New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 245323

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: January 26, 2023

Date(s) of Hearing: June 22, 2023, June 28, 2023, June 30, 2023

Actual Record Closed Date: September 20, 2023

Date of Decision: September 20, 2023

Date of Distribution if Different than Decision Date: September 20, 2023

Hearing Officer: Marcel P. Denis, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 22, 2023

For the Student:

REDACTED, Attorney

REDACTED, Principal, REDACTED

REDACTED, M.S., CCC-SLP, Speech-Language Pathologist

REDACTED, Director, REDCATED Learning Processes

For the Department of Education:

REDACTED, Esq., District Representative

REDACTED, Esq., District Representative

INTRODUCTION AND PROCEDURAL HISTORY

On January 26, 2023, the parents (the “Parent”) of REDACTED (the “Student”) filed a due process complaint under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”) under case number 245323. I was appointed as impartial hearing officer (“IHO”) in that proceeding on February 3, 2023. On June 22, 2023, June 28, 2023, and June 30, 2023, the parties held substantive Hearings with the DOE relying on the documents submitted to support its prong I.

Hearing was held on June 22, 2023. It was a closed hearing, and Parents were represented by attorney REDACTED and the DOE was represented by attorney REDACTED. Parents entered into evidence the exhibits: P-Exs A through PP. The DOE entered into evidence exhibits: D-Ex. 1 through 13.^[1] The compliance date for issuing a decision in this proceeding has been extended. The list of exhibits is appended to this decision.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND AND POSITIONS OF THE PARTIES

REDACTED is a REDACTED-year-old student who is classified by the CSE as a student with “Autism” (P-Exs. A, F, G, H, I, J, K, L; M, N; D-Exs, 2, 5, 7, 10, 11, 12, 13). The student is diagnosed with autism spectrum disorder (“ASD”) (P-Ex. N). The student’s classification and eligibility for special education supports and services are not in dispute. The Student attends Public School (“P.S.”) redacted. In this proceeding, the Parents seek a determination that the DOE denied the student a FAPE for three consecutive school years to wit 2020/2021, 2021/2022, and 2022/2023. The Parents also request that the DOE be directed to place the Student in an extended school year program at a “NYS-Approved Nonpublic” for Student with Autism with one-to-one ABA assist coupled with a bank of compensatory hours for ABA, BCBA, PCAT and related services, amongst other reliefs, as a result of the three years depravation of FAPE.

The DOE did not file an answer to Parents’ DPC but denied the parent’s assertion that FAPE was not provided. The DOE maintains that the IEP provided was appropriate as well as the recommended placement together with related services, e.g. Speech-Language Therapy and Occupational Therapy. The DOE offered an evidence package with no witness testimony to explain the appropriateness of the IEP generated. The DOE further argued that a bank of compensatory hours should not cover the entire three school years as a portion of the 2020-2021 is time-barred.

The Parents submitted a documentary evidence package, which included an IEE request letter from Parents to the CSE; the testimony affidavit of witnesses, including the student’s mother.

ISSUES

Whether a denial of FAPE occurred when the DOE failed to offer the student an appropriate IEP and school Placement.

Whether the parent is entitled to funding and/or reimbursement for IEEs where the parent disputes the DOE’s evaluations.

Whether a Student who did not receive recommended services as a result of the DOE’s failure to secure a service provider is entitled to a bank of compensatory hours for services missed.

FINDINGS OF FACT

The student is REDACTED years old and attends a public school located in Brooklyn.^[2] The student is diagnosed with Autism and found eligible for Special education and related services as having a disability under the IDEA and Article 89 of the New York Education Law and Part 200 of Title 8 of the Regulations of the Commissioner of Education. 3 The Parents assert that the student’s disability affects the student’s learning ability.”^[4] The Student suffers “with severe allergies to tree nuts, coconut, and sesame” (P-Ex A). During the Student’s early learning stage, he made progress due to the small nursery school setting he attended (P-Ex. A). As the Student transitioned, the DOE placed him in a general education preschool at a Public School with “less supportive environment” (P-Ex. A). As a result of the public-school placement, the Student’s speech regressed significantly enough to cause the parent to seek professional help (P-Ex. A). In the Spring of 2019, the Student was evaluated and diagnosed with autism spectrum disorder (“ASD”) (P-Ex. A). The parent shared with the DOE the evaluation report received from the Infant and Child Learning Center (“ICLC”). The parent also brought to the DOE’s attention the need for a paraprofessional to assist the Student with his PICA condition “(mouthing and eating non-edible objects), food allergies, speech-language delays/loss and toileting needs” (P-Ex. A).

To address the student’s educational, emotional, and social needs, the DOE convened a CSE meeting on October 30, 2019, while noting the myriad of developmental challenges the Student faces the team classified the Student as a Preschooler with a disability and recommended SEIT services ten times per week for 60 minutes, speech-language therapy two times per week for 30 minutes, individually,, occupational therapy two times per week for 30 minutes, individually without a paraprofessional as requested by the parent although a paraprofessional was provided at the building level (P-Ex. A).

In March 2020, as a result of COVID-19, the Student was forced to engage in remote learning where he “missed out on vital learning time as he was only provided with minimal virtual support” (P-Ex. A). The remote learning program was not designed to address the Student’s specialized and individual educational needs resulting in further regression. The CSE convened on April ^[3], 2020, and noted that the Student made little progress and “relied heavily on his paraprofessional’s cueing and repeating of directions” (P-Ex. A). The Student’s speech was “echolalic [ ] with some jargon combined with single words and few simple phrases” (P-Ex A). The Student was incapable of initiating repeats words and phrases “occasionally” when prompted to (P-Ex. A). The Student could not identify colors and followed “only 1-step commands (P-Ex. A). Student had a very short attention span and needed constant redirecting (P-Ex. A). Physically, the Student could not control makers and papers because of “lack of goal-directed behavior and visual attention” (P-Ex. A). “Overall, [the Student’s ] motor skills were significantly impacted” (P-Ex. A). The Student relied heavily on the paraprofessional for toileting needs and needed assistance with basic daily routines, such as putting on a jacket or managing zippers, etc. (P-Ex. A). As the Student transitioned, the DOE recommended a 10-month program in “a 12+1+1 special education class ten times per week for ELA, five times week for Math, five times per week for Social Studies, and five times per week for Sciences, with related services of Occupational Therapy twice a week for 30 minutes, individually; group parent counseling and training three times a year for 60 minutes; Speech Language Therapy twice per week for 30 minutes, individually; Speech-Language Therapy twice a week for 30 minutes, individually; Full-time, health paraprofessional, individually.”^[5] The Student’s program was not implemented as a result of COVID-19 (P-Ex. A). The DOE offered a hybrid program where the Student would attend “school partially in-person and partially remotely (P-Ex A). The Parents opted to “have [the Student] continue as a fully remote student to provide him with consistency” (P-Ex. A). The program attended was “a general education remote learning class despite [the] IEP mandating [placement] in a 12+1+1 special education class…[w]ithout the appropriate support (P-Ex. A). The Student struggled and made no progress due to the lack of appropriate support (P-Ex. A). In addition thereto, the parent never received the mandated PCAT (P-Ex. A).

The CSE reconvened to generate a program for the Student on April 8, 2021 for the 2021/2022 school year. Despite the Student’s lack of progress with the program recommended for the previous school year, the DOE generated an IEP mandating the same placement and related services of “12+1+1 special education class ten times per week for ELA, five times week for Math, five times per week for Social Studies, and five times per week for Sciences, with related services of Occupational Therapy twice a week for 30 minutes, individually; group parent counseling and training three times a year for 60 minutes; Speech Language Therapy twice per week for 30 minutes, individually; Speech-Language Therapy twice a week for 30 minutes, individually; Full-time, health paraprofessional, individually on a 10-month basis.” The DOE evaluated the Student for assistive technology and it was reported that the Student is able “to use an SGD, specifically an iPad Mini with Proloquo2Go” (P-Ex. A). It was also found that the Student’s continued use of the SGD could effectively assist him to communicate his needs and wants “without frustration” (P-EX. A). “The evaluator recommended the SGD outright, [with no] trial period” (P-Ex. A). Although the evaluator recommended the SGD, it was left to the CSE to determine whether assistive technology should be among the Student’s mandates (P-Ex. A). The CSE reconvened on September 20, 2021 seized with the assistive technology report and recommended the same placement and related services as for the previous year with the use of an SGD and iPad Mini added on a 10-month basis (P-Ex. A). The lack of progress prompted the Parent to seek an independent evaluation from the Children’s Mental Health Center. The Student was evaluated on April 12, 2022 and it was confirmed that the Student had autism spectrum disorder and recommended a neuropsychological and ABA evaluation be performed (P-Ex. A).

The DOE performed an Occupational evaluation on August 12, 2022, and reduced the Student’s OT service hours although the evaluator “found that [the Student] illustrated decreased fine-motor skills for independence with activities of daily living and management of classroom tools and materials (P-Ex. A). It was also revealed that the Student faced “with decreased Visual Motor Integration, Visual Perception, and Motor Coordination skills that impeded [the Student’s] pre-writing and writing[;]…exhibited decreased sensory processing and sensory modulation [that affected the Student’s] work behaviors and social participation across school settings” (P-Ex. A). Although the OT evaluator reduced the Student’s OT service hours, the evaluator “recommended that the CSE consider adding counseling and [ ] consult with the district’s Central Based Support Team to discuss additional academic support and/or program for children with autism.” (P-Ex. A). Recommendation was made to modify the Student’s “various accommodations [ ] including, but not limited to, a wedged seat cushion and noise cancelling headphones (P-Ex. A).

The DOE evaluated the Student for Speech and Language as well on August 12, 2022. The evaluation found that the Student “was performing below expectations for Sentence Comprehension, Linguistic Concepts, Word Structure, Word Classes, Following Directions, Formulated Sentences, and Recalling Sentences” (P-Ex. A). The examiner also noted that the Student (had difficulty focusing and following directions [ ] and was [unable] to demonstrate age-appropriate pragmatic skills including adequate turn-taking during oral discourse and adequate topic maintenance skills” (P-Ex. A). It was recommended that the Student continues to receive Speech-Language Therapy twice a week for 30 minutes individually and twice a week for 30 minutes, group (P-Ex. A). The Student also went through a psychoeducational evaluation. The evaluator noted that the Student’s “overall Full-Scall IQ functioning was attempted but discontinued [because the Student] was not able to engage in any activities due to poor attention span and weak receptive and expressive language skills” (P-Ex. A). It is also noted that the Student could not perform certain tasks unless “information was breaking down using simple sentences, identified few letters of the alphabet, and identified colors and shapes” (P-Ex. A). The Student’s disability prompted the evaluator to use various tests to gauge the Student’s learning ability; the Student’s score “fell within level 2, indicating that he needs substantial support to function in school and within his community” (P-Ex. A). The Student also scored “within the Low range in the area of Communication, Daily Living Skills, Socialization, and Motor Skills” (P-Ex. A). Notwithstanding the aforementioned findings, “the evaluator [made no] recommendations” (P-Ex. A).

The 2022-2023 school year’s program was no different than the preceding educational program (P-Ex. A). The CSE met on September 19, 2022 and developed an IEP that essentially mirrored the Student’s first grade IEP with minor add-ons. The September 19, 2022 IEP recommended the Student for “12+1+1 special education class ten times per week for ELA, five times per week for Math, five times per week for Social Studies, and five times per week for Sciences, with related services of Occupational Therapy twice a week for 30 minutes, individually; group parent counseling and training three times a year for 60 minutes; Speech Language Therapy three times per week for 30 minutes, individually; Speech-Language Therapy twice a week for 30 minutes, individually; Full-time, health paraprofessional, the use of an SGD, and an iPad Mini” (P-Ex. A). The Student was not recommended for ABA service which the parents had to secure on their own (P-Ex. A). The ABA service proved useful in assisting the Student with certain daily living skills; however, the Student continued to elope from his home and struggled “with daily living skills and tasks such as haircuts and showering” (P-Ex. A).

On January 25, 2023, the Parent emailed a letter to the district to request an independent neuropsychological evaluation at the rate of $6,500; an independent Speech-Language and Occupational Therapy evaluations at the rate of $1,450 per; an independent assistive technology evaluation at the rate of $2,000; an independent Autism Skills Assessment at the rate of $1,000; and an independent sensory integration and praxis testing at the rate of $2,000 (P-Ex A). To date, the district has not responded to the letter (P-Ex. A). Having not heard from the district, the Parent filed a DPC on January 26, 2023 seeking relief from the district alleging a denial of FAPE resulting from the district’s failure to properly evaluate the Student coupled with its failure to provide the Student with an appropriate educational program with measured goals to allow the Student to make gains.

The email letter sent to the CSE on January 25, 2023 reiterated the Parent’s disagreement with the IEP and evaluation performed by the district (P-Ex. B). The DOE did not file an answer to the Parents’ Due Process Complaint. During the hearing, the DOE, through its counsel, was unable to demonstrate that the IEP generated was reasonably calculated to meet the student’s educational needs as the DOE did not present any witness to refute the Parents’ factual allegations or legal conclusion that the DOE denied the student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years at issue. The DOE’s inquiry rested solely on how the independent evaluators arrived at the number of hours that they deemed necessary for the Student to make educational gains (P-Ex. NN; Tr. 69-72). The DOE did not meet its burden under existing law that it provided the student with a FAPE.

CONCLUSION OF LAW

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA’s procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether a the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

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 (NYS Educ. Law § 4404(1)(c)).

A board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (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, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].

The Parents raised multiple challenges to the committee on special education (“CSE”) program and placement recommendations. The DOE made no attempt to show that it offered the Student a FAPE for the 2020-2021, 2021-2022 and 2022/2023 school years. It offered no witness testimony to explain cogently how it offered the Student 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.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). The DOE offered a documentary evidence package without any witness testimony to establish how the documents contradict the parent’s factual allegations and support the DOE’s argument that the IEP generated offered the student a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years. SRO Appeal No.19-061 held that where the DOE offered no explanation or entered evidence to controvert the parent’s allegations, “the parent is entitled to a presumption as to the truth of the asserted facts underlying her IDEA claim.” The DOE’s failure to answer the Parent’s DPC or offered evidence to contradict the Parent’s alleged deficiency is an admission of the alleged facts. SRO Appeal No. 19-061.

The DOE further argued, without any basis, that the IHO cannot order the CSE to reconvene and devise a program that accounts for the findings listed in the independent evaluation reports nor award the Student with a compensatory bank to remediate the denial of FAPE. The DOE presented three SRO that merit little discussion as they are factually different from the facts at issue here. SRO Appeal No. 22-088 purported to address the issue of prospective programing is not controlling and lent no support to the DOE. As counsel for the parent pointed out, “the final decision SRO Appeal No. 22-088 did not find that there was no possibility of a prospective program,” but was rather concerned with the lack of nexus between the award of a prospective placement and the appropriateness of the district’s recommended program or placement for the years at issue. Here, the parent established credibly the inappropriateness of the program generated by the district which the district failed to contradict. The Supreme Court in Forest Grove Sch. Dist v. T.A., 557 U.S. 230, 230 (2009) ruled that administrative hearing officers have broad authority in fashioning equitable relief limited only by the evidence or the lack thereof presented by the parties and the purpose of the act.

As stated, the district’s inquiry during cross-examination hinges solely on how they arrived at the number of recommended compensatory hours as opposed to the adequacy of the program (s) generated. The DOE’s cross-examination of the parent’s witnesses only strengthens the parents’ case that the student was denied a FAPE. Therefore, the DOE did not meet its burden of proof in this proceeding. The Parent does not need to meet the first of the three Burlington/Carter criteria as this matter does not pertain to tuition reimbursement. Therefore, the DOE has the burden of persuasion and production which it failed to meet.

As mentioned supra, a board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (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, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]. The Parent testified that upon securing ABA services, she saw instant improvement in the Student’s educational gains (P-Exs. A, PP). However, the privately secured ABA services were insufficient to meet the Student’s needs. (P-Ex. PP).

FAILURE TO IMPLEMENT AN IEP/IESP IS A DENIAL OF FAPE

20 U.S.C. §1401(9)(D); 34 C.F.R. §§300.17 (d), 300.323 (c) obligates the District to implement the Student’s IEP/IESP by providing the recommended special education and related services. Where the District failed to implement an IEP/IESP in a substantial or “material” respect, such a failure constitutes a denial of a FAPE. Woodstock Bd. of Educ., 370 Fed. Appx. 202, 205 (2d Cir. 2010) (summary order); K.C. v. Chappaqua Cent. Sch. Dist., No. 16-CV-3138, 2019 WL 6907533, at *13 (S.D.N.Y. Dec. 19, 2019); J.L. on behalf of J.P. v. New York City Dep’t of Educ., 324 F.Supp.3d 455, 467 (S.D.N.Y. 2018); V.M. v. N. Colonie Cent. Sch. Dist., 954 F.Supp.2d 102, 118 (N.D.N.Y. 2013); R.C. ex rel. M.C. v. Byram Hills Sch. Dist., 906 F.Supp.2d 256, 271 (S.D.N.Y. 2012); T.L. ex rel. B.L. v. Dep’t of Educ. of City of New York, No. 10-CV-3125, 2012 WL 1107652, at *14 (E.D.N.Y. Mar. 30, 2012).

New York Education Law § 4402 (2)(a) requires all handicapped children, “whether in public or private school be afforded suitable educational opportunities according to their individual needs”. Matter of Appl. Brd of Educ. v. Kain, 2008 N.Y. Slip Op. 33601, 3 (N.Y. Sup. Ct. 2008), quoting Board of Education v. Wieder, 72 N.Y. 2d 174, 186. Where the individual needs of a handicapped child demand the District to provide the child with an IEP/IESP recommending special education and related services authorized under New York Education Law § 3602-c, also referred to as the “dual enrollment statute”, the District must implement the IEP/IESP. Where the District failed to implement the mandated special education and related services a denial of FAPE occurred. Matter of Appl. Brd of Educ. v. Kain, 2008 N.Y. Slip Op. 33601, 3 (N.Y. Sup. Ct. 2008); see also In re Board of Educ. of Bay Shore Union, 2010 N.Y. Slip Op. 2640 (N.Y. 2010); see also SRO Appeal 22-146.

Compensatory Education

The Parents request compensatory education or compensatory services for the District’s failure to provide the Student with a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years. A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE (see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. Compensatory education may be awarded to students under the age of twenty-one (see Student X. v. New York City Dep't of Educ., 2008 WL 4890440, [E.D.N.Y. Oct. 30, 2008]. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA (P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008)).

As per the Second Circuit, there is no limitation to the relief of a FAPE violation as long the relief is fashioned appropriately considering the purpose of the IDEA, In any action brought under the IDEA, the court ‘shall grant such relief as the court determines is appropriate.’ 20 U.S.C. § 1415(i)(2)(C)(iii). The only restriction is that ‘the relief is to be appropriate in light of the purpose of the Act.’Burlington,471 U.S. at 369, 105 S.Ct. 1996 (internal quotation marks omitted). ‘[E]quitable considerations are relevant in fashioning relief and the court enjoys broad discretion in so doing.’ Carter,510 U.S. at 16, 114 S.Ct. 361 (citation and internal quotation marks omitted). An award of damages is not available, Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist.,288 F.3d 478, 486 (2d Cir.2002); but a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies, Burlington,471 U.S. at 369, 105 S.Ct. 1996 ; Polera,288 F.3d at 486.

Doe v E. Lyme Bd. of Educ., 790 F3d 440, 454 [2d Cir 2015]. The Second Circuit has long held that compensatory educational services and reimbursement for services obtained are not mutually exclusive but can be combined to placing a Student where he/she would have been had FAPE been provided. Id. at 457. See also V.W. v. New York City Dep't of Educ., 2022 WL 3448096 (S.D.N.Y. Aug. 17, 2022). The Student experienced a FAPE deprivation and denial of appropriate services for the period stated in the DPC. The DOE did not meet its burden of production and persuasion to show that it provided the Student with a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years. The parent’s factual allegations for those years were uncontroverted. The DOE attempted to show that it provided the student with a FAPE solely on documents presented without any witness testimony. On the other hand, the parent provided the testimony of credible professionals who testified to the need for the student to receive a bank of compensatory hours for services missed and/or never issued (P-Exs. N, O, KK, LL, NN, OO, and PP).

The Parents did not specify in her complaint the number of compensatory hours necessary to make the student whole. However, she provided the evaluation and testimony of the professionals who recommended the number of compensatory hours that would “put the student in the situation of receiving FAPE.” The BCBA recommended 1, 380 hours of compensatory home-based ABA (calculated as 10x46 weeks=460 x 3 academic years) at the hourly rate of $150.00; 276 hours of compensatory BCBA Supervision (2 hours per week of BCBA Supervision x 46 weeks x 3 academic years) at the hourly rate of $200; 138 PCAT hours (1 hour per week x 46 weeks x 3 academic years) (P-Exs. N, O, NN, OO); the Psychologist recommended a bank of 100 compensatory hours of Counseling (P-Ex. O); the Speech pathologist recommended a bank of 92 hours of compensatory Sensory Feeding Therapy at the hourly rate of $180.00 (P-Exs. KK, LL); 184 hours of Compensatory speech/language services provided Directly to Student and 48 Hours of Indirect Speech Services by a Speech Therapist, provided with ABA Co-Treatment, at the hourly rate of $180 per hour for the Speech/Language Services (P-Exs. KK, LL); 138 hours of occupational therapy, provided with ABA Co-Treatment, at the hourly rate of $180 per hour for the OT Service (P-Exs. KK, LL); 92 hours of Assistive Technology Instruction to Student provided with ABA Co-Treatment, at the hourly rate of $180 for Instruction (P- Exs. KK, LL); 69 hours of Assistive Technology Parent Training at the hourly rate of $180 for Instruction for the Parent (P-Exs. KK, LL); 48 Hours of Indirect Speech Services by an Assistive Technology Provider, at the hourly rate of $180 for Indirect Instruction (P-Exs. KK, LL).

ANALYSIS

This case involves a challenged student with an individualized education program (“IEP”). The DOE challenged the Parents’ contention that the educational program generated by the district was wholly inadequate for three consecutive years, 2020-2021,2021-2022, and 2022-2023. The district presented no witness or evidence to provide a cogent explanation as to how the programs offered the student with a FAPE for the 2020, 2021, 2021-2022 and 2022-2023 school years. The Parents presented the affidavit and live testimony of the professionals who evaluated and serviced the Student coupled with the student’s mother. The Parents also submitted substantial documentary evidence in support of their position that the district failed to provide the Student with a FAPE (P-Exs. C, D, E, K, L, M, N, O, P, KK, LL, MM, NN, OO, and PP). The testimony of the Parents’ witnesses (which was uncontroverted) and the Parents’ documentary evidence established that the IEPs generated by the district were inappropriate and have not provided the student with educational instruction that is specifically designed to meet the student’s unique special education needs, supported by such services that are necessary to permit the student to benefit from instruction.

The Parents are not seeking tuition reimbursement and therefore do not need to meet the second of the three Burlington/Carter criteria for tuition reimbursement. The district has the burden of persuasion and production and failed to shoulder its burden.

The determination of whether the parent acted equitably under the circumstance hinges, in large part, on whether the parent cooperated with the CSE and provided the CSE enough opportunities to remediate the problem. The Parent served the DOE with an email letter reiterating her dissent with the IEP generated and evaluations performed (P-Exs. B, PP). The DOE did not file an answer in response to the Parent’s DPC nor did the district provide witness testimony to controvert the parent’s factual allegations as to the deficiencies found in the IEP and the evaluations. As such, the district admitted to the factual allegations listed in the Parent’s DPC. Therefore, the parent acted reasonably and equitably under the circumstance. In that regard, the DOE did not make a showing why the reliefs sought by the parent should be denied on equitable grounds.

Moreover, the parent made a request for IEE which the district did not oppose. As per New York State Commissioner’s Regulations section 300.502(b)(1), (2) the parent has the right to obtain an independent educational evaluation at public expense. If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See, NYCRR 200.5(g)(1)(iv). Based on the foregoing, I find the student is entitled to the independent evaluations requested as the DOE did not oppose the request.

Based on the aforementioned and the evidence presented, I find that the DOE denied the student a FAPE for the 2020, 2021, 2021-2022 and 2022-2023 school years; therefore, the relief sought by the Parents is hereby granted.

ORDER

IT IS HEREBY ORDERED that the New York City Department of Education denied the Student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 and is directed to:

1). Reconvene the CSE to change his IEP to an appropriate program recommendation of Extended School Year “NYS-approved nonpublic school program” for children with autism with a wrap-around program of a small class with full-day school-based one-to-one Applied Behavioral Analysis (“ABA”) services, specialized and intensive related services including assistive technology, 15 Hours per week Home-Based ABA services with 8 hours per month BCBA Supervision, and 4 Hours per month one-to-one Parent Counseling and Training (“PCAT) service, at a rate of $150 per hour for ABA and $200 per hour for BCBA Supervision and PCAT; it is further

3). Ordered that the DOE shall defer the student’s placement to the CBST for placement in an appropriate NYS approved NPS program specializing in students with Autism;

4). Order that until such a placement is found, the DOE shall immediately fund 30 Hours of push-in ABA at a rate of $150 per Hour for ABA and two hours of BCBA supervision weekly of that program at $200 per Hour for BCBA Supervision;

5). Ordered that, within 15 days of this order, the DOE shall fund independent educational evaluations, by providers of the parent’s choosing at the provider’s customary and regular rates, in the following areas; it is further

6). Ordered that the DOE shall fund An Assistive Technology and a Sensory Based Feeding Evaluation at a rate of $2,000 for the Assistive Technology evaluation and $2,000 for the Sensory Based Feeding Evaluation; Functional Behavioral Assessment (“FBA”) and Behavioral Intervention Plan (“BIP”) by a BCBA at a rate of $1,500 for the FBA and $450 for the BIP; it is further,

7). Ordered than the DOE shall fund a bank of compensatory ABA, BCBA, PCAT, and related service 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 providers of the parent’s own choosing at the providers’ customary and regular rates specified in the order and in a Co-Treat model with the related services to enable access to the services: a) 1,380 hours of intensive individualized ABA with 276 hours of BCBA Supervision and 138 hours of PCAT at a rate of $150 per hour for ABA and $200 per hour for BCBA Supervision and PCAT; b) 100 hours of counseling services by ELS; c) 92 hours of Sensory Based Feeding Therapy at the Rate of $180 per hour; d) 184 hours of Compensatory speech/language services provided Directly to Student and

48 Hours of Indirect AT/Speech Services by a Speech Therapist, provided with ABA CoTreatment, at a rate of $180 per hour for the Speech/Language Services.

e) 138 hours of occupational therapy, provided with ABA Co-Treatment, at the hourly rate of $180 per hour for the OT Service; f) 92 hours of assistive technology instruction to student provided with ABA CoTreatment, at the hourly rate of $180 for Instruction; g) 69 hours of assistive technology parent training at the hourly rate of $180 for the Instruction for the Parent; h) 48 Hours of Indirect Speech Services by an Assistive Technology Provider, at a rate of $180 per hour for the AT Indirect Instruction, it is further. 8). Ordered that the DOE’s implementation unit shall authorize all action and services hereby ordered within fifteen (15) days from receipt of the present order.

Dated: September 20, 2023

Marcel P. Denis, IHO

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.

DOCUMENTS ENTERED INTO THE RECORD

I. IHO Exhibits TITLE DATE Number of Pages Compliance date extensions Multiple 5 pages

DOE EXHIBITS

1. Individualized Education Program 01/26/2023 17 pages DOE

2. Individualized Education Program 04/03/2020 29 pages DOE

3 Prior Written Notice 05/04/2020

4 pages DOE

4. Prior Written Notice & School Location Letter 06/11/2020 6 pages DOE

5. IEP 04//08/2021 27 pages DOE

6. Prior Written Notice 04/26/2021 4 pages DOE

7. IEP 09/20/2021 30 pages DOE

8. Prior Written Notice 09/23/2021 4 pages DOE

9. Progress Report 06/06/2022 4 pages DOE

10. Psychoeducational Evaluation 08/16/2022 6 pages DOE

11 Occupational Therapy Evaluation 08/12/2022

12 pages DOE

12. Speech-Language Evaluation 08/12/2022 4 pages DOE

13. Assistive Tech Evaluation 03/22/2023 13 pages DOE

14. Emails with Parent Various 13 pages DOE

PARENT EXHIBITS

P-A. Demand for Due Process Hearing 01/26/23 14 pages

P-B. IEE Request Letter 01/25/23 3 pages

P-C. Affidavit of Director of SBS 02/24/23 2 pages

P-D. Affidavit of Executive Director of EL 02/25/23 5 pages

P-E. Affidavit of Neuropsychologist 02/27/23 2 pages

P-F. IEP 09/19/20 28 pages

P-G. IEP 09/20/21 28 pages

P-H. IEP 04/08/21 16 pages

P-I. IEP 04/03/20 27 pages

P-J. IEP 10/30/19 18 pages

P-K. Speech/Language Evaluation 06/14/23 40 pages

P-L. Occupational Therapy Evaluation 06/14/23 9 pages

P-M. Sensory Integration Evaluation 06/14/23

P-N. Autism Skills Assessment 05/22/23 8 pages

P-O. Neuropsychological Evaluation 05/18/23 26 pages

P-P. REDACTED Report 09/06/22 3 pages

P-Q. DOE’s Psychoeducational Eval 08/17/22 5 pages

P-R. DOE Speech/Language Evaluation 08/15/22 4 pages

P-S. DOE Elementary School OT Evaluation 08/15/22 12 pages

P-T. DOE Cumulative Record Undated 2 pages

P-U. DOE Final Report Card 2021-2022 Undated 2 pages

P-V. DOE Student Progress Report 06/22/22 4 pages

P-W. DOE AT Training Log 02/11/22 6 pages

P-X. DOE Assistive Technology Evaluation 06/07/22 6 pages

P-Y. DOE Final Report Card 2020-2021 Undated 2 pages

P-Z. Annual Progress Report 03/02/20 13 pages

P-AA. Preschool Teacher I & C Observation 02/24/20 3 pages

P-BB. Occupational Therapy Evaluation 09/05/19 3 pages

P-CC. Speech and Language Evaluation 08/25/19 8 pages

P-DD. Observation 08/02/19 1 page

P-EE. Psychoeducational Evaluation 08/02/19 6 pages

P-FF. DOE Special Education Recovery Services 05/09/22 3 pages

P-GG. Resume of REDACTED Undated 3 pages

P-HH. Resume of REDACTED Undated 2 pages

P-II. Curriculum Vitae of REDACTED Undated 2 pages

P-JJ. Resume of REDACTED Undated 4 pages

P-KK. Compensatory Service Plan 06/14/23 25 pages

P-LL. Affidavit of REDACTED 06/14/23 7 pages

P-MM. Affidavit of REDCATED 06/12/23 7 pages

P-NN. Affidavit of REDACTED 06/13/23 12 pages

P-OO. Affidavit of REDACTED 06/23/23 6 pages

P-PP. Affidavit of Parent Undated 7 pages

Footnotes

[1] The emails submitted as DOE’s exhibit 14 were redacted without the District providing a basis for the redaction, attorney-client privilege or work-product as instructed (Tr. 43-44). Upon reviewing the emails, I concluded that they are not privilege communications and should not have been redacted. The emails were simply forwarded to DOE’s counsel. None of the emails contained language to suggest that the sender was seeking legal advice from counsel, nor did they contain language suggesting the sender or receiver was being instructed to perform certain tasks in anticipation of litigation. Therefore, I conclude that the emails are not privilege communications and should not have been redacted. Consequently, they are omitted and are afforded no weight.

[2] Due Process Complaint, Petitioner.

[3] Id.

[4] Id.

[5] Id.