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FINDINGS OF FACT AND DECISION
Case No. 244804
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
Home District: [REDACTED]
Service District: [REDACTED]
Hearing Requested by: Parent
Record Close Date: July 31, 2023
Decision Date: July 31, 2023
Time Sensitive: Yes
Hearing Officer: Eryn DeFontes, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
June 21, 2023
For the Student:
Parent’s Attorney
For the Department of Education:
NONE
PROCEDURAL HISTORY
On January 11, 2023, a due process complaint (“DPC”) was filed against the New York City Department of Education (“DOE”) by [REDACTED], as attorney for [REDACTED] (“Parents”) and on behalf of their child, [REDACTED] (“Student”), under Case No. 244804, pursuant to the Individuals with Disabilities Education Act (“IDEA”, or the “Act”) [20 U.S.C. Section 1415(f)] and Section 4404(1) of the New York State Education Law.[1] The case was assigned to IHO I on February 6, 2023. On February 9, 2023, the undersigned was appointed impartial hearing officer (“IHO”/ “undersigned IHO”) for this case.
A prehearing conference with the parties was held on February 16, 2023, wherein the Parent requested Interim Relief ordering the DOE to fund the following independent educational evaluations (“IEEs”): (i) neuropsychological evaluation (ii) functional behavior analysis (“FBA”) and behavior intervention plan (“BIP”), (iii) occupational therapy (“OT”), (iv) physical therapy (“PT”), (v) speech language (“SLT”),(vi) assistive technology (“AT”). The DOE indicated it was not contesting the interim relief requested by the Parents and further maintained that the DOE would conduct the AT evaluation. The DOE further confirmed (1) independent evaluations (i) through (v) will be conducted by providers of the Parent’s choosing, at the rates proposed by the Parent, to be funded by the DOE. The undersigned issued an Interim Order on February 16, 2023. [2]
An amended DPC was approved by the undersigned on February 17, 2023.[3] The DOE failed to appear at subsequent status conferences, nor did the DOE appear for the instant hearing on June 21, 2023.[4] The Parent submitted a post-hearing brief. [5]
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA, 6 and its implementing regulations, 7 and the New York State Education Law, and its implementing regulations. 8 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 (“OATH”) the authority to adjudicate due process complaints under Section 504. 9
BACKGROUND AND POSITIONS OF THE PARTIES
The Student is a [REDACTED]-year-old child who is classified by the DOE’s Committee on Special Education (“CSE”) as a child with a Disability. 10 The Student’s classification is not in dispute. The Parent alleges that the DOE denied the Student a free appropriate public education (“FAPE”) for the 2019-2020, 2020-2021, 2021-2022, and 2022-2023 school years. [11]
The DOE failed to appear at the instant hearing and therefore did not sustain its statutory burden. The Parent’s Attorney presented via affidavit, the testimony of the BCBA/Director of [REDACTED], Speech Language Pathologist, Occupational Therapist, and Physical Therapist. The Parent testified at the hearing.
LEGAL STANDARDS AND FRAMEWORK
In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE.[12] Both the IDEA and the Education
6 20 U.S.C. § 1400 et seq. 7 34 C.F.R. § 300 et seq. 8 Educ. Law Art. 89 § 4404 et seq., 8 NYCRR § Part 200. 9 NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act504-delegation-Signed.pdf. Regulations implementing Section 504 in the context of educational institutions appear at 34 C.F.R. Part 104. However, as relief in the matter is available pursuant to the IDEA, any claims set forth pursuant to Section 504 are hereby subsumed by the IDEA and will not be addressed separately. 10 P-J; Q. Law provide that children with disabilities are entitled to a FAPE.[13] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive IEP.[14] 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 CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.[15] 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. [16]
In IDEA due process proceedings, School districts have the burden of proof, including the burden of persuasion and burden of production, 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.[17] Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all ‘FAPE’ issues. [18]
FINDINGS OF FACT AND DECISION
The Student was diagnosed with autism spectrum disorder (“ASD”).[19] The Student attends a DOE public school in a special education district (“[REDACTED]”). In this case, the DOE failed to appear in several instances, including the instant hearing.[20] Consequently, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating the Student’s IEPs, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”.[21] Therefore, the undersigned is constrained to find that the DOE failed to offer the Student a FAPE for the school year at issue.
Nevertheless, the evidence establishes that the DOE failed to provide the Student with specialized education and related services designed to meet the Student’s needs through its failure to properly evaluate the student, convene timely IEP meetings, and provide specialized education and related services designed to meet the student’s unique needs, provided in conformity with comprehensive IEPs.[22] In addition, the Parent’s witnesses provided unrefuted testimony to establish that Student’s IEPs were not tailored to the Student’s individual needs. [23]
However, despite Parent’s Attorney assertions that the Student requires what amounts to thousands of hours of both prospective and compensatory related services,[24] such requests are neither reasonable nor supported by the evidence. Therefore, the relief requested shall be modified accordingly and discussed further below.
Prospective and Compensatory Relief
The Parent in this case requests compensatory education and related services “to place the harmed student in the same position he or she would have been in but for the denial of
FAPE.” [25]
It is widely held that "[c]ompensatory education involves discretionary, prospective, injunctive relief crafted by a court [and/or hearing officer] to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student".[26] Furthermore, Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies”. 27 Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate” and “hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program’”. 28 “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves”. 29
Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place”, and equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. 30 However, the IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents”. 31
The DOE has the burden of proof on the issue of compensatory education, 32 yet, the DOE’s failure to appear and present a case does not justify Parent’s entitlement to their entire requested prospective or compensatory remedy. In fact, requested hours may be limited if the need for such is inadequately supported by the record, would lead to diminishing returns, or could overwhelm the student. 33 Rather, an award of additional services should aim to place a 27 Doe v. East Lyme, 790 F.3d at 454. 28 Reid, 401 F.3d at 516, 522, 525 (emphasis in original). 29
Id. at 522 (citations omitted). 30
Id. at 518. See also Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993); see also, Letter to Zirkel, 81 IDLER 22, (2022) (“inclusion or omission of a proposed resolution should not be read to create conflict with, or limitation upon, an impartial hearing officer’s authority and ability to formulate an appropriate equitable remedy”). 31 Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 [2d Cir. 1989]. 32 See M.M. v. New York City Dept. of Educ., 2017 WL 1194685, 4 (SDNY 2017); Doe v. East Lyme Bd. of Educ., 790 F3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F3d 516, 524 (DC Ct of App 2005); Application of Student with a Disability, Appeal No. 21-169. 33 See M.M., 2017 WL at 8 (“[c]ommon 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 useless, or even burdensome if provided in overwhelming quantity.”); Application of Student with a Disability, Appeal No. 21-
213 (“While the district failed to present evidence or its view of an appropriate compensatory education award, the IHO was not required to award all of the relief that the parents sought. Such an outright default judgment awarding compensatory education-or as in this case, any and all of the relief requested without question is a disfavored outcome even where the district's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious.”), citing Branham v. Govt. of the Dist. of Columbia, 427 F3d 7, 11-12 (D.C. Cir. 2005). student in the position they would have been in had the DOE complied with its obligations under the IDEA. [34]
Furthermore, 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).
In this case, Parent’s witnesses took a purely quantitative approach by calculating an hour for hour, day by day approach (ex: 46 weeks x 5 days per week for 3 years).[35] However, this approach adopts the unfounded assumption that the Student was provided with absolutely no services for all of the school years at issue.[36] This is neither alleged nor supported by the hearing record. Also, as indicated previously, school districts are not required to "maximize" the potential of students with disabilities but must provide "an IEP that is 'likely to produce progress, not regression'”. [37]
Similarly, Parent’s Attorney’s request for “additional award[s]” for compensatory relief, pursuant to their closing brief, far exceeds the amounts recommended in the aforementioned assessments and reports and is wholly unsupported by the hearing record.[38] While is it clear that the compensatory hours set forth in the witness affidavits do not account for the 2019-2020 school year, the Parent’s Attorney’s rationale in support of their request for approximately 4,347 additional compensatory hours is merely characterized as “appropriate…for the District’s denial of FAPE for the 2019-2020 SY”.[39] Although the DOE failed to appear to contest the proposed relief, and the Student’s deficits are documented, the goal here is neither to punish the DOE nor “guarantee that the student achieves a particular grade-level in [their] areas of need.” [40]
Accordingly, the undersigned concludes that the modified relief (both prospective and compensatory) set forth below is appropriate.[41] The undersigned further finds that in the absence of any contradictory evidence from the DOE, any rates to be charged for the respective services proposed are reasonable and commensurate with prevailing market rates. [42]
Behavior/ABA: The Parent requests ABA services at a dedicated center or via push-in at school.[43] The record demonstrates instances of Student’s tantrums, aggression towards others, and self-harm.[44] The BCBA reported that pursuant to an interview with the Student’s teacher and a direct classroom observation, 45 “[Student] is not able to follow classroom routines and directions independently… [she] was able to transition from one activity to another…would get up from her seat every 2-3 minutes, engage in self-stimulatory behaviors (pacing…talking to herself”)…[Student’s teacher] reported that [she] is making progress in the following areas, object-function, math/addition using manipulatives and labeling money…[Student] has engaged in aggressive behaviors such as using an open hand to smack the teacher when she is not able to get what she wants…when [Student] does engage in tantrum behaviors they can last up to over an hour.”[46] The FBA notes Student’s maladaptive behaviors are “precipitated” by, inter alia, being asked to wait/delay or denial of a preferred activity. [47]
Although the 2021 IEP notes, “[Student] has a school-based behavior support plan which was created in October 2020, with a target behavior of aggression (forcefully pushing peers with an open/closed hand)…function of this behavior is attention with a frequency of 6-8 occurrences
45 It is noted that the classroom observation is erroneously dated “06/07/2021”. per day”, 48 the strategies noted therein do not appear to have made any significant impact on the Student’s maladaptive behaviors, such as tantrums, hitting others and elopement. 49 The DOE did not offer any evidence to the contrary. The BCBA maintained that the Student’s maladaptive behaviors “are interfering with skills critical to her development and activities of daily living” and as such, a BIP was created to target tantrums, noncompliance and self-stimulation.50 The BCBA concluded that “…[Student] did not meet the IEP goals in the time allotted due to inappropriate supports and lack of ABA services. 51 The prospective relief of 35 hours of atschool ABA instruction coupled with 6 hours of BCBA supervision requested by the Parent shall be modified accordingly. 52 In addition, Parent’s request for a total of 6,440 hours of compensatory ABA and 1,104 hours of compensatory BCBA 53 supervision shall be similarly modified. 54
Parent further requests home-based ABA at a frequency of fifteen (15) hours per week in addition to six (6) hours of BCBA supervision. 55 Such request is denied. Although the BCBA recommended home-based ABA instruction for the Student to effectuate appropriate behavior at home and generalize skills, and to target behaviors which “mainly occur within the home setting”, 56 Student’s receipt of a home-based ABA program that are intended to generalize skills outside the classroom are not required by the IDEA. 57 A school district may be required to offer
48
P-Q-10, 11 (“Parent stated and expressed that she does not have any concerns with [Student’s} social development”). 49 P-Q-22; P-I; P-V. 50 P-V-4¶24. 51 P-V-6¶¶31, 32. 52 Prospective hours modified by the undersigned to 15 hours per week and 3 hours BCBA supervision. 53 IHO viii-6. 54 Compensatory hours modified by the undersigned to 690 hours (15x46) for the 2022-2023 school year and 3x46 for BCBA supervision. 55 IHO viii-8. 56 P-I; P-V-5¶26; P-7¶a; P-10¶42. The BCBA also referenced an interview with the Parent detailing Student’s behavior at home. 57 See F.L. and M.L. ex rel. F.L. v. New York City Dept. of Educ., 2016 WL 3211969, at *11 (S.D.N.Y. 2016); P.S. v. New York City Dept. of Educ., 2014 WL 3673603, at *13-14 (S.D.N.Y. 2014); C.M. and S.M. ex rel. L.M. v. Mount Vernon City Sch. Dist., 2020 WL 3833426, at *26 (S.D.N.Y. 2020); L.K. v. New York City Dept. of Educ., 2016 WL 899321, at *8-10 (S.D.N.Y. 2016), aff’d in part, L.K. v. New York City Dept. of Educ., 674 Fed. App’x 100 (2d Cir. 2017). services that seek to improve generalization “if a student’s difficulty in generalizing skills prevents him from making the progress required under the IDEA.” [58]
The hearing record in this case fails to establish that the Student is unable to make progress in the classroom without a home-based ABA program or that the Student was specifically denied a FAPE due to the lack of home-based ABA services. The primary purpose of the home-based ABA program recommended for the Student is to generalize skills outside the classroom. The DOE was under no obligation during the school years at issue to recommend or provide any home-based ABA services to generalize the Student’s skills outside the classroom. Accordingly, Parent’s request for prospective and compensatory home-based ABA instruction is denied.
The Parent requests parent counseling and training (“PCAT”) for three (3) hours per week (3x/week for 60 minutes per session) due to Student’s “diagnosis of [ASD] and her significant needs”.[59] However, there exists no evidence in the hearing record to disturb the 2021 IEP recommended PCAT service of 3x/year for 30-60 minutes.[60] However, Parent’s request for 414 hours of compensatory PCAT shall modified accordingly. [61]
PT: The Physical Therapist noted that the Student presented with “moderate delays in gross motor function, sensory integrating, and activities for daily living”[62] and recommended PT 2-3 times per week for 30 minutes to address Student’s “gross motor strength, bilateral coordination, motor planning and sensory delay.”[63] Notably, the Physical Therapist essentially recommended the same amount of PT mandated in the Student’s 2021 IEP.[64] The Parent testified that the DOE “took away” Student’s PT at some point in time.[65] The Physical Therapist did not recommend compensatory PT in any duration or frequency.[66] Accordingly, in consideration of the potentially arduous number of hours Student must commit to compensatory services, coupled with the PT report, which notes Student’s deficits as “moderate”, Parent’s request for compensatory PT in the amount of 276 hours shall be modified accordingly. [67]
OT: The Occupational Therapist testified, “[Student] presents with at least a forty percent (40%) delay in her fine-motor/visual-motor skills, adaptive skills, and sensory processing skills compared to her peers…The deficits discussed above have the potential to influence future skills in imitating and copying shapes, numbers and letters, which is necessary for written class work, due to her decreased visual motor skills. The deficits also have the potential to impact how [Student] recognizes numbers and letters, and her overall reading skills due to poor visual perceptual skills. Additionally, her learning and potential for further development is impacted by her significant sensory needs.”[68] The DOE offered no evidence to the contrary. The Parent’s request for compensatory hours in the amount of 736 hours shall be modified accordingly. [69]
Speech Language Therapy: The Speech Language Pathologist (“SLP”) testified that the Student exhibits “significant delays” in receptive and expressive language skills, “severe” delays in phonological awareness skills and inconsistent concentration.[70] The SLP further noted that Student’s IEPs were “woefully inadequate to meet her significant needs… [Student] has displayed less than trivial progress…at the NYCDOE.”[71] The DOE presented no evidence to the contrary. The Parent’s request for compensatory hours in the amount of 920 hours shall be modified accordingly. [72]
Tutoring: The hearing record establishes that the Student is entitled to compensatory tutoring services to make up for the multiple years of denial of FAPE.[73] However, as previously discussed, the numbered of hours requested (7,360), which the undersigned finds unreasonable, unsupported, and arduous, shall be modified accordingly. [74]
Transportation
The Parent in this case requests transportation “as well as related services and appropriate accommodations”.[75] The IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ . . . even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.”[76] In addition, State law defines special education as “specially designed instruction…and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” [77]
Here, the Parent testified that the Student receives transportation to and from school. However, Student has significant “sensory problems, where she has to hold two things in her hands”, in addition to “screaming” and hitting her face “on the window”, and causing the bus to “pull over somewhere”. Parent testified that a travel aide “would be the best thing in the world.”[78] The Student’s January 2021 IEP notes that the Student receives “door to door mini-wagon, 2 seats, Air Conditioning”.[79] Parent, pursuant to the DPC, requested a travel aide, transportation in the form of “a mini-bus with travel time limited to under one (1) hour, and a temperature-controlled bus.”[80] The DOE presented no evidence to the contrary. Therefore, Parent’s request is granted.
Referral to Central Based Support Team (“CBST”)
Parent requests that, should the DOE fail to reconvene and create an “appropriate IEP”, the matter should be “immediately deferred to the [CBST].” [81]
Although prospective awards under the IDEA can include private placements[82] courts have generally disfavored ordering prospective private placements and have instead directed school districts to reconvene and revise a student’s IEP for the purpose of recommending an appropriate program and placement for the student. As noted in Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393 (D.D.C 2018), the Court approved of the hearing officer's finding that “the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school.” It has been further held that “the consideration of prospective placement is frustrated without an IEP and an accompanying determined placement”, as prospective placement “should not be addressed by this Court, but instead, by the . . . IEP team, as soon as practicable” [83].
Accordingly, Parent’s request for referral to the CBST based upon a failure that may or may not occur, is denied. The CSE shall be ordered to reconvene to consider the findings in the evaluations obtained by the Parent and the recommendations contained therein. Should the CSE fail to do so, the Parent may file a DPC at that time.
Statute of Limitations
With respect to Parent’s request for an “Order tolling the [SOL],”[84] the IDEA’s SOL is viewed as an affirmative defense in New York.[85] Accordingly, the DOE has the burden of proving that the statute of limitations barred plaintiff’s claims.[86] As an affirmative defense, the statute of limitations is considered waived if not raised at the initial administrative proceeding. [87] In this case, the DOE failed to raise the SOL at the PHC or at any time prior to the instant hearing, to which the DOE failed to appear. [88]
Therefore, as such affirmative defense was waived, the undersigned need not address tolling of the SOL in this case and the school years at issue shall be addressed and remedied accordingly.
Attorney’s Fees
Parent included a request for attorneys’ fees in their due process complaint.[89] The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. [90]
Therefore, the undersigned would exceed the permissible scope of authority by determining that Parent is the prevailing party entitled to costs. To the extent that Parent seeks reimbursement and/or payment of attorneys’ fees and costs from the undersigned, their request is denied.
CONCLUSION:
The DOE both procedurally and substantively denied the Student a FAPE for the 2019-2020, 2020-2021, 2021-2022, and 2022-2023 school years. The duration and frequency Parent requests in the form of relief have been modified accordingly, as “ it would, for certain, be a [hollow] 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.”[91] In addition, it has been held 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”. [92]
Lastly, other than the relief set out below, the undersigned finds the Parent’s remaining contentions to be unnecessary to this decision, without merit, beyond the jurisdiction of this tribunal, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all of Parent’s remaining claims not discussed herein are dismissed with prejudice. [93]
ORDER
Based upon the above Findings of Fact, it is hereby: ORDERED, that the DOE shall convene a meeting of the CSE within 15 days of this Order to review the results of the evaluations and assessments referenced in the hearing record, including the May 2023 OT, PT and SL evaluations and the June 2023 ABA assessment, in addition to the most recently obtained FBA and BIP, and prepare an appropriate IEP that includes:
1. Specific, meaningful, and measurable goals tailored to the Student and based upon the Student’s current academic and functional levels;
2. OT 4x/week for sixty minutes;
3. PT 2x/week for 30 minutes;
4. Individual SLT 3x/week for 60 minutes;
5. Group SLT 2x/week for 60 minutes;
6. 15 hours per week of ABA instruction at a Center-Based Location or as a push-in model within a school setting, including 3 hours per week of BCBA supervision;
7. A behavior and elopement plan consistent with the findings in the FBA/BIP;
8. PCAT 3x/year for 30-60 minutes each session (group/individual);
9. To the extent not currently provided, transportation via school bus, to include:
a. a round-trip transportation aide to accompany the Student, provided and/or funded by the DOE, b. mini-wagon, 2 seats, air conditioning, c. limited time travel;
IT IS FURTHER ORDERED that the DOE shall provide the following compensatory hours for the Student, which may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations, by qualified providers of the Parent’s choosing at the providers’ customary and regular rates and/or limited to the amounts set out in this Order: a. 368 compensatory hours of OT from a qualified provider of the Parent’s choosing at market rate; b. 138 compensatory hours PT from a qualified provider of the Parent’s choosing at market rate;
c. 460 compensatory hours of SLT from a qualified provider of the Parent’s choosing at market rate;
d. 690 compensatory hours of ABA from a qualified provider of the Parent’s choosing at market rate;
e. 138 compensatory hours of BCBA supervision from a qualified BCBA of the Parent’s choosing at market rate;
f. 12 hours of PCAT from a qualified provider of the Parent’s choosing at market rate;
g. 920 compensatory hours of tutoring services from a qualified provider of the Parent’s choosing at market rate;
IT IS FURTHER ORDERED that the DOE shall pay to the respective providers listed above within fifteen (15) days of receipt of invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were provided; IT IS FURTHER ORDERED that the bank of compensatory hours set out above shall not expire until the expiration of two (2) years from the date of this Order;
IT IS FURTHER ORDERED, that within forty-five (45) days of the date of this decision, the DOE shall provide to the Parent the following special education records dating from the beginning of the 2019-2020 through the 2022-2023 school years: IEPs, IEP meeting notes, due process notices, including prior written notices and procedural safeguard notices, assessments, and other evaluation materials used to assess the Student.
IT IS FURTHER ORDERED that the DOE’s implementation unit shall authorize all services hereby ordered within fifteen (15) days.
SO ORDERED.
Dated: July 31, 2023 Eryn DeFontes
Eryn DeFontes, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of their 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 DOE Exhibits
NONE
Parent’s Exhibits: Exhibit Date Document Description Pages A 10/12/2022 Due Process Complaint 17 B 09/14/2020 School Assignment Letter 4 C 10/16/2020 School Assignment Letter 4 D 01/29/2021 Emails Between [REDACTED] and [REDACTED] re: REDACTD. 4 E 01-02/2021 Speech and Language Assessments 42 F 05/30/2023 Occupational Therapy Evaluation by [REDACTED] 11 G 05/30/2023 Physical Therapy Evaluation by [REDACTED] 9 H 05/30/2023 Speech and Language Evaluation by [REDACTED] 12 I 06/11/2023 ABA Assessment Report by BCBA 17 J 03/12/2020 Individualized Education Program (IEP) 19 K 06/14/2020 Prior Written Notice (Notice of Recommendation) 6 L 10/30/2020 Related Service Adaptations for Blended and Remote Learning 3 M 11/02/2020 Behavior Support Plan 1 N 11/02/2020 Related Service Adaptations for Blended and Remote Learning 3 O 11/04/2020 Special Education Program Adaptations Document (PAD) for Blended and Remote Learning 4 P 01/21/2021 Prior Written Notice (Notice of Recommendation) 4 Q 01/28/2021 Individualized Education Program (IEP) 36 R 02/08/2021 Prior Written Notice (Notice of Recommendation) 10 S 06/12/2023 Affidavit of [REDACTED] 5 T 06/13/2023 Affidavit of [REDACTED] 5 U 06/13/2023 Affidavit of [REDACTED] 4 V 06/13/2023 Affidavit of [REDACTED] 12
IHO Exhibits
i. 2.28.23 AMENDED DPC 17PP ii. WEBEX INVITATION 2PP iii. 2.16.23 INTERMIM ORDER 6PP iv. 3.28.23 ORDER OF EXTENSION 1P v. WEBEX INVITATION 2PP vi. WEBEX DPH INVITATION 2PP vii 5.16.23 STATUS SUMMARY AND ORDER 5PP viii. 7.13.23 PARENT’S POST-HEARING BRIEF 9PP ix. 2.16.23 ORDER OF EXTENSION 1P
Footnotes
[1] P-A.
[2] IHO iii, IHO ix.
[3] IHO i. Any relief pursuant to pendency was not set forth by the Parent and therefore will not be addressed here. (P- A-15¶17).
[4] IHO ii; v; vi; vii; Tr. 28:5-14.
[5] IHO viii.
[11] IHO i-12.
[12] M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017).
[13] 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[14] 20 U.S.C. §§ 1401(9), (29).
[15] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[16] 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].
[17] NYS Educ. Law § 4404(1)(c).
[18] The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).
[19] P-H-1.
[20] NYS Educ. Law § 4404(1)(c).
[21] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 1002 (2017).
[22] P-J; P-Q; P-T; P-U; P-V.
[23] P-E-I; S-V.
[24] P-A-3; IHO viii
[25] IHO viii-5 (citing P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[26] Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 522, 523, 525 (D.C. Cir. 2005) citing G. ex rel. RG v. Fort Bragg Dependent Schs., 343 F.3d 295, 309, 40 IDELR 4 (4th Cir. 2003).
[34] Application of Student with a Disability, Appeal No. 23-019.
[35] P-I; S, T, V; IHO viii.
[36] P-I; S, T, U, V.
[37] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
[38] IHO viii-6-8.
[39] Id.
[40] See M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 3F0, 2017].
[41] Student was recommended for 12-month special education services/programs pursuant to the January 2021 IEP (P- Q-29).
[42] P-T-5; V-10, 11.
[43] IHO viii-8.
[44] Tr. 46:17-25.
[46] P-I-4, 5
[47] P-I-9.
[58] (L.K., 2016 WL 899321, at *9),
[59] See L.K. v. New York City Dept. of Educ., 2016 WL 899321, at *8-10 (S.D.N.Y. 2016) (School districts may be required to offer services that seek to improve generalization if “student’s difficulty in generalizing skills prevents him from making the progress required under the IDEA”).
[60] P-Q-28.
[61] P-I-16; P-V-10, 11¶p46, 48; IHO viii-8.
[62] P-U-3¶8.
[63] Id. at¶9.; P-G-7; P-U-3¶9; IHO viii-6, 7.
[64] P-Q-28.
[65] Tr. 46:20.
[66] P-U.
[67] IHO viii-6. The total compensatory hours awarded reduces the amount requested by half (276 divided by 2). See also, Application of the Bd. of Ed. of the S.C.S.D, Appeal No. 21-065
[68] P-T-3¶¶12, 13; P-F-11; P-T-5¶¶ 19, 20; IHO viii-6.
[69] P-F-11; P-T. The total compensatory hours awarded reduces the amount requested by half (736 divided by 2).
[70] P-S-3, 4.
[71] Id. at 4¶20.
[72] IHO viii-7; P-H-11; P-S-4, 5¶21, 22. The total compensatory hours awarded reduces the amount requested by half for a total of 460).
[73] P-V-10.
[74] The total compensatory amount is calculated as 10 hours per week x 46 weeks x 2.
[75] IHO i-14¶9; IHO viii-2; Tr. 30.
[76] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir. 1997) (internal citation omitted).
[77] Education Law §§ 4401(1), 4402(4)(a); see also Education Law § 4401(2), and 8 NYCRR § 200.1(ww) (emphasis added).
[78] Tr. 56:20-25; Tr. 57-58:1-8; P-I-5.
[79] P-Q-13; 32, 33.
[80] P-A-14¶9.
[81] P-A-14¶12.
[82] See Draper v. Atlanta Indep. Sch. System, 518 F.3d 1275, 1284-1286 [11th Cir. 2008]; Branham, 427 F.3d at 11- 12; Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 [D.D.C. 2012]),
[83] G.G. ex rel. Gersten v. Dist. of Columbia, 924 F. Supp. 2d 273, 282 (D.D.C. 2013); see also, Eley, 2012 WL 3656471, at *11, (prospective placement should not be addressed by the court, but by the IEP team).
[84] P-A-15¶18.
[85] M.G. v. NYC Dept of Educ., 62 IDELR 195 (S.D.N.Y. 2014) , citing Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 114 (2d Cir. 2008).
[86] Id.
[87] Id.
[88] IHO ii; iii; v.
[89] P-A.
[90] See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006).
[91] See Application of the Bd. of Ed. of the S.C.S.D, Appeal No. 21-065.
[92] M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 30, 2017]. Emphasis added.
[93] See IHO viii-I; see also, P-A-14¶10; Tr. 58:9-13 (Parent’s request for reimbursement for “all out-of-pocket expenses incurred as a result of…denial of FAPE…” was refuted by Parent’s own testimony to the contrary that no such expenses were paid).