. 11-132 (March 1, 2021.)

[23] 20 U.S.C. § 1415(i)(2)(C)(iii).

[24] Doe v. E. Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015) (internal citations omitted).

[25] Streck v. Bd. of Educ. of the E. Greenbush Cent. Sch. Dist., 408 F. App’x 411, 415 (2d Cir. 2010).

[26] L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 125 (2d Cir. 2016).

[27] (Letter to Kohn, 17 IDELR 522 (OSEP 1991). See also Letter to Riffel, 34 IDELR 292 (OSEP 2000) (discussing a hearing officer’s authority to grant compensatory education services).

[28] 8 N.Y.C.R.R. § 200.6(j)(iii)(c).

[29] Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005).

[30] Peak v. District of Columbia, 526 F. Supp. 2d 32, 36 (D.D.C. 2007).

[32] Pihl v. Massachusetts Dep’t of Educ., 9 F.3d 184, 189-90, 20 IDELR 668 (1st Cir. 1993) Cited in Dracut Sch. Comm. v. Bureau of Special Educ. Appeals, 737 F. Supp. 2d 35, 55, 55 IDELR 66 (D. Mass. 2010). See also: Letter to Riffel, 33 IDELR 188 (OSEP 2000).

[35] Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005). See also Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007) (preferring “a flexible approach, rather than a rote hour-by-hour compensation award to remediate the student).

[36] Letter to Riffel, 33 IDELR 188 (OSEP 2000).

[37] See, e.g., French v. New York State Educ. Dep’t, 476 F. App’x 468 (2d Cir. 2011); J.G. v. Kiryas Joel Sch. Dist., 777 F. Supp. 2d 606 (S.D.N.Y. 2011); N.Y. SRO Decision No. 11-027 (Apr. 29, 2011).

[38] (The Third Circuit has addressed and upheld this view; see M.C. v. Cent. Reg’l School dist. 81 F.3d 389, 395, 396-397 (C.A.3 (N.J. 1996),( “An award of compensatory education may be available for the time when the District knew or should have known of a denial of FAPE.”).D.F. v. Collingswood Public Schools, USCA for Third Circuit No.11-2410 (12/9/2011)(Appeal from USDC NJ).

[39] See, e.g., French v. New York State Educ. Dep’t, 476 F. App’x 468 (2d Cir. 2011).

[40] I note that the services and behavior intervention plan (“BIP”) of a fulltime behavior management paraprofessional are not equivalent to ABA services to be delivered by certified ABA providers.

[41] Chronology of the evaluations/recommendations, the IEP’s, and the FOFD’s ordering the DOE to provide the services as recommended: - (Ex. L) 06/20/2019 Dr.’s prescription: ABA Therapy 10 hr. in school, 20 hr. at home.

[42] Letter to Riffel, 33 IDELR 188 (OSEP 2000).

[45] Pihl v. Massachusetts Dep’t of Educ., 9 F.3d 184, 189-90, 20 IDELR 668 (1st Cir. 1993) Cited in Dracut Sch. Comm. v. Bureau of Special Educ. Appeals, 737 F. Supp. 2d 35, 55, 55 IDELR 66 (D. Mass. 2010). See also: Letter to Riffel, 33 IDELR 188 (OSEP 2000).

[46] I note that at the time this matter commenced, the DOE had very recently appeared at a hearing regarding the same parties for a different school year. A decision was issued in that matter on or about June 6, 2022, about the same day as this complaint was filed. While not determinative, it is reasonable to note that a bank of compensatory services had just been awarded.

[47] N.Y. Educ. Law §4404(1)(c). M.H. v. New York City Dept. of Educ., 685 F.3d 217, 225 (2d. Cir. 2012).

[50] Pihl v. Massachusetts Dep’t of Educ., 9 F.3d 184, 189-90, 20 IDELR 668 (1st Cir. 1993) Cited in Dracut Sch. Comm. v. Bureau of Special Educ. Appeals, 737 F. Supp. 2d 35, 55, 55 IDELR 66 (D. Mass. 2010). See also: Letter to Riffel, 33 IDELR 188 (OSEP 2000).

New York City Department of Education, Impartial Hearing Decision