New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 578096 - NYC: 230279

FINDINGS OF FACT AND DECISION

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

Date of Birth: [REDACTED]

School District: NYC DOE Serv. Dist. #[REDACTED] (“DOE”)

Hearing Requested by: [REDACTED] (“Parent 1”) [REDACTED] (“Parent 2”) Request Date/Date Complaint Filed: 8/18/2022

Date(s) of Hearing: 7/6/2023; 7/7/2023; 7/19/2023; 7/26/2023; 7/28/2023; 7/31/2023 Actual Record Closed Date: 8/27/2023

Date of Decision: 8/28/2023

Time Sensitive: YES

Hearing Officer: William Yukstas

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/6/2023

For the Student:

[REDACTED] (“Parents’ Representative”)

Parent

Parent

For the Department of Education:

[REDACTED] (“DOE Attorney”)

[REDACTED] (“Committee on Special Education [CSE] Supervisor”)

Interpreter(s) 2:

[REDACTED] [REDACTED]

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/7/2023

For the Student:

Parents’ Representative

Parent

Parent

[REDACTED] (“Private Psychologist”)

[REDACTED] (“Private Board-Certified Behavior Analyst [BCBA]”)

[REDACTED] (“Private Applied Behavior Analysis [ABA] Provider”)

For the Department of Education:

DOE Attorney

Interpreter(s):

[REDACTED]

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/19/2023

For the Student:

Parents’ Representative

Parent

Parent ^[2]

For the Department of Education:

DOE’s Attorney

CSE Supervisor

Interpreter(s):

[REDACTED]

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/26/2023

For the Student:

Parents’ Representative

Parent

Parent

For the Department of Education:

DOE Attorney

CSE Supervisor

Interpreter(s):

[REDACTED] [REDACTED] [REDACTED] [REDACTED]

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/28/2023

For the Student:

Parents’ Representative

Parent

Parent

For the Department of Education:

DOE Attorney

CSE Supervisor

Interpreter(s):

[REDACTED]

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/31/2023 ^[3]

For the Student:

Parent Representative

Parent

Parent

For the Department of Education:

DOE Attorney

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”) and the New York Education Law. This case concerns Student, a [REDACTED]-year-old who attended various schools during the school years in question. P-ZZ-1. 4 In Parents’ Due Process Complaint (“DPC”), 5 Parents alleged that the Department of Education (“DOE”) failed to provide Student a Free Appropriate Public Education (“FAPE”) for the 2018-2019; 2019-2020; 2020-2021, 2021-2022, and 2022-2023 school years. P-ZZ. 6

Parents request the following relief: 7 (1) 3,203 hours of compensatory ABA instruction by a provider of Parents’ choosing at a fair market rate.

(2) Reimbursement to Parents for academic services and behavioral supports Parent selected during certain periods of time (elaborated below) in the amount of $81,975.

(3) An amendment of Student’s Individualized Education Program (“IEP”) to defer Student’s placement to the central-based support team (“CBST”) to find a placement for Student in a New York State-Approved Residential Program that provides ABA instruction, behavior therapy, and that has a BCBA or Licensed Behavior Analyst (“LBA”) on staff.

4 Exhibits accepted into the record are listed in full in Appendix B. Throughout this decision, Parent’s exhibits will be cited to as P followed by the exhibit letter. DOE’s exhibits will be cited to as D followed by the exhibit number. IHO exhibits will be cited to as IHO followed by the exhibit numeral. Regarding exhibits, D-1 and P-A are the same. Additionally, D-2 and P-CC are the same (with slightly different pagination). 5 Parent filed Parent’s first DPC on 8/18/2022. P-A. Parent filed an amended DPC on 5/8/2023, which was accepted, by me, on 5/15/2023. 6 Unless otherwise indicated, all future reference to Parent’s DPC refers to Parent’s amended DPC, P-ZZ. Certain portions of the relief being sought by Parent are different in P-ZZ than in P-A, which I accept as reflecting Parents’ perception of Student’s needs changing during the 2022-2023 school year. 7 Parent outlined different versions of the relief being sought in Parent’s first DPC (P-A), Parent’s amended DPC (P-ZZ), and in Parent’s Closing Argument (IHO-III). Here, I am referring to the relief sought in Parent’s Closing. While there is some variance, it is largely consistent with the original request. See, A.G. v. District of Columbia, 794 F. Supp. 2d 133 (D.D.C. 2011) (encouraging a hearing officer to permit evidence regarding relief being sought to be fully presented, which presupposes that a request for relief may be tailored based on the evidence presented at a hearing).

(4) An order requiring the DOE to provide services until Student is placed in a residential program IHO-III-27, 28.

As discussed below, I find that Parents’ claims related to the 2018-2019 school year and part of the 2019-2020 school year are barred by the statute of limitations. I find that the DOE failed to offer Student a FAPE for the remainder of the 2019-2020 school year and for the 2020-2021, 2021-2022, and 2022-2023 school years. I further find that the DOE did not carry its burden with respect to the relief, and that the Parent’s requested relief is appropriate with modification.

PROCEDURAL HISTORY

The Parent filed this case on 8/18/2022. P-A. A prior IHO was appointed on 8/31/2022. A Pre-Hearing Conference was held on 9/20/2022. Status conferences were held on 11/30/2022, 12/22/2022, and 2/8/2023.

The parties reached an interim agreement on pendency on 9/13/2022. IHO-I. This was modified by a Statement of Agreement and Order regarding pendency, which was issued by the prior IHO on 11/1/2022. IHO-IV.

The prior IHO requested briefing on the statute of limitations and scheduled a hearing on the limited issue of the statute of limitations for 2/23/2023. However, the prior IHO subsequently cancelled the interim hearing and ruled that the statute of limitations is an affirmative defense that the DOE could argue during the due process hearing. IHO-V. ^[8]

On 4/25/2023, the prior IHO’s appointment was rescinded, and I was appointed. IHO-VI. I held a status conference with the parties on 5/8/2023. During the status conference, Parents’ Representative indicated their intent to file an amended DPC. DOE objected to the amendment, but I accepted the amendment on 5/15/2023. IHO-VII.

A final status conference was held on 6/21/2023.

The due process hearing was held over several dates – 7/6/2023; 7/7/2023; 7/19/2023; 7/26/2023; 7/28/2023; and 7/31/2023. The DOE’s sole witness, CSE Supervisor, presented direct testimony by affidavit (D-24), but was only available for cross-examination on certain dates for limited periods of time due to a personal issue. Parents’ Representative cross-examined CSE Supervisor on 7/6/2023; 7/19/2023; 7/26/2023; and 7/28/2023. Eventually, I asked Parents’ Representative to conclude questioning of the CSE Supervisor. Parents’ Representative agreed to finish questioning after an additional half-hour of questions on 7/28/2023. Tr.303.^[9] On 7/6/2023, DOE exhibits 1-9, 11-21, and 23-25 were entered into evidence without objection. Tr.25-26, 74 (D-12). On 7/26/2023, the Special Education Student Information System (“SESIS”) log, D-22, was entered without objection. Tr.215. On 7/31/2023, the 8/17/2022 IEP (D-10), was entered without objection. Tr.392. Parents submitted exhibits A through ZZ, which were entered into the record without objection on 7/6/2023. Tr.38. On 7/26/2023, Parents submitted exhibit EEE, which was entered into the record without objection. Tr. 206. On 7/31/2023, Parents submitted exhibits AAA, BBB, CCC, FFF, and HHH, which were entered into the record. Tr.396-399. Parents presented all direct witness testimony via affidavit. Inexplicably, Parents presented more than one affidavit for most witnesses. DOE did not cross-examine any of Parents’ witnesses. I briefly questioned several of Parents’ witnesses. Private Psychologist’s direct testimony is contained in P-C and P-HH. Private BCBA’s testimony is contained in P-LL. Private ABA Provider’s testimony is contained in P-D and P-II. Private Behavior Technician’s testimony is contained in P-F.^[10] Care Giver’s testimony is contained in P-G.^[11] Private Tutor’s testimony is contained in P-DD.^[12] Parent 1’s testimony is contained in P-A, P-B, P-E, P-JJ, and P-ZZ ^[13]. Tr.303-

308. Parent 2’s testimony is contained in P-KK. ^[14] At the conclusion of the hearing, both sides requested an opportunity to submit written closing statements. Both parties submitted written closing arguments on 8/18/2023. IHO-II; IHO-III. ^[15]

FINDINGS OF FACT

Student is [REDACTED]-years old and is eligible for special education and related services as a student with Autism. D-2-1. As this is a multi-year claim, I will address each year in turn.

2018-2019

Student was a seventh grader at the Intermediate School enrolled in the “Specialized Program” (an 8:1+1 program for students with Autism Spectrum Disorder) at the start of the 2018-2019 school year. D20-2. An IEP was developed for Student on 6/21/2018. D-20. The 6/21/2018 IEP recommended the following special education and related services for Student: Adapted Physical Education, 3 times per week; Special Class in Executive Functioning, Math, ELA, Science, Social Studies, Talent, and Technology (for various periods per week); Counseling, in a group of 3, 1 time per week; Occupational Therapy (“OT”), individual, 2 times per week; PCAT, 2 times per year; Speech-Language Therapy (“SLT”), individual, 1 time per week (though this is repeated so it is unclear if it was intended to be twice a week or once); and SLT, group, 2 times per week. D-20-23. Further, the 6/21/2018 IEP requires that Student be provided with a full-time paraprofessional for crisis management and the use of a touchscreen tablet with software for all writing periods. D-20-24. All services are to be provided in English. D-20-28,29. The 6/21/2018 IEP indicates that the “Parents Language(s) Spoken / Mode Communication” is English. D-20-28. This IEP is unsigned and does not reflect the attendance of Parents’ Representative.

No cognitive testing is reflected in the 6/21/2018 IEP. D-20. Academically, it appears that Student was struggling in all subject areas. D-20-2,3. Student could complete basic math computations. D-20-2. However, Student struggled to stay on task, required intensive 1:1 teacher support, rushed through his work, interrupted the class with random proclamations, and regularly focused on another student instead of his work in math class. D-20-2. Similarly, while Student enjoyed participating in ELA, Student was unable to keep up with the pace of the work, required constant redirection, rushed through assignments, and required step-by-step instructions to complete any work. D-20-2. Student’s ELA teacher reported that it was nearly impossible to assess Student’s academic progress due to his extreme impulsivity. D-20-2.

Student’s progress in the areas where he received related services was similarly concerning. Student was reported to learn strategies during SLT and benefit from the use of assistive technology. However, Student struggled to express complex ideas. D-20-2. Student’s social-emotional functioning was limited. D-20-3. Student was reported to be sensitive and friendly. D-20-3. However, Student lacked “age-appropriate conversation skills,” regularly interjected laughing or random comments at inappropriate times and displayed melt-down behaviors if he perceived other students as doing better than him (throwing items, banging on his computer, kicking things, banging head on the floor, running, or yelling). D-20-4. Student refused to consistently use his assistive technology. D-20-5.

Parent 1 testified that Student began experiencing challenges from almost the start of the 2018-2019 school year. P-B-3. According to Private ABA Provider, during this time, “[Student] displayed aggressive behavior, elopement, property destruction, fixation on a [REDACTED] peer, and tantrum behavior.” P-D-4. As a result of this behavior, Parent 1 stated that Student was frequently removed from the classroom, sent home, or eloped from school. P-B-3. In November 2018, Student’s behaviors “became so extreme that 911 was called several times.” P-B-3. Parent 1 reported that the Intermediate School told him to keep Student home for safety reasons. P-B-3. Parent 1 further testified that Parent 1 and Parent 2 tried to send Student to school and would wait outside the building in their car in case Student’s behavior became an issue, but, on certain days, both Parents were unable to wait outside the school building. P-B-

3. Eventually, Student required hospitalization to address his behaviors. P-B-3. Parent 1 stated that he requested home-based instruction from the school but was told it would be illegal for the school to provide such services because Student was enrolled at the Intermediate School. P-B-3.

No attendance logs for 2018-2019 were introduced. The SESIS log does not indicate whether Student was suspended or if any meetings were held by the IEP team between September 2018 and March 2019. D-22. However, the 3/1/2019 IEP references incidents resulting in “classroom removals, removals from school by his parents, suspensions, and outside medical intervention. This behavior has become a significant hindrance to [Student] in the academic and social school community.” D-18-5. Despite this, it appears that no manifestation determination review meetings were held nor was an interim alternative education setting considered. 34 CFR 300.530.

Parent 1 contacted Private ABA Provider in October 2018 to conduct a Functional Behavior Assessment (“FBA”). This assessment was completed by January 2019. P-D-4. Private ABA Provider recommended that the Intermediate School use “clinical strategies based in the principles of ABA.” P-D-

4. Private ABA Provider specifically informed Parent 1 of her findings at the time. Tr.124. Parents seek reimbursement for special education instruction and behavior management services provided during periods of time when Student was not being permitted to attend class at the Intermediate School. IHO-III-9 (“[T]here were extended blocks of time that [Student] was not attending school due to his behavior, equaling over five months of time. Because of this the Parents provided the following privately funded support and services to address that.”). However, Private Tutor testified that she worked with Student “at his home after school, helping him with his school homework” and that they worked together “Monday to Thursday, for 2 hours a day, from September 2018 to March 2019.” P-DD. I specifically find this testimony to be incredible given that Student was reported to be hospitalized at least twice, Parent 1 testified that Student was being regularly removed from school, and Parents’ Representative argued that Student was effectively removed from school for five of those months.

Parents are also seeking reimbursement for “Supervision, crisis intervention and behavior management” provided by Care Giver. IHO-III-9. No qualifications of Care Giver were provided. In Care Giver’s affidavit, Care Giver describes themself as Student’s “care giver (‘babysitter’).” P-G. Accordingly, I find that Care Giver did not provide educational services.

Overall, Student displayed significant problematic behaviors during the 2018-2019 school year, which were not adequately addressed by the DOE. While it is unclear from the record how long Student was suspended, Student was removed from school for extended periods of time without any adherence to federal regulations. 34 CFR 300.530. Parents were aware of the recommendations of Private ABA Provider that Student receive instruction following ABA principles as of January 2019. Parents had an educational advocate during this time. Tr.311. Parents received Prior Written Notice from the DOE on 6/25/2018 (D-21) and 3/1/2019 (D-19). ^[16]

On 3/1/2019, the IEP team met to develop a new program for Student. D-18. The IEP notes that “[Student] exhibits significant dysregulation of his emotions and behavior at school and within the home which often results in unsafe behavioral responses (elopement, physical and verbal aggression).” The IEP recites the same problematic behaviors observed by the Private ABA Provider (fixation on a peer, emotional outbursts, elopement, verbal aggression / threats, physical aggression to staff). D-18-5.

The 3/1/2019 IEP includes additional testing. Student’s overall cognitive ability was reported to fall in the very low range with similar scores across all sub-tests. P-18-1. Student displayed relative strength in word recognition but was unable to make inferences based on reading a text. P-18-2.

The 3/1/2019 IEP recommends that Student receive the following special education and related services: full-time placement in a New York State Approved Non-Public Day Program (“NPS”); Counseling, group of 5, 1 time per week; Counseling, individual, 1 time per week; OT, individual, 2 times per week; PCAT, group, 4 times per year; SLT, individual, 2 times per week; and, SLT, group of 5, 2 times per week. P-18-21,22. Student is recommended to be provided with a touchscreen for all writing periods. P-18-22.

Parent 1 testified that Parents were told during the IEP meeting that Student would be recommended to an NPS that provided ABA. P-B-5. Student started attending the League School (“NPS 1”) in March 2019. According to Parent 1, NPS 1 did not provide ABA services, have an LCBA on staff, and NPS 1 staff directly told Parent 1 that it was an inappropriate placement for Student. P-B-5.

CSE Supervisor testified that Student regularly eloped from NPS 1, which led to Student being forcibly restrained and having the police called. D-24-2. CSE Supervisor confirmed that NPS 1 told Parents that NPS 1 could not serve Student, but Student continued to attend NPS 1 until an alternative school could be found. D-24-2.

2019-2020

The 3/1/2019 IEP was still in effect at the beginning of the 2019-2020 school year. Student attended NPS 1 for the 2019-2020 school year despite NPS 1’s admission that it was an inappropriate placement. D-24-2. Student continued to experience similar challenges and difficulties as during the preceding school year.

Parent 1 testified that Student’s behaviors at school actually “worsened and intensified.” P-B-5. However, Parent 1 indicated that Student’s behavior at home started to improve as the family contracted for private ABA tutoring from Private ABA Agency 2 between March 2019 to March 2020. IHO-III-10; P-B-5; P-E-1 (Parent 1 testified that he spent approximately $1,475 for these services and that invoices were attached to his affidavit, but no invoices are included in the hearing record).

Progress reports from NPS 1 suggest Student’s academic progress during the 2019-2020 school year was mixed. P-R-67. Student’s attendance prevented him from making academic progress in all subjects, but he made some progress when available for instruction. P-R-67. DOE did not introduce any evidence to explain these attendance issues. Nor is there any evidence to explain interventions that the school undertook to try to address Student’s poor attendance.

A psychiatric evaluation was conducted on 12/5/2019. P-X. Student was diagnosed with “Autism Spectrum Disorder: severity of social communication impairments and restricted, repetitive patterns of behavior ‘requiring very substantial support,’ verbal with accompanying delays in receptive and expressive social communication with inflexibility of behavior and restricted/repetitive behavior that markedly interfere with functioning in all areas.” P-X. The psychiatrists who completed this evaluation recommended that Student receive instruction following ABA principles at school, at-home ABA services, and specific instruction in social communication (to generally summarize a list including several recommendations). P-X.

An IEP meeting was held on 3/6/2020. D-17. The IEP states “Parents are very concerned regarding [Student’s] placement. [But] [t]hey are pleased that [Student] is doing better currently and that he can stay in [NPS 1] while CBST locates an appropriate setting.” D-17-35. Parent 1 testified that as of January 2020 it was agreed that a new placement that offered ABA was necessary for Student. P-B-5 (this appears to be a further recognition that NPS^[1] was an inappropriate placement as had been noted seemingly from almost the first day Student began to attend).

The 3/6/2020 IEP recommends that Student receive the following special education and related services: full-time placement in an NPS; Counseling, group of 5, 1 time per week; Counseling, individual,

6. While the school year began with fully remote instruction, a hybrid model was adopted in October or November for Student. P-B-6.

On 12/18/2020, Student was participated in an “autism evaluation” by the same agency that conducted the psychiatric evaluation on 12/5/2019 (P-X). P-Y. This evaluation diagnosed Student with Autism Spectrum Disorder (further described as above) and with Intellectual Disability, Borderline range. P-Y-3. To summarize, this evaluation recommends the use of ABA principles in educating Student at school, at home, and to help Student’s functioning. P-Y-3.

An IEP was developed for Student on 3/18/2021. D-15. The 3/18/2021 IEP recommends that Student receive the following special education and related services: full-time placement in an NPS; Counseling, group, 1 time per week; Counseling, individual, 1 time per week; OT, individual, 1 time per week; PCAT, 4 times per year; SLT, individual, 1 time per week; and, SLT, group, 1 time per week; a full-time paraprofessional for behavioral support; and the full-time use of a touchscreen tablet with software for all writing periods. D-15-29-31.

Based on this IEP, it appears that Student was making some academic and social-emotional progress from October 2020 through March 2021. D-15. Student attended school on a hybrid schedule (which incidentally is somewhat like what the Private ABA Therapist recommended as an appropriate schedule for when Student can return to a less restrictive environment in the future, i.e., “half-days at first for a period of time, for one to two months, with the support of a behavioral analyst and the therapist” and gradually building to full days. Tr.124-125.). According to the IEP, Student built a positive relationship with his 1:1 behavior paraprofessional, experienced a reduction in anxiety because of the need to interact with fewer other students and staff each day, and benefitted from additional individualized attention. D15-6. Academically, the IEP reports that Student acquired new math skills (simplifying fractions, emotional needs require the support of a highly structured and supervised small group setting in a therapeutic day treatment program. [Student] needs a structured classroom and an individualized behavioral plan that is applied consistently. He needs one-on-one assistance to explain what is expected of him, and he needs modeling, prompts, and monitoring throughout the lesson.” D-15-10. Despite this, the DOE did not present any witnesses with knowledge of Student’s actual programming at NPS 1. So, while it appears that Student was making some limited progress during this period,^[17] there is no evidence to suggest that Student was receiving sufficient individualized attention as required by the 3/18/2021 IEP.

Parents are seeking reimbursement for “supervision, crisis intervention, and behavior management” provided by Care Giver from March 2020 to March 2021. As noted above, there are no credentials for Care Giver provided and Care Giver describes themself as Student’s “babysitter.”

Parents are seeking reimbursement for “Behavior Therapy and tutoring” from Private Behavior Technician provided between June 2020 and December 2020. IHO-III-10. No credentials were provided for the Private Behavior Technician. P-F.

Eventually, Student transferred to the NPS 2 on 4/5/2021. Parent testified that the reason Student began attending NPS 2 was because the CSE told Parent that NPS 2 offered ABA instruction and had a BCBA/LBA on staff. P-B-6. Despite this, Parent stated that Student did not actually receive ABA instruction while at NPS 2, and that Parent was told by NPS 2 staff that unless ABA was specifically provided for on Student’s IEP, it would not be provided. P-B-6. Frankly, I do not understand why this would be case. The DOE did not introduce any evidence regarding Student’s program at NPS 2 or any witnesses with actual knowledge of the educational programming at NPS 2. D-24-2,3.

On 6/11/2021, another IEP was developed for Student. The 6/11/2021 IEP recommends that Student receive the following special education and related services: full-time placement in an NPS (10:1 +2); Counseling, group, 1 time per week; Counseling, individual, 1 time per week; OT, individual, 1 time per week; PCAT, 4 times per year; SLT, individual, 1 time per week; and, SLT, group, 1 time per week; a full-time paraprofessional for behavioral support; and the full-time use of a touchscreen tablet with software for all writing periods. D-13-29,30. Comments from Parent ^[1], Parents’ Representative, and NPS did not receive appropriate services and his problematic behaviors resumed.

2021-2022

Student’s behavior dramatically declined at the start of the 2021-2022 school year. P-B-7. As a result, Student was hospitalized in July 2021. P-B-7. While Student was hospitalized, Parents requested that NPS 2 implement a safety plan to support Student’s return to school. P-B-7. According to Parent 1, NPS 2 created a safety plan, which included calling 911 as a main part of the intervention. P-B-7. Parents refused to permit Student to return to school while the safety plan included calling 911 as an intervention. P-B-7.

Student did not return to NPS 2. Parents requested remote services from NPS 2 in September and October 2021. P-B-8. CSE Supervisor testified that Parents requested home instruction on 10/18/2021. D24-3. Parent 1 then contacted the New York State Education Department and requested that NPS 2 be told to provide Student with ABA. P-B-8. Eventually, Parents requested a new IEP be developed that included ABA, that the recommendations included in prior evaluations of Student be included in the IEP as mandated services (I understand that Parents were referring to the evaluations from 12/5/2019 [P-X] and 12/18/2020 [P-Y] described above), that a re-entry plan be developed for Student, and that Student be provided with home and hospital instruction until Student could start the re-entry plan. P-B-8.

Parents obtained a “Behavior Evaluation” on 9/30/2021 to try to support a plan for Student to go back to school. P-AA-1. The Behavior Evaluation made similar recommendations as the evaluations referenced above – generally, ABA instruction at school, at-home ABA services, and explicit socialemotional instruction at school. P-AA-2.

Parent testified that an IEP meeting was held on 11/19/2021. P-B-9. No IEP was introduced into NPS 2 Principal, NPS 2 BCBA, and NPS 2 School Psychologist did meet.^[18] The SESIS log entry reflects that the parties agreed to meet again to develop a mutually acceptable safety plan. D-22-20. In addition, it is noted that Parents’ Representative provided certain health documentation, which was related to Parents’ request for home and hospital instruction. 9 NYCRR 200.6(i); P-CCC. An IEP was not generated on this date and there is no indication that the CSE ever recommended Student for home and hospital instruction (home and hospital instruction is not a placement recommendation on any of the IEPs in evidence), despite extensive communication to that effect with Parents. P-T; P-U; P-V; P-QQ. ^[19]

Parent 1 requested that Private ABA Provider work with NPS 2 to develop a safe re-entry plan for Student to return to NPS 2 sometime during the fall of 2021. P-D-5. Despite Private ABA Provider and Parents meeting with the school on several occasions between December 2021 and February 2022, NPS 2 elected to not utilize the plan developed or to permit Student to return to NPS 2. P-D-5.

Parent is seeking reimbursement for privately obtained services from Care Giver, Private Behavior Technician, Private BCBA, and ABA services from Private ABA Agency 1 for this period. IHO-III-11. Private BCBA is highly qualified. P-LL-1. However, according to Private BCBA’s testimony, Private BCBA did not start working with Student until August 2022. P-LL-2. Private ABA Provider is highly qualified and was originally contracted by DOE. P-D.

Home and hospital instruction started for Student on March 22, 2022. P-B-10. Student received only six hours of instruction per week. P-B-10.

Eventually, on 5/3/2022 NPS 2 Principal emailed the Parents to state that NPS 2 would be “referring [Student] to the CSE so that the team can find him the appropriate setting to fully meet his social-emotional and academic needs. After much work and discussion for a re-entry plan, we unfortunately cannot meet all the needs that [Student] requires to have the best school experience that he deserves.” P-J. NPS 2 Principal goes on to state that the CSE would follow-up with Parents. P-J. Despite this, the CSE did not follow-up with Parents during the 2021-2022 school year.

Parent 1 testified that home and hospital instruction was discontinued on 6/27/2022 because Student 1 was medically cleared to return to school. P-B-11. However, Parent 1 stated that the CSE did not offer Student any placement, and, as a result, Student did not receive any services after 6/27/2022. PB-11.

Overall, despite the meeting in November 2021 and Parents’ efforts to develop a collaborative reentry plan, Student effectively did not attend school or receive any instruction from the DOE between July 2021 and March 2022. P-B-10; D-24-4; D-10-1; Tr.179. CSE Supervisor testified that there was a “lapse in child’s education” and that the CSE only became aware of the privately obtained services Parent had acquired in August 2022. CSE Supervisor agreed that Student did not receive services from the DOE for this period. Effectively, DOE conceded that it failed to offer any services beyond six hours a week of home and hospital instruction from March 2022 – July 2022 for the entirety of the 2021-2022 school year. Tr.177-179; D-24-4.

2022-2023

Parents emailed the CSE several times starting on 6/28/2022. P-K-1. On 6/28/2022, Parent 1 requested that Student continue home and hospital instruction until an appropriate placement could be identified. P-K-1. Several other emails were exchanged between Parents and various DOE representatives during July and August 2022. P-K; P-L; P-O. On 8/3/2023 a Supervisor of School Psychologists (who did not appear at the hearing) emailed the Parents to say that a school placement for September 2022 would be considered and that the DOE would reach out to schedule an IEP meeting. P-K-5.

Despite the many emails and phone calls exchanged, it appears that the parties failed to effectively communicate from June through September 2022. On 8/9/2023, Parent 1 emailed CSE Supervisor and three other DOE employees with the Parents’ Representative copied and requested “[p]lease, it is preferable you follow the email trail and send us an email next time rather than leaving a message in our answering machine, since your proposed September 22 IEP meeting needs to be coordinated with our advocate. Could you please send us an email with more date’s choices?” P-K-17. On 8/11/2022, DOE attempted to schedule an IEP meeting via email. P-JJ-16.^[20] Parents’ Representative requested a different date. P-JJ-17. Despite this request, CSE Supervisor testified that an IEP meeting was held on 8/17/2022 without the Parents because the Parents failed to respond to numerous attempts to reach them through “multiple voicemail messages.” D-24-5. While it appears that Parents were aware of the meeting, it also appears that Parents requested that the meeting be rescheduled. DOE did not introduce any evidence of communications from this time. I find that Parents’ right to participate at this IEP meeting was improperly limited. See, Application of a Student with a Disability, Appeal No. 23-024 (SRO 2023) (although the record established that the parent knew about the CSE meeting and declined to participate, because the district failed to put copies of the required meeting notices or other detailed records of their communications in evidence, they failed to meet their burden and parent’s right to participate was impeded).

On 8/17/2023 an IEP meeting was held without participation of Parents. D-10-1. The IEP team notes that “[n]o new testing was done… No progress reports were submitted to Team by time of IEP review. Parents’ concerns were used to develop goals.” D-10-2. The IEP’s transition goals refer to a student with a different name than Student. D-10-27. The 8/17/2023 IEP recommends Student receive a full-time placement in a DOE Specialized School with the following special education and related services: special education in a special class for all academic subjects in a 8:1+1; Counseling, individual, 1 time per week, Counseling, in a group of 4, 1 time per week; OT, individual, 1 time per week; OT, in a group of 2, 1 time per week; PCAT, 4 times per year; SLT, individual, 1 time per week; SLT, in a group of 3, 1 time per week; full-time paraprofessional for behavioral support; and the use of a folio keyboard replacement for iPad for all writing tasks. D-10-24.

CSE Supervisor testified that DOE officials met with the New York State Education Department on 8/29/2022 to discuss Student’s education. D-24-5. At that point, CSE Supervisor claimed that Student could not return to NPS 2, that Student could not continue home and hospital instruction because Parents refused to provide updated medical documentation, and that additional testing was needed for CBST referral. D-24-6.^[21] Given that there is extensive email documentation from June through September 2022 in the record introduced by Parent and that DOE did not introduce any communication logs or any evidence to support CSE Supervisor’s statements regarding communication with Parents, I cannot credit CSE Supervisor’s repeated statements that Parents were not cooperative from June through September 2022. It does not appear that this meeting led to any modification in Student’s educational plan. CSE Supervisor testified that home and hospital instruction was not provided to Student during September 2022 because Parents did not submit updated medical documentation. D-24-6.

On 9/28/2022, DOE conducted a psychoeducational evaluation of Student. P-AA. Overall, Student’s cognitive functioning was determined to fall in the Extremely Low range. P-BB-5. Student’s scores on the various subtests that make up the cognitive testing were similar. P-BB-5. Academically, it was observed that Student’s basic decoding skills were relatively strong, but that Student struggled in reading comprehension and in producing grade-appropriate sentences. P-BB-5. In math, Student displayed basic computational ability, but struggled to complete advanced problems with multiplication, division, decimals, or fractions. P-BB-5. Student’s academic performance fell in the low range in math and very low range in reading. P-BB-5. Further, Student performed displayed weakness in adaptive functioning, daily living skills, and communication while Student displayed some relative strength in communication, though Student performed in the low range on each of these tests. P-BB-5.

In October 2022, the parties exchanged various scheduling emails until they agreed to hold an IEP meeting on 11/1/2022. D-24-8. The 11/1/2022 IEP recommended the following special education and related services: full-time placement in an NPS (8:1+1); Counseling, individual, 1 time per week; Counseling, group, 1 time per week; OT, individual, 1 time per week; OT, group, 1 time per week; OT, individual, 2 times per month; PCAT, 4 times per year; SLT, individual, 1 time per week; SLT, group, 2 times per week; full-time paraprofessional for behavior support; touchscreen tablet with software for all writing assignments; and, compensatory education to make up for Student’s lack of progress during blended and remote learning – 138 hours of SETSS in ELA; 92 hours of SETSS in Math; 23 hours of Counseling; and 23 hours of SLT. D-2.^[22] CSE Psychologist testified that much of Student’s educational history related above was rehashed at the 11/1/2022 IEP meeting. D-24-8.

CSE Supervisor testified that after the 11/1/2022 IEP meeting, seven NPSs refused to accept Student. D-24-11. CSE Supervisor testified that Parents refused to cooperate with NPS 3 and delayed in providing appropriate home and hospital instruction materials. No placement was ever located for Student for the 2022-2023 school year, the second consecutive year this happened.

To the extent that DOE is arguing that lapses in all services to Student should, equitably, be attributed to Parents, DOE’s argument is significantly undercut by its failure to produce any communication logs or specific examples of when Parents refused to cooperate with the DOE. Application of a Student with a Disability, Appeal No. 23-024 (SRO 2023). Parents introduced a lengthy record showing extensive communication with DOE. While Parents made specific demands and took longer than seems reasonable at times (for example, it is deeply perplexing that Parents requested an IEP meeting in July 2022 yet did not attend an IEP meeting until 11/1/2022, though a significant portion of this delay appears to be based on the Parents’ Representative’s scheduling requests), I find that Parents attempted to cooperate with the DOE to the extent possible.

CONCLUSIONS OF LAW AND ANALYSIS

This case concerns the DOE’s alleged failure to provide the Student with a FAPE for five school years. Parents have generally alleged that DOE failed to offer Student a FAPE for each school year. In Parents’ original DPC (P-A) and in Parents’ amended DPC (P-ZZ), more specific allegations are put forward. I will provide a brief overview of those allegations here. In 2018-2019, Parents alleged that Student did not receive special education or related services for several months while Student was awaiting placement by the CBST. In 2019-2020, Parents alleged that NPS 1 did not adequately meet Students’ needs for several reasons including that it did not offer Student appropriate instruction using principles of ABA. In 2020-2021, Parents alleged that Student was still placed at NPS 1, which had acknowledged that it was an inappropriate placement, and that NPS 2 failed to provide Student with appropriate behavioral and social emotional support. In 2021-2022, Parents alleged that Student only received a few months of home and hospital instruction, which was insufficient to provide him with an appropriate education. In 2022-2023, Parents alleged that the DOE failed to provide them with an opportunity to participate in the IEP process and that the services offered to Student were inappropriate. ^[23] To provide a Student with a FAPE, a school district must develop an IEP that consists of specialized instruction and related services designed to meet a student’s unique needs and must then implement the services in the IEP. 34 C.F.R. § 300.13. A school district offers 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). Furthermore, A 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. The Supreme Court has indicated that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” Endrew F, 137 S. Ct. at 999.

In IDEA due process hearings in New York, school districts have the burden of proof – including the burden of production and burden of persuasion – except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. NY Educ. Law § 4404(1)I; M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at *7 (SDNY 2010).

Statute of Limitations: 2018-2019

The IDEA requires that a party must request a due process hearing within two years of when the party knew or should have known of the alleged action that forms the basis of the complaint. 20 USC § 1415(f)(3)(C); see also 20 USC § 1415(b)(6)(B); NY Educ. Law § 4404(1)(a); 34 CFR § 300.507(a)(2); 34 CFR § 300.511(e); 8 NYCRR § 200.5(j)(1)(i); Somoza v. New York City Dept. of Educ., 538 F.3d 106, being complained of by Parents. DOE did not challenge either DPC for sufficiency. As such, I must deem the DPC sufficient (34 CFR 300.508[d][1]) and, further, I find that it put DOE fairly on notice of the issues that would be determined at hearing. 114-15 & n.8 (2d Cir. 2008). Since an IDEA claim accrues when a parent knew or should have known about the claim, “[d]etermining when a parent knew or should have known is necessarily a fact-specific inquiry.” K.C. ex rel. J.C.T. v. Chappaqua Cent. Sch. Dist., 2018 WL 4757965, at 14 (SDNY 2018) (internal citation and quotation marks omitted).

Congress did not intend the IDEA's statute of limitations to be governed by a strict occurrence rule. G.L. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3d Cir. 2015). Both § 1415(b)(6)(B) and § 1415(f)(3)(C) include language regarding the date on which the parent or agency "knew or should have known about the alleged action that forms the basis of the complaint," not the date on which the action occurred. § 1415(b)(6)(B), (f)(3)(C); Avila v. Spokane Sch. Dist. 81, 852 F.3d 936 (9th Cir. 2107). If Congress intended a strict occurrence rule, there would have been no need to include the "knew or should have known" language in § 1415(b)(6)(B) and § 1415(f)(3)(C). Thus, the statute of limitations for IDEA claims begins to run not when the injury has occurred, but when the parent “knew or should have known” of the injury. Once the known or should have known date is established, the claim is ripe for judicial adjudication and the two-year statute of limitations begins to accrue from that date.

On March 7, 2020, due to the unprecedented COVID-19 pandemic, New York State Governor Cuomo signed Executive Order (“EO”) 202.8, which was subsequently extended by a series of EOs, which both on their face and following judicial interpretation, had the effect of tolling, rather than suspending, all statutory timeframes through November 3, 2020. See Brash v. Richards, 195 A.D.3d 582 (2nd Dept., 2021); Matter of Roach v. Cornell Univ., 207 A.D.3d 931 (3rd Dept., 2022). The effect of the tolling depends on the facts, but, essentially, the 241 days from March 7, 2020, to November 3, 2020, cannot be counted against the party bringing a claim.

The IDEA’s statute of limitations is treated as an affirmative defense in New York. M.G. v. NYC Dept of Educ., 62 IDELR 195 (SDNY 2014). Accordingly, the DOE has the burden of proving that the statute of limitations bars Parents’ claims. As an affirmative defense, the statute of limitations is considered waived if not raised at the initial administrative proceeding. Typically, factual development beyond mere pleadings is required to use this affirmative defense. Wong v. State Department of Education, 71 IDELR 128 (D. Conn. 2018), citing, In re S. African Apartheid Litig., 617 F. Supp 2d 228, 287 (EDNY 2009).

There are two tolling exceptions to the two-year statute of limitations period in the IDEA. A claim will not be considered untimely if “the parent was prevented from requesting the hearing due to (i) specific misrepresentations by the local education agency that it had resolved the problem forming the basis of the complaint, or (ii) the local educational agency’s withholding of information from the parent that is required to be provided under the IDEA. 20 USC § 1415(f)(3)(D).” K.H. v. New York City Dep't of Educ., 2014 WL 3866430 (EDNY 2014).

“A copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents only one time a year.” 20 USC 1415(d)(1)(a). Procedural safeguards may be posted on a public website. 20 USC 1415(d)(1)(b). I do not agree with DOE that simply posting procedural safeguards instead of providing an actual copy of them or evidence that Parent was provided with them is sufficient to satisfy the requirements of the IDEA.

Here, DOE filed a Motion to Dismiss all claims related to the 2018-2019 school year as being time barred under the IDEA’s Statute of Limitations. D-23. DOE argued that Parents knew or should have known of the basis of the dispute for the 2018-2019 school year at least as of 11/30/2018 because, by that date, Student had been removed from school and Parents had already realized the need to obtain private services to supplement DOE’s failure to provide adequate programming for Student. D-23-5. In addition, the record made clear that Parents had an educational advocate at that time. Parents were aware of Private ABA Provider’s recommendation that Student be instructed using ABA principles by January 2019 at latest. And, Parent had been directed to the DOE’s website or to call a DOE representative to obtain a copy of the procedural safeguards through the prior written notice Parent received 3/1/2019.

DOE failed to provide an actual copy of the procedural safeguards to Parents. The procedural safeguards are information that must be provided to a parent under the IDEA. Despite this blatant violation of the IDEA, I find that this violation did not prevent Parents from requesting a due process hearing. 20 USC 1415(f)(3)(D). I make this finding because by 3/1/2019, Parents were aware that Student was not attending school or receiving special education supports; Parents had an educational advocate (P-BBB-9); Parents were aware of Student’s problematic behaviors; Parents were aware of the potential benefit of Student receiving instruction following ABA principles; and, Parents had at least been directed to where procedural safeguards could be found. I find that Parents knew or should have known of the issues that give rise to their complaint regarding the 2018-2019 school year as of 3/1/2019. Accordingly, these claims are barred by the IDEA’s statute of limitations. To be clear, if Parents’ claims were not prohibited by the statute of limitations, I would find that DOE denied Student a FAPE for the 2018-2019 school year by not providing any special education or related services to Student for five months of the school year, by not adequately addressing Student’s behavioral and social-emotional needs, and by recommending academic programs that were clearly inappropriate for him. With that said, I would not order reimbursement for the services Parents obtained during the 2018-2019 school year and, instead, would order a different compensatory award. Parents did not establish that Care Giver provided educational services given Care Giver’s testimony that Care Giver was Student’s “babysitter.” Private Tutor’s testimony was incredible. And, there is no record of invoices, qualifications, providers, type of service, or any other information for Private ABA Agency 2 despite Parent 1’s testimony that invoices were submitted. Under my equitable authority, I would deny reimbursement for any of these services and would order a separate compensatory award if the claims for 2018-2019 were not barred by the statute of limitations. Statute of Limitations 2019 – March 2020 Parent’s claims from the beginning of the 2019 – 2020 school year until the 3/6/2020 IEP (D-17) are barred by the statute of limitations. At the beginning of the 2019-2020 school year, Student was attending NPS 1, and Parents were aware, as of the end of the 2018-2019 school year, that NPS 1 was inappropriate for Student. DOE again failed to provide Parents with a copy of the procedural safeguards. However, Parents had an educational advocate; Parents had been explicitly told by DOE that NPS 1 was inappropriate; Parents were aware that Student would benefit from instruction using the principles of ABA and repeatedly requested such instruction from NPS 1; and Parents were aware that Student’s behavioral and social-emotional needs were not being met at NPS 1. These are the same issues that Parents raise in their DPC. I find that Parents knew or should have known of the issues they complain of related to the 2019-2020 school year (that occurred before the 3/6/2020 IEP) as of 8/1/2019 despite DOE’s failure to provide Parents with procedural safeguards as this failure did not prevent Parents from filing a complaint. Again, if Parents’ claims were not barred by the statute of limitations, I would find that DOE denied Student a FAPE for the 2019-2020 school year. NPS 1 acknowledged that it was an inappropriate placement for Student. D-17-35. I would not award reimbursement for services from Care Giver or Private ABA Agency 2 for the reasons noted previously. Statute of Limitations March 2020 – July 2020 An IEP was developed for Student on 3/6/2020. Certain of Parents’ claims related to the 2019-2020 school year are based on this IEP being inappropriate. I find that Parents knew or should have known of the issues with Student’s 3/6/2020 IEP as of 3/6/2020. Even with this, tolling means that claims related to this IEP could be brought until November 2022. The original DPC was filed on 8/18/2022, so these claims were timely made.

FAPE:

2019 – 2020 (from March 2020 through the end of the school year)

As to whether the DOE provided Student a FAPE for the remainder of the 2019-2020 school year, DOE failed to meet its burden at the hearing. According to the Supreme Court, “a reviewing court may fairly expect [public] authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 404 (2017).

As noted above, Student attended NPS 1 during this period, from March 2020 to July 2020. Despite that, in the 3/6/2020 IEP, the IEP team notes, “[Student] is currently a student at [NPS 1]. He continues to require an NPS Day Treatment facility to meet his needs, but one that addresses the needs of children with Autism more specifically than [NPS 1].” D-17-35. DOE offered no evidence other than CSE Supervisor’s blanket statement Student was offered a FAPE in each IEP to support its claim that Student received a FAPE (which, in this instance, is directly contradicted by other evidence presented by the DOE). D-24-11. Given DOE’s admission in the 3/6/2020 IEP that Student was in an inappropriate educational placement and given DOE’s failure to rebut Parents’ allegations regarding why the services offered to Student from March 2020 through July 2020 were inappropriate, I find that the DOE denied Student a FAPE from March 2020 through the end of the 2019-2020 school year. J.L. ex rel. J.R. v. New York City Dept. of Educ., 2016 WL 6902137, at *5-6 (EDNY 2016) (finding that given the objections to the recommended program raised by the student’s parent, it was error to determine that an IEP was sufficient based solely on its contents, without testimony or documentary evidence to explain why the IEP’s recommended program would offer the student “an opportunity greater than mere trivial advancement”, why it would meet the student’s unique needs, and why it was reasonably calculated to enable the student to receive educational benefit).

FAPE: 2020-2021

As to whether the DOE provided Student a FAPE for the 2020-2021 school year, DOE failed to meet its burden at the hearing. According to the Supreme Court, “a reviewing court may fairly expect [public] authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 404 (2017).

DOE provided no witness with first-hand information about why the program offered by DOE was appropriate for Student. Indeed, again, it appears that DOE effectively conceded that Student was in an inappropriate program, at least until 4/5/2023, by having Student continue to attend NPS 1 despite the statement in the 3/6/2020 IEP that NPS 1 did not meet his needs. Based only on the 3/18/2021 IEP, Student appeared to make some progress from October to March of the 2020-2021 school year, but this is not sufficient to explain why the program was appropriate for Student. J.L. ex rel. J.R. v. New York City Dept. of Educ., 2016 WL 6902137, at *5-6 (EDNY 2016).

After 4/5/2021, at NPS 2, Student’s behavior took a dramatic turn for the worse. Student’s behavioral and social-emotional needs were clearly not being met by NPS 2, which led to significant consequences for Student.

Parents alleged that Student required ABA instruction. While DOE did not explicitly agree, it appears that DOE attempted to provide this to Student by transferring him to NPS 2, which offered ABA instruction and had an LCBA on staff. However, Student still did not receive ABA instruction. Generally, an IEP need not specify a particular instructional methodology. Rowley, 458 U.S. at 204 (1982); R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 (2d Cir. 2014); A.S. v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 (2d Cir. 2014); K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 (2d Cir. July 24, 2013). However, “when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide services consistent with that consensus is not ‘reasonably calculated to enable the child to receive educational benefits.’” A.M. v. New York City Dept. of Educ., 845 F.3d 523, 543 (2d Cir. 2017) citing R.E. v. New York City Dept. of Educ., 694 F.3d 167 (2d Cir. 2012) and C.F. v. New York City Dept. of Educ., 746 F.3d 68 (2d Cir. 2014). If the evaluative materials before the CSE recommend a particular methodology, 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). The fact that some reports or evaluative materials do not mention a specific teaching methodology does not negate the "clear consensus." R.E. v. New York City Dept. of Educ., 694 F.3d 167, 194 (2d Cir. 2012).

At the time of the 3/18/2021 IEP meeting, Private ABA Provider had conducted an FBA of Student, at the behest of DOE, that was completed in January 2019. P-D-4. Student had undergone a Psychiatric Evaluation on 12/5/2019 (P-X) and an Autism Evaluation on 12/18/2020 (P-Y). No mention is made of these evaluations at the 3/18/2021 IEP meeting. It is not clear whether they were provided to the DOE upon completion. Despite that, DOE had limited evaluative data to rely upon outside of Private ABA Provider’s FBA and Parents’ request for ABA services. I find that there was a “clear consensus” that Student should have been mandated to receive some level of instruction using the principles of ABA and that Student was denied a FAPE by DOE’s refusal to include that in his educational programming during the 2020-2021 school year.

Overall, I find that Student was denied a FAPE for the 2020-2021 school year.

FAPE: 2021-2022

As to whether the DOE provided Student a FAPE for the 2021-2022 school year, DOE failed to meet its burden at the hearing. According to the Supreme Court, “a reviewing court may fairly expect [public] authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 404 (2017).

While there is no evidence that the IEPs in place for the 2021-2022 school year were appropriate for Student, CSE Supervisor agreed that the DOE did not provide any of the services in those IEPs to Student during the 2021-2022 school year. Instead, DOE provided no services at all to Student until March 2022 and, after that, six hours a week of home and hospital instruction for the remainder of the school year. DOE introduced no evidence to suggest that Parents were preventing Student from attending school (there is some suggestion that Parents did not agree with NPS 2’s safety plan and prohibited Student from returning until that issue was resolved, but NPS 2 had no intention of permitting Student to return to school based on NPS 2 Principal’s email. P-J.). In fact, the evidence suggests that Parents pled with the DOE for months to come up with a plan and placement that would work for Student. Student effectively did not attend school or receive any instruction from the DOE between July 2021 and March 2022. P-B-10; D24-4; D-10-1; Tr.179. Student was denied a FAPE for the 2021-2022 school year.

FAPE: 2022-2023

As to whether the DOE provided Student a FAPE for the 2022-2023 school year, DOE failed to meet its burden at the hearing. According to the Supreme Court, “a reviewing court may fairly expect [public] authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 404 (2017).

CSE Supervisor attended the 8/17/2022 (D-10) and 11/8/2022 (D-2) IEP meetings. However, CSE Supervisor offered no explanation for why these IEPs would be appropriate for Student. Further, neither IEP was ever implemented. DOE introduced evidence showing that no NPS school accepted Student for the 2022-2023 school year. D-4 to D-9. CSE Supervisor did agree that Student should receive some level of compensatory services for learning loss related to COVID. D-24-10.

DOE’s Attorney argued that “the CSE did all that was within their power to do; the student’s violent behaviors made it impossible to place him at an NPS. Thus, all Parents’ requested relief for this school year should be denied … because of impossibility.” IHO-II-5. DOE Attorney cited no law or facts to support this contention. I reject it. DOE had an obligation to provide educational services to this Student. I particularly do not understand DOE’s argument as there is limited evidence of Student being suspended or removed from a school for disciplinary reasons in the hearing record. Similarly, there is no indication that DOE tried a different approach to ensure that Student could receive educational benefit.

Overall, while CSE Supervisor stated that DOE offered Student a FAPE, DOE’s Attorney acknowledged that no services were provided to Student for 2022-2023 and that I should deny Parents’ claim due to “impossibility.” Accordingly, I find that Student was denied a FAPE for the 2022-2023 school year. J.L. ex rel. J.R. v. New York City Dept. of Educ., 2016 WL 6902137, at *5-6 (EDNY 2016).

Prospective Program

Parents requested that I order the DOE to revise the Student’s IEP to recommend an NPS residential program “that provides ABA instruction, behavior therapy, and that has a [BCBA/LBA] on staff.” IHO-III-27.

The IDEA regulations state that a district must provide a residential placement to a student with a disability at no cost to the parents if such a placement is necessary to provide the student with special education and related services. 34 C.F.R. § 300.104. According to the Second Circuit, the state must fund a residential program for a disabled child when it is necessary for the child to make meaningful educational progress. Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114 (2d Cir. 1997).

Courts have held that “when the medical, social or emotional problems that require [a residential setting] create or are intertwined with the educational problem, the states remain responsible for the costs of the residential placement.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d at 1120 (2d Cir. 1997). (internal quotation marks and citation omitted). As a result, the key question is “whether the student's conduct outside of the school building and outside the normal hours of the school day is such that it impedes [the student’s] ability to derive an academic benefit from a day program.” M.H. v. Monroe-Woodbury Cent. School. Dist., 296 Fed. Appx. 126, 128 (2d Cir. 2008).

The IDEA expresses a clear preference for students to be educated alongside their non-disabled peers. The IDEA’s regulations require that school districts ensure that “[t]o the maximum extent appropriate, children with disabilities…are educated with children who are nondisabled” and that “[s]pecial classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 34 C.F.R. § 300.114. As such, the Second Circuit has observed that “[w]hile some children’s disabilities may indeed be so acute as to require that they be educated in residential facilities, it is appropriate to proceed cautiously whenever considering such highly restrictive placements.” Walzcak, 142 F.3d at 132 (2d Cir. 1998).

Courts in the Second Circuit are hesitant to find that a student requires a residential placement to receive a FAPE without clear evidence indicating that such a placement is the child’s only means of achieving academic progress. C.T. v Croton-Harmon Union Free Sch. Dist., 812 F Supp 2d 420, 433 (SDNY 2011). “In general, the Second Circuit requires that a court point to objective evidence of a child’s regression in a day-program before finding that a residential placement is required by the IDEA.” M.H. ex rel. A.H., 296 Fed. Appx. at 128 (denying reimbursement for a residential program where there was no evidence of regression in the child’s day program and no expert testimony supporting the parents’ fears of relapse).

In this case, the DOE did not carry its burden of showing that Student could progress academically, behaviorally, or socially, or that he could stabilize his health in an NPS Day program. Indeed, Student’s behaviors became dramatically worse when he was enrolled in an NPS Day program. DOE conceded that a residential placement is appropriate for Student in DOE’s closing brief. IHO-II-5 (“A meeting was held on July 27, 2023, during which such placement [at a New York State-approved Residential Facility] was approved and deferred to the CBST.”).

Recently, in Application of a Student with a Disability, Appeal No. 23-059, the SRO noted an IHO should only authorize a prospective placement in narrow circumstances. SRO 23-059 *16. However, in Appeal No. 23-059, the SRO did order a prospective placement because the school district had failed to implement ABA services for a student despite such services being recommended by several sources and despite being ordered to implement such services in a prior unappealed FOFD. SRO 23-059 *17. While this case does not involve a prior unappealed FOFD, I find that the facts and circumstances are similar. Specifically, in this case, Student has failed to make academic progress since March 2020 and the DOE has known or should have known that Student requires ABA instruction. Also, as in Appeal No. 23-059, it is not clear that the DOE can provide ABA programming as required for this Student without a specific order. SRO 23-059 *17.

Given that the parties agree that Student requires placement in a residential program, I will order it. I did not receive a copy of the 6/27/2023 IEP. However, I will follow Parents’ request and order that the residential program must offer ABA instruction, behavior therapy, and have a BCBA or LBA on staff. I will leave it up to the IEP team to determine the extent to which these services should be mandated. It is my intention to not delay the process of having the CBST locate a placement for at an appropriate residential facility. Accordingly, I am not ordering the IEP team to develop a new IEP. Instead, I am ordering the IEP team to amend the IEP to clarify, where the IEP indicates the management needs of Student, that Student must receive ABA instruction, behavior therapy, and attend a program with a BCBA or LBA on staff. I am ordering this amendment to be completed within ten days of issuance of this order. I am ordering the CBST to locate a residential program meeting these criteria within twenty days of issuance of this order.

Compensatory Services

Parent further requested compensatory services to compensate Student for the denial of FAPE. 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. “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 fn.2 (2d Cir. 2008). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme, 790 F.3d at 454. Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more – they must compensate,” and “hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program.’” Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 522, 525 (D.C. Cir. 2005) (emphasis in original). “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.” Reid, 401 F.3d at 522 (citations omitted). Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” Reid, 401 F.3d at 518; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that “[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act”).

There are generally two approaches to fashioning a compensatory education award, viz, the “quantitative” approach followed in the Third Circuit. See, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996) (holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation), and the “qualitative” approach relied on by the 6th and D.C. Circuits. See, e.g., Reid, 401 F.3d at 518, 524 (requiring a flexible, fact-specific approach in which the award relies “on individual assessments” and is “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.”).

The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion,” so long as “the relief is [] appropriate in light of the purpose of the Act.” Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 (2d Cir. 2016); see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008) (noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated”, and awarding compensatory relief equal to the amount of time the student was deprived of services). In calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP] or encompass analogous educational services appropriate to the Student’s current’s needs;” however, the ultimate award “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Doe. V. East Lyme, 790 F.3d at 457) (internal citations omitted).

Under New York law, the DOE has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA. NY Educ. Law § 4404(1). It is “incumbent on the district to develop the hearing record to establish the appropriate amount of relief needed to remediate the district’s failure.” Application of the New York City Department of Education, Appeal No. 14-014 (SRO 2014). “It is not persuasive for the district to simply fault the parent’s request for relief without also explaining its own view of what type of compensatory education relief would be appropriate to remediate the district’s failure to provide the student with a FAPE.” Application of the New York City Department of Education, Appeal No. 14-014 (SRO 2014). DOE failed to carry its burden on this issue. DOE presented evidence that suggested that DOE agreed that Student should receive 230 hours of SETSS services to make up for COVID-related educational loss. However, DOE did not explain how they came up with this calculation or explain what relief Student should receive for the other times when he was denied a FAPE. In opening, DOE’s Attorney argued, “no matter what the IHO awards in compensatory education or as a placement, or as a temporary holding measure, they will not benefit [Student]. As discussed earlier, [Student’s] behaviors are so aggressive and so violent that providers and teachers will not work with him, and schools will not accept him. The DOE’s hands are ultimately tied.” Tr.60. DOE’s Attorney continued to argue that I should apply a “best interest of the child” standard when considering compensatory relief. Tr.61. Effectively, DOE’s Attorney failed to put forward a coherent position regarding what remedies I should order to compensate Student for DOE’s years-long denial of a FAPE.

However, Parents have a responsibility to identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE. 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).

Parents request that I apply a quantitative analysis. IHO-III-29,30 (following an hour for hour analysis). Parents largely presented evidence that was forward-looking; i.e., Private Psychologist testified that Student will require 28 hours of ABA instruction per week until an appropriate placement is located and that Student receive 21 hours of ABA instruction per week after an appropriate placement is located. P-C-3. Private Psychologist testified that Student can respond to treatment and that at least three hours a day of ABA services would provide a foundation for Student’s behaviors to improve. P-C-3. Private ABA Provider testified that Student would require ten hours of after school ABA instruction with 2 hours of BCBA/LBA supervision. P-D-7. Private ABA Provider testified that a bank of compensatory services is necessary but failed to indicate what those services should be. P-D-7. Student’s Psychological and Psychiatric Evaluation merely recommends that Student receive full-time specialized instruction for twelve-months and be directly instructed in adaptive living skills. P-W-20. Student’s Psychiatric Evaluation recommended that Student receiving programming that utilizes ABA at school and 10 hours of in-home ABA teaching. P-X-5. Student’s Autism Evaluation makes the same recommendation as the Psychiatric Evaluation. P-Y.

Parents requested 303.1 hours of SETSS as compensatory relief for the 2018-2019 school year. IHO-III-29. Parents requested 460 hours of “ABA/SETSS” as compensatory relief for the 2019-2020 school year. IHO-III-29. Parents requested 460 hours of “ABA/SETSS” as compensatory relief for the 2020-2021 school year (ten hours a week). IHO-III-29. Parents requested 920 hours of “ABA SETTS” (sic) for the 2021-2022 school year based on Private ABA Provider’s testimony that Student should receive 20 hours a week of ABA instruction when not attending school (which was Private ABA Provider’s “awaiting placement” recommendation). Parents requested 1,060 hours of “ABA/SETSS” for 2022-2023 based on missed home-based instruction and missed instruction during the 2022-2023 school year.

I will follow a quantitative analysis, as proposed by Parents. Private ABA Provider has suggested that Student responds well to ABA instruction. P-D. I understand Parents’ reference to ABA/SETSS to mean specialized instruction following ABA principles by a qualified ABA provider given that Parents also state that they are seeking “3,203 hours of compensatory education in the form of ABA instruction.” Student was clearly denied educational services for large portions of the 2019-2020, 2020-2021, 2021-2022, and 2022-2023 school years. Private ABA Provider, Private Psychologist, the Psychiatric Evaluation, and the Autism Evaluation all generally agree that Students’ behavioral, social-emotional, and academic needs would be met if he is provided with, generally, approximately twenty hours a week of ABA instruction and some level of at-home ABA instruction. Parents requested only ten hours a week for the 2019-2020 and 2020-2021 school years because Student was, at least, receiving some instruction during these school years. While these recommendations are forward-looking, they are instructive to determine what will remedy DOE’s denial of a FAPE to Student.

Parents’ claims before March 2020 are barred by the statute of limitations. Accordingly, I will not award compensatory relief for 2018-2019. For 2019-2020, Parents are seeking compensatory relief of ten hours per week for the entire school year. Following that logic, I award 160 hours of ABA instruction to cover the period from March to June 2020. For 2020-2021, I award 460 hours of ABA instruction. For 2021-2022, I award 920 hours of ABA instruction. For 2022-2023, I award 1,060 hours of ABA instruction (the additional hours are to make up for the lack of home and hospital instruction.). In total, I am awarding 2,600 hours of ABA instruction. I am also ordering DOE to provide the 138 hours of SETSS in ELA, 92 hours of SETSS in Math, 23 hours of individual Counseling, and 23 hours of individual SLT recommended in the 8/17/2022 IEP. D-2-25.

Parents are also seeking reimbursement for certain privately obtained services. IHO-III-9,10. For 2018-2019, Parents are seeking $4,000 for Care Giver and $6,720 for Private Tutor. I decline to award reimbursement as claims for this year are barred by the statute of limitations. Further, I find that Care Giver was simply Student’s babysitter and did not provide educational services. I find Private Tutor’s testimony to be incredible. So, even if the statute of limitations did not bar reimbursement, I would decline to order it under my equitable authority. For 2019-2020, Parents seek reimbursement of $1,475 for ABA provided by Private ABA Agency 2. There is no evidence in the record to suggest what this provider did for Student. Also, the time where these services were provided is barred by the statute of limitations. I decline to order reimbursement. For 2020-2021, Parents seek $18,000 for Care Giver, which I decline to award. Parents also seek $7,200 for Private Behavior Technician. No credentials were provided for Private Behavior Technician and no information regarding the services Private Behavior Technician rendered (such as when, what methodology was used) was provided. Accordingly, under my equitable authority, I decline to order reimbursement. For 2021-2022, Parents seek $10,800 for Care Giver, which I decline to award. Parents seek $17,280 for Private Behavior Technician, which I decline to award. For 2022-2023, Parents’ Representative noted “ongoing costs unknown” for all services Parents obtained. Accordingly, I am not awarding reimbursement for any of these services. If any of these services qualify as ABA instruction, then the service provider can be reimbursed for them from my compensatory award.

By comparison, Parents seek $1,300 for Private BCBA, who provided credentials and gave general dates of service, so I am awarding reimbursement. Parents also seek $4,950 for Private ABA Provider, which I will award as these are services provided by Private ABA Provider, who demonstrated that she is highly qualified, utilizes a methodology shown to assist Student, and there is documentation of when she worked with Student.

I will note that Parents’ Representative requested that I apply a Burlington/Carter analysis for these services. I decline to do so as this is not a tuition reimbursement case, and I understand that Parents were seeking compensatory services.

Awaiting Placement

The evidence at the due process hearing clearly demonstrated that Student has not received sufficient services during the periods when he is “awaiting placement.” There was extended delay in getting Student home and hospital instruction. Student should have been in an NPS this year, but it appears that one was never located for him. Accordingly, I find it necessary to order “awaiting placement” services for Student as sought by Parents. I am ordering this based on the uncontroverted recommendations of Private ABA Provider and Private Psychologist that Student should be receiving ABA instruction until such time as an appropriate program can be located. Until such time as Student is enrolled in a NPS residential program offering ABA instruction, behavioral therapy, and that has an BCBA/LBA on staff, DOE shall fund: (1) ABA services (at a location of Parents’ choosing) for twenty-five (25) hours per week to be provided by a qualified provider of Parents’ choosing and supervised by a qualified

BCBA/LBA at reasonable market rate; (2) A behavioral-support paraprofessional for twenty-five (25) hours per week to be provided by a qualified provider of Parents’ choosing at a reasonable market rate; (3) PCAT for three (3) hours a week to be provided by a qualified provider of Parents’ choosing at a reasonable market rate; (4) Indirect SETSS for (2) two hours a week to be provided by a qualified provider of Parents’ choosing at a reasonable market rate; (5) Counseling for one (1) hour per week by a qualified provider of Parents’ choosing at a reasonable market rate; (6) OT for one (1) hour per week by a qualified provider of Parents’ choosing at a reasonable market rate; and , (7) SLT for one and a half (1.5) hours per week by a qualified provider of Parents’ choosing at a reasonable market rate. Any services provided while Student is awaiting placement shall not count against the bank of compensatory services. However, awaiting placement services are not intended to last indefinitely. Awaiting placement services will end, regardless of whether Student is in a residential program as ordered, on 6/30/2024.

Expiration of Bank of Services

Parent requested that the bank of compensatory services not have an expiration date. Given that I am ordering Student to receive a more supportive placement next year and many hours of compensatory services, I am not inclined to grant Parent’s request. In Application of a Student with a Disability, Appeal No. 23-080, the SRO recently ruled an award designed to make a student whole for a FAPE denial of one year should expire after two years and “should not exist into perpetuity.” SRO 23-080 *15(fn.10) (SRO 2023). With this guidance, I am ordering that the bank of services shall expire after five years.

For the reasons explained above, I find that the record supports the Parents’ request for the compensatory services, and I order the services as outlined below.

ORDER

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

1. Within 10 days of the date of this Order, the DOE shall amend Student’s most recent IEP such that:

a. The IEP indicates that Student must receive ABA instruction, behavior therapy, and attend a program with a BCBA or LBA on staff. The IEP team may determine the amount of ABA instruction and behavior therapy that Student is mandated to receive.

2. Within 20 days of the date of this Order, the CBST must locate a residential program that will provide ABA instruction, behavior therapy, and that has a BCBA or LBA on staff for Student to attend.

3. Until such time as Student is enrolled in a program described in 2 above but at no time after 6/30/2024, the DOE shall fund:

a. ABA services (at a location of Parents’ choosing) for twenty-five (25) hours per week to be provided by a qualified provider of Parents’ choosing and supervised by a qualified

BCBA/LBA at a reasonable market rate; b. A behavioral-support paraprofessional for twenty-five (25) hours per week to be provided by a qualified provider of Parents’ choosing at a reasonable market rate; c. PCAT for three (3) hours a week to be provided by a qualified provider of Parents’ choosing at a reasonable market rate; d. Indirect SETSS for (2) two hours a week to be provided by a qualified provider of Parents’ choosing at a reasonable market rate; e. Counseling for one (1) hour per week by a qualified provider of Parents’ choosing at a reasonable market rate; f. OT for one (1) hour per week by a qualified provider of Parents’ choosing at a reasonable market rate; and , g. SLT for one and a half (1.5) hours per week by a qualified provider of Parents’ choosing at a reasonable market rate.

4. The DOE shall fund Student with a bank of 2,600 hours of ABA services to be provided by a qualified provider of Parent’s choosing at a reasonable market rate. These services can take place at school, at home, or at a location of Parent’s choosing. The services shall expire on 8/28/2028.

5. Parents may obtain reimbursement for ABA services performed by Private ABA Agency 1 between March 6, 2020, and August 27, 2023, upon submission of invoices, session notes, and an affidavit from Private ABA Agency 1 that the services were rendered. Any reimbursement for such services should subtract from the bank of services referenced in paragraph 4.

6. The DOE shall fund Student with a bank of 138 hours of compensatory individual SETSS in ELA and 92 hours of compensatory individual SETSS in Math to be provided by a licensed special education teacher of Parents’ choosing. The provider shall be paid at a reasonable market rate. The services shall expire on 8/28/2028.

7. The DOE shall fund Student with a bank of 23 hours of individual Counseling to be provided by a licensed therapist of Parents’ choosing. The provider shall be paid at a reasonable market rate.

The services shall expire on 8/28/2028.

8. The DOE shall fund Student with a bank of 23 hours of individual SLT to be provided by a licensed

Speech-Language Pathologist of Parents’ choosing. The provider shall be paid at a reasonable market rate. The services shall expire on 8/28/2028.

9. The DOE shall reimburse Parents in the amount of $1,300 for the Private BCBA services Parents obtained upon submission of an invoice from Private BCBA in that amount.

10. The DOE shall reimburse Parents in the amount of $4,950 for the Private ABA Provider services Parents obtained upon submission of an invoice from Private ABA Provider in that amount.

11. The DOE shall pay the provider(s) for the services in 3, 4, 6, 7, and 8, above, upon receipt of both:

a. Session notes for each session indicating the specific provider’s name, date of service, start and end time of each session, a paragraph describing the skills taught to Student during each session, and measurable data/information regarding Student’s progress during the session.

b. An invoice for the services provided and accompanying sworn affidavit attesting that the services billed for were provided.

12. If the Parents request assistance finding a provider to provide the above services at any time, the DOE must locate a provider who is ready, willing, and able to begin providing the services to Student, according to the terms of this order. If the Parent presents a good faith basis for rejecting a provider, the DOE must locate an additional provider. The DOE shall not be required to identify more than 3 providers in any given 6-month period. Nothing stated here prevents the Parents from locating and utilizing a provider of the Parents’ own choosing.

SO ORDERED.

DATED: 8/28/2023

/s/ William Yukstas_____

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A – REDACTION IDENTIFICATION PAGE [REDACTED]

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Exhibit Document Date Page Notarized Impartial Hearing request. August 18, 2022 16 Pages

B. Testimony by Affidavit: Parent 1 March 1, 2023 12 Pages

C. Testimony by Affidavit: Private Psychologist February 16, 2023 3 Pages

D. Testimony by Affidavit: Private ABA Provider March 6, 2023 7 Pages

E. Affidavits: Verification of Parents Educationally Related Expenditures November 30, 2022 2 pages

F. Affidavit: Verification for Receipt of Payment October 19, 2022 1 Page from Tutor: Private Tutor

G. Affidavit: Verification for Receipt of Payment October 19, 2021 1 Page from Tutor: [REDACTED]

H. Credit Card Activity for ABA and Instructional January 2021- October services I Paid Invoice from Private ABA Agency 1 October 2021, November 2021 2021, December 2021, 7 Pages January 2022, February 2022, March 2022, April 2022, May 2022, June 2022 3 pages

J. Email from NPS 2 discharging Student May 3, 2022 1 Page Emails to and from CSE asking for an IEP Dates ranging from July

K. meeting sent prior to the illegally conducted 28, 2022, through August 25 Pages August 11, 2022, meeting. 10, Email from CSE claiming parent did not want 2022

L. IEP meeting, parents’ response saying that they 2 Pages needed more dates to choose from, CSE supervisor responding that the meeting will be held on a date of mutual convenience. August 17, 2022

M. Email from CSE with illegally developed IEP August 19, 2022 1 Page and parents’ response. Email from Parents’ Representative to CSE Dates ranging from

N. about the illegally conducted IEP meeting, August 17, 2022 through 4 Pages response from the CSE denying that an IEP meeting took place. Email exchange between Parents’ Dates ranging from August 19, 2022

O. Representative and CSE. Parents’ August 17, 2022 through Representative is requesting pendency to HHI while waiting for the CSE meeting, and the CSE denying pendency and any awaiting placement services. Email from CSE admitting to the illegal IEP Dates from August 17, August 19, 2022 4 pages

P. meeting and denying the student’s entitlement 2022-August 19, 2022 4 Pages to pendency. Email exchange with Parents’ Representative

Q. and CSE. Parents’ Representative demanding September 8, 2022. pendency and an IEP meeting, CSE admitting and insisting on attempting to schedule by phone instead of by email which the parent requested numerous times. 4 pages

R. Response to Motion to Dismiss January 31, 2023 76 Pages

S. Email from parent to NPS 2 and CSE requesting Home Instruction, a safe reentry October 19, 2022 1 Page plan and questioning why Student was not renewing ABA when that was the reason he was placed in the school. Emails exchanges from parent to and from September 19, 2021,

T. NPS 2 and the CSE, requesting HHI or remote October 21, 2021, October instruction. 22, 2021, November 3, 2021, November 4, 2021, and Email from parent to the CSE requesting an Sent October 22, 2021, February 4, 2022 23 pages

U. IEP meeting to consider his private evaluations and resent October 26, 6 Pages and the recommendations for ABA and a safe reentry plan back to school. Email requesting specialized bus 2021

V. accommodation with accompanying medical request form. Comprehensive Psychological and Psychiatric January 23, 2020, August October 22, 2021 3 pages

W. Evaluation 12, 2021, October 19, 41 Pages 2021, December 7, 2021

X. Psychiatric Evaluation December 5, 2019 6 Pages

Y. Autism Evaluation December 18, 2020 5 Pages

Z. Psychiatric Follow-Up December 11, 2020 2 pages

AA. Behavioral Evaluation September 30, 2021 3 Pages

BB. Psychoeducational September 28, 2022 5 Pages

CC. IEP November 1, 2022 33 Pages Affidavit: Verification for Receipt of Payment March 2023

DD. from Tutor 1 page

EE. Payment receipt for provider October 16, 2022 1 Pages

FF. Psychiatric Follow-Up March 1, 2021 2 pages

GG. Psychiatric Up-date November 29, 2022 1 page

HH. Updated Testimony by Affidavit: Private May 9, 2023 4 Pages Psychologist

II. Updated Testimony by Affidavit: Private ABA June 3, 2023 7 Pages Provider

JJ. Updated/Rebuttal Testimony by Affidavit: June 28, 2023. 25 Pages Parent Direct and Rebuttal Testimony by Affidavit: 1 page

KK. Parent 2 June 28, 2023 4 pages

LL. Testimony by Affidavit: Private BCBA June 29, 2023 3 Pages

MM. IEP for 2022-2023 school year November 1, 2022 32 Pages

NN. Email from CSE denying holding an IEP August 19, 202 1 Page meeting without the parent. Email explaining process for IEP meeting,

OO. never mentioning a psychoeducational August 10, 2022 1 Page evaluation. Email asking for HHI to continue while

PP. Student had no placement. Email from parent inquiring when HHI and August 9, 2022 1 page

QQ. services will begin and explaining why the NPS 3 was not appropriate for Student. through February 2, 2023 Email to School and CSE inquiring why ABA November 4, 2021 3 pages

RR. is on school website and recommended by the October 19, 2021 1 Page student’s evaluations, but the school is not providing ABA Email from parent with completed HHI form October 19, 21, 2021,

SS. November 3 and 4, 2021 6 pages

TT. Email to CSE with completed HHI application October 21, 2021November 4, 2021 4 Pages Email to Office of HHI insisting that services

UU. begin because Student is being harmed by not receiving any instruction. Email from private ABA agency adding January 18, 2022 February 4, 2022 1 page

VV. members on to the case 2 pages

WW. Email to CSE requesting IEP meeting October 22 and 26, 2021 1 Page Email from advocate explaining the students

XX. right to Pendency to the CSE because they claimed the student had no right to pendency while he waited for placement. Email to CSE explaining that Student had no August 19, 2022 4 pages

YY. school placement to go to and no services or August 9, 2022 1 Page instruction and requesting HHI to continue. Amended Notarized Request for Impartial

ZZ. Hearing May 8, 2023 22 pages

CCC. AAA Email from CSE with recording and transcripts 2Pages from June 23. 2023 IEP meeting (rebuttal) June 23, 2023 Transcripts from June 23, 2023, IEP meeting June 23, 2023 BBB (rebuttal) 12 Pages

8 NYCRR §200.6 (i)- Home and Hospital Instruction May 31, 2021 12 pages

DDD. WITHDRAWN Emails to the office of Home and Hospital EEE Instruction (HHI) inquiring why there was a February ^[8], 2023 12 Pages delay and the emails back from HHI confirming that the CSE never forwarded them the student’s application. (rebuttal) FFF 8 NYCRR §200.22(a)(2) Functional Behavior Assessment, FBA (rebuttal) May 31, 2023 6 Pages NYSED Guidance Document on Conducting GGG an FBA (rebuttal) May 2011 2 Pages

14. Prior Written Notice 06/15/2021 5 pages DOE

15. Individualized Education Program 03/18/2021 38 pages DOE

16. Prior Written Notice 03/18/2021 9 pages DOE

17. Individualized Education Program 03/06/2020 36 pages DOE

18. Individualized Education Program 03/01/2019 29 pages DOE

19. Prior Written Notice 03/01/2019 9 pages DOE

20. Individualized Education Program 06/21/2018 32 pages DOE

21. Prior Written Notice 06/25/2018 32 pages DOE

22. SESIS Events Log Undated 105 pages DOE

23. Motion to Dismiss for the Department of Education 12/20/2022 47 pages DOE

24. WITHDRAWN DOE

25. Affidavit of CSE Supervisor 03/22/2023 7 pages DOE

IHO EXHIBITS

I. Interim Pendency Agreement 9/13/2022 2 pages

II. DOE’s Closing Argument 8/18/2023 6 pages

III. Parents’ Closing Argument 8/18/2023 30 pages

IV. Interim Statement of Agreement and Order on Pendency 11/1/2022 5 pages

V. IHO Email Ruling on Statute of Limitations 2/15/2023 2 pages

VI. Notice of Administrative Reassignment of IHO 4/25/2023 1 page

VII. IHO Email Ruling on Amendment 5/15/2023 1 page

Footnotes

[1] Generic titles will be used throughout this decision. All personally identifying information will be redacted prior to public distribution.

[2] Unless the parties otherwise agreed, the proceedings were interpreted. Multiple interpreters were used successively on certain hearing dates based on interpreter availability, connection issues, or other reasons. Certain interpreters refused to provide their last names during the proceeding; however, all interpreters were sworn and provided identification numbers, which are contained in the hearing record.

[3] Neither party requested an interpreter for this date.

[8] Both parties’ written submissions regarding the statute of limitations are in the hearing record D-23 and P-R. Each motion contains exhibits. These exhibits are repeated in the hearing record.

[9] The due process hearing transcript will be cited as Tr. Page(lines) throughout.

[10] This witness did not appear at the hearing as neither the DOE nor myself had any questions for the witness.

[11] This witness did not appear at the hearing as neither the DOE nor myself had any questions for the witness.

[12] This witness did not appear at the hearing as neither the DOE nor myself had any questions for the witness.

[13] P-A and P-ZZ are both signed and notarized by Parent 1, not Parents’ Representative. Both DPCs use “we” referring to both parents throughout. However, I accept both documents as sworn declarations of Parent 1 given that Parent 1 is the only signee of both documents.

[14] Parent 2’s testimony states, “I am not proficient in English”; however, the affidavit provided is in English and there is no certificate of translation. P-KK-1. Parents’ Representative submitted a rough transcript of a 6/23/2023 IEP meeting where Parent 2 appears to have participated in the meeting fully in English and Parents’ Representative did not request an interpreter. P-BBB.

[15] I asked the parties to provide clarity from the evidence “of what the student was, in fact, doing and receiving at each point in time.” Tr.192. I noted, “it’s a little bit kind of scattered where those things are.” Tr. 192. Accordingly, I asked the parties to “put forward your positions as to what services the child was receiving during each school year, what IEPs were in place during those school years, whether they were appropriate or not, and why.” Tr. 192. Despite this, neither party’s closing argument provided basic details such as what school Student was attending at various points during the school years in question.

[16] Inexplicably, DOE does not provide Parent with an actual copy of procedural safeguards. Instead, the Prior Written Notice given to Parents indicates that a copy of the procedural safeguards is available on the DOE website or attainable by contacting a DOE representative. D-19; D-21. This practice is in contravention with the plain reading of 20 USC § 1415(4), which requires “[a]copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents only 1 time a year.”

[1] time per week; OT, individual, 2 times per week; PCAT, group, 4 times per year; SLT, individual, 2 times per week; and, SLT, group of 5, 2 times per week; and a full-time paraprofessional for behavioral support. D-17-27,28. After the COVID-pandemic necessitated the switch to remote instruction, Student received related services through remote instruction but did not fully participate in remote academic instruction. According to Parent 1, Student needed more attention from his instructors and his behavior declined during this period. P-ZZ-7. Overall, Student continued to demonstrate significant problematic behaviors during the 2019-2020 school year, which were not adequately addressed by the DOE. Student was recommended to receive ABA services by Private ABA Provider, by a Psychiatric Evaluation (P-X), and by Parents, yet only received minimal home-based ABA services as provided by Parents. Student rarely participated and made very little progress with remote instruction. DOE did not call any witnesses nor present any evidence from NPS 1 regarding Student’s progress or performance during the 2019-2020 school year. The only information is from the 3/6/2020 IEP, which, essentially, agrees that NPS 1 was not appropriate as it states that the CBST needed to locate an “appropriate setting.” D-17-35. 2020-2021 Student continued to attend NPS 1 at the beginning of the 2020-2021 school year. According to Parent 1, COVID related issues prevented the CBST from identifying a new placement for Student. P-B- multiplication facts), started to be able to recall information from prior lessons more fluidly, and was able to express more complex thoughts. D-15-3,4. The 3/18/2021 IEP noted that Student’s “significant social

[17] Parents’ Representative argues that Student was not making academic progress during this period because the 3/18/2021 IEP (D-15) suggest that Student’s reading level regressed compared to the 3/6/2020 IEP (D-17). IHO-III-24. For reasons that are not clear, DOE elected to report the score of a test that Student refused to complete in the 3/18/2021 IEP. D-15-1 (“Test taken in less than 15 min., may not accurately reflect true abilities.”). The 3/18/2021 IEP, in its entirety, suggests that Student made limited academic progress when receiving significant individualized attention and when he was able to interact with a smaller group of people. D-15.

[1] demonstrate that all parties believed that Student was making some progress in his social-emotional development at this time. D-13-8 (“[NPS 1] reports that [Student] will comply with teacher. There are no behavioral incidents since September. There is no negative stimuli and no acts of aggression.” D-13-8.) Unfortunately, Student’s behavior became significantly worse after changing schools. P-B-6. Towards the end of the 2020-2021 school year, Student became fixated on a classmate and exhibited compulsive and aggressive behaviors at school and at home. P-B-6. Overall, Student was still experiencing significant problematic behaviors during the 2020-2021 school year. It appears that Student made some academic and social emotional progress from October 2020 to March 2021, when he was able to receive significant individualized attention because only a limited number of other students and staff were present at NPS 1 when he attended school in person (and despite remaining at NPS 1 for an entire school year after NPS 1 was determined to be “inappropriate” in the 3/6/2020 IEP [D-17]). However, there is no evidence that NPS 1 provided Student with instruction guided by ABA principles, or the high level of service outlined in Student’s IEP. D-15-10. Further, it appears that while transferring Student to a new school may have been appropriate to allow Student to receive ABA instruction and the support of a BCBA/LBA, the transition went extremely poorly. Student evidence from this date. The SESIS log entry for this date reflects that Parents, Parents’ Representative,

[18] The names of the individuals who attended this meeting as representatives of NPS 2 / DOE are not included in the record.

[19] Extensive email correspondence was introduced by Parents’ Representative. DOE did not challenge the authenticity of any of the emails or object to their admission. CSE Supervisor testified regarding the contents of several emails, essentially verifying that they reflected communications that took place.

[20] The document that came into evidence appears to be a screen shot of this email. However, I will accept the email as generally reflecting that Parents’ Representative requested that the IEP meeting be rescheduled since Parent 1 affirmed that this email was sent, and DOE did not cross-examine Parent 1 or present conflicting information.

[21] For reasons that are not clear, CSE Supervisor notes that Parents’ Representative did not file for pendency for home and hospital instruction. I guess that CSE Supervisor is alluding to the idea that home and hospital instruction could be approved through pendency without updated medical information. I would note that the original DPC was filed on 8/18/2022. P-A.

[22] Claims related to this IEP are in Parents’ amended DPC. P-ZZ.

[23] P-A and P-ZZ are signed by Parent 1, and I accepted both as sworn statements of Parent 1. Neither DPC includes a section outlining specific issues being raised. Neither DPC includes a laundry list of procedural and substantive violations alleged. However, both include a general recitation of each school year, which, in my reading, fairly informs the DOE of the actions The IDEA states that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A).

[8] NYRCC §200.13(a)(4)(c)&(d) Educational HHH Programs for Students with Autism (rebuttal) May 31, 2021 2 Pages DOE EXHIBITS Exhibit Document Date Pages 1 Due Process Complaint 08/18/2022 19 2 Individualized Education Program 11/08/2022 32 3 Prior Written Notice 11/08/2022 6 4 State Approved NPS Undated 2 Tracking Document 5 Rejection Letter from 11/28/2022 1 NPS 4 6 Rejection Letter from 11/16/2022 1 NPS 5 7 Rejection Letter from 11/16/2022 1 NPS 6 8 Rejection Letter from 11/23/2022 2 NPS 7 9 Rejection Letter from 11/30/2022 1 NPS 8 10 Individualized Education Program 08/17/2022 32 11 Prior Written Notice 08/19/2022 6 12 Social History Assessment 08/11/2022 3 13 Individualized Education Program 06/15/2021 38