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CASE NUMBER: 577019 – NYC: 229550
FINDINGS OF FACT AND DECISION
Student’s Name: Redacted
School District: N.Y.C. Dept. of Ed., District [REDACTED]
Impartial Hearing Officer: Michelle S. Babbitt
Date of Filing: 8/01/2022
Hearing Requested by: Parent
Date of Hearing: 12/22/2022 Date of Submission of Written undated, submitted 1/12/23 Summations and Memorandum
Record Close Date: 2/28/23
Date of Decision: 3/2/2023
NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/3/2022:
For the Student:
Redacted (hereinafter referred to as “Parent’s Representative”) Redacted, Mother (hereinafter referred to as “Parent’s Witness #1”) and Redacted (hereinafter referred to as “Parent’s Witness #2”)
For the Department of Education (“DOE”):
NO APPEARANCE
BACKGROUND
The Parent, through counsel, filed a Due Process Complaint (“DPC”) on 8/1/2022. The Parent filed an Amended DPC on 10/6/2022 (“DPC”). In the DPC, the Parent alleges that the Department of Education (“DOE”) failed to offer the Student a free appropriate public education (“FAPE”) for the 2022-2023 school year.[1] The DPC requested interim educational evaluations, including, (i) neuropsychological evaluation; (ii) speech-language evaluation; (iii) assistive technology evaluation; (iv) occupational therapy evaluation; (v) physical therapy evaluation; (vi) Functional Behavior Assessment; and (vii) ABA Skills Assessment.[2] The Parent also sought a Pendency Order.[3] In the DPC Parent requested at home services for ABA, BCBA, speech therapy, occupational therapy, and physical therapy.[4] The Parent also requests compensatory education and services in ABA therapy, speech language therapy, occupational therapy, academic tutoring and “any additional services to remedy the District’s failure to provide an appropriate educational program and methodologies that could allow for meaningful education progress.” The DPC did not request a certain number of hours of compensatory education.[5] I was appointed to preside over this matter on 10/25/2022. There were two prior IHOs appointed to this case; both IHOs recused themselves from this matter.
The agreements and orders issued in this case, as set forth in the Impartial Hearing System, are:
1. A pendency agreement dated 9/7/2022: 6 (i) 40 hours per week of Applied Behavior Analysis for 12 months (private provider); (ii) Board Certified Behavior Analyst
Supervision, two (2) hours per week for 12 months (private provider); (iii) At-home speech language therapy, five (5) times each week for 30 minutes each session (private provider) for 12 months;(iv) At-home occupational therapy, three (3) timeseach week for 30 minutes each session (private provider) for 12 months; and (vi) Athome physical therapy two (2) times each week for 30 minutes each session (private
6 IHO Exhibit 1. provider) for 12 months. As the DPC was filed on 8/1/2022 that was the day the services were authorized. [7]
2. On 9/13/2022 the pendency agreement was amended to reflect that the ABA services were to be administered at home. [8]
3. On 9/22/2022 a prior IHO ordered the DOE to fund an independent neuropsychological evaluation. [9]
4. On 9/20/2022 a prior IHO directed the DOE to provide and fund the following 12-month pendency program for the Student: 40 hours per week of ABA services; two (2) hours per week of BCBA supervision; five (5) 30-minute periods per week of 1:1 speech-language therapy; three (3) periods per week of 1:1 occupational therapy; and two (2) 30-minute periods per week of 1:1 physical therapy. [10]
On 12/1/2022 I held a prehearing conference in this matter. The DOE did not appear although the DOE attorney who had filed a Notice of Appearance stated that she would be available on 12/1/2022, the date and time that the conference took place. The Parent’s representative advised that the neuropsychological evaluation had been conducted and he anticipated receiving the completed report on or before the end of the following week.[11] At the PHC, Parent was unable to detail how many hours of compensatory education the Parent was seeking and the basis for the request. Parent was directed to do so on or before 12/9/2022. [12]
On 12/9/2022 the attorney who submitted the NOA stated that she was no longer assigned to the matter and provided the name of a non-attorney at the DOE. This individual stated that the DOE was trying to find representation on this case, but “[n]onetheless, the district will not be putting on a case in this matter.” [13]
The Parent failed to provide the information requested at the PHC. Instead, on 12/15/2022 the Parent submitted two unsigned affidavits as part of its disclosure. On 12/16/2022 I wrote to the parties stating:
Good morning: I gave a cursory review of the two affidavits and note they are not signed; therefore they are of no probative value. Please note that there must be a basis for the compensatory education requested, not just a summary statement of hours requested. Petitioner should also be prepared to show/discuss a schedule of the Student’s day based on the request. I provide this information so that the Parent can be best prepared and the hearing proceed in an efficient manner. Based on the affidavits as submitted, I will have clarifying/completeness questions for both witnesses, who should appear at the hearing. It is Petitioner’s obligation to demonstrate how each exhibit is relevant to this case, and give it voice, where necessary. Thank you. [14]
On 12/16/2022 Parent’s representative responded:
Hello IHO Babbitt:
To clarify, the witnesses will both be swearing to the truthfulness of the affidavits on the record. Am I right to assume that after they do so, you will accept the statements within the affidavit as if it were notarized?
Redacted will be prepared to explain how he came to his compensatory services recommendation. [15]
On 12/22/2022, the DOE failed to appear. I sent an email to four individuals at the DOE advising that “we are waiting for the DOE to appear to begin the hearing. Thank you.” [16]
The DOE failed to respond to my email or appear at the hearing.
The 12/19/2022 email from the DOE, together with its failure to appear at the hearing, constitutes a concession of FAPE for the 2022-2023 school year.
THE HEARING
On 12/22/2022 the Parent appeared for the virtual hearing. From the inception, I advised Parent and Witness # 1 that it was difficult to assess the credibility of an individual when they chose not to appear on camera (Tr. 15, 60). Parents’ representative stated that Exhibits A-C were entered into evidence on 9/16/2022 and Exhibits D and E were entered into evidence on 9/22/2022, both before a prior IHO[17] (Tr. 17). Parent then offered into evidence Exhibits F- P. I advised Parent’s representative that if an exhibit is not referenced or explained, either by an affidavit, or by direct testimony, providing exhibits without context, is not helpful (Tr. 19-20). The Exhibits were admitted into evidence subject to their connection during the hearing (Tr. 21). The affidavits of Witnesses #1 and #2 were entered into evidence prior to their testifying (Tr. 31 and 63). I advised the Parent that they would have to show me how a five-year-old Student was able to use the requested thousands of hours of compensatory education, and how that number had been determined and was reasonable (Tr. 27).
The Parent’s representative submitted a written summation of 15 pages, the first six (6) of which makes assertions as to the DOE’s failings throughout the years.[18] Notably, Parent submits and discusses the FOFD from the prior school year.[19] The FOFD is of no probative evidence in my determining whether FAPE was provided to the Student for the 2022-2023 school year.
TESTIMONY AND FINDINGS OF FACT
Witness #2 identified his three-page affidavit, Exhibit Q, which was prepared by Parent’s representative based on the 11/2/2022 evaluation prepared by Witness #2[20] (Tr. 29-30). Witness # 2 did not speak with Parent’s representative prior to him drafting his affidavit (Tr. 30-31). The affidavit was admitted into evidence (Tr. 31). Witness #2 had no independent recollection of the tests he administered to the Student, so he referred to the 11/2/2022 evaluation (Tr. 32-33). The documents reviewed by Witness #2 are not set forth in his evaluation nor did he remember what documents he reviewed (Tr. 46-47).
Witness #2 is an independent contractor with two practices. One is pediatric, and the other practice is a cognitive assessment group addressing adult concerns. His practice is divided 50-50 between pediatric and adult (Tr. 44-45). Witness #2 has a PsyD, a “clinical degree where you’re trained in research, but the focus is more on clinical work.” Witness #2 cannot prescribe medicine. (Tr. 45-46).
The Student:
Witness # 2 stated that the Student’s “cognitive abilities are notably impaired across all domains. His general level of intelligence is below the 1st percentile across multiple domains. He is nonverbal, and consistent with his history of significant speech delays, his expressive and receptive language abilities are notably impaired.” [21] For most of the tests, the Student was unable to comprehend the instructions (Tr. 33). Witness #2 testified that the Student has “severe language delays, social skill deficits, very visible and disruptive repetitive behaviors, sensory issues that are extremely disruptive, as well as attention problems” (Tr. 33). The Student’s repetitive behaviors, which are disruptive, “include flapping his hands, rocking back and forth, clapping, hitting his own hands (Tr. 34). The Student has “multiple diagnoses, including autism spectrum disorder, level 3, which is the most severe, as well as intellectual disability and an attention deficit hyperactivity disorder (Tr. 34). [22] The Student is highly distractable (Tr. 40). Witness #2 further testified that “compared to other children his age across adaptive functioning abilities of communication, daily living skills, socialization, fine motor, motor skills...he’s performing below the first percentile” (Tr. 35). This assessment, however, was not due to any standardized testing, but rather self-reporting from the Student’s Parent and a teacher (Tr. 35). Witness #2 did not observe the Student in his classroom (Tr. 36). Witness #2 recommended a special education program that utilizes ABA therapy as there is research that it is an “effective intervention for children with autism spectrum disorder” (Tr. 37-38). Witness # 2 reached his conclusion that the Student required ABA therapy because “severe autism spectrum disorder, and ABA therapy is one of the most researched and there’s the most evidence behind ABA therapy being an effective intervention for children with autism spectrum disorder” (Tr. 37).
Within this special education program, Witness #2 testified that since the Student has significant attention issues, the Student requires a 1:1 paraprofessional (Tr. 37). The only information Witness #2 had as to the Student’s feeding difficulties came from the Student’s Parent (Tr. 37). A 05/22/22 pediatric neurology consultation submitted by Parent states that the stature of the Student is in the 96th percentile for his age and his weight is in the 89th percentile for his age. The report states that the Student is “well developed and well nourished.” [23] Witness #2’s recommendation of 40 hours of ABA therapy was based upon recommendations of unnamed people in the field who make that recommendation (Tr. 38).Witness #2’s recommendations as to an appropriate educational program for the Student should be considered when the CSE reconvenes to consider the Student’s current needs but should not be considered to assess the appropriateness of the educational program recommended in the 5/24/2022 IEP.[24] Parents’ representative was advised as to the same by a previously appointed IHO on 9/22/2022. [25] Witness #2 had no idea what the Student’s schedule would look like with all the hours of recommended therapy for ABA, BCBA supervision, Social Skills training, occupational therapy, physical therapy and speech and language therapy. Witness #2 stated that some of the therapies could be administered in a school, but he was not familiar with “the exact structuring of how it is in the school, so I don’t wanna speculate.” (Tr. 42). (Tr. 38-41, 48). Witness # 2’s recommendation for physical therapy was, he believed, in accord with the Student’s current mandate (Tr. 43). Witness #2 could not speak to whether there would be one, two or three professionals present at the same time while servicing the Student based on Witness #2’s recommendations (Tr. 50). Witness #2 admitted that his recommendation for speech-language therapy represented the “peak-the height” of hours he would recommend for the service (Tr. 52). Witness #2 was unwilling to opine as to how many hours each day the five-year-old Student should be engaged in an educational program (Tr. 52-53). Witness #2 testified that the Student receives services at school but was uncertain as to the services provided (Tr. 53-54). Student had only attended school on nine (9) days from the inception of the school year through early November (Tr. 55). Witness # 2 also recommended that the Parent, apart from sitting in with the Student’s ABA at home therapy or the BCBA supervisory, receive individual counseling and training for two hours each week (Tr. 43-44).
The IEP dated 5/24/22 provided that the Student be in a 6:1:1 class with services in occupational therapy, speech and language therapy and physical therapy. A full-time health paraprofessional was recommended. The IEP also recommended that the Student receive a Dynamic display speech generating device (SGD). The IEP also recommended that transportation from the closest safe curb location to school be provided to the Student. [26] In reviewing the Exhibits submitted by Parent I note that the Parent’s representative is the third attorney that Parent retained to represent them on this matter.[27] I also note that the DOE executed two pendency agreements and a prior IHO issued a pendency order after a hearing.[28] In the Pendency agreements and orders the Parent had the right to select the providers, but did not do so, as reflected in the evidence submitted at the hearing, the request for a bank of compensatory hours and the statement from Parent’s representative sent on 2/21/23 29 that “[t]he parent has been attempting to arrange for services under the pendency order but had to wait until the implementation unit provided authorization, which they only recently did. However, that is only for ABA.” The position of Parent’s representative is not in accord with the FOFD and the pendency agreements and orders. The 9/7/2022 30 pendency agreement provided (i) 40 hours per week of Applied Behavior Analysis for 12 months (private provider); (ii) Board Certified Behavior Analyst Supervision, two (2) hours per week for 12 months (private provider); (iii) Athome speech language therapy, five (5) times each week for 30 minutes each session (private provider) for 12 months;(iv) At-home occupational therapy, three (3) times- each week for [30] minutes each session (private provider) for 12 months; and (vi) At-home physical therapy two
29 IHO Exhibit 10-10.
(2) times each week for 30 minutes each session (private provider) for 12 months. As the DPC was filed on 8/1/2022 that was the day the services were authorized. As the DPC was filed on 8/1/2022 that was the day the services were authorized. 31
It appears that Parent elected not to provide any services for the Student although Parent was afforded the right to select the providers, both under the FOFD which provides the basis for pendency, and the pendency agreements and orders themselves, which were only modified, pursuant to the Parent’s request, to allow the Student to have ABA wherever the Student wanted (services not confined to the home). It is also worth noting that the Parent was extremely proactive in obtaining a host of evaluations and rate schedules, apparently seeking to maximize the type, and number of services for the Student (Tr. 63-64, 66-70). 32 These documents indicate that Parent had contacted, but not retained, providers. 33
Witness # 1’s testimony that the Student “does not eat anything” (Tr. 71) and “[h]e is at risk of malnutrition and dehydration. He's not eating or drinking anything” (Tr. 85) is belied by the medical record which states that the Student is “well developed and well nourished” 34 Witness # 1 stated that the Student has a paraprofessional, but she does not believe that person is with the Student “24/7 when he’s in school” (Tr. 74). As to the paraprofessional, Witness #1 testified: “She's busy assisting the teacher, the school personnel, and helping pretty much run their entire classroom operation” (Tr. 73). Witness #1’s statements are conclusory in nature, absent of any foundation.
I did not find Witness #1’s testimony credible, as it was argumentative in large part, vague, contradictory, and often Witness #1’s answers were not responsive to clarifying questions asked by me (Tr. 74-76, 79, 82-85,87-89, 92-99). Witness #1 persisted in this manner despite admonishment from the tribunal. Her frustration with the DOE was noted (Tr. 76);
31 I note that the parties appeared before the previously appointed IHO for a pendency hearing, but Parents’ counsel stated that the pendency agreement signed by the DOE was appropriate and no pendency hearing need be had. (9/7/22 Tr. pp. 5-6). 32 Parent’s Exhibits E, F G, H, K and L. School districts are not required to “maximize” the potential of students with disabilities but 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, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). 33 Parent’s Exhibit E. 34 Parent’s Exhibit K-3. The report stated that the Student weighed 48 pounds. Witness #1 testified the Student weighed 40 pounds (Tr. 72). notwithstanding, Witness #1 did not testify in a forthright manner when responding to my questions requiring clarification.
The scope of the impartial hearing is limited to the issues raised in the DPC. Any issues or allegations not contained within the four corners of this complaint are not to be considered. [35] The school years at issue before this tribunal is 2022-2023.
ANALYSIS AND DETERMINATION
It is uncontroverted that this Student was denied FAPE. The Student however is not entitled to compensatory education.
Burden
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings. [36]
Prong I
The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE").[37] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”).[38] 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.[39] In order 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.” [40]
As to Prong I of the Burlington/Carter standard, here, the DOE failed to meet its burden. The DOE Representative stated by email dated 12/19/22 that it would not be putting on a Prong 1 case. On the date of the hearing, the DOE failed to appear. Therefore, I am constrained to find that the DOE failed to offer the Student FAPE for the 2022-2023 school year.
Requested Relief Enforcement of Pendency Order
It is well settled that IHOs do not have the authority to enforce prior decisions rendered by administrative hearing officers. Enforcement of prior hearing officer decisions is available through the State complaint process or the courts. 41 To the extent that Parents are seeking enforcement of the 9/20/22 Pendency Order, and an award equal to the value of the services the Student should have received under Pendency, that request is denied. I lack authority to enforce a prior IHO’s decision.
Parent requests that the appropriate equitable relief is compensatory education for the full value of services that the educational agency was required to fund. I note that the hearing before me concerned a denial of FAPE and appropriate relief thereunder, as discussed below.
Compensatory Education
The relief requested by Parent is equitable in nature, as she seeks an appropriate remedy to address the DOE’s failure to provide the Student with a FAPE for the 2022-2023 school year. Specifically, Parent requests an order that the DOE fund 2,576 hours of compensatory education by independent providers of the Parent’s choosing at market rate: as follows:
a) 1840 hours of ABA (1380 of school-based + 460 hours of home-based) b)138 hours of occupational therapy c) 230 hours of speech language therapy d) 92 hours of physical therapy
41 See Educ. Law§§ 4404(1) (a) (2); see, e.g., A.R. v. New York City Dep't of Educ., 407 F.3d 65, 76, 78 n.13 (2d Cir.
2005) (noting that IHOs do not retain jurisdiction to enforce their orders and that a party who receives a favorable administrative determination may enforce it in court); AT. v. New York State Educ. Dep't, 1998 WL 765371, at *7, *9-*10 & n.16 (E.D.N.Y. Aug. 4, 1998) (noting that SROs have no independent "administrative enforcement" power and granting an injunction requiring the district to implement a final SRO decision). See also, SRO 22-154 at pages 12-13 (1.12.23); Jeremy H. v. Mount Lebanon Sch. Dist., 95 F.3d 272, 24 IDELR 831 (3d Cir. 1996); Dominique L. v. Bd. of Educ. of City of Chicago, 56 IDELR 65 (N.D. Ill. 2011); L.J. v. Audubon Bd. of Educ., 47 IDELR 100 (D.N.J.2006).
e) 92 hours of social skills training f) 92 hours of parent counseling and training g) 92 hours of BCBA supervision [42]
The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.”[43] “When a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.”[44] 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.” [45]
An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education.[46] 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.” [47] 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.”[48] Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[49] 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’.”[50] “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.”[51] Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” 52
This, however, is not a case where the District was required to provide pendency services to the Student. Parent had the right to select the providers, and in fact, this was the relief requested in the DPC and provided in the pendency agreements and orders. 53 The modification sought by Parent’s representative to the Pendency Agreement dated 9/14/22 before a previously appointed IHO did not change the Parent’s right, nor did Parent ask for that modification. Parent also had this right under the FOFD providing the basis for pendency. 54 Having agreed to services from a private provider, “the parent elected to carry the responsibility for ensuring the delivery of the stay-put services, with the district remaining responsible only for funding the services so delivered. As such, the parent assumed the risk that unforeseen events would cause the terms of the pendency agreement to be undesirable. Thus, for example, the parent’s difficulty in locating a private provider was a risk that the parent assumed, which came to fruition.” 55 While I am sympathetic to the Parent’s circumstances surrounding the Parent’s choice in this regard, the DPC and pendency agreements and orders are clear as to this election. The Parent had the right to select providers and “any missed services that accrued during the relevant time period are not eligible for make-up services as compensatory education.” 56
Although Witness #2 testified that “with his [the Student’s] age and severity of delays, we really want to flood him with the most intervention that’s possible so that he can engage in those normal leisure activities like we’re, we’re talking about. That’s not something he’s able to do right now.” (Tr. 53). Notably, that action was not taken by the Parent although it appears that the prior FOFD dated 4/22/22 awarded relief for both services and compensatory education, with the Parent able to select providers to be funded by the DOE. 57 It raises the question of whether
52
Reid, 401 F.3d at 518. 53
Parent’s Exhibit A, pp. 4-5. 54
Parent’s Exhibit B, pp. 14-15. [At-home SLT (5x30), OT (3x30) and PT (2x30) for the remainder of the 2021-22 school year through August 2022 with providers selected by the Parent. At-home ABA for 40 hours per week for the remainder of the 2021-22 school year through August 2022]. 55 See Application of the Bd. of Ed, Appeal. No. 22-176 at page 10. 56 See Application of the Bd. of Ed, Appeal No. 22-176 at page 11. 57
Parent’s Exhibit B-15 (At-home compensatory ABA services, to be used within one year, in an amount equal to 20 hours per week for the time period the student was not provided ABA services during the 2021-2022 school year. Seventy-Five (75) hours at-home compensatory SLT (5x30) to be used within one year with a provider selected by the Parent; Forty (40) hours at-home compensatory OT (3x30) to be used within one year with a provider selected by the Parent; Twenty five (25) hours at-home compensatory PT (2x30) to be used within one year with a provider selected by the Parent; and All of the above listed services shall be paid by the District at the current market rates or providers were put in place pursuant to that FOFD and why none of them continued services for the 2022-2023 school year, despite a pendency order being in place. It is not clear if Student was receiving compensatory services through the prior FOFD, and Parent did not seek to enforce her pendency rights in this case as the Student could not use any additional services. As stated above, the sole time this issue was addressed was in an email response from Parent’s representative dated 2/21/23. [58]
Notwithstanding the foregoing, the purpose of compensatory education is not to punish school districts. It is unclear how the requested number of compensatory hours can be properly implemented without overwhelming the Student, allowing time for the normal activities of life, and providing an educational benefit. Witness #2 could not offer any guidance as to how the hours would be used and Witness #2’s assessment of hours needed was taken in large part from unnamed third parties, statements from the Parent and a calculation of compensatory hours based on a one-to-one hour analysis. Pursuant to request from this tribunal Parent’s representative submitted a proposed schedule, showing that the 5-year-old would be in school and receiving services seven (7) days each week.[59] It would, for certain, be a pyrrhic victory if the delivery of an award of compensatory educational services only served to overwhelm the student or outpace the student's ability to make progress. [60]
CSE Reconvene
Generally, an award of prospective relief in the form of prospective placement of a student in a particular type of program and placement, under certain circumstances, has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student’s progress under current educational programming and periodically assessing the student’s needs.[61] To afford the CSE an opportunity to fulfil its task, such lower cost as the District and/or Impartial Hearing Implementation Unit may have paid to the same provider for substantially similar services during the 2021-2022 school year, whichever is lower). the CSE is directed to convene within 14 school days of the date of this Order and develop a new IEP for the Student taking into consideration the Student’s need for an ABA based educational program as addressed in the neuropsychological report dated 11/2/22. I note that Parent, both directly and through her attorney have made multiple requests for an CSE reconvene, which to date, has not taken place.[62] Should the CSE fail to reconvene and/or if the CBST fails to make a recommendation for an educational placement that takes into consideration the 11/2/22 neuropsychological report than the DOE shall fund Parent’s unilateral placement for one year, provided Parent demonstrates, should the DOE challenge the placement, that the placement is appropriate for the Student and the cost of such program is reasonable.
Evaluations and Assessments
In their DPC Parents requests a host of evaluations and assessments, apart from the neuropsychological evaluation ordered by the previously appointed IHO. The DPC requests evaluations for speech-language, assistive technology, occupational therapy, physical therapy, functional behavioral assessment, behavior intervention plan, and an ABA skills assessment. The total monetary amount sought by Parent for these evaluations and assessments is $16,375.00 (excluding the $6000 for the neuropsychological evaluation). However, at the hearing Parent did not raise these requests or provide any evidence or testimony that the evaluations and assessments were necessary. In the closing brief, Parent does not request that any of the evaluations and assessments requested in the DPC be provided, but rather, for the first time, requests a feeding therapy evaluation at a cost of $2,000.00. The scope of the impartial hearing is limited to the issues raised in the DPC. Any issues or allegations not contained within the four corners of this complaint are not to be considered. [63] be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) Parent’s claim for compensatory education services for FAPE deprivations for the 2022-2023 school year is DENIED.
(2) The CSE is directed to convene within 14 school days of this Order and develop a new IEP for the Student with consideration to the Student’s need for ABA therapy.
As the time to reconvene has been shortened to expeditiously address the Student’s educational needs, the CSE need only provide the Parent with three calendar days’ notice of the IEP meeting. The out of state Parent should attend by telephone if unable to attend in person to avoid delay on the part of the Parent. [64] (3) If an IEP is not created and a placement is not identified by the DOE within 45 school days of this Order, the DOE shall fund the Student’s placement at a private special education school of the Parent’s choosing through the summer of 2023, or until the CSE reconvenes to recommend a new program and identifies a new placement; and it is further ordered that (4) The DOE shall provide or otherwise fund transportation to and from the Student’s home and the Student’s school for the entire 2022-2023 school year, and for the summer of 2023, if the above DOE failures occur. The DOE shall ensure that such transportation is in place within 10 school days of the date of this Order.
Dated: March 2, 2023
Michelle S. Babbitt
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.
DISTRICT EVIDENCE
None
PARENT EVIDENCE
A. Impartial Hearing Request 8.1.22 7 pages
B. Findings of Fact and Decision #222499 4.20.22 23 pages
C. IEP 5.24.22 30 pages
D. Request for Independent Educational Evaluation 5.16.22 2 pages
E. Rate Sheets 1.1.22 2 pages
F. Neurology Report 7.13.20 2 pages
G. ABA Assessment and Therapeutic Recommendations 7.5.21 14 pages
H. Feeding Recommendation 8.10.21 1 page
I. Redacted Turning 5 Reports 2021-2022 16 pages
J. Parent Request for IEP Adjournment 5.20.22 2 pages
K. Neurology Consultation Diagnosis 5.25.22 6 pages
L. Hospital Letter re: additional support 6.7.22 5 pages
M. Parent Request for School Tour 5.21.22 3 pages
N. Repeated requests for IEP Meeting 8.25.22 13 pages
O. Amended Due Process Complaint 10.6.22 8 pages
P. Independent Neuropsychological Evaluation 11.2.22 19 pages
Q. Affidavit of Neuropsychologist Redacted undated 3 pages
R. Affidavit of Parent, Redacted undated 4 pages
S. Proposed Compensatory Education Schedule undated 1 page
IHO EXHIBITS
1. Pendency agreement 9.27.22 9.7.22 2 pages IHO
2. Pendency Agreement 9.13.22 9.13.22 2 pages IHO
3. Interim Order re IEE 9.22.22 1 page IHO
4. Pendency Order 9.20.22 9.20.22 1 page IHO
5. Prehearing Conference Summary and Order 12.1.22 10 pages IHO
6. email exchange with parties 12.9.22 12.9.22 12 pages IHO
7. Email exchange with parties 12.16.22 3 pages IHO
8. Email to DOE re hearing 12.22.22 14 pages IHO
9. Parent’s closing summation and brief undated 15 pages IHO
10. Email exchange with parties APPENDIX Information Term Used In FOFD Redacted Student Redacted Parent Attorney/Representative Redacted Parent or Witness # 1 Redacted Witness # 2 2.21.21 8 pages IHO
Footnotes
[1] Parent’s Exhibits A and O.
[2] Parent’s Exhibit O-6-7.
[3] Parent’s Exhibit O-2.
[4] Parent’s Exhibit A 4-5.
[5] Parent’s Exhibit O-7.
[7] I note that the parties appeared before the previously appointed IHO for a pendency hearing, but Parents’ counsel stated that the pendency order signed by the DOE was appropriate and no pendency hearing need be had. (9/7/22 transcript at pages 5-6. IHO Exhibit 1).
[8] IHO Exhibit 2. The parties appeared for a pendency hearing on 9/16/22 before a previously appointed IHO to change the pendency agreement to afford the Student 40 hours of ABA, regardless of whether he attended school. It appears that the FOFD under case #222499 provided the Student with 40 hours of ABA because he was not in school. (9.16.22 Transcript at pages 22-24). DOE argued that the FOFD provided for a home-based ABA program. (9/16/22 Tr. 26). Parent did not request that the pendency agreement be changed to deprive parent from selecting the Providers. A prior IHO issued a decision not limiting ABA services to the home. (9/16/2022 transcript at.24-29).
[9] IHO Exhibit 3. The prior IHO granted an IEE for only a neuropsychological evaluation. Parents’ request for all other IEEs were denied (9/22/2022 transcript at 49-50). The IHO made clear that the neuropsychological report was not going to be admitted to address the IEP in question, but solely to address potential compensatory education. “when I am looking at what the CSE recommended, I am looking at the situation as of the time of the recommendation, not information that was garnered in a subsequent report” (9/22/2022 Tr. 53-54).
[10] IHO Exhibit 4.
[11] IHO Exhibit 5-1-2.
[12] IHO Exhibit 5-3.
[13] IHO Exhibit 6-1.
[14] IHO Exhibit 7-1.
[15] IHO Exhibit 7-1.
[16] IHO Exhibit 8-1.
[17] The transcript from the prior proceedings shows that Exhibits A-C were marked into evidence on 9/16/2022 (9/16/2022 Tr. 22). The transcript from the 9/23/2023 hearing shows that Exhibits D-E were admitted during that day’s hearing for an IEE (9/23/2023 Tr. 39). The DOE was represented on both hearing dates.
[18] IHO Exhibit 9.
[19] IHO Exhibit 9: Parents’ Exhibit B.
[20] Parent’s Exhibit P.
[21] Parent’s Exhibit Q-2.
[22] Parent’s Exhibit Q-2.
[23] Parent’s Exhibit K-3.
[24] Parents’ Exhibit A, D and J.
[25] See footnote 7.
[26] Parent’s Exhibit C 22-23, 26.
[27] Parents’ Exhibits D, J and N.
[28] IHO Exhibits 1, 2 and 4.
[30] IHO Exhibit 1.
[35] 8 NYCRR 200.5 (j)(l)(ii), 20 U.S.C. 1415 (F) (3)(b), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 Civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012.)
[36] NYS Educ. Law § 4404 (1)(c); R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 184-185 (2d Cir. 2012), C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 835-836 (2d Cir. 2014).
[37] 20 U.S.C. § 1400 (d)(1) (A).
[38] 34 C.F.R. § 300.13.
[39] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[40] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[42] IHO Exhibit 9-15.
[43] 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.
[44] Boose v District of Columbia, 786 F. 3d 1054, 1056 [D.C. Cir. 2015], citing Carter, 510 U.S. at 15-16.
[45] Doe v. East Lyme, 790 F.3d at 454.
[46] E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014).
[47] P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[48] Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008].
[49] Doe v. East Lyme, 790 F.3d at 454.
[50] Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 522, 525 (D.C. Cir. 2005) (emphasis in original).
[51] Reid, 401 F.3d at 522) (citations omitted).
[58] IHO Exhibit 10.
[59] Parent’s Exhibit S.
[60] See Application of the Bd. of Ed. of the S.C.S.D, Appeal No. 21-065.
[61] See Application of the Bd. of Ed, Appeal No. 22-176 at page 18; See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 (D.D.C. 2018) (noting with approval the hearing officer’s finding “that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to school”); see also Student X, 2008 WL 4890440 at*16 (noting “that services found to be appropriate for the student during one school year are not necessarily appropriate for the student during a subsequent school year”).
[62] Parent’s Exhibits D, J and N.
[63] 8 NYCRR 200.5 (j)(l)(ii), 20 U.S.C. 1415F) (3)(b), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 Civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012.)
[64] I note that the out of state Parent, the father, who does not live with the Student and the Student’s mother, did not attend the hearing. Parent’s Exhibit P-1. The Mother apparently has flexibility as she is unemployed (Tr. 86). Witness # 1 stated that she has the authority to make educational decisions for the Student (Tr. 74)