New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 589436 - NYC: 240486

FINDINGS OF FACT AND DECISION

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

Date of Birth: REDACTED

School District: # REDACTED

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: 09/26/2022

Date of Hearing: 02/28/2023

Actual Record Closed Date: 03/22/2023

Date of Decision: 04/02/2022

Date of Distribution if Different than Decision Date: n/a

Hearing Officer: Harry A. Christodoulou

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 28, 2023

For the Student:

REDACTED (hereinafter referred to as “Parent’s representative”) Parent (assisted by an interpreter)

For the Department of Education (“DOE”): REDACTED (hereinafter referred to as “District’s representative”)

BACKGROUND AND PROCEDURAL HISTORY

Student is a REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute.

On September 26, 2022, Parent, through Parent’s representative firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA (Ex. IHO-I). I was appointed on December 21, 2022, to preside over the claims in the DPC in terms of New York State (“NYS”) regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and NYS Education Law § 4404(1) to determine the claims in the DPC concerning Student’s special education program.

It is asserted in the DPC that, based on numerous procedural and substantive grounds, the DOE failed to offer Student a Free Appropriate Public Education (“FAPE”). Parent sought, inter alia, a finding that the DOE denied Student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years (“SYs”), deferral to the Central Based Support Team (“CBST”) for an appropriate approved non-public school (“NPS”) placement, Independent Educational Evaluations (“IEEs”), and compensatory services (Ex. IHO-I-13, IHO-I-14, and IHO-I-15).

The DPC included a request for an interim order for IEEs (Ex. IHO-I-13). At the prehearing conference it was confirmed that Parent was only seeking one outstanding IEE at that time as the District had conducted some evaluations and that the DOE was agreeing to an interim order for the requested IEE (T. P4, & P5). I issued an interim Order on IEE on January 9, 2023 (Ex. IHO-II) 2, which IEE was subsequently obtained and included in the record as part of Parent’s disclosure (Ex. P-G).

The IH took place on February 28, 2023.

JURISDICTION

A decision in this matter is being rendered pursuant to the IDEA^[3] and its implementing regulations,^[4] and the NYS Education Law^[5] and its implementing regulations. ^[6]

2

T. P25. Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement . . . a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s] parents or guardian and representation by counsel, and a review procedure.”^[7] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The DOE delegated to the New York City Office of Administrative Trials and Hearings the authority to adjudicate due process complaints under Section 504. ^[8]

PARTIES’ POSITIONS AND CASES PRESENTED

District’s representative confirmed at the IH that the DOE was: not putting on a case only in the sense that the DOE was not calling any witnesses or putting forward any documents, but that the DOE was not conceding “Prong I”, namely that it failed to provide Student with a FAPE for the SYs at issue (T. P23). District’s representative confirmed that the DOE rested its case (T. P25) and waived a closing statement (T. P42).

Parent, through the Parent’s representative, submitted thirty-six documents in support of the Parent’s case at the IH. The DPC (proposed Exhibit P-A) had previously been admitted to the record in preparation of the interim order for the awarded IEE and was withdrawn from Parent’s disclosure to avoid duplicate documents being admitted to the record. The remaining thirty-five documents were admitted to the record at the IH (and are listed below) after confirming with the District’s representative that there were no objections from the DOE to those documents being admitted into evidence (T. P24, & P25).

In a combined opening and closing statement Parent’s representative inter alia addressed ^[9]: Background history regarding Parent, Student, and Student’s past diagnosis, change of Student’s classification in March 2017, presenting delays and deficits; lack of progress and an increase in aggressive behaviors leading to Parent taking Student to The Center (defined on page 30); Student’s switch to remote learning and the impact it had on Student’s ability to progress; a subsequent lesser restrictive recommendation made, despite Student needing more; Student’s later Diagnoses (defined on page 30) as part of the neuropsychological evaluation conducted, addressing how Student’s IEPs fail(ed) to address Student’s Diagnoses and classification; the recommendations made by Parent’s Witnesses (defined on page 30), including a comprehensive compensatory services plan prepared by a team of licensed professionals in their respective areas of expertise; and the relief sought based upon those professionals’ recommendations.

PREVAILING PARTY

Parent is the prevailing party, and an award or Order is granted in favor of Parent.

LEGAL FRAMEWORK

A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits ^[10].

If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits ^[11].

The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE ^[12].

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" ^[13]. To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP ^[14]. Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" ^[15].

The IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student. ^[16]

The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.^[17]

Section 504

Section 504 prohibits discrimination against qualified students with a disability.^[18] Section 504 states, “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” ^[19]

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].” ^[20]

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.” ^[21]

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 an impairment, or (iii) is regarded as having an impairment.”^[22] However, only students who have a substantial limitation of a major life activity are entitled to a FAPE.^[23] 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. ^[24]

Districts must conduct “periodic” reevaluations of students who are eligible under Section 504. Compliance with the IDEA’s reevaluation procedures is one way of complying with this requirement. ^[25]

When making decisions about services and supports for a student, Section 504 requires that districts “draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior.”^[26] Additionally, districts must ensure that information from these sources is “documented and carefully considered.”^[27] Placement decisions must also be made “by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.” ^[28]

Burdens

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement – which is applicable in this case. ^[29]

Parents bear the burden of proof, both in production and persuasion, on any claim under Section 504 of the Rehabilitation Act. ^[30]

FINDINGS OF FACT AND DECISION

[I] Denial of a FAPE:

The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” ^[31]

Although the DOE has not conceded that it failed to provide Student with a FAPE for all the SYs in issue, it elected not to call any witnesses to testify to offer any explanation let alone a “cogent and responsive” one. As such, I have sought to determine if the programs provided for those SYs were reasonably calculated to enable Student to make progress appropriate in light of Student’s circumstances, based on a preponderance of the evidence which includes all the evaluations on record as well as the testimony of Parent and Parent’s Witnesses. In making this determination, I am mindful that school districts are not required to “maximize” the potential of students with disabilities,^[32] but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’” (my emphasis).^[33] The IEPs must have been “reasonably calculated to provide some ‘meaningful’ benefit.” ^[34]

Student’s Diagnoses and the impact it has had on Student’s learning and ability to progress is well documented in the IEPs, the evaluations conducted, Student’s IEP Report Card, the Compensatory Services Plan prepared for the Student, and the affidavits submitted (Ex. P-B through P-FF, excluding the resumes).

It is unsurprising that in the face of such overwhelming evidence, that the District chose not to put on a case (outside of resting on the documents) to prove that the Student was provided with a FAPE for the SYs in issue. Although not the Parent’s obligation in the first place, Parent has made out a compelling case that the District denied the Student a FAPE for all SYs in issue, causing a deprivation of educational benefits and the District has not met its burden in this regard.

Parent’s Witness 3 (defined on page 30) testified (Ex. P-BB) inter alia that: Student presents with Student’s Diagnoses; Student requires very substantial support and the problems that are interfering with Student’s access to even a modified curriculum are not being addressed whatsoever; in reviewing the DOE’s own progress instrument, the SANDI, results appear to indicate inconsistent and very limited progress; Student’s most recent IEP appears vague and conveys an overestimation of Student’s functioning; there are many examples in Parent Witness 3’s report of how the IEPs do not reflect Student’s actual abilities; Student does not appear to comprehend what the factual material even means and there appears to be very little use of this knowledge in Student’s interaction with school, home or community, noting that the skills referenced in all the IEPs revealed pre-kindergarten skills.

Student’s academic delays are much more severe than described in Student’s most recent IEP; testing indicated that academic measures presented in the IEP relate only to decoding and some math facts, but that this does not reflect Student’s lack of understanding of what is being communicated to Student; testing however does reveals much greater potential; what is truly troublesome about the IEPs and the recommendations and issues presented within them ignore Student’s Diagnoses; there are no goals in Student’s IEPs to address the emotional, behavioral, social and communication issues related to autism; according to the DOE’s own records, there have been no attempts to address Student’s autistic symptoms with ABA or any evidenced based methodology; and there is no indication of a functional behavior analysis being performed to provide Student with a behavior intervention plan (“BIP”) to address Student’s clear aggression, poor social skills, anxiety and severe language delays.

Student should be placed in a NPS given the extent and nature of Student’s presentation and lack of an appropriately supportive program for many years and requires a small classroom that provides intensive individualized attention and support throughout the day with special education teachers trained to work with children with autism. Student also requires: a functional Behavior Assessment (“FBA”) and BIP by a boardcertified behavior analyst (“BCBA”) to take real data and address the nature and severity of Student’s delays; a communication device commensurate with Student’s current language delays and needs a comprehensive assistive technology (“AT”) evaluation; and that while Student is awaiting placement in an appropriate NPS, Student should immediately be provided with one-to-one Applied Behavior Analysis (“ABA”) full-time during school hours, pushed-in at Student’s attending school. Student should also be provided with both school and at-home ABA to allow for appropriate access and cross-over to implement ABA instructional methods and behavior modification techniques during naturalistic learning opportunities during daily familial routines to promote socially significant behavior change across important developmental domains. Student must also be provided with a para-professional in addition to the one-to-one ABA provider in the school to ensure Student’s safety as well as others. It is imperative that until Student’s severe behaviors can be decreased through ABA, Student must be provided with a para-professional for safety and to help implement the BIP.

Parent’s Witness 1 (defined on page 30) testified (Ex. P-AA) inter alia that: Service Provider 1 (defined on page

30) was contacted by Parent representative’s offices to conduct a review of Student’s educational records and the program offered to date by the DOE and if necessary, to create a program to remedy any found deficits in the domains of Speech/Language (“SL”), Occupational Therapy (“OT”), and AT. A detailed plan for remediation of Student’s deficits has been set forth in the Compensatory Services Plan, together with the findings and recommendations of Reviewer 1 (defined on page 30).

Parent’s Witness 4 (defined on page 30) testified (Ex. P-EE) inter alia that: The March 2022 IEP reported that Student “is easily distracted by extraneous stimuli in the classroom environment… requires frequent reminders to stay on task and prompts to prepare [Student] for the next activity”; noted an area of concern that “pertains to [Student’s] non-compliant behaviors (task avoidance, refusal to begin an activity in a reasonable time) during times of task demands, complex assignments, and removal of a preferred activity”; and that although they indicated that the behavior has “decreased”, they do not indicate any data quantifying the decrease and continue to identify the problem behaviors as and “area of concern”.

Alarmingly, although the CSE acknowledged in the March 2022 IEP that Student emits non-compliant behaviors that include refusing to begin activities and task avoidance, the CSE failed to recommend and mandate any positive behavioral interventions, supports and other strategies to address the behaviors that impede Student’s availability for learning. Additionally, the CSE also did not recommend a BIP for Student.

The March 2022 IEP noted the importance of Student being supervised during all transitional activities and “to provide support when needed”; however, the IEP fails to report the behaviors being emitted requiring such high intensity supervision. Rather, a notation under the management needs reported that Student requires “close physical supervision due to [Student’s] inability to discern safety issues”. However, it is still unclear as to what behaviors are being emitted that pose such a danger that would require such “close physical supervision”.

Student’s teacher reported that Student’s social/emotional functioning was of concern and that Student was functioning below average, has high anxiety particularly during group activities and becomes “antisocial”. She also reported that Student’s anxiety “becomes more intense”. To affect any behavior change for skill acquisition to take place, Student requires a NPS in a small classroom of no more than six students with students similar to Student’s functioning level. Student requires academic instruction that is taught on functioning level rather than grade level utilizing ABA throughout the day.

Student also requires: Tasks to be broken down into their component skill sets; a task analysis for learning skills which breaks up skills into step-by-step components for learning, behavioral change procedures implemented to not only increase attending and availability for learning and skill acquisition, but to teach alternative and appropriate replacement behaviors, which ABA does.

Without ABA, Student will continue to remain stagnant and/or continue to regress as seen year after year.

Student has not been afforded the opportunity to learn based upon Student’s unique needs that require

Student to be taught using evidence based behavioral change interventions of ABA.

Student requires: 30-hours per week of push-in ABA into Student’s current placement, to incorporate reduction/extinction of problem behaviors (covert and overt behaviors) that interfere with Student’s availability for learning; a 12-month extended school year program to maintain skills and to prevent regression of skills; an FBA and BIP, both by a licensed BCBA, that is based on the functions of Student’s behaviors; a minimum of 7.5 hours per week of one-to-one at-home ABA instruction with a provider who is trained and has experience in ABA implementation, mandated in Student’s current IEP going forward; BCBA supervision of both the school and at-home ABA program, mandated in Student’s current IEP going forward, of a minimum of 6-hours per month of ABA school supervision and 3-hours per month of ABA at-home supervision, to analyze data, to make systematic changes to the programs to ensure progress, and to make any necessary changes to the interventions as needed.

Parent must also be trained and taught how to implement the strategies and the behavior change principles to decrease intermittent reinforcement or problem behaviors that will carry over into the school and other environments. Moreover, Parent requires training on how to effectively utilize the empirically based interventions, to decrease problem behaviors, increase daily living skills, increase social/emotional skills, and increase appropriate community behaviors. Parent requires 4 hours per month of at-home Parent Counseling and Training (“PCAT”), mandated on Student’s current IEP.

Student requires: 1,035 hours (minimum 7.5 hours/week x 46-weeks x 3-years) of one-to-one at-home ABA to address deficits in academic skills, social skills, daily living skills, self-help skills, community skills, and language skills while simultaneously diminishing/extinguishing maladaptive problem behaviors that interfere with skill acquisition; and 103.5 hours of BCBA supervision to oversee the 1,035 hours of Student’s ABA hours (1 hour/every 10 hours of ABA or 10%). Student also requires Social Skills Training/Counseling to teach coping mechanisms to help reduce problem behaviors caused by anxiety, specifically 103.5 hours of one-to-one at home Counseling (0.75 hours/week x 1x/week x 3-years).

Parent/family requires: 138 hours of makeup PCAT (4 hours/month x 11.5-months x 3-years) for the 2020/2021, 2021/2022, and the 2022/2023 school years.

Based on the analysis and findings of Parent’s Witnesses, as well as Reviewer 1, I am unable to find that the District offered or provided “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" ^[35], for the SYs in issue. The District cannot abdicate its responsibility to develop an IEP based upon the unique circumstances of the Student ^[36]. If a District knows or has reason to believe that a student will require certain services, it must evaluate the student’s needs and offer appropriate supports in a timely manner ^[37]. The District had and still has an affirmative obligation to offer the student a FAPE ^[38]. With certain exceptions, a student’s IEP is required to be reviewed periodically, but not less frequently than annually, and revised as appropriate39 (my emphasis).

Student’s program continued to remain materially the same from year to year with no formal evaluations being conducted, despite DOE’s obligation to conduct a triannual re-evaluation; no additional support or related services being provided, the same placement still determined to be appropriate, and the burden was left to Parent to seek outside help to address Student’s behavioral issues. In addition to all the documented instances in the Compensatory Service Plan (Ex. P-V) where Student’s IEPs fell short, Parent testified that there was no interpreter at the CSE meeting held virtually in May 2021 and that it was extremely hard for her to understand what was going on (Ex. P-C-36; P-FF-2). Then IEP that Parent received was in English and she had to have someone read it for her. Again there was no interpreter at the March 8, 2022 IEP meeting (P-B-35, P-B-36, & P-FF-3). It is apparent from both the March 20, 2019 IEP and the June 10, 2020 IEP that an interpreter was present, demonstrating that the DOE was well aware of Parent’s need for interpretation services (Ex. P-E-20, & P-D-22).

Ultimately, Parent had to find out from Parent’s Witness 3 that: standardized testing showed that Student’s reading skills were at about high kindergarten level; Student could not respond to any questions about oral comprehension; Student only knew a few math facts; how far behind Student really was; Student requires very substantial support and that Student’s needs are not being addressed in Student’s current program; Student’s IEP ignored Student’s need to address Student’s autism and that there are currently no goals in the IEP to address the emotional, behavioral, social and communication issues related to Student’s Diagnoses; there was no attempt to address Student’s autistic symptoms with ABA; and that there was no Functional Behavior Analysis performed to develop a BIP to address Student’s aggression, poor social skills, anxiety and severe receptive and communication delays (Ex. P-FF-3).

39 (20 U.S.C. § 1414[d][4][A]; 34 C.F.R. § 300.324[b][1][i]; see also Educ. Law § 4402[2]; 8 NYCRR 200.4[f].

The IDEA requires that an IEP team include: the parent(s) of the child; at least one regular education teacher of the child (if the child is, or may be, participating in the regular education environment); at least one special education teacher of the child, or where appropriate, at least one special education provider of the child; a district representative qualified to supervise/provide special education who is knowledgeable about the general education curriculum and the District's available resources; and an individual who can interpret the instructional implications of evaluation results (who may be an existing, required member of the team other than the parent). ^[40]

In New York, the CSE carries out the functions of the IEP team.^[41] The composition of the CSE meets the IDEA requirements but also includes a school psychologist, who may also serve as the district representative or individual who can interpret the instructional implications of the evaluation results. ^[42]

The Official Analysis of Comments to the federal regulations indicates that the special education teacher or provider "should" be the person who is or will be responsible for implementing the student's IEP. ^[43]

According to the attendance pages of the last two IEPs, it is clear that there was no school psychologist present and that the CSE team was therefore not duly constituted on March 8, 2022 and May 27, 2021 (Ex. P-B-35, P-B36, & P-C-36). While it has been held that not all procedural errors render an IEP legally inadequate under the IDEA ^[44], this procedural failure was not insignificant and had material implications for Parent and Student.

At both CSE meetings the CSE team considered and rejected the very placement recommendation that Parent’s Witness 3 has found to be required for Student, namely an NPS. The team rejected a “State approved non-public school … because it is too restrictive a setting at this time. [Student]’s academic, language, cognitive, and emotional issues are not severe enough to warrant such a restrictive setting at this time. [Student]’s academic needs can be adequately met” in Student’s current program. Similar reasoning was provided in the IEP for the prior SY (Ex. P-B-35; P-D-21).

In the teacher forms on record completed at the beginning of 2020 (Ex. P-R), Student’s Special Education Teacher at the time who was spending six hours a day with the Student documented that Student had serious disciplinary problems. Classroom behavior was rated 0 out of 4, corresponding to a poor rating. Student was documented in the Conner’s 3 Teacher Short as having problems with anger management (Ex. P-R-10).

Despite Student’s teacher raising behavioral concerns no FBA or BIP was conducted, and no additional counselling was recommended. This, together with the failure to re-evaluate Student particularly in areas of Student suspected disabilities, impacted the ability of the improperly constituted CSE team to make an informed choice regarding the appropriateness of Student’s existing placement, and the inappropriateness of all the alternative options that were rejected, especially the NPS option. These factors together support Parent’s assertions in the DPC that the DOE failed to, inter alia: recommend an appropriate program and placement for Student for the 2020-2021, 2021-2022, and 2022-2023 SYs; provide Parent with IEPs, progress reports, evaluation reports, and report cards in the language known by the District to be the Parent’s native language; meaningfully include Parent; evaluate appropriately; adequately assess Student’s behavior management needs and appropriately address the proven behavior; provide ABA with BCBA supervision, given Student’s Diagnoses, which would have been fully and properly diagnosed earlier if the DOE had re-evaluated Student; and provide AT (addressed below).

I address the impact of equitable considerations on compensatory services recommended by Parent’s Witnesses and Reviewer 1 when addressing the appropriate remedy below, but it is clear from the evidence submitted by Parent and highlighted by the most recent evaluation and report (Ex. P-G, & P-V) that the DOE failed in its obligations towards Parent and Student for the three SYs at issue.

The DOE, inter alia, failed to: timeously identify Student’s learning challenges and struggles; conduct evaluations sooner; conduct appropriate evaluations in areas of Student’s suspected disabilities; appropriately diagnose; have an appropriately assembled CSE team to conduct Student’s IEP meetings; recommend sufficient support services, given the documented behavioral issues impacting Student’s ability to access Student’s education and the impact it was having on Student’s performance; provide educational services, with appropriate supports to access that education; recommend an appropriate placement where Student could receive appropriate supports and services to address Student’s individual needs; and that continuing to recommend the same school placement with no BIP in place resulted in a deprivation of educational benefits.

In the circumstances, I find that there was a denial of a FAPE for SYs in issue (with a risk that this will continue for the remainder of the 2023-2023 SY) and the DOE did not discharge its burden in this regard. [II] Appropriate Remedies: Compensatory Services Parent is also seeking compensatory education or compensatory services for the District’s failure to provide Student with a FAPE. 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. ^[45]

An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period 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. As the claims and DOE’s failure to provide a FAPE cover multiple SYs, I find that an award of compensatory services is appropriate.

A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).

The purpose of an award of compensatory education or services is to provide an appropriate remedy for a denial of a FAPE.^[46] Generally, an award of additional services should aim to place a student in the position the student would have been in had the district complied with its obligations under the IDEA ^[47]. Given the duration of the deprivation and the evidence on record, this case lends itself more appropriately towards the qualitative approach, but also not wholly unconnected to the period of the deprivation (i.e. the quantitative approach).

Parent’s representative made clear the compensatory hours that Student should be awarded with respect to the type and scope of compensatory services that would be appropriate if a FAPE deprivation were found to have occurred. Parent disclosed a detailed Compensatory Service Plan (Ex. P-V), supported by the testimony of Parent’s Witnesses (Ex. P-W, P-X, P-BB, & P-EE), whom I find to be sufficiently qualified to express the opinions provided, incorporating recommendations from Parent’s Witness 2, Parent’s Witness 3, Parent’s Witness 4 and Reviewer 1, who hold appropriate credentials to provide the assessments and recommendations expressed (Ex. P-W-1, P-W2, P-X-1, P-Y, P-Z, P-AA, P-BB-1, P-BB-2, P-CC, P-DD, P-EE-3 through P-EE-4).

Service Provider 1’s detailed and highly individualized remedial plan proposed for Student is credible and convincing (subject to the equitable factors which I address below) and is based on a detailed review of Student’s records and informal assessments/interviews. It also sets out in detail instances where Student’s IEPs fell short, linking the remedial services proposed to the deprivations experienced.

Parent’s Witnesses give a detailed breakdown, properly supported and incorporating their and the Reviewer 1’s recommendations, for the ultimate recommendations proposed for Student including the proposed award for compensatory services and instruction (Ex. P-W), as well as recommended evaluations, namely: Compensatory educational & related services: a. 1,035 hours of Compensatory ABA services (7.5 hours per week for 46 weeks, for 3 years) (Ex. P-EE-15).

b. 103.5 hours of Compensatory BCBA supervision to oversee the 1,035 hours of Compensatory ABA hours (1 hour/every 10 hours of ABA or 10%) (Ex. P-EE-15).

c. 103.5 hours of Compensatory one-to-one Counseling (0.75 hours weekly for 46 week, for 3 years) (Ex. PEE-16).

d. 138 hours of Compensatory PCAT (4 hours monthly, for 3 years) (Ex. P-EE-16).

e. 138 hours of Compensatory OT services (1.5 hour weekly for 46 weeks, for 2 years) (Ex. P-X-5).

f. 92 hours of Compensatory AT Training (2 hours weekly for 46 weeks, for 1 year) (Ex. P-X-5).

g. 46 hours of Compensatory AT Parental Training (1 hour weekly for 46 weeks, for 1 year) (Ex. P-X-5).

h. 92 hours Compensatory Hours of SL Pathologist & AT Professional Collaboration (1 hour/bi-monthly for 2 years, for two professionals) (Ex. P-X-6).

i. 207 hours of Compensatory SL therapy (1.5 hours weekly for 46 weeks, for 3 years) (Ex. P-W-2).

Recommended evaluations and assessments: j. OT Evaluation (Ex. P-X-4).

k. AT Evaluation (Ex. P-X-5).

l. Bilingual SL Evaluation (Ex. P-W-2).

m. FBA & BIP (Ex. P-BB-6; P-EE-12, & P-EE-14).

The DOE provided no evidence to substantiate a reduction of any proposed compensatory hours to be awarded. The DOE also did not present any evidence to defend its evaluations and Parent’s Witnesses have provided a sufficient basis to justify an award for the requested IEEs (Ex. P-M-4, P-M-5, P-N-6, P-N-7, P-X-4, & PX-5).

Additionally, Parent’s Witnesses confirmed the customary hourly rates currently charged by Service Provider 1 and Service Prover 2 (defined on page 30) (Ex. P-W-2, P-W-3, P-W-4, P-W-5, P-EE-16, & P-EE-17) for: Compensatory OT services at $180.00 per hour; Compensatory AT services (Student) at $180.00 per hour; AT instruction/services (Parent) at $180.00; Compensatory ABA services at $126.00 per hour; Compensatory BCBA services at $150.00 per hour; Compensatory PCAT at $126.00 per hour; Compensatory Social Skills Training/Counseling services at $150.00; SL therapy services at $180.00; conducting an OT Evaluation in the sum of $1,450.00; conducting an AT Evaluation in the sum of $2,000.00; conducting a Bi-Lingual SL Evaluation in the sum of $1,450.00; conducting a FBA in the sum of $1,500.00; and conducting a BIP in the sum of $450.00. The DOE did not challenge any of the proposed rates, which I find to be reasonable and not excessive.

Equitable considerations:

The formulation of the various recommended hours in each domain should not disregard in its entirety the program and related services provided to Student as a whole, over the years in issue. In analyzing the complete educational program offered in each IEP relevant to each SY in issue, I find that although the DOE’s offering did fall short of providing the Student with a FAPE, the DOE still attempted to meet its obligations, revise Student’s program, including altering interventions and goals, albeit minimally and insufficiently. Related services were provided (although not all OT that was mandated was provided), and as noted by Parent’s representative there is some progress documented, leading to the CSE team to initially believe that Student could be provided with a FAPE in the current setting. These efforts however were misplaced given the failure to properly evaluate Student, leading to a program that on the face of it appeared to provide Student with appropriate supports and services, but which resulted in Student making minimal progress over a significant period, namely the three SYs at issue. Efforts were made by the DOE to provide the Student with "personalized instruction” and educational benefits, which would have contributed to address the Student’s deficits and partially diminish interfering behaviors, albeit not at a level that resulted in the DOE providing the Student with a FAPE under the regulations. Not only were the recommended services insufficient, not all the related services were provided to Student leaving Student without some of the needed services, such as OT, which the DOE had determined that Student needed and, according to Parent’s Witness 2, Student was not “provided with the deficit-focused sensory-based occupational therapy services that [Student] so clearly required”, and with the ongoing deficits detailed by Parent’s Witness 2 in her affidavit, “[Student] is not able to access [Student’s] educational curriculum” (Ex. P-X-3, P-X-4, & P-EE-10).

Student was assessed in October and November 2022 and an AT evaluation prepared after Parent filed the DPC. The AT evaluation records that “it was mutually agreed upon between the evaluators, [Student]’s mother and [Student’s] educational team, that at this time [Student] would benefit from a trial period with assistive technology to have the opportunity to develop use of the device to expand verbal output and written work, as well as gain foundational skills for independent use across settings throughout the school day (sustained visual attention to the device, independent navigation to the target categories, etc.)”. It further notes that the “Assistive Technology Evaluators will schedule an end-of-trial meeting in approximately 6 weeks once [Student] has had sufficient exposure to the trial device in order to determine the next steps” (Ex. P-N-7).

Parent’s Witness 2 however testified that: Parent reported there was no written communication from the DOE regarding the outcome of Student’s AT Trial, but that Parent reported that after three fifteen-minute training session regarding utilization of the AAC device, the AT Team notified her verbally that Student was “too frustrated” using an AAC device and requested that she return the device; Parent reported that she returned the device, it is no longer in their possession, Student does not have access to an AT device currently in the classroom setting or at home, and no further AT attempts have been made by Student’s school or the DOE; and Parent reported that after the three short sessions, she was still baffled by the device’s many functions and was unable to utilize it or assist Student in its use. According to Parent’s Witness 4, because staff could not get Student to use the tablet due to problem behaviors and refusal, Parent stated that they removed the tablet from Student’s programming (Ex. P-EE-6). According to Parent’s Witness 2, Student “was not provided with the assistive technology support [Student] undoubtedly needed to communicate and even access [Student’s] curriculum (Ex. P-X-2, P-X-3). I find that the evidence on record supports these assertions and note that the DOE has failed to prove otherwise.

Parent’s Witness 2 recommends that as a result of Student’s AT needs not being met by the DOE, she recommends that Parent receive 46 hours of Compensatory AT Parental Training (1 hour weekly for 46 weeks, for 1 year) for “ongoing parental training to enhance device understanding, knowledge, and carryover” for Student’s AT device. Parent’s Witness 2 notes that Parent “requires the minimum number of hours recommended above (i.e., 46 hours) to facilitate [Student]’s ability to access [Student’s device].

Parent’s Witness asserts that this “need is individualized and specific to [Student] based upon [Student’s] deficits, overall presentation, performance, what is necessary to support [Student’s] access to [Student’s] curriculum and skills acquisition, and specific device recommendation and software applications once a comprehensive Assistive Technology evaluation is conducted, analyzed and specific goals developed”. This is unconvincing.

Parent’s Witness 2 recommends very specific hours that Student needs based upon the various factors documented in her affidavit, which hours are being awarded. Based upon the DOE’s failure to meet Student’s AT needs, Parent is being recommended a specific number of hours, which are not however linked to Parent’s need for that level of training to be able to support Student’s access, especially as Parent’s Witness has not undertaken the comprehensive AT assessment of Student. Whilst I recognize that during the AT Trial Parent reported that after the three short sessions she was still baffled by the device’s many functions and was unable to utilize it or assist Student in its use, that would not justify or warrant the number of hours proposed based upon an extended SY calculation.

Whilst Parent’s Witnesses and Reviewer 1 address Student’s Diagnoses and the inadequacy of the recommended programs and mandated related services to provide the Student with a FAPE, their evidence is mostly relevant to the most recent SY given their recent observations as part of the recent evaluation and interviews conducted. These professionals did not personally interview and observe Student during 2020, 2021, or the earlier part of 2022, and to an extent relies upon extrapolating current observations to past documented data. I note however that not all of the recommendations seek three years of compensatory services, as certain of these recommendations are not aimed at punishing the District^[48] nor to “maximize the student's potential or to guarantee that the student achieves a particular grade-level in his areas of need. Thus, it would, for certain, be a pyrrhic victory if the delivery of an award of compensatory educational services only served to overwhelm the student or outpace the student's ability to make progress.” ^[49]

There is additional authority that also bears mentioning in the context of the relief sought, namely: “Indeed, an award ordered without considering the nature of the FAPE violation to be remedied and the impact of the award on the child's educational needs could ultimately do more harm than good for a student.”^[50] This is especially relevant when considering Parent’s Witness 2’s recommendation for “collaboration” compensatory services.

Parent’s Witness 1 testified that Service Provider 1 is available and prepared to provide Student with all recommended services contained within the individualized Compensatory Services Plan, delivered through a comprehensive after-school and/or weekend program if Parent chooses Service Provider 1. The schedule of such delivery of services would be arranged with Student’s family based upon their schedule.

Service Provider 1 is available to deliver the awarded services by a method selected by Parent, including, inhome, in a community setting of Parent’s choosing with appropriate clearance obtained by Parent, or remotely. Additionally, Service Provider 1 is prepared to work collaboratively with Student’s school team and all identified providers to ensure the highest level of support to Student and Student’s family (Ex. P-W-5).

Accordingly, ordering a separate number of compensatory hours to provide for “collaboration” is unnecessary, duplicative, and would be tantamount to a punitive award. Given Service Provider 1’s availability and commitment, which is supported by the award providing for maximum flexibility to support such collaboration by the services providers, as chosen by Parent, that recommendation is not accepted and therefore denied.

The award has an expiration period to ensure that the compensatory award is carried out as envisaged by the remedial plan. The excessive hours sought for AT training for Parent is however not justified, and I find it to be an unreasonable quantity. The same goes for the PCAT, neither of which were sufficiently motivated or supported at the level or quantity of hours recommended. Parent’s Witness 4 asserts that workshops alone or school-based trainings in groups that cater to a generalized topic are not appropriate to sufficiently address the individualized needs of the family. I note that Parent’s recommended hours are proposed or calculated based upon on an extended SY basis for Parent. There is no supporting evidence that once Parent receives such training on how to effectively utilize the empirically based interventions, that it needs to be maintained, supplemented, or revised as frequently and at the level of training proposed.

When it comes to remote instruction and the switch to remote and hybrid learning necessitated by the Covid19 pandemic, there is authority that bears mentioning ^[51]. The State Review Officer (“SRO”) in this case specifically found that the missed services were missed due to the switch in the provision of instruction from in-person to remote learning in response to the Covid-19 pandemic. The SRO noted that the “CSE's review might include a discussion of whether the student has new or different needs compared to before the pandemic, whether the student experienced a loss of skill or a lack of expected progress towards annual goals and in the general education curriculum, whether evaluations of the student or implementation of an IEP was delayed, and whether some of the student's IEP services could not be implemented due to the available methods of service delivery or whether such methods of service delivery were not appropriate to meet the student's needs ("Return To School Roadmap," 79 IDELR 232; "Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at pp. 3-4; see "Supplement #2 -Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 1).

If the parent disagrees with a CSE's determination regarding the student's entitlement to compensatory services, State guidance notes that: Parents of students with disabilities may resolve disputes with school districts regarding the provision of FAPE by pursuing one of the dispute resolution options provided for in the IDEA. A parent may file a State complaint directly with NYSED in accordance with Commissioner's Regulation section 200.5(l), request mediation in accordance with Commissioner's Regulation section 200.5(h), or file a due process complaint and proceed to hearing in accordance with Commissioner's Regulation section 200.5(j). ("Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at p. 5; "Supplement #2 -Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 6).

Here, there is no indication that a CSE has conducted such a review, nor is there any indication that the parent requested that the CSE conduct such a review. The parent expressed during the hearing that, in her opinion, the student regressed during remote learning and that remote delivery was inappropriate for the student (Tr.

p. 439-41). The parent stated that she informed the school of the student's difficulties with remote learning, her dissatisfaction with the same, and her desire to obtain related services in the home beginning in April 2020 (Tr. pp. 43536, 438-40). However, the parent did not testify that she requested a reconvene of the CSE, but only indicated that the CSE did not convene to consider the impact of remote instruction on the student.”

The SRO continued: “At this point, the CSE should have reconvened to develop an IEP for the student for the 2021-22 school year (see Parent Ex, B at p. 1 [showing a projected date of annual review of April 6, 2021]), and the parent was required to raise these concerns concerning the student's regression and compensatory education with the CSE in the first instance. As discussed above, the USDOE and NYSED's Office of Special Education have indicated that, under these unique circumstances, a CSE should have the first opportunity to consider the student's needs and whether any additional services may be warranted as a result of the pandemic. Accordingly, the IHO erred in ordering compensatory education at this juncture. However, the parties, if they have not already done so, should conduct a review of the student's present levels of academic achievement and functional performance as envisioned by federal and state education authorities and convene a CSE to engage in educational planning for the student, which should include a consideration of whether any compensatory services may be warranted to make-up for a loss of skill during school closures and the delivery of instruction and services to the student remotely. Once a CSE conducts such a review, if the parent disagrees with the recommendations thereof, she may pursue dispute resolution through one of the mechanisms described above.

Therefore, because the IHO's order alters the procedure that must be followed with regard to compensatory education services arising out of a change in the delivery of instruction during the COVID-19 pandemic, it cannot be upheld.

[VII. Conclusion]

In summary, given the allegations in the parent's due process complaint notice, the IHO erred in denying the district's motion to dismiss. The IHO should not have decided whether the district offered the student a FAPE from March 2020 through the 2020-21 school year, notwithstanding the shift to remote instruction due to school building closures resulting from the COVID-19 pandemic. Even if the district's delivery of remote instruction could support a finding that the district failed to provide the student a FAPE, the student would not be entitled to relief in the form of compensatory services at this juncture as it does not appear that a CSE review occurred.”

Given that the SYs includes a period when Student was learning remotely, these above considerations find application to this case. Parent’s representative addressed this at the IH, specifically mentioning that in the IEPs post-COVID (Ex. P-D, P-C and P-B) “nothing has or will or is provided to [Student]”, and therefore “this supposed policy should not in any way reduce, limit or shift the burden back to the Parent”. Parent’s representative asserts that this “is the evidence before Your Honor, not some state policy that they have the ability to do it. They have not done it.” (my emphasis) (T. P32). Nothing in the record suggests otherwise.

The SRO however has indicated where that is the case, the CSE should have the first opportunity to consider Student’s needs and whether any additional services may be warranted because of the pandemic. My award does not seek to alter the procedure that must be followed regarding compensatory education services arising out of a change in the delivery of instruction during the Covid-19 pandemic (which is factored into my calculation below). Given that the DOE has not yet made such determination even though there have been subsequent CSE meetings and IEPs developed, I have ordered the DOE to comply with the policy and make a determination but have also catered for the situation where the DOE fails to do so, by providing a conditional award for the period Student was impacted (“the Conditional Award”).

Parent testified that: in March 2020 when COVID-19 started Student’s school closed and Student had to do remote learning; that it was such a hard time and the District didn’t give Student much help; Student was just given assignments that Student was unable to do; and that Student couldn’t sit still and focus, so Student didn’t get anything out of the work that was being given.

Parent further testified that: it felt like Student was going backwards; the District was supposed to hold a meeting in March 2020, but presumably because of COVID, it didn’t; Parent virtually attended a CSE meeting in June 2020; and Student started out 4th grade (i.e., July 2020, given that Student is an extended year or 12-month student) as a full-time remote student, but later transitioned back to in-person learning in December 2020. For purposes of the Conditional Award, detailed below, I have calculated remote learning from July 2020 through December 2020, namely a period of five to six months, as well as the other considerations mentioned above as they relate to each separate service or domain.

These considerations have factored into my calculation of compensatory hours sought and awarded as follows (rounding has been used in the calculation, where required):

Compensatory educational & related services (non-Covid related): a. 1,035 hours of Compensatory ABA services (7.5 hours per week for 46 weeks, for 3 years) sought - adjusted award: 400 Compensatory hours of ABA services is being awarded (i.e., +52% 52).

b. 103.5 hours of Compensatory BCBA supervision to oversee the 1,035 hours of Compensatory ABA hours (1 hour/every 10 hours of ABA or 10%) sought - adjusted award: 40 compensatory hours of BCBA supervision is being awarded (i.e., +52%).

c. 103.5 hours of Compensatory one-to-one Counseling (0.75 hours weekly for 46 week, for 3 years) sought - adjusted award: 60 compensatory hours of one-to-one Counseling being awarded (Student) (i.e., +63%).

d. 138 hours of Compensatory PCAT (4 hours monthly, for 3 years) sought - adjusted award: 30 compensatory hours of PCAT being awarded (Parent) (i.e., +25%).

e. 138 hours of Compensatory OT services (1.5 hour weekly for 46 weeks, for 2 years) sought - adjusted award: 117 compensatory hours of OT being awarded (i.e., +85%).

f. 92 hours of Compensatory AT Training (Student) (2 hours weekly for 46 weeks, for 1 year) sought adjusted award: 92 compensatory hours of AT Training (Student) being awarded (i.e., +100%).

g. 46 hours of Compensatory AT Parental Training (1 hour weekly for 46 weeks, for 1 year) sought - adjusted award: 25 compensatory hours of AT Parental Training being awarded (i.e., +55%).

h. 98 hours Compensatory Hours of SL Pathologist & AT Professional Collaboration (1 hour/bi-monthly for 2 years, for two professionals) sought - adjusted award: 0 compensatory hours of SL Pathologist & AT Professional Collaboration being awarded (i.e., +0%).

52 In arriving at these percentages the hours awarded as part of the Conditional Award (i.e., Covid-related award) are factored in.

i. 207 hours of Compensatory SL therapy (1.5 hours weekly for 46 weeks, for 3 years) sought - adjusted award: 83 compensatory hours of SL therapy being awarded (i.e., +40%).

Conditional Award: Compensatory educational & related services (Covid related 53) j. 135 hours of Compensatory ABA services is being conditionally awarded.

k. 13.5 hours of Compensatory BCBA supervision is being conditionally awarded.

l. 5 hours of Compensatory hours of one-to-one Counseling (Student) is being conditionally awarded.

m. 4 hours of Compensatory PCAT is (Parent) is being conditionally awarded.

[III] Remaining relief

Parent seeks an order that until a placement can be located, the District should be ordered to provide immediate fulltime 30-hours a week of push-in ABA into the current placement (Ex. IHO-13). An award is being provided to make up for the three SYs where the DOE has been found to have denied Student a FAPE. Part of that award includes an amount of compensatory ABA services, to be used for the very purpose of addressing “deficits in academic skills, social skills, daily living skills, self-help skills, community skills, and language skills while simultaneously diminishing/extinguishing maladaptive problem behaviors that interfere with skill acquisition” (my emphases). While some of these objectives can certainly be addressed in the home, the award expressly caters for total flexibility because some of it can and should be addressed in the school environment. Accordingly, the purposes for which the compensatory award for ABA services was proposed expressly caters for partial use in the academic environment. To provide a separate award is therefore unnecessary, duplicative, and unwarranted. I am also mindful that there are several months remaining in the current SY, which is covered by this award, allowing additional time for the CBST referral to take place and a placement to be located.

If the proposed relief is seeking an award for costs and fees as part of this decision (Exhibit IHP-I-15), only a Court can determine who is entitled to attorney’s costs, fees, and expenses, and I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled thereto.

53 Parent’s claim for OT, AT Training (Student), AT Parental Training; and SL Pathologist & AT Professional Collaboration compensatory services were not based upon a 3-year formula or calculation and therefore Covid-related considerations do not come into play. Additionally, Student’s SL therapy group mandate was increased from 1 x 30-minute session from 11/19/2020 through 06/07/2021 to 3 x 30-minute sessions (i.e. by 1 hour) and Parent’s Witness 2’s formula applied a consistent metric unrelated to the change in mandate that Student was awarded for SL therapy over that period (i.e., it did not factor in this increase) (Ex. P-C-27, P-D-17).

The DOE is reminded of its obligation to provide Student with a FAPE, including providing Parent with interpretation services so that she can meaningfully participate in CSE meetings, with a duly constitute CSE team, as well as her right to receive copies of relevant current educational records in Parent’s native language and language of understanding.

Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief (in terms of section 504 or otherwise).

ORDER

Based upon the above Findings of Fact, it is hereby: 1) ORDERED that, the NYC DOE defer the Student’s placement to the Central Based Support Team for placement in an appropriate NYS-approved NPS program that is consistent with the recommendations made in Parent’s independently obtained evaluation (Ex. P-G), more specifically one that conforms as closely as possible to Parent’s Witness 3’s recommendation #1 listed on page Ex-P-G-48.

2) FURTHER ORDERED that, the NYC DOE is directed to fund the following IEEs, by issuing payment directly to the providers within thirty (30) days of the submission of copies of the evaluations and invoices: a) An OT evaluation to be conducted by a NYS licensed occupational therapist from Service Provider 1, or another provider of Parent’s choosing, at their normal and customary rate not to exceed $1,450.00.

b) An AT evaluation to be conducted by a NYS certified AT professional from Service Provider 1, or another provider of Parent’s choosing, at their normal and customary rate not to exceed $2,000.00.

c) A bilingual S-L evaluation to be conducted by a NYS licensed speech therapist from Service Provider 1, or another provider of Parent’s choosing, at their normal and customary rate not to exceed $1,450.00.

d) An FBA to be conducted by a NYS certified BCBA from Service Provider 2, or another provider of Parent’s choosing, at their normal and customary rate not to exceed $1,500.00.

e) A BIP to be conducted by a NYS certified BCBA from Service Provider 2, or another provider of Parent’s choosing, at their normal and customary rate not to exceed $450.00.

3) FURTHER ORDERED, that, the CSE shall convene a review meeting within 14 (fourteen) days of all the evaluations, FBA, and BIP (referenced in #2 of this Order) being obtained and provided by Parent to the DOE, to review the results of those documents (and the other evaluations conducted or obtained by the DOE, including the neuropsychological evaluation obtained by Parent 54), to revise Student’s program, and prepare an appropriate IEP that includes at a minimum: a) Accurate PLOPS.

b) Specific, meaningful, and measurable goals tailored to the Student and based on the Student’s current academic and functional levels.

c) A new and appropriate educational placement consistent with #1 of this Order.

d) Appropriate related services including OT, SL therapy, counselling (including PCAT), in line with the recommendations by the independent evaluations, and at the recommended frequency and service delivery recommendations.

e) AT hardware and software recommended in the AT evaluation to be obtained by Parent pursuant to #2b) of this Order, as closely as possible or an equivalent substitute that is no less functional, which the DOE shall provide or fund, at the DOE’s election, as part of Student’s educational program.

f) In the CSE team’s discretion, a safety para-professional.

g) Appropriate modifications and accommodations to be listed as part of the Student’s IEP.

4) FURTHER ORDERED that, the DOE shall fund the following compensatory services for Student, which may be provided during the school year or during the summer (July and/or August), on weekdays, weekends, on holidays, or during school vacations, by duly NYS licensed (or where appropriate certified) providers of the Parent’s own choosing at the providers’ customary and regular rates (i.e. “an enhanced rate”), limited to the amounts set out in #5 of this Order for each of the compensatory services: a) 400 Compensatory hours of ABA services.

b) 40 compensatory hours of BCBA supervision.

c) 60 compensatory hours of one-to-one Counseling (Student).

d) 30 compensatory hours of PCAT.

54

Ex. P-G.

e) 117 compensatory hours of OT.

f) 92 compensatory hours of AT Training services (Student).

g) 25 compensatory hours of AT Parental Training services.

h) 83 compensatory hours of SL therapy.

by issuing payment directly to the providers within 30 (thirty) days upon the submission of invoices for services rendered.

5) FURTHER ORDERED that the DOE shall make payment for the compensatory services ordered in #4 of this Order, at the prevailing market rate of the Parent’s duly licensed independent provider of choice capped at the following rates for each of the following services: Compensatory ABA services at $126.00 per hour; Compensatory BCBA services at $150.00 per hour; Compensatory one-to-one Counseling (Student) services at $150.00; Compensatory PCAT at $126.00 per hour; Compensatory OT services at $180.00 per hour; Compensatory AT Training services (Student) at $180.00 per hour; Compensatory AT Parental Training services at $180.00; and Compensatory SL therapy services at $180.00.

6) FURTHER ORDERED that, the bank of compensatory services set out in #4 of this Order shall not expire until the expiration of 30 (thirty) months from the date of this Order.

7) FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services ordered in #4 of this Order within 15 (fifteen) days.

8) FURTHER ORDERED, that, the CSE shall convene a meeting within 30 (thirty) days of the date of this Order to have the first opportunity to consider Student's needs and whether any additional services may be warranted as a result of the pandemic for a loss of skill during school closures and the delivery of instruction and services to Student remotely. The CSE shall make such determination no later than 60 (sixty) days from the date of the meeting convened for that purpose.

9) FURTHER ORDERED, that, should the CSE fail to comply with #8 of this Order, then and only in that event, the DOE shall fund the following additional compensatory services for Student (i.e., the Conditional Award shall then become unconditional), in addition to the compensatory services awarded in #4 of this Order, as follows:

a) 135 hours of Compensatory ABA services.

b) 13.5 hours of Compensatory BCBA supervision.

c) 5 hours of Compensatory hours of one-to-one Counseling (Student).

d) 4 hours of Compensatory PCAT is (Parent).

10) FURTHER ORDERED, that, should the Conditional Award become unconditional as contemplated in #9 of this Order, then the terms contemplated in #4 through #7 of this Order (i.e., as to where and when the services may be provided55; by whom ^[56]; enhanced rates but capped ^[57]; payment to the providers ^[58]; expiration ^[59]; and authorization 60), shall apply to the additional compensatory services set out in #9a) through #9d) of this Order, mutatis mutandis, save that: i) the DOE’s implementation unit shall authorize the additional compensatory services ordered in #9 of this Order within 15 (fifteen) days of the expiry of the 90 (ninety) day period contemplated in #8 of this Order; and ii) the bank of additional compensatory services set out in #9 of this Order shall not expire until the expiration of 33 (thirty-three) months from the date of this Order.

11) FURTHER ORDERED, that, should the CSE comply with #8 of this Order, then and that event the Conditional Award (i.e., the additional compensatory services set out in #9 of this Order) shall not become unconditional, and shall therefore not form part of the final quantity of compensatory services awarded in this decision (i.e., Parent would only be entitled to the compensatory services award set out in #4 of this Order 61).

SO ORDERED.

DATED: April 2, 2023

__H.A.C._ (Signed Electronically) ___

Impartial Hearing Officer

Harry A. Christodoulou

55 School year or during the summer (July and/or August), on weekdays, weekends, on holidays, or during school vacations.

60 The DOE’s implementation unit shall authorize the additional compensatory services ordered in #9 of this Order within 15 (fifteen) days of the expiry of the 90 (ninety) day period contemplated in #8 of this Order, instead of from the date of this

Order.

61 For the sake of clarity, nothing contained in this FOFD would preclude Parent from challenging the CSE’s determination if Parent thereafter disagreed with the CSE's determination made pursuant to #8 of this Order regarding Student's entitlement to compensatory services, as contemplated in the State guidance noted above and in the cited SRO decision (SRO 22-031).

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 – REDACTION IDENTIFICATION PAGE

REDACTED

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EXHIBITS

P-B. P-A Withdrawn - - IEP 03/08/2022 36 pages

P-C. IEP 05/27/2021 36 pages

P-D. IEP 06/10/2020 22 pages

P-E. IEP 03/20/2019 20 pages

P-F. IEP 03/05/2018 34 pages

P-G. Neuropsychological Evaluation 02/15/2023 52 pages

P-H. NYC DOE Level 1 Vocational Interview – Parent 11/16/2022 3 pages

P-I. NYC DOE Level 1 Vocational Teacher Survey 10/03/2022 1 page

P-J. NYC DOE Level 1 Vocational Assessment for Middle School Students – Student Interview Undated 12 pages

P-K. NYC DOE OT Evaluation of Performance and Participation 11/04/2022 9 pages

P-L. NYC DOE Classroom Observation 11/04/2022 2 pages

P-M. NYC DOE Speech/Language Evaluation 11/04/2022 6 pages

P-N. NYC DOE Assistive Technology Evaluation for REDACTED 11/08/2022 16 pages

P-O. NYC DOE Social History Assessment 11/01/2022 3 pages

P-P. REDACTED Report 04/21/2022 4 pages

P-Q. IEP Report Card 06/25/2021 2020-2021 2 pages

P-R. ICLC - Teacher Forms & 01/07/2020 01/06/2020 10 pages

P-S. NYC DOE Psychoeducational Evaluation 03/17/2017 4 pages

P-T. Letter from Parent Disagreeing with Program and Placement and Requesting IEEs 09/23/2022 3 pages

P-U. Letter from Parent Requesting Complete Educational Record File, and DOE acknowledgment of Providing Only IEP in Response 01/23/2020 1 page

P-V. Compensatory Service Plan 02/21/2021 36 pages

P-W. Affidavit of Parent’s Witness 1 02/21/2023 6 pages

P-X. Affidavit of Parent’s Witness 2 02/23/2023 7 pages

P-Y. Resume of Parent’s Witness 1 Undated 2 pages

P-Z. Resume of Reviewer 1 Undated 3 pages

P-AA. Resume of Parent’s Witness 2 Undated 4 pages

P-BB. Affidavit of Parent’s Witness 3 02/20/2023 7 pages

P-CC. Curriculum Vitae of Parent’s Witness 3 Undated 4 pages

P-DD. Resume of Parent’s Witness 4 Undated 1 page

P-EE. Affidavit of Parent’s Witness 4 02/22/2023 17 pages

P-FF. Affidavit of Parent 02/222/2023 3 pages

DOE’S EXHIBITS

- - - -

IHO’S EXHIBITS

IHO-I Due Process Complaint and Email 09/26/2022 16

IHO-II Order on IEE 01/09/2023 6

Footnotes

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

[3] 20 U.S.C. § 1400 et seq.

[4] 34 C.F.R. § 300 et seq.

[5] Educ. Law Art. 89 § 4404 et seq.

[6] 8 NYCRR § Part 200.

[7] 34 C.F.R. § 104.36.

[8] 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.

[9] T. P27 through P41.

[10] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].

[11] 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].

[12] 20 U.S.C. § 1415[f][3][E][i].

[13] Rowley, 458 U.S. at 203.

[14] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]

[15] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].

[16] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].

[17] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].

[18] 29 U.S.C. § 794(a).

[19] 29 U.S.C. § 794(a).

[20] 34 C.F.R. § 104.33(a).

[21] 34 C.F.R. § 104.33(b).

[22] 34 C.F.R. §104.3(j)(1).

[23] 29 U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2).

[24] See 28 C.F.R. § 35.108(c)(1)(ii).

[25] 34 C.F.R. § 104.35(d).

[26] 34 C.F.R. § 104.35(c)(1).

[27] 34 C.F.R. § 104.35(c)(2).

[28] 34 C.F.R. § 104.35(c)(3).

[29] NYS Educ. Law § 4404(1)(c).

[30] See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).

[31] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

[32] Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Central School Dist., 346 F.3d 377, 379 [2d Cir. 1998]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998].

[33] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.

[34] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.

[35] Rowley, 458 U.S. at 203.

[36] In re: Student with a Disability New York State Educational Agency (51 IDELR 295) 08-026 (108 LRP 34384) (2008).

[37] In re: Student with a Disability New York State Educational Agency.

[38] (20 U.S.C. § 1400[d][1][A]; Schaffer, 546 U.S. at 51; Rowley, 458 U.S. at 180-81; Frank G., 459 F.3d at 371).

[40] See generally, 34 C.F.R. §§ 300.320-300.328; see also, Questions and Answers on Individualized Education Programs (IEPs), Evaluations, and Reevaluations, 111 LRP 63322 (OSEP 2011)

[41] 8 NYCRR § 200.3(a)(1)

[42] A special education teacher or provider may also serve as the district representative. The regular education teacher, the special education teacher or provider, the school psychologist, and the district representative may also serve as the individual who can interpret the instructional implications of evaluation results. 8 NYCRR §§ 200.3(a)(1)(i) - (vi).

[43] IEP Team, 71 Fed. Reg. 46670 [Aug. 14, 2006].

[44] (A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).

[45] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].

[46] See for example E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014] holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE.

[47] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].

[48] See C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 [3d Cir. Sept. 27, 2010].

[49] See Application of the Bd. of Ed. of the S.C.S.D, Appeal No. 21-065.

[50] See M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 30, 2017] ["Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity"].

[51] See Application of a Student with a Disability, Appeal No. 22-031.

[56] Duly NYS licensed (or where appropriate certified) providers of the Parent’s own choosing.

[57] At the providers’ customary and regular rates (i.e. “an enhanced rate”), limited to the amounts set out in #5 of this Order for each of the compensatory services, as applicable to the Conditional Award.

[58] By issuing payment directly to the providers within 30 (thirty) days upon the submission of invoices for services rendered.

[59] The bank of additional compensatory services set out in #9 of this Order, if they become unconditional, shall also not expire until the expiration of 33 (thirty-three) months.