Impartial Hearing Decision

CASE NUMBER: 592931 NYC: 243419

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

Hearing Requested By: Parent

Date of Hearing: January 31, 2023 and June 27, 2023 Record Closed Date: June 27, 2023

Hearing Officer: Audrey Daniel, Esq.

Names and Titles of Persons who appeared at the January 31, 2023 Hearing For the REDACTED None

For the Parents:

REDACTED, Esq., Attorney for Parent

REDACTED, BCBA, REDACTED, PC

Names and Titles of Persons who appeared at the June 27, 2023 Hearing For the REDACTED REDACTED, Esq., Agency Attorney

For the Parents:

REDACTED, Esq., Attorney for Parent

I. Introduction and Procedural History

On December 8, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by his Parent (“Parent” or “Parents”). A pre-hearing conference was held on January 17, 2023, status conferences were held on March 20, 2023, April 21, 223 and May 25, 2023 and hearings were held on January 31, 2023 and June 13, 2023, and The REDACTED (“REDACTED”) was represented by REDACTED, Esq., and Parent was represented by REDACTED, Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective June 27, 2023.

II. Background

Parent filed a due process complaint on December 6, 2022, alleging a denial of Student’s right to a Free and Appropriate Public Education (“FAPE”) for the 2020-2021, 2021-2022 and 2022-2023 school years. Parent’s request for independent education evaluations and interim home-based special instruction for thirty hours per week was granted pursuant to an interim order. Parent’s remaining request are for compensatory education. The submitted evidence but did not otherwise put on a case. (Exh. 1-4). Parent had one witness who provided direct testimony by affidavit and was available for cross-examination during the hearing. (Exh. T). The REDACTED declined to cross-examine the witness. (Tr. 54).

III. Discussion

FINDINGS OF FACT AND DECISION

Student has been diagnosed with autism and is medically fragile, as he has been diagnosed with autism and REDACTED syndrome which requires REDACTED. (Exh. A and Tr. 50). A neuropsychological evaluation was conducted on or about June 12, 2023. (Exh. N). The evaluator found that Student, who had previously been diagnosed with Autism Spectrum Disorder (“ASD”), functioned cognitively in the low range, and exhibited significant deficits in written and mathematical skills and recommended that Student’s school utilize an Applied Behavioral Analysis (“ABA”) approach. (Exh. N, page 13). Additionally, Student exhibited significant difficulties with socialization, communication and restricted and repetitive patterns of behaviors consistent with his ASD diagnoses and met criteria for an ADHD diagnosis, a language disorder, a developmental coordination disorder, and moderate intellectual disability. (Exh. N, page 13-4). In addition to recommending a placement for Student, the evaluator recommended both home and school-based ABA, as well as BCBA supervision and related services. (Exh. N, pages 16-17). The evaluator also recommended compensatory education in the form of 40 hours per week of ABA therapy for a total of 1380 school based and 460 hours of home based ABA services per year, 4 hours per week of occupational therapy, equaling 184 per year, physical therapy 2 hours per week, or 92 hours per year, speech and language therapy for five hours per week or 230 hours per year, counseling services, 2 hours per week or 92 hours per year, parent counseling and training for 2 hours per week or ninety two hours per year, and BCBCA supervision for two hours per week which is 92 hours per year. (Exh. N, pages 17-8).

Pursuant to the interim order in this case, an ABA Skills Assessment Report was conducted. (Exh. O). The evaluator recommended significant 1:1 services, an appropriate program, ongoing parent training and program oversight. (Exh. O, page 16). In terms of compensatory services, the evaluator recommended 420 hours of compensatory 1:1 ABA services, as well as parent counseling and training. (Exh. O, pages 16-7).

A speech and language evaluation was also conducted in May of 2023. (Exh. P). The evaluator found that Student presented with moderate to severe impairments in both receptive and expressive language skills and recommended four individual and one group session for thirty minutes each week, as well as 276 hours of compensatory hours. This calculation was based on three individual sessions over forty-six weeks for two years. (Exh. P, page 8).

An assistive technology evaluation was also conducted, pursuant to the interim order, in May of 2023. The evaluator found that Student needs assistive technology to assist with his academic and language challenges, including the TouchChat with WordPower 60 and News-2you and Unique Curriculum, as well as twenty-hours of training. (Exh. Q, page 11).

An occupational therapy evaluation conducted in March of this year revealed impaired sensory process, impaired modulation, and difficulty self-regulating. (Exh. R, page 11). The evaluator also found deficits in Student’s fine motor skills, adaptive skills and visual-motor integration. (Exh. R, pages 13-14). The evaluator recommended four thirty-thirty-minute occupational therapy sessions per week on a twelve-month basis. (Exh. R, page 14). For compensatory services, she recommended 184 compensatory occupational therapy hours, calculated based on two hours per week for 46 weeks for two years. (Exh. R, page 15).

Finally, an independent physical therapy evaluation was also conducted on March 29, 2023. (Exh. S). Student’s scores indicated severe limitations in daily activities, mobility and social cognitive skills, decreased strength, balance and coordination, which decreased his overall level of safety. (Exh. S, page 8). The evaluator recommended 161 hours of compensatory physical therapy services based on the failure of the REDACTED to provide necessary services for two years. (Exh. S, page 9).

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In the recently decided Endrew F. Douglas County School District RE-1, No. 15-827, 2017 WL 1066260, the Supreme Court held that in or order “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)) and provides for the use of appropriate special education services. (See 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

The REDACTED rested without putting on a case. (Tr. 53). Although the REDACTED submitted two of the relevant IEPs, as well as prior written notice, there were no witnesses to address Parent’s specific allegations, including the allegation that Student was not comprehensively evaluated, that the REDACTED failed to provide Parent Counseling and Training and a transportation paraprofessional, and that the REDACTED failed to develop meaningful and measurable annual goals that address all areas of Student’s need. (Exh. 2, Exh. 3 and Exh. 4) Thus, the REDACTED has not met its burden of proof and Parent is entitled to relief.

RELIEF REQUESTED

COMPENSATORY EDUCATION SERVICES

The Supreme Court has held that “equitable considerations are relevant in fashioning relief in any IDEA action. See Burlington, 471 U.S. at 374; see also, Doe, 790 F.3d at 454. Further, although “[a]n award of damages in available… a court may award various forms of retroactive and prospective relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive relief. Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 454(2d Cir. 2015) (citing Burlington, 471 U.S. at 369; Polera v. Bd. of Educ. of Newburgh Enlarg ed City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002) Compensatory education is an equitable remedy that provides in-kind special education and other related services for denials of a free and appropriate public education (FAPE). Compensatory education is generally defined as educational services above and beyond that normally due a student under his state's education law. Wenger v. Canastota, 979 F. Supp 147, 151 (NDNY 1997); C.G. v. Five Towns Community School District, 513 F.3rd 279 (290) (1st Cir. 2008). Such services are compensation for the education a student would have received “during the periods when his IEP was so inappropriate that he was effectually denied a FAPE.” Reid v. District of Columbia, 401 F.3d 516, 525 (DC Cir. 2005). “[T]he ultimate award [of compensatory education] 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.” Reid ex rel. Reid v. D.C., 401 F.3d516, 524 (D.C.Cir.2005), cited in E. Lyme Bd. of Educ., 790 F.3d at 457. The Second Circuit concluded, “Whatever its precise form, the remedy must be ‘appropriate in light of the purpose of the Act.’ E. Lyme Bd. of Educ., 790 F.3d at 457 (quoting Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass.,471 U.S. 359, 369 (1985)); see also, Burr by Burr v. Ambach,863 F.2d 1071, 1078(2d Cir.1988) (“if, in this case, we do not allow an award of compensatory education, then [the student’s] right to an education between the ages of three and twenty-one is illusory.”) Where a school system fails to provide special education or related services to a disabled Student, the Student is entitled to compensatory education, "i.e., replacement of educational services the child should have received in the first place." Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996). Under the qualitative approach, the examination should focus on the child’s needs; “some Students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Reid, supra at 526.

Parent requests significant compensatory education, including 420 hours of compensatory ABA therapy, 72 hours of Parent Counseling and Training (two hours per month for the three school years at issue, as recommended by the autism assessment), 276 hours of compensatory speech and language therapy, 184 hours of compensatory occupational therapy, and 161 hours of compensatory physical therapy, for which Parent provides evidence to support. (Tr. 52-3 and Exh. O, Exh. P, Exh. R and Exh. S). Therefore, I order the REDACTED to provide a bank of the requested compensatory education to be provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate.

ASSISTIVE TECHNOLOGY

Based on the results of the requested Assistive Technology evaluation, Parent requests both assistive technology and training. (Exh. A and Exh. Q). The uncontroverted evidence provided by Parent in the independent assistive technology evaluation recommended both assistive technology as well as training. Therefore, I order the REDACTED to provide the requested assistive technology as well as twenty hours of training. This training shall be provided by a licensed and/or certified provider of Parent’s choice, at a rate not to exceed reasonable market rate.

IV. Order

IT IS THEREFORE ORDERED THAT:

1. The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2020-2021, 2021-2022 and 2022-2023 school years.

2. The REDACTED shall provide a bank of compensatory education. All services are to be provided by a licensed and/or certified provider of Parent’s choice, at a rate not to exceed reasonable market rate. including:

a. 420 hours of compensatory ABA therapy, b. 72 hours of Parent Counseling and Training, c. 276 hours of compensatory speech and language therapy, d. 184 hours of compensatory occupational therapy, and

e. 161 hours of compensatory physical therapy.

3. The REDACTED shall provide the assistive technology recommended by the independent assistive technology evaluation, including, but not limited to, a the TouchChat with WordPower 60 and News-2-you and Unique Curriculum, and twenty hours of assistive technology training. The training shall be provided by a licensed and/or certified provider of Parent’s choice, at a rate not to exceed reasonable market rate.

Dated: July 3, 2023

AUDREY DANIEL, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed. An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

EXHIBITS ADMITTED AT HEARING

REDACTED

Exhibit DATE NAME PAGES

1 12/6/2022 Due Process Complaint 7

2 8/17/2021 Individualized Education Program 19

3 4/29/2022 Individualized Education Program 22

4 6/10/2022 Prior Written Notice 5

Parent Exhibit Name Date Pages A Parent’s Impartial Hearing Request 12/06/22 7 B Bilingual Psychological Evaluation 02/25/20 5 C Social History 02/25/20 3 D Occupational Therapy Evaluation 03/04/20 4 E Physical Therapy Evaluation 03/04/20 6 F Bilingual Speech-Language Evaluation 03/04/20 4 G Bilingual Educational Evaluation 03/06/20 5 H Individualized Family Service Plan 04/16/20 5 I Individualized Education Program 08/17/21 18 J Individualized Education Program 04/29/22 23 K Prior Written Notice 05/06/22 4 L Letter from Pediatric Neurologist 12/01/22 1 M Rate Sheets Undated 3 N Neuropsychological Evaluation 06/12/23 23

O ABA Skills Assessment 03/18/23 17

P Speech Language Evaluation 06/16/23 10

Q Assistive Technology Evaluation 06/16/23 13

R Occupational Therapy Evaluation 04/26/23 16

S Physical Therapy Evaluation 04/18/23 11

T Affidavit of REDACTED 06/23/23 4

Impartial Hearing Officer

None.