New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 587419 - NYC: 238732

FINDINGS OF FACT AND DECISION

Case Number: 238732

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

Date of Birth: REDACTED

School District: #redacted

Hearing Requested by: REDACTED (“Parents”)

Request Date/Date Complaint Filed: 09/20/2022

Date(s) of Hearing: 12/09/2022

Actual Record Closed Date: December 19, 2022

Date of Decision: January 3, 2023

Date of Distribution if Different than Decision Date: N/A Hearing Officer: Leah Martin

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/09/2022

For the Student:

REDACTED (“Parents’ Counsel”), REDACTED (student’s mother), REDACTED (“student’s BCBA”)

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 20, 2022, (Ex. A).^[2] In the DPC, the Parents allege that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973 (“504”) for the 2021-22 school year and failed to timely and fully re-evaluate the student in all areas of suspected disability. (Ex. A).

I was appointed on November 2, 2022. On November 9, 2022, Parents’ Counsel appeared virtually for a pre-hearing conference (“PHC”).^[3] At the PHC, Parents’ Counsel requested a time extension, which was granted, and a hearing date was set. (See PHC Summary and order, p. 2, and Order of Extension). In the PHC Summary and Order, the DOE was ordered to submit a Due Process Response (“DPR”) by November 18, but they did not comply.^[4] (PHC Summary and Order, p. 2). Pendency was not raised in this matter. (Ex. A).

On December 9, the virtual hearing was held. It was a closed hearing. Parents’ Counsel and the DOE Representative were both present, as was the student’s mother. The DOE entered no exhibits and called no witnesses, nor did they make opening or closing statements. Parents’ Counsel entered 29 exhibits into evidence (A through CC) without objection, including testimony affidavits of the student’s mother (Ex. AA) and the student’s BCBA^[5] (Ex. BB). (Tr. 14)^[6] Both Parents’ witnesses also gave live testimony. (Tr. 17-39). Parents’ Counsel made oral closings on the record. (Tr. 40-75). The record was closed on December 19 after the DPH transcript was received.

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, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq., and Section 504,^[7] 29 U.S.C. §794(a).

BACKGROUND

The student is bilingual (English and redacted), and the Parents’ native language is Redacted. (Ex. C-1; H-15). The student’s preferred language is English. (Ex. K-1). The student has been medically diagnosed with autism and Attention Deficit Hyperactivity Disorder (“ADHD”), combined type. (Ex. A-3; Z-3). The student received early intervention services. (Ex. A-3). The student has various deficits, including in cognition, receptive and expressive language, sensory processing, fine motor and graphomotor skills, visual and perceptual-motor skills, and social emotional and adaptive behavior. (Ex. B; A-2-3; C-2-3; D-4; AA). The student is currently in first grade and is classified as a student with autism. (Ex. A-1; AA-1).

For the student’s turning five IEP, the DOE changed the student to a larger special class size and eliminated his extended school year program. (Ex. A). The IEP was revised multiple times over the course of the 2021-22 school year, but Parents contend that none of the IEPs or programs offered were appropriate, that they were never fully implemented, and that the student requires a 12-month program that specializes in autistic children and provides 1:1 instruction using ABA or other evidence-based instruction throughout the day. (Ex. A; BB-6). Parents additionally allege that the DOE’s last re-evaluation of the student, in November of 2021, was not appropriate and they have requested a number of Independent Educational Evaluations (“IEEs”). (Ex. A).

ISSUES

At the PHC, the following issues were certified for decision at the hearing: (1) whether, through the various procedural and substantive violations alleged in the DPC, the DOE failed to offer the student a FAPE, under the IDEA and 504, for the 2021-22 school year, (2) whether the parents are entitled to the requested IEEs that have not already been granted,^[8] and (3) whether and to what extent the equities favor the Parents’ requested remedies. (See PHC Summary and Order, p. 3). At that time, Parents’ Counsel agreed that they have no separate 504 claims that are not subsumed by the IDEA. (Id.).

As for remedies, Parents are requesting (1) an order that the student be placed in a 12-month program that specializes in children with autism and offers 1:1 instruction using Applied Behavior Analysis (“ABA”)^[9] or similar evidence-based instruction; (2) the following IEEs: (a) a speech language evaluation by a licensed provider of the Parents’ choosing at a rate not to exceed $2100, (b) an occupational therapy (“OT”) evaluation to be conducted by a licensed provider of the Parents’ choosing at a rate not to exceed $2000, (c) an assistive technology evaluation to be conducted by a licensed provider of the Parents’ choosing at a rate not to exceed $2500, (d) a feeding evaluation to be conducted by a licensed provider of the Parents’ choosing at a rate not to exceed $2,200, and (e) an ABA assessment to be conducted by a licensed provider of the Parents’ choosing at a rate not to exceed $3,375;^[10] (3) a bank of at least 220 hours of compensatory 1:1 ABA tutoring by an appropriately qualified provider at the provider’s customary rate; (4) a bank of at least 64 hours of compensatory OT sessions at an enhanced rate; (5) a bank of at least 72 hours of compensatory speech language therapy (“SLT”) sessions at an enhanced rate; and (6) a bank of at least 16 hours of counseling (“CO”) sessions at an enhanced rate. (PHC Summary and Order, p. 3).^[11] The DOE has essentially conceded the failure to provide a FAPE and the Parents’ entitlement to the requested IEEs by declining to present a case or make arguments. So, it only remains to determine what additional remedies may be appropriate.

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact.^[12] Prior to the student’s turning five CSE meeting, Parents completed a General Information form, advising the DOE of the student’s autism diagnosis, and informing them that the student exhibited echolalia, had no social connections, had difficulty dressing, was not independent in toileting, could not be left alone, and struggled with regression and focus. (Ex. F; A-3; AA-5-6).

The student attended preschool (“Preschool” = redacted) in an 8:1:3 special class program. (Ex. A-4). In January of 2021, the Preschool issued an OT Progress Report indicating that the student has significant deficits in sensory processing, fine motor and graphomotor skills, and visual and perceptual-motor skills, and found that the student had regressed in abilities (visual-motor, perceptual-motor, and activities of daily living) since the time of his 2019 psychoeducational evaluation. (Ex. B; A-2). Examples of regression include that in 2019 the student was able to build a bridge using three or more blocks following an adult model and to put on/take off his clothes with some assistance but in 2021 he was not. (Ex. A-2; B-4). The Parents noticed regression at home as well. (Ex. AA-4, 7). The Preschool also issued a Speech and Language Annual Report in January, 2021, that showed the student’s receptive language skills were 12-15 months below and his expressive language skills were 18-20 months below age-expected levels. (Ex. C-3; A-3). For example, the student could not answer concrete yes/no questions and he did not produce language to communicate functional needs. (Ex. C-2; A-3). Also in January, 2021, the Preschool issued its CSE Progress Report, which advised that the student continued to need a 12-month program with related services to promote learning and prevent regression. (Ex. D-4; A-3). The CSE Progress report noted that the student’s cognitive and physical development were poor, his social emotional and adaptive behavior was very poor, that he is unable to dress/undress/eat without assistance and that he is not toilet trained. (Ex. D-4). In Preschool, the student received three 30-minute sessions of SLT per week on an individual basis (Ex. C-1; A-3) and two 30-minute sessions per week of OT on an individual basis (Ex. B-1).

On March 10, 2021, the DOE allegedly completed a Social History Assessment, but the form provided to Parents’ Counsel was blank other than the evaluator’s name and contact information and the date, and no version of the Form was provided directly to the Parents. (Ex. A-3; E-1; AA-6). On March 24, 2021, the DOE conducted a classroom observation in the Preschool special class and observed the student’s significant struggles with attention and need for constant prompting. (Ex. G-1; A-4; AA-6).

On May 19, 2021, the Committee on Special Education (“CSE”) convened to develop a school-aged IEP. (Ex. A-4; H-17). The student’s mother was present at the meeting. (Ex. H-17). The CSE relied on a psychoeducational evaluation from 2019. (Ex. A-4; H-1). The CSE noted the student’s need for constant adult assistance and the fact that his language skills were below level. (Ex. H-2; A-4). The Parents attended the CSE meeting, and expressed their concerns regarding the student’s deficient speech and social skills and his inability to focus. (Ex. A-4; AA-7-8). Parents also expressed their concern with the proposed larger class size and 10-month program. (Ex. AA-8).

The 5/19/21 IEP noted that the student’s instructional level in English Language Arts (“ELA”) and math was pre-kindergarten. (Ex. H-16). The 5/19/21 IEP increased the student’s class size to 12:1+1 [for ELA and math only] and reduced his program from 12-months to 10-months. (Ex. H-11-12; A-4). Parents allege (and the DOE does not contest) that the 5/19/21 IEP goals are not appropriately ambitious and do not target all the student’s areas of need. (Ex. A-4; AA-8).

During the 2021-22 school year, the student was in kindergarten and attended one public school until December (“Public School One”), and then was transferred to a different public school (“Public School Two”). (Ex. A-1). The student began the 2021-22 school year under the 5/19/21 IEP, and it was immediately obvious that the program was inappropriate; Parents started getting multiple calls each week from the school expressing concern for the student’s disruptive and elopement behaviors, inability to focus or understand the material, and inability to work in a group. (Ex. A-4; AA-8-9). Parents were told by the student’s teacher that he needed more attention than she could give, and his needs could not be addressed while also dealing with other students in the class. (Ex. AA-9). The school often had to place another student’s paraprofessional with him for his own safety. (Ex. A-4-5; AA-9). Parents requested a full-time crisis paraprofessional for the student, in addition to updated evaluations. (Ex. A-5; I; AA-9-10). Parents were told that the student could not have a paraprofessional unless he was in a specialized school. (Ex. AA-9).

In October, 2021, the DOE completed a Functional Behavior Analysis (“FBA”) of the student, which was not created in consultation with a BCBA. (Ex. A-5; J-1). The FBA evidenced the student’s regression as well. (Ex. J; AA-11). In November, 2021, the DOE attempted to conduct a psychoeducational evaluation, but due to the student’s inability to focus, the evaluation could not be completed fully and properly.^[13] (Ex. K-2; A-5). The evaluation Report states that the results “should be interpreted with caution.” (Ex. K-1; AA-13). Parents were not provided a copy of the Evaluation Report in their native language. (Ex. A-9). On November 29, 2021, a BIP was developed. (Ex. L-1). The BIP states that the team should meet to analyze data and evaluate the effectiveness of the plan no later than two weeks after its 11/29/21 implementation date (Ex. L-4), but no review meeting was held until the following June.

On November 29, 2021 the CSE reconvened to develop an updated IEP. (Ex. A-6; M-23). Both Parents attended along with the student’s BCBA. (Ex. A-6; M-24). The meeting was ended by the DOE abruptly before the Parents and the BCBA had enough time to discuss all their concerns. (Ex. A-6; AA-14; BB-5). The BCBA expressed to the CSE her concerns regarding the accuracy of the FBA and BIP, but her concerns were dismissed. (Ex. A-6; AA-15; BB-5). Parents again raised concern to the CSE regarding the student’s deficits with handwriting, speech, social skills, and focus. (Ex. A-6; M-4; AA-15). The CSE noted that the student’s instructional and functional levels in reading and math remained at pre-kindergarten levels. (Ex. A-6; M-21). The CSE noted the student’s continued struggles with verbal and social skills, feeding skills, sensory processing skills, comprehension, attention, focus and distractibility, and the fact that he was entirely dependent on the classroom paraprofessional. (Ex. A-6, 8; M-1, 4; AA-18-19). Many of the present levels of performance noted by the CSE exhibit clear regression from the January, 2021 Preschool Reports; for example, the student could no longer identify colors, shapes, quantities, or numbers 1-15. (Ex. A-7; M-1). Furthermore, the student had not made any progress holding a pencil, using a scissor, drawing a straight line, copying simple designs, or visually tracking from left to right. (Ex. A-7). The DOE recognized that the student’s 12:1+1 class was overstimulating (even with constant one to one attention and support) and the student was not able to pay attention, and that he requires a “highly structured, routinized, multisensory, and repetitive environment. (Ex. A-7; M-2; J-4). The speech therapist recommended a change in the student’s SLT from two group and one individual weekly session to three individual weekly sessions. (Ex. A-7; M-2). At the meeting, the OT therapist indicated that a sensory diet and strategies, in addition to more OT sessions, would be added to the student’s program, but no sensory diet was ever developed or implemented. (Ex. A-8; M-4; AA-19-20).

The 11/29/21 IEP increased the student’s OT and SLT mandates to three individual thirty-minute sessions of each per week (rather than 2x30x1 OT and 2x30x3 + 1x30x1 SLT. (Ex. M-16). Additionally, one thirty-minute session per week of counseling and a 1:1 paraprofessional was added. (Ex. M-16-17; AA-20). However, the student’s 12:1+1 placement was not changed, except for the addition of an extended school year (“ESY”). (Ex. A-8; M-16-17; AA-20). Parents allege (and the DOE does not contest) that the 11/29/21 IEP goals were inappropriate and did not target all areas of need. (Ex. A-9).

After the 11/29/21 CSE meeting, Parents expressed their disagreement with the DOE’s November Psychoeducational Evaluation. (Ex. A-9; N; AA-20). On November 30, 2021, Parents requested IEEs. (Ex. A-9; N-1; AA-20). The DOE rejected the Parents’ request but did not initiate due process proceedings to defend their evaluation. (Id.; Ex. N-2; AA-21).

On December 20, 2021 the CSE convened again. (Ex. A-10). The student’s mother was present at the meeting. (Ex. O-24). At that time, the CSE noted that the student’s overall adaptive functioning, communication, daily living skills, and socialization performance were all less than the first percentile. (Ex. A-10; O-1). At the meeting, the mother expressed a number of concerns, included the need for ABA in school and the fact that a District redacted placement would be inappropriate because the student was likely to mimic other students’ maladaptive behaviors. (Ex. AA-22-23).

On the 12/20/21 IEP, two management needs were added for the student (O-4; A-10), and the special class placement for ELA and math was changed from a 12:1+1 to a 6:1+1 District redacted placement (Ex. O-16; A-10). Later that day, the IEP was amended again to include nursing services and three weekly periods each of a 6:1+1 special class for social studies and science, and the student’s ELA special class was reduced from 15 periods per week to ten periods per week. (Ex. A-11; P-18-19). The student failed to make meaningful progress under this mandate, and his disruptive behaviors worsened. (Ex. A-11-14; Q; R; S; U; Y-2-10; AA-24-27, 30-31). Additionally, the DOE failed to provide the student with all his mandated related services for the 2021-22 school year. (Ex. A-14).^[14]

The Parents again requested IEEs multiple times between April and June, 2022. (Ex. A-12-14; N-3-18; AA-27-29). At a BIP progress meeting on June 6, 2022, the student’s BCBA requested a copy of the BIP and monitoring data on behalf of the Parents. (Ex. A-13; BB-5-6). A follow-up request was made in July, but these requested records were never provided. (Ex. A-13). At the BIP meeting, the DOE advised that the student’s behavioral incidents had increased (Ex. AA-28), so clearly the BCBA’s concerns about the FBA/BIP were founded. On July 7, 2022, the DOE conducted a remote AT evaluation, that found that the student requires individual support throughout the school day but failed to recommend AT for the student. (Ex. A-13; X-7-8).

The Parents obtained private evaluations in March, July, and August, 2022, which found that the student requires intensive ABA therapy at home and in school in order to make progress. (Ex. A-14; T-1; Z-4). Additionally, the private evaluations recommended that the student be placed in an ABA-based class designed for students with autism for the extended school year. (Ex. A-14; T-1; Z-4). Furthermore, it is recommended that the student be “grouped with verbal children who demonstrate interest in communicating, and who do not have serious disruptive behavior problems.” (Ex. Z-4). Based on these recommendations, Parents contend that a 6:1+1 class is inappropriate for the student, and they believe he needs 1:1 ABA services in an ABA classroom with ABA-trained teachers and a fully-integrated multi-sensory teaching method. (Ex. A-14). In Preschool, the student had an in-class ABA provider who was able to manage his needs well. (Ex. AA-6; BB-4). Additionally, Parents have observed the student have success with his at-home ABA therapy. (AA-12).^[15] Based on her October, 2021 assessment of the student, his BCBA believes he need 25 hours per week of direct ABA intervention, 10 hours per month of adaptive behavior treatment with protocol modification, four sessions per month of family adaptive behavior treatment, 10 hours of reassessment per authorization period, and five hours per month of indirect treatment planning. (Ex. BB-3). She also believes that he requires placement in a 12-month program that specializes in autistic children and provides 1:1 instruction using ABA or other evidence-based instruction throughout the day. (Ex. BB-6). She further believes that the student requires at least 220 hours of compensatory, 1:1 ABA therapy, because he needs comprehensive ABA therapy in addition to his regular school day^[16]. (Ex. BB-6; Tr. 27-28).

At all times, Parents have cooperated with the DOE and attended all CPSE/CSE meetings. (Ex. A-14).

LEGAL FRAMEWORK

IDEA

The IDEA provides that children with disabilities are entitled to a 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 IEP. 34 C.F.R. §300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP. Id. The IEP must be reviewed at least annually [34 C.F.R. §300.324(b)(1)(i)], and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year [8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010)]. A regular education teacher is a necessary member of the IEP team if the student is or may participate in the regular education environment. See 20 U.S.C. §1414(d)(1)(B); 34 C.F.R. §300.344(a); NY Educ. Law §4402(1)(b)(1); 8 NYCRR §200.3(a)(1).

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 Dep't 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).

Under New York regulations, as part of any evaluation or re-evaluation, the school district must administer tests and other assessment that are needed to identify the student’s developmental needs and whether any program or service modifications are needed to enable the student to meet their annual goals and participate in the general curriculum. 8 N.Y.C.R.R. §200.4(b)(5). Such assessments must be “administered by trained and knowledgeable personnel in accordance with the instructions provided by those who developed such assessments,” and include “those tailored to assess specific areas of educational need.” 8 N.Y.C.R.R. §§200.4(b)(6), 200.22(a). “No single measure or assessment is used as the sole criterion … for determining an appropriate educational program for a student,” and the evaluation must be “sufficiently comprehensive to identify all of the student’s special education needs.” Id.

An IEE is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 NYCRR § 200.1(z). The IDEA and State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. 20 U.S.C. §1415 (b)(1); 34 C.F.R. §300.502(b); 8 NYCRR §200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” 546 U.S. 49, 60-61 (2005).

If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE. 8 NYCRR § 200.5(g)(1)(i). A school district can set criteria regarding the IEE, including the qualifications of the examiner, but the district’s criteria must be the same as the criteria it uses for its own evaluations, and the district cannot impose additional conditions or timelines related to the IEE. 34 C.F.R. §300.502(e)(1); 8 NYCRR §200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989). For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE [Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011)], nor can it deny an IEE at public expense based solely on financial cost (Letter of OSERS, 2002). A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE. Letter to Carroll, 68 IDELR 279 (OSEP 2016). A school district cannot unilaterally decide what IEE costs are justifiable; if it believes expenses are unreasonable, it must request a DP hearing. Letter to Petska, 35 IDELR 191 (OSEP 2001). Finally, while the school district may “ask for the parent’s reason why he or she objects to the public evaluation,” the district cannot require an explanation or delay providing the IEE until the parent provides an explanation. 8 N.Y.C.R.R. §200.5(g)(1)(iii). The parents need not provide prior notification of their disagreement or even the areas of their disagreement, although the district can ask. 34 C.F.R. §300.502(b)(4); see also Letter to Zimberlin, 34 IDELR 150 (OSEP 2000); Letter to Lenz, 37 IDELR 95 (OSEP 2002); Letter to Dowaliby, 38 IDELR 14 (OSEP 2002).

When a parent disagrees with a school district’s evaluation and requests an IEE at public expense, the school district “must, without unnecessary delay,” either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 C.F.R. §300.502(b)(2)(i)-(ii); 8 NYCRR §200.5(g)(1)(iv) (emphasis added). The district cannot simply "cure" the parents' concern by completing its own assessment. Letter to Carroll, 68 IDELR 279 (OSEP 2016).

Furthermore, a parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need. Trumbull, 975 F.3d at 165. In Trumbull, the court stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.” Id. The U.S. Department of Education's Office of Special Education Programs (“OSEP”), has similarly stated that when a parent disagrees with an evaluation because a child was not assessed in a particular area, “the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs.” Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016).

Section 504

Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].” 34 C.F.R. §104.33(a).  Under Section 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). Section 504 requires that districts comprehensively re-evaluate a student periodically and before any significant change in placement. 34 C.F.R. § 104.35(a), (b), 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).

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 tuition reimbursement for a unilateral placement has the burdens of persuasion and production on the appropriateness of such placement. NY Educ. Law § 4404(1)(c). Normally, the parents would have the burden of proof under 504. See, e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990). However, since all 504 claims here are subsumed by the IDEA and this is not a tuition reimbursement case, the District has the burden of proof on all issues.

Relief

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of a FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. Id.  Compensatory remedies are also available under 504. See, e.g., J.B. v. Avilla R-XIII Sch. Dist., 61 IDELR 153 (8th Cir. 2013); Easter v. District of Columbia, 66 IDELR 62 (D.D.C. 2015); Horton v. Boone County Sch. Dist., 62 IDELR 25 (E.D. Ky. 2013); Chambers v. School Dist. of Philadelphia Bd. of Educ., 64 IDELR 132 (E.D. Pa. 2014).

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).

ANALYSIS AND CONCLUSIONS OF LAW

I have reviewed the Parent’s Section 504 claims articulated in the DPC and find that such mirror and have merged with those allegations as made under the IDEA. Accordingly, the analysis as to the provision of a FAPE need not be evaluated separately.

I find that the DOE has failed to meet their burden to show that a FAPE was offered for the 2021-22 school year. The DOE has presented no case and made no substantive arguments, so they have essentially conceded their failure to offer a FAPE. Clearly, the DOE has offered no cogent or responsive explanation for the programs offered during the school year at issue. Moreover, it is uncontested that the IEPs in evidence were never fully implemented with regards to the student’s related services of OT, SLT, and CO. The Parents have alleged that the IEPs at issue were not based on appropriate evaluative data, and I find no evidence to the contrary. The Parents have further alleged that the IEPs at issue failed to develop appropriate goals targeting all areas of the student’s need, and this allegation is uncontested. The Parent further alleges numerous procedural violations, such the failure to provide requested educational records in the Parents’ native language and the failure to allow adequate parent participation in the CSE meetings, and these allegations are uncontested. Finally, the DOE has not contested the Parents’ claims that the programs offered in the various 2021-22 IEPs were not reasonably calculated to allow the student to achieve educational benefit. The record shows that the student not only failed to make appropriate progress in the DOE’s recommended programs, but actually regressed in his skills and his behaviors. The DOE has the burdens of production and persuasion on these matters, and they have failed to meet their burden. For all these reasons, I find that the DOE failed to offer the student a FAPE for the 2021-22 school year.

As for evaluations, in this case, the DOE did not initiate an impartial hearing to establish that its evaluation was appropriate, nor did it take the necessary action to ensure that the Parents’ requested IEEs were provided at public expense. I find the requested IEEs are relevant to areas of the student’s need. The Parents are therefore entitled to have the IEEs conducted at public expense by duly qualified evaluators of their choosing. The CSE must then reconvene to consider the results of these evaluations. At that meeting, the CSE must consider whether a more restrictive program is necessary and whether the student requires a referral to an approved non-public or private school that specializes in children with autism and provides 1:1 ABA (or similar evidence-based) instruction in order to achieve educational benefit. Although Parents request the CSE to be ordered to implement such a program, I decline to do so, as I believe the IEE results will be necessary to determine the appropriate program and IEP development is more properly in the purview of the CSE.

The equities here favor the Parents. They were cooperative with the DOE, attended all CPSE/CSE meetings, and actively participated in the IEP process. There are no allegations that the Parents caused delay by withholding consent or in any other way interfered with the IEP process. Furthermore, the equities weigh against the DOE. They have essentially conceded a denial of a FAPE for the relevant school year. Moreover, they failed to initiate due process proceedings to defend their evaluation, and did not even attempt to do so here, but yet denied Parents’ repeated requests for IEEs. Furthermore, they failed to abide by my Order to submit a Due Process Response. For all these reasons, there are no equitable considerations that would weigh against the Parents’ requested remedies.

In terms of remedies, the DOE has not contested the Parents’ requested compensatory education, nor have they presented any alternative plan to compensate for the denial of a FAPE for the 2021-22 school year. Accordingly, there is no factual dispute that the student requires 220 hours of compensatory ABA therapy, 69 hours each of compensatory OT and SLT, and 23 hours of compensatory counseling.^[17] The hours for the ABA therapy come from the recommendation of the student’s BCBA, who says this amount is needed for the student to meet his IEP goals. The hours for the related services correspond to the total number of sessions the student should have received for the 2021-22 extended school year, based on a recommendation of 3x30x1 each for SLT and OT and 1x30x1 for CO. According to Parents’ Council, because of the student’s inappropriate program and lack of full implementation of the related services, the student failed to make meaningful progress on his IEP goals and actually regressed. The evidence supports this claim, and the DOE has made no argument to the contrary. Accordingly, I find that the Parents’ requested compensatory remedies are appropriate. Since the equities weigh in favor of the Parents, they should be allowed to find providers of their choosing at the providers’ customary rates.

I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based upon the above Findings of Fact and Conclusions of Law:

• • IT IS HEREBY ORDERED that the New York City Department of Education shall fund the cost of an independent speech language evaluation (at a rate not to exceed $2100), an independent occupational therapy evaluation (at a rate not to exceed $2000), an independent assistive technology evaluation (at a rate not to exceed $2500), and independent feeding evaluation (at a rate not to exceed $2200), and an independent ABA assessment of this student (at a rate not to exceed $3375) by appropriately qualified providers of the Parents’ choosing at the providers’ customary rates (not to exceed the amounts specified), to be paid directly to the providers within thirty (30) days of the DOE’s receipt of the respective providers’ invoices; it is further
• • ORDERED that the New York City Department of Education shall fund the following compensatory education for the student, by appropriately qualified providers of the Parents’ choosing at the providers’ customary rates, to be paid directly to the providers within thirty (30) days of the DOE’s receipt of the respective providers’ invoices: a bank of 220 hours of individual ABA therapy, a bank of 69 hours of individual OT, a bank of 69 hours of individual SLT, and a bank of 23 hours of individual counseling, all to be provided outside of regular school hours, on a schedule of the Parents’ choosing, with no expiration date; and it is further
• • ORDERED that the New York City Department of Education’s Committee on Special Education shall, within 20 days of completion of the above-ordered evaluations, convene a review meeting to consider, at minimum, the results of the aforementioned evaluations, the continuum of educational programs and services, the student’s progress with his current program and services, and the student’s potential need for an extended school day and/or an extended school year program. The CSE must also consider referral for placement in a non-public or private school that offers 1:1 ABA (or other similar, research-based) instruction in a small class setting designed for students with autism. The CSE shall then develop a new IEP with an appropriate program and services in light of the findings therein.

SO ORDERED.

DATED: January 3, 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 EXHIBITS

Exhibit

Document

Date

Pages

-

-

-

-

PARENT EXHIBITS

Exhibit

Document

Date

Pages

A Due Process Complaint 9/20/22 17

B CSE Occupational Therapy Progress Report 1/11/21 5

C CSE Speech and Language Annual Report 1/18/21 3

D CSE Progress Report 1/18/21 4

E Social History Assessment 3/10/21 1

F General Information Form 3/10/21 2

G Classroom Observation 3/24/21 1

H Individualized Education Program 5/19/21 18

I Request for Reevaluation 10/4/21 2

J Functional Behavioral Assessment 10/22/21 6

K Psychoeducational Evaluation Report 11/10/21 5

L Behavior Intervention Plan 11/29/21 6

M Individualized Education Program 11/29/21 24

N Email Correspondence Regarding Requests for Independent Educational Evaluations Various 18

O Individualized Education Program 12/20/21 24

P Individualized Education Program (Amended) 12/20/21 26

Q Preschool Behavior Rating Scale (Teacher and Parent) 2/3/22, 3/3/22 3

R Letter from BCBA 2/8/22 1

S Teacher Observation 2/28/22 1

T Recommendation Letter of REDACTED (“Private Evaluator One”) 3/11/22 1 U 2021-2022 Final Report Card and IEP Progress Reports 6/20/22 13

V Related Service Records Various 16

W Disagreement with IEP Recommendations Form 6/30/22 1

X Assistive Technology Evaluation Report July 2022 9

Y 2022 Summer Program Progress Report Summer 2022 14

Z REDACTED (“Private Evaluator Two”) Report and Recommendations 8/8/22 4

AA Affidavit of REDACTED (mother) 11/20/22 33

BB Affidavit of REDACTED (student’s BCBA), M.A., BCBA, LBA 12/1/22 6

CC

Curriculum Vitae of REDACTED (student’s BCBA)

12/1/22

4

Footnotes

[1] Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “Ex.,” followed by lettered designations for Parent’s exhibits and numbered designations for DOE exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, page two of Parent’s Exhibit A would be cited as (Ex. A-2).

[3] The parties had agreed on the date and time for the PHC, and the DOE received the WebEx invitation for the meeting but failed to appear.

[4] The PHC Summary and Order was sent to the parties by email on November 9, 2022.

[5] The student’s BCBA is board-certified, has a bachelor’s degree in psychology, a master’s degree in ABA, and is a NY licensed behavior analyst. (Ex. BB-1; C). She has provided direct ABA therapy to the student. (Ex. BB-3). Her affidavit is not notarized/sworn, but she did swear to it during her live testimony on the record. (Tr. 17).

[6] The hearing transcript will be referred to as “Tr.” followed by the page number within the transcript for that hearing day.

[7] 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.

[8] At that time, the DOE had already agreed and issued authorizations for the requested FBA/Behavior Intervention Plan (“BIP”) and neuropsychological IEEs. (Ex. AA-31).

[9] ABA “is an evidence-based therapy that is outcomes-based, clinically focused and can be used to foster a range of skills, from basics to more complex abilities, using various clinically proven techniques to increase useful behavior and make learning more enjoyable while reducing behaviors that can cause harm or interfere with development.” (Ex. BB-2).

[10] Parents have chosen providers for each of the requested IEEs (See Ex. A-15) and these are the chosen providers’ rates for these evaluations.

[11] At the DPH, the requested amounts were slightly different: 69 hours each for OT and SLT, and 23 hours of counseling. (Tr. 65-66). Parents’ Council argued that these were more than the number of hours that were missed, but that, due to the failure to fully implement, the student had been unable to benefit from any sessions, so this was the amount necessary to make meaningful progress towards his IEP goals. (Id.).

[12] The facts contained in the “Background” section above are incorporated here as well.

[13] The report describes all the ways the evaluation was impeded by the student’s distractibility and lack of focus and the fact that the student “was not able to any of the questions correctly. Some questions he answered incorrectly, but most questions he did not answer at all.” (Ex. K-2). Then the report states that it is “the opinion of the examiner that the following results are a valid and reliable estimation of [the student’s] current level of functioning.” (Ex. K-2). In the context of the paragraph, it can only logically be read as a typo and the report meant to say that the results are NOT a valid and reliable estimate of the student’s current functioning.

[14] It is unclear exactly how many of the mandated sessions the student missed. However, based on the related service records in evidence for the fall semester of 2021, the student received an average of 1.8 OT sessions per week and an average of 2.5 SLT sessions per week. (See Ex. V). No related service records for the Spring semester of 2022 are included in the record. No service records were provided at all regarding the number of counseling hours received.

[15] The student has been receiving 20-25 hours per week of at-home ABA services, with 4 hours per week of supervision, 6 hours per month of parent training, and three hours per month of reassessment provided by the Parents’ insurance. (Ex. AA-18; Tr. 19-20).

[16] This 220 hours takes into account the ABA therapy the student should have received in the school setting and the BCBA believes that this is the amount necessary to meet the student’s IEP goals. (Tr. 27-28).

[17] The DOE has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169.