New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 586521 - NYC: 237932

FINDINGS OF FACT AND DECISION

Case Number: 237932

Student’s Name: Redacted

Home District: Redacted

Service District: Redacted

Impartial Hearing Officer: Lorianne Wolseley

Date of Filing: September 13, 2022

Hearing Requested by: Redacted

Date of Hearing: January 4, 2023

January 13, 2023

Date of Decision: January 26, 2023

On or about September 13, 2022, a due process complaint (“DPC”) was filed against the New York City Department of Education (“DOE” or “district”) by Parent’s Attorney, under Case No. 237932, pursuant to the Individuals with Disabilities Education Act (“IDEA”). See 20 U.S.C. Section 1415(f) and Section 4404(1) of the New York State Education Law. I was appointed impartial hearing officer (“IHO”) for this case on October 31, 2022. An initial prehearing conference was held on October 31, 2022. An Impartial Hearing was held on January 4, 2023 and January 13, 2023.^[1] The compliance date for issuing a decision in this matter has been extended. A list of exhibits admitted into evidence is attached hereto. Although only portions of the evidence are referenced herein, the testimony and documents were reviewed in full.

FINDINGS OF FACT AND DECISION

After a full review of the hearing record, I make the following findings of fact and determinations:

At the time of the filing of the DPC, Student was Redacted years old. Student has attended Private School since the 2019-2020 school year. Student’s classification and entitlement to special education services es are not in dispute. Student was diagnosed with Autism Spectrum Disorder (“ASD”) as a toddler when he was evaluated by Early Intervention due to the presence of several characteristics, including developmental delays in language and motor skills, limited social engagement and reciprocity, and the presence of several stereotypical autistic behaviors. Student does not show much interest in playing with others and mostly keeps to himself. He also has difficulty participating in structured group activities during school. Student also presents with difficulties making eye contact and also difficulty directing his visual attention. (IHO V)

Student is nonverbal. He has difficulty with imitating, and he does not use any language to communicate. Student demonstrates stereotypical signs of Autism, including flapping and toe-walking. Student also engages in self-harm behavior, though the frequency of this behavior is reported to have decreased. Student is described as being about the same or less-active than other children his age. In particular, Student often withdraws from group situations and is noted to often cover his ears when in noisy places, including playgrounds. In terms of his sensory profile, Student is very sensitive to loud noises. (IHO V)

Student has grave difficulties focusing and is working on pre-academic skills. Student has sensory issues that interfere with activities of daily living, including wearing his glasses, eating and toileting. He occasionally engages in dysregulation or maladaptive behaviors and can be very self-directed. (P- A) Nevertheless, the IEP that was developed by the District stated that the Student did not need “positive behavioral interventions, supports and other strategies to address behaviors that impede the student's learning or that of others.” (Id.)

An IEP review was held on March 23, 2022 and was in effect for the start of the 2022-2023 school year. DOE Ex. 1. The IEP team classified the student with “Autism” and recommended an 6:1+1 special class, occupational therapy three times a week for thirty minutes individually, occupational therapy once a week for thirty minutes in a group of two, parent counseling and training, physical therapy twice a week for thirty minutes individually, and speech-language therapy five times a week for thirty minutes individually on a 12-month basis. The team also recommended a dynamic display speech generating device and communication amplification. (D- 1)

During the IEP meeting, Parent expressed concerns that Student should remain in his current setting with 1:1 instruction by an ABA trained professional. Parent reported to the IEP team that Student made strides in his current school and program.

In a Neuropsychological Evaluation dated May 21, 2019, the evaluators noted that Student requires placement in an intensive program that works with low-functioning children with Autism. He requires structure, routine and consistent reinforcement in order to remain focused and to be able to access learning. As such, he requires an individualized, discrete-trial learning (i.e. ABA) focused approach in order to improve his communication and ability to complete vocational and daily-living tasks. It is important for the approach used throughout the day as well as at home, with goals included to improve his overall engagement in addition to extinguishing maladaptive behaviors. Given his high level of distractibility and high level of need, a classroom with no more than 6 students. In order to reinforce newly learned skills and to prevent regression, Student continues to require academic and related services to be administered across a 12-month school year. Given Student’s presentation of Autism and his continued behavioral and academic difficulties that are present despite intact intellectual functioning, he requires a Functional Behavioral Assessment and Behavior Intervention Plan conducted by a Board-Certified Behavior Analyst in order to reduce stereotypical behaviors in the academic environment and provide Student access to learning.

POSITIONS OF THE PARTIES

Parent alleges, among other things, that the IEP was substantively and procedurally deficient under federal and state law based on multiple procedural and substantive violations described with more particularity in the DPC, and that the DOE failed to meaningfully include Parent in the IEP development process, failed to provide ABA services necessary for Student to meaningfully benefit from his education, and failed to provide services that were recommended.

The DOE contends that it offered a free appropriate public education (“FAPE”) to the Student for the 2022-2023 school year. The DOE stated that the IEP team was duly constituted, the IEP was implemented, the CPSE evaluations were appropriate, and the program recommended was appropriate. The DOE stated that for the 2022-2023 school year the IEP team was duly constituted, the program was appropriate, and Student received services.

The DOE presented a case that consisted of documentary evidence (D- 1-9), and testimony from: “School Psychologist” and “Assistant Principal.” Each of DOE’s witnesses were cross-examined by Parent’s Attorney and responded to clarifying questions.

The Parent presented a case that consisted of documentary evidence (P- A-H), and testimony by affidavit from “Parent” and “Program Director.” Each of Parent’s witnesses were cross-examined by DOE and responded to clarifying questions.

The within proceeding pertains to the Parent’s request, that: a) a determination be made that, by reason of the deprivation of FAPE for 2022-2023 school year, the District is obligated to pay the fees associated at Private School; b) a determination be made that, by reason of the deprivation of FAPE for 2022-2023 school year, the District is obligated to pay the fees associated with the student’s extended-day, home-based programming and coordination with his classroom team; c) determination be made that the District is either obligated to provide immediately Dynamic display speech generating device with communication amplification for the Student’s use at school and at home or to pay the cost to obtain such a device; and d) a determination be made that the District is obligated to provide specialized transportation for the student on a bus that includes supervision in addition to the driver.

LEGAL STANDARD AND FRAMEWORK

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

Both the IDEA and the Education Law provide that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive Individualized Education Program (“IEP”). 20 U.S.C. §§ 1401(9), (29). 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. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381-82 (2d Cir. 2003); W.G. v. Bd. of Trustees of Target Range School Dist. No. 23, 960 F. 2d 1479, 1484 (9th Cir. 1992); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); 8 NYCRR § 200.5(4)(ii). School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d).

The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” Walczak v. Florida Union Free School Dist., 142 F.3d 119, 130 (2d Cir. 1998); Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of students with disabilities. Rowley, 458 U.S. at 189; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra v. Pawling Central School Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130.

BURDEN

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

FAPE

• • THE DOE FAILED TO MEET ITS BURDEN THAT IT PROVIDED A FAPE TO STUDENT FOR THE 2022-2023 SCHOOL YEAR.
• • The DOE failed to recommend a program and placement which was reasonably calculated to allow Student to make progress.

In determining the adequacy of an IEP, both parties are limited to discussing the placement and services specified in the written plan and therefore reasonably known to the parties at the time of the placement decision. See Fuhrmann ex rel. Fuhrmann v. E. Hanover Bd. of Educ., 993 F.2d 1031, 1039–40 (3d Cir.1993) (“Rowley requires, at the time the initial evaluation is undertaken, an IEP need only be ‘reasonably calculated to enable the child to receive educational benefits.’... [T]he measure and adequacy of the IEP can only be determined as of the time it is offered to the student, not at some later date.” (quoting Rowley, 458 U.S. at 206–07, 102 S. Ct. 3034)). The DOE has the burden of proof as to the procedural and substantive appropriateness of its recommendations for the 2021-2022 school year.

For the 2022-2023 school year, the DOE offered two witnesses, School Psychologist and Assistant Principal, and submitted the March 2022 IEP (along with the attendance sheet, prior written notice letter, and the meeting minutes), a 2022 neuropsychological assessment, a 2022 speech and language evaluation, and a 2022 occupational therapy assessment.

School Psychologist testified that she’s worked at the DOE for over a year as a school psychologist. She stated that her role includes developing IEPs for students 5-21 years of age to help address behavioral issues, learning difficulties, disabilities, emotional problems, and other concerns. She testified that she participated in the March 23, 2022 IEP review. She added that she reviewed documents including, but not limited to: Student’s 2022 neuropsychological assessment, Student’s 2022 speech and language evaluation, Student’s 2022 occupational therapy assessment, and also progress reports from Private School. She notes that Student’s IEP goals and management needs were specific, measurable, and personalized to target and address Student’s academic, social, and emotional deficits.

School Psychologist further testified that she reviewed Student’s program and progress reports from Private School. She added that she was aware that Student received ABA services at Private School. She testified that ABA was considered but it was not recommended to Student’s IEP because the DOE typically does not recommend ABA therapy since that is a specific methodology and they usually do not recommend one specific teaching strategy. (Hearing trans., Day 1, p. 35-36)

She concluded that Student had difficulties focusing, but if Student was given re-direction, reminders, and teacher support he was/is easily re-directed to his seat and task. Student’s behavior, according to School Psychologist, is only sporadic and can be addressed by teacher support.

Assistant Principal testified that he has worked at the DOE for 9 years and worked at Public School as an assistant principal for 3.5 years. Assistant Principal testified that he reviewed Student’s IEP and opined that Public School would have been able to fully implement the IEP recommendation. He added that Student would have received a program consisting of a 6:1:1 classroom and the required related services.

He testified that Public School uses a variety of teaching strategies, and it all depends on the cognitive levels of the students, their needs, and their goals. He stated that the 6+1:1 program is very individualized. However, his testimony waivered when asked how would the program handle a situation where all 6 students displayed self-harming or disruptive behavior at the same time. He simply restated that the class had a unique flow where Student’s had their own unique personal schedule and that on many occasions he would be available to assist in the classroom. However, he did not address how Public School dealt with matters where students displayed disruptive behavior.

To rebut the DOE’s claim that the program recommendation was appropriate, the Parent credibly testified that prior to 2019, Student was in a 6+1:1 program. In the program, Student, according to Parent, made no progress. Student was not able to sit and pay attention in school, more importantly, Parent stated that Student was a danger to himself and others. (P-G, 2) Parent testified that she decided to place Student at Private School because Student’s teachers told her, “you have to get him out of here. There is nothing we can do for Student. He’s literally not learning anything… try to put him in an ABA school.” (Hearing Trans., Day 1, p. 82-83)

I am not persuaded that the DOE provided Student with an appropriate program or placement recommendation. More specifically, I find that Student requires more support than those listed under management needs in Student’s IEP. While reviewing the neuropsychological assessment, occupational therapy assessment, and the speech and language evaluation (P 5-7), there were numerous accounts of Student’s stereotypical autistic behavior. The assessments and evaluations note that Student has a short-attention span with high impulsivity and high distractibility for his age. (Id.) He would often suddenly rise from his seat and jump up and down nearby, sometimes shouting sounds while displaying neutral or positive affect. The OT assessment adds that Student was only able to focus on non-preferred activities for up to one minute. I find these statements contradict School Psychologist testimony that Student’s actions were sporadic and could easily be addressed by teacher support.

Here, I find that the DOE ignored the reports, recommendations, and evaluations provided to the CSE by Parent and Private School. School Psychologist, who was present at the meeting stated that they did not incorporate the ABA recommendations into Student’s IEP because of the DOE’s continuous policy against recommending a specific methodology. She did not rely on other evaluative materials to call into question the opinions and recommendations provided by Parent and Private School. By rejecting the consensus recommendations of the evaluations before it, the CSE acted in precisely the same manner that the Second Circuit held constituted a deprivation of FAPE in its 2017 ruling in A.M. v. N.Y.C. Dep't of Educ. The hearing record establishes that Student benefits from Applied Behavior Analysis (ABA). ABA should be part of Student’s recommended program for the program to be an appropriate one. I am not persuaded that Public School could address Student’s unique needs. Student’s educational history shows that Student needs 1:1 ABA attention due to his developmental delays in all areas, including fine motor functioning, receptive and expressive language functioning, and social skills.

Thus, I find that the DOE failed to offer Student a FAPE for the 2022-2023 school year.

Prong II

A private school placement must be "proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112)" Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)

Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

Parent testified by affidavit and in person to clarify the record, as did Program Director at Private School. Student has attended Private School since the 2019-2020 school year. Program Director testified about Private School’s program as well as about Student’s individual program and progress for the 2022-2023 school year. Program Director regularly observed Student and visited Student’s classroom at least once per day and he also participated in weekly meetings to discuss Student’s progress. (P-H)

Private School provides a 12-month special education program with related services that specifically caters to students with special needs in the New York City area. Private School serves a total of 30 students, ranging from age 5 to 13. The school is ungraded and students are functionally grouped with respect to both academic, social and communicative development with no larger than a 3-year gap between ages in a single class. Each student attending Private School receive 1:1 ABA instruction and each child is assigned a 1:1 behavior technician throughout the day. Private School has 7 classes and provide students with related services of speech language therapy, occupational therapy and physical therapy. Related services are conducted as either push-in (inside the classroom) or pull-out (in a separate therapy room) and are conducted both 1:1 and in a group setting. The related service providers collaborate with ABA providers during weekly team meetings and are trained to implement behavior plans associated with each child who requires one. (P- H)

Student is in a class with 5 children, including himself. The class is run by a lead teacher, who is a BCBA. Student also has 1:1 instruction from Registered Behavior Technicians (RBT’s) and RBT candidates in his classroom. RBTs are credentialed through a 40-hour course on the fundamentals of ABA, an in-person competency assessment conducted by a BCBA, and passing of an RBT exam provided by the BCBA. RBTs also receive weekly professional development instruction covering the most effective treatment techniques and approaches using principles of ABA. When related services are delivered in a group, Student is supported by his RBT. (P-H)

Student’s program at Private School is fostering development of skills that student requires in order to function in a less restrictive setting. The school day includes both 1:1 and group instruction that facilitate Student’s communication, social development, daily living skills, and academics. During 1:1 instruction, Student works on skills such as imitation of gross motor movements modeled by his instructor, puzzle completion and other structured building activities, matching skills, receptive identification of common items and his body parts, following verbal instructions, following a visual activity schedule, brushing his teeth independently, and communicating his wants and needs via his augmentative alternative communication device and modified sign language. Student is supported by a 1:1 RBT at all times during instruction. (P-H)

The testimony evinced progress. Program Director credibly testified that Student’s in-seat time during a group or individual activities has increased since the previous year, that Student has mastered matching some identical pictures, that Student is working on matching non-identical pictures and that he is scanning what's in front of him in order to complete a matching task. (Id.) Program Director also explained that Student is working on following one-step instructions, forming phrases both verbally and electronically for purposes of requesting and commenting, improving vocal articulation of speech sounds, and engaging in social activities such as initiating and responding to greetings as well as engaging in turn taking games. (P-H).

Parent credibly testified that she decided to place Student at Private School for the 2022-2023 school year because she believed Student would not make progress at Public School. (P-G) She also stated that Student is now able to sit longer, Student is more aware of his surroundings, and Student is happier. (Hearing Trans., Day 1, p. 84). Student is also more able to express himself by pointing, Student started brushing his teeth, and Student also started potty training. (Id.)

I find that the evidence and testimony at the hearing established that Private School provided Student with educational instruction specially designed to meet Student’s unique needs during the 2022-2023 school year.

I find that Parent has met his burden in proving that Private School offered an educational program that met Student’s needs under Prong II of the Burlington/Carter standard. Student has made steady progress in academics, socially, and emotionally. (See P – F, G, H and Hearing Trans., Day 1)

Prong III

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009) In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here, Parent provided the necessary Ten-Days’ Notice of their concerns with the DOE’s offer of FAPE for the Student for 2022-2023 school year. Therein, Parent detailed specific concerns. (P- B). Parent, furthermore, gave the DOE notice of their intention to unilaterally place the Student at the Private School. Id. No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Letter.

By way of relief, Parent seeks direct tuition funding for Private School for the 2022-2023 school year for the total amount of $158,250. (P- C, D) Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”) Having reviewed P- G and the testimony provided by Parent at the hearing, I find that the unilateral tuition costs far exceed the Parent’ income. Equity demands that the DOE fund Student’s Private School tuition in this instance.

I find no issue with the reasonableness of the costs, including tuition, associated with the Private School. See P- F, G, and Hearing Transcript. Student attended Private School during the year at issue. Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2022-2023 school year. Overall and after considering the record at hearing, I find that the equities support Parent’s claim for direct funding.

Compensatory Education The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations”. See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy” (Boose v District of Columbia, 786 F. 3d 1054, 1056 [D.C. Cir. 2015], citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme, 790 F.3d at 454).

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education” (P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education” (Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008]). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate”, and “hearing officers may award ‘educational services... to be provided prospectively to compensate for a past deficient program’” (Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 522, 525 (D.C. Cir. 2005) (emphasis in original). “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves” (Reid, 401 F.3d at 522) (citations omitted). Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place” (Reid, 401 F.3d at 518).

Compensatory education awards can be generally crafted pursuant to two schools of thought: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996) (holding generally that subject to equitable adjustment, the “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”). Another approach that can be taken is the qualitative approach. Under this approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to correct those deficits. Id. at 526.

The Parent requested a determination be made that Student requires extended-day, home-based services in order to continue to make progress in school with an allotment of hours for coordination among the school and extended school-day staff, as part of his overall educational program for the 2022-2023 school year and an assistive technology device. The relief requested by the Parent is equitable in nature, as he is asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide the Student with a FAPE for the 2022-2023 school year.

Home-based Program of 1:1 ABA Instruction and Services Parent requested a determination be made that “Student requires extended-day, home-based services in order to continue to make progress in school with an allotment of hours for coordination among the school and extended school-day staff.” In her DPC and her opening statement, Parent’s attorney failed to specify how many hours of home-based services Parent is seeking. More importantly, Parent’s attorney failed to submit credible documentary evidence such as an ABA assessment report establishing that such an order is warranted for the 2022-2023 school. While Parent credibly testified that Student received 20 hours of ABA services (weekly) in previous years, I find that the hearing record does not support a finding that such an award should be granted for the 2022-2023 school year. Program Director failed to provide credible testimony as to the number hours of ABA Student requires for the 2022-2023 school year. Additionally, while allocating an evidentiary burden to the district, a parent nevertheless has a responsibility to identify the compensatory education remedy sought in the same fact-specific manner, and it is insufficient to assert general statements that a student is entitled to an unspecified amount of unidentified compensatory educational services.

It should be noted that prior to the closing of the record, I contacted both parties and requested Parent’s counsel to submit additional documentation in support of the claim for 1:1 home-based ABA services. (IHO IV) Parent’s counsel then submitted a 2019 neuropsychological report, this reported was created when Student was Redacted years old. (IHO V) Parent’s counsel notes that “the recommendation on page 8 specifically recommend programing at home - twice.” (IHO IV) While the evaluation notes Student’s need for a home-based ABA program the report is vague and makes no mention as to how many hours is needed or what the focus areas for the services should be, such as negative behaviors, ADL skills, communication and/or independence. Although it is very likely that Student would generally benefit from home-based ABA services, this benefit cannot be said to be necessary for the DOE to provide Student with the educational benefits required under the holdings of Rowley and Endrew F. “[T]he IDEA ensures the provision of ‘an appropriate’ education, ‘not one that provides everything that might be thought desirable by loving parents.’” (State Appeal No. 22-095 quoting Walczak, 142 F.3d at 132), The neuropsychological report does not provide me with enough information to fashion an order of 20 hours per week of ABA services. Therefore, I find that there was insufficient basis that Student requires home-based ABA services in order to receive the educational benefits the District is required to provide him (R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *15 [S.D.N.Y. Sept. 27, 2013] ["While the record indicates that [the student] may have benefited from home-based services, it contains no indication that such services were necessary"], aff'd, 589 Fed. App'x 572 [2d Cir. Oct. 29, 2014].) as it is not required to render “every special service necessary to maximize the student’s potential.” Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 756 [2d Cir. 2018], cert. denied sub nom., 139 S. Ct. 322 [2018].)

ASSISTIVE TECHNOLOGY DEVICE

Parent attorney’s request for the DOE to provide Student with a Dynamic display speech generating device with communication amplification for Student’s use at school and at home or to pay the cost to obtain such a device is denied. (P- A, 5) Student’s March 2022 IEP clearly establishes that Student needs an assistive technology device and/or services. Furthermore, it was recommended this device also be used at Student’s home. (D- 1, IHO V1)

Under the IDEA, a FAPE is comprised of “special education and related services” that are available to an eligible child, meet state education standards, and are provided at no charge to the child’s parent or guardian. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17; see also Rowley, 458 U.S. at 201, holding that “the basic floor of opportunity provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit” (internal quotation marks omitted). Related services are “developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education” (34 C.F.R. § 300.34[a]; see also 8 NYCRR § 200.1[qq]). Under New York law, related services also include AT services, which are services “that directly assist[] a student with a disability in the selection, acquisition, or use of an [AT] device”, including any piece of equipment “used to increase, maintain, or improve the functional capabilities of a student with a disability”. 8 NYCRR §§ 200.1(e), (f), (qq). To be entitled to a related service under the IDEA, (i) a child must have a disability requiring special education, (ii) the service must be necessary to aid the child to benefit from special education, and (iii) the service must be able to be performed by a non-physician. Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 894 (1984).

Additionally, under federal regulations, school districts are required to provide AT devices and/or AT services to a child with a disability if it is required as part of the child’s special education program or related services. 34 C.F.R. §300.105.

The hearing record demonstrates that Student is non-verbal and has been provided with an iPad to express his wants and needs in the classroom and at home. The DOE representative provided documentation that Student received an iPad 10.2 on October 20, 2021. (IHO – VI) At the hearing, Parent credibly testified that Student received an assistive technology device, Student currently uses that device, and the device has been helpful for Student. (Hearing Trans., Day 2, p. 5) Thus, I am denying Parent attorney’s request made in the DPC.

Notably, Parent attorney’s claim in her closing brief is different than the claim asserted in the DPC, nevertheless, I am denying that claim as well.^[2] I note that, if issues regarding Student’s need for an assistive technology device arise, Parent’s attorney (or Parent) should file another DPC against the DOE.

TRANSPORTATION

The IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’... even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport” Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 [11th Cir. 1997] (internal citation omitted). Transportation may be deemed necessary “if in its absence a disabled child in Current school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’,... or special education program benefits “comparable in quality, scope, and opportunity for participation... [to those provided for] students enrolled in public schools’” Donald B., 117 F.3d at 1375 (internal citations omitted). In addition, State law defines special education as “specially designed instruction... and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” Education Law §§ 4401[1], 4402[4][a]; see also Education Law § 4401(2); 8 NYCRR § 200.1[ww]).

Parent’s attorney also requested that the DOE prospectively pay or satisfy the Parent’s debt by direct payment to the vendor of such services for any transportation expenses that the Parent incurs. (P-A) At the hearing, Parent’s attorney stated that she added a claim for “reimbursement of private transportation because in a great many of her other cases, and in previous years, there have been problems with transportation and parents cannot afford private services.” Interestingly, Parent testified that she did not have to take him to school herself for this school year.

Both the DOE representative and Parent’s counsel note that Student is entitled to specialized transportation as identified in Student’s IEP dated March 23, 2022. The IEP mandates that Student receive transportation from the closest, safe curb location to the school. (D1, 35). The IEP further describes that this route should be with few students instead of LTT. (Id. at 36) It is noted that Student has severe emotional behavior, dysregulation with poor impulse control and, as a result, Student needs supervision during each bus trip. (Id. at 36) A bus aide or matron is needed during the bus trip. (Id. at 36)

I find that Student is entitled to supervised roundtrip, curb-to-curb transportation from Student’s home and Private School.

Parent attorney’s request for the DOE to prospectively pay orto satisfy the Parent’s debt by direct payment to the vendor of such services for any transportation expenses that the Parent incurs is denied. The hearing does not submit Parent attorney’s claim. I find that Parent’s request is not one in which I can grant since each school year and each student is analyzed individually. I note that, if issues regarding Student’s transportation to and from school should arise in the future, Parent’s attorney (or Parent) should file another DPC against the DOE.

OTHER RELIEF

Finally, 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 Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

• • ORDERED, the DOE failed to provide Student a FAPE for the 2022-2023 school year;
• • ORDERED, that the DOE shall fund the cost of the tuition obligation incurred by Parent for Student’s enrollment at the Private School for the 2022-2023 in the total amount of $158,250, to be paid to the Private School within thirty (30) days of the DOE’s receipt of an affidavit from the Private School certifying to Student’s attendance for the school year and setting forth the amount due.
• • ORDERED, that the DOE shall provide Student with round-trip transportation to and from the Private School for the 2022-2023. The transportation shall include:
• • Transportation from the closest, safe curb location to the school;
• • The route should be one with few students; and
• • Student needs supervision during each bus trip and a bus aide or matron is needed during the bus trip.

So Ordered.

Dated: January 26, 2023.

Lorianne M. Wolseley

_____________________

Impartial Hearing Officer

DISTRICT EVIDENCE

#

Document

Date

Pages

1

Individualized Education Program

3/23/22

39

2

Attendance

3/23/22

1

3

Meeting Minutes

3/23/22

4

4

Prior Written Notice

6/24/22

8

5

Neuropsychological Assessment

2/4/22

6

6

Occupational Therapy Assessment

2/18/22

18

7

Speech/Language Evaluation

2/3/22

6

8

Affidavit – Assistant Principal

11/22/22

2

9

Affidavit – School Psychologist

11/23/22

4

PARENT EVIDENCE

Exhibit

Date

Description

Pages

A

September 13, 2022

Impartial Hearing Request

6

B

June 15, 2022

10-Day Letter

2

C

June 30, 2022

Private School Contract

6

D

July 18, 2022

Affidavit of Payment

1

E

2022-2023

School Schedule

1

F

2022-2023

Program Description

1

G

November 17, 2022

Affidavit of Parent

4

H

December 27, 2022

Affidavit of Program Director

7

IHO EXHIBITS

#

DATE

DOCUMENT

No. Of Pages

I

12/27/2022- 12/29/2022

Email to the Parties regarding DPC submitted at the time of filing

2

II

11/16/2022

DOE’s Closing Brief

8

III

11/18/2022

Parent’s Closing Brief

12

IV

01/06/2023- 01/10/2023

Email to Parties requesting additional information

4

V

05/21/2019

Neuropsychological Evaluation

11

VI

10/20/2021

Assistive Technology Device

1

VII

11/24/2021

IEP

31

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.

Footnotes

[1] Prior to the hearing, Parent’s attorney submitted disclosures, the DPC submitted was not the DPC submitted at the time of filing and Parent’s attorney was instructed to submit the DPC that was submitted at the time of filing.

[2] In her closing brief, Parent request “an order specifying the DOE’s obligation to provide the aforesaid device to clarify the child’s entitlement.” (IHO III, p. 5)