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CASE NUMBER: 585220 - NYC: 236759
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: 08/17/2023, 08/24/2023, 8/25/2023, 09/11/2023, 10/06/2023
Actual Record Closed Date: 10/31/2023
Date of Decision: 11/09/2023
Date of Distribution if Different than Decision Date: N/A Hearing Officer: Leah Martin, Esq.
Time-Sensitive: No
1 Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/17/2023
For the Student:
[REDACTED] (“Parent Counsel”)
For the Department of Education:
[REDACTED] (“DOE Representative”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/24/2023
For the Student:
[REDACTED] (“Parent Counsel”), [REDACTED] (“OT Evaluator”)
For the Department of Education:
[REDACTED] (“DOE Representative”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/25/2023
For the Student:
[REDACTED] (“Parent Counsel”)
For the Department of Education:
[REDACTED] (“DOE Representative”), [REDACTED] (“DOE Representative2”), [REDACTED]
(“CPSE Administrator”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/11/2023
For the Student:
[REDACTED] (“Parent Counsel”), [REDACTED] (“SL Evaluator”), [REDACTED] (“Neuro Evaluator”), [REDACTED] (“School Psychologist”)
For the Department of Education:
[REDACTED] (“DOE Representative”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/06/2023
For the Student:
[REDACTED] (“Parent Counsel”), [REDACTED] (“DOE Special Education Teacher”)
[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 2020-21, 2021-22, and 2022-23 school years. (Ex. A).
I was appointed to hear the matter on November 2, 2022. On November 4, Parent Counsel appeared virtually for a Pre-Hearing Conference (“PHC”). 3 During the PHC, Parent Counsel requested the undersigned’s recusal from the matter, based on their opinion that the transfer of impartial hearings to OATH was unlawful. (PHC Transcript, p. 4-6). Their application was denied. (Id.). At the PHC, a schedule was set for the parties’ pendency and independent educational evaluations (“IEEs”) submissions and a due process hearing (“DPH”) was scheduled. 4 (See PHC Transcript; PHC Summary and Order). Parent Counsel also requested and was granted an extension for IEEs. (Id.; Order of Extension). A PHC Summary and Order was sent to the parties later that day. (See PHC Summary and Order). This included an order for the district to submit a due process response (“DPR”) and schedules by which the DOE’s pendency and IEE submissions were due. (Id.). No resolution meeting was held, or Due Process Response submitted in this case. (See PHC Transcript). In the absence of any response from the DOE, a pendency order was issued on November 15 (see Order on Pendency) and an interim order granting the requested IEEs was issued on December 7 (see Interim Order on IEEs, which is also Ex. FF). Upon submission of a motion by Parent Counsel to reconsider the pendency decision, the DOE agreed to the modification Parent was seeking and an Order of Agreement on Pendency was issued on December 13. (See Parent Motion to Reconsider PEND; PEND Agreement Emails; Order of Agreement on Pendency, which is also Ex. EE).
During the pendency of this case, status conferences were held on December 5, 2022, January 19, 2023, February 15, 2023, March 21, 2023, April 19, 2023, May 19, 2023, June 15, 2023, and July 19. 2023. (See SC Transcripts 12.5.22; 1.19.23; [2].15.23; [3].21.23; [4].19.23; 5.19.23; 6.15.23; 7.19.23). During these conferences from December 5 to June 19, extensions were requested and granted to obtain the ordered IEEs. (See Id.; Orders of Extension 2-8). On July 19, 2023, an extension was jointly requested and granted for witness availability and hearing dates were set for August 17, 24, and 25. (See SC Transcript 7.19.23; Order of Extension9). Parent Counsel requested and was granted one document subpoena and three witness subpoenas in advance of the hearing dates. (See Ex. D; KK).[5] At the time the witness subpoenas were issued, Parent Counsel was advised that unduly repetitious testimony would not be allowed, and they were expected to complete their case in the time that had already been scheduled. 6 (See Subpoenas Email). On August 10, Parent Counsel emailed indicating that the DOE Representative had not been able to accept service of the witness subpoenas (See Witness Scheduling Emails), but she made no attempt to have them served by other means (Tr. 309-310). Also on August 10, Parent Counsel indicated that two of her witnesses were out of the country during our scheduled hearing dates and requested an extension and adjournment of the hearing until September. (Id.). The existing hearing dates were not adjourned, but two additional hearing dates were added to conclude the Parents’ case. (Id.; Order of Extension10). During the August 25 hearing, Parent Counsel was instructed again to use her time efficiently, as no additional hearing dates would be added. (Tr. 168-171). The parties’ witnesses were taken out of order to accommodate the scheduling issues of Parents’ witnesses. (Id.). At the end of the September 11 hearing date, the parties jointly requested and were granted an extension to allow for written closing briefs. (Tr. 322-324; Order of Extension11). The final hearing date of September 15 had to be rescheduled due to a death in the undersigned’s family. (See Rescheduling Emails). It was rescheduled for October 6. (Id.). The final hearing date was held on October 6, 2023, during which a final extension was requested and granted to allow for closing briefs. (Order of Extension12).
The virtual DPH was held on August 17, 24, 25, September 11, and October 6, 2023. It was a closed hearing. Parent Counsel and DOE Representative were both present. Parent was present on October 6 only. At the DPH, the DOE entered four exhibits 7 and called one witness, CPSE Administrator. 8 (Tr. 40-41).[9] Parent entered 42 exhibits (A-R, T-PP, RR)[10] into evidence, including testimony affidavits of four witnesses: “OT Evaluator” (Ex. LL), “SL Evaluator” (Ex. MM), “Neuro Evaluator” (Ex. NN) and Parent (Ex. RR).[11] In total, Parent called six witnesses. In addition to their four affidavit witnesses, they also called two subpoenaed witnesses from the DOE – School Psychologist [12]
6 Parent Counsel was reminded of her time limitations at several other points during the proceedings. (See, e.g., Tr. 51-52, 168-171, 310, 326, 334, 342). Her cross-examination of the DOE’s witness lasted three hours. (Tr. 92-217). Her direct examination of School Psychologist lasted nearly 2 hours. (Tr. 249-307). 7 The rest of the ten proposed DOE exhibits were not admitted because they were duplicates of Parents’ exhibits. (Tr. 26-41). The DOE exhibits were belatedly sent, due to a technical issue, but were admitted on consent. (Id.). 8 She has been a CPSE Administrator since 2020. (Ex. 10-1). Prior to that position, she worked for the DOE for 27 years as a teacher, administrator, impartial hearing representative, and SETSS provider. (Tr. 98-108). She has a Master of Science degree in Special Education, she is licensed to be a school administrator and superintendent, is licensed/certified in Positive Behavior Intervention Strategies, collaborative team teaching, Wilson Fundations, Thinking Maps, and Schools Attuned Teacher and Trainer (Tr. 94-97). She is also New York State licensed to teach general education from nursery school to grade six and special education from birth to age 21. (Tr. 97-98). She is familiar with the student through review of his evaluations, conversations with his parents and service providers, and attendance at both of his CPSE meetings. (Ex. 10-1). Parent Counsel has argued that CPSE Administrator is not appropriately qualified because she never taught preschool, but I find her exceptionally qualified. and DOE Special Education Teacher.[13] A third subpoenaed DOE witness did not appear and Parent Counsel’s request to add an additional hearing date to allow their testimony was denied.[14] A written closing brief was submitted (late) by Parent Counsel.[15] The record was closed on October 31, after receipt of the hearing transcript and Parents’ closing brief.
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, 16 29 U.S.C. §794(a).
BACKGROUND
The student received early intervention (“EI”) services from the age of one. (Ex. A-3; T). During the school years at issue, the student was in preschool and kindergarten. (Ex. A-3-5). On February 23, 2021, the DOE convened a meeting of the committee on preschool special education (“CPSE”) and developed an individualized education plan (“IEP”) for the student. (Ex. A-3; L-1). The 2/23/21 IEP classified the student as a preschool student with a disability and recommended related services of speech-language therapy (“SLT”) (2x30x1) and occupational therapy (“OT”) (2x30x1) on a 10-month basis. (Ex. A-4; L-1). Parent requested that the CPSE reconvene to add special education itinerant teacher (“SEIT”) services to the IEP, but her request was denied. (Ex. A-4). The student’s mandated OT did not begin until April 2021, but services continued through the summer of 2021 to make up for the delay. (Ex. A-4; OO-4; 10-2).
On February [16], 2022, the DOE convened a CPSE meeting and developed an IEP for the student. (Ex. A-4-5; B-1). The 2/16/22 IEP recommended SEIT services (seven hours per week), with related services of SLT (2x30x1 and 1x30x2) and OT (2x30x1) on a 10-month basis. (Ex. A-5; B-1). The SEIT services and group SLT were not implemented until the end of April 2022. (Ex. A-5).
On May 9 and 16, 2022, the DOE convened a meeting of the committee on special education (“CSE”)[17] in anticipation of the student’s fifth birthday. (Ex. A-5). The CSE classified the student as speech or language impaired and developed an IEP for the 2022-23 10-month school year. (Ex. 9-1). The 5/9/22 IEP recommended special education teacher support services (“SETSS”)[once per week for math and twice for English language arts (“ELA”)], counseling (3x30x1), OT (2x30x1), and SLT (2x30x1 and 1x30x2) on a 10-month basis. (Ex. 9-20-21).
Parents allege a number of procedural and substantive violations that led to a denial of a FAPE for these three school years. (Ex. A). Parents are seeking compensatory education services, a physical therapy IEE, and prospective modifications of the student’s IEP. (Ex. I-5). [18]
ISSUES
The student’s eligibility for special education and disability classification are not in dispute here. Although the DPC contains a claim of discrimination under 504 (Ex. A-2), and Parent Counsel was instructed at the PHC that they have the burden of proof on that claim (PHC Transcript, p. 13), they did not argue it at the hearing or in their closing brief. Accordingly, I find that the 504 claim of discrimination has been abandoned and will not be discussed herein.[19] All remaining 504 claims involve the provision of a FAPE and are subsumed by the IDEA. (PHC Transcript, p. 10).
Parents allege that the DOE failed to offer a FAPE, on substantive and procedural grounds, for the 2020-21, 2021-22, and 2022-23 school years. (Ex. A). Although the DPC includes boilerplate language regarding myriad violations which led to a denial of a FAPE (Ex. A-8-13), the only claims argued at the hearing were the failure to timely evaluate and develop or implement the student’s first IEP after he turned three, the failure to assess the student’s risk of regression in advance of the 2/23/21 IEP, the lack of SEIT services and insufficient SLT and OT in the 2/23/21 IEP, the delayed implementation of the 2/23/21 IEP, the failure to reconvene the 2021 CSE at the Parents’ request, the failure to conduct a behavior assessment or address the student’s behavioral needs in the 2/16/22 IEP, the failure to include sufficient SEIT services, one-to-one instruction, or related services on the 2/16/22 IEP, the failure to adequately evaluate the student in preparation for his turning-five (5/9/22) IEP, the lack of evaluative support for reducing the student’s services in the 5/9/22 IEP, the failure to include sufficient one-to-one instruction to address the student’s needs in the 5/9/22 IEP, and the failure of the DOE to explain how the goals in all IEPs were developed. (Tr. 313-322, i-3-7). All claims not addressed by Parent Counsel at the hearing are deemed abandoned and will not be discussed further herein.
As remedy, Parents are requesting a PT IEE, modification of the student’s current IEP to include 30 hours per week of individual push-in SETSS, social skills training (1x45), counseling (2x30), OT (2x30 in school and 1x45 after school in a sensory gym), and SLT [2x30x1 and 1x30xgroup with a specialized methodology (“PROMPT” or oral motor myofunctional)] all on a 12-month basis, and compensatory educational services [80 hours of SLT, 138 hours of OT, 138 hours of counseling, 103.5 hours of social skills training, 3,762 hours of 1:1 SETSS] to be provided at the reasonable market rate with no expiration date. (Tr. 54-58, 318-322). 20
At hearing, the DOE indicated that they are disputing Parents’ allegations and the requested relief. (Tr. 58-59). Specifically, the DOE argued that “the student was provided with a timely and appropriate [IEP] for each respective school year” and that “the IEP team had sufficient evaluative data to make its appropriate recommendation.” (Tr. 58-59).
FINDINGS OF FACT 21
The student has a history of being hyperactive and unfocused and having communication and behavioral issues. (Ex. RR-2). During EI, the student received PT, SLT, and OT services. (Ex. A-3; RR3). The student was found to have low muscle tone around his mouth and on the left side of his body. (Ex. RR-11; E-2). During the 2019-20 school year, when the student was two years old, he attended a private preschool program (“Preschool”). During that school year, his EI PT services were discontinued. (Ex. RR-3). Shortly before his third birthday, the EI agency informed Parents that the student no longer qualified for SLT. (Ex. RR-4). The student’s [REDACTED] birthday was mid-June of 2020. (Ex. A-1, 3). The agency providing EI services told the Parents at that time that they believed the student would not qualify for an IEP in preschool because he no longer needed SLT, and his OT needs were not sufficient (he exhibited delay less than 25%). (Ex. RR-4; E-2). It is unclear from the record whether the agency communicated their belief regarding the student’s lack of eligibility to the DOE or not. (Tr. 162).
During the 2020-21 school year, the student attended the same Preschool, in a class with eighteen students and three teachers. (Ex. RR-4). According to Parent, the student struggled in that program due to his poor communication, social, and behavioral skills. (Ex. RR-4). At the request of Preschool, Parent referred the student for DOE evaluation sometime in the fall of 2020. (Ex. RR-4-5). [22]
The initial DOE evaluations took place in December 2020 and January 2021. (Ex. RR-5; E; F; G; H; I; J). Although Parents claim that those evaluations were done remotely [which made it difficult for the student to attend (Ex. RR-5)], I do not credit that assertion because several of the evaluation reports indicated that testing was done in person in the evaluators’ offices. (Ex. F-2; G-3; J-1). It appears that only the educational and speech-language evaluations were done remotely. (Ex. H-1; I-1). A social history (“12/20 Social History”) was conducted as part of the initial evaluation. (Ex. E). The 12/[20]
21 Facts contained in the “Introduction and Procedural History” and “Background” sections above are incorporated here as well. Social History noted concern over the student’s social/emotional development, inattention, impulsivity, hyperactivity, poor spatial awareness, poor motor development, sensory issues, and overall functioning in the classroom. (Ex. E-1-2).
During the December 15, 2020, psychoeducational evaluation (“12/20 Psychoeducational”), a parent interview was conducted, the student’s behavior was observed, and a number of formal assessments were performed. (Ex. F-2). During observation, the evaluator noted the student’s restlessness and constant motion but found that the student was able to attend to his assigned tasks and follow directions despite his overactivity. (Ex. F-2, 6). Low frustration tolerance was exhibited, as was poor verbal articulation. (Ex. F-2). The results of formal assessments found the student to be in the high average range of intelligence with low average verbal comprehension, superior visual-motor integration and working memory, average daily living skills, low social-emotional functioning, moderately low communicative abilities, moderately low adaptive skills, and low socialization skills. (Ex. F-3-7). Concern was noted over the student’s scores on the behavior rating scale, which were in the “significant” range on the Oppositional, Cognitive Problems/Inattention, Hyperactivity, and ADHD Indices. (Ex. F-6-7). The 12/20 Psychoeducational recommended further evaluations for speech, education,[23] and OT (fine and sensory motor). (Ex. F-7).
An OT evaluation was conducted on December 28, 2020 (“12/20 OT Evaluation”). (Ex. G-1). The evaluation report noted that the student exhibited “severe delays in the area of fine motor skills,” including grasping skills and pre-writing and bilateral motor coordination. (Ex. G-3-4). It also noted low tone in the student’s upper extremities, and that his “left leg resists passive stretch at the knee.” (Ex. G-3). Further issues were noted with visual-motor integration and sensory integration. (Ex. G-4). The student’s delays in fine motor and sensory processing skills were estimated to be “well over … 33%.” (Ex. G-6).
An educational evaluation was conducted remotely on January 6, 2021 (“1/21 Ed. Evaluation”). (Ex. H-1). The evaluator reported that the student was “fidgety, self-directed and very easily distracted. His distractibility did not always allow him to follow directions upon request, and he required repetition. Aside from being easily distracted, [the student] was seeking constant adult attention. As soon as the attention was taken off of him, he became more fidgety, impulsive, loud and interruptive.” (Ex. H-2). The student’s frustration was observed to increase and his behavior to worsen as the evaluation went on. (Ex. H-2). A classroom observation was conducted (in person) as part of the 1/21 Ed. Evaluation, as was a teacher interview. (Ex. H-3-4). During the classroom observation, the student was observed to exhibit disruptive behaviors,[24] hyperactivity, impulsivity, and sensory seeking behaviors. (Ex. H-3). His head teacher reported that he was “’a disaster’ and always on the go.” (Ex. H-3). The evaluator’s opinion of the student’s development was consistent with the psychoeducational evaluator – the student did not possess appropriate symbolic play skills, struggled with focus and inattention, was difficult to understand, exhibited a low frustration tolerance, struggled with following rules and directions, struggled with behavior and impulsivity, had safety awareness concerns, drooled, and had difficulty with sensory processing. (Ex. H-4-6). The evaluator summarized the student’s deficits as “global delays that are greater than 25%.” (Ex. H-6).
A speech-language evaluation (“1/21 SL Evaluation”) was done remotely on January 6, 2021. (Ex. I-1). The student was observed to exhibit low oral muscle tone and could only lateralize his tongue to one side of his mouth. (Ex. I-3). Mild receptive language delays were noted but found to be caused primarily by his attentional issues. (Ex. I-3). Expressive language delay was also observed, and exacerbated by the student’s low frustration tolerance, poor intelligibility, inattention, and hyperactivity. (Ex. I-4-5). The evaluator estimated that the student possessed articulation and speech intelligibility delays of 25%. (Ex. I-5).
A PT evaluation (“1/21 PT Evaluation”) was done on January 25, 2021. (Ex. J-1). The 1/21 PT Evaluation included a parent interview, clinical observation, and formal assessment using the Peabody Developmental Motor Scales II. (Ex. J-1). The evaluator found the student to have full active and passive range of motion in his extremities, normal muscle tone, fair to good strength, and proper balance reactions. (Ex. J-2-3). Overall, the student was found to have gross motor skills that approximated age-appropriate levels, with assessment scores only “-0.87 standard deviations below the mean.” (Ex. J-3). None of the evaluations conducted in preparation for the 2/23/21 IEP meeting mentioned any concern over regression or a recommendation for summer services. (Ex. E; F; G; H; I; J; K).
Prior to the 2/23/21 IEP meeting, the district provided Parents with the procedural safeguards notice, which explained their right to invite participants to the meeting. (Ex. OO-5).[25] The meeting was attended by Parent, CPSE Administrator as the district representative, and a representative of the evaluating agency in the role of special education teacher/related service provider. (Ex. L-3; Tr. 121-122). The student’s teacher was not at the meeting (Ex. RR-5) nor was any general education teacher (Ex. L-3).[26] According to Parent, she did not know that she was allowed to invite the teacher to the meeting. (Ex. RR-5-6). Prior to the meeting, CPSE Administrator reviewed the student’s evaluations. [27] (Ex. 10-2). She believed that the evaluations were sufficient to address the student’s areas of need. (Ex. 10-2).
The 2/23/21 IEP included results of the evaluations, including the OT and SLT issues as well as concerns about the student’s inattention, hyperactivity, impulsivity, oppositional and self-directed behaviors, sensory issues, lack of safety awareness, and poor socialization. (Ex. L-4-6). It also indicated that the student was functioning quite poorly in his preschool class. (Ex. L-6). The 2/23/21 IEP noted that the student “needs adult support to participate appropriately.” (Ex. L-7). In the section of the 2/23/21 IEP where it states whether the student needed a behavior intervention plan (“BIP”), both the “No” and “Yes” boxes were checked (Ex. L-7), but CPSE Administrator testified that they did not feel that a BIP or behavior interventions were necessary (Tr. 157-158, 160).[28] According to CPSE Administrator, “the student’s attention concerns were not unusual” for a [REDACTED] year old, and she believed at the time that recommending SEIT services “would grossly limit the student’s ability to learn to compensate and adapt on his own through building experience navigating expected social behaviors.” (Ex. 10-2; Tr. 136, 159). Additionally, according to CPSE Administrator, there “was no data to suggest” that individual special education services were necessary at that time because the student had no previous “formal preschool experience” and had not tried related services in the general education setting to see if they were sufficient. (Ex. 10-2; Tr. 136-137, 161-162). Additionally, CPSE Administrator was concerned about educating the student in the least restrictive environment (“LRE”). (Ex. 10-2). The student exhibited no signs of regression that would have warranted a 12-month program. (Tr. 144-146).
Parent requested one-to-one special education instruction at the IEP meeting to help with the student’s attentional issues, but her request was denied. (Ex. RR-5). CPSE Administrator testified that the denial was based on a lack of evidence that the student needed SEIT services, including the lack of school performance information. (Tr. 151-152, 154). This appears to be based on her mistaken belief that the student was either not attending school at the time or was not attending in person. (Tr. 136-137; 149; 152-154). She also stated that the student’s teacher was not at the CPSE meeting because he didn’t have one at the time. (Tr. 149). CPSE Administrator’s mistake about the student’s lack of preschool attendance calls into question the credibility of her other claims about the student’s functioning and needs at the time of the 2/23/21 IEP meeting.[29] The student’s 1/21 Ed. Evaluation contained concrete information about his in-person school attendance and performance. (Ex. H-3-4). Based on these inconsistencies, it appears that CPSE Administrator either failed to review the 1/21 Ed. Evaluation before the February 23, 2021, CSE meeting or that she overlooked important information therein. Either way, without that necessary information, her recommendations in that IEP lack credibility.
Ultimately, the 2/23/21 IEP recommended a 10-month program consisting of pull-out sessions of OT (2x30x1) and SLT (2x30x1). (Ex. L-1, 15). The related service recommendations were made by CPSE Administrator, based on the student’s evaluations. (Tr. 125-126, 131-). CPSE Administrator developed the IEP’s goals based on the reports of the student’s evaluators. (Tr. 163, 167, 171-176). Additionally, the 2/23/21 IEP included management needs of “1:1 instruction, repetition, visual and verbal cues, modeling,” adapted writing tools (such as a pencil grip or larger crayons), adapted scissors (such as Benbow scissors), a sensory diet, and other sensory strategies (such as use of a brushing program, squishing beanbags, resistive activities, scooter-boards, stretchy swings, trampoline, etc.). (Ex. L-7). The 2/23/21 IEP indicated that the CPSE considered a general education program with no related services but rejected it due to the student’s OT and speech delays. (Ex. L-1). There is no indication on the face of the IEP that any more restrictive programs or additional types of services (such as SEIT) were considered. (Ex. L). CPSE Administrator believed that the recommended program was appropriate to address the student’s areas on need in the LRE. 30 (Ex. 10-2; Tr. 141-142). The projected implementation date of the 2/23/21 IEP was March 8, 2021. (Ex. L-15).
According to Parent, the student’s teacher “was shocked” that the student had not been recommended for SEIT service to address his classroom behavior. (Ex. RR-5). However, the record does not contain any teacher reports or other evidence to that effect, nor did the teacher testify at the hearing. There is no indication in the record that the teacher’s recommendation for SEIT services was known to the CPSE at the time of the IEP meeting. Although the 1/21 Ed. Evaluation contained information from the student’s teacher about his problematic behaviors it did not specifically indicate that she had recommended SEIT services. (Ex. H-3). There is no indication in the IEP that the Parent had disagreed with the recommended amount of SLT or OT services (Ex. L) and I find that she did not. 31
On March 1, 2021, Parent emailed CPSE Administrator to request SEIT services, 32 indicating the teacher’s surprise that they had not been recommended. (Ex. RR-5-6; OO-6; Tr. 176). CPSE Administrator replied that it would be premature to reconvene a CPSE meeting without new documentation to consider. (Ex. RR-6; OO-5; Tr. 177). She suggested that they should wait until receiving progress reports from the student’s OT and SLT providers. (Ex. RR-6; OO-5). Parent alleges that mandated services did not begin until April. (Ex. RR-6). However, I do not fully credit that assertion. According to the email correspondence from CPSE administrator and her testimony, SLT services began on March 4 (Ex. OO-4) and only the OT services were delayed until April (Ex. 10-2). The student received summer services during the summer of 2021 to make up for the delayed implementation. (Ex. A-4; 10-2; Tr. 177-178).
A SLT Progress Report was issued on May 24, 2021 (“5/21 SLT Report”), that recommended SEIT services. 33 (Ex. RR-6; M). An OT Progress report was issued on May 25. (Ex. RR-6; N). 34 On June 11, 2021, Parent again contacted CPSE Administrator and requested that the student’s 30 Parent Counsel has tried to suggest that no SEIT services were recommended because of some DOE policy restricting the CPSE’s ability to recommend them, but I find no evidence of that in the record. CPSE Administrator and School Psychologist both testified repeatedly that there were no limits on the programs they could recommend. (Tr. 111, 134, 138-139, 185, 191, 258, 293). DOE Special Education Teacher, in her experience as a CPSE Administrator, testified similarly. (Tr. 359-360). 31 This is based both on the lack of concern noted in the IEP as well as the fact that none of the Parent’s later communications regarding SEIT services mentioned any other lacking services (Ex. OO). 32 There is no indication in the record that the Parent had disagreed with any aspect of the 2/23/21 IEP, apart from the lack of SEIT services. (Ex. OO). There is no evidence that Parent had requested additional SLT or OT services, or a 12-month program. 33 The report indicated that the student “struggle[d] … to maintain focus,” and required “constant redirection,” “reminders throughout the session to remain in his seat,” “maximum prompting to return to his seat and to place his attention on the activity,” and “multiple reminders to keep his hands to himself.” (Ex. M-1). The 5/21 SLT Report went on to say that the “clinician feels that [the student] would benefit from the assistance of a SEIT to help him learn how to appropriately direct his energy and to remain focused.” (Ex. M-1). 34 While the OT report did not explicitly recommend SEIT or other services to address the student’s behavior, it did note many of the same issues as the 5/21 SLT Report. (Ex. N). Specifically, it stated that the student “presents with poor attention span, easily distracted and requiring maximum to moderate cues to attend to task at hand due to impulsive behaviors; he demonstrates poor social skills evidenced by not following instructions and remain focused during play, poor parallel play and need for redirect during social situations.” (Ex. N-1). The report continued the recommendation for twice weekly OT. (Ex. N-2). recommendations be re-evaluated in light of the new reports. (Ex. RR-6; OO-3). On June 14, 2021, CPSE Administrator indicated that she would seek additional information from the student’s school and that they could discuss the request. 35 (Ex. RR-6; OO-3). Having received no follow up from CPSE Administrator, Parent reached out again on July 27, requesting a new CPSE review meeting to consider SEIT services. (Ex. RR-7; OO-3). Later that day, CPSE Administrator denied the request for a review meeting and sent Parent a prior written notice (“PWN”) explaining that decision. (Ex. RR-7; OO-2-3). According to the PWN, 36 the student had not been receiving services for enough time to be able to show progress on the annual goals or allow the service providers and teacher to collaborate on appropriate strategies to address the student’s behaviors. (Ex. PP-2). Furthermore, the PWN stated that there was no evidence of any strategies that had been tried and failed. (Ex. PP-2). A link to the procedural safeguards notice was included in the email. (Ex. PP-3).
On July 27, 2021, Parent told CPSE Administrator by email that she wanted an impartial hearing. (Ex. RR-7; OO-2). No impartial hearing request was filed at that time. Parent followed up on August 10 regarding the status of her impartial hearing, but CPSE Administrator replied that Parent needed to follow the proper procedures to submit a request for impartial hearing, as contained in the procedural safeguards notice that was previously sent. (Ex. RR-7; OO-1). An additional copy of the procedural safeguards notice was attached to the email. (Ex. OO-1, 7-52). Parent claims that she did not understand the language in the procedural safeguards notice. (Ex. RR-8). However, Parent has an associate’s degree and works as a court reporter. (Ex. RR-1). Based on her level of education and professional experience, I do not credit that assertion. 37 There is no indication that she attempted to consult legal counsel or properly filed a due process request prior to the instant matter.
For the 2021-22 school year, the student again attended the same Preschool. (Ex. RR-8). A CPSE review meeting was held on February 16, 2022. Prior to the meeting, Parent sent the DOE a letter from the student’s classroom teacher (“2/22 Teacher Report”). 38 (EX. RR-8; JJ). The DOE also received progress reports from the student’s OT and SLT providers prior to the meeting. (Ex. 6; 7; RR-8). The teacher report noted improvement and described a number of classroom strategies that they had tried (detailed below). (Ex. JJ-2). The teacher report recommended SEIT services. (Ex. JJ-2). The IEP stated that progress was reported by the student’s teacher and related service providers. (Ex. B-1).
The SLT progress report from January 31, 2022 (“1/22 SLT Report”) described the student as having low impulse control, reduced spatial awareness, restlessness that impacted his ability to follow directions, and issues with voice modulation (he often speaks too loudly). (Ex. 6-2). The 1/22 SLT
35 It appears that there were some errors in the submitted progress reports, and corrected versions were submitted to the DOE on June 15, 2021. (Ex. PP-1). 36 CPSE Administrator testified that the decision was based on a lack of new documentation that might change the outcome. (Ex. 10-2). However, the OT and SLT Reports were new documentation, so that does not appear to be accurate. I credit the assertions in the PWN as to the denial, as those statements were made contemporaneously with the decision. 37 Even if the assertion were true, it is irrelevant here as the DOE provided the required notice. 38 The student’s teacher that year was his grandmother. (Ex. RR-8). The record also contains a letter from the grandmother dated January 3, 2022, which expressed similar concerns to the other providers – impulsivity which affected classroom performance and socialization, voice modulation issues, restlessness, distractibility, and the need for prompts and redirection. (Ex. O-1). However, there is no indication in the record that the January 3rd letter was ever provided to the DOE, so it will not be considered as part of what the CPSE knew. Report also listed results from a number of formal assessments, the only one of which below the 25th percentile was the student’s “Sounds-in-Words” articulation (5th percentile). (Ex. 6-1). The report further noted that the student required frequent prompts and redirection. (Ex. 6-2). His receptive and expressive language skills were noted to be in the average range. (Ex. 6-2). Difficulty was noted with the student’s articulation, given that he spoke quickly and did not swallow his saliva. (Ex. 6-3). However, “emerging skills” were noted in concepts of sequence, attributes, inclusion, and exclusion. (Ex. 6-2). The student was also credited with the ability to follow one and two-step commands incorporating sequential and temporal directions. (Ex. 6-2).
The OT progress report from February 7, 2022 (“2/22 OT Report”) noted that the student “demonstrates poor sensory processing and regulation, often running around, getting up from his assigned seat during activities, jumping on chairs when not in a direct 1:1 environment.” (Ex. 7-1). Improvement in fine motor skills was observed, but the student continued to struggle with impulse control, sensory processing, activities of daily living, social interaction, and focus. (Ex. 7-1). The 2/22 OT Report recommended continued OT twice weekly to address those issues. (Ex. 7-2). Neither the 1/22 SLT Report, the 2/22 OT Report, or the 2/22 Teacher Report mentioned any issues with regression, nor did they request more sessions of SLT or OT than were recommended in the IEP. (Ex. 6; 7; O).
The February 16, 2022, CPSE meeting took place by phone, with participation from Parent, CPSE Administrator, the student’s general education teacher, and DOE Special Education Teacher. [39] (Ex. B-3; 10-3; Tr. 183-184, 349). Prior to the meeting, CPSE Administrator reviewed reports from the student’s teacher and service providers. (Ex. 10-3; Tr. 179). She believed they “had sufficient evaluative data because the reports that were provided demonstrated the student’s areas of progress and areas of continued struggle.” (Ex. 10-3).
The 2/16/22 IEP included the relevant concerns (noted in the reports above) of the student’s teacher and service providers that required additional support. (Ex. B-1-6). It also reflected Parent’s concerns over the student’s lack of focus and inability to follow two-step directions. (Ex. B-2). The IEP discussed a number of classroom strategies that had been implemented to help with the student’s issues (such as a series of physical gestures to cue the student, a command countdown, a balancing cushion, movement and sensory breaks, and “squishy hugs” for sensory input), which had proven somewhat helpful, if inconsistently so. (Ex. B-4-5). Overall, the IEP described some progress by the student, although more social progress than academic. (Ex. B-5).
Management needs in the 2/16/22 IEP included “verbal and visual cuing, positive reinforcement, preferential seating, repetition, chunking and simplification of directives, small group instruction, verbal negotiation/preparation and modeling, [and] sensory strategies.” (Ex. B-6). The IEP indicated that those supports were “to be implemented by primary instructor and providing therapist for optimal learning in the classroom environment.” (Ex. B-6). It indicated that the student needed strategies to address behaviors but not a behavior intervention plan. (Ex. B-6; Tr. 199-200).[40] Seven hours of SEIT services per week were added to the student’s 2/16/22 IEP, as was group SLT (in addition to the previous related service mandates). (Ex. RR-8; B-1, 15). According to CPSE Administrator, SEIT services were recommended because by then the student was [REDACTED] years old and had had sufficient time to work with related service providers but needed additional individualized attention. (Ex. 10-3; Tr. 184-185). Group SLT was added to address the student’s issues with interpersonal communication and relationships. (Tr. 189). The 2/16/22 IEP did not include a 12-month program. (Ex. B-1, 16). There was no mention of regression issues in the 2/16/22 IEP, nor did it reflect a request for 12-month services by the Parent or other CPSE members. (Ex. B).
CPSE Administrator believes that the 2/16/22 IEP addressed the student’s needs: SLT for “aspects of pragmatic speech, socialization, and regulation of voice/rate,” OT for “fine motor coordination, social skills, graphomotor skills, sensory processing, attention span, and [activities of daily living],” and SEIT to “help the student regulate and compensate for impulsive, repetitive behavior, and provide a means for the student to keep focus and develop appropriate social behaviors with peers.” (Ex. 10-3-4). The IEP goals were developed based on the teacher and provider reports. (Tr. 204-212). CPSE Administrator testified that she believed the recommendations were sufficient to meet the student’s needs in the LRE. (Tr. 186 ,188, 192-193).
The projected beginning date for the new services in the 2/16/22 IEP was March 15, 2022. (Ex. B-15). However, implementation of the new services was delayed until April 26, when Parent herself located a provider. (Ex. RR-8-9; R-1).
In preparation for the student’s turning-five CSE meeting, the DOE conducted a classroom observation (“4/22 Classroom Observation”) and social history update (“5/22 Social History”). (Ex. RR9). Parent believes that these evaluations were insufficient to address the student’s potential attention deficit hyperactivity disorder (“ADHD”) or fully assess his needs. (Ex. RR-9). However, those issues were addressed in the 12/20 Psychoeducational and 1/21 Ed. Evaluation, which were still current[41] and considered by the CSE (Ex. 9-1-2; Tr. 264-265). School Psychologist testified that the classroom observation and social history update were done to establish whether anything had changed since the time of the previous evaluation. (Tr. 264-265). She believed the combination of the previous evaluations with the updated reports and information from the student’s related service providers gave sufficient information about the student’s functioning. (Tr. 266-267).
During the classroom observation,[42] there were eleven students, and two teachers present and the student’s SEIT provider was not present. (Ex. P-1; Tr. 263). During the observation period, School Psychologist noted that the student appeared to interact appropriately with his peers but struggled with interfering behaviors (such as speaking too loudly, and frequently getting out of his seat) and inattention/lack of focus. (Ex. P-1-2). Based on School Psychologist’s input from the student’s teacher, the 4/22 Classroom Observation recommended that the student “continue to get services to help improve his functioning for next school year.” (Ex. P-2). The 5/22 Social History was based[43] on interviews with Parent and a review of records. (Ex. Q-1; Tr. 265). It indicated Parent’s concerns over the student’s lack of focus, short attention span, impulsivity, inability to color in the lines, articulation and volume regulation issues, and difficulty with two-step directions. (Ex. Q-1-2). It further indicated that Parent “reported that she was happy with the services [the student] is currently receiving which includes his [SEIT], [OT], and [SLT]. However, she shared that it took the [CPSE] a long time to approve[] his SEIT services …[and] she reported being unhappy for the delay in the start of these services [and felt that] he required additional time with these services in order to make enough progress to be successful next school year.” (Ex. Q-1). No concerns were noted regarding regression. (Ex. Q-2).
Parent, the student’s regular education teacher, his SEIT provider, and School Psychologist participated in the May CSE meetings. (Ex. 9-28). According to Parent, the teacher and SEIT provider recommended at least a continuation of the current SEIT mandate (seven hours per week). (Ex. RR-10). However, that request is not specifically reflected in the IEP. (Ex. 9). Although the IEP reflected the teacher’s desire to see the student “continue to get services,” it did not specify any particular type or amount. (Ex. 9-3). Similarly, the IEP indicated the SEIT provider’s opinion that the student “continues to require Special Education support services in order to address [his] needs,” but it did not indicate any opinion about the amount of services required. (Ex. 9-4).
The 5/9/22 IEP indicated that the student had “shown improvement in his fine motor skills from poor to fair for in hand manipulation skills.” (Ex. 9-6). The IEP stated that, according to the student’s SEIT provider, “when focused, [the student] is able to understand the classwork and material taught.” (Ex. 9-4). His teacher reported that he has “mastered most of his early academic skills.” (Ex. 9-3). Similarly, the IEP indicated that Parent was “not [] concerned” with the student’s pre-academic skills (Ex. 9-4), but rather had only expressed concern about his speech challenges, inattention, limited focus, impulsivity, difficulty following directions, fine motor skills, and sensory processing. (Ex. 9-4-6).
Ultimately, the 5/9/22 IEP recommended SETSS (one period per week during math and twice per week during ELA), as well as related services of counseling (3x30x1), OT (2x30x1 – one push-in and one pull-out), and SLT [2x30x1 (one push-in and one pull-out) as well as 1x30 in a group of two as a push-in service] for the 10-month school year. (Ex. 9-21-22). The annual goals were developed based on information gained from the School Psychologist’s observation of the student as well as data from his various providers. (Tr. 294-300). The 5/9/22 IEP contained the following management needs:
-frequent movement breaks -if-then instructions -preferential seating, near an adult -verbal and nonverbal cues -clear and concise directions -directions/questions repeated and/or rephrased -visual cues when information is presented verbally -additional time for verbal responses -praise and encouragement -reward system when he remains in seat or nearby chair -specified time to share information he desires -nonverbal reminder about swallowing saliva -pre-teaching when possible (Ex. 9-6). The 5/9/22 IEP indicated that the student does not need a behavior plan or behavioral interventions. (Ex. 9-7). School Psychologist felt the student would be able to function in his current setting with the recommended services and management needs, without a behavior plan. (Tr. 284-287). When School Psychologist did the 4/22 Classroom Observation, she “did a lot of prompting of academic skills” with the student and he was “on target with the academic skills that he requires for kindergarten.” (Tr. 287-289). Because of that, she felt like the amount of SETSS recommended was sufficient to work on any instruction he missed during periods of inattention. (Tr. 288).
The IEP indicated that an integrated co-teaching program was considered and rejected at the meeting because they felt it was too restrictive. (Ex. 9-27). It also indicated that general education with related services only was considered and rejected because it would not be supportive enough. (Ex. 9-27). There is no indication from the IEP that a behavior paraprofessional was considered for the student. (Ex. 9). School Psychologist testified that she felt the SETSS were sufficient to support the student. (Tr. 303).
There is no indication in the record that anyone present at the May 9 IEP meeting requested summer services. Although Parent has alleged in her affidavit that the SEIT provider “provided data about [the student]’s regression during breaks” (Ex. RR-10), I do not credit this assertion. First, the SEIT provider had only begun working with the student on April 26, which was only nine business days before the CSE meeting.[44] It is unclear from the record how many days per week the student met with his SEIT provider, but it is fair to assume that they had only met a few times prior to the CSE meeting and she would not have had any personal information about the student’s regression over school breaks. Furthermore, the 5/9/22 IEP does not reflect any concerns over regression from either the evaluative materials or from input at the meeting. (Ex. 9). Similarly, the IEP does not indicate that Parent requested summer services. (Ex. 9).
Although the student’s SEIT provider wrote a letter in the Spring of 2022 (“SEIT Letter”) that indicated that she observed the student to experience regression during school breaks, 45 (Ex. R-1), it is unclear from the record whether that letter was issued prior to the May 9 meeting. The SEIT Letter also indicated that the student was responding very positively to SEIT services and had “come a long way in just a short amount of time.”[46] (Ex. R-1). The date of the letter is unclear from the record, which contains conflicting information. (Ex. R-1). The letter itself is undated. (Ex. R-1). Parent claims that it was issued in May 2022. (Ex. RR-9). The letter is mentioned in the IEP and noted as being issued on June 1. (Ex. 9-3). School Psychologist was unsure at the hearing whether the June 1 reference was a clerical error or whether the letter had been received after the meeting but before the IEP was finalized.
45 Although the letter used the words “significant regression” (Ex. R-1), it gave no information about the length of review necessary so as to establish the applicability of that term, as it is defined by statute. Furthermore, although the letter indicated the SEIT provider’s opinion that this regression “confirms [the student’s] need for maintaining skills that have just begun to emerge,” she did not explain how to achieve that skill maintenance and did not explicitly recommend extended school year services. (Ex. R-1). (Tr. 275-278). Regardless of the date it was issued, the 5/9/22 IEP quoted directly from the SEIT Letter in places, so it is clear that it was available to at least the School Psychologist (who wrote the IEP) before the IEP was finalized. (Ex. 9-3-4). However, given the dubious personal knowledge the SEIT could have obtained about the student’s regression in such a short amount of time (as discussed above), and the lack of data in the SEIT Letter regarding any regression, I do not find reliable evidence in the record that the CSE had reason to believe that the student experienced significant regression during the summer at the time the 5/9/22 IEP was developed. Additionally, according to School Psychologist, the turning-five IEP does not involve the summer portion of the school year – if a student needed summer services, they would be provided by the CPSE prior to the student’s start of kindergarten. (Tr. 280-281). The implementation date on the 5/9/22 IEP is September 1, 2022. (Ex. 9-1).
In September 2022, the student was enrolled in a private kindergarten[47] and the instant DPC was filed. (Ex. RR-10). In October 2022, it appears that the 5/9/22 IEP was amended to add special transportation accommodations (Ex. C-1), but the revised IEP is not in evidence. [48]
During the pendency of this case, Parents requested and were granted IEEs for OT (“OT IEE”), speech-language (“SL IEE”), AT (“AT IEE”), and neuropsychology (“Neuropsych IEE”). (Order on IEEs; Ex. A-14; AA; BB; CC; DD). The OT IEE was performed on February 20, 2023, by OT Evaluator.[49] (Ex. AA-1). The Neuropsych IEE was performed on various dates in April and May of 2023 by Neuro Evaluator.[50] (Ex. DD-1). The SL IEE was performed on February 24, 2023, by SL Evaluator.[51] (Ex. BB-1; MM-3). The AT IEE was performed on February 24, 2023, also by SL Evaluator. (Ex. CC-1; MM-3).
As part of the OT IEE, OT Evaluator reviewed past evaluations, progress reports, and IEPs, interviewed the student’s current SEIT and OT providers, and performed a number of formal and informal assessments.[52] (Ex. AA-2-3; LL-3-4). During the OT IEE, OT Evaluator observed the student to be easily distracted, requiring frequent redirection, but found that he had a “fair attention span.” (Ex. AA-3; LL-5). The student “presented with decreased endurance for fine motor and gross motor tasks.” (Ex. AA-3; LL-5). He was found to possess “average to low average muscle tone throughout his trunk and extremities,” which would “impact his concentration, grasp patterns, posture and endurance to complete upper extremity activities.” (Ex. AA-4; LL-6). The student was found to have retained primitive reflexes, which are supposed to gradually integrate during the first year of life. (Ex. AA-4). These primitive reflexes impact the student’s “muscle tone, balance, posture, eye-hand coordination, crossing midline,[53] visual tracking, attention and concentration.” (Ex. AA-4; LL-6; Tr. 76). The student showed decreased ability to coordinate simultaneous movements in his arms and legs. (Ex. AA-4; LL7).
The student’s OT assessments showed him to be in the below average range for fine motor precision, manual dexterity, manual coordination, and fine motor composite. (Ex. AA-6; LL-8). He demonstrated decreased skills of in-hand manipulation, which are essential to the process of handwriting. (Ex. AA-7; LL-9-10). The student exhibited above average visual perception and very low motor coordination, showing that his handwriting challenges are caused by motor coordination difficulties (and decreased strength and endurance) rather than visual-motor integration. (Ex. AA-8-9; LL-10). The student was found to have difficulty completing tasks when there is a lot of background noise. (Ex. AA-11). Due to the student’s sensory processing issues, he presents with poor body awareness, sensory-seeking behaviors (such as body movement, climbing, noise making, and putting things in his mouth), distractibility, and “behavioral and attentional responses associated with sensory processing” (such as low frustration tolerance, tantrums, and struggling to maintain attention). (Ex. AA12-13; LL-12-13). The student’s skills for daily activities (such as dressing, feeding, hygiene, etc.) and social/cognitive (involving interaction, communication, everyday cognition, etc.) were in the low range for his age. (Ex. AA-14-15; LL-13).
According to OT Evaluator, the student’s deficits, noted above, “negatively impact [his] ability to participate in his current academic curriculum.” (Ex. AA-17). OT Evaluator recommends that the student receive pull-out OT (2x30x1) on a 12-month basis “to maintain progress and prevent regression,” as well as one additional OT session after school (1x45) in a sensory gym.[54] (Ex. AA-17; LL-13-14). OT Evaluator reviewed the student’s records and did not have any data to suggest that the student experiences regression during the summer, but rather her assessment of his potential for regression was based on his significant needs and deficits. (Tr. 72-73). OT Evaluator recommends a bank of 138 hours of OT (“approximately 1 hour per week for 3 years at 46 weeks per year”) with no expiration “to minimize the gaps that are present,” remedy lacking prior interventions,[55] and maximize his potential. (Ex. AA-17-18; LL-14-16; Tr. 74, 77, 79).
According to a progress report from the student’s OT provider, issued on June 5, 2023, the student “presents with a coordinated body. He can jump and hop in a coordinated fashion. He executes core exercises with good motor planning.” (Ex. GG-1). “He can copy all basic shapes. His letter formation is generally good but does fluctuate somewhat depending on his attention. … [He] can cut out basic shapes and irregular shapes on the line and in a timely fashion.” (Ex. GG-1). Difficulty was noted regarding the student’s stamina, impulsivity, and need for “almost constant cuing.” (Ex. GG-1-2). Also noted was that the student needs “vestibular input followed by proprioception in order to help him focus.” (Ex. GG-1). However, overall, the student’s OT provider described his fine motor skills as “functional.” (Ex. GG-2). Sensory and movement breaks were recommended through the day. (Ex. GG2).
As part of the SL IEE, SL Evaluator reviewed the student’s records (including past evaluations, progress reports, and IEPs), reviewed intake forms from Parent and the student’s teacher, SEIT provider, and SLT provider, and performed a number of formal and informal assessments.[56] (Ex. BB-1-4; MM-4-5). Based on formal assessments, the student was found to have average language abilities for his age, including average listening comprehension, oral expression, reading comprehension, written expression, oral language, written language receptive language, expressive language, and overall language. (Ex. BB4-6, 9). He also was found to have average picture sequencing and narrative generation skills, (Ex. BB10- 11). According to Parent and teacher reports, the student was found to “not participate appropriately in conversations and social situations,” indicating a significantly below average pragmatics profile. (Ex. BB-11-12; MM-7). “[A]ll parameters of voice and fluency were judged to be within typical limits” for the student’s age. (Ex. BB-12). The student’s “oral peripheral speech mechanisms” (face, tongue, lips, teeth, mandible, hard palate, and soft palate) were found to be “atypical in terms of shape, placement, development, coordination, symmetry, tone, and function.” (Ex. BB-13; MM-6). “Overall, [the student] exhibits low lingual strength and coordination.” (Ex. BB-13). The student’s articulation skills measured in the significantly below average range, such that he is intelligible to familiar listeners but “sometimes unintelligible to new and/or untrained listeners.” (Ex. BB-13-14; MM-7).
According to SL Evaluator, the student “presents with severe delays in social skills, oral motor skills, and articulation skills which impact his academic skills during literacy (reading and spelling) tasks.” (Ex. BB-4, 15; MM-5-6). The SL IEE recommended pull-out SLT (2x30x1 and 1x30 in a group of four for the 10-month school year. (Ex. BB-16; MM-9; Tr. 229). The report stated that a “P.R.O.M.P.T.-trained or oral motor/myofunctional trained[57] provider is preferred in order to address his oral motor and articulation deficits.” (Ex. BB-16; MM-9). A bank of 80 hours of compensatory SLT was recommended (2 hours per week for 40 weeks) based on the failure to provide SLT between June 2020 through February 2021, the failure of the 2/23/21 IEP to provide for the recommended group SLT session, and the failure to mandate a P.R.O.M.P.T. or oral motor/myofunctional trained provider.[58] (Ex. BB-16; MM-9-10; Tr. 230). Flexible scheduling and no expiration date was recommended for the compensatory sessions. (Ex. M-10).
According to a progress report from the student’s SLT provider, issued on May 8, 2023, the student has improved in his ability to control his rate of speech, “correctly produce both voiced and voiceless /th/ in nonsense words, words, and phrases during structured tasks,” and final consonant deletion. (Ex. HH-2). According to the SLT provider, the student continues to need SLT to remediate deficits relating to attending, conversational skills, listening skills, and articulation. (Ex. HH-1-2).
As part of the AT IEE, SL Evaluator reviewed the student’s records (including past evaluations, progress reports, and IEPs), reviewed intake forms from Parent and the student’s teacher, SEIT provider, and SLT provider, and introduced a number of different AT programs[59] to the student. (Ex. CC-1-4). SL Evaluator did not recommend that the student receive AT. (Ex. CC-7).
As part of the Neuropsych IEE, Neuro Evaluator reviewed past evaluations, progress reports, and IEPs, interviewed the student’s current SEIT, classroom teacher, and Parent, observed the student in class,[60] did two behavioral observation sessions,[61] and performed a number of formal assessments. (Ex. DD-1-7; NN-3-5; Tr. 237-239). The Neuropsych IEE report notes that the student’s “academic/preacademic skills are reportedly at level,[62] with no significant concerns[63] expressed to parents.” (Ex. DD-2). Rather, the student’s main struggles in school have to do with trouble getting him to sit still and pay attention, along with the articulation problems caused by the low muscle tone in his mouth and his socialization issues. (Ex. DD-2, 5). The report notes that the student used to have serious regulation issues, which were addressed by a psychologist and are better now – he still tantrums but “is helped by knowing what to expect.” (Ex. DD-2). According to the student’s SEIT provider, as reported to Neuro Evaluator, the student’s play skills and socialization have improved during 2022-23 school year,[64] but he still struggles with inattention and impulsive behaviors, requiring “a full-time professional to provide frequent prompts, redirect his attention when he gets distracted, and to systematically provide reinforcement for appropriate behaviors.” (Ex. DD-5). The student’s teacher similarly expressed a need for full time support and “concern about regression over the summer.”[65] (Ex. DD-5).
During Neuro Evaluator’s classroom observation, the student was with 19 students and two teachers. (Ex. DD-5; Tr. 239). The student was observed to be generally on task but fidgety and he would call out answers without being called on. (Ex. DD-6; NN-6). During clinical observation, the student was distractible and struggled to maintain focus. (Ex. DD-6-7). Although his speech was noted to be “fluent and grammatical” it was also too loud and his “speech intelligibility was reduced by articulation difficulties.” (Ex. DD-6; NN-5). The student was not found to exhibit frustration during difficult tasks. (Ex. DD-7). The formal assessments showed the student’s overall intellectual ability in the superior range and his overall academic skills in the average range, but he demonstrates difficulties in attention and executive functioning (specifically with behavior regulation, impulse control, focus, self-control, inattention, and hyperactivity). (Ex. DD-8-9). His receptive language is in the average to above average range, and his expressive language is average. (Ex. DD-9). Inconsistencies were noted in various subtests, which were generally attributed to lapses in attention and focus. (Ex. DD-7-9). His “awareness of the appropriateness of language in relation to the situation was above average.” (Ex. DD-10). It was reported that the student has some difficulty with social responsiveness but no problems with social cognition, social communication, or social motivation. (Ex. DD-11).
Overall, Neuro Evaluator found that although the student’s academic skills were average for his age, they were below expectations given his “superior intellect.” (Ex. DD-11). Specifically, the student’s graphomotor and fine motor difficulties, inattention, sensory regulation, distractibility, hyperactivity, impulsivity, and articulation problems were noted to impact his academic performance. (Ex. DD-11-12). He was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), Developmental Disorder of Speech and Language (for his speech impairment), and Unspecified Neurodevelopmental Disorder (for his difficulties with left side muscle tone).[66] (Ex. DD-12; NN-6). According to Neuro Evaluator, these diagnoses interfere with the student’s learning in various ways:
a. He struggles to listen and follow instruction.
b. He does not observe social cues or interact appropriately with his peers;
c. He has difficulty sustaining interactions and conversations; and d. He has weakness in communication and social skills. (Ex. NN-7). Neuro Evaluator believes the student “responds to positive attention and reinforcement” and “is able to learn quickly when given the necessary supports.” (Ex. NN-7).
Neuro Evaluator recommends the student be placed in a “small, structured, and supportive mainstream classroom”[67] with full-time individual “special education professional support”[68] on a 12-month basis “to prevent regression.”[69] (Ex. DD-12-13; NN-8; Tr. 245). Also recommended was behavior therapy and parent training with a psychologist, specialized reading and writing instruction, SLT focused on articulation, pragmatics and social language, and feeding, continued OT, a physical therapy evaluation, counseling (1x30x1 and 1x30 in a group), social skills training (1x45), and compensatory services. (Ex. DD-13-14; NN-8). Neuro Evaluator testified at hearing that social skills could be addressed in other therapies, such as counseling, OT, or SLT. (Tr. 244).
Regarding compensatory services, the Neuropsych IEE recommended “1:1 special education instruction hours” “given previously insufficient SEIT hours” for the three prior school years. (Ex. DD-13). No specific hour recommendation was made in the Neuropsych IEE. (See Id.). At hearing, Neuro Evaluator testified that she recommends 3,762 hours of special education instruction/tutoring based on 30 hours per week, multiplied by three extended school years (46 weeks each) (4,140 hours), minus her approximation of the amount of SEIT hours received during those years (4,140-378 = 3,762). (Ex. NN11). Also recommended at hearing was a bank of 138 counseling hours (one hour per week x 46 weeks x three school years) and 103.5 hours of social skills training (.75 hours x 46 weeks x three school years). (Ex. NN-11). All compensatory hours were recommended to have flexible scheduling and no expiration. (Ex. NN-11).
According to a progress report from the student’s SEIT provider, issued on June 5, 2023, the student “has made some progress given current levels of SEIT support and intervention [seven hours of individual service per week] in his current setting.” (Ex. II-1). However, the report goes on to say that the student “has not been able to display the skills he is learning in the classroom when SEIT support in not provided.” (Ex .II-1). Although the report characterizes the student’s comprehension delays as “significant,” this is contradicted by the fact that it also states that his reading grade equivalent is on grade level. (Ex. II-1). Based on the description given, it appears that any academic “deficits” may be related to the student’s inattention.[70] (Ex. II-1). The student’s math grade equivalent is also noted to be on level, as is his writing legibility. (Ex. II-1-2). The report notes that the student “requires 1:1 assistance to participate effectively due to extreme impulsivity and attention deficits, and a desire to follow his own agenda.” (Ex. II-3). The report recommends additional weekly SEIT hours on a 12-month basis “to avoid regression.”[71] (Ex. II-4).
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 student who needs only accommodations or services, but not special education, does not qualify as a student with a disability under the IDEA. See J.R. v. Bd. of Educ. for the Iroquois Cent. Sch. Dist, 2020 U.S. Dist. LEXIS 221608 at *43 (W.D.N.Y. 11/24/20) citing Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69 (1st Cir. 2016).
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)]. Generally, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with nondisabled peers, known as the least-restrictive environment (“LRE”). 34 C.F.R §300.114(a)(2).
The appropriateness of an IEP should be evaluated prospectively from the time that it was created. See R.E. v. N.Y.N. Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012); D.N. v. Bd. of Educ., 2015 WL 5822226, *29 (E.D.N.Y. 9/28/15). Information not available to the CSE may not be relied upon to invalidate a substantively appropriate IEP. C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376, *13 (S.D.N.Y. 12/23/13); J.M. v N.Y.C. Dep't of Educ., 2013 WL 5951436, *18-*19 (S.D.N.Y. 11/7/13)(holding that a progress report created subsequent to the CSE meeting may not be used to challenge the appropriateness of the IEP).
An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs that result from the student’s disability. 20 U.S.C. §1414(d)(1)(A)(ii); 34 C.F.R. §300.320(a)(2)(i); 8 NYCRR §200.4(d)(2)(iii)). Even where deficiencies are identified in the IEPs annual goals, that is unlikely, on its own, to rise to the level of a denial of a FAPE because an IEP need not identify annual goals as the only vehicle for addressing each of the student’s needs. See J.B. v. NYC Dep’t of Educ., 242 F.Supp.3d 186, 199 (E.D.N.Y. 2017). Furthermore, courts have been reluctant to find a denial of a FAPE based on insufficient specification regarding how goals will be measured if the goals otherwise address the student’s area of need. See D.A.B. v. NYC Dep’t of Educ., 973 F.Supp.2d 344, 359-61 (S.D.N.Y. 2013); A.D. v. NYC Dep’t of Educ., 2013 WL 1155570, at *10-11 (S.D.N.Y. 3/19/13); J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *13 (S.D.N.Y. 2/20/13); P.K. v. NYC Dep’t of Educ., 819 F.Supp.2d 90, 109 (S.D.N.Y. 2011); Application of a Student with a Disability, Appeal Nos. 23-087 (“I do not find that the goals in the proposed IEP were so faulty that it would have prevented the student from making educational progress”); 23-117 (finding that while the student’s math goal was “broad, when considered in combination with the supports recommended for the student, including math ICT services, the math annual goal generally addressed the student’s math needs as described in her present levels of performance. …while the CSE could have written a more detailed and particularized math goal, I decline to find that any flaws would alter the outcome of this case because when assessed within the context of the overall supports and services recommended for the student in [the IEP]”).
Generally, an IEP need not specify a particular instructional methodology. Rowley, 458 U.S. at 204; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 (2d Cir. 10/29/14); A.S. v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 (2d Cir. 7/29/14); K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 (2d Cir. 7/24/13). However, “when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide services consistent with that consensus is not ‘reasonably calculated to enable the child to receive educational benefits.’” A.M. v. New York City Dept. of Educ., 845 F.3d 523, 543 (2d Cir. 2017) citing R.E. v. New York City Dept. of Educ., 694 F.3d 167 (2d Cir. 2012) and C.F. v. New York City Dept. of Educ., 746 F.3d 68 (2d Cir. 2014).
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). While a student with disabilities advancing from grade to grade does not automatically guarantee that a FAPE is being provided, the fact that such a student is doing so while fully integrated in a regular education classroom is a good indication that the student’s program is “reasonably calculated to enable the child to receive educational benefits.” Board of Ed. Of Hendrick Hudson Central Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982).
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 provision of a FAPE could require an extended school year (“ESY”) if one is needed to prevent substantial regression. 8 N.Y.C.R.R. §§200.6(k); 200.1(eee). "Substantial regression" is defined as "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year." 8 N.Y.C.R.R. §200.1[aaa]. In order to constitute “substantial regression,” the student’s educational loss during the summer must be so severe that it requires an inordinate period of reteaching at the beginning of the next school year (8 weeks or more) to recoup the previous level of skill or knowledge. See VESID, “Extended School Year Programs and Services Questions and Answers,” (2006); 72 "Questions and Answers Extended School Year 2017," Office of Special Educ. (Feb. 2017); [73] Application of a Student with a Disability, Appeal No. 05-114 (a review period of eight weeks or more would likely indicate that substantial aggression has occurred).
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). Additionally, a district must honor a parent’s request for re-evaluation if one has not occurred within the previous 12 months. M.S. v. Lake Elsinore Unified School District, 69 IDELR 148 (9th Cir. 2017). 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). The CSE must consider the development of a behavior intervention plan (“BIP”) when a “student exhibits persistent behaviors that impede his or her learning
72 Available at http://www.vesid.nysed.gov/specialed/publications/policy/esy/qa2006.htm. or that of others, despite consistently implemented general school-wide or classroom-wide interventions,” and include any behavioral strategies in the student’s IEP. 8 N.Y.C.R.R. §200.22(b). A functional behavior assessment or BIP are not necessary to the provision of a FAPE if the student’s IEP appropriately “identifies a student’s behavioral impediments and implements strategies to address that behavior.” M.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131, 140 (2d Cir. 2013).
For students transitioning between early intervention (“EI”) services and preschool, the agency responsible for providing EI services is responsible for scheduling the child’s transition meeting at least 90 days before the child’s third birthday. 34 C.F.R. §303.209. However, the district has an obligation to conduct an IEP meeting and offer a FAPE when the child turns 3, whether or not there has been a transition meeting. See 34 C.F.R. §§300.124(b) and 300.101(b). Although an IEP must be developed by the child's third birthday, implementation need not predate the student's actual attendance at the new school. See, e.g., Anderson Cmty. Sch. Corp., 62 IDELR 67 (SEA IN 2013) (Although the district began implementing the IEP a week and a half after the child turned 3 in January, that was the first day the student attended the school.).
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 re-evaluate 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).
Relief
Compensatory Education
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.
An IHO generally has broad authority to fashion appropriate equitable relief. See Mr. and Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 (S.D.N.Y. 2011); Forest Grove v. T.A., 129 S.Ct. 2484 (2009). “Generally, compensatory services are not designed for the purpose of maximizing a student's potential or to guarantee that the student achieves a particular grade-level in the student's areas of need.” Application of a Student with a Disability, Appeal No. 23-028, citing Application of a Student with a Disability, Appeal No. 16-033; cf. Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998). “Rather, an award of compensatory education should place the student in the position that he would have been in had the district acted properly.” Id. citing Parents of Student
W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1497 (9th Cir. 994)(holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA" and finding "[t]here is no obligation to provide a day-for-day compensation for time missed").
Where a district fails to implement a student's pendency placement, students should receive the pendency services to which they were entitled as a compensatory remedy. Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015)(directing full reimbursement for unimplemented pendency services because less than complete reimbursement for missed pendency services "would undermine the stay-put provision by giving the agency an incentive to ignore the stay-put obligation"); Student X v. N.Y.C. Dep’t of Educ., 2008 WL 4890440, at *25 (E.D.N.Y. 2008); Application of a Student with a Disability, Appeal No. 23-028; 23-022. 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. v. Trumbull Board of Education, 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). A parent may request an IEE if the district did not conduct a sufficiently comprehensive evaluation or failed to test the student in an area of need. Trumbull, 975 F.3d at 165; Letter to Baus, 65 IDELR 81 (OSEP 2015); Letter to Carroll, 68 IDELR 279 (OSEP 2016).
A parent is entitled to only one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees. 34 C.F.R. §300.502(b)(5). A parent must disagree with a district evaluation as of the time it was conducted, and subsequent changes in circumstances do not support a disagreement with an evaluation. Trumbull, 975 F.3d at 171, citing N.D.S. by and Through de Campos Salles v. Acad. for Sci. and Agric. Charter Sch., 2018 WL 6201725, at *2 (D. Minn. Nov. 28, 2018)(["'Informing a school that, subsequent to an evaluation, a child's condition has changed is not the same thing as disagreeing with the evaluation'"). Under those circumstances, the appropriate course of action would be more frequent evaluations (and the parents are entitled to request one per year) not an IEE at public expense. Application of a Student with a Disability, Appeal No. 23-018. Prospective IEP/IESP Modifications
A court may direct a school district to reconvene and revise a student’s IEP for the purpose of recommending an appropriate program and placement. See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381 (D.D.C. 2018) (noting with approval the hearing officer’s finding “that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school”). However, prospective relief in the form of IEP amendments may have the effect of circumventing the statutory process in that the CSE is tasked with reviewing information about the student's progress and periodically assessing the student's needs. See Adams 285 F. Supp. 3d at 393; Student X v. New York City Dep't of Educ., 2008 WL 4890440, *16 (E.D.N.Y. 10/30/08)(noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"). Concerns about circumventing the CSE process arise most prominently in matters where the school year challenged has ended and, in accordance with its obligation to review a student's IEP at least annually, the CSE would have already convened to produce an IEP for the following school year. See V.W. v. New York City Dep't of Educ., 2022 WL 3448096, *7 (S.D.N.Y. 8/17/22)(acknowledging that "orders of prospective services are disfavored as a matter of law" and, in the matter at hand, indicating that "the CSE should have already convened for subsequent school years); M.F. v. N. Syracuse Cent. Sch. Dist., 2019 WL 1432768, *8 (N.D.N.Y. 3/29/19)(declining to speculate as to the likelihood that the district would offer the student a FAPE "in the future" and, therefore, denying prospective relief); Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 (D.D.C. Aug. 24, 2012)(noting that prospective placement is not an appropriate remedy until the IEP for the current school year has been completed and the parent challenges the IEP for the current school year); Application of a Student with a Disability, Appeal No. 23-010 (declining to award prospective placement where the school year at issue had already ended “and presumably the CSE had an opportunity to craft an IEP or IESP that met the student’s needs for the [following school year]).
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). Parents have the burden of proof for all 504 claims. See, e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990). At an impartial hearing, the party seeking extended school year (“ESY”) services bears the burden of production. See New York State’s 2022 guidance on ESY programs, available at Extended School Year Questions and Answers 2022 (nysed.gov); D.D-S. v. Southold Union Free Sch. Dist., No. 09-CV-5026, 2011 WL 3919040 (E.D.N.Y. 9/2/11).
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, 790 F.3d at 457; 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 compensatory 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. 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 the 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 the Endrew F. standard is not applicable to the 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). Moreover, unreasonable actions on the part of the student’s parents may make it appropriate to reduce a compensatory award. See Application of a Student with a Disability, Appeal No. 23-093.
ANALYSIS AND CONCLUSIONS OF LAW
First, the student’s eligibility for special education services and disability classification are not in dispute in this case. (Tr. 31-32). Second, I have reviewed the Parents’ remaining 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.
As a final preliminary matter, it is important to note that because the appropriateness of an IEP must be evaluated prospectively at the time it was created, based on information known to the CPSE/CSE at that time, the analysis regarding these IEPs will not include consideration of any of the IEEs in evidence or the Evaluators’ testimony as to the results of testing. The IEEs in evidence were not created until after the operative CPSE/CSE meetings, so the CPSE/CSE was not aware of their contents at the time the IEPs were drafted. The testimony of the Evaluators regarding the results of subsequent testing similarly was not available to the CPSE/CSE. There may be additional reports in evidence that were not available to the CPCS/CSE at the time of the meetings, as noted in the facts section above. When analyzing each respective IEP, I will only consider the information I have found that the CPSE/CSE possessed at the time of the meeting. Any additional information in the record will be considered only in the context of any appropriate relief to be granted.
2020-2021 School Year
Here, the DOE did not meet its burden of proof. They did not offer any testimony or evidence to explain the delayed evaluations and why there was no IEP in place at the time of the student’s third birthday, as required. Even if the EI provider mistakenly believed the student would not have been eligible for an IEP, the DOE would have needed to do an evaluation to make that determination, and they delayed doing so for six months after the student’s [REDACTED] birthday. However, I do not find any denial of a FAPE based on the lack of services for the summer of 2020. Although the student turned three in June, the DOE would only have been required to implement services at the start of the school year. There is no evidence in the record to establish that the student was previously a 12-month student or that the Parent had requested ESY services. In fact, the EI provider did not seem to believe that the student still required services at all. Accordingly, any denial of a FAPE for this school year will be analyzed based on the 10-month school year. Based on the delayed IEP meeting, there was a denial of appropriate services (OT, SLT, and SEIT) between the start of the 2020-21 school year and the projected implementation date of the 2/23/21 IEP, which was March 8, 2021.
I find that the evaluations, once conducted, were sufficiently comprehensive to identify all areas of the student’s need and provide a baseline of functioning on which to develop an appropriate program.
I also find that the goals and management needs in the 2/23/21 IEP were appropriate.
I find that the record adequately supports the OT and SLT recommendations in the 2/23/21 IEP, and Parent seemed happy about them at the time as well. While the DOE’s OT and SL Evaluations in evidence did not include specific recommendations for the frequency and duration of services, a representative of the evaluating agency participated in the CPSE meeting. Furthermore, since the student had not previously received these services from the DOE, there was no baseline to establish a frequency that may have been sufficient. Moreover, as to any alleged lack of specialized speech methodology or training (PROMPT or oral-motor myofunctional), I find that this was not necessary. Generally, a specific methodology does not need to be included in an IEP unless there is a consensus among providers that it is necessary. The record establishes no such consensus here, nor does it contain sufficient explanation of why any licensed speech therapist could not provide the help the student needed. For all these reasons, I find no denial of a FAPE based on insufficient SLT or OT mandates. Furthermore, I find no denial of a FAPE based on the delayed implementation of the related services, as summer services were provided to make up for the delay.
However, as noted in the Facts section, CPSE Administrator appears to have missed significant information about the student’s classroom performance when she reviewed the available evaluations. Thus, on the facts before me, I cannot credit her assertion that the student did not additionally require SEIT services in the 2/23/21 IEP to address his attention and behavioral issues. The 1/21 Ed. Evaluation detailed the student’s disruptive behaviors and need for constant adult attention. Safety concerns were also noted. While overactivity and attention issues may be common for many three-year-old children, it seems unusual that a teacher would describe the average preschooler as “a disaster.” Accordingly, I find that the DOE has not met their burden of proving that the student did not require additional supports for attention and behavior, such as SEIT services, in the 2/23/21 IEP. Thus, in total, the student was deprived of OT and SLT services from the start of the 2020-21 school year until March 8, 2021, and was deprived of SEIT services for the entire 2020-21 school year. [74]
2021-22 School Year
Here, the DOE did not meet its burden of proof regarding the provision of a FAPE for the first part of the school year until the implementation date of the 2/16/22 IEP, which was March 16, 2022. As discussed above, the DOE has failed to show that the IEP in effect at the start of the school year (the 2/23/21 IEP) included sufficient attentional and behavioral supports, such as SEIT services. There was sufficient information in the 1/21 Ed. Evaluation to make that determination. Thereafter, the district was provided with additional information in the 5/21 SLT Report and May 25, 2021, OT Progress Report that further demonstrated the student’s need for such services. The 5/21 SLT Report specifically recommended SEIT services for the student “to help him learn how to appropriately direct his energy and to remain focused.” Accordingly, the student should have received SEIT services from the start of the 2021-22 10-month school year[75] until March 16, 2022. The DOE’s failure to provide those services resulted in a denial of a FAPE for that specified period.
As for the 2/16/22 IEP, I find that the DOE has met its burden of showing that it was substantively appropriate. The deficiencies claimed by Parent Counsel at hearing were the failure to conduct a BIP or otherwise address the student’s behavior needs, the failure to include more SEIT services, and the failure to include more related services. These will be addressed in turn.
While the student’s behavior was problematic, the IEP did identify the student’s behavior impediments and implement strategies to address that behavior. Additionally, the IEP described some progress utilizing those strategies in the preceding months. I find that the 2/16/22 IEP provided appropriate goals and management needs, several of which were directed at the student’s behavior. Additionally, the student’s teacher and SLT provider had both recommended SEIT services to address the student’s behavior, which were included in the IEP. Accordingly, I credit the testimony of CPSE Administrator that a BIP was not needed at that time to further address the student’s behavioral issues. Not only does she have approximately three decades of experience in special education, but she is also a licensed special educator and licensed in Positive Behavior Intervention Strategies. She has the knowledge and experience to make such a determination, and there is other evidence in the record that supports her assessment at the time of the 2/16/22 IEP.
I find that the record adequately supports the OT and SLT recommendations in the 2/16/22 IEP as well. They are consistent with the recommendations of the student’s service providers. Furthermore, the student had shown progress with his previous service mandates, which were similar. Group SLT was included to provide additional support for the student’s interpersonal communication and social deficits.
I find that no specific speech methodology or specialized training was necessary to the provision of a FAPE. Generally, a specific methodology does not need to be included in an IEP unless there is a consensus among providers that it is necessary. The record establishes no such consensus here, nor does it contain sufficient explanation of why any licensed speech therapist could not provide the help the student needed. Accordingly, I credit the testimony of CPSE Administrator that the CPSE believed the 2/16/22 IEP’s recommendations were appropriate to meet the student’s OT and SLT needs at that time. There is no indication in the record that anyone at the meeting (including the Parent) expressed a need for more robust related service mandates or requested an increase from the amount recommended. Furthermore, it is noteworthy that even Parent’s own SL Evaluator recommends the same SLT mandate as was recommended in the 2/16/22 IEP; the only difference between the two is the specialized methodology/training, which I find unnecessary. [76]
Moreover, I find that the 2/16/22 IEP included an appropriate SEIT mandate. I find that it was consistent with the recommendations of the student’s teacher and service providers. It was enough to provide the student individual behavioral instruction on a more than daily basis. I credit the testimony of CPSE Administrator that the CPSE believed seven hours of SEIT services was appropriate to meet the student’s needs in the LRE. Although Parent may have wished for additional services, a FAPE does not require everything thought desirable by loving parents. The record supports the CPSE’s conclusion that the addition of SEIT services in combination with the other related services, behavior strategies, and management needs would be appropriate to meet the student’s needs in the LRE.
Finally, I do not find the lack of ESY mandate to be a denial of a FAPE. There is no evidence in the record to establish that the student was previously a 12-month student. Neither the 1/22 SLT Report, the 2/22 OT Report, or the 2/22 Teacher Report mentioned any issues with regression. There was no mention of regression issues in the 2/16/22 IEP, nor did it reflect an ESY request by the Parent or other CPSE members. At that time, the CPSE had no reason to believe the student experienced regression, let alone the level of significant regression that would qualify for an ESY under the statute. Accordingly, the IEP’s 10-month program was appropriate.
For all these reasons, I find that the 2/16/22 IEP was substantively appropriate. However, I do find that the six-week delay in implementation of the SEIT services did result in a denial of a FAPE for the period between March 15 and April 26, 2022. The DOE has not offered any explanation to explain the delay, nor were summer services offered to compensate for that period of deprivation. Accordingly, I find that the student was deprived of a FAPE, consisting of a lack of SEIT services, for the entire 2021-22 school year up to April 26, 2022.
2022-23 School Year
First, I find no merit to Parents’ claim that the student was not appropriately evaluated in advance of his turning-five IEP meeting. It had not been three years since the student’s last full evaluation, and there is no evidence in the record that Parent had requested a re-evaluation. As such, the previous evaluation results were still current and the CSE appropriately considered them as part of their determination. Updated information was then gathered from Parent and the student’s teacher and service providers to establish any changes from the time of prior formal testing. Furthermore, Parent indicated to School Psychologist at the time that she was happy with his current services, so there was no reason for the CSE to know that Parent saw additional areas of need that had not been appropriately evaluated or addressed. Similarly, reports from the student’s teachers and service providers did not raise any new issues which warranted further evaluation. Accordingly, I credit the School Psychologist’s assertion that she believed the combination of evaluative materials gave the CSE sufficient information about the student’s functioning to develop an appropriate program.
Second, there is no merit to Parents’ suggestion that the 5/9/22 IEP was inappropriate because it failed to include SEIT services. By statute, SEIT services are only available to preschool-aged students. See 8 NYCRR §§200.16(e)(3) and 200.6. Accordingly, SEIT services were not an available option for the student’s turning-five IEP, when he was school-aged. Thus, the services in the IEP will be evaluated based on the supports they provided and how they met the student’s needs rather than whether they were called “SEIT” or not.
As to the 5/9/22 IEP, I find that it was substantively appropriate. Although Parent Counsel has described this IEP as both a significant change in placement and a reduction in services, I do not find that to be accurate. Although the student’s seven SEIT periods were replaced by three SETSS periods, three push-in counseling sessions were added to make up much of the difference. One OT session per week and two SLT sessions (one group and one individual) were also provided as a push-in service, so that the student would be receiving individualized support in the classroom nine times per week. Since the student’s main issues in the classroom were behavioral, rather than academic, it was reasonable for the CSE to conclude that the support of a related service provider could be as effective as that of a special educator to curb the student’s disruptive behaviors. I find the goals and management needs appropriate to address the student’s areas of need. Furthermore, I find the IEP to be consistent with the SEIT provider and teacher’s recommendations that the student continue to receive special education services to address his needs. I am not sure why a behavior paraprofessional was not at least considered by the CSE. However, based on the record before me, I credit the testimony of School Psychologist that she felt, given the student’s proficiency with academic skills, that the recommended supports and management needs would be sufficient.
Similarly, I find that the related service recommendations were appropriate. I credit School Psychologist’s conclusion that the service mandates were sufficient to meet the student’s needs. The counseling was appropriate to help the student with his behavioral and social-emotional needs in the classroom. The OT and SLT mandates were consistent with the recommendations of his service providers and were the same as his previous IEP, with which he was making progress. Furthermore, Parent was satisfied with those recommendations at the time. Moreover, as noted previously, the SLT mandate was consistent with the current recommendations of Parent’s SL Evaluator, with the exception of the specialized methodology/training, which I find unnecessary.
Furthermore, I find no reason to conclude that an ESY was necessary for a FAPE. There is no indication in the record that the student experienced significant regression, requiring approximately eight or more weeks of review after the summer break to recover previously mastered skills or knowledge. Although the SEIT Letter had vaguely mentioned regression, it did not provide information necessary to satisfy the statutory definition of substantial regression. I do not find that anyone discussed regression or requested an ESY at the relevant CSE meeting. Furthermore, there is no indication in the record that any of the student’s current or former teachers or other service providers had ever raised concerns over regression. And, as discussed in the Facts section, the student’s SEIT provider (the only person expressing this concern at that point) had barely begun working with the student and I do not believe she had worked with him over any long school breaks. So, her basis of knowledge regarding regression was unreliable at best. Accordingly, I find no basis to conclude that the provision of a 10-month program was inappropriate or that the student qualified for an ESY. For all these reasons, I find that the DOE has met its burden of providing that the student was offered a FAPE for the 2022-23 school year.
Relief
IEE:
I do not find that Parents are entitled to the requested IEE at public expense. A parent is only entitled to one IEE at public expense per DOE evaluation, and they already requested and were granted a collection of IEEs at public expense in an interim order. Furthermore, at the time they first disagreed with the relevant evaluation (in the DPC), they did not disagree with the lack of a PT evaluation. Although the law allows parents to disagree with a DOE evaluation on the ground that it was insufficiently comprehensive, that disagreement must be based on their belief as of the time that it was created,[77] and changes in circumstances do not support disagreement on different grounds at a later date. Under these circumstances, the appropriate course of action would be to request that the DOE perform a re-evaluation, including the assessments now believed to be lacking.[78] For these reasons, I find that Parents are not entitled to a PT IEE at public expense. If they desire a PT evaluation, they can request that the district perform one or they can obtain one independently, at their own expense.
Compensatory Education:
I find that some, but not all, of the requested compensatory educational services are appropriate in this case. Here, the FAPE denials consist of a deprivation of SLT (2x30x1) and OT (2x30x1) from the start of the 2020-21 10-month school year until March 8, 2021, and a deprivation of SEIT services for the entire 2020-21 10-month school year as well as the 2021-22 10-month school year up to April 26, 2022. Since I have found that the SEIT recommendation from the 2/16/22 IEP (7x60x1) was appropriate, and I find that recommendation consistent with the student’s needs during the 2020-21 school year as well, I will use that same frequency and duration as the services denied. So, on a quantitative basis, the student was deprived of SLT and OT for approximately twenty-two weeks (one hour per week).[79] He was denied SEIT services for approximately sixty-five weeks (seven hours per week) (36 weeks in 2020-21 plus 29 weeks in 2021-22). [80] As for OT and SLT, I find that those are still areas of need for the student and that he can benefit from compensatory services to make up for those that should have been provided (2x30 for 22 weeks) but were not. So, the student is entitled to 22 compensatory hours each of individual OT and SLT.
I find an insufficient basis in the record to grant anything other than the quantitative compensatory OT and SLT hours described above. The recommendations of the OT and SL Evaluators was based on the results of current testing, so they have no direct correlation to what the student’s needs were at the time the IEPs were drafted or the specific periods of FAPE deprivation I have found. The results of current testing are just a snapshot of the student’s current needs, and do not show his past needs as the CSE understood them at the time the IEPs were developed. Even if I were to accept as true that the recommendations of the OT and SL Evaluators are necessary for the student, I find insufficient basis in the record to conclude that what the student currently needs is the same as what was needed at the time his previous IEPs were drafted. Furthermore, the recommendations of the OT Evaluator were based on their assessment of the student’s functional deficits (as a whole) and to maximize his potential. But the purpose of compensatory education is not to maximize potential; it must have a causal link to the period of FAPE deprivation, which in terms of OT I have found to only be 22 weeks (rather than 138 weeks). When you look at the specific recommendation of OT Evaluator, it amounts to one hour per week of compensatory OT for each week of deprivation, which is what I have calculated above. The compensatory SLT recommendation of SL Evaluator is based on the period of deprivation during the 2020-21 school year up to when the 2/23/21 IEP was implemented, which I have accounted for in my assessment, and the failure to mandate a specialized methodology and training thereafter, which I have found not to have caused a denial of a FAPE. Accordingly, I have calculated an award consistent with the only portion of SL Evaluator’s recommendation that warrants a remedy.
As for the Neuro Evaluator’s recommendation for compensatory counseling and social skills training, I find no basis in the record for those recommendations. There has been no alleged denial of a FAPE based on a lack of counseling or social skills training, nor have I found those services to be lacking. Accordingly, there is no deprivation of a FAPE that would appropriately be remedied through the provision of those services.
As for compensatory SEIT hours, or their equivalent, I decline to order them. Although I find that the student was deprived of approximately sixty-five weeks of SEIT services (seven hours per week), the need for compensatory services is not supported by the record. Based on the record before me, the student has been performing grade-level academic work with no issues. According to the Neuropsych IEE, the Parent has no concerns over academics. According to the SEIT Report and 5/9/22 IEP, the student responded positively to SEIT services and was doing quite well. He has been receiving SEIT services ever since – first under the 2/16/22 IEP and then through pendency. There is no indication in the record that the student is not performing well academically. Accordingly, there appears to be no educational losses actually caused by the deprivation of SEIT services. Furthermore, even if there were deficits, I do not believe that ordering make-up services, after the fact, would serve to remedy them. Apart from the student’s OT and SLT issues, which are addressed above, the student’s only real issues in school are behavioral/attentional in nature and are biproducts of his hyperactivity, inattention, and impulsive behaviors. By and large, the purpose of the SEIT services, or their equivalent, is to make sure there is an adult beside the student to step in when he gets distracted or acts out. That role must necessarily be filled contemporaneously, while the student is distracted or being disruptive. Providing services after the fact does not provide what the student actually needs, which is to have an adult there to redirect him in the moment. Furthermore, even if there were deficits that could be made up, the student has received SEIT services for more than an entire school year through pendency, which would account for the vast majority of the hours that were missed. For all these reasons, I do not find that compensatory SEIT services, or their equivalent, are warranted here. For the reasons just described, I do not find compensatory SEIT hours appropriate here, notwithstanding the recommendation of Neuro Evaluator for 3,762 hours. Even if I had found educational deficits to remedy, and if I believed they could be remedied by ordering services after the fact, I would find such a recommendation without a basis in the record. The recommendations of Neuro Evaluator were based on the results of current testing, so they have no direct link to what the student’s needs were at the time the IEPs were drafted or what periods of FAPE deprivation I have found. Again, the Neuropsych IEE only gives us a snapshot of the student’s current functioning and one person’s opinion about the student’s ideal educational program. The record does not support her conclusion that all the student’s prior IEPs should have included 30 hours per week of SEIT services for 46 weeks per year, for all the reasons discussed above. Even if I found that those hours were otherwise warranted, which I do not, a request for that number of hours is the exact situation contemplated by M.M., 2017 WL 1194685, at *8, where they described that an educational service may be helpful in moderate amounts but “useless, or even burdensome, if provided in overwhelming quantity.” Furthermore, I do not find any causal link between a FAPE deprivation and the student’s current deficits. As discussed above, there do not actually appear to be any educational deficits here. Additionally, the record suggests that the student’s behavioral and attentional issues may be caused by an underlying medical issue. There is no evidence in the record that Parent has explored the option of medication for the student to improve his functioning in the classroom. A lack of appropriate medication may be as much to blame as any lack of appropriate classroom supports if the student’s ADHD is untreated. For all these reasons, I do not find it appropriate to order compensatory hours of 1:1 special education instruction (apart from the OT and SLT described above). There are no equitable considerations that affect this award. IEP Modifications: Since the 2022-23 school year is now over and the 5/9/22 IEP is no longer the operative one, I believe the request for its modification going forward is moot. Even if it were not moot, I would decline to order any prospective IEP modifications here. In this case, such an order would circumvent the statutory process because the challenged school years have already ended and the CSE should already have reviewed the student’s IEP for the 2023-24 school year. I find that the purposes of the IDEA would be best effectuated by ordering the CSE to reconvene and consider all the available evaluative material in determining the appropriate program for the student.
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:
1. ORDERED that the New York City Department of Education shall provide 22 hours each of individual OT and SLT as a bank of compensatory education services. All compensatory services must be provided by an appropriately licensed provider of the Parents’ choosing at the reasonable market rate. All sessions must be used within one year of the date of this Order; and it is further
2. ORDERED that the New York City Department of Education’s Committee on Special Education shall convene a review meeting to consider all available evaluative material and develop an IEP with an appropriate program and services in light of the findings therein.
SO ORDERED.
DATED: November 09, 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
6. SLT Report 1/31/22 3 pages DOE
7. OT Report 2/7/22 2 pages DOE
9. IEP 5/9/22 28 pages DOE
10. Affidavit of CPSE Administrator 8/8/23 4 pages DOE
PARENT EXHIBITS
A. DPC 9/7/22 18 pages
B. CPSE IEP 2/16/22 18 pages
C. DOE Transportation Accommodations Letter 10/12/22 2 pages
D. Records Subpoena 7/28/23 2 pages
E. CPSE Social History 12/15/20 3 pages
F. CPSE Psychological Evaluation 12/15/20 7 pages
G. CPSE OT Evaluation 12/28/20 7 pages
H. CPSE Teletherapy Educational Evaluation 1/6/21 7 pages
I. CPSE Teletherapy Speech Language Evaluation 1/6/21 5 pages
J. CPSE PT Evaluation 1/25/21 3 pages
K. Preschool Student Evaluation Summary Report 1/27/21 4 pages
L. CPSE IEP 2/23/21 19 pages
M. SL Progress Report and Request for Assessment 5/24/21 2 pages
N. OT Progress Report 5/25/21 2 pages
O. Teacher Report 1/3/22 1 page
P. Classroom Observation 4/25/22, 5/8/22 2 pages
Q. Social History Update 5/9/22 2 pages
R. SEIT Progress Report 6/1/22 1 page
T. IFSP 6/7/18 10 pages
U. DOE Continuum of Special Education Services Summer 2020 23 pages
V. NYS Next Generation Mathematics Learning Standards June 2019 24 pages
W. NYS Next Generation ELA Learning Standards 2017 18 pages
X. OT Evaluator Resume Undated 2 pages
Y. SL Evaluator Resume Undated 6 pages
Z. Neuro Evaluator Resume January 2021 13 pages
AA. OT IEE 3/28/23 19 pages
BB. SL IEE 6/23/23 17 pages
CC. AT IEE 6/23/23 8 pages
DD. Neuropsychological IEE 6/27/23 18 pages
EE. Statement of Agreement and Order on Pendency 12/13/22 7 pages
FF. Interim Order on IEEs 12/7/22 7 pages
GG. OT Progress Report 6/5/23 2 pages
HH. SLT Progress Note 5/8/23 2 pages
II. SEIT Progress Report 6/5/23 5 pages
JJ. Teacher Report with Email Confirmation 2/16/22 2 pages
KK. DOE Witness Subpoenas 8/1/23 3 pages
LL. Affidavit of OT Evaluator Undated 16 pages
MM. Affidavit of SL Evaluator Undated 10 pages
NN. Affidavit of Neuro Evaluator Undated 11 pages
OO. Parent Emails with CPSE Various 52 pages
PP. DOE PWN 7/27/21 3 pages
RR. Affidavit of Parent Undated 12 pages
IHO’S EXHIBITS
PARENT
i. Closing Brief 10/30/23 12 pages
Footnotes
[2] Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parent 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 Exhibit A, page 1, will be referred to as (Ex. A-1). A complete list of hearing exhibits is attached herewith as Appendix A.
[3] Despite being included on the scheduling email and conference invitation, no one from the DOE appeared at the PHC. I do not believe that a representative was assigned to the case yet at that time.
[4] This hearing date was later cancelled due to delay in obtaining the IEEs. (See SC Transcript 12.5.22).
[5] Although Parent Counsel requested in her closing brief that the undersigned draw an adverse inference from the DOE’s failure to supply all of the documents requested in their subpoena, there is no evidence in the record that the subpoena was ever properly served on the DOE, nor did Parent Counsel raise any lack of compliance at any time when the DOE had the opportunity to respond. Accordingly, I decline to draw any adverse inferences here.
[9] References to the hearing transcript will be referred to as (Tr.) followed by the page number within the transcript.
[10] Exhibit S was initially admitted but later stricken for a lack of relevance. Portions of Exhibits V and W were stricken for lack of relevance. Exhibit QQ was not admitted for lack of relevance. (Tr. 337-339).
[11] The affidavits in evidence are undated, unsigned, and unnotarized. They were sworn on the record before being admitted into evidence.
[12] She has a Ph.D. in Clinical and School Psychology and is a state-certified school psychologist. (Tr. 249-250). She has worked for the DOE for 19 years. (Tr. 251). Prior to that she was a school psychologist at a private special education preschool. (Tr. 251-252).
[13] She has a master’s degree in Bilingual Special Education and certifications as a school building leader and a bilingual special education teacher for pre-kindergarten to 12th grade. (Tr. 344-345). She taught special education for 18 years before becoming a CPSE administrator in 2017. (Tr. 346-347).
[14] Despite knowing that this witness would not be appearing at any of the hearing dates, Parent Counsel made no effort to compel their attendance through court proceedings. (Tr. 309-310; 324-326, 332-333). Additionally, the requested offer of proof regarding this witness was submitted after the deadline set by the undersigned. Furthermore, the offer of proof was entirely speculative – the proposed witness had no direct connection to this case, had not appeared at any of the relevant CPSE/CSE meetings, and could not offer testimony that could not have been explored through the other DOE witnesses. (See Offer of Proof Emails; Tr. 333). Finally, the proposed witness had no available dates in October that worked for the parties and the IHO, so multiple additional extensions would have been needed to accommodate their testimony. (See Id.).
[15] Parent Counsel requested to extend the deadline by email on October 27 (See Brief Extension Emails) and then did not meet the extended deadline (See Parent Brief Email). She also consistently showed up late to conferences and hearing dates and repeatedly submitted testimony affidavits after the stated deadline, which caused hearing delays (Tr. 67, 223-224, 231- 232, ). The DOE did not submit a written closing. Parents’ closing brief is included in the record as an IHO exhibit (Ex. i). Parties were warned that briefs submitted late would not be considered. (Tr. 372-373; Brief Extension Emails). Even though Parent’s brief was submitted late, I did review it, but it does not raise any new arguments and has not impacted the outcome of the decision. I have included it here for completion of the record.
[16] 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.
[17] Parent participated in the meeting. (Ex. 9-28).
[18] More IEEs were requested in the DPC but were granted by interim order so are no longer at issue. The DPC also requested reimbursement for any out-of-pocket expenses related to the student’s educational needs (Ex. A-15), Parent Counsel later indicated that they were not aware of any expenses for reimbursement (Tr. 55) and did not provide any evidence of expenses at the hearing. Accordingly, the request for reimbursement is deemed abandoned and will not be discussed further herein. The Parents also request attorney fees, but since I do not have the authority to grant that request, it will not be addressed herein.
[19] Even if it was not abandoned, Parents have not met their burden of proof on this claim.
[20] In their closing brief, Parent Counsel stated that because the DOE failed to provide subpoenaed service records the undersigned should infer that they failed to provide pendency services. (Ex. i-6-7). However, as discussed previously, there is no basis here for an adverse inference. Additionally, Parent did not allege in her testimony that the pendency services had not been provided, nor did the final relief request include compensatory pendency services (Ex. i-9). Accordingly, it will not be addressed further.
[22] The exact date of referral is unclear.
[23] It is unclear from the record how an education evaluation would differ from a psychoeducational evaluation.
[24] These included (among others), screaming, running around, knocking over items, using foul language, taking things from classmates, singing loudly and roaring around the room, spitting on a classmate, ignoring his name being called repeatedly, talking loudly, sitting backwards in his seat, and squishing a classmate’s snack. (Ex. H-3).
[25] Although the email in which the procedural safeguards notice was originally sent does not appear in the record, it is referenced in a later email, which indicates that it was sent at the time of the initial evaluations (Ex. OO-5) and Parent has not alleged that they did not receive it.
[26] As the allegation regarding the proper constitution of the CSE was abandoned at hearing, this will not be discussed further. Even if it were properly preserved, I would not find the lack of a general education teacher to rise to the level of a denial of a FAPE. CPSE Administrator testified that she is a certified general education teacher and could fill that role. (Tr. 149).
[27] Although she testified that she reviewed them all, there is some question as to the reliability of that claim, as discussed below.
[28] As there were no allegations made at the hearing with respect to specific deficiencies in the student’s annual goals, I have not included details of the annual goals in the facts section, and I find them irrelevant to the final decision. The only related issue raised at hearing was with the DOE’s lack of evidence as to how the goals were developed, the relevant details of which are included here.
[29] However, I do not find that it impacts her credibility regarding the 2/16/22 IEP meeting.
[39] She did not recall anything relevant about the meeting or the CSE’s recommendations. (Tr. 348-364)
[40] CPSE Administrator explained that a BIP is for behaviors that can be replaced, whereas the student’s behaviors were more systematic/caused by medical issues. (Tr. 200).
[41] It had not been three years since the student had been comprehensively evaluated, nor is there any indication that Parent request a re-evaluation.
[42] This was conducted by School Psychologist. (Tr. 262-263).
[43] This was also conducted by School Psychologist. (Tr. 265).
[44] Since the Preschool calendar is not in evidence, it is unclear how many of those days were school days.
[46] This is corroborated by Parent’s statements during the Neuropsych IEE, in which she reported that “having SEIT (April – June of 2022) made a tremendous difference for [the student. He] stayed seated in class for longer periods of time and wasn’t calling out as much. He interacted much more with his peers and became ‘a lot of fun to be with.’ He was liked by his peers and had a lot of friends.” (Ex. DD-2).
[47] Parent is not seeking reimbursement for the tuition there.
[48] There were no issues at the hearing regarding a denial of a FAPE based on the lack of appropriate transportation, nor is Parent seeking reimbursement for transportation costs. So this will not be addressed further.
[49] She has a Master of Science degree in OT and is a New York licensed occupational therapist with membership in various state and national associations. (Ex. X-2; LL-1-2).
[50] She has a master’s degree in psychology and a doctorate in psychology/neuropsychology and is a New York state licensed psychologist. (Ex. NN-1; Z-1). She is also a nationally board-certified clinical neurologist. (Ex. NN-1; Z-1).
[51] She has a Master of Science degree in speech language pathology and is a New York State licensed and nationally certified speech language pathologist. (Ex. Y-1, 5; MM-1).
[52] Testing lasted approximately two hours. (Ex. LL-3).
[53] “The ability to cross midline for task completion is reflective of both halves of the brain working together to coordinate movement and is important for bilateral task completion, motor planning and body awareness.” (Ex. AA-5).
[54] The OT IEE does not specify that the additional sensory gym session should be on a 12-month basis, or whether it should be individual or in a group. (Ex. AA-17). OT Evaluator’s testimony affidavit states generally that “OT sessions should also be provided during the summer months.” (Ex. LL-14). No specific evidence of regression is referenced in either the OT IEE or OT Evaluator’s affidavit.
[55] Specifically noted in OT Evaluator’s affidavit are the lack of the third OT session in a sensory gym on any of the prior IEPs, the lack of summer services in the prior IEPs, and the delay between the student turning three and the start of OT services in April 2021. (Ex. LL-15).
[56] Testing lasted two hours. (Ex. MM-3-4). That was the only time SL Evaluator had met the student. (Tr. 227, 231). SL Evaluator did not observe the student in the classroom. (Tr. 229).
[57] There is no explanation in the record of what exactly this training entails, or why a licensed speech therapist without that training could not also address the student’s oral motor or articulation deficits.
[58] Although this specific training has not been mandated in the student’s IEPs at issue, there is no evidence in the record regarding whether his SLT providers have had this training or not.
[59] Testing lasted one hour. (Ex. MM-4).
[60] This observation lasted approximately 45 minutes. (Ex. NN-3). The student’s SEIT provider was not in the classroom during the observation. (Ex. NN-6; Tr. 239). Neuro Evaluator had not met the student outside the context of the evaluation. (Tr. 236).
[61] These lasted a total of approximately five hours. (Ex. NN-3).
[62] This is corroborated by the SL IEE, which states that the student “is reported to do well academically in school.” (Ex. BB- 2).
[63] The student’s SEIT provider expressed a possibility of difficulty with reading comprehension because he “answers comprehension questions tangentially,” but otherwise confirmed the student’s grade-level abilities with academic skills. (Ex. DD-5).
[64] This is also corroborated by his teacher’s statements. (Ex. DD-5).
[65] No specific evidence of regression was included.
[66] An examination by a pediatric neurologist was recommended regarding these “lateralized difficulties.” (Ex. DD-12).
[67] It was noted that the classroom should be stimulating for a student with “superior intelligence.” (Ex. NN-8).
[68] This should focus on behavior, attention, and social-emotional development and “be informed and guided by” a functional behavior assessment and behavior intervention plan. (Ex. DD-12-13). At hearing, SL Evaluator clarified that, based on her conversations with the student’s teacher and SEIT provider, she did not believe that a paraprofessional would be sufficient, but she did not explain why not. (Tr. 240-241).
[69] No specific examples of the student’s regression were included in the evaluation or Neuro Evaluator’s affidavit. At hearing, Neuro Evaluator stated that her knowledge of regression consisted of the student’s teacher saying his behavior worsened after a school break and her general knowledge about what similar students “tend to” do. (Tr. 242-243).
[70] The report states that “[w]ithout constant support, [the student] has difficulty attending to basic classroom rules, behaviors and expectations, which also impede his ability to learn during reading instruction.” (Ex. II-1). It also states that when answering comprehension questions, the student’s answers “are generally not related to the question presented” (Ex. II-1), which may also be more indicative of the student’s tendency to be off topic rather than a lack of comprehension. When discussing the student’s need for writing prompts to remain engaged, the report indicates the belief that this “is not believed to be a cognitive issue, but rather, related to [the student’s] overall attention deficits.” (Ex. II-2).
[71] No specific evidence of regression is included.
[73] Available at http://www.p12.nysed.gov/ specialed/applications/ESY/esy-2017/ documents/questions-and-answers-extended-school-year-2017.pdf.
[74] Since I have found that SEIT services should have been included in the 2/3/21 IEP, it is unnecessary to decide whether the DOE’s denial of the Parents’ request to reconvene the CPSE to add SEIT services was appropriate.
[75] There is no evidence in the record that the student had ever been a 12-month student or that Parent had ever requested ESY services. There is no evidence in the record that the student was experiencing any regression at this time, or that the CSE would have known about any regression. ESY services were not recommended by any of the student’s teachers or service providers. Accordingly, the record is insufficient to establish any obligation by the district to create a program for summer services during the summer of 2021.
[76] It is also noteworthy that the SL IEE described this specialized methodology/training as preferred rather than necessary.
[77] Trumbull, 975 F.3d at 171.
[78] Application of a Student with a Disability, Appeal No. 23-018.
[79] See https://www.schools.nyc.gov/docs/default-source/default-document-library/school-calendar-for-families-2020-2021.
[80] See https://www.schools.nyc.gov/docs/default-source/default-document-library/doe-calendar-sy-21-22. The 10-month school year is 36-weeks long. See Educ. Law §3604(7); N.Y.C.R.R. §200.1(eee); Application of a Student with a Disability, Appeal Nos. 23-153; 23-019.