New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 588491 - NYC: 239673

BACKGROUND

The Parents, through their representative, filed a Due Process Complaint (DPC) on or about September 28, 2022. (Ex. A).

In the DPC, the Parents allege as follows. The New York City Department of Education (DOE) failed to provide the Student with a free appropriate public education (FAPE) for the 2021-2022 and 2022-2023 school years. The Student is a predominantly Russian speaking child. While attending preschool during the 2021-2022 school year, the Student was not provided with bilingual service providers which significantly hindered her ability to receive a meaningful educational benefit, and caused regression. In March 2022 the Committee on Special Education (CSE) conducted a “turning five” evaluation to determine the level of special education support the Student would require in kindergarten for the 2022-2023 school year. At a social history evaluation conducted on March 22, 2022, the Parents informed the evaluator that the Student’s nanny only speaks Russian which is the primary language that the Student hears and responds to, but they failed to include such information in the social history. Unbeknownst to the Parents, the CSE conducted all of the Student’s evaluations with monolingual English-speaking evaluators. At a meeting held on May 11, 2022 to develop an individualized education program (IEP) for the Student to enter kindergarten, only monolingual English evaluations and provider reports developed by English speaking teachers and providers from preschool were considered, resulting in very restrictive recommendations by the CSE and a failure to recommend the Student receive her services from bilingual providers or a bilingual paraprofessional to serve as a translator for her. The language barrier prevented the Student from demonstrating the full level of her ability. Upon receiving the IEP and school location letter (SLL) in June 2022, the Student’s father visited the school and strongly felt the environment was too restrictive for the Student. The Parents informed the District 75 placement office that they were rejecting the placement and requesting they find a new placement. On August 24, 2022, the Parent sent a letter to the CSE, the principal of the District 75 school, the district superintendent and at least nine administrators from the borough field support officer requesting bilingual independent educational evaluations (IEEs). There was no response to the request. The Parents request an interim order for the IEEs and a full time Russian speaking bilingual paraprofessional.

The Parents seek a final order that the Student’s classification be changed from Speech or Language Impairment to Autism, that the Student receive the services of a fulltime individual Russian speaking bilingual paraprofessional, that the Student receive all her related services by Russian speaking service providers, that the Student’s S/L mandate be increased to five sessions per week, and that compensatory services for the denial of a FAPE for the 2021-2022 and 2022-2023 school years be awarded.^[1] (Ex. A).

PROCEDURAL HISTORY

I was appointed on November 2, 2022. On November 28, 2022 the Parent requested an extension of the compliance period, which I granted. (IHO Ex. I). A prehearing conference was held on December 16, 2022. At that time, the parties jointly moved for an extension of the compliance period, which I granted. (IHO Ex. II). On December 16, 2022, I issued an Interim Order for seven (7) IEEs. (IHO Ex. III). A status conference was held on February 1, 2023. At that time, the parties jointly moved for an extension of the compliance period, which I granted. (IHO Ex. IV). A status conference was held on February 27, 2023. At that time, the parties jointly moved for an extension of the compliance period, which I granted. (IHO Ex. V). On February 27, 2023, I issued an Interim Order that a full time individual Russian speaking bilingual paraprofessional be provided to the Student during the pendency of this case. (IHO Ex. VI). A status conference was held on March 21, 2023. At that time, the parties jointly moved for an extension of the compliance period, which I granted. (IHO Ex. VII). On April 26, 2023, both parties appeared for the hearing. At that time, the parties jointly moved for an extension of the compliance period, which I granted. (IHO Ex. VIII). The DOE did not seek to introduce any witness testimony or any other evidence. The Parents submitted 21 exhibits into the record on consent of the DOE. Included in Parents’ evidence were six direct testimony affidavits, from the Neuropsychologist (Ex. J), the S/L Pathologist (Ex. F), the AT Evaluator (Ex. O), the Occupational Therapist (Ex. Q), the Physical Therapist (Ex. R), and the Parent (Ex. P). The DOE Representative did not cross-examine any of the witnesses and waived her closing statement. The Parent Representative made an oral closing. (See April 26, 2023 Transcript).

FINDINGS OF FACT AND DECISION

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

The Parent testified credibly as follows. The Student is a REDACTED year old girl diagnosed with autism spectrum disorder, mixed expressive/receptive language disorder, and selective mutism. The Student is bilingual, and the primary language spoken at home is Russian. (Parent Aff. Ex. P at ¶¶ 2-3). The Student was first identified as a child with a disability by the early intervention (EI) system when she was a toddler. As a predominantly Russian speaking child, her EI evaluations were conducted by bilingual (English/Russian) evaluators, and her services were provided by bilingual (English/Russian) service providers. (Id. at ¶ 5). When the Student aged out of the EI system at age REDACTED, she was evaluated by the Committee on Preschool Special Education (CPSE), also by bilingual evaluators. However, when the Student began attending preschool in the 2021-2022 school year, the CPSE failed to procure bilingual service providers or a bilingual paraprofessional, which significantly hindered the Student’s ability to receive an educational benefit or make more than de minimis progress while in preschool, and she regressed in certain areas of functioning. (Id. at ¶¶ 6-8). In March 2022 the CSE conducted Turning Five evaluations to determine the level of special education support the Student would require in kindergarten for the upcoming 2022-2023 school year. The first evaluation conducted by the CSE was a social history on March 22, 2022. This evaluation clearly documented that the Student was bilingual and that Russian and English were spoken at home. Although the Parent told the evaluator that the Student’s nanny only speaks Russian and that Russian is the primary language that the Student hears and responds to, that information was not included in the social history. (Id. at ¶¶ 9-10; Ex. U). Despite this knowledge and unbeknownst to the Parent, the CSE conducted the Student’s psychoeducational evaluation with a monolingual English speaking evaluator. Because the evaluation was conducted at the Student’s preschool, the Parent did not find out that the evaluation was not conducted by a bilingual evaluator until the Student’s Turning Five IEP meeting on May 11, 2022. The CSE also used progress reports from the Student’s monolingual English speaking related service providers rather than conducting updated bilingual S/L, OT and PT evaluations. (Id. at ¶¶ 11-12). At the IEP meeting the Parent voiced her concern that the evaluation and teacher and provider reports did not accurately portray the Student’s full level of skill and functioning due to the language barrier, and that the evaluator, teacher and providers did not understand the Student’s responses given in Russian. (Id. at ¶ 14). The Parent told the CSE she did not think their recommendations were appropriate, but was told she should wait to receive an official copy of the IEP and a school location letter (SLL) and visit the program, and if she still disagreed, she could let them know so the meeting could be reconvened. (Id. at ¶ 15). The Parent did not receive the IEP and SLL until June 2022. The Student’s father visited the school and felt strongly that the environment was too restrictive for the Student. The Parent learned that as a bilingual student, the Student should have received bilingual evaluations and supports in her IEP. The Parents informed the District 75 placement officer that they were rejecting the placement and requested that they find a new placement. (Id. at ¶ 16). On August 24, 2022, the Parent sent an email to the CSE and DOE rejecting the program recommendation and placement, and requesting pendency and bilingual IEEs. The email was ignored. (Id. at ¶ 18; Ex. M). On September 2, 2022, the Parent arranged for the Student to receive a bilingual psychological evaluation which diagnosed her with being on the autistic spectrum, and recommended she receive 30 hours a week of applied behavior analysis (ABA). (Id. at ¶ 20). On the first day of school, having no other place to send her, the Parent brought the Student to the District 75 placement and submitted the private psychological evaluation report, but was told that District 75 did not offer ABA services to their students. (Id. at ¶ 21).

The Neuropsychologist testified credibly as follows. She received her Ph.D. in clinical psychology in 2003, and completed post-doctoral subspeciality training in pediatric and adult neuropsychology in 2005. She has been a practicing psychologist in New York City for almost

20 years, focusing on evaluations of children and adults, and is fluent in both Russian and English, conducting neuropsychological evaluations in both languages. (Neuropsychologist Aff. Ex. J at ¶¶ 1-3). The Neuropsychologist conducted a neuropsychological evaluation and psychosocial evaluation of the Student from February to April 2023, including a class observation on March 22, 2023. (Id. at ¶ 8; Ex. H). Her evaluation indicated that the Student presents with mild-moderate Autistic disorder with language and sensory deficits, fine motor disorder, and ADHD. (Id. at ¶ 14). The Student’s receptive and expressive language skills are weaker than those of 98-99% of her peers, due to her Autism-related symptoms, lack of word and sentence formation knowledge, and because she knows some words only in Russian and some only in English. (Id. at ¶ 15). Her fine motor skills are weaker than 98% of her peers and she struggles to produce drawings or write using a pencil. (Id. at ¶ 16). Her attention skills are weaker than 99% of her peers and she struggles to sustain focus on tasks beyond 3-5 minutes even when interested. (Id. at ¶ 17). Her social skills are weaker than 92% of her peers and she struggles to maintain age-appropriate social interaction and functional play. Her communication adaptive skills are worse than 98% of her peers due to her significant language delay. (Id. at ¶¶ 21-22). The Student’s current behavioral challenges require intensive intervention. The Neuropsychologist recommends that she receive at least 30 hours of 1:1 ABA therapy. (Id. at ¶ 25). She also recommends the Student receive S/L five times per week in 30-45 minute sessions, two group and three individual sessions, and OT five times per week in 30-45 minute sessions, one group and four individual sessions in school with a focus on writing and sensory diet protocol, in a school that has a sensory gym. (Id. at ¶¶ 26-27). She also recommends the Student receive social skills group therapy four to five times per week in 45-60 minute sessions (two to three in school and 2 to 3 after school), and play therapy twice per week to develop functional play skills and further her social interactions with peers. (Id. at ¶¶ 28-29; Ex. H).

The S/L Pathologist testified credibly as follows. She holds a master’s degree in communication disorders and sciences and holds a bilingual extension certificate and school building leader and school district leader certifications. She is a NYS licensed speech/language pathologist and holds a NYS teacher of the speech and hearing handicapped certification. She has been a S/L pathologist for over 20 years and has been conducting evaluations since 2005. (S/L Pathologist Aff. Ex. F at ¶¶ 2-5). She is familiar with the Student, having conducted a bilingual Russian/English S/L evaluation of her in her home with the use of a Russian interpreter.

(Id. at ¶ 6; Ex. E). The Student presents with profoundly delayed receptive, expressive and pragmatic language skills. Her reading comprehension skills fall below age level expectations. The Student has global delays including sensory motor, attentiveness, receptive language, expressive language, pragmatic/social language, speech and voice. (Id. at ¶ 7). While the Student comprehends both Russian and English, she is a minimally verbal student who is unable to express herself adequately in either language. She presents with selective mutism. (Id. at ¶ 8). The Student is a sequential bilingual learner, with Russian the primary language spoken since birth. Even though the Student is slightly more proficient in the English language, she still requires the support of Russian to learn English language skills. The Student should have been provided S/L services by a bilingual Russian/English clinician, and is now experiencing subtractive bilingualism as her native language has not been supported and is making limited progress toward her current goals. (Id. at ¶ 9). The Student requires S/L five times per week, four times on an individual basis and once in a small group of 2:1 for 30 minutes. It is strongly recommended that S/L be provided by a bilingual Russian/English speaking provider, or alternatively a provider with a bilingual extension and Russian interpreter. (Id. at ¶ 13). Based on the qualitative approach, the Student requires a bank of 230 hours of S/L. (Id. at ¶ 14).

The AT Evaluator testified credibly as follows. She holds a master’s degree in speech language pathology, is a NYS licensed S/L pathologist, and has practiced as a S/L pathologist providing evaluations and treatment for nine years. (AT Evaluator Aff. Ex. O at ¶¶ 2-5). She is familiar with the Student and conducted an AT evaluation of her on March 5, 2023. (Id. at ¶ 6; Ex. G). The Student’s school speech pathologist reported that the Student has been successful using augmentative and alternative communication (AAC) within her speech sessions. She found that the Student’s willingness to communicate increases with the use of a speech generating device (SGD). (Id. at ¶ 8). After a comprehensive assessment, it is evident that the Student is functioning below her cognitive level and requires use of an SGD. (Id. at ¶ 9). Currently, the Student does not use AT and there are no AT devices or services on her May 11, 2022 IEP. Based on the evaluation, it is recommended that the Student receive supplemental AT support. (Id. at ¶¶ 12-14). Based on ease of use and access, an iPad is the best option for the Student. Due to the Student’s demonstrated need for a dedicated SGD, as well as the need for AT to access the curriculum and target pre-literacy and writing skills, two iPads are necessary.

(Id. at ¶ 16). The Student should use an iPad with the Grid for iPad communication system which allows for bilingual communication in both English and Russian (Id. at ¶ 17). The AAC device should be made available to the Student 24/7 as needed to communicate with peers, teachers, school staff, family members and members of the community, and travel with her. (Id. at ¶ 18). In terms of reading and writing, the Student would benefit from the use of iOS applications to assist in attaining writing and eventually typing skills, and reading skills. It is imperative that these technology supports be taught and utilized with direct instruction. (Id. at ¶ 20). The AT Evaluator recommends the iPad for AAC be 8-9th generation with a ZenRich iPad 9th Generation case with Kickstand, hand strap and shoulder strap. The AT Evaluator recommends the second iPad for access to the curriculum be 8-9th generation with a Logitech rugged portfolio, the Grid for iPad speech application, Epic!, reading applications (Phonemic Awareness Bubbles, HB Phonological Awareness, Endless Reader, Reading Raven HD, Homer, Phonics Genius, Starfall Learn to Read), and writing applications (Letter School, Wet Dry Try). The Student requires 70 hours of training to ensure access to these tools, inclusive of parent and support staff training, which should largely be provide with the Student present. The Student requires an additional 10 hours of training for AT equipment. (Id. at ¶ 21).

The Occupational Therapist testified credibly as follows. She holds a master’s degree in OT, is a NYS licensed occupational therapist, and is registered by the National Board for Certification in Occupational Therapy. She has been employed as an OT evaluator and occupational therapist for almost five years, working with children with a wide variety of disabilities, including autism, sensory processing disorder, developmental delays, and Rett Syndrome. (Occupational Therapist Aff. Ex. Q at ¶¶ 2-13). The Occupational Therapist is familiar with the Student, having conducted an OT evaluation of her on February 20, 2023. At the time the Student was six years old and enrolled at the Public School. (Id. at ¶¶ 14-16). Throughout the OT evaluation, the Student would become frustrated with any task she found challenging and proceed to leave the area. She was unable to complete the tasks presented to her throughout the evaluation, required constant redirection, and was unable to engage in conversation. (Id. at ¶¶ 24-25). The Student required hand over hand assistance throughout the evaluation when completing fine motor tasks. She exhibited weakness throughout her trunk and core. (Id. at ¶¶ 28-29). She was unable to follow direction of stacking blocks and displayed difficulty in grasping the blocks, with grasp patterns significantly below age level. (Id. at ¶¶ 30-32). Throughout the evaluation, the Student demonstrated sensory under-responsivity, the appearance of being withdrawn, overall low muscle tone and weakness and poor/inconsistent eye contact. (Id. at ¶ 33). The Student demonstrates a low sensory threshold as evidenced by becoming distressed in change in plans, routines, or expectations. She can become easily frustrated and can be stubborn or uncooperative. (Id. at ¶ 52). The Occupational Therapist recommends that the Student receive four OT sessions per week, three individually and one in a group (2:1) for 45 minutes per session at school, on a 12 month basis. (Id. at ¶¶ 53-57). The Student should receive academic instruction within a controlled environment with limited external distractions and the use of a multi-sensory approach to learning, with a highly individualized sensory diet for the school and home environment. (Id. at ¶¶ 58-59). The Occupational Therapist recommends compensatory OT services in the form of a bank of 92 hours of OT based on one hour for 46 weeks for two years as makeup services to allow the Student to make consistent improvements with her significant delays, as her gaps will continue to widen if she fails to receive sufficient clinical intervention to address her present deficits. (Id. at ¶ 62). She further recommends that the Student’s therapeutic and academic intervention be carried out by a multidisciplinary and collaborative approach among the Student’s therapists and educators to ensure acquisition of functional skills and the generalization of skills across multiple contexts. (Id. at ¶ 63).

The Physical Therapist testified credibly as follows. She is a NYS licensed physical therapist, and has 15 years of experience in conducting PT evaluations and providing PT services to students across many ages and diagnoses, including Autism Spectrum Disorder, cerebral palsy, hypotonia, hypertonia, torticollis, and other developmental delays. (Physical Therapist Aff. Ex. R at ¶¶ 2-4). The Physical Therapist is familiar with the Student, having conducted a PT evaluation of her at her home on March 3, 2023. (Id. at ¶ 5). The Student scored in the poor range for stationary and object manipulation and in the very poor range for locomotion. Her standard scores combine for a gross motor quotient that is very poor when compared to typically developing children of the same age. (Id. at ¶ 7). The Student is far below average with respect to mobility, posture/stability, regulation/sensory modulation, sensory discrimination, communication, social skills in structured settings, organization, and self-esteem. (Id. at ¶ 8). Difficulties in performing activities of daily living place the Student at risk for increased dependence on others, social isolation, and increased risk for other health related issues such as obesity and a sedentary lifestyle. (Id. at ¶ 9). The Student performs functional activities at paces that are much slower than her age-matched peers. (Id. at ¶ 10). The Student also presents with impaired balance, and demonstrated moderate to severe delays in hopping and jumping skills.

(Id. at ¶¶ 13-14). With respect to object manipulation skills, the Student presents with significant delays. (Id. at ¶ 15). The Student presents with impaired strength, and her immature running pattern indicates weakness to her trunk and lower extremity muscles. (Id. at ¶ 16). The results of the PT evaluation reveal that the Student has a limited movement repertoire, decreased strength, decreased balance, decreased coordination and motor planning skills. She presents with deficits across all areas of gross motor function including running, stair negotiation, strength balance, coordination, and motor planning. (Id. at ¶ 17). The Student requires consistent skilled PT services to help her function safely in the home, school and community, as well as to increase her participation in all age appropriate physical activities alongside peers. (Id. at ¶ 18). The Physical Therapist recommends that the Student receive individual PT three time a week in 30 minute sessions, with two sessions on a 1:1 basis and one session as a push-in to an adapted physical education class. (Id. at ¶ 19). She also recommends the Student receive 92 hours of compensatory PT services in order to make up for the time the Student was not receiving necessary PT interventions, based on a qualitative clinical approach. (Id. at ¶ 21). Her PT evaluation report includes PT goals that should be included on the Student’s IEP to ensure the service provider is addressing all areas of need. (Id. at ¶ 22: Ex. L).

FAPE

The IDEA provides that children with disabilities are entitled to a FAPE. See 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. See 20 U.S.C. § 1401(9). 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). In order 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).

The DOE had the burden of proof on all matters at this hearing.^[2] It had both the burden of production and the burden of persuasion on each claim put forth by the Parent.^[3] Specifically, the DOE bears “the burden of demonstrating the appropriateness of its proposed IEP.”^[4] Further, the SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.”^[5] The DOE’s silence at a hearing has the effect of conceding every point alleged by the Parent against the DOE unless it is inconsistent with the hearing record.^[6] Further, [U[nder State law as set forth above, the burden of proof has been placed 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]). In the instant case, there was no unilateral placement by the parent or request for tuition reimbursement. ^[7]

Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.

On this record I find that the DOE failed to meet its burden that the Student was provided a FAPE for the 2021-2022 and 2022-2023 school years, presenting no witnesses or other evidence at the hearing. Moreover, a review of the Parent’s evidence further supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer a FAPE for the school years at issue. I credit the Parent’s testimony that for the 2021-2022 school year the CPSE failed to procure bilingual service providers or a bilingual paraprofessional for the Student, which significantly hindered the Student’s ability to receive an educational benefit or make more than de minimis progress while in preschool, and that she regressed in certain areas of functioning. (Parent Aff. Ex. P at ¶¶ 6-8). I also credit the Parent’s testimony that for the 2022-2023 school year, the CSE improperly conducted the Student’s psychoeducational evaluation with a monolingual English speaking evaluator despite the fact that the Student is a predominantly Russian speaking bilingual child, and improperly relied on progress reports from the Student’s English speaking related service providers rather than conducting updated bilingual S/L, OT and PT evaluations, resulting in an IEP for the 2022-2023 school year that failed to accurately portray the Student’s full level of skill and functioning due to the language barrier, and failed to meet the Student’s unique needs or confer an educational benefit. (Id. at ¶¶ 11-14).

Classification

The IDEA and the NY Educ. Law require that a FAPE “be available to any student with a disability who needs special education and related services, even though the student is advancing from grade to grade. 8 NYCRR 200.4(c)(5); 34 CFR § 300.101(c)(1). The IDEA defines a "child with a disability" as a child with one of thirteen enumerated conditions, and "who, by reason thereof, needs special education and related services." 20 U.S.C. § 1401(3)(A).

In New York, a “child with a disability” means “a person under the age of twenty-one who is entitled to attend public schools pursuant to section thirty-two hundred two of this chapter and who, because of mental, physical or emotional reasons can only receive appropriate educational opportunities from a program of special education.” NY Educ. Law § 4401(1)).

Autism is one of the thirteen enumerated conditions, and is defined as “a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disability as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.” 8 NYCRR § 200.1(zz)(1).

I credit the bilingual psychological evaluation dated September 2, 2022 which diagnosed the Student with Autism Spectrum Disorder. (Ex. N) I also credit the neuropsychological evaluation dated April 17, 2023 (Ex. H) and the testimony of the Neuropsychologist that the Student presents with mild-moderate Autistic disorder with language and sensory deficits, fine motor disorder, and ADHD, and that the Student’s receptive and expressive language skills are severely compromised due to her Autism-related symptoms. (Neuropsychologist Aff. at ¶¶ 14-15). I accordingly find that the credible evidence establishes that the Student’s disability is most accurately classified as Autism, and that the Student’s eligibility classification should be changed from Speech or Language Impairment to Autism.

IEP

An appropriate program requires an IEP to accurately reflect the results of evaluations to identify the Student's needs,^[8] and provide for the utilization of sufficient special education services.^[9] DOE must also provide “an IEP that is ‘likely to produce progress, not regression.’” ^[10] Here I find that the May 11, 2022 IEP for the 2022-2023 school year was substantively flawed, as it failed to identify the Student as bilingual in Russian and English, and failed to provide for the Student’s special education services to be provided by bilingual providers. I find that the evidence establishes that the DOE and CSE were on notice that the Student was a bilingual learner, as her preschool social history report dated May 5, 2021 clearly states that the Student is exposed to the English and Russian languages in her home and requires bilingual evaluations. (Ex. S). Additionally, the DOE social history dated March 22, 2022 states that the primary languages spoken within the Student’s home is English and Russian, and that the Student received speech therapy in Russian at home. (Ex. U). Accordingly, as the May 11, 2022 IEP failed to provide the Student with educational instruction specially designed to meet her unique needs, I find that the Student’s IEP should identify her as a bilingual student who requires dual language support, with either English as a second language or English as a new language added to her IEP. I also find that the Student requires the services of a full time bilingual paraprofessional to assist her with the English language instruction of her teachers and that the Student’s related services be provided by bilingual providers, so that the Student’s bilingual needs are supported and to permit the Student to benefit from her special education instruction.

I further credit that the Parent submitted the bilingual psychological evaluation dated September 2, 2022 to the DOE on the first day of the 2022-2023 school year, which diagnosed the Student with Autism Spectrum Disorder and recommended she receive 30 hours a week of ABA therapy in the classroom and home (Ex. N), but that the DOE took no action to either consider such evaluation or provide such services. (Parent Aff. at ¶¶ 20-21). I also credit the neuropsychological evaluation dated April 17, 2023 (Ex. H) and the testimony of the Neuropsychologist that the Student should receive at least 30 hours of 1:1 ABA therapy in order for the Student to make educational progress, receive an educational benefit, and avoid regression. (Neuropsychologist Aff. at ¶ 25).

Compensatory Relief

Under the IDEA, courts can “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 Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA, see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002), “a court 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.

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. 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. P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education can serve as a “replacement of educational services the child should have received in the first place", and any award "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA[.]" Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").

Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate remedy. Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015) (citing cases). Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 (D. Minn. 2022), citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2019).

The DOE is required under the due process procedures set forth in New York State law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that he would have been but for the denial of a FAPE. The DOE had an opportunity during the impartial hearing to set forth its position regarding the appropriate compensatory education remedy. The DOE did not introduce any evidence regarding appropriate relief. As the DOE failed to provide the Student with a FAPE for the 2021-2022 or 2022-2023 school years, I find that an award of additional services would place the Student in the position she would have been in had the DOE complied with its obligations under the IDEA.

I credit the testimony of the S/L Pathologist that the Student should have been provided S/L services by a bilingual Russian/English provider, and is now experiencing subtractive bilingualism as her native language has not been supported and as result she has made limited progress toward her current goals, and that the Student requires S/L five times per week, four times on an individual basis and once in a small group of 2:1 for 30 minutes provided by a bilingual Russian/English speaking provider, or alternatively a provider with a Russian interpreter. (S/L Pathologist Aff. at ¶ 9). I further credit the S/L Pathologist’s testimony that in order to remediate the Student’s deficits resulting from the DOE’s failure to offer the Student a FAPE for the school years in question, the Student requires a bank of 230 hours of S/L. (Id. at ¶¶ 13-14).

I also credit the testimony of the AT Evaluator that the Student is functioning below her cognitive level because of the failure of the DOE to provide appropriate AT devices and support, which should have been included in the Student’s May 11, 2022 IEP. (AT Evaluator Aff. at ¶¶ 9, 12-14). I find that the Student requires two iPads, one for AAC, and one to access the curriculum and target pre-literacy and writing skills. (Id. at ¶ 16). The AAC iPad should be 8-9th generation with a ZenRich iPad 9th Generation case with Kickstand and hand strap and shoulder strap, include the Grid for iPad communication system to allow for bilingual communication in both English and Russian, and be made available to the Student at all times in and out of school. The second iPad to access the curriculum should be 8-9th generation with a Logitech rugged portfolio, the Grid for iPad speech application, Epic!, reading applications (Phonemic Awareness Bubbles, HB Phonological Awareness, Endless Reader, Reading Raven HD, Homer, Phonics Genius, Starfall Learn to Read), and writing applications (Letter School, Wet Dry Try). (Id. at ¶¶ 17-20). I further find that the Student requires 70 hours of training to ensure access to these tools. (Id. at ¶ 21). I find that the DOE’s failure to address the Student’s clear AT requirements for an extended period requires an award of compensatory services in this regard.

I also credit the testimony of the Occupational Therapist that the Student requires four OT sessions per week, three individually and one in a group (2:1) for 45 minutes per session at school, on a 12 month basis, and that to compensate for the DOE’s failure to provide sufficient OT services by a bilingual provider, the Student should receive compensatory OT services in the form of a bank of 92 hours of OT based on one hour for 46 weeks for two years to allow the Student to make improvements with her significant delays and avoid further regression. (Occupational Therapist Aff. at ¶¶ 53-57, 62).

I also credit the testimony of the Physical Therapist that the Student requires individual PT three time a week in 30 minute sessions, with two sessions on a 1:1 basis and one session as a push-in to an adapted physical education class, and that the Student receive 92 hours of compensatory PT services in order to make up for the time the Student was not receiving necessary PT interventions, based on a qualitative clinical approach. (Physical Therapist Aff. at ¶¶ 19-21).

I find that these compensatory services would allow the Student to receive an educational benefit and place her in the position she would have been in had the DOE complied with its obligations to provide a FAPE for the school years in question. I note there is no evidence or claim made by the DOE asserting or suggesting that the Parent failed to cooperate with the DOE or interfered in any manner with the DOE’s obligation to provide the Student with a FAPE on an equitable basis for the 2021-2022 or 2022-2023 school years. ^[11]

ORDER

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

1. The CSE will immediately convene, reclassify the Student as a child with Autism, and develop an IEP and appropriate program for the Student that addresses her individual learning needs and create meaningful and measurable goals to address the Student’s disability in a 12-month program, which indicates that the Student is bilingual in Russian/English and requires dual language support of either English as a second language or English as a new language, which indicates the Student requires AT devices and services, and which includes at a minimum 30 hours per week of 1:1 ABA provided by a licensed behavioral analyst of the Parents’ choosing at an enhanced market rate (20 hours in school and 10 hours at home); S/L for 30 minutes five times per week (four times 1:1 and once in 2:1 group); OT for 45 minutes four times per week (three 1:1 and once in a 2:1 group); PT for 30 minutes three times per week (twice 1:1 and once as a push-in to an adapted physical education class), and provides for bilingual related services providers; and

2. The DOE will immediately provide a full-time individual Russian-speaking bilingual paraprofessional to assist the Student during the 12 month school year.

If the DOE fails to do so, it will fund a full-time paraprofessional of the Parent’s choosing, who shall be paid at a reasonable market rate. If a bilingual paraprofessional is not available, the DOE will provide and/or fund a full time paraprofessional with a translation device; and

3. The DOE shall immediately provide the Student with AT devices and services on a 12-month basis as follows: two iPads (AAC iPad and Academic iPad) both 8-9th generation with the most current operating system and the Grid for iPad speech application. The AAC iPad will be made available to the Student at all times and include the ZenRich iPad 9th Generation case with Kickstand, hand strap and shoulder strap, and the Academic iPad will include a Logitech rugged portfolio, Epic!, reading applications (Phonemic Awareness Bubbles, HB Phonological Awareness, Endless Reader, Reading Raven HD, Homer, Phonics Genius, Starfall

Learn to Read), and writing applications (Letter School, Wet Dry Try). The DOE will provide 70 hours of AT training by a qualified person to the Student to ensure access to both devices, inclusive of parent and support staff training, who will also provide ongoing programming, routine and unexpected maintenance, troubleshooting, and software updates; and

4. The DOE shall fund, as compensatory relief, the following services for 2021-2022 and 2022-2023 school years: 230 hours of S/L, 92 hours of OT, and 92 hours of PT, to be provided by qualified providers of the Parents’ choosing at an enhanced market rate scheduled at the Parents’ discretion, and the DOE shall issue payment directly to the providers within 30 days of a copy of the invoice. The bank of services described herein shall not have an expiration date.

SO ORDERED

Dated: June 9, 2023

_Philip Sturges_______

Philip P. Sturges

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.

Footnotes

[1] A request for a less restrictive environment was withdrawn at the hearing.

[2] Education Law § 4404(1)(c); M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 224-25 (2d Cir. 2012).

[3] See Schaffer v. Weast, 546 U.S. 49 (2005); M.P.G. v. N.Y.C. Dep’t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

[4] Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003).

[5] Appeal No. 01-044 (SRO March 27, 2002); see also SRO Appeal No. 12-006 at 8.

[6] Id.; see also SRO Appeal No. 19-038 at 28 (a district’s default deems all violations alleged in a due process complaint notice to be deemed true).

[7] Appeal No. 17-105 at 8-9 (SRO January 22, 2018).

[8] 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 C.F.R. § 300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii).

[9] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep't of Educ., Appeal No. 07- 018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06- 029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.

[10] Cerra v. Pawling Cent. School Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak v. Florida Union Free School Dist., 142 F.3d 119, 130 (2d Cir. 1998).

[11] I decline to award 2,760 hours of compensatory ABA SETSS as requested at the hearing, as I find such request is not supported by the evidence in the record.