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CASE NUMBER: 583492 - NYC: 235213
FINDINGS OF FACT AND DECISION
Student’s Name [1]: REDACTED (“student”)
Date of Birth: REDACTED
School District: NYC # [REDACTED]
Hearing Requested by: REDACTED (“Parents”)
Request Date/Date Complaint Filed: 09/08/2022
Date(s) of Hearing: 05/11/2023
Actual Record Closed Date: 05/17/2023
Date of Decision: 05/18/2023
Date of Distribution if Different than Decision Date: N/A
Hearing Officer: Leah Martin, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/11/2023
For the Student:
REDACTED (“Parents’ Counsel”), REDACTED (“Parent”)
For the Department of Education:
REDACTED (“DOE Representative”)
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC") filed on September [8], 2022. (Ex. A). 2 In the DPC, Parents allege that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) for the 2021-22 and 2022-23 school years. (Ex. A).
I was appointed to hear the matter on October 20, 2022. On October 24, 2022, the parties appeared virtually for a Pre-Hearing Conference (“PHC”). At the PHC, the issues and requested remedies were clarified. (See PHC Summary and Order). 3 Parents requested an immediate interim order for IEEs at the PHC. (Id.). The parties agreed that the IEE request could be settled by written submissions without the need for a hearing, and a motion schedule was set. (Id.). Both parties submitted motions,[4] and an Interim Order on IEEs was issued on November [7], 2022, granting the requested IEEs. 5 (See Interim Order on IEE; Parent IEE Motion; DOE IEE Response). A due process response (“DPR”) was also submitted by the DOE on October 26, 2022. (See DPR). Status conferences were held on November 15, 2022, December 14, 2022, January 19, 2023, February 16, 2023, March 21, 2023, and April [5], 2023, during which time extensions were jointly requested and granted. (See SC Transcripts 11.15.22, 12.14.22, 01.19.23, 02.16.23, 03.21.23, 04.05.23; Orders of Extension 1-6). The ordered IEEs were completed prior to the hearing date. (Ex. I; J; K; L; M).
A virtual due process hearing (“DPH”) was held on May 11, 2023. It was a closed hearing. Parents’ Counsel and DOE Representative were both present, as was the Parent. At the DPH, the DOE entered no exhibits and called no witnesses. (Tr. 5).[6] Parents entered into evidence fifty-six exhibits (A-
DDD) without objection, including testimony affidavits of six witnesses: “Evaluating BCBA” (Ex. XX), 7 “Related Service Provider Director” (Ex. ZZ), 8 “Primary ABA Provider” (Ex. AAA), [9]
2 Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent’s Exhibit A, page 1, will be referred to as (Ex. A-1). 3 The issues certified for hearing were 1) whether the student was denied a FAPE, under the IDEA and 504, for the 2021-22 school year, 2) whether the student was denied a FAPE, under the IDEA and 504, for the 2022-23 school year, 3) whether the DOE failed to timely and fully re-evaluate the student in all areas of suspected disability, 4) whether Parents are entitled to the requested independent educational evaluations (“IEEs”), 5) what, if any, compensatory educational services are appropriate to make up for any FAPE denial during the 2021-22 school year, 6) whether the unilateral placement is appropriate for the 2022-23 school year, 7) whether Parents are entitled to reimbursement for privately obtained at-home applied behavioral analysis (“ABA”) and board-certified behavior analyst (“BCBA”) services during the 2021-22 school year, and 8) whether the equities favor the Parents and their requested remedies. (See PHC Summary and Order). “Evaluating Neuropsychologist” (Ex. BBB), 10 “Private School Classroom Supervisor” (Ex. CCC),[11] and Parent (Ex. DDD). (Tr. 6-9). The DOE Representative had no questions for any of Parents’ witnesses, but the IHO had questions for Parent, so only Parent gave live testimony. (Tr. 10). Openings were waived and oral closing arguments were made on the record. (Tr. 18-27). At the end of the hearing, the IHO requested that Parent provide additional documents to complete the record; one document was provided, which is included in the record as IHO Exhibit i. The record was closed on May 17, after receipt of the hearing transcript.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, NYS Educ. Law §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq., and Section 504 of the Rehabilitation Act, 12 29 U.S.C. §794(a).
BACKGROUND
The student is in kindergarten and is classified as a student with autism. (Ex. A-1). The student was previously identified as a student with a disability and approved for early intervention services by the DOE, but then his family moved to Texas. (Ex. A-2). In September of 2020, the student was evaluated privately and diagnosed with autism spectrum disorder (“ASD”). (Ex. A-2; CC-6). In June of 2021, the student’s family moved back to New York and notified the DOE of his autism diagnosis and the fact that he had been receiving ABA therapy[13] and requested a special education evaluation. (Ex. A-3; i-1; DDD-3).[14] In August and September of 2021, the student was evaluated by the DOE. (Ex. A-3).
On October 15, 2021, the DOE convened a meeting of the committee on preschool special education (“CPSE”)[15] and developed an individualized education program (“IEP”) for the student for the 2021-22 school year. (Ex. A-3; H-1). The CPSE found the student eligible for special education services and recommended placement in an 8:1+2 special class in an approved special education preschool with related services of SLT (2x30x1 and 1x30xgroup), OT (2x30x1), and parent counseling and training (“PCAT”)(60 minutes per month in a group) for the extended school year (“ESY”). (Ex. A-3; H-19-20).[16] The DOE was unable to locate a school or service providers to implement the 10/15/21 IEP, and the student was without public services for the entire 2021-22 school year. (Ex. A-3-4; GG;
10 He is a New York State licensed neuropsychologist with a doctorate in clinical psychology. (Ex. UU).
12 The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504. NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf. HH; II). 17 Between February and June 2022, Parents obtained at-home ABA/BCBA services for the student, through a private provider (“ABA Service Provider”). (Ex. A-4; V).
On June 13, 2022, the DOE convened a meeting of the committee on special education (“CSE”) 18 and developed an IEP for the student for the 2022-23 school year. (Ex. A-4). The CSE classified the student as a student with autism and recommended placement in a 6:1+1 special class in a District 75 school, with related services of counseling (1x30xgroup), OT (2x30x1), SLT (2x30x1 and 1x30xgroup), PCAT (60 minutes per month in a group), and specialized transportation for the ESY. (Ex. A-4; G-18-19, 24). 19
On June 22, 2022, Parents notified the DOE of their disagreement with the student’s evaluations and requested IEEs. (Ex. A-5; C; DDD-10). The DOE did not respond to the IEE request. (Ex. A-5). On August 24, 2022, Parents sent the DOE a Ten-Day Letter, notifying of their concerns with the recommended program and their intention to enroll the student at a private school (“Private School”) and seek reimbursement. (Ex. A-5; B; DDD-11). The DOE did not respond to the Ten-Day Letter. (Ex. DDD-11).
ISSUES
Parents allege that the DOE failed to offer a FAPE, on substantive and procedural grounds, for the 2021-22 and 2022-23 school years (under both the IDEA and 504). (Ex. A-5-9). The DOE has conceded that the student is entitled to special education services under both the IDEA and 504. (See SC Transcript 11.15.22). At hearing, the DOE conceded a denial of a FAPE for both school years at issue. (Tr. 10).
For the 2021-22 school year, Parents are requesting 1) reimbursement for $11,514.53 paid for athome ABA services with BCBA supervision (which is the portion that medical insurance would not pay) rendered between February and June, 2022, 2) 460 hours of compensatory home-based ABA services at a rate of $150 per hour, 3) 92 hours of compensatory home-based BCBA supervision at a rate of $200 per hour, 4) 46 hours of compensatory PCAT at a rate of $200 per hour, 5) 92 hours of compensatory OT at a rate of $180 per hour, 6) 92 hours of compensatory AT student training at a rate of $180 per hour, 7) 115 hours of compensatory AT parent training at a rate of $180 per hour, and 8) 230 hours of compensatory SLT at a rate of $180 per hour. 20 (Tr. 25-26). For the 2022-23 school year, Parents are requesting funding for tuition at the Private School. (Tr. 10, 25). 21 Additionally, Parents are seeking funding for a private sensory integration evaluation, at a rate of $2000. (Tr. 10, 26-27). At hearing, the DOE indicated that the only requested relief that they are disputing is the reimbursement for 17 The closest available program the district could find was a 12:1+2 special class, which was not the program mandated in the IEP and not appropriate for the student. (Ex. A-3; II-1). 18 Parent was present at the meeting. (Ex. G-25). The full attendance page is not in evidence, so it is unclear who all attended the meeting besides Parent and the district representative. (Ex. G-25). 19 The 6/13/22 IEP had an implementation date of September 5, 2022, despite its recommendation for a 12-month program. (Ex. G-18-219). 20 All compensatory services would be provided by a provider of Parents’ choosing (“Related Service Provider” for related services and “Compensatory ABA Provider” for ABA/BCBA and PCAT services) and the rates requested are the providers’ rates. (Tr. 25-26). 21 The DPC additionally requests door-to-door transportation and/or reimbursement for private transportation (Ex. A-11), but this request was not addressed at the hearing so I deem it abandoned and it will not be addressed further. privately obtained ABA/BCBA services during the 2021-22 school year. (Tr. 10-11). Accordingly, there is no dispute as to the appropriateness of the requested compensatory education or the unilateral placement, nor is there any dispute that the equities favor the Parents. Thus, the only issue truly in dispute is the appropriateness of the requested reimbursement for privately obtained ABA/BCBA services.
FINDINGS OF FACT 22
During the 2021-22 school year, when the student was without a public placement or services, Parents contacted the DOE multiple times to attempt to arrange for services, to no avail. (Ex. B-3-4; EE; FF; GG; HH; DDD-5-6).[23] Parents felt they had no choice but to arrange for services on their own. (Ex. B-4). They arranged for home-based services through ABA Service Provider. (Ex. B-4; DDD-6-7). Although the private evaluation conducted in Texas had recommended 20-30 hours of ABA services per week, under BCBA supervision (Ex. CC-6), Parents were only able to afford approximately 10-17 hours of services per week. (Ex. B-4; DDD-7).[24] At-home ABA services began on February 14, 2022, and ended on June 18, 2022. (Ex. A-4; U-16). From February to June 2022, ABA Service Provider provided 170.5 hours of direct ABA instruction, 8.25 hours of PCAT, and 25 hours of BCBA supervision. (Ex. PP).[25] Parents paid $56,031.25 for these services, but were reimbursed $44,525.86 by their medical insurance, so their remaining out of pocket cost is $11,505.39. (Ex. C-2-3; PP; AAA-6; DDD-13-14). [26] The ABA Service Provider assessed the student, reviewed his records, and developed a treatment plan including goals for the student and Parents. (Ex. U; AAA-2-3). All services were provided by either the Primary ABA Provider or another BCBA. (Ex. AAA-3). The student made progress with his at-home ABA program. (Ex. B-4; AAA-4; BBB-6).[27] Examples of goals in which the student progressed include following directions to sit at the table, following one-step directions, identifying pictures, imitating actions with objects, imitating gross motor movements, initiating eye contact, matching identical pictures, pointing to preferred items, reciprocating social greetings, remaining seated at the table, requesting preferred items, responding to a token board, responding to “stop,” and using gestures to communicate. (Ex. V-2-26). [28]
22 Facts contained in the “Introduction and Procedural History” and “Background” sections above are incorporated here as well.
Both the 10/15/21 and 6/12/23 IEPs state that the student’s “verbal processing skills are clearly delayed” and “his difficulty with focus and attention further impair this process.” (Ex. G-1; H-3). They also note that the student was unable to label objects when requested, unable to point to objects in pictures or body parts, unable to make verbal requests or point, unable to sort or match items, unable to understand simple commands, and unable to dress or toilet without help. (Ex. G-1-2; H-3-5). The DOE evaluation (“Preschool Evaluation”)[29] demonstrated that the student’s social, verbal, coping, adaptive, and cognitive skills were delayed. (Ex. G-2, 6; W). During DOE testing, the student ran away several times and had to be retrieved by his mother. (Ex. H-3). The DOE OT evaluation found that the student’s grasping, visual motor, and self-help skills were delayed, but made no program recommendations. (Ex. X-4). The DOE educational evaluation similarly noted the student’s various delays (non-verbal nature, inability to follow simple commands or engage in interactive play, inability to respond to his name, limited adaptive skills, and low frustration tolerance and attention) but made no educational recommendations. (Ex. Y-3-9). The DOE’s speech-language evaluation noted the student’s significant global communication delays but made no educational recommendations. (Ex. Z-6-7). The DOE’s psychological evaluation again noted the student’s various delays and the fact that he meets the diagnostic criteria for ASD, level two, but made no educational recommendations. (Ex. AA).
According to his autism skills assessment,[30] the student “is nonverbal and does not have functional communication skills.” (Ex. I-1). During that assessment, the Evaluating BCBA observed the student at the Private School and noted that he “works well” in their 1:1 instruction and with their “dense reinforcement schedule.” (Ex. I-1). It was noted that he required frequent prompting during group activities, and attempted to elope, but was easily redirected by the ABA instructor. (Ex. I-2). It was further noted that the Private School applies ABA consistently throughout the student’s program. (Ex. I-2). According to this assessment report, the student “requires a highly structured, specialized, full-day ABA program” and “anything less … will result in regression and cause significant harm to the upward trajectory of his skill acquisition.” (Ex. I-5-6; XX-8).[31] The Evaluating BCBA recommended that the student continue at the Private School for the ESY, with an at-home program[32] of 10 hours of individual ABA services per week overseen by a BCBA (eight hours per month).[33] (Ex. I-6; XX-8-9). [34] According to the Evaluating BCBA, the student “is unlikely to receive educational benefit from school in the absence of an at-home ABA program” and would likely regress at school “if behaviors are not remediated in all environments.” (Ex. I-6; XX-9). Evaluating BCBA additionally recommended four hours of PCAT per month “in order to decrease reinforcement of problem behaviors that will carry over into the school and other settings.” (Ex. I-6; XX-10).
According to his Neuropsychological IEE,[35] the student lacks “meaningful expressive speech” and “his variability in attention, reciprocity, and self-regulation remain significant challenges that interfere[] with his ability to complete many tasks even with continuous 1:1 supports.” (Ex. J-2). The student’s full-scale IQ, verbal comprehension, fluid reasoning, and working memory were all found to be in the extremely low range (0.1st percentile or below). (Ex. J-3). The student’s least-developed skill was found to be his processing speed, which was unable to be formally calculated. (Ex. J-3). The student’s adaptive behaviors were found to be well below age level and he was found to exhibit severe symptoms[36] of ASD. (Ex. J-4). Evaluating Neuropsychologist also believes the student requires “a highly specialized, full-time 1:1 educational placement with intense 1:1 ABA direct instruction” as well as “at home ABA” with BCBA supervision on a 12-month basis. (Ex. J-5; BBB-4-5). Evaluating Neuropsychologist recommends continued placement at the Private School. (Ex. J-5). The evaluation report additionally recommended “intense” SLT “to include PROMPT, AAC, 37 OT and sensory interventions, as well as family training and coordination.” (Ex. J-5).
According to his SLT IEE,[38] the student exhibits severe delay in sentence comprehension, linguistic concepts, word structure, word classes, following directions, formulating sentences, recalling sentences, understanding spoken paragraphs, pragmatics profile, and sound-in-words. (Ex. K-3-6). His intelligibility and stimulability could not be assessed since he is non-verbal. (Ex. K-6). Furthermore, the student showed very poor ability in classroom, social, and personal interaction skills and in pragmatic language. (Ex. K-6-7). His receptive and expressive language were also found to be in the significantly low/at-risk range. (Ex. K-7-8). Based on the student’s scores, the evaluator recommended that the student receive SLT on a daily basis (5x30x1) and the use of an AAC device. (Ex. K-9-10).
According to his OT IEE,[39] the student “requires specialized and targeted intervention to increase fine motor strength and coordination,” increase visual processing and discrimination skills, and address his “difficulties in sensory perception, reactivity, and regulation.” (Ex. L-7-8). According to the evaluation report, the student “would benefit from [OT] using Ayers Sensory Integration with a focus on somatosensory processing and praxis. He may also benefit from participating in the Safe and Sound Protocol – a therapeutic listening program through Integrated Listening Systems – to decrease auditory sensitivity and emotional volatility.” (Ex. L-8). The report recommends sensory-based OT (3x45x1). (Ex. L-8).
According to his AT IEE, 40 “with the implementation of technology [the student] demonstrated increased focused, sustained attention, task completion, and overall engagement when participating in
37 AAC stands for Augmentative and Alternative Communication, which is a form of AT device. (Ex. M-9).
40 This was performed by a licensed occupational therapist and AT professional (“AT Evaluator”). (Ex. M-19; TT). all tasks.” (Ex. M-8). According to the AT Evaluator, the student “requires specialized and targeted intervention to improve hand-strengthening and fine motor control” and “would benefit from ongoing learning regarding compensatory strategies such as software with pictorial support, predictive software, grammar and spell checker, supported word processing programs, typing, and other assistive technology interventions.” (Ex. M-8). AT was recommended for executive function and cognition support, socialemotional support, and communication support for enhanced language and communication skills. (Ex. M-10). Additionally recommended was “ongoing and intensive training” for AAC to “bridge the gap from non-verbal skills to functional communication.” (Ex. M-11). A Dynamic Display device was additionally recommended. (Ex. M-11). Specifically, AT Evaluator recommended two iPads, one to be used exclusively as an AAC device[41] with the ProLoquo2Go application, and the other to be loaded with applications to address the student’s deficits in reading, writing, and math. (Ex. M-12-13). The evaluator recommended that Parents and the student’s providers also receive training on the student’s AT devices. (Ex. M-16).
On August 16, 2022, Parents signed an enrollment contract with the Private School for the student’s attendance there during the 2022-23 school year. (Ex. LL). According to the contract, Parents are financially obligated to pay the entire yearly tuition of $140,700 in installments. (Ex. LL). As of December 8, 2022, Parents had paid $72,850 and still owed $67,850. (Ex. NN-1; OO). Additional payments of $13,570 (each) were made in January and February, so as of February, $99,990 has been paid. (Ex. OO-20; DDD-11).
The student has attended the Private School since September 8, 2022. (Ex. N-1; MM-1; Tr. 16). At intake, the Private School assesses its students and develops an individually tailored instructional plan and goals based on the results. (Ex. JJ-2; CCC-4). The student’s program there consists of five hours of individualized 1:1 ABA instruction, and one hour of 2:1 instructional lunch and leisure skills. (Ex. N-1; KK-1; CCC-4). Additionally, he receives related services of SLT (3x30x1, 1x30xgroup in a 1:1 ratio, and 1x30 lunch consultation), and OT (2x30x1, 1x30xgroup in a 1:1 ratio, and 1x30 lunch consultation). (Ex. N-1; P-1; R-1). One of his weekly OT and SLT sessions are co-taught with his classroom teacher to ensure coordination of services. (Ex. N-1). The Private School also collaborates with Parents, including bi-monthly clinical team meetings, weekly class observations, twice yearly home visits, and a monthly workshop series. (Ex. N-1; JJ-7-8; CCC-10). The Private School performed a functional behavior assessment (“FBA”) and developed a behavior intervention plan (“BIP”) for the student, which includes strategies to address elopement and tantrums. (Ex. N-3; T; CCC-11-12). They also developed individual classroom, OT, and SLT goals for the student, which include short term objectives. (Ex. O; Q; S; CCC-4). The student “is provided with opportunities to engage in sensory input throughout the day.” (Ex. P-3). The Private School has a sensory and OT gym. (Ex. P-3-4). They also offer students opportunities to interact with non-disabled peers through various inclusion programs. (Ex. JJ-4; CCC-2). The student has been provided with an AAC device on a trial basis. (Ex. CCC-8-9).
At the Private School, the student receives instruction in “verbal behavior (receptive and expressive communication), social skills, academic skills, community of reinforcers, and selfmanagement behaviors.” (Ex. N-1; see also JJ-2; CCC-5). Data is collected and analyzed regarding the student’s daily performance and his program is adjusted as needed. (Ex. CCC-3).
In OT, the student works on flexibility, frustration tolerance, sensory strategies, following sequential tasks, activities of daily living (“ADL”), gross motor movement, balance and coordination, motor control and awareness, fine motor skills, visual motor skills, visual perceptual skills, visual attention, and graphomotor skills. (Ex. P-3-6). The student’s occupational therapist recommends a continuation of the student’s four weekly OT sessions. (Ex. P-6).
In SLT, the student works on receptive, expressive, and pragmatic language, leisure skills, and speech skills. (Ex. R-1-3). The student has made progress in his SLT goals, including following one-step directions, requesting a highly desired object using a gesture, expanding his expressive language to include sign language, requesting assistance using a gesture, and following one-step actions during structured play. (Ex. R-1-3). The student’s speech pathologist recommends a continuation of his SLT program. (Ex. R-4).
All the Private School’s lead teachers have master’s degrees in special education or ABA and are certified in ABA or special education. (Ex. JJ-4). All the supervisory faculty hold degrees in special education or psychology and are New York licensed BCBAs and LBAs. (Ex. JJ-4). The student’s lead teacher has a master’s in clinical mental health counseling. (Ex. CCC-3). The student’s speech therapist has a master’s in speech language pathology and is licensed in PROMPT[42] and as a speech pathologist; she is also certified to teach students with speech and language disabilities. (Ex. CCC-8). The student’s OT provider has a master’s in OT and is a licensed occupational therapist. (Ex. CCC-9). The Private School staff all receive initial training in “principles of behavior analysis, behavior management, data collection and analysis, as well as other pertinent topics relevant to the education and safety of students.” (Ex. CCC-3). They also receive ongoing training and supervision. (Ex. CCC-4).
The student has made progress in the Private School program, including mastery of matching multiple exemplars with prompts, responding to identify numbers one and two when presented in an array of three, tracing horizontal and vertical lines using a stylus with prompts, identifying the actions eat and drink in pictures with prompts, following the direction to give an item with prompts, imitating gross motor actions with prompts, responding to his name with a gestural prompt, taking turns at a tabletop game with prompts, and washing his hands with prompts. (Ex. N-2-3; CCC-5-8). He has also progressed behaviorally; his tantrum behaviors have decreased in frequency and duration and his elopement has decreased in frequency. (Ex. CCC-10-12). Primary ABA Provider describes the student’s progress at the Private School as “meaningful.” (Ex. AAA-4).
Private School Classroom Supervisor believes the Private School is appropriate to meet the student’s unique needs. (Ex. CCC-14). She recommends that the student continue with a small ABA classroom with 1:1 instruction. (Ex. N-4; CCC-12). Primary ABA Provider agrees and believes that the Private School is appropriate to meet the student’s needs. (Ex. AAA-4). Evaluating BCBA (Ex. I-1-2, 6) and Evaluating Neuropsychologist (Ex. J-5; BBB-4-5) agree. Parents agree that the Private School has provided the supports and services that the student needs. (Ex. DDD-1).
To make up for the denial of services during the 2021-22 school year, Evaluating BCBA recommends a bank of compensatory ABA and BCBA services, including 460 hours of direct ABA services (10 hours per week for 46 weeks), 92 hours of BCBA supervision (2 hours per week for 46 weeks), and 46 hours of PCAT (one hour per week for 46 weeks). (Ex. XX-10-11). Her agency (“Compensatory ABA Provider”) provides direct ABA services at a rate of $150 per hour and BCBA supervision and PCAT at a rate of $200 per hour. (Ex. XX-11). These rates are within the standard market rate in NYC. (Ex. XX-11). Compensatory ABA Provider is available to provide these compensatory services to the student at these rates. (Ex. XX-11). Primary ABA Provider agrees that the student requires compensatory ABA services. (Ex. AAA-4-5).
To make up for the previous denial of AT services, AT Evaluator recommends a bank of compensatory AT training, including 92 hours (two hours per week for 46 weeks) each[43] for the student and Parents, to be implemented by a certified AT professional. (Ex. M-17). According to the evaluator, this is necessary to ensure that the student can use the devices effectively and to ensure carryover across all domains. (Ex. M-17).
In consultation with the AT Evaluator and SLT Evaluator, both of whom work for the same agency (“Related Service Provider”), and after an extensive review of the student’s educational records and Parent interviews, Related Service Provider Director has developed a compensatory services plan to make up for the denial of related services during the 2021-22 school year. (Ex. YY; ZZ-2). She recommends a bank of compensatory hours, including 92 hours of OT (2 hours per week for 46 weeks), 44 92 hours of AT training for the student (2 hours per week for 46 weeks), 45 115 hours of AT training for Parents (2.5 hours per week for 46 weeks), 46 and 230 hours of SLT (2.5 hours weekly for [46] weeks, times two years).[47] (Ex. YY; ZZ-2-3). They have developed a plan for implementation of these compensatory services, in collaboration with the student’s ABA provider. (Ex. YY-17-18). Related Service Provider provides OT, SLT, and AT training services at a rate of $180 per hour. (Ex. ZZ-2-3). These rates are within the standard market rate in NYC. (Ex. ZZ-2-3). Related Service Provider is available to provide these compensatory services to the student at these rates. (Ex. ZZ-2-3, 5). Evaluating Neuropsychologist agrees that the student needs a comprehensive remediation program, including ABA services, BCBA supervision and PCAT, SLT, OT, and AT training, and that all services should be allowed to be used in an integrated fashion. (Ex. BBB-6).
Additionally, Related Service Provider Director recommends a comprehensive Sensory Integration Evaluation, given the student’s sensory-based difficulties. (Ex. YY-9; ZZ-4-5). Related Service Provider can conduct this evaluation at a rate of $2000, which is within the standard market rate in NYC. (Ex. ZZ-5).
44 She agreed with OT Evaluator’s recommendation of 3x45x1 for weekly OT. (Ex. YY-8-9 ,16).
45 She agreed with the AT Evaluator’s recommendations. (Ex. YY-16).
LEGAL FRAMEWORK
IDEA
The IDEA provides that children with disabilities are entitled to a free appropriate public education (“FAPE”). 20 U.S.C. §1400(d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. §300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.” Id. The IEP must be reviewed at least annually [34 C.F.R. §300.324(b)(1)(i)], and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year [8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010)]. To avoid predetermining an IEP, the District must come to the meeting with an “open mind.” T.P. ex rel S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009).
For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dept. of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011). The IDEA requires school districts to provide appropriate education to students with disabilities, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).
When a request is made for evaluation (or re-evaluation) of a student, the school district has 60 calendar days to conduct the initial evaluation [8 NYCRR § 200.4(b)(1),(7)] and 60 school days[48] to develop and implement a program [8 NYCRR §§ 200.4(d) and (e)]. A "school day" is defined as "any day, including a partial day, that students are in attendance at school for instructional purposes. The term school day has the same meaning for all students in school …, except that, during the months of July and August, school days means every day except Saturday, Sunday and legal holidays." 8 N.Y.C.R.R. §200.1(n)(1). Special education programs and services must be provided to a preschool child “as soon as possible” following the development of the IEP, but not later than 30 calendar days from the date of the CPSE’s recommendation. NYS Educ. Law §44l0(5)(e).
The IDEA requires that school districts re-evaluate students with disabilities at least once every three years, unless the parent and the District agree that re-evaluation is unnecessary. 34 C.F.R. §300.303(b). As part of any re-evaluation, the CSE must review existing evaluative data on the student, including any private evaluations, classroom observations, and observations by teachers and service providers, and then conduct further assessments if necessary. 34 C.F.R. §300.305. The failure to conduct further assessments can result in a denial of a FAPE if more information is needed to develop an appropriate IEP. See, e.g., New Mexico Pub. Educ. Dep’t, 115 LRP 12278 (SEA NM 03/02/15); James v. Dist. of Columbia, 68 IDELR 11 (D.D.C. 2016). Under New York regulations, as part of any evaluation or re-evaluation, the school district must administer tests and other assessment that are needed to identify the student’s developmental needs and whether any program or service modifications are needed to enable the student to meet their annual goals and participate in the general curriculum. 8 N.Y.C.R.R. §200.4(b)(5). Such assessments must be “administered by trained and knowledgeable personnel in accordance with the instructions provided by those who developed such assessments,” and include “those tailored to assess specific areas of educational need.” 8 N.Y.C.R.R. §§200.4(b)(6), 200.22(a). “No single measure or assessment is used as the sole criterion … for determining an appropriate educational program for a student,” and the evaluation must be “sufficiently comprehensive to identify all of the student’s special education needs.” Id.
504
Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].” 34 C.F.R. §104.33(a). Under 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.” 34 C.F.R. §104.33(b).
Under Section 504, an individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such impairment, or (iii) is regarded as having an impairment.” 34 C.F.R. §104.3(j)(1). However, only students who have a substantial limitation of a major life activity have a separate entitlement to a FAPE under the statute. 29 U.S.C. §705(20)(B)(i); 42 U.S.C. § 12102(2). Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others. See 28 C.F.R. §35.108(c)(1)(ii). 504 requires that districts reevaluate a student periodically and before any significant change in placement. 34 C.F.R. §104.35(a) and (d). In examining whether a district has failed to provide a FAPE under Section 504, the office of civil rights (“OCR”) considers whether: 1) the district evaluated the student per Section 504 requirements; 2) the student's needs were determined on an individual basis; and 3) the district provided related aids and services necessary to meet the student's individual needs. Mansfield (AR) Pub. Schs., 59 IDELR 265 (OCR 2012).
IEEs
An IEE is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 NYCRR §200.1(z). The IDEA and State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. 20 U.S.C. §1415 (b)(1); 34 C.F.R. § 300.502(b); 8 NYCRR §200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” 546 U.S. 49, 60-61 (2005).
If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE. 8 NYCRR §200.5(g)(1)(i). A school district can set criteria regarding the IEE, including the qualifications of the examiner, but the district’s criteria must be the same as the criteria it uses for its own evaluations, and the district cannot impose additional conditions or timelines related to the IEE. 34 C.F.R. §300.502(e)(1); 8 NYCRR §200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989). For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE [Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011)], nor can it deny an IEE at public expense based solely on financial cost (Letter of OSERS, 2002). A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE. Letter to Carroll, 68 IDELR 279 (OSEP 2016). A school district cannot unilaterally decide what IEE costs are justifiable; if it believes expenses are unreasonable, it must request a due process hearing. Letter to Petska, 35 IDELR 191 (OSEP 2001).
Finally, while the school district may “ask for the parent’s reason why he or she objects to the public evaluation,” the district cannot require an explanation or delay providing the IEE until the parent provides an explanation. 8 N.Y.C.R.R. §200.5(g)(1)(iii). The parents need not provide prior notification of their disagreement or even the areas of their disagreement, although the district can ask. 34 C.F.R. §300.502(b)(4); see also Letter to Zimberlin, 34 IDELR 150 (OSEP 2000); Letter to Lenz, 37 IDELR 95 (OSEP 2002); Letter to Dowaliby, 38 IDELR 14 (OSEP 2002).
When a parent disagrees with a school district’s evaluation and requests an IEE at public expense, the school district “must, without unnecessary delay,” either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 C.F.R. §300.502(b)(2)(i)-(ii); 8 NYCRR §200.5(g)(1)(iv) (emphasis added). The district cannot simply "cure" the parents' concern by completing its own assessment. Letter to Carroll, 68 IDELR 279 (OSEP 2016).
A parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need. D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020); Letter to Baus, 65 IDELR 81 (OSEP 2015); Letter to Carroll, 68 IDELR 279 (OSEP 2016). In Trumbull, the court stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.” Id. The U.S. Department of Education's Office of Special Education Programs (“OSEP”), has similarly stated that when a parent disagrees with an evaluation because a child was not assessed in a particular area, “the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs” Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016).
Relief
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of a FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. Id.
A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).
Compensatory education is an equitable remedy, so principles of equity and fairness come into play and may impact whether compensatory education is awarded or the amount of the award. See, e.g., Garcia v. Bd. of Educ. of Albuquerque Pub. Schs., 49 IDELR 241 (10th Cir. 2008); Application of Student with a Disability, Appeal No. 21-244. Furthermore, a request for compensatory relief may be denied if there is insufficient causal link in the record between any deprivation and the student’s current deficits. See, e.g., Phillips v. Dist. Of Columbia, 932 F. Supp. 2d 42 (D.C. Cir. 2013) (upholding denial where student received a similar level of comparable services during the period of deprivation and there was support in the record for IHO’s conclusion that the student’s current difficulties do not stem from the FAPE denial); T.B. v. Prince George's Cty. Bd. of Educ., 897 F.3d 566 (4th Cir. 2018) (parents failed to prove a loss of educational benefits where teachers showed that when student attended class he performed well and completed assignments); Somberg v. Utica Cmty. Schs., 908 F.3d 162 (6th Cir. 2018) (holding that Endrew F. standard is not applicable to determination of compensatory education and it is appropriate to consider any advancement made by the student in crafting an award, regardless of the substantive appropriateness of the IEP); Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489 (9th Cir. 1994) (denying compensatory education where the student was able to graduate with his class and the parents had declined the district’s offer of extra services).
A board of education may be required to pay for educational services obtained unilaterally by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions (prongs) constitute the Burlington/Carter test.
A unilateral placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)(“[Parents] need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”). Educational progress can be a factor weighing in favor of the appropriateness of a unilateral placement. Frank G., 459 F.3d at 365. To qualify for reimbursement under the IDEA, parents need not show that the unilateral placement is perfect or that it meets all state educational standards. Id. at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).
The IDEA permits awards of direct payment to unilateral placement providers where the parents have not yet made payments but are legally obligated to do so. See Mr. A. ex rel. D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427 (S.D.N.Y. 2011). Under Burlington/Carter, if the parents are financially obligated to pay for the contracted services and have met their prong two burden, the contract must be fully reimbursed or directly funded by the District unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced. See Carter, 510 U.S. at 16 (“Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”); J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).
Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009) In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
Burdens
In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c). Normally, the parents would have the burden of proof under 504. See, e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990). However, on all 504 claims that are subsumed by the IDEA, the District has the burden of proof on all issues regarding the provision of a FAPE.
The DOE has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169. However, just because the DOE does not submit a case does not mean the parent is necessarily entitled to their full requested compensatory remedy. See M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8 (S.D.N.Y. 2017); Application of Student with a Disability, Appeal No. 21-213. Requested hours may be limited if the need for them is inadequately supported by the record, would lead to diminishing returns, or could overwhelm the student. See M.M., 2017 WL 1194685, at *8 (“[c]ommon sense and experience teaches that services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become useless, or even burdensome, if provided in overwhelming quantity.”); Application of Student with a Disability, Appeal No. 21-213 (“While the district failed to present evidence or its view of an appropriate compensatory education award, the IHO was not required to award all of the relief that the parents sought. Such an outright default judgment awarding compensatory education-or as in this case, any and all of the relief requested without question-is a disfavored outcome even where the district's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious.”) citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005] and M.M., supra.
ANALYSIS AND CONCLUSIONS OF LAW
There is no dispute about the student’s eligibility for a FAPE under both the IDEA and 504 here. I have reviewed the Parents’ Section 504 claims articulated in the DPC and find that such mirror and have merged with those allegations as made under the IDEA. Accordingly, the analysis as to the provision of a FAPE will not be evaluated separately. The DOE has the burdens of production and persuasion as to the provision of a FAPE. Here, the DOE has conceded a denial of a FAPE for both the 2021-22 and 2022-23 school years. Furthermore, the DOE has indicated that they are only challenging the requested reimbursement for home ABA/BCBA services, and thus have essentially conceded the appropriateness of the other requested remedies, including tuition reimbursement, compensatory education, and the additional IEE.
2021-22 School Year
Since the student was previously identified by the DOE as a student with a disability and recommended for early intervention services, they had 60 days from June 21, 2021, in order to evaluate the student and 60 school days to develop and implement a program. There were four school days left in June that school year.[49] There were 21 non-weekend, non-holiday “school days” in July (which had one holiday in observation of July 4). See 8 N.Y.C.R.R. § 200.1(n)(1). There were 22 non-weekend, non-holiday “school days" in August (which had no holidays). See Id. The first day of the 2021-22 school year was September 13, and September 16 was not a school day due to the Yom Kippur holiday.[50] Thus, the 60th school day after the referral was September 30, 2021, and the student’s program was required to be in place by that date. However, the DOE had no obligation to offer a FAPE prior to that date, which means that the duration of any FAPE denial for the 2021-22 school year would have been 37 weeks (46 weeks for the ESY minus six for the summer and three in September). Any deprivation of FAPE and corresponding remedy will be evaluated accordingly. [51]
There is no question as to the denial of a FAPE here for the 2021-22 school year. The DOE has conceded as much. Furthermore, the Parents’ allegations regarding the substantive and procedural deficiencies of the IEP are undisputed. Moreover, the DOE has not offered any explanation (“cogent and responsive” or otherwise) for the decisions in the IEP or for their failure to implement the recommended program. Accordingly, I find that the student was deprived of a FAPE for the 2021-22 school year after September 30. Furthermore, the equities favor the Parents, who attended the CSE meeting, made the student available for evaluations, and cooperated fully with the DOE.
Given the DOE’s acquiescence to the requested compensatory education (which I find appropriate and fully supported by the record), the only issue truly in dispute is whether reimbursement should be ordered for out-of-pocket ABA/BCBA services in addition to compensatory services. The DOE has not disputed the qualifications of the ABA Service Provider, and I find that they were appropriately qualified. Nor have they disputed the rates charged for the services, and I find them to be reasonable. Parents have already paid for the services, and have sought reimbursement from their private medical insurance, so there is no question as to their financial obligation to pay. The reimbursement sought is only the amount that insurance will not pay. Furthermore, the services provided were reasonably calculated to allow the student to benefit and he made progress therewith. I find the privately obtained services to be appropriate in all respects. However, I do not believe it is appropriate to order reimbursement of privately obtained services in addition to full compensatory education for the same period of FAPE deprivation, as that would essentially duplicate the necessary services. Accordingly, the bank of compensatory hours should be reduced by the number of hours for which reimbursement is ordered.
The requested amount of compensatory direct ABA is 460 hours (10 hours per week for 46 weeks). As the period of FAPE denial was only 37 weeks, the adjusted amount would be 370 hours. If you subtract the 170.5 hours already provided by ABA Service Provider, the remaining bank of hours would be 199.5. Accordingly, I find that it is appropriate to reimburse Parents for the hours already provided and provide a bank of 199.5 compensatory hours, to be used at an appropriately qualified provider of the Parents’ choosing at a rate not to exceed $150 per hour. To allow flexibility, these hours shall be used within two years of the date of this order.
The requested amount of compensatory BCBA supervision is 92 hours (2 hours per week for 46 weeks). As the period of FAPE denial was only 37 weeks, the adjusted amount would be 74 hours. If you subtract the 25 hours already provided by ABA Service Provider, the remaining bank of hours would be 49. Accordingly, I find that it is appropriate to reimburse Parents for the hours already provided and provide a bank of 49 compensatory hours, to be used at an appropriately qualified provider of the Parents’ choosing at a rate not to exceed $200 per hour. To allow flexibility, these hours shall be used within two years of the date of this order.
The requested amount of compensatory PCAT is 46 hours (one hour per week for 46 weeks). As the period of FAPE denial was only 37 weeks, the adjusted amount would be 37 hours. If you subtract the 8.25 hours already provided by ABA Service Provider, the remaining bank of hours would be 28.75. Accordingly, I find that it is appropriate to reimburse Parents for the hours already provided and provide a bank of 28.75 compensatory hours, to be used at an appropriately qualified provider of the Parents’ choosing at a rate not to exceed $200 per hour. To allow flexibility, these hours shall be used within two years of the date of this order.
The requested amount of compensatory AT training for the student is 92 hours (two hours per week for 46 weeks). As the period of FAPE denial was only 37 weeks, the adjusted amount would be 74 hours. Accordingly, I find that it is appropriate for the DOE provide a bank of 74 compensatory hours of student AT training, to be used at an appropriately qualified provider of the Parents’ choosing at a rate not to exceed $180 per hour. To allow flexibility, these hours shall be used within two years of the date of this order.
The requested amount of compensatory AT training for the Parents is 115 hours (2.5 hours per week for 46 weeks). As the period of FAPE denial was only 37 weeks, the adjusted amount would be 92.5 hours. Accordingly, I find that it is appropriate for the DOE provide a bank of 92.5 compensatory hours of parent AT training, to be used at an appropriately qualified provider of the Parents’ choosing at a rate not to exceed $180 per hour. To allow flexibility, these hours shall be used within two years of the date of this order.
The requested amount of compensatory OT is 92 hours (two hours per week for 46 weeks). As the period of FAPE denial was only 37 weeks, the adjusted amount would be 74 hours. Accordingly, I find that it is appropriate for the DOE provide a bank of 74 compensatory hours of OT, to be used at an appropriately qualified provider of the Parents’ choosing at a rate not to exceed $180 per hour. To allow flexibility, these hours shall be used within two years of the date of this order.
The requested amount of compensatory SLT is 230 hours (2.5 hours per week for two 46-week years). Here, the amount requested does not directly correspond to the period of deprivation. Instead, as described in the Compensatory Service Plan, although the denial of services was only for one year, the rate of recoupment will require two years to make up the deficit caused by this denial. Accordingly, I find that it is appropriate to reduce the requested services by the same percentage as the others have been reduced (approximately 19.6%), since the period of denial was only 37/46 weeks. The adjusted amount would be 185 hours. Accordingly, I find that it is appropriate for the DOE provide a bank of 185 compensatory hours of SLT, to be used at an appropriately qualified provider of the Parents’ choosing at a rate not to exceed $180 per hour. These hours shall be used within two years of the date of this order. All compensatory services should be allowed to be used in an integrated fashion.
Finally, I find it appropriate to order a comprehensive Sensory Integration Evaluation. Parents disagreed with the DOE’s evaluation and the DOE did not initiate due process proceedings to defend it. As a result of the other IEE results, it has come to light that sensory processing is an area of suspected disability for the student which the DOE did not evaluate. Furthermore, the rate requested is reasonable. Accordingly, the DOE shall fund a comprehensive Sensory Integration Evaluation by an appropriately qualified provider of the Parents’ choosing at a rate not to exceed $2000.
2022-23 School Year
Prong 1
As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at the hearing. The DOE has conceded a denial of a FAPE. Furthermore, they presented no evidence or witnesses to dispute the Parents’ claims regarding the procedural and substantive deficiencies of the IEP. Moreover, the weight of the evidence supports the conclusion that the DOE failed to offer the student an educational program reasonably calculated to offer a FAPE for the 2022-23 school year.
Prong 2
I find that Parents have met their burden in proving that the Private School offers an educational program which meets the student’s need under Prong II of the Burlington/Carter standard. Here, the weight of the evidence establishes that student’s individual special education needs are addressed by the Private School and that the instruction offered is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. Furthermore, the DOE has not challenged the appropriateness of the unilateral placement or the reasonableness of the tuition. Moreover, I find that the Parents’ witnesses were credible, and that the student has made progress at the Private School.
Prong 3
The equities here favor the Parents. Parent was present at the relevant CSE meeting and participated in the development of the student’s IEP. Parents provided the necessary Ten-Day notice of their concerns with the DOE’s offer of a FAPE for the 2022-23 school year. Therein, Parents detailed their specific concerns and gave the DOE notice of their intention to unilaterally place the student at the Private School.
By way of relief, Parents seek reimbursement for their private school tuition costs. The enrollment contract in evidence establishes the Parents’ financial obligation to pay the full tuition for the 2022-23 school year in the amount of $140,700 ($99,990 of which has already been paid). Accordingly, equity demands that the DOE fund the student’s Private School tuition in this instance.
I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED THAT:
1. Parents’ claim for reimbursement for the student's private ABA/BCBA services is GRANTED for the 2021-22 school year as follows: The New York City Department of Education shall reimburse Parents $11,505.39 within twenty (20) days of the date of this order; it is further
2. ORDERED that the New York City Department of Education shall fund the following compensatory education for the student, by an appropriately qualified provider of the Parents’ choosing, to be paid directly to the provider within thirty (30) days of the DOE’s receipt of the respective provider’s invoice:
a. 199.5 hours of direct ABA services, at a rate not to exceed $150 per hour;
b. 49 hours of BCBA supervision, at a rate not to exceed $200 per hour;
c. 28.75 hours of parent counseling and training (PCAT), at a rate not to exceed $200 per hour;
d. 74 hours of student AT training, at a rate not to exceed $180 per hour;
e. 92.5 hours of parent AT training, at a rate not to exceed $180 per hour;
f. 74 hours of OT, at a rate not to exceed $180 per hour; and
g. 185 hours of SLT, at a rate not to exceed $180 per hour.
All compensatory services should be allowed to be used in an integrated fashion and must be used within two years of the date of this Order; it is further
3. ORDERED that the New York City Department of Education shall fund the cost of a comprehensive Sensory Integration Evaluation of this student by an appropriately qualified provider of the Parents’ choosing, by remitting direct payment to the provider in an amount not to exceed $2,000, within twenty (20) days of the DOE’s receipt of the provider’s invoice; and it is further
4. ORDERED that Parents’ claim for tuition reimbursement for the student's unilateral placement at the Private School is GRANTED for the 2022-23 school year as follows: The New York City Department of Education shall reimburse Parents for payments made to the Private School for the 2022-23 school year within 30 days of submission of proof of payment, in an amount not to exceed $140,700.
SO ORDERED.
DATED: May 18, 2023 Leah Martin, Esq. (Signed Electronically)_
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 – DOCUMENTATION ENTERED INTO THE RECORD
DOE’S EXHIBITS
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PARENT EXHIBITS
A. Demand for Due Process Hearing 9/8/22 13 pages
B. Ten Day Letter 8/24/22 5 pages
C. IEE Request Letter 6/22/22 5 pages
D. Affidavit of Evaluating BCBA 10/26/22 2 pages
E. Affidavit of Related Service Provider Director 10/27/22 5 pages
F. Affidavit of Evaluating Neuropsychologist 10/25/22 2 pages
G. IEP 6/13/22 25 pages
H. IEP 10/15/21 24 pages
I. Autism Skills Assessment 2/13/23 7 pages
J. Neuropsychological Evaluation 2/16/23 9 pages
K. Speech/Language Evaluation 12/9/22 15 pages
L. Occupational Evaluation 12/9/22 9 pages
M. Assistive Technology Evaluation 12/9/22 19 pages
N. Educational Progress Report 7/22-12/22 4 pages
O. Classroom Goals Undated 2022-2023 4 pages
P. Occupational Therapy Progress Report 7/22-12/22 6 pages
Q. Occupational Therapy Goals Undated 2022-2023 2 pages
R. Speech and Language Therapy Progress Report 7/22-12/22 6 pages
S. Speech and Language Therapy Goals Undated 2022-2023 2 pages
T. FBA & BIP Dec. 2022 7 pages
U. ABA Treatment Plan 6/17/22 17 pages
V. ABA Service Provider Progress Report 6/17/22 26 pages
W. Preschool Student Evaluation Summary Report Various 2 pages
X. Occupational Therapy Evaluation 9/15/21 4 pages
Y. Bilingual Educational Evaluation 9/10/21 11 pages
Z. Bilingual Speech and Language Evaluation 9/6/21 9 pages
AA. Bilingual Psychological Evaluation 8/22/21 7 pages
BB. Bilingual Social History 8/22/21 3 pages
CC. Diagnostic Evaluation 10/1/20 9 pages
DD. Email from District to Parent Re: AT Device 11/1/22 1 page
EE. Email Communication Re: AT Device Various 5 pages
FF. Email Communication Re: Scheduling CSE Meeting Various 2 pages
GG. Ten Day Notice 4/13/22 3 pages
HH. Email Communication between Parent and District Various 3 pages
II. NYC DOE Notice of Eligibility for Partial Services 1/21/22 1 page
JJ. Private School Program Offering and Features 2022-23 9 pages
KK. Class Schedule 2022-2023 School Year Undated 1 page
LL. Enrollment Contract 8/26/22 5 pages
MM. Attendance Record 2022-2023 9/8/22-1/6/23 1 page
NN. Affidavit of Finance 12/8/22 1 page
OO. Proof of Tuition Payment Various 3 pages
PP. Invoices for ABA Services and Proof of Payment Various 26 pages
QQ. Resume of Evaluating BCBA Undated 3 pages
RR. Resume of Related Service Provider Director Undated 2 pages
SS. Resume of Primary ABA Provider Undated 2 pages
TT. Resume of AT Evaluator Undated 4 pages
UU. Curriculum Vitae of Evaluating Neuropsychologist Undated 9 pages
VV. Resume of SLT Evaluator Undated 1 page
WW. Resume of Private School Classroom Supervisor Undated 2 pages
XX. Affidavit of Evaluating BCBA Undated 11 pages
YY. Compensatory Service Plan 4/29/23 18 pages
ZZ. Affidavit of Related Service Provider Director 5/1/23 6 pages
CCC. AAA. Affidavit of Primary ABA Provider 5/4/23 6 BBB. Affidavit of Evaluating Neuropsychologist 5/1/23 7 Affidavit of Private School Classroom Supervisor 4/27/23 14 pages
DDD. Affidavit of Russel Hirschorn 4/28/23 14 pages
IHO’S EXHIBITS
i. Referral Email 6/19/21 1 page
Footnotes
[1] Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[4] Parents’ IEE motion was supported by affidavits from the various providers that are in the hearing record as Exhibits D, E, and F.
[5] The following IEEs were granted: neuropsychological, occupational therapy (“OT”), speech-language therapy (“SLT”), assistive technology (“AT”), and autism skills assessment. (See Interim Order on IEE).
[6] References to the hearing transcript will be referred to as (Tr.) followed by the page number within the transcript.
[7] She has a Master of Science in ABA and is a New York licensed BCBA. (Ex. QQ).
[8] She has a master’s degree in ABA and Autism and is dual certified to teach students with disabilities from birth to grade six; she is also certified in Orton Gillingham methodology. (Ex. RR-1; ZZ-1).
[9] She has a master’s degree in ABA and is a BCBA and licensed behavior analyst (“LBA”). (Ex. SS).
[11] She has a master’s in ABA and is a BCBA and LBA. (Ex. WW; CCC-1). She is also certified to teach special education from birth to grade six. (Ex. CCC-1).
[13] The student did not have an IEP in Texas, but rather was receiving ABA services through the family’s medical insurance. (Tr. 14).
[14] The initial request was sent by email on June 19, 2021, which was a Saturday. (Ex. i-1). It would have been received by the DOE the next business day, which was June 21, 2021.
[15] Parent was present at the meeting, but it was lacking a special education teacher. (Ex. H-24; DDD-3).
[16] The 10/15/21 IEP had an implementation date of December 8, 2021, but it is unclear from the record why, especially considering its acknowledgment that the student experiences “substantial regression” during school breaks. (Ex. H-19-20).
[23] These attempts include an April 13, 2022 letter in which Parents informed the district of the at-home ABA services they had contracted privately to supplement the lack of public services and their intention to seek reimbursement for those services. (Ex. A-4; GG; DDD-7).
[24] According to Primary ABA Provider, this amount was insufficient to meet the student’s full needs but was “appropriate as provided.” (Ex. AAA-4).
[25] The invoices are billed by “unit,” and each unit of services is 15 minutes. (Ex. PP; AAA-3). The invoices reflect 682 units of ABA, 33 units of PCAT, and 100 units of BCBA supervision. (Ex. PP-1-23).
[26] The hourly rate for services was $275. (Ex. AAA-3). This is within the standard market rate in New York City. (Ex. XX- 11;AAA-6). Although the Parent’s affidavit indicates the total unreimbursed amount as $11,514.53, I believe that is an arithmetic error, as $56,031.25 minus $44,525.86 is $11,505.39
[27] Progress included requesting an item on a picture exchange communication system (“PECS”), learning to respond to a timer, learning to use a token board, increased awareness of others and joint attention, learning to communicate, responding to demands outside himself, and an increased willingness to tolerate nonpreferred tasks. (Ex. AAA-4).
[28] Although the progress in these areas was not linear, the overall trend of the student’s performance improved. (Ex. V-2-26).
[29] The Preschool Evaluation included an OT evaluation (Ex. X), an educational evaluation (Ex. Y), a speech-language evaluation (Ex. Z), a psychological evaluation (Ex. AA), and a social history (Ex. BB).
[30] This was performed in December 2022 and January 2023 by Evaluating BCBA. (Ex. I-1; QQ).
[31] Evaluating Neuropsychologist agrees. (Ex. BBB-5).
[32] Primary ABA Provider agrees that the student needs 1:1 ABA instruction and a home-based ABA program (Ex. AAA-3), as does Private School Classroom Supervisor (Ex. CCC-13). Evaluating Neuropsychologist also agrees with this recommendation. (Ex. BBB-5).
[33] BCBA supervision is needed to “provide direct supervision, collect … data to increase treatment fidelity, collaborate with teachers and related services providers, analyze data on a weekly basis, and provide systematic changes to the intervention as needed.” (Ex. I-6).
[34] Primary ABA Provider agrees with this recommendation. (Ex. AAA-4-5).
[35] This was performed by the Evaluating Neuropsychologist, who is a licensed Clinical Neuropsychologist in New York. (Ex. J-6).
[36] The report again diagnosed the student with ASD, with accompanying language impairment. (Ex. J-5).
[38] This was performed by a speech language pathologist (“SLT Evaluator”). (Ex. K-11). SLT Evaluator has a master’s in speech language pathology and more than five years of experience. (Ex. VV-1).
[39] This was performed by a licensed occupational therapist. (Ex. L-9).
[41] Primary ABA Provider additionally recommends an AAC device. (Ex. AAA-5).
[42] PROMPT stands for Prompts for Restructuring Oral Muscular Phonetic Targets. (Ex. CCC-8).
[43] Additional indirect training services were recommended for the student’s speech-language pathologist and AT professional. (Ex. M-17).
[46] This number includes 23 hours of collaborative sessions with the SLT provider. (Ex. YY-10). AT Evaluator had recommended 92 hours of collaborative compensatory sessions. (Ex. M-17).
[47] Related Service Provider Director’s compensatory services plan states that “[a]t this frequency, in addition to the recommended frequency of speech-language services to be provided in his school setting…, it will take a minimum of 2 years for [the student] to attain the requisite skills in his language abilities.” (Ex. YY-16).
[48] For students not previously identified as having a disability, the 60 days begins on the day the DOE receives the parent’s consent to evaluate; for student’s previously identified, the 60 days begins on the day of referral. 8 NYCRR §§ 200.4(d) and (e).
[49] See https://www.schools.nyc.gov/docs/default-source/default-document-library/school-calendar-for-families-2020-2021.
[50] See https://www.schools.nyc.gov/docs/default-source/default-document-library/doe-calendar-sy-21-22.
[51] Although 8 N.Y.C.R.R. §200.4(e)(8)(1) provides that when a student transfers from out of state, the DOE shall provide “services comparable to those described in the previously held IEP,” here, the student did not have an out of state IEP.