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Special Education Law
DECISIONParent PrevailedIHO Case No. 226876

New York City Department of Education, Impartial Hearing Decision

August 11, 2023·Mercedes Cesaratto·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 573798 - NYC: 226876

FINDINGS OF FACT AND DECISION

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

Date of Birth: August 18, 20215

School District: New York City Department of Education Hearing Requested by: [REDACTED] (“Parent(s)”)

Request Date/Date Complaint Filed: June 13, 2022

Date(s) of Hearing: March 10, 2023 and March 30, 2023

Actual Record Closed Date: August 8, 2023

Date of Decision: August 11, 2023

Hearing Officer: Mercedes Cesaratto

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 10, 2023

For the Student:

[REDACTED], Esq.

Attorney for the Student

[REDACTED] -Parent

[REDACTED]

For the Department of Education:

[REDACTED]

District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 30, 2023

For the Student:

[REDACTED], Esq.

Attorney for the Student

[REDACTED] -Parent

[REDACTED] - Provider

For the Department of Education:

[REDACTED]

District Representative

INTRODUCTION AND PROCEDURAL HISTORY

The Student is a [REDACTED] -year old child who is classified by the DOE’s Committee on Special Education (“CSE”) as a child with Autism. (Ex. P-C) The Student’s classification and entitlement to special education programming and services is not in dispute.

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s pro-se Due Process Complaint (“DPC") filed on or about June 13, 2022, 2023 (PB); 1st Amended Due Process Complaint through counsel filed on or about August 31, 2022 (P-A), and 2nd Amended Due Process Complaint filed through counsel filed on or about February 24, 2023 (P-II) alleging a denial of a Free Appropriate Public Education (FAPE) for the 2020-2021; 2021-2022; and 2022-23 school year (“SYs at issue”) because the IEP’s developed for the Student were substantively and procedurally deficient under federal and state law described in detail in the amended DPC’s. (Ex. P-A, B, II) The amended DPC’s sought, inter alia, the following relief: a finding that the Student was denied a FAPE for the Sys at issue, compensatory education, comprehensive Independent Educational Evaluations (IEE’s), Functional Behavior Assessments (FBA), an Assistive Technology Evaluation and Auditory Evaluation; a referral from the CSE to the Central Based Support Team (CBST) for placement in an Approved Special Education Non-Public School for students with Autism, ABA therapy during the school day and at home, for the CSE to reconvene after all the evaluations are conducted to review the evaluations and develop an appropriate IEP for the student, and attorney fees.

I was appointed to hear this matter on June 14, 2022. A resolution meeting was not held. On December 13, 2022, a pre-hearing conference was held with representatives for both parties present.

A hearing on the merits was held on March 10, 2023 and March 30, 2023. It was a closed hearing, and Parent was represented by [REDACTED] (“Parent Attorney”). The DOE was represented by [REDACTED] (“DOE Representative”). The Department of Education (“DOE”) did not present a case defending the allegations in the DPC’s, nor did they submit any witness or documentary evidence. The DOE conceded a FAPE was not provided to the Student for the 2020-2021, 2021-2022, and 2022-2023 school years. (Tr. 37)

Parent presented testimonial and documentary evidence. Parent entered into evidence exhibits P-A through P-LL, without objection from the DOE and presented three witnesses via affidavit and direct testimony: Parent, [REDACTED] (“Psychologist”), and [REDACTED] (“Director”) Director of [REDACTED]. The DOE declined to make an opening statement and rested. (Tr. 42) The Parent made an opening statement. (Tr. 42-48) Both parties submitted closing statements attached as IHO exhibits. On April 11, 2023, an Interim Order was issued based on the Statement of Agreement entered between the DOE and the Parent. (Ex. IHO-1) The parties agreed to the DOE would fund the following: (i) the neuropsychological evaluation conducted by the Neuropsychologist; (ii) a physical therapy evaluation; (iii) occupational therapy evaluation; (iv) speech and language evaluation; (v) feeding evaluation; and (vi) functional behavior assessment (FBA). The DOE further agreed that the Committee on Special Education (CSE) would meet to refer the Student’s case to the Central Based Support Team (CBST) for placement in a New York State Approved non-public school within a month of the Interim Order. Parent thereafter requested the DOE to fund compensatory education services for the school years at issue, consisting of 3300 hours of 1:1 Applied Behavior Analysis (“ABA”) therapy services; 1380 hours of PROMPT speech language services; 72 hours of Parent Counseling Training (“PCAT”) services (no PT services identified or requested), 250 hours of feeding therapy services; and 138 hours of OT services. The Parent also requested that I order the DOE to fund 40 weekly hours of 1:1 home-based ABA therapy services; to help transition the Student into a school environment and to continue until the Student is attending an appropriate school placement for Student’s with autism, and 10 weekly hours of PROMPT.[2] A list of the documentary evidence in this proceeding is appended to this decision. [3]

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “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.L

LEGAL STANDARDS AND FRAMEWORK

Both the IDEA and the Education Law provide that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive IEP. 20 U.S.C. §§ 1401(9), (29). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” (Endrew F. ex rel. Joseph

F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999 [2017]). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381-82 (2d Cir. 2003; W.G. v. Bd. of Trustees of Target Range School Dist. No. 23, 960 F. 2d 1479, 1484 (9th Cir. 1992); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); 8 NYCRR § 200.5(4)(ii). School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v. Florida Union Free School Dist., 142 F.3d 119, 130 [2d Cir. 1998]; Rowley, 458 U.S. at 189). “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created” (Endrew F., 137 S. Ct. at 1001). The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 [2d Cir. 1989]). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement’” (Cerra v. Pawling Central School Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak, 142 F.3d at 130). The IEP must be “reasonably calculated to provide some ‘meaningful benefit’” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see also Endrew F., 137 S. Ct. at 1001 [holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”]; Rowley, 458 U.S. at 192).

In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 [2d Cir. 2015] [citation omitted]). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist.,288 F.3d 478, 486 [2d Cir. 2002]), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454).

Under the Education Law, school districts have the burden of proof, including the burden of persuasion and the burden of production, in due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and the burden of production on the appropriateness of such placement. Education Law § 4404(1)(c); T.K. and S.K. ex rel. L.K. v. New York City Dept. of Educ., 810 F.3d 869, 875 (2d Cir. 2016); C.F. ex rel. R.F. and G.F. v. New York City Dept. of Educ., 746 F.3d 68, 76 (2d Cir. 2014), R.E. v. New York City Dept. of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012).

FINDINGS OF FACT AND DECISION

In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017). Since the DOE did not present a case, present any witness testimony, or place any documents in evidence in this proceeding, the DOE failed to address or sustain its burden under the Education Law and failed to demonstrate it provided the Student with a FAPE for the 2020-2021, 2021-2022, 2022-2023 school years. Furthermore, the DOE did not object to or contest the evidentiary material submitted by the Parent in support of her claims. Accordingly, the Parent is entitled to a presumption as to the truth of the asserted facts underlying her claims that are contained in the documentary evidence and testimony to the extent they are credible and are not contradicted by the hearing record. Based on that presumption and the DOE’s failure to sustain its burden under the Education Law, the record establishes that the DOE failed to provide the Student with a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years. Clinical Psychologist

Clinical Psychologist testified via affidavit and direct testimony. (Ex. P-CC1-2) Clinical Psychologist testified the Student [REDACTED] years old and is diagnosed with Autistic Spectrum Disorder (ASD) severe. Clinical Psychologist testified she conducted a neuropsychological evaluation of the Student because the Student has not been able to attend school during the past several years because the Student becomes dysregulated and overwhelmed as soon as the Student sees the school building, or any building that looks like a school. (Ex. P-E1-27; Tr. 67) Specifically, the Student excoriates and scratches his face until it bleeds creating open bleeding wounds. The school staff have repeatedly called the Parent to pick up the Student from school because the school cannot permit the Student to remain in the school because the Student poses a health/safety risk to himself and other students. Clinical Psychologist testified it takes 10 days to two weeks for the gaping wounds to heal and unfortunately the pattern is repeated. (Tr. 67) Clinical Psychologist testified Student engages in this maladaptive behavior as an avoidance knowing this behavior will get him out of the school and back to her mother as soon as possible. And this maladaptive behavior is a huge barrier to the Student’s learning. (Tr. 68)

Clinical Psychologist testified the Student is non-verbal but does make sounds which are called “communicative intent” meaning, the sounds may not be totally random, for example the Student made the sound of a car, although the Student does also just make random sounds. (Tr. 68) The Clinical Psychologist reviewed the Student’s prior IEP’s, evaluations, including the Student’s prior Psychological evaluation which was three years old, classroom observations and general background information. The Clinical Psychologist also reviewed the Student’s school records from [REDACTED], where the Student attended, which provided the Student with some 1:1 ABA. (Tr. 69) The Clinical Psychologist reviewed the Student’s most recent IEP developed in April 2021 which recommended a 12-month program at a District [REDACTED] school in a 6:1:1 class setting, with Speech Therapy 2 times a week for 30 minutes, Occupational Therapy 2 times a week for 30 minute sessions, parent counseling and training 1 time per month for 60 minutes, alternate assessments and special transportation. (Ex. P- C; E-2). The IEP reported that Student will throw tantrums, scream, cry, pick on his face, hit others and run out of the room. (Ex.P-C-6) The IEP further states Student’s teacher have reported Parent has had to pick Student up from school because Student scratches his face until it bleeds. (Ex. P-C-6). The IEP also documents Student’s feeding problems by noting the Student is highly allergic and cannot chew or swallow solid foods and requires a liquid diet. The Clinical Psychologist noted in the neuropsychological evaluation that the April 2021 IEP indicated the Student was non-verbal, not toilet trained, unable to communicate his needs and wants and that these core deficits have not changed. Currently, the Student is out of the school more often than not due to self-inflicted scratches which draw blood. (Ex. P-E2) The neurological report referenced the April IEP and noted there were no Assistive Technology supports in the IEP, no Physical Therapy mandates, or transportation supports such as a bus monitor despite noting the IEP states, “[Student] is a child with autism with sever cognitive delays, [Student] is not able to remain seated on the bus due to hyperactivity, inattention, and disruptive behavior.” (Ex. P-E3; C) The IEP lacks a Behavior Intervention Plan despite noting the Student had severe management needs. The April 2021 IEP notes the following “Due to the [Student’s overall cognitive and academic skill, {Student] requires a specialized educational placement for children with Autism that includes differentiated instruction… in a small group instruction, 1:1 instruction, redirection, and support from a special education teacher and classroom paraprofessional.” (Ex. P-E4, C) Notably, a paraprofessional was not mandated in the Student’s IEP. The IEP notes the Student does not like his peers, Student pushes peers away, becomes frustrated, throws tantrums, flaps his hands, spins around, covers his ears when he hears loud noises. (Ex. P-E5, C) The Clinical Psychologist noted the Student’s 2019 Physical therapy evaluation indicated the Student had deficits in graded muscle strength, balance and coordination and required adult support when negotiating stairs due to poor control and safety awareness. (Ex. E6, M) Student was unable to jump in place, jump forward or jump from a small step, unable to pedal a tricycle. (Ex. E6, M) The Student’s Occupational Therapy evaluation conducted in 2019 also indicated the Student had trouble stacking cubes and stringing beads, copying simple shapes, gripping a crayon, and manipulating clothing fasteners. (Ex. P-E-7, J) The OT evaluation further noted the Student is unable to tolerate the sound of a subway passing, honking horns, or crashing sounds. (Ex. P-E7, J) The neurological report indicated Student does not eat any solid food and takes Pedi-sure and Ensure, Student does not even drink water or juice. Student resists baths and only gets a sponge bath. (Id.)

The Clinical Psychologist conducted an in person neurological evolution on the Student in her office for the purpose of evaluating the Student’s functioning across cognitive, communicative and behavioral domains and to make recommendations to aid in educational and therapeutic planning. (Ex. P-E7) In summary, the Clinical Psychologist testified that the IEP from April 2021 did not meet or address the Student’s needs. (Tr. 70) The IEP’s developed failed to address the Student’s self-injurious behaviors, that are stimulus responses to the Student seeing a building that looks like a school and then as a response to the school, the Student excoriates his face. (Tr. 70) The Clinical Psychologist testified the Student requires intensive behavior therapy in order to desensitize the Student from engaging in this behavior. (Tr. 70-71) The Clinical Psychologist testified that over a period of several hours, she administered several tests to determine the status of the Student’s cognitive, communicative and behavioral domains. The Clinical Psychologist administered Wechsler Preschool and Wechsler Intelligence Scale for Children, WISC-V integrated, the Vineland rating scale and a comprehensive interview. (Tr. 74-75) The Student engaged in WISC-V which is picture and multiple choice and were able to do some non-verbal tasks. The Clinical Psychologist testified, “I could not elicit any, any educational skills from him whatsoever, no alphabet recognition, number recognition, even in pointing. He doesn't have a rely -- he, he can point to pictures, which is a precursor, but he is well below the pre K level in, in terms of his educational ability, and I did administer all of those tests that I described.” (Tr. 71-72) The Clinical Psychologist also opined that the Student has made no meaningful progress during the last three years and that there was no way you could put a positive spin on it. (Tr. 72)

The Clinical Psychologist testified the Student’s scores across the domains reflected the Student had a very profound disability, lack of independence in the environment, a lot of maladaptive and interfering behaviors. (Tr. 75) The Student scored in a very significant range for ASD, and social communication deficits. The Clinical Psychologist testified the Student has a significant cognitive delay and even though the Student is delayed to the level of a [REDACTED] year old, the Student is not displaying normal behavior of a [REDACTED] year old, meaning the Student’s developmental disorder demonstrates behaviors that are not expected or typical under any circumstances. (Tr. 76) The DSM-5 reflects the Student has sever autism. (Tr. 77) In order to treat the Student, the Clinical Psychologist described that researched evidence based treatment such as 1:1 Applied Behavioral Analysis (“ABA”) will have to be utilized to break the behavior bonds the Student has with respect to the stimulus response upon seeing a school, excoriating his face until blood is drawn. (Tr. 78) The Student would require a very structured program with a Board Certified Behavior Analyst (BCBA) to do micro-analysis of the Student’s behavior with an ABA program that is based on data down to the second. (Tr. 79) The Clinical Psychologist testified that desensitizing the Student to buildings that look like schools will require Parent training and little field trips to get to the point where the Student can tolerate a building without harming himself. (Tr. 80) The Clinical Psychologist stated that she could not recommend putting the Student in any school any building because she was afraid of traumatizing the Student. (Tr. 80) The Clinical Psychologist determined the Board Certified Behavior Assessment take place where the Student felt comfortable in, which is the Student’s home for now. (Tr. 80) The Clinical Psychologist indicated that she did not want to reinforce the Student only being home, rather, the hope was the BCBA would get the Student to an office. (Tr. 81) The Clinical Psychologist referred to this as successive approximation, little baby steps, and then get the Student to a school with a full educational program. (Tr. 81) The Clinical Psychologist testified that ABA is evidence based and not magical and that autism is very complicated clinical picture, and it could take many years to get rid of maladaptive behaviors to establish progress in learning. (Tr. 81-82) Clinical Psychologist sated that in her opinion, she has hopes that if the Student received ABA, educational program intervention, called “milieu therapy”, where everyone works together synergistically as a team, there is a possibility that the Student can go back to school. (Tr. 82) The Clinical Psychologist testified that a BCBA has a higher level of training, the BCBA should set up the plan and supervise the ABA in implementing the plan. (Tr. 82-83) The Parent must also be part of the plan and that is why Parent counseling training is very important for the success of the program. (Tr. 83) The Clinical Psychologist also recommended a 1:1 paraprofessional for the Student for his safety and physical needs. In addition, the Student should receive some type of augmentative communication assistive technology to help the student communicate. (Tr. 85) The Student will also require a feeding therapy to overcome his difficulties in chewing and swallowing food, because the Student’s oral motor structures are not coordinated. (Tr. 85) The feeding therapy will help reduce choking and food avoidance as the Student is only taking in liquid nutrition. The Student should also receive adaptive physical education meaning a specialist who can help the Student with movement and prevent the child from becoming dysregulated because the Student does not have an outlet for their physical energy. (Tr. 85) Parent Parent testified the Student has been diagnosed with severe ASD, multiple food allergies, Eczema, and a feeding disorder. (Ex. P-LL). The Committee on Pe-school Education (“CPSE”) classified the Student with Autism in 2019 and the DOE evaluations showed the Student had severe delays and needed services. The CPSE developed an IEP in 2019 and recommended the Student be placed in a State approved school where the Student received services in a 8:1:2 class, with speech and occupational therapies starting in September 2019. During March 2020 until September 2020 the Student received remote learning due to the Pandemic and the Student did not progress. During the 2020-2021 school year, the Student was in kindergarten, in a District [REDACTED] school in a 6:1:1 class with occupational therapy and speech therapy. Parent states she requested a paraprofessional for the Student but was not provided with one. (Ex. P- LL-2) Parent states the DOE informed Parent that she should homeschool the Student. The Student did not attend school the entire 2020-2021 school year, but received some remote related services.

During the 2021-2022 school year, Parent again called the school and informed the school that the Student required a paraprofessional and that Parent was going to take him to school. Parent states within 10 minutes of Parent dropping off the Student at the school, the school called Parent to come to the school and pick up the Student because the Student’s face was bleeding. (Id.) Parent stated this was an ongoing and repeated pattern with the school. Parent testified she would bring the Student to school, the Student would scratch his face until it bleed and the school would call her to pick the Student up again, and again. As soon as the wounds healed the Parent would again attempt to bring the Student back to the school only to tragically have the pattern repeat itself. (Ex. Tr. 165-166, P-LL) Parent testified the Student has been confined to the home since January 2023 and is receiving 1 hour of home instruction from a DOE teacher. (Tr. 156) The Parent testified the Student has not been receiving any of his mandated services for several years. (Tr. 156-158) Director of Provider Services Director of Provider Services testified that she is the director of the agency that is equipped to provide ABA, speech language therapy, occupational therapy, physical therapy and feeding therapy. (Ex. EE-1-2; DD-1-2; Tr. 125) The Director is also a licensed speech pathologist in New York State and trained in PROMPT for restructuring oral muscular phonetic targets. (Tr. 122) The Director testified that she has not met the Student and only reviewed the various reports to make her recommendations. (Tr. 127) The Director testified that she reviewed the Student’s IEPs, the 2019 speech and language, OT, PT DOE evaluations, the neuropsychological evaluation conducted by Clinical Psychologist and that based on her review of the reports, she has determined the Student is non-verbal and in dire need of speech therapy. (Tr. 126) The Director testified she was unable to see the speech and language recommendations from the Student’s 2019 evaluation because it was left out. (Tr. 126) The Director corroborates the Clinical Psychologist’s determination that the Student has not progressed during the last 3 years. (Tr. 126) The Director further testified that the Student is in need of feeding therapy. (Tr. 126) The Director stated she would recommend the Student receive speech and language therapy. (Tr. 127)

The Director testified that she feels comfortable recommending the Student receive 10 hours of speech language therapy a week, based on her review of the neurological evaluation by Clinical Psychologist and IEP’s. (Tr. 130) However, the Provider did acknowledge that, “An evaluation will still be very useful to see what the [Student], what kind of techniques [Student] is responsive to.” (Tr. 130) The Director testified she reviewed Clinical Psychologist’s report and noted the Clinical Psychologist stated that the Student might benefit from PROMT included in the Speech recommendation. The Director testified she is familiar with PROMPT and opined that PROMPT, “… may be beneficial for the Student, but that it would be something that a speech and language comprehensive indepth speech language evaluation would reveal. Very typically, children with, who may be good candidates for PROMPT, they are given a dynamic assessment, which is when during the evaluation the speech pathologist tries certain techniques, certain PROMPT techniques with the child to assess how responsive they are to those techniques, which indicate, you know, their potential for progress if those were to continued to be used.” (Tr.

131) In terms of recommending speech and language therapy, the Director testified that based on her review of the reports mentioned, she would recommend the Student receive 10 hours a week times 46 weeks in a school year, equals 460 hours times the three years the Student did not receive speech and language and her total recommended hours are 1, 380 hours of speech therapy.[4] (Tr. 132) On cross examination, the Director again confirmed she had not evaluated the Student or met the Student but based her recommendation of 1, 380 weekly hours on the clinical observation/neuropsychological evaluation, educational profile and lack of progress. (Tr. 133) The Director also recommended that the bank of 1, 380 hours of speech and language hours should not expire. (Tr. 138)

Requested Relief

The relief request by the Parent is equitable in nature, as she is asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide the Student with a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years. Specifically, the Parent has requested that the IHO order the DOE to (i) fund compensatory education services for the school years at issue, consisting of 3,300 hours of 1:1 ABA instruction and services supervised by a Board Certified Behavior Analyst, 72 hours of PCAT services, 250 hours of feeding therapy, 1,380 hours of PROMPT speech and language therapy and 138 hours of OT services; (ii) the DOE to fund an AT Evaluation provide the Student with the AT equipment; and (iv) convene a meeting of the CSE to (a) develop an IEP that adequately and appropriately addresses the Student’s needs in accordance with the recommendations made in the ABA Skills Assessment, Neuropsychological Evaluation, OT, PT, speech and language, feeding, and functional behavior assessments, and (b) recommend an appropriate nonpublic school program for the Student. Further, an order that if the CBST declines to accept the Student’s case or is unable to locate an appropriate placement for 2023-2024 school year that the Department fund a private school for the Student, (c) that the DOE fund 40 hours of weekly 1:1 home based ABA therapy to transition the Student back to the school environment and that the 40 hours should continue until the Student is placed in an appropriate program for students with autism, (d) if the DOE does not find a placement for the Student and the Student goes to a public school then the Student will have 1:1 behavior therapist trained in ABA and supervised by a BCBA during the entire school day and provide a home based ABA 1:1 behavior therapist supervised by a BCBA for 20 hours weekly of ABA, (e) in the event that Student is provided with an appropriate placement by the CBST, then the Student will not require 1:1 behavior therapist trained in ABA at the school, but still require 20 hours of home-based ABA services, (f) 10 hours of PROMPT speech therapy to be delivered in the home, school, or in the community as needed, (g) and attorney’s fees.

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations”. See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy” (Boose v District of Columbia, 786 F. 3d 1054, 1056 [D.C. Cir. 2015], citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme, 790 F.3d at 454).

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education” (P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education” (Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008]). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate”, and “hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program’” (Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 522, 525 (D.C. Cir. 2005) (emphasis in original). “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves” (Reid, 401 F.3d at 522) (citations omitted). Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place” (Reid, 401 F.3d at 518).

There are generally two approaches to fashioning a compensatory education award, viz, the “quantitative” approach followed in the Third Circuit (see, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 [3d Cir. 1996] [holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation]), and the “qualitative” approach relied on by the 6th and D.C. Circuits (see, e.g., Reid, 401 F.3d at 518, 524 [requiring a flexible, fact-specific approach in which the award relies “on individual assessments” and is “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”]).

The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion”, so long as “the relief is [] appropriate in light of the purpose of the Act” (Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 [2d Cir. 2016]; see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008] [noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated”, and awarding compensatory relief equal to the amount of time the student was deprived of services]). In calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP], or encompass analogous educational services appropriate to the Student’s current’s needs”; however, 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” (Doe. v. East Lyme, 790 F.3d at 457) (internal citations omitted). Under New York law, the DOE has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA. Education Law § 4404(1)(c). However, the Parent also has a responsibility to identify the specific remedy she is seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE for the years at issue. See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), [noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”]; Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017) [holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”] [internal quotes and citation omitted]. Here, the Parent has identified the specific remedy she is seeking and has provided documentary evidence and testimony in support of her request.

Compensatory 1:1 ABA Services

The Clinical Psychologist testified in detail regarding the Student’s deficits and delays across the Student’s cognitive, communicative and behavioral domains, as discussed fully above and documented in the neuropsychological evaluation. (P-E7) The testimony and the evidence in the hearing record demonstrate the Student was not provided with the mandated services in his IEP’s and further, the Student was unable to attend school due to his self-injurious behavior described above. The Clinical Psychologist described in detail how Student’s maladaptive behaviors, i.e. gouging/excoriating Student’s face until blood is drawn, upon seeing a building that looks like a school requires intensive ABA behavior modification. Here, the Parent’s have requested an award of compensatory 1:1 ABA instruction and services for the Student consistent with the recommendations made by the Clinical Psychologist, that recommendation is based on 40 hours per week over a 46-week school year for 3 full years, and it contemplated both 25 hours a week of school based 1:1 ABA instruction and services and 15 hours a week of home based 1:1 ABA instruction and services. (Tr.88) The Clinical Psychologist rounded this figure off to 1100 hours times 3 years which comes to her calculation of 3, 300 hours of ABA. (Tr. 88)

Since a 12-month school year comprises of 42 weeks, 25 hours times 42 weeks is 1,050 times 3 years is 3, 150 hours. Accordingly, an award of 3, 150 hours of 1:1 ABA instruction and services for the denial of FAPE for 2020-21, 2021-22, and 2022-2023 school years will put the Student in the position he would have been had the Student been provided appropriate special education services. The hearing record demonstrates that compensatory 1:1 ABA instruction should be supervised by a BCBA.

The Clinical Psychologist further recommended that the Student receive 15 hours of home-based 1:1 ABA “…after-school hours and weekends so that we can generalize the behavior and reinforce it…”

While there is undoubtedly a benefit to the Student’s receipt of a home-based 1:1 ABA program, services that are intended to generalize skills outside the classroom are not required by the IDEA. 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). Although a school district may be required to offer services that seek to improve generalization “if a student’s difficulty in generalizing skills prevents him from making the progress required under the IDEA” (L.K., 2016 WL 899321, at *9), the hearing record fails to establish that the Student is unable to make progress in the classroom without a home-based ABA program. The primary purpose of the home-based ABA program recommended for the Student is to generalize skills outside the classroom. The DOE was under no obligation during the school years at issue to recommend or provide any home-based ABA services to generalize the Student’s skills outside the classroom. Accordingly, the home-based ABA instruction recommended for the Student and requested by the Parents is denied. The Parent’s request for 40 hours of weekly 1:1 home based therapy to transition the Student to back to an appropriate school is denied for the same reasons discussed above. The Parent’s request for on-going 20 hours of home-based ABA services, in the event the Student is placed in an appropriate CBST placement is also denied for reasons discussed above.

Compensatory SLT and OT Services

The Clinical Psychologist recommended the Student receive OT twice a week based on a 46 week of a 12-month program. Therefore, the Clinical Psychologist recommended[138] hours of OT , each session is 30 minutes. (46 weeks times 1 hour per week is 46 hours times 3 years= 138)5. However, a 12-month program has 42 weeks, therefore, the Student should be awarded 126 hours of compensatory occupational therapy.

5 See Parent’s Brief at page 22 for a breakdown of the compensatory relief requested by Clinical Psychologist, where

There is a discrepancy in the hearing record concerning the amount of compensatory hours requested by the Clinical Psychologist and the Director. The Clinical Psychologist testified that she would calculate compensatory speech and language as 4 times a week at 30 minutes each session, 2 hours weekly times 46 weeks in a 12 month school year times 3 years and the recommended compensatory speech and language hours by the Clinical Psychologist is 276. However, there are 42 weeks in a 12-month school year, therefore, the calculation should be 42 weeks times 2 hours per week (4-30 minute sessions) times 3 years which is 252 hours of compensatory speech and language.

The Director did not personally interview, evaluate or meet the Student. In contrast to the Clinical Psychologist, who spent many hours with the Student and Parent administering various assessments. The Director testified that she made the recommendation of 1, 380 largely on the IEP’s, and the neurological evaluation conducted by the Clinical Psychologist, who again recommended 276 hours, which included any PROMPT, as the Clinical Psychologist testified, “…which would include PROMPT in there if we could.” (Tr. 90) The Director opined that having a speech and language evaluation to base her recommendation would be useful, “An evaluation will still be very useful to see what the [Student], what kind of techniques [Student] is responsive to.” (Tr. 130)

As part of the Interim Order, a speech and language evaluation was recently agreed to by the parties. It is premature to request such a huge number of speech and language hours, particularly when it is not based on an evaluation. I believe the request of 1, 380 hours of speech and language is not in accordance with the recommendation made by the Clinical Psychologist and not based on any current speech and language evaluation. In addition, the request by Parent for 10 weekly hours of PROMPT speech and language is denied. The Director conceded that PROMPT therapy would require an in-depth comprehensive speech and language evaluation and the request for 10 hours of weekly PROMPT speech and therapy is denied because the PROMPT evaluation was not conducted and the hearing record does not support an award of 10 weekly hours of PROMPT speech language therapy. I agree with the DOE reasoning in their brief, that a speech and language evaluation has been ordered and the CSE will assess and recommend appropriate speech and language program based on those evaluations. Therefore, an award of 252 hours of compensatory speech and language will be awarded to the Student.

PCAT

The Clinical Psychologist further testified that the Parent is a critical member of the team in developing, implementing, and working in synergy with the rest of the ABA team and providers. The Clinical Psychologist recommended 2 hours per month times 12 (24 hours) times 3 years is 72 hours of compensatory Parent Counseling and training. The hearing record reflects the Parent should receive 72 hours of PCAT training. Feeding Therapy Clinical Psychologist, Parent, and Director testified as to the difficult issues presented by the Student’s problematic feeding situation. The Student does not eat any solid food, will only drink liquid nutrition. The Clinical Psychologist determined that 250 hours of feeding therapy is appropriate in this situation. Therefore, I will award 250 hours of compensatory feeding therapy. AT Evaluation The student is non-verbal and only makes random sounds and has extreme deficits in communication. The Clinical Psychologist testified the Student makes intentional communication sounds meaning the sounds the Student emits may mean the Student is attempting to communicate. I am ordering that an AT evaluation be conducted to determine if the Student would benefit from an AAC device to assist in the Student’s communication.

Prospective Placement for the 2023-2024 School Year The Parent has requested that I order the Student placed in a private placement for the 2023-2024 school year in the event the Student has not been placed in an appropriate placement. I decline to grant this requested relief, as it is premature. Particularly, since the DOE has agreed to defer the Student’s case to the CBST for placement in a New York State Approved non-public school. [6] Section 504 Claim

In addition to the Parents’ IDEA claim, the Parents contend that the DOE discriminated against the Student based on his disability in violation of Section 504. Specifically, the Parents allege that the DOE discriminated against the Student based on Student’s eczema, allergies and autism.

Section 504 provides in relevant part that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” (20 U.S.C. § 794[a]). Under the Act’s implementing regulations, “[a] recipient that operates a public elementary or secondary education program shall provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap” (34 C.F.R. § 104.33[a]). An “appropriate education” within the meaning of Section 504 means “regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirement of §§ 104.34, 104.35, and 104.36” (34 C.F.R. § 104.33[b][1]) (emphasis supplied). Therefore, unlike IDEA claims services, Section 504 claims “address[] discrimination against disabled students” (M.M. v. New York City Dept. of Educ., 2017 WL 1194685, at *12 [S.D.N.Y. 2017], citing S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 289 [S.D.N.Y. 2007]). Accordingly, “a Section 504 claim may be predicated on the claim that a disabled student was denied access to a free appropriate education, as compared to the free appropriate education non-disabled students receive” (C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 841 [2d Cir. 2014]) (internal quotation marks omitted). “A violation of the IDEA, without more, is insufficient to support a claim of disability-based discrimination under Section 504” (A.K. v. Westhampton Beach Sch. Dist., 2019 WL 4736969, at *14 [E.D.N.Y. 2019], citing and quoting French v. N.Y. State Dept. of Educ., 476 F. App’x 468, 472 [2d Cir, 2011], for the proposition that a “‘fail[ure] to show that the alleged ‘discrimination’ is anything more than a rehashing of [the plaintiff's] allegation that the defendants failed to provide her with a FAPE’ warrants dismissal of plaintiff's ADA and Section 504 claims”). The parent has not sustained their burden in this regard as the Parent’s claim is duplication of the allegations parent made to support their contentions that the DOE failed to provide a FAPE to the Student for the years at issue.

Attorney Fees

In the Parent’s due process complaint, the Parent requested an order directing the DOE to “pay the Parent’s reasonable attorneys’ fees and expenses in conjunction with representation in this matter.”

The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006). Only a court can determine if a party is entitled to attorneys’ fees, and I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled to costs. Therefore, to the extent that the Parent seeks reimbursement and/or payment of attorneys’ fees and costs in this proceeding, the Parent’s request for relief is denied.

I have reviewed the parties’ remaining contentions and find 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 relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

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

1. ORDERED, that the DOE failed to provide a FAPE to the Student for the 2021-2022; and 2022-2023 school years.

2. ORDERED, that the DOE shall, within 20 days of this Order, convene a CSE meeting to recommend deferring the Student’s case to the Central Based Support Team to identify a placement in an appropriate NYS-approved non-public school which utilizes 1:1 ABA therapy throughout the day, and that is consistent with the findings in this decision; it is further

3. ORDERED, that until such time as an appropriate non-public school placement is located for the Student, the DOE will fund 25 hours of push-in ABA therapy in the Student’s current public school placement at market rate by an independent provider of the Parent’s choosing;

4. ORDERED, that the DOE shall provide and fund the following compensatory services for the Student, to be provided by providers of the Parent’s choosing at market rate, to be used within 3 years of the date of this Order:

a. 3, 150 hours of ABA supervised by a BCBA; b. 72 hours of parent counseling and training; c. 252 hours of speech-language therapy; d. 250 hours of feeding therapy; e. 126 hours of occupational therapy; it is further

5. Ordered, that the DOE fund an AT evaluation and consider the results and recommendations of the AT evaluation in developing the Student’s IEP.

SO ORDERED.

DATED: August 11, 2023

Mercedes Cesaratto (signed electronically)

Mercedes Cesaratto

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review 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 B – DOCUMENTATION ENTERED INTO THE RECORD

DISTRICT EXHIBITS - NONE

PARENT EXHIBITS

P-A. Amended Due Process Complaint 08/31/22 11 pages

P-B. Pro se Due Process Complaint w/ Confirmation Receipt INDIVIDUALIZED EDUCATION PROGRAMS (IEP) 06/13/22 3 pages

P-C. IEP 04/15/21 30 pages

P-D. IEP EVALUATIONS, REPORTS, ASSESSMENTS 05/29/19 16 pages

P-E. Neuropsychological Evaluation 10/30/22 27 pages

P-G. P-F Student Annual Needs Determination Inventory (SANDI) 2020/21 18 Child Outcome Summary Assessment Results 04/30/20 13 pages

P-H. Psychological Evaluation Report 04/09/20 4 pages

P-I. Preschool Teacher Interview and Classroom Observation 02/28/20 4 pages

P-J. Occupational Therapy Review 02/03/20 1 page

P-K. Development and Learning Report-Teacher 01/08/20 8 pages

P-L. Occupational Therapy Evaluation 03/29/19 4 pages

P-M. Physical Therapy Evaluation 03/11/19 3 pages

P-N. Speech and Language Evaluation 03/05/19 3 pages

P-O. Social History 03/05/19 2 pages

P-P. Institute of Pathology Test Results & 02/04/19 2 pages

P-Q. Food Allergy and Anaphylaxis Emergency Care Plan 02/20/19 2 pages

P-R. Psychological Evaluation 01/18/19 5 pages

COMMITTEE ON SPECIAL EDUCATION CORRESPONDENCE & DOCUMENTS

P-S. Consent for Additional Assessments & Email 07/25/22 2 pages

P-T. Prior Written Notice of Recommendation 07/07/22 3 pages

P-U. Prior Written Notice of Recommendation 06/30/22 2 pages

P-V. Home Instruction Email 03/29/22 1 page

P-W. Parent request for Re-evaluation 10/05/21 2 pages

P-X. Related Services Adaptations for Remote Learning-OT 04/30/21 2 pages

P-Y. Related Services Adaptations for Remote Learning-SPL 03/04/21 2 pages

P-Z. Consent for Initial Evaluation MISCELLANEOUS DOCUMENTS 03/05/2019 1 page

P-AA. Request for Independent Evaluation w/receipt confirmation 08/25/22 4 pages

P-BB. Individual Student Attendance Report 2021/2022 3 pages

P-CC. Affidavit of [REDACTED] 11/16/22 2 pages

P-DD. Affidavit of [REDACTED] w/CV 11/15/22 4 pages

P-EE. Affidavit of [REDACTED] re: Rates 01/03/23 2 pages

P-FF. Medical Referral for Medically Necessary Instruction 12/12/20 1 page

P-GG. IEP 09/08/20 21 pages

P-HH. Prior Written Notice 06/11/20 3 pages

P-II. 2nd Amended Due Process Complaint 02/24/23 12 pages

P-JJ. IEP 11/28/22 22 pages

P-KK. Photographs of [REDACTED] 10/27/22 2 pages

P-LL. Affidavit of Parent, [REDACTED] 02/24/22 4 pages

IHO’S EXHIBITS

IHO-1 Interim Order - Statement of Agreement and April 11, 8

2023

IHO-2 Parent’s Closing Brief May 4, 25

Parent Closing Brief Addendum 2023

July 11,

2023 2

IHO-3 District’s Closing Brief Undated

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] Parent submitted a “Parent Closing Brief Addendum” on July 11, 2023, as clarification to the relief requested in Parent’s closing brief submitted previously on May 4, 2023, which is attached to Parent’s Closing brief and together marked as Ex. IHO-2.

[3] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit, “D” for District’s Exhibits and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate. References to the transcript will be referred to as “Tr.” Followed by the page number.

[4] Parent’s Addendum (Ex. IHO-2) to their closing brief actually requests 1, 380 hours of PROMPT speech therapy which is different than the recommendation made by the Director, who recommended 1, 380 hours of Speech therapy.

[138] hours is requested for OT and 276 hours is requested for Speech and Language.

[6] See Interim Order IHO-Ex.I that are based on a school district’s alleged provision of inappropriate special education