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CASE NUMBER: 589517 NYC: 240546
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., redacted
Impartial Hearing Officer: Roberta Wolf
Date of Filing: 10/19/2022
Hearing Requested by: Parent
Date of Hearing: 02/14/2023
Record Close Date: 03/03/2023
Date of Decision: 03/03/2023
NAMES AND TITLES OF PERSONS WHO APPEARED
February 14, 2023
For the Department of Education:
None.
For the Student:
[REDACTED], Representative
[REDACTED], Parent Student
BACKGROUND AND PROCEDURAL HISTORY
On October 19, 2022, the Parent, by and through her attorney’s law firm, filed a due process complaint (DPC) against DOE on behalf of the Student, under Case No. 240546, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)), Section 4404(1) of the New York State Education Law (Education Law), and Section 504 of the Rehabilitation
Act. [1]
In the DPC, the Parent asserts that DOE failed to provide the Student with a free appropriate public education (FAPE) for the 2022-2023 school year by failing to adequately evaluate the Student and by providing a substantively and procedurally deficient individualized education plan (IEP) and placement.[2] The Parent specifically alleges that the Committee on Special Education (CSE) ignored her request that the Student receive a placement in an approved non-public school that incorporated applied behavioral analysis (ABA) in its instruction.[3] The Parent also contends that the CSE disregarded the recommendation of a service provider that the Student receive Special Education Teacher Support Services (SETSS) for ABA therapy, plus regular supervision by a board-certified behavioral analyst (BCBA) or licensed behavioral analyst (LBA), parent training, and a functional behavior assessment (FBA) and behavior implementation plan (BIP).[4] The Parent’s claim under Section 504, which alleges discrimination based on the Student’s disability, describes DOE’s violative conduct as “gross, reckless, and intentional.” [5]
In relief, the Parent seeks: (1) a finding in favor of the Parent, and that DOE’s conduct is illegal; (2) a finding that the DOE failed to provide the Student with a FAPE for the 2022-2023 school year; (3) a finding that DOE discriminated against the Student based on her disability; (4) compensatory education to include ABA, occupational therapy (OT), physical therapy (PT), speech-language (s/l) therapy, and assistive technology (AT) therapy; (5) an order that DOE fund the Student’s academic education at a private school that provides full-time 1:1 ABA instruction,[6] plus 10 hours per week of ABA at home, two hours per month of BCBA supervision, and two hours per month of parent instruction; (6) one-to-one OT, PT, s/l therapy, and AT, as recommended by the Parent’s neuropsychologist; (7) special transportation funded by DOE with limited travel time to and from all services; (8) direct funding to the provider(s) or reimbursement to the Parent for ABA, transportation, and related services at market rates; (9) all compensatory services to be awarded without an expiration date; (10) 10 hours per month of language translation services funded by DOE; and (11) in-person language translation services at all IEP meetings. [7]
I was appointed impartial hearing officer on January 10, 2023, and held a prehearing conference on January 17, 2023, and a due process hearing on February 14, 2023, at 10:00 a.m.
At the due process hearing, DOE did not appear. Its representative sent an email at 7:53 a.m. that she did not feel well and would not participate.[8] She did not request an adjournment or respond when asked if another DOE representative would appear in her place.[9] Subsequently, all of the Parent’s exhibits were admitted into evidence, a list of which is appended to this Order.
FINDINGS OF FACT
The Student is [REDACTED] years old and her eligibility for special education supports and services is not in dispute. She is classified with “Autism,” and presents with significant delays in the areas of cognition, adaptive functioning, s/l development, receptive and expressive language, and social-emotional development. [10]
The Student’s August 17, 2021 IEP (created when the CSE reconvened at the Parent’s request to consider additional services) mandated a 8:1+1, 12-month special class to be administered in English, with counseling (individually once per week, 30 minute sessions), parent counseling (bilingually in Cantonese twice per month, 60 minute sessions), OT (individually twice per week, 30 minute sessions), PT (dyad twice per week, 30 minute sessions), s/l therapy (individually twice per week and group of three once per week, 30 minute sessions); five periods of weekly SETSS, and special transportation to and from school.[11] At that CSE meeting, the Parent requested even more s/l therapy, but agreed with the 8:1+1 classroom mandate (plus transportation), and rejected a smaller class size of 6:1+1.[12] At the time of the CSE meeting, the Student, then [REDACTED] years old, was enrolled in a 12-month bilingual educational program at [REDACTED] ([REDACTED]) under the auspices of the Committee on Preschool Education (CPSE) and placed in a 12:1:2 special education program (five hours per day, five days a week) with SL, OT, and PT.[13] [REDACTED] provided progress reports from January of 2021, which noted that the Student was reading and singing more, could produce two-syllable words, knew the alphabet, and identified common objects, animals, and some body parts.[14] With respect to motor skills, the Student could manipulate puzzles and blocks, and flip book pages.[15] For adaptive skills, the Student could drink from a cup, feed herself, and did not need diapers during the day. [16] [REDACTED] concluded that the Student “is making progress on communicative skills and motor skills,” but needed continued support to achieve milestones.[17] Overall, the Student still exhibited significant delays in all areas.[18] OT, PT, and s/l reports recommended that the Student continue to receive services as mandated. 19 The Student’s prior IEPs provided similar programs. A May 7, 2021, IEP provided the same services as the August 2021 IEP, less a parent counseling session and SETSS.[20] At that meeting, the Parent requested a comprehensive slate of evaluations (OT, PT, s/l, psychological, neurological, AT), but agreed to wait to request them until the Student entered [REDACTED]. [21] The Parent also requested an ABA program, but was advised that the Student would be taught using a variety of techniques including those similar to ABA.[22] The Parent also attended an IEP meeting on April [19], 2021, where she again requested ABA services and placement in a non-public school for the Student.[23] The CPSE explained that it could not endorse a specific methodology, nor could it recommend a “Turning Five” placement,[24] but the Parent nevertheless insisted that it memorialize her requests in the IEP. [25]
The Student’s 2020 and 2019 IEPs (created when the Student was [REDACTED] and [REDACTED] years old, respectively) both recommended a 12:1:2 12-month special class in an approved preschool with s/l therapy (1:1, three 30-minute weekly sessions), OT (1:1, two 30-minute weekly sessions), PT (1:1, two 30-minute weekly sessions); parent counseling (one quarterly 60-minute session), and transportation[26] (in 2020, one s/l therapy session was converted from 1:1 to a dyad setting).[27] The 2018 IEP (created when the Student was [REDACTED] years old), mandated an 8:1:2 12-month special class with s/l therapy (1:1, three 30-minute weekly sessions), OT (1:1, two 30-minute weekly sessions), PT (1:1, two 30-minute weekly sessions); parent counseling (one quarterly 60-minute session), and transportation.[28] That IEP, developed as the Student transitioned from NYC’s Early Intervention (EI) Program to the CPSE, noted that the Student was being evaluated to determine her continued eligibility for services (the Student had been receiving s/l therapy, OT, and ABA services through EI).[29] The Parent participated in each of the above IEP meetings as evidenced by her observations of the Student’s present levels of performance. [30]
In 2018, EI provided the Student received 20 hours of ABA and related services, all administered by the Student’s day care provider.[31] The day care provider noted that the Student exhibited tantrum-like behavior that the ABA therapist once successfully counteracted by singing to her. 32 The provider also noted that the Student cried at the start of all ABA therapy sessions, but generally calmed herself down after five minutes. 33 Recommendations for treatment would be made with the CPSE at the next IEP meeting. 34 Although a representative from the day care participated in the subsequent IEP meeting 35 and relayed the Student’s favorable response to music, 36 the IEP reflects no discussion regarding the effectiveness of ABA or any request for the continuation of ABA services. 37
In June of 2021, the Parent had the Student assessed by an ABA provider to determine her ability to respond to ABA therapy. 38 [REDACTED] began noticing the Student’s tantrum behaviors in April of 2021. 39 The classroom consisted of seven students, one teacher, and two teaching assistants. 40 The Student’s teacher told the ABA provider that the Student “demonstrated significant regression since the beginning of the school yea[sic].” 41 The ABA provider recommended that the Student receive a minimum of 40 hours per week of 1:1 ABA services because studies showed that students with autism and other developmental disabilities responded more favorably to a full-time rather than part-time program. [42]
The Student began [REDACTED] at [REDACTED] sometime on or before May 16, 2022, in a classroom with six children total, one teacher, three paraprofessionals and a school counselor.[43] During a classroom observation conducted by a second ABA provider, the Student’s teacher reported that the Student could now count to 100 with verbal prompting, identify upper 32 Ex. K15-K16. 33 Id. 34 Ex. K27. 35 Ex. R2. 36 Ex. R14. 37 Ex. R1-R24. 38 Ex. F. 39 Ex. F4. 40 Ex. F7. 41 Ex, F8. and lower case letters, identify many letters by sound, identify sight words (e.g., “and,” “I,” “a”), write numbers 1-20 with verbal modeling, and had begun tracing letters in writing.[44] The teacher described the Student as a “well behaved girl.” [45]
The Parent arranged for a neuropsychological evaluation to be conducted on June 28, July 19, 2022, and July 21, 2022.[46] The neuropsychologist found that although a prior evaluation placed the Student’s overall intellectual functioning in the low range, the Student had “several relative cognitive strengths,” and that the Student appeared to be “a nonverbal child whose linguistic skillsets are significantly masking her nonverbal abilities.”[47] The neuropsychologist evaluation included formal testing, an interview with the Parent, observations of the Student’s behavior and behavior rating scales, and a review of the Student’s educational records.[48] With respect to the neuropsychologist’s behavior observations, she observed limited language skills, weak language comprehension, spontaneous single-word responses (the Student was otherwise non-verbal), and the Student’s overall compliance in a 1:1 setting. [49]
The neuropsychologist concluded that the Student “requires a small, supportive, yet structured, special education program . . . . appropriate for a child with [autism] . . . [and] learning in small group settings with a 1:1 student ratio.”[50] The neuropsychologist also made a number of specific recommendations that mirrored those of the first ABA provider, plus the issuance of an augmentative/alternative communication (AAC) for the Student, five weekly sessions of s/l therapy, 10 hours of home-based ABA, and others.[51] The neuropsychologist did not perform a s/l evaluation, but attested in an affidavit dated February 21, 2023, that her training and experience qualified her to recommend an increase in s/l therapy.[52] The neuropsychologist also reiterated her findings from the evaluation in the affidavit. [53]
The supervisor of the two aforementioned ABA providers owns a business that provides SETSS-ABA.[54] The supervisor spoke with the Student’s mother sometime on or before February 7, 2023, and she told him that the Student was not progressing.[55] The supervisor reviewed the documents created by the ABA providers and similarly concluded that the Student was not progressing and needed a minimum of 40 hours per week of 1:1 ABA services, additional one-on-one ABA instruction, BCBA-level supervision of ABA services, parent training, and an FBA and BIP. [56]
In an affidavit, the Parent attests that: the Student made no academic progress during the 2022-2023 school year; 57 DOE reduced the Student’s OT year after year without explanation; [58] DOE never provided the SETSS mandated by the Student’s 2021 IEP;[59] and DOE ignored her previous complaint lodged in January 2020 about the Student’s large class size.[60] The Parent also reiterates the relief requested in the DPC and adds allegations regarding her dissatisfaction with DOE with respect to prior school years. [61]
57 Ex. Z6 para 40, 41.
ANALYSIS
The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.[62] A FAPE is offered to a student when (a) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits; and (b) DOE complies with the procedural requirements set forth in the IDEA.[63] For a procedural violation, an impartial hearing 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 parent’s 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.[64] In general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. [65]
FAPE Denied to the Student
A school district offers a student a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” [66] An IEP must include a statement of the student’s present levels of academic achievement and functional performance; annual goals designed to meet the student’s needs resulting from her disability and that enable her to make progress in the general education curriculum; and provide appropriate special education and services.[67] “A reviewing court may fairly expect [DOE] 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 [her] circumstances.” [68]
In this case, DOE did not appear at the due process hearing to proffer the Student’s IEP for the 2022-2023 school year and explain how it was reasonably calculated to enable the Student to make appropriate progress in light of her specific circumstances. Because DOE failed to appear to provide any explanation, let alone a cogent and responsive one, for how the IEP was reasonably calculated to enable the Student to make appropriate progress in light of her circumstances, I find that DOE failed to offer the Student a FAPE for the 2022-2023 school year. [69]
Compensatory Relief Not Established
Compensatory education and services are equitable remedies tailored to meet the unique circumstances of each case.[70] An award must be designed to “make up” for past denials of FAPE and place the student in the position they would have been had the district complied with its obligations under the IDEA.[71] “[T]he inquiry must be fact-specific, and [in order] to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.”[72] The compensation may take the form of supplemental special education or in related services, with the goal of fashioning appropriate relief for a denial of a FAPE.[73] It is calculated by either a “quantitative” approach (provided equal to the period of the FAPE deprivation) or a “qualitative” approach (provided as needed to address the student’s educational deficits resulting from the FAPE deprivation). Courts have noted that when the qualitative analysis is available, it can be the more “flexible approach, rather than a rote hour-by-hour compensation award, [and thu]s more likely to address [the student’s] educational problems successfully.” [74]
In New York, when there is a lack of FAPE and the parent seeks a compensation award, the burden lies with DOE to “describ[e] 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 [they] would have been but for the denial of FAPE.”[75] However even where DOE fails to offer its “position regarding the appropriate compensatory education remedy . . . an outright default judgment awarding compensatory education . . . and all of the relief requested without question . . . is a disfavored outcome [including] where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious[.]”[76] The specific award sought, therefore, must be evaluated, because (a) “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[;]”[77] and (b) “[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education.” [78]
In this case, the Parent requests a bank of unexpiring compensatory services calculated from July 1, 2022, to the date of this Order, to include 40 hours per week of ABA therapy, 10 hours per week of home ABA therapy, two hours per month of home-based BCBA supervision, two hours per month of parent training by a BCBA, two hours per week of s/l therapy (added to the current mandate of three hours), and an undefined amount of OT, PT, and AT.[79] However, nowhere in the Parent’s evidence does she provide a recommendation from any professional, including the neuropsychologist’s February 2023 affidavit, justifying the need for a bank of compensatory services in the first instance. The Parent provides no basis for additional OT, PT, or AT, nor does she calculate any compensatory hours for those services. Her claim that DOE reduced the Student’s OT each year is unsupported by the record, and her other claims (e.g., no implementation of SETSS in 2021) do not pertain to the 2022-2023 school year at issue here.
Assuming that the Parent calculated the requested compensatory services from the beginning of the extended 2022-2023 school year, I do not find, on this record, that the Parent has established the prospective need for the services that she requests for the Student.
In support of her claim for a full-time ABA program with one-to-one instruction, the Parent provides an affidavit from a SETSS-ABA provider (the aforementioned ABA supervisor) who reviewed the documentation of two subordinates and concluded that the Student had made no academic progress and required a full-time ABA program. I give little weight to any of this evidence because the provider clearly has an interest in endorsing a program that he provides. Moreover, the reason that he and one of the subordinates gave for recommending a full-time ABA program was because students with developmental disabilities generally fared better with a full-time program instead of a part-time program. I find that logic, without more, insufficient here. Moreover, the record is devoid of any evidence that the Student derived any benefit from the part-time ABA therapy she received in 2018. That ABA provider made no representations that the Student ever responded to the therapy and the subsequent IEP, created with the participation of that provider, only reiterated what was noted in an evaluation drafted contemporaneously with the Student’s treatment: that she once calmed down when the ABA therapist sang to her. Last, contrary to the supervisor’s conclusion that the Student made no progress, I note that the classroom observation (attended by the second ABA provider) referenced her academic progress.
The Parent’s other evidence in support of a full-time ABA program comes from a neuropsychologist’s evaluation and affidavit; however, here again, I give little weight to the recommendation. Upon close review of the 20-page evaluation, the neurologist provides only two cursory and seemingly benign paragraphs about her behavioral observations[80] before concluding, without any explanation, that the Student requires the exact same full-time ABA program recommended by the SETSS-ABA provider. Because the Parent provided no evidence that the Student previously responded favorably to ABA, or explained why the Student now needed a full-time ABA program, I deny the request for ABA services.
The Parent’s remaining claims taken in turn, are similarly denied. The neuropsychologist recommended five weekly sessions of s/l therapy without providing an evaluation or any basis for the increase, other than her qualifications to do so. Similarly, the neuropsychologist administered no AT evaluation and provided no discussion or basis for her recommendation of an AAC device. Next, the Parent requested an order that DOE provide the Student with “a 12-month extended school year;” however, the Parent does not explain the meaning of that request. All of the Student’s IEPs from prior school years provided services on a 12-month basis and the Parent makes no distinct claim that DOE reduced the length of the 2022-2023 year in the current IEP. However, even assuming that claim, the Parent has not provided any evidence of the Student’s substantial regression specifically during the summer months.[81] Last, I do not order an in-person translator for IEP meetings because the Parent has attended all previous IEP meetings and participated comprehensively with the translation services already provided.
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that the CSE convene within 30 days of receipt of this Order to create a current IEP for the Student for the 2022-2023 school year.
2. FURTHER ORDERED that the Parent’s remaining claims are DISMISSED WITH PREJUDICE.
SO ORDERED.
DATED: March 3, 2023
/s/ Roberta Wolf, Esq, Impartial Hearing Officer
Roberta Wolf
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.
DISTRICT EVIDENCE
PARENT EVIDENCE
A. Impartial Hearing Request 10/18/2022 16 pages
B. WITHDRAWN
C. Individual Education Program August 2021 08/17/2021 37 pages
D. Attendance Page May 2021 05/17/2021 1 page
E. Individual Education Program May 2021 05/17/2021 28 pages
F. SETSS-ABA Assessment 06/18/2021 11 pages
G. OT Turning 5 Report 01/04/2021 5 pages
H. Turning 5 Social History Update 01/11/2021 20 pages
I. Physical Therapy Annual Report 12/09/2020 5 pages
J. Preschool Teacher Interview Undated 3 pages
K. 4410 Evaluation Completion Notification 11/09/2018 30 pages
L. Bilingual Social History 10/20 2018 9 pages
M. Bilingual Psychological Evaluation 06/03/2018 14 pages
N. OT Related Service Report 05/24/2021 4 pages
O. Educational Progress Report 01/12/2021 20 pages
P. Individualized Family Service Plan 05/15/2019 4 pages
Q. Meeting Notice CSE 05/03/2021 2 pages
R. Individual Education Program 2018 12/07/2018 24 pages
S. Individual Education Program 2019 05/16/2019 24 pages
T. Individual Education Program 2020 05/12/2020 18 pages
U. Individual Education Program April 2021 04/19/2021 19 pages
V. Immunization Report 03/01/2021 1 page
W. Classroom Observation 05/16/2022 3 pages
X. Neuropsychological Evaluation 07/21/2022 20 pages
Y. Affidavit of [REDACTED], Ph.D., MS Ed., 02/07/2023 9 pages
LBA/BCBA-D
Z Affidavit of [REDACTED] Undated 6 AA Affidavit of Dr. [REDACTED] 02/21/2023 15
Footnotes
[1] Ex. A.
[2] Id. The Parent also alleges that DOE adopted and implemented systemic policies (under both the IDEA and Section 504) that negatively impacted the Student; however, systemic claims cannot be addressed via administrative procedures and the exhaustion requirement is excused on the basis of futility. J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 112-113 (2d Cir. 2004)); see also Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 489 (2d Cir. 2002).
[3] Id.
[4] Id.
[5] Ex. A.
[6] In the alternative, the Parent will accept 40 hours per week of 1:1 SETSS-ABA split between a DOE school and home.
[7] Ex. A.
[8] See email thread titled, “RE: [EXTERNAL] [REDACTED] Parent Disclosure dated Tuesday, February 14, 2023, at 8:22:00 AM.”
[9] Id.
[10] Ex. C1.
[11] Ex. C27-C32.
[12] Ex. C35-C36.
[13] Ex. H.
[14] Ex. H1.
[15] Ex. H2.
[16] Id.
[17] Id.
[18] Ex. H.
[19] Ex. H-J.
[20] Ex. E20-E21.
[21] Ex. E26.
[22] Ex. E27.
[23] Ex. U1.
[24] Id.
[25] Id.
[26] Ex. S1, S21.
[27] Ex. T1; T15-T18.
[28] Ex. R1, R21.
[29] Ex. R16.
[30] Ex. R15, R17; S4-S6; T4.
[31] Ex. L1.
[42] Ex. F9.
[43] Ex. W1.
[44] Ex. W2-W3.
[45] Id.
[46] Ex. X1.
[47] Ex. X5.
[48] Ex. AA2.
[49] Ex. AA3.
[50] Ex. X6.
[51] Ex. X.
[52] Ex. AA11.
[53] Ex. AA.
[54] Ex. Y.
[55] Ex. Y4 para 24.
[56] Ex. Y.
[58] Ex. Z3 para 20.
[59] Ex. Z5 para 33.
[60] Ex. Z3 para 18.
[61] Ex. Y.
[62] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[63] Board of Education v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[64] 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).
[65] 20 U.S.C. § 1415(f)(3)(E)(i).
[66] Rowley, 458 U.S. at 203.
[67] 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.
[68] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[69] I further find that the Parent’s Section 504 claim is subsumed by the above IDEA analysis. However, to the extent that Parent alleged “gross, reckless, and intentional” misconduct, the Parent provided no evidence to substantiate that claim. R.B. ex rel. L.B. v. Bd. of Educ. of City of New York, 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000) (plaintiff must demonstrate more than a substantively faulty IEP to establish liability).
[70] See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
[71] P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008).
[72] Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that compensatory awards should place children in the position they would have been in but for the violation of the Act).
[73] See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, 546 F.3d at 123.
[74] Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007).
[75] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
[76] Application of a Child with a Disability, Appeal No. 22-004 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005).
[77] M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8, supra.
[78] C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 838 (3d Cir. 2010).
[79] Ex. A14; Tr. p. 27 lines 11-25, p. 28 lines 1-14.
[80] “[The Student] presented as an even-tempered child, and she was appropriately dressed, neatly groomed, and she appeared her stated age. [She] showed limited language skills. Her language comprehension was weak . . . . [her] spontaneous language was limited to single words .. . she was largely nonverbal. Occasionally, she echoed single words that the examiner used. She was in a neutral mood and her affect was limited in range. In this highly structured, 1:1 testing situation, [she] was compliant throughout the evaluation. However, she at times appeared distracted by internal stimuli. She held onto objects, such as paper towels, throughout the evaluation. [She] also transitioned smoothly between activities. A timer was set to signify the end of her breaks and [she] immediately began to put her toys away . . . Providing her with immediate reinforcers was helpful to maintain engagement and sustain stamina. Having a bite of Kinder Joy eggs following every few responses effectively maintained task persistence. Importantly, she did not engage in any aggressive or self-injurious behaviors throughout the evaluation . . . [she] was compliant and she appeared to put forth her best effort.”
[81] Students must be considered for twelve month, or extended school year (ESY) programs to prevent substantial regression if they are students who, among other things, are receiving other special education services and who, because of their disabilities, exhibit the need for an ESY special service and/or program provided in a structured learning environment of up to 12-months’ duration in order to prevent substantial regression. 8 N.Y.C.R.R. § 200.6(k)(1)(v). ESY services are therefore required only to the extent necessary “to prevent substantial regression,” T.M. v. Cornwall Cent. Sch. Dist., 752 F. 3d 145, 152 (2d Cir. 2014) (citing 8 N.Y.C.R.R. § 200.6(k)(1)(v) and 34 C.F.R. § 300.106(a)(1)). “Substantial regression” is defined as the “student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year.” 8 N.Y.C.R.R. 200.1(aaa). Although not specifically defined, courts and relevant guidance consider a period of eight weeks or more to be an “inordinate period of review.” See New York State’s 2022 guidance on ESY programs, available at Extended School Year Questions and Answers 2022 (nysed.gov); D.D-S. v. Southold Union Free Sch. Dist., No. 09-CV-5026, 2011 WL 3919040 (E.D.N.Y. Sept. 2, 2011). The party seeking ESY services bears the burden of production. Id.