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NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS
SPECIAL EDUCATION HEARINGS DIVISION
In the matter of Student, a Minor, by her/his Parent(s), against
THE NEW YORK CITY DEPARTMENT OF EDUCATION
Impartial Hearing No. 236561
FINDINGS OF FACT AND DECISION
Virginia Tillyard
Impartial Hearing Officer
BACKGROUND AND POSITION OF THE PARTIES
Parents, through counsel, filed a due process complaint under the Individuals with Disabilities Education Act, 20 U.S.C. section 1415(f) (the “IDEA”), Section 4404(1) of the New York State Education Law and Section 504 of the Rehabilitation Act of 1973, against the New York City Department of Education (the “DOE”) on 9/8/22 and an amended due process complaint (the “DPC”) [1] on 3/16/23, alleging that the DOE denied Student a free appropriate public education (“FAPE”) for the 2020-21, 2021-22 and 2022-23 school years.
In the DPC the Parents allege, among other things, substantive and procedural violations in connection with the development and implementation of Student’s IEPs for the years at issue. As remedies in the DPC, Parents request an interim order for IEEs; reimbursement of the cost of a private evaluation; an award of “make-up” services for any services mandated, but not provided, pursuant to Student’s IEPs; compensatory education to compensate for the alleged denials of FAPE; a new IEP with increased 1:1 instruction and related services; and reimbursement for any out of pocket expenses to meet student’s special education needs during the years at issue. As more fully discussed below, I find that (a) the DOE failed to meet its burden of showing that it offered Student a FAPE for the years at issue; (b) the equities support the Parents’ requested relief to the extent discussed below.
JURISDICTION
The IDEA and its implementing regulations and Article 89 of the New York State Education Law and its implementing regulations provide jurisdiction for this decision. [2]
PROCEDURAL HISTORY
I was appointed as Impartial Hearing Officer to this case on 11/2/22. I issued an interim order on pendency on November 22, 2022, an interim order for educational evaluations on December 12, 2022 and an amended interim order for educational evaluations on February 27, 2022. The compliance date was extended multiple times in order for educational evaluations to be completed and to accommodate witness scheduling, among other things.
At hearing, the Parents submitted an exhibit packet. Parents withdrew one exhibit.[3] The DOE objected to several of the Parents’ exhibits. Parents’ exhibits were admitted as indicated in the list attached to this decision. The DOE did not submit any exhibits. The Parents presented the testimony of the Speech Therapist, the Occupational Therapist, the SEIT Provider, and the Neuropsychologist by affidavit. The Parents also presented the live direct testimony of Student’s mother. The DOE’s attorney cross-examined all Parent’s witnesses except the Neuropsychologist. Both parties made an oral closing. [4]
LEGAL FRAMEWORK
Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a free appropriate public education (“FAPE”), 8 NYCRR § 200.5(j)(4)(i). Under the IDEA and New York law, where there is procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE.5
The IDEA is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). 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). Two purposes of the IDEA are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B).
Burden
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).
FINDINGS OF FACT AND DECISION
The DOE’s case – provision of a FAPE
520 U.S.C. § 1415 (f)(3)(E)(ii) states: Procedural issues In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies-- (I) impeded the child's right to a free appropriate public education; (II) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parents' child; or (III) caused a deprivation of educational benefits. As defined in the IDEA, a FAPE consists of special education and related services provided at no cost to a parent. Special education means “specially designed instruction...to meet the unique needs of a child with a disability” and “related services” are various supportive services “as may be required to assist a child with a disability to benefit from special education”.[6] 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). The IDEA’s procedures require the school district’s IEP Team, in developing an IEP, to consider (i) the strengths of the child; (ii) the concerns of the parents for enhancing the education of their child; (iii) the results of the initial evaluation or most recent evaluation of the child; and (iv) the academic, developmental, and functional needs of the child. 20 U.S.C. § 1414(d)(1)(A)(i)(I)-(IV). An IEP Team is a group of individuals, including the student’s parents. 20 U.S.C. § 1414(d)(1)(B).
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, No 15- 827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). When an IEP is disputed, a school district is expected to be able to offer a “cogent and responsive explanation for their decisions” to show that a student’s IEP meets that standard. The court in Endrew F. said that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” A student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See 34 C.F.R.§§300.114 through 300.117; Walczak v. Florida Union Free Sch. Dist., supra.
The Second Circuit has confirmed that its pre-existing FAPE standard is consistent with the Supreme Court’s decision in Endrew F. Mr. P. & Mrs. P. v. West Hartford Board of Educ., 885 F.3d 735 (2d Cir. 2018).
The Student
Student is now almost [REDACTED] years old and is currently classified as a student with a disability with a classification of Autism. For the 2020-21 school year, the Committee for Preschool Education (CPSE) developed an IEP and recommended, on a 10-month basis, four hours of special education itinerant teacher (“SEIT”) services, and two thirty-minute periods of speech-language therapy (“SLT”) per week.[7]
His next IEP, developed in October, 2021, recommended on a ten-month basis ten hours of SEIT per week, and three thirty-minute periods of SLT, 1:1, per week.[8]
In January 2022 the Parent obtained a private psychological evaluation that diagnosed Student with Autism Spectrum Disorder and Mixed Receptive and Expressive Language Disorder. The evaluator recommended applied behavioral analysis (“ABA”) for faster learning and to generalize acquired skills.[9]
The CPSE reconvened on March 3, 2022 and revised Student’s IEP to recommend the following, on a ten month basis: SEIT, 10 hours per week; SLT 3x30 (1:1) per week; occupational therapy (“OT”), 2x30 (1:1); and physical therapy (“PT”), 2x30 (1:1) per week.[10] Parents emailed the CPSE regarding ABA therapy, and upon the CPSE’s suggestion,[11] found a provider of ABA therapy through their insurance, which approved 12 hours of ABA therapy a week. Through their insurance, they found a provider who provided 12 hours of ABA therapy per week at Student’s school, starting in March or April of 2022.[12] At the suggestion of Student’s school, they also engaged a private therapist to push into Student’s class and provide Developmental, Individual-differences, and Relationship-based (DIR)/Floortime therapy. According to Student’s mother, Student benefited from these services and started to show improvements.[13]
In June 2022 the Committee on Special Education (“CSE”) developed Student’s IEP for the 2022-23 school year. It recommended, on a ten-month basis, the following:
• an integrated co-teaching class (“ICT”) for 26 periods per week
• OT 3x30, 1:1
• PT 2x30, 1:1
• SLT 2x30, 1:1
• SLT 1x30, group
• Counseling 1x30, group of 3
• Parent Counseling and Training (“PCAT”), 3 hours per year.
For the 2022-23 school year, Student was enrolled at the Private School, a specialized private school in Cedarhurst, New York. His class followed a pre-kindergarten curriculum although the Private School referred to as a kindergarten class. His classroom had approximately fourteen students and two teachers. My Interim Order on Pendency dated November 22, 2022 found that the March 3, 2022 IEP constituted Student’s pendency placement, and ordered the DOE to provide those services during the pendency of this case, commencing September 8, 2022. At the pendency hearing, Student’s mother testified that the DOE implemented the March 3, 2022 IEP in full, except that the DOE was only able to provide two half-hour periods of SLT per week, instead of three.14 His SEIT for the 2022-2023 school year was a trained ABA provider. The Parents also obtained private DIR/Floortime therapy for Student,
45 minutes per week, pushed into the school. Through insurance, Parents also obtained ten hours of private ABA therapy per week for Student at home during the 2022-23 school year.15
In the DPC Parents allege, among other things, that the DOE failed to appropriately evaluate Student, and that Student’s IEPs for the years at issue were substantively and procedurally inappropriate. They also allege that the DOE failed to appropriately implement Student’s IEPs for the years at issue, and did not provide some of the services mandated under Student’s IEPs. At hearing, the DOE did not attempt to defend its provision of a FAPE for the years at issue, and did not introduce any evidence or testimony of its own. The DOE did not defend those allegations, and did not provide any evidence or any explanation for how the CSE developed the recommendations in the IEPs for the years at issue. Other evidence in the record also indicates that the DOE failed to provide Student with an appropriate special education and related services during the years at issue.16 Based on the above, I find that the DOE failed to provide Student with a FAPE for the three school years at issue.
REMEDIES
Having determined that the DOE denied Student a FAPE, the remaining issue I must decide is relief. Any relief must be “appropriate in light of the purpose of the Act."[17] Consideration of the equities is a necessary part of any remedy granted under the IDEA: "[E]quitable considerations are relevant in fashioning relief and the court enjoys broad discretion in so doing."[18]
The SEIT Provider testified by affidavit and appeared for cross examination.[19] She is initially certified as a special education teacher in New York, is trained as a registered behavior technician, and is in the process of obtaining an advanced certificate in applied behavior analysis. She has been providing Student with a total of ten hours per week of 1:1 ABA therapy at the Private School since September 2022, pursuant to the Interim Order on Pendency in this case. She provides sensory supports and reinforcements, prompting, and social skills training, 1:1. In her progress report, affidavit and at hearing she recommends that Student receive a minimum of 20 hours of ABA therapy per week, as well as 30 hours per week of individual special education instruction. She also recommends compensatory 1:1 instruction in an unspecified amount.[20]
Between March and June, 2023 the Neuropsychologist, a clinical neuropsychologist with a Master’s degree and doctorate in clinical psychology, with the assistance of the Postdoctoral Fellow, who is a doctor of school psychology and a nationally certified clinical psychologist, performed a comprehensive neuropsychological evaluation of Student.[21] They diagnosed Student with autism, based on Student’s language, social and pragmatic deficits.[22] The Neuropsychologist found Student to have a high average range of cognitive ability, with a relative strength in verbal reasoning. The Neuropsychologist recommended the following program going forward:
• a 12-month placement in a special education school in a special education class with a curriculum that addresses a level of prekindergarten readiness skills in play, regulation, adaptive, and social skills • A class consisting of peers of similar abilities who do not have negative external behaviors • 20 hours of 1:1 services from a special educator trained in ABA therapy during the school day/after school [23] • 45 minutes per week of 1:1 social skills training using DIR/Floortime therapy from a psychologist in the school setting • speech-language therapy • occupational therapy
The Neuropsychologist also recommended compensatory services, to be available until Student had reached the desired level of achievement,24as follows:
• three years’ worth of “compensatory services in the form of ABA services from a trained special education provider” because, in the Neuropsychologist’s opinion, Student had “not received the services necessary to appropriately remediate his deficits with regard to his inattention, speed and efficiency of processing, impulse control, and organization of language by the age of three”.
This recommendation was made on a quantitative basis, based on 20 hours of ABA therapy per week for the three years at issue, minus any hours that Student actually received during that time.[25]
• A bank of compensatory hours of DIR.Floortime therapy based social skills training, on a quantitative basis of 1x45 minute session per week for the three years at issue, minus any hours actually received.[26]
• Between two to five hours’ supervision per week by a Board Certified Behavior Analyst.[27]
On May 16, 2023 the Occupational Therapist, a New York State licensed occupational therapist with a Master of Science degree in occupational therapy, performed a private OT evaluation. She found that Student had, among other things, motor co-ordination, distractibility and significant challenges processing and responding to sensory information in the school 24Testimony of the Neuropsychologist, Hearing Transcript
As an appropriate program going forward, the Occupational Therapist recommended a twelve-month program, with daily access to sensory motor equipment. She also recommended three X 30-minute sessions of OT per week, 1:1, in a school setting or at an outpatient clinic. Sessions should be on a push-in or pull-out basis as needed.[30]
On May 14, 2023 the Speech Therapist, a New York State licensed speech-language pathologist with a Master of Science degree in speech-language pathology performed a private SLT evaluation and found that Student’s performance levels were average in most areas tested but that he had delayed articulation skills.[31] The Speech Therapist recommended a bank of 92 hours of compensatory SLT (approximately 1 hour per week for 46 weeks for approximately 2 years) on a qualitative basis to compensate for time he needs to "catch up". She recommended that the hours be provided at school and at home, without any expiration date.[32] The Speech Therapist recommended a twelve-month program going forward.
The Speech Therapist also performed a private assistive technology (“AT”) evaluation at the same time as the SLT evaluation. She did not recommend any AT at this time.[33]
Revised IEP
I find that going forward, in order to receive a FAPE Student requires special education and related services as recommended by the Neuropsychologist, the Occupational Therapist and the Speech
28See Ex. LL-15 (finding “delays in sensory processing, self-regulation, attention, strength and coordination, endurance, fine motor, visual motor, graphomotor, scissor skills, and some ADL skills”.
29Ex. LL; Ex. RR
Compensatory Services
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 FAPE.[34] 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. A compensatory award 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.[35]
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 FAPE 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).
In New York, where a parent seeks a compensatory award to remedy past denials of FAPE, an “outright default” remedy is a “disfavored outcome”, even when the district’s conduct in denying a FAPE has been egregious.[36] A student is not automatically entitled to a compensatory award even where denial of FAPE is undisputed.[37]
There is no obligation to provide a day-for-day compensation for time missed. Appropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA.[38] Reid rejected a “cookie-cutter” hour-for-hour award in favor of a more flexible approach, and characterized an hour-for-hour formula as “a form of damages”.[39] 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). The Second Circuit has declined to specify any particular approach.
An excessive award is also inappropriate. “Common 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 close to useless, or even burdensome, if provided in overwhelming quantity.”[40]
Courts in the Second Circuit have also declined to award home-based services where such services go beyond the provision of a FAPE. That may include, in the case of students with autism, home or community based services focusing on generalization of skills.[41]
42Hearing Transcript
As to the “burden of proof” regarding a compensatory award, I do not agree with the Parents’ view. Without going into unnecessary detail, Section 4404(1)(c) of the Education Law does not assign any “burden” with respect to a remedy. Compensatory education is a remedy, not a claim going to denial of FAPE, and under the IDEA, a hearing officer may order such relief as is appropriate. There must be information in the record for a hearing officer to use as a basis for an appropriate award of compensatory education, but the law is silent as to who must provide that information; it does not oblige the DOE to do so.
As to an “alternative award”, I specifically asked Parents to present a summary of their compensatory requests to the DOE in advance of closing arguments.[43] Parents failed to do so. They waited until after the DOE had made its closing arguments to present the total compensatory awards they were requesting, along with the basis for their calculations.[44] The DOE did not have any opportunity to review those requests and “offer an alternative”. I also disagree that the Office of State Review has “generally” upheld compensatory awards requested by the parents.[45]
As discussed above, caselaw disfavors an outright default award of compensatory hours, although Parents argue to the contrary.[46] In addition, Student will be receiving greatly enhanced, twelve-month services going forward including a total of 20 hours a week of ABA therapy. I am also granting Parents’ requests for 138 hours of compensatory OT and 92 hours of compensatory SLT in full. That alone amounts to an additional two hours per week of instruction over the next two years.
Further, although the Speech Therapist, the Occupational Therapist and the Neuropsychologist all presented proposals for compensatory services, during their extensive testimony none of them considered the feasibility or impact on Student of all proposed compensatory awards combined, or of all proposed compensatory awards combined with a greatly enhanced, twelve-month daily program.
Last, in the DPC, Parents request DOE funding for “an increase in 1:1 instruction and related services, so that the Parent can use their insurance-funded ABA after school, as appropriate”. That statement leaves open the possibility that in addition to any enhanced services going forward, and any compensatory award, Parents will still seek an additional 10-12 hours of ABA therapy via their insurance.
Parents seek a total of 980 hours of compensatory 1:1 ABA instruction, 276 hours of BCBA supervision and 55 ½ hours of compensatory social skills therapy. Based on all the foregoing considerations, I find those amounts to be excessive when combined with a full time, enhanced program including 20 hours of 1:1 instruction per day, as well as over 200 hours of compensatory OT and SLT.
I therefore find that an equitable deduction is appropriate and that approximately 3/4 of the compensatory ABA services, BCBA supervision, and social skills therapy is sufficient to compensate for the FAPE deprivations for the three years at issue. I am awarding 700 hours of compensatory ABA instruction, 200 hours of BCBA supervision, and 40 hours of compensatory social skills therapy. Over two years, that amounts to 940 hours of additional 1:1 instruction, or approximately ten additional hours per week over the next two years.
I am ordering all compensatory education to expire after two years. By that time, Student’s triennial re-evaluations will be due and the DOE will be in a position to reconsider Student’s program in light of updated information and progress made to date, and develop appropriate recommendations at that time.
Reimbursement of Parents’ expenses
I am ordering the DOE to reimburse Parents in the amount of $400 for the cost of the 2022 comprehensive psychological evaluation.[47] I am also ordering a total of $7,090 to be reimbursed to Parents for social skills training, upon presentation of proof of payment.[48]
I have reviewed Parents’ other requests and claims and find them either to be without merit, not supported by the record, not within my jurisdiction or beyond the scope of my authority. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.
Physical Therapy evaluation
I am ordering the DOE to conduct a PT evaluation of Student.
Section 504 of the Rehabilitation Act of 1973 (“Section 504”)
Parents argue that some of the DOE’s actions and inactions amounted to violations of Section 504. Parents also argue that because the DOE did not defend against may of the allegations in the DPC, they should be deemed admitted and collectively establish a Section 504 violation. Although I do not need to reach Section 504 issues in order to decide this case (see above), were I required to do so I would find that the Parents have not met their burden with respect to Section 504.
Impartial hearing officers have the authority to adjudicate claims under section 504 of the Rehabilitation Act of 1973. See 29 U.S.C. § 794. A violation of Section 504 requires proof from the plaintiff that: “(1) he is a ‘[disabled] person’ under the Rehabilitation Act; (2) he is ‘otherwise qualified’ for the program; (3) he is excluded from benefits solely because of his [disability]; and (4) the program or special service receives federal funding.” Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990). Courts in this Circuit have recognized that a Section 504 claim may be predicated on the claim that a disabled student was “denied access to a free appropriate education, as compared to the free appropriate education non-disabled students receive.” S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007); see also BD v. DeBuono, 130 F.Supp.2d 401, 439 (S.D.N.Y.2001). “[S]omething more than a mere violation of the IDEA is necessary in order to show a violation of Section 504 in the context of educating children with disabilities, i.e., a plaintiff must demonstrate that a school district acted with bad faith or gross misjudgment.” Wenger v. Canastota Cent. Sch. Dist., 979 F.Supp. 147, 152 (N.D.N.Y. 1997), aff'd mem, 208 F.3d 204 (2d Cir. 2000). Parents have the burden of proof in a Section 504 claim.
Here, the record does not persuade me that the CSE excluded Student from benefits solely because of his disabilities, or that it discriminated against Student, or that it acted with bad faith or gross misjudgment in developing his special education programs for any of the three years at issue. Parents developed at hearing only a very few of the DPC’s allegations. Any not raised at hearing or ruled on in this decision are deemed abandoned, and are not deemed admitted. In addition, I clarified on the record early in this proceeding that I have no authority to grant relief with respect to any “blanket” allegations or claims (including systemic Section 504 claims) and that I would not
ORDERS
IT IS HEREBY ORDERED that the New York City Department of Education (“DOE”) shall, within forty-five (45) days of the date of this decision, convene a Committee on Special Education (“CSE”) meeting to develop an appropriate IEP for Student that recommends the following program, on a twelve-month basis: i. 20 hours per week of 1:1 special education teacher services with applied behavioral analysis (ABA) methodology, to be provided during the school day and after school; ii. Two hours per week of supervision by a Board Certified Behavior Analyst (BCBA) iii. Speech-language therapy (SLT), 2x30 1:1 and 1x45 in a group of four; iv. Occupational therapy (OT), 3x30 per week, 1:1; v. Physical therapy, 2 X 30, 1:1; and it is further
ORDERED that the DOE shall fund the following compensatory education and services for Student, which may be provided at any time on any day during the year, shall at all times be provided by an appropriately licensed or qualified provider, may be used at any time, during, before or after the school day, on any other day, on a push-in or pull out basis or in a separate location, and are to be used at any time over the two years beginning on the date of this order but shall expire thereafter, and are as follows: (a) Applied behavioral analysis (ABA) therapy, 1:1: 700 hours; (b) Supervision by a BCBA: 200 hours (c) Social skills therapy, 1:1, to be provided by a provider trained in Developmental, Individual-differences, and Relationship-based (DIR)/Floortime therapy: 40 hours (d) OT, 1:1: 138 hours; (e) SLT, 1:1: 92 hours; and it is further
ORDERED that the DOE shall have the first option to provide any compensatory education and services ordered herein and Parents shall co-operate with the DOE and any provider sourced by the DOE. However, if the DOE has not identified providers of compensatory education and services within 60 days of this decision, Parents may select a provider of choice; and it is further
ORDERED that if any compensatory education or services is provided by the Parents’ provider of choice, any such provider, as a condition of payment, shall deliver to the Impartial Hearing Office’s Implementation Unit (i) an itemized invoice, with an accompanying affidavit sworn to by the applicable service provider, attesting to the service provider’s qualifications and the exact date and time that each of the billed services were provided to the Student; and (ii) a report of Student’s progress with respect to any hours implemented over the period invoiced, such progress reports to be delivered simultaneously to the CSE; and it is further
ORDERED that the DOE shall pay any such Parents’ provider of choice, within thirty-five (35) days of receipt of the above described invoice, affidavit and progress report, at the market rate of the applicable provider consistent with the rates paid by the Implementation Unit to the provider(s) of substantially similar services pursuant to hearing orders within the year preceding the delivery of such services; and it is further
ORDERED that the DOE shall conduct a physical therapy evaluation of Student within 60 days of the date of this order; and it is further
ORDERED that the DOE shall reimburse the Parents as follows: (i) $400 for a comprehensive psychological evaluation provided by Dr. Rebecca Soffer in January 2022 (ii) A total of up to $7,090 for DIR/Floortime social skills training, upon presentation of proof of payment.
August 24, 2023
Virginia Tillyard, 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
EXHIBITS ADMITTED INTO EVIDENCE
PARENT EXHIBITS
A. Exhibit Description Date(s) of Date(s) of Pages Document Evaluation Impartial Hearing Request 09/08/2022 N/A 20 pages
B. CPSE IEP 03/03/2022 N/A 24 pages
F. Amended Impartial Hearing Request 03/13/2023 N/A 13 pages
G. New York State Early Intervention 01/15/2020 Program (“EI”), Individualized Family Service Plan (“IFSP”) N/A 3 pages
H. NYC Early Intervention Program (“EIP”) Undated [REDACTED] School of NY Speech Language Evaluation 12/1/2019 6 pages
I. EIP [REDACTED] School of NY Undated Audiological Evaluation 11/27/2019 2 pages
J. EIP [REDACTED] School of NY Undated Parent Interview / Developmental Evaluation 11/27/2019 7 pages
K. EIP [REDACTED] School of NY Undated Summary of Evaluations 2019 5 pages
L. CPSE Multidisciplinary Evaluations 06/30/2020 Packet [REDACTED] School of NY - 06/07, Educational, Speech and 06/09, Psychological Evaluation Report and 06/16/202 06/06 50 pages
M. Educational & Development Children’s 06/17/2021 Center, SEIT Progress Report N/A 3 pages
N. CPSE Physical Therapy Evaluation Up 02/07/2022 [REDACTED], Inc. 02/07/2022 4 pages
O. CPSE Occupational Therapy Initial 02/28/2022 Evaluation Up [REDACTED], Inc. 02/02/2022 6 pages
P. Comprehensive Psychological Evaluation 01/05/2022 01/04/2022 6 pages
Q. Parent Email with CPSE re Applied 03/03/2022 Behavior Analysis (ABA) Request N/A 3 pages
R. Educational & Development Children’s 05/31/2022, Center, SEIT Progress Report 07/21/2022 N/A 6 pages
S. NYC Department of Education (“DOE”) 04/13/2022 Preschool Teacher Interview and Classroom Update N/A 2 pages
T. NYC DOE Social History Update T5 03/23/2022 N/A 7 pages
EE. DOE Authorization Approval of 03/27/2023 [REDACTED] LLC for Pendency SEIT services N/A 13 pages
FF. [REDACTED] Support LLC pendency 09/2022 through SEIT invoices 4/2023 N/A 8 pages
GG. Physical Therapy Progress Report 05/08/2023 N/A 2 pages
HH. Speech Language Therapy Progress 05/08/2023 Report N/A 2 pages
II. Occupational Therapy Progress Report 05/04/2023 N/A 2 pages
JJ. SEIT Progress Report 01/18/2023 N/A 4 pages
LL. Independent Occupational Therapy 05/30/2023 Evaluation Report 05/16/2023 18 pages
MM. Independent Speech Language Evaluation 05/17/2023 Report 05/14/2023 19 pages
NN. Independent Assistive Technology 05/17/2023 Evaluation Report 05/14/2023 8 pages
PP. Letter from Dr [REDACTED], Ph.D. 06/05/2023 3/21, with Testing Appendix 4/19, and 5/30/2023 3/31 7 pages
QQ. Affidavit of [REDACTED], MS., 06/14/2023 N/A 9 pages
CCC-SLP
RR Affidavit of [REDACTED], OTR/L 06/14/2023 N/A 12 SS Affidavit of [REDACTED], MSEd 06/14/2023 N/A 7 TT Affidavit of [REDACTED], Psy.D. 6/15/2023 N/A 10 UU Invoice from [REDACTED], Ph.D. 01/05/2022 N/A 1 VV Invoice from Dr. [REDACTED] g, Ph.D. 03/30/2022 – N/A 2
06/13/2023 WW Resume of Dr. [REDACTED], Ph.D. Undated N/A 3 XX Independent Neuropsychological Undated 3/21, 3/31, 16
Evaluation Report 4/19, 5/30, and 6/5/2023
DOE EXHIBITS
None
IHO EXHIBITS
I. Email chain 4/26/2023 6 pages
II. IEP 8/24/2020 17 pages
III. IEP 10/25/2021 23 pages
IV. IEP 6/9/2022 24 pages
V. Subpoena 4/24/2023 2 pages
Footnotes
[1] Ex. E
[2] Since all the relief that Parents is requesting is available under the IDEA, I do not need to analyze any claims under Section 504.
[3] Ex. KK, which was a duplicate of Ex. E
[4] See Hearing Transcript. References to “Hearing Transcript” in this decision refer to the cumulative transcript of any hearings in this case.
[6] See the IDEA’s definitions at 20 U.S.C. §1401.
[7] IHO Ex. II
[8] IHO Ex. III
[9] Ex. P
[10] Ex. B
[11] See Ex. Q
[12] Hearing Transcript, hearing 6/16/2023, pp 137-39
[13] See Exs. VV, WW and Hearing Transcript, hearing 6/16/2023, pp 137-39 14Hearing Transcript, hearing 11/21/2022, at pp. 13-14 15See Ex. XX 16See, e.g. Parents’ summary of Student’s IEPs during the years at issue in Parents’ closing argument, Hearing Transcript.
[17] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985)
[18] Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993) (citation and internal quotation marks omitted).
[19] Ex. SS
[20] Exs. JJ, SS and testimony of the SEIT Provider, Hearing Transcript
[21] Ex. XX; Ex. PP
[22] Id.; Ex. TT; testimony of the Neuropsychologist, Hearing Transcript
[23] Id.
[25] Testimony of the Neuropsychologist, Hearing Transcript
[26] Id.
[27] Ex. XX; testimony of the Neuropsychologist, Hearing Transcript environment.28 The Occupational Therapist recommended a bank of 138 occupational therapy hours (approximately 1.5 hours a week for 46 weeks for 2 years) on a qualitative basis to compensate for lack of appropriate interventions in the past and the fact that when the DOE starting recommending OT in 2022, it recommended only 2 X 30 minute sessions rather than 3 X 30 minutes.29
[30] Ex. LL,15-16
[31] Ex. MM-17
[32] Ex. MM-18; Ex. QQ
[33] Ex. NN; Ex. QQ Therapist. I am ordering the DOE to revise Student’s program going forward so as to recommend the program that Parents request and as supported by the record, i.e. 20 hours per week of one-to-one special education teacher services using ABA methodology, 2 hours per week BCBA supervision, OT 3x30 per week, SLT, 2X30 minutes per week, 1:1 and SLT, 1X45, group of four; and physical therapy, 2x30 individual, all on a twelve month basis.
[34] See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008), citing Mrs. C. v. Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990) and Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005): “The 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.”
[35] P. v. Newington, supra In this case, Parents argue (i) that the DOE “carries the entire burden of proof in the portion of the hearing relating to the Parent's claims for compensatory education” and (ii) that where the DOE fails to “offer an alternative award”, the Office of State Review has “generally” upheld awards requested by the parents.42 I disagree.
[36] Application of a Child with a Disability, Appeal No. 22-004 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005)
[37] See Phillips v. District of Columbia, 932 F. Supp. 2d 42, 50 & n.4 (D.D.C. 2013) (collecting authority for the proposition that an award of compensatory education is not mandatory in cases where a denial of a FAPE is established)
[38] See Reid, supra
[39] See also Branham v. Gov’t of the Dist. Of Columbia, 44 IDELR 149 (D.C. Cir. 2005)
[40] M.M. v. New York City Dep’t of Educ., 60 IDELR 208 (S.D.N.Y. 2017); see also SRO decision 21-218.
[41] See L.K. v. New York City Dep’t of Educ., 67 IDELR 123 (S.D.N.Y. 2016); Student X v. New York City Dep’t of Educ., 51 IDELR 122 (E.D.N.Y. 2008) (finding Student’s IEP appropriate, although it did not provide for home-based ABA therapy or SLT)
[43] See Hearing Transcript, hearing of June 16, 2023, page 100.
[44] See Hearing Transcript, hearing of August 9, 2023, pp. 128-149.
[45] See, e.g. SRO decision 21-218 (“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 parent sought”).
[46] See the applicable caselaw above. The Parents cite various SRO decisions in their closing argument. I do not agree that they support Parents’ proposition since they are distinguishable (and in any event are not binding precedent).
[47] Ex. UU
[48] See Ex. VV be hearing them. Accordingly, to the extent I have authority to address them, I do not find violations of Section 504 in this matter.
[279] and model forms are available at http://www.sro.nysed.gov