New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 576325 - NYC: 229010

FINDINGS OF FACT AND DECISION

Case Number: 229010

Student’s Name: REDACTED

Home District: REDACTED

Service District: REDACTED

Impartial Hearing Officer: Lorianne Wolseley

Date of Filing: July 5, 2022

Hearing Requested by: REDACTED

Date of Hearing: August 24, 2022

September 13, 2022

September 22, 2022

Date of Decision: December 29, 2022

NAMES AND TITLES OF PERSONS WHO APPEARED August 24, 2022

For the Student:

REDACTED

For the New York City Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED September 13, 2022

For the Student:

REDACTED

For the New York City Department of Education:

REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED September 22, 2022

For the Student:

REDACTED

For the New York City Department of Education:

REDACTED

On or about July 5, 2022, a due process complaint (“DPC”) was filed against the New York City Department of Education (“DOE” or “district”) by Parent’s Attorney, under Case No. 229010, pursuant to the Individuals with Disabilities Education Act (“IDEA”). See 20 U.S.C. Section 1415(f) and Section 4404(1) of the New York State Education Law. I was appointed impartial hearing officer (“IHO”) for this case on July 21, 2022. An initial prehearing conference was held on August 8, 2022. An Impartial Hearing was held on August 24, 2022, September 13, 2022, and September 22, 2022. The compliance date for issuing a decision in this matter has been extended. A list of exhibits admitted into evidence is attached hereto. Although only portions of the evidence are referenced herein, the testimony and documents were reviewed in full.

BACKGROUND

At the time of the hearing, Student was REEDACTED years old and classified as a preschool student with a disability by the Committee on Pre-School Special Education (“CPSE”). He presents with global delays across all areas of functioning, including activities of daily living skills (“ADLS”), expressive and receptive language, cognitive skills, and social-emotional development. Student was referred to Early Intervention (“EI”) at 18 months and began receiving services at 20 months due to significant delays in coordination, speech, and language skills. He also exhibited teeth grinding and head banging. Student currently attends Private School. Prior to attending Private School student attended a 2s program at Private School II.

Student’s CPSE evaluations were conducted via Telehealth because of the Covid-19 pandemic. Some of the results from these evaluations were based on “informed clinical opinion.” On May 11, 2021, an individualized education program (“IEP”) was developed for Student which mandated special education itinerant teacher (“SEIT”) services of ten hours per week, speech-language therapy twice a week, occupational therapy twice a week, and physical therapy twice a week. Student struggled in this recommended program. In light of Student’s significant and ongoing delays, in December 2021, Parent arranged for Student to undergo a complete neuropsychological assessment and an autism skills assessment with Neuropsychologist and Board-Certified Behavior Analyst to determine Student’s educational needs.

Neuropsychologist diagnosed Student with ASD with accompanying language impairment and revealed that Student has delays across language domains, including receptive, expressive, and pragmatic language skills. These deficits significantly impede his ability to learn, communicate, and interact with peers. He also has significant deficits in attention and focus and is highly distractible by environmental stimuli, even in a structured 1:1 environment. Student’s pre-academic skills also appeared to be significantly delayed. Neuropsychologist also noted that due to Student’s inability to verbalize his needs he can become frustrated and react by biting, pinching, or banging his head. Student also does not recognize others’ personal space and will bite or hit when limits are set for him.

Neuropsychologist and Board-Certified Behavior Analyst recommended that Student attend a small supportive special education school that utilizes 1:1 data-driven ABA teaching methodology in order for him to make progress. In addition, they noted that Student requires a minimum of 20 hours per week of direct Applied Behavior Analysis (“ABA”) serviced by a Board-Certified Behavior Analysist (“BCBA”). They determined that he continue speech-language, occupational, and physical therapy in order to progress.

Based on Neuropsychologist and Board-Certified Behavior Analyst recommendations that Student should be receiving 1:1 ABA therapy in his educational placement as well as in the home and community, Parent arranged for Student to be provided ABA therapy in February of 2022. Student began receiving 26 hours per week of ABA therapy. This resulted in clear improvements in his progress, which were noted by his other providers.

However, Student’s current ABA Provider, related service providers, and pediatrician all recommend that Student receive a total of 40 hours of ABA therapy going forward.

Student received Speech and language therapy sessions intermittently, often these sessions conflicted with Student’s schedule. As a result, Parent obtained a private provider to provide Student with this much needed therapy.

Parent provided the DOE with the neuropsychological assessment and autism skills assessment, along with letters from Student’s physical therapist provider, speech and language provider, pediatrician, and Private School II to consider for the upcoming IEP meeting.

During the meeting, both Parent and ABA provider expressed concerns about the lack of 1:1 ABA therapy in the recommendation. The CPSE representative, however, advised that ABA could not be recommended because “ABA is considered a methodology and the DOE does not recommend any particular teaching style.”

On June 2, 2022, the CPSE recommended placement in an 8:1:2 special class, speech-language therapy and occupational therapy three times per week, physical therapy twice a week, and parent training and counseling once per month.

Parent declined to participate in the development of the goals in Student’s 2022 IEP. Subsequent to the June 2, 2022 meeting, the CPSE recommended potential schools for Student, but Parent refused to visit these schools.

POSITIONS OF THE PARTIES

Parent alleges, among other things, that the IEP was substantively and procedurally deficient under federal and state law based on multiple procedural and substantive violations described with more particularity in the DPC, and that the DOE failed to meaningfully include Parent in the IEP development process, failed to provide ABA services necessary for Student to meaningfully benefit from his education, and failed to provide services that were recommended.

The DOE contends that it offered a free appropriate public education (“FAPE”) to the Student for the 2021-2022 and 2022-2023 school years. The DOE stated that for the 2021-2022 school year, the IEP team was duly constituted, the IEP was implemented, the CPSE evaluations were appropriate, and the program recommended was appropriate. The DOE stated that for the 2022-2023 school year the IEP team was duly constituted, the program was appropriate, and Student received services.

The DOE further noted that the Parent decided to not participate in the development of the IEP for the 2022-2023 school year and declined the recommendation, and that the Parents’ request for relief should be denied.

The DOE presented a case that consisted of documentary evidence (D- 1-6), and testimony from: “CPSE Administrator,” “SEIT Curriculum Supervisor”, and “D75 Placement Officer”. Each of DOE’s witnesses were cross-examined by Parent’s Attorney and responded to clarifying questions.

The Parent presented a case that consisted of documentary evidence (P- A-N, Exhibit K was withdrawn because the witness was not available), and testimony by affidavit from “Parent,” “ABA Provider”, “Neuropsychologist” and “Pediatrician.” Each of Parent’s witnesses were cross-examined by DOE and responded to clarifying questions.

The within proceeding pertains to the Parent’s request, that the IHO (i) find that the DOE denied Student a free appropriate public education for the 2021-2022 and 2022-2023 school years; (2) an order that the DOE reimburse Parent for the full cost of speech-language therapy services provided during the twelve-month 2021-2022 school year; (3) an order that the DOE reimburse Parent for the full cost of ABA therapy provided to Student during the twelve-month 2021-2022 school year; (4) an order that the DOE to reimburse Parent for the full cost of providing Student with 40 hours per week of ABA therapy from appropriately qualified providers selected by Parent for the twelve-month 2022-2023 school year; and (5) an order that the DOE reimburse Parent for the full cost of speech and language therapy and occupational therapy three times a week, physical therapy twice a week, and monthly parent training and counseling from appropriately qualified providers selected by Parent for the twelve-month 2022-2023 school year. (IHO- II, 12)

LEGAL STANDARD AND FRAMEWORK

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

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 Individualized Education Program (“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.

BURDEN

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

FAPE

• • THE DOE FAILED TO MEET ITS BURDEN THAT IT PROVIDED A FAPE TO STUDENT FOR THE 2021-2022 SCHOOL YEAR.
• • The DOE failed to recommend a program and placement which was reasonably calculated to allow Student to make progress.

In determining the adequacy of an IEP, both parties are limited to discussing the placement and services specified in the written plan and therefore reasonably known to the parties at the time of the placement decision. See Fuhrmann ex rel. Fuhrmann v. E. Hanover Bd. of Educ., 993 F.2d 1031, 1039–40 (3d Cir.1993) (“Rowley requires, at the time the initial evaluation is undertaken, an IEP need only be ‘reasonably calculated to enable the child to receive educational benefits.’... [T]he measure and adequacy of the IEP can only be determined as of the time it is offered to the student, not at some later date.” (quoting Rowley, 458 U.S. at 206–07, 102 S. Ct. 3034)). The DOE has the burden of proof as to the procedural and substantive appropriateness of its recommendations for the 2021-2022 school year.

For the 2021-2022 school year, the DOE offered two witnesses, D75 Placement Officer and SEIT Supervisor, and submitted the May 2021 IEP, Student’s SEIT acceptance letter, and the May 2021 final notice recommendation in an attempt to demonstrate that the IEP was reasonably calculated to enable the Student to receive educational benefit. The Supreme Court has stated that “[a] reviewing court may fairly expect those authorities [school district staff] 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” (Endrew F., 137 S. Ct. at 1002). I find that the DOE has failed to meet their burden.

D75 Placement Officer testified that she assisted in the development of Student’s May 2021 IEP. She testified that the IEP recommendation for Student was appropriate because it was based on “evaluations and the information that was shared regarding Student’s global profile… and all of the different regulations and protocols we have to follow were followed.” The May 2021 IEP notes that “due to the current State of Emergency due to Covid-19. CPSE evaluations were conducted via Telehealth.” Some of the evaluation results were based on clinical opinion. (D -1, 2)

When asked if Student would have received educational benefit from the IEP recommendation, she stated, “I believe so.” On cross-examination, when asked whether there was a basis to believe Student had autism, she stated, “I don’t recall what was in the evaluations specifically.” When asked whether there were any services specifically tailored to address a student with autism, she testified that, student would receive SEIT services, and the teacher would employ a methodology that they found fit for student. (Trans. 75)

According to D75 Placement Officer, the DOE does not direct or dictate how a teacher should teach a student and it is dependent on the student and the teacher who has training and a background to work with students with disabilities. She opined that ABA is not one size fits all, and that a SEIT teacher would employ what they felt was most appropriate for Student. (Id. 75-76)

Thus, as a result, the CPSE recommended:

• • Special Education Itinerant Teacher (SEIT), Individual, 10hrs/week, 30-minute increments
• • Individual speech and language therapy, 2X/ week, 45-minute sessions
• • Individual occupational therapy, 2X/ week, 45-minute sessions
• • Individual Physical Therapy, 2X/ week 30-minute sessions
• • 10-month duration Finally, D75 Placement Officer stated that she left her position several weeks prior to the implementation of the IEP and she could not confirm whether Student made progress.

The next witness presented for the 2021-2022 school year was SEIT supervisor. She did not participate in the IEP development, she had no knowledge as to the CPSE meeting, or the recommendations in the IEP for Student. SEIT supervisor testified that she supervised the SEIT services provided to students at Center. She noted that she was familiar with Student because he was one of the students in the program. According to SEIT Supervisor, whenever a teacher provided SEIT services to Student, she reviewed the reports and session notes. She stated that Student began the program in September of 2021 until June 2022. She stated that Student received 10 hours of SEIT services each week and Student made progress but noted “Student was having difficulty with self-regulating, emotions, transitioning, and he had difficulty following small and large group instruction, and following directions.” (Id. 89)

The evidentiary documents submitted by the DOE do not support the DOE’s claim that they provided Student with a FAPE. No credible persuasive testimony was provided by the DOE’s witnesses to establish how, or to what extent, or which evaluations were relied upon by the DOE in making its ultimate educational recommendation for the 2021 IEP. The DOE failed to submit supporting documentation such as evaluations, progress reports, or teacher evaluations to show cogent and responsive explanation for their decisions. D75 Placement Officer simply stated 10 hours of SEIT along with related services would have been enough. Finally, it must be noted that, according to SEIT Supervisor, Student struggled throughout the year with self-regulation, transitions and following directions with the program implemented by DOE.

The witnesses presented for the 2021-2022 school year did not provide credible, persuasive testimony to explain how Student’s deficits were addressed within the IEP or explain the CPSE’s rationale in recommending the disputed program. No testimony or evidence was provided as to why Student was not recommended for 12-month services in light of the fact Student had global delays that impacted his ability to engage in age-appropriate tasks throughout the day. Thus, I find that DOE failed to meet its burden.

• • The DOE failed to provide and implement the Student’s mandated speech and language therapy.

Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). The school district must provide special education and related services to a student with a disability in accordance with the student's IEP and must make a good faith effort to assist the student to achieve the annual goals and, if appropriate, short-term instructional objectives or benchmarks listed in the student's IEP. See 8 NYCRR200.4(e)(7). With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way. (T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012)

In order to show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimis failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP (see Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524–25 (3d Cir. 2008)). Accordingly, in reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" (see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D. D.C. 2007] [holding that where a student missed a 'handful' of speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program]).

The 2021 IEP mandated that Student should have received speech and language therapy twice a week for 45-minute sessions. Parent testified that DOE’s speech and language provider was unable to consistently provide a speech therapist to Student and when they did it was during very limited windows which conflicted with Student’s schedule. Parent also testified that Student was absent for several weeks due to having the flu and did not receive services during his absence. Parent added that she was able to locate a private speech and language provider who began working with Student in March of 2021. Here, the DOE failed to provide any credible persuasive evidence (such as attendance logs or eyewitness testimony) that Student received speech and language services as mandated in his IEP and missed only a “de minimis” number of sessions.

Student is entitled to receive compensation for missed speech and language therapy sessions and sessions not provided for by DOE. Parent acknowledged that Student received some speech and language services for the 2021-2022 school year, and she hired a private provider in March of 2021 to provide these services to Student. Although the DOE argued that Student received speech and language therapy in accordance with the 2021 IEP, the DOE failed to present credible persuasive evidence to support its argument.

Moreover, a 12-month special service and/or program should be considered for students whose management needs are determined to be highly intensive and require a high degree of individualized attention and intervention. Here, Student’s management needs outline that Student needs include, “consistent and clear expectations, visual supports, verbal prompting, modeling, redirection, scaffolding, and consistent positive reinforcement schedule.” (D- 1, 4) I find that Student’s management needs require a high degree of individualized attention. I further find that no credible evidence was presented as to why Student was not considered for a 12-month special education program. Thus, based on the hearing record, I find that Student should have been placed in an extended 12-month program and parent should be reimbursed accordingly.

• • THE DOE FAILED TO MEET ITS BURDEN THAT IT PROVIDED A FAPE TO STUDENT FOR THE 2022-2023 SCHOOL YEAR.
• • The DOE Denied the Student a FAPE by its Failure to Consider 1:1 ABA Therapy for Student Parent is not challenging the 8:1:2 special education class recommendation made for the 2022-2023 school year program. Parent is seeking ABA services at home and at school and allege that without ABA services Student is being denied a free appropriate public education.

Although an IEP must provide for specialized instruction in a student’s area of need, generally, a CSE is not required to specify methodology on an IEP, and the precise teaching methodology to be used by a student's teacher is usually a matter to be left to the teacher. Rowley, 458 U.S. at 204; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2012 WL 2708394, at *15, *17 [S.D.N.Y. May 24, 2012]; A.S. v New York City Dep't of Educ., 10-cv-00009 [E.D.N.Y. May 26, 2011] [noting the "broad methodological latitude" conferred by the IDEA]; Application of a Student with a Disability, Appeal No. 12-017.

However, if the evaluative materials before the CSE recommend a particular methodology, and there are no other evaluative materials before the CSE that suggest otherwise, and the school district does not conduct any evaluations "to call into question the opinions and recommendations contained in the evaluative materials," then, according to the Second Circuit, there is a "clear consensus" that requires that the methodology be placed on the IEP notwithstanding the testimonial opinion of a school district's CSE member (i.e. school psychologist) to rely on a broader approach by leaving the methodological question to the discretion of the teacher implementing the IEP (A.M. v. New York City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017]).

Neuropsychologist testified that he owns Evaluation Company and also owns a company that provides ABA services to students. (Trans. 121) He evaluated Student. (Id. 121) Over the past twenty-five years, he has worked with thousands of children of all ages who present with various physical, developmental, neurological, psychological and learning disabilities. (Id.) A significant percentage of the children he has worked with were diagnosed with acquired brain injury and attendant impairments. (Id.) He has evaluated innumerable students with Autism Spectrum Disorder. (Id.) He is familiar with various teaching methods based on his experience as a pediatric neuropsychologist. (Id. 122) He observed Student in a classroom setting and attended the 2022 IEP meeting. (Id. 122) He attended the IEP meeting for the purpose of making an appropriate recommendation for Student. (Id. 122) He has experience writing IEPs as an evaluator for the DOE. (Id. 124)

In the 2022 Neuropsychological Assessment, conducted by Neuropsychologist, Neuropsychologist found that Student is demonstrating delays across receptive, expressive, and pragmatic language domains. His deficits are consistent with his history of language delays, and are impacting his ability to learn, communicate, socialize, and play at an age-appropriate level. As such, Student requires highly specialized and individualized intervention, including intensive speech and language therapy and consistent behavioral support. (P – B, 4)

In his report, which the CSE had received a copy of at the March 2022 IEP meeting, Neuropsychologist noted that, “Student presents with marked deficits in speech and language, social communication and interaction, attention, reciprocity, safety awareness, and adaptive skills—all of which are interfering with his daily functioning and availability for learning and socializing. Some repetitive movements and behaviors are also present. Together with his history, Student meets criteria for ASD with accompanying language impairment. He requires a high level of specialized services across all areas to appropriately support his needs. This must include a home-based program utilizing 1:1 ABA for a minimum of 20 hours per week in addition to intensive related services, including speech-language therapy, OT, and PT as part of an interdisciplinary team. Without such support, Student will not make appropriate progress and will be at risk for regression.” (P- B, 7)

Parent testified that, “ABA services have been provided this year at our expense for the full school day from 1:00 to 4:00 Monday through Thursday, as well as mornings at home from 10:00 to 1:00 on Mondays, Wednesdays at home 9:00 to 1:00, Fridays from 9:00 to 11:00 and then again from 1:00 to 3:00, and Sundays from 9:00 to 12:00, totaling 26 hours a week.” (P- L, 8)

ABA Provider^[1] testified that she has observed Student and he has demonstrated marked deficiencies in the areas of speech and language, social communication, attention, reciprocity, safety awareness, and adaptive skills. (P – M 7-8) She stated that since receiving ABA therapy and services, Student has made improvement in his ability to attend to his engage in reciprocal social interactions, follow directions, participate in Activities of Daily Living (ADLs), and functionally use vocal language to request and comment. (Id.) She provides ABA services to Student 4 days a week, two hours at home and three hours in the classroom.

Pediatrician testified that he did not evaluate Student to determine Student’s ABA needs. He made a referral for Student to receive 40 hours of ABA because he has treated Student for years and it was clear that Student needed ABA services. He added that there are many other methodologies used when teaching a student with disabilities. (Id. 173-175)

CPSE Administrator, DOE’s witness for the 202-2023 school year, testified that based on Student’s progress reports, Student was struggling in a general education setting. (Id. 31) Student required a lot of support from his special education teacher in order for him to participate in the classroom. (Id. 32) His needs were “definitely consistent with a child with ASD.” (Id. 33) Student needed support in facilitating communication and social interaction. (Id.) He also need support in maintaining his attention during classroom activities. (Id. 33)

When asked on cross-examination whether the DOE provided ABA therapy to students, she stated that, “we are not able to make a specific recommendation in terms of methodology. We use a multitude of research-based programs. But that's a limitation of the IEP. We do not specify a single methodology to be used.” (Id. 29) She added “some children do benefit from ABA but that is not the only methodology.” (Id. 35) Although she acknowledged that Student made progress since receiving ABA services, she also added that it was impossible to separate which part of Student’s progress resulted from ABA intervention since Student received a number of interventions. (Id. 41, 61)

She did not know that Student had a history of hitting, biting, and pinching himself. She also did not know that Student banged his head on objects when he became frustrated. (Id. 50) Finally, when asked on cross-examination why she did not defer to the evaluative reports provided to the DOE by Parent, witness testified that she viewed the evaluations as a “conflict of interest” since the company performing the evaluation also provides the ABA services. (Id. 41)

Here, I find that the DOE ignored the extensive reports and evaluations (mainly, Student’s Autism Skills Assessment and the Neuropsychological Assessment) provided to the IEP team at the 2022 IEP meeting. CPSE Administrator who was present at the meeting stated that they did not incorporate the ABA recommendations into Student’s IEP because she deemed the evaluation to be a conflict of interest. CPSE Administrator did not rely on other evaluative materials to call into question the opinions and recommendations of the reports provided to them, she simply stated that because Neuropsychologist conducted the assessment of student and also owns a company that provides ABA therapy, the reports/ evaluations were not reliable. By rejecting the consensus recommendations of the evaluations before it, the CSE acted in precisely the same manner that the Second Circuit held to constitute a deprivation of FAPE in its 2017 ruling in A.M. v. N.Y.C. Dep't of Educ. The hearing record establishes that Student benefits from Applied Behavior Analysis (ABA). ABA should be part of Student’s recommended program for the program to be an appropriate one. Therefore, the Student has been denied a FAPE.

• • The DOE Failed to implement the June 2022 IEP and Student did not receive related services.

The June 2022 IEP provides that Student should receive:

• • Speech and Language Therapy, individual, 3x/ week, 30-minute sessions
• • Occupational Therapy, individual, 3x/ week. 30-minute sessions
• • Physical Therapy, individual, 2x/week, 30-minute sessions
• • Parent Training and Counseling, direct/indirect, 1x/month, 60-minute sessions DOE’s Witness, CPSE Administrator, testified that the Student did not receive the related services mandated in the 2022 IEP. Parent also testified that Student did not receive related services as prescribed in the 2022 IEP and as a result she hired several providers to provide these related services to Student.

I find that Student is entitled to the related services provided in the 2022 IEP. I further find that DOE failed to implement the 2022 IEP. I further find that Student should have received these services as a 12-month Student since the 2022 June IEP identifies Student as such.

REQUESTED RELIEF

The relief requested by the Parent is equitable in nature, as Parent is asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide Student with a FAPE for the 2021-2022 and 2022-2023 school years. Specifically, the Parent has requested that the IHO (i) find that the DOE denied Student a free appropriate public education for the 2021-2022 and 2022-2023 school years; (2) an order that the DOE reimburse Parent for the full cost of speech-language therapy services provided during the twelve-month 2021-2022 school year; (3) an order that the DOE reimburse Parent for the full cost of ABA therapy provided to Student during the twelve-month 2021-2022 school year; (4) an order that the DOE reimburse Parent for the full cost of providing Student with 40 hours per week of ABA therapy from appropriately qualified providers selected by Parent for the twelve-month 2022-2023 school year; and (5) an order that the DOE reimburse Parent for the full cost of speech-language therapy and occupational therapy three times a week, physical therapy twice a week, and monthly parent training and counseling from appropriately qualified providers selected by Parent for the twelve-month 2022-2023 school year. (IHO- II, 12)

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) (citations omitted). 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 Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005). An award of compensatory education “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.” Reid, 401 F.3d at 518, 524. Compensatory education awards may include reimbursement for out-of-pocket educational expenses paid by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster v. Bd. Of Educ., 611 Fed. App’x 874, 878-79 (7th Cir. 2015); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 277-78 (3d Cir. 2014).

There are generally two approaches to fashioning a compensatory education award, 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].

• • DOE is to reimburse Parents for speech-language therapy services DOE failed to provide Student for the twelve-month 2021-2022 school year.

Student is entitled to receive compensation for missed speech and language therapy sessions and sessions not provided by DOE. Parent should be reimbursed for all sessions NOT provided to Student for the 2021-2022 extended school year.

Within 30 days of this order, the DOE shall calculate and provide to the Parent a final accounting of the number of speech and language sessions Student should have received but the DOE failed to provide. In the event that the DOE is unable to obtain documentation demonstrating the provision of any individual session, such session must be deemed as not having been provided to Student.

• • DOE is to reimburse Parents for speech-language therapy and occupational therapy three times a week, physical therapy twice a week, and monthly parent training and counseling from appropriately qualified providers selected by the Parents for the twelve-month 2022-2023 school year.

Student should have been receiving speech-language therapy and occupational therapy three times a week, physical therapy twice a week, and monthly parent training and counseling as recommended in his 2022 IEP from July 1, 2022, the first day of school. Unfortunately, these services were not provided to the Student. Parent credibly testified that she was able to locate providers to provide Student with these related services, DOE’s witness credibly testified that Student did not receive the related services mandated in the 2022 IEP.

Although Parent did not participate in the development of Student’s goals in the 2022 IEP and the Parent failed to visit the recommended schools, I do not find that these failures would stop Parent from relief. Parent credibly stated that she did not participate further in the development of the 2022 IEP because she believed that Student’s therapists and providers were more able to assist in this area. Parent further stated that she did not visit the recommended schools because the schools did not offer ABA therapy in their curriculum, a therapy in which Parent believes is essential to teaching and managing Student. I find that Parent shall be reimbursed at a reasonable enhanced rate, within 60 days of the submission of appropriate invoices.

• • 1:1 ABA Therapy 2021-2022 school year Parent request to be reimbursed for the cost of ABA therapy for the 2021-2022 school year. The hearing record establishes that Student began receiving ABA therapy in February 2022. (P- L, 3 and P- H, 2) The hearing record further establishes that Student received 26 hours per week of intensive 1:1 ABA instruction weekly. (Id.) I find that Parent’s request is reasonably calculated, and I also find that it is appropriate in light of the 2021-2022 FAPE violation.

I find that DOE shall reimburse Parent for the cost of 26 hours per week of 1:1 ABA therapy with a trained provider under the supervision of a BCBA, from the date Student began receiving services (end of February 2022) to the end of the 2021-2022 school year. This service shall be paid at a reasonable enhanced rate.

2022-2023 school year

Parent request to be reimbursed for the cost of 40 hours per week of ABA therapy for the 2022-2023 school year. While I find that Student requires intensive 1:1 ABA therapy, I do not find that Parent’s request was reasonably calculated. First, the neuropsychological assessment and an autism skills assessment recommended that Student receive at least 20 hours of ABA therapy. (See P – B, C) I found that to get to this conclusion, Neuropsychologist and Board-Certified Behavior Analyst assessed Student’s needs by performing several test and evaluations, and also observed Student in different environments and speaking to teachers, providers, and Parent. A thorough reading of these documents do not reveal a recommendation of 40 ABA hours. With that being said, I must acknowledge Parent’s Exhibit H, it states, “it is recommended that Student receive 40 hours per week of intensive, ongoing BCBA directed Applied Behavior Analysis, as prescribed by his doctor.” But again, such a recommendation is not found in the evaluative material submitted by Parent.

It must be noted that in his affidavit and during the hearing, Neuropsychologist recommended that Student receive 40 hours of ABA therapy. He testified that for “this child in his presentation of severity of autism and behaviors and needs, yes. Unfortunately, that's part of the deficit itself and the disorder is a pattern of behaviors that can so easily slip back if not delivered at this kind of intensity and frequency.” However, Neuropsychologist failed to provide persuasive, credible testimony as to how or why his recommendation changed from Student initially requiring a minimum of 20 hours of ABA therapy to Student requiring 40 hours of ABA therapy. (See P- B, C, and N and Trans.)

I also note that while ABA Provider, Parent, and Pediatrician all stated that Student requires 40 hours of ABA therapy. They did not conduct evaluations of Student and thus, I do not find this part of their testimony to be credible or persuasive. I find that they cannot accurately determine the number of hours Student needed and continues to need.

The ABA Treatment Plan shows that Student is currently making tremendous progress while receiving 26 hours of ABA therapy weekly. Furthermore, Parent’s witnesses and Parent’s evidence all show that Student has made substantial progress, including the fact that Student has mastered at least 20 communication, social, and behavioral goals in less than three short months. (See Trans., and Parent’s Exhibits; Specifically, P- H 8 – 21) Furthermore, I am mindful of the utilization and efficacy of awarding 40 hours of ABA therapy to a pre-school student. I am also mindful of the record before me.

Thus, I find that the recommendations found in Parent’s Exhibit B and C, and the data found in Parent’s Exhibit H to be credible. More importantly, I find the relief consistent with what Student is currently receiving. I find that Parent should be reimbursed for 26 hours per week of ABA therapy for the 2022-2023 school year for the extended school year, first July 1, 2022 to the last day of school.

CSE Reconvene The hearing record establishes that the program and services recommended for the Student by the DOE for the 2021-2022 and 2022-2023 school years, were inadequate and failed to provide him with a FAPE. Parent contends that the program and services recommended for the Student in the Neuropsychological Assessment and Autism Skills Assessment more appropriately address Student’s needs and provide him with the special education program and services he requires. Consequently, I find that the CPSE should convene to consider the recommendations found in the assessments, and to develop an IEP for Student that is consistent with the program and services recommended in the evaluations and reports submitted by Parent.

As previously noted, an award of prospective equitable relief is an available remedy for a school district’s denial of FAPE. See Doe v. East Lyme, 790 F.3d at 454 [holding that a court may award various forms of retroactive and prospective equitable relief under the IDEA]. “While ‘retrospective relief [is] designed to compensate for yesterday's IDEA violations,... prospective relief [is] aimed at ensuring that the child receives tomorrow the education required by IDEA’” (Collette v. Dist. of Columbia, 2019 WL 3502927, at *14 [D.D.C. 2019], quoting Branham v. District of Columbia, 427 F.3d 7, 11 [D.C. Cir. 2005] [emphasis in original]).

The DOE failed to offer any documentary evidence or testimony to rebut or contradict any of the credible findings and recommendations found in the hearing record.

Thus, the CPSE will be directed to convene a meeting within thirty (30) days of the date of this order to consider and recommend an appropriate education program for Student that is consistent with the program and services recommended by the Neuropsychologist and Board-Certified Behavior Analyst in the Neuropsychological Assessment and Autism Skills Assessment.

OTHER RELIEF

Finally, 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

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

• • ORDERED, the DOE failed to provide Student a FAPE for the 2021-2022 and 2022-2023 school years;
• • The CPSE shall convene a meeting of the CPSE within thirty (30) days of the date of this order to consider and recommend an appropriate education program for Student that is consistent with the program and services recommended by the Neuropsychologist and Board-Certified Behavior Analyst in the Neuropsychological Assessment and Autism Skills Assessment.
• • DOE shall reimburse Parent for the cost of 26 hours per week of 1:1 ABA therapy with a trained provider under the supervision of a BCBA, from the date Student began receiving services (the end of February 2022) to the end of the 2021-2022 school year.
• • The DOE shall fund (and/or reimburse Parent) 26 hours per week of 1:1 home-based ABA therapy with a trained provider under the supervision of a BCBA, 12-month, 2022-2023 school year. This service shall be paid at a reasonable enhanced rate.
• • The DOE shall reimburse Parent the cost of speech and language therapy and occupational therapy three times a week, physical therapy twice a week, and monthly parent training and counseling from appropriately qualified providers selected by Parent for the 12-month 2022-2023 school year at a reasonable enhanced rate.
• • DOE shall reimburse Parent for all speech and language sessions NOT provided to Student by Speech and Language Agency for the 12-month 2021-2022 school year at a reasonable enhanced rate.
• • Within 30 days, the DOE shall calculate and provide to the Parent a final accounting of the number of speech and language therapy sessions Student should have received from the start of the 2021-2022 school year until the last day of school minus any makeup sessions Student was provided.
• • In the event that that the DOE is unable to obtain documentation demonstrating the provision of any individual speech and language therapy session, such session must be deemed as not having been provided to Student.
• • The DOE shall reimburse Parent within 60 days of satisfactory proof that these services were provided to Student.

So Ordered.

Dated: December 29, 2022

Lorianne M. Wolseley

_____________________

Impartial Hearing Officer

DISTRICT EVIDENCE

#

DATE

DOCUMENT

No. Of Pages

1

5/11/21

Individualized Education Program

18

2

6/2/22

IEP

31

3

6/2/22

IEP Attendance Page

1

4

5/12/21

SEIT Acceptance Letter

1

5

5/1/21

Final Notice Recommendation

1

6

6/6/22

Final Notice Recommendation

1

PARENT EVIDENCE

LETTER

DATE

DOCUMENT

No. Of Pages

A 7/5/22 Hearing Request 7

B 1/19/22 Neuropsychological Assessment 12

C 2/2/22 Autism Skills Assessment 12

D 4/27/22 Letter of Support from Pediatrician 1

E 5/8/22 Letter of Support from Physical Therapist 2

F 5/9/22 Letter of Support from Speech and Language Pathologist 1

G 5/15/22 Letter of Support from Private School II 3

H 5/24/22 ABA Treatment Plan 21

I 5/31/22 Letter of Support from Neurologist 3

J 6/6/22 Letter from Agency Providing SEIT 9

K EXCLUDED -----

L 10/14/22 Affidavit of Testimony: Parent 9

M 10/17/22 Affidavit of Testimony: BCBA 9

N 10/17/22 Affidavit of Testimony: Neuropsychologist 9

O 10/21/22 Affidavit of Testimony: Pediatrician 4 IHO EXHIBITS #

DATE

DOCUMENT

No. Of Pages

I

11/16/2022

DOE’s Closing Brief

8

II

11/18/2022

Parent’s Closing Brief

12

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.

Footnotes

[1] According to ABA Provider, ABA is the application of behavioral principles to improve socially significant behavior, to teach new skills, to teach replacement skills, and to decrease maladaptive behaviors. ABA is data driven, as a student’s mastery of skills is quantified by that student’s performance in, among other techniques, Discrete Trial Training, a technique which involves breaking tasks down into their simplest components and working with students to learn each step and tracking the results, before progressing to the next. ABA is the only evidenced-based methodology that has been endorsed by the U.S Surgeon General for children with Autism. (Id. N- 5)