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CASE NUMBER: 596236 NYC: 245822
FINDINGS OF FACT AND DECISION
Student's Name: [REDACTED]
Date of Birth: REDACTED
District: [REDACTED]
Hearing Requested By: Parent
Date of Hearing: 03/23/2023
03/30/2023
04/24/2023 Status Conference
05/22/2023 Status Conference
06/16/2023
07/21/2023
Actual Record Close Date: 07/24/2023
Decision Date: 07/24/2023
Hearing Officer: Daniel Ajello Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/23/2023
(All Parties Appeared Via Teleconference)
For the Student:
[REDACTED], Attorney
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/30/2023
Parties appeared via phone and/or teleconference
For the Student:
[REDACTED], Attorney
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/24/2023
Parties appeared via phone and/or teleconference
For the Student:
[REDACTED], Attorney
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/22/2023
Parties appeared via phone and/or teleconference
For the Student:
[REDACTED], Attorney
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/16/2023
Parties appeared via phone and/or teleconference
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/21/2023
Parties appeared via phone and/or teleconference
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Attorney
DOCUMENTATION ENTERED INTO THE RECORD PARENT
PARENT
ENTERED 03/23/2023
Ex Document Date Page(s) A Parent’s Impartial Hearing Request/ 02/10/2023 7
Due Process Complaint (DPC)
ENTERED 03/30/2023
B Individualized Education Program (IEP) 04/23/21 21 C Individualized Education Program (IEP) 03/30/22 30 D Individualized Education Program (IEP) 12/20/22 25 E DOE Psychoeducational 12/06/22 6 F DOE Social History 11/14/22 3 G Rate Sheets 01/01/22 3 Entered 07/21/2023 H Independent Assistive Technology Evaluation 07/09/23 7 I Independent Occupational Therapy (OT) Evaluation 06/17/23 22 J Independent Speech Language Therapy (SL)
Evaluation 07/09/23 14 K Independent Physical Therapy (PT) Evaluation 07/09/23 15 L Independent Applied Behavior Analysis (ABA)
Evaluation 04/20/23 21 M Independent Neuropsychological Evaluation 07/14/23 27
DEPARTMENT OF EDUCATION NONE
IMPARTIAL HEARING OFFICER
ENTERED 03/23/2023
I Notice of IHO Appointment, 02/10/2023, 4 pages Entered 04/24/2023 II Interim Order, 03/30/2023, 13 pages
INTRODUCTION
On 02/10/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.
Hearing commenced on 03/23/2023, to allow the DOE an opportunity to defend against the allegations contained in the DPC. (Ex A) The DOE did not appear.
Hearing continued, on 03/30/2023, to consider the Parent’s request for Independent Educational Evaluations (IEEs). The DOE did not appear.
Hearing resulted in Interim Order, which included:
1. The DOE failed to respond to the Parent request for Independent Educational Evaluations, in a timely manner.
2. The DOE shall immediately authorize and fund Independent Educational Evaluations as detailed below, via currently located provider(s) or similarly qualified provider chosen by the Parent:
• A neuropsychological evaluation to be conducted by a New York State licensed psychologist at [REDACTED], at a rate not to exceed $[REDACTED]; • A speech language therapy (SLT) evaluation to be conducted by a New York State licensed speech therapist at [REDACTED] Speech Services, at a rate of up to $[REDACTED]; • An assistive technology evaluation to be conducted by a New York State licensed speech therapist at [REDACTED] Speech Services, at a rate of up to $[REDACTED]; • An occupational therapy (OT) evaluation to be conducted by a New York State licensed occupational therapist at [REDACTED] Speech Services, at a rate of up to $[REDACTED]; • A physical therapy (PT) evaluation to be conducted by a New York State licensed occupational therapist at [REDACTED] Speech Services, at a rate of up to $[REDACTED]; • An Applied Behavior Analysis (ABA) Skills Assessment, to be conducted by a New York State Licensed Behavior Analyst or Board Certified Behavior Analyst at [REDACTED] at a rate of up to $[REDACTED]. (IHO Ex II 13) Status Conferences were held, on 04/24/2023, and 05/22/2023, at which time Parent Attorney advised that the IEEs were progressing. (T 25-26 & 31-32) Hearing was held, on 06/16/2023, and Parent Attorney advised that the evaluations were not yet all completed. Evaluations were expected to be received soon, and Hearing date, of 07/21/2023, was scheduled. Appended to the record are lists of persons in attendance and the documents received in evidence.
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.
THE POSITION OF EACH PARTY
The DOE did not defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 21-22, 22-23 and 23-24 school years.
At Hearing, the Parent supported its position via Documentary Evidence and Oral Testimony. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below.
Parent argues for relief that includes Compensatory Services, a Student evaluation, and a change in Student placement and program, as recommended in recent evaluations, considered below. This includes:
- 138 hours of OT (Ex I 21, Ex M 15); - 207 hours of SLT (Ex J 12, Ex M 15); - 23 hours of PT (Ex K 13); - 3,680 hours of ABA (Ex L 20-21 & Ex M 15); - 184 hours of Parent Counseling and Training (PCAT) (Ex L 20-21, Ex M 15); - 184 hours of Counseling (Ex M 15); - A Feeding Evaluation (Ex J 12); - Development of a Sensory Diet (Ex I 20); and - A Student program that includes recommended services and supports, such as: ABA services, at home and at school. (Ex M 13-14)
The DOE offered no evidence to contest the appropriateness of the sought after relief, though it believes, without presentation of any evidence, the amount of sought after hours are excessive.
Documents consistently include mention of the Student’s Autism diagnosis and its impact upon the Student’s education. (Ex B 2, 6 & 19, C 1-2 & 6, D 1, 3, 6 & 24, F 1, H 1, I 1 & 19, J 1 & 11, K 12, L 1-2, 6 & 18-19 and M 1-3 & 12)
A Parent’s Impartial Hearing Request/DPC 02/10/2023
Parent sets forth Student’s educational history, and allegations of a denial of FAPE for the 21-22, 22-23, and 23-24 school years. (Ex A 1-3)
Parent notes that Student was held back in Kindergarten (22-23 school year), and did not appear to be making progress. (Ex A 2)
Parent requested Student evaluation on 11/01/2022. (Ex A 2)
The DOE conducted a social history update. (Ex A 3)
The DOE acknowledged the Student had not received mandated related services. (Ex A 3)
Parent: “disagrees with the evaluation conducted by the District. Although the District is on notice about the fact that [Student] struggles in various areas, they conducted no testing as to his occupational therapy needs, physical therapy needs, speech therapy needs, sensory needs, assistive technology needs, or behavioral needs. Accordingly, the Parent requests an independent educational evaluation in all areas of suspected disability and by specific providers as outlined in the below Relief section.” (Ex A 3)
Parent seeks relief that includes IEEs that include:
• A neuropsychological evaluation to be conducted by a New York State licensed psychologist at [REDACTED], at a rate not to exceed $6,000; • A speech language therapy evaluation to be conducted by a New York State licensed speech therapist at [REDACTED] Speech Services, at a rate of $[REDACTED]; Hearing Officer‘s Interim Order • An assistive technology evaluation to be conducted by a New York State licensed speech therapist at [REDACTED] Speech Services, at a rate of $[REDACTED]; • An occupational therapy evaluation to be conducted by a New York State licensed occupational therapist at [REDACTED] Speech Services, at a rate of $[REDACTED]; • A physical therapy evaluation to be conducted by a New York State licensed occupational therapist at [REDACTED] Speech Services, at a rate of $[REDACTED]; • An Applied Behavior Analysis (ABA) Skills Assessment, to be conducted by a New York State Licensed Behavior Analyst or Board Certified Behavior Analyst at [REDACTED] at a rate of $[REDACTED]; (Ex A 5)
Parent also seeks a Functional Behavior Assessment (FBA), to be conducted by a provider at a rate not to exceed $4,125, and, if deemed necessary by the FBA, and an Behavior Intervention Plan to be developed by [REDACTED] at a rate not to exceed
$[REDACTED]. (Ex A 5-6)
Discussions, at Hearing of 03/30/2023, resulted in holding off on this evaluation while the others are completed. It is expected that this requested relief will be considered at a later date.
Interim Order awarding a variety of IEEs was issued, on 03/30/2023. (IHO Ex II)
B Individualized Education Program (IEP) 04/23/21
Student classified: Autism. (Ex B 1)
Includes concerns related to Physical Therapy (PT), Speech Language Therapy (SLT)(Expressive and Receptive Language), and Occupational Therapy (OT). (Ex B 1-3)
Recommends Special Class 12:1+1, Occupational Therapy (OT), Parent Counseling and Training (PCAT), Physical Therapy (PT), Speech Language Therapy (SLT) (Ex B 16), and a toileting Paraprofessional. (Ex B 17)
Recommends a ten month program. (Ex B 17)
Student Instructional and Functional Levels are set as: Reading Pre-Kindergarten and Math Pre-Kindergarten. (Ex B 20)
C Individualized Education Program (IEP) 03/30/22
Student classified: Autism. (Ex C 1)
IEP includes:
- concerns related to Academics, following periods of extended absence Student is less focused and easily distracted and requires more support (Ex C 2), communication (Ex C 3), SLT (Ex C 4), PT and OT (Ex C 6-8); - management needs include “a modified curriculum. He requires a structured classroom environment with small group instruction and 1:1 support that can provide, 1:1 instruction support, repetition of lessons, re-stating and rewording of directions, breakdown of directions into smaller steps, Modeling, visuals, scaffold, pacing, and extended time with breaks” (Ex C 8) - Recommends Special Class 12:1+1, OT, PT and SLT (Ex C 22-23); and a toileting Paraprofessional. (Ex C 23) - Recommends a twelve month program. (Ex C 23) - Student Instructional and Functional Levels are set as: Reading PreKindergarten and Math Pre-Kindergarten. (Ex C 27)
D Individualized Education Program (IEP) 12/20/22
Student classified: Autism. (Ex D 1)
IEP includes:
- concerns related to Academics (Ex D 1-2), PT (Ex D 6); - management needs include model behaviors (Ex D 6), and “significant delays in the areas of learning, socialization, language processing and communication which impact on his involvement and progress in the general ed curriculum; therefore, he requires a specialized 12-month program which will provide direct support and continuation to prevent regression.” (Ex D 7); - Recommends Special Class 12:1+1, Counseling, OT, PCAT, PT and SLT (Ex D 16-17); and a toileting Paraprofessional. (Ex D 18); - Recommends a twelve month program. (Ex D 18); - Student Instructional and Functional Levels are set as: Reading PreKindergarten and Math Pre-Kindergarten. (Ex D 22)
E DOE Psychoeducational 12/06/22
Confirms Student need for special education services, noting delays in areas of academics, language, memory, reading, math and written language. (Ex E 1-3)
Various Student supports are recommended, such as presenting new material in a small-group setting, and suggestions for Parents to implement at home (Ex E 7)
F DOE Social History 11/14/22
With re-evaluation underway, the document includes Parent concerns relating to Student academics, stimming, socialization, and physical abilities. (Ex F 1-3)
G Rate Sheets 01/01/22
Details costs of services provided by the Agency.
H Independent Assistive Technology Evaluation 07/09/23
Report reviews Student testing and concludes the Student not be recommended to supplemental assistive technology support. (Ex H 6-7)
Evaluation Summary includes that given Student’s age: “…and current level of function, it is imperative that he receive foundational instruction to address his pre-literacy skills, including decoding, letter-sound recognition, and print awareness, as well as reading comprehension, and to not be stifled by the integration of technology that may detract from the efficacy of more traditional intervention. [Student] should be offered the opportunity to access literature through his iPad in the aforementioned applications. Additionally, [Student] should continue to receive foundational instruction to target his writing skills, including letter formation, copying words, writing words, writing his name, etc. In terms of expressive communication, [Student] should continue to receive speech and language therapy to target expressive communication with goals for expanding his language use, in addition to other relevant goals as well.” (Ex H 7)
Evaluation does call for foundational instruction via multisensory reading and writing instruction. (Ex H 7)
I Independent Occupational Therapy (OT) Evaluation 06/17/23
Evaluation details results of Student testing, detailing areas of delay. (Ex I 1-9)
Delays include areas of Social Emotional Responses, Sensory Processing, Executive Functioning and Behavior Regulation. (Ex I 10-19)
Evaluation sets forth a variety of goals. (Ex I 21-22)
Recommendations include:
- 3, thirty minute, OT sessions weekly, on a 12 month basis; and - A Sensory Diet. (Ex I 20) Evaluator also recommends Compensatory Services: “I recommend compensatory occupational therapy services in the form of a bank of 138 occupational therapy hours (approximately 1 hour per week for 3 years at 46 weeks per year). This calculation was based on a qualitative approach considering what [REDACTED] will need to minimize the gaps that are present as his current mandate did not appropriately meet his needs. He has not been consistently receiving occupational therapy services, leaving [REDACTED] at a loss for gaining the skills needed and causing severe delays. Providing these services will allow [REDACTED] to have the opportunity to address his needs in a more consistent manner. It is recommended that these hours shall not expire, to allow access to them over time.” (Ex I 21) J Independent Speech Language Therapy (SL) Evaluation 07/09/23
Evaluation details results of Student testing, areas of delay. (Ex J 1-11); and sets forth goals to address Student delays. (Ex J 13-14)
Evaluator concludes: “Results from the speech and language assessments indicate that [REDACTED] presents with significant delays in all areas of speech and language, and his yielded age equivalents fall below his chronological age. These deficits are compromising his academic success and put him at risk for continued delayed language functioning.” (Ex J 11)
Recommendations include:
- Individual speech-language therapy – provided 3x/week individually for 30 minutes per session, and 1x/week in a group of 2 for 45 minutes per session; - Compensatory services in the bank of 207 speech and language hours (providing him with approximately 2.25 hours a week for 46 weeks, for approximately 2 years). The hours would give Student consistent access to therapeutic intervention that will address his deficits. Providing these services will allow Student to have the opportunity to address his specific needs in a consistent manner. Student needs intensive therapy to establish the foundational language skills he is lacking.
This recommended amount was derived from a qualitative clinical approach, considering Student’s current needs and the time he will need to “catch up” to make him whole. These hours are recommended in addition to his provision of service to help expedite minimizing the gaps that are present. Unfortunately, without a robust clinical program, the gaps will continue to widen. It is recommended that these should not have an expiration date, to allow access to them over time; and - A Feeding Evaluation to assess Student’s feeding skills and any oral motor and/or sensory deficits which may be contributing toward Student’s inability to accept a variety of foods. Due to his significantly limited diet, a feeding and swallowing evaluation to be administered by a speech-language pathologist that is trained in both sensory feeding as well as oral motor feeding skills to determine if picky eating is due to muscular or physical limitations or sensory aversions and to determine if oral motor therapy or sensory feeding are appropriate. (Ex J 12)
K Independent Physical Therapy (PT) Evaluation 07/09/23
Evaluation details results of Student testing, areas of delay. (Ex K 1-12); and sets forth goals to address Student delays. (Ex K 14-15)
Recommendation is made for Student services that include:
- Physical Therapy services 2x30 minutes weekly, with 1x30 minutes being on a 1:1 basis and 1x30 minutes weekly in a group: o Individual sessions should address core muscle strengthening, balance, coordination, endurance, running and ball skills; o Group sessions should be in a group of 2 in order to help him to learn and understand the social aspects of movement and sports, teach meaningfulness of play as well as to build endurance for sustained activities with peers; o When possible, sessions should be push-in to adaptive physical education or other movement based classes in order to minimize the impact on academics; and o These services should occur over a 12 month period in order to minimize regression that could occur over prolonged breaks. (Ex K 13) Compensatory services are recommended: - Compensatory physical therapy services in the form of a bank of 23 physical therapy hours (providing 30 minutes a week for 46 weeks, for approximately 1 year). These hours will ensure that Student has consistent access to therapeutic intervention to address gross motor deficits, improve safety awareness and improve impulse control when moving throughout his environment. Providing these services will allow Student to address his specific needs in a consistent manner without a break in service; - This recommended amount was derived from a qualitative clinical approach, recognizing Student’s current needs, minimizing the gaps that are present in his gross motor abilities. It is recommended that these hours not have an expiry date, to allow access over time if needed. (Ex K 13-14)
L Independent Applied Behavior Analysis (ABA) Evaluation 04/20/23
Evaluation details Student educational history, results of Student testing, and areas of delay. (Ex L 1-18)
Evaluator summarizes the results: Student’s “overall adaptive behavior can be characterized as extremely low functioning compared to that of almost all children his age. [REDACTED]’s functioning across all three domains: Conceptual, Social and Practical is uniformly extremely low, and there were no significant differences found within the abilities that make up each domain. Future intervention should target all three domains.” (Ex L 18)
Recommendations include:
- Full-time enrollment in a data-driven program that adheres to all of the dimensions of ABA (Ex L 18); - Predominantly one-to-one instructional format in combination with a Dyad instructional format with 1:1 supports wherever possible; - Ongoing program oversight by a team of trained and experienced behavior analysts; - Educational programming by a team of trained and supervised Instructors; - Ongoing parent training (Ex L 19); and - Specific revisions to the Student’s IEP (Ex L 20).
Recommendation is also made for Compensatory Services:
- Award of compensatory 1:1 ABA services. In order to provide an appropriate remedy for failing to provide FAPE during the 2021-2022 school year and the 2022-2023 school year; - Student should be provided with additional 20 hours per week of 1:1 ABA for the total of 46 weeks per each year (92 weeks total for the two-year period), which is the total of 1840 hours of 1:1 ABA; - Student’s parents did not receive any parent training services related to application of ABA methodology and its principles, the evaluator's professional opinion is that compensatory service must be granted to rectify the situation; - Multiplying the 1 hour per week of parent training by 92 weeks, it is my professional opinion that the appropriate compensatory amount of parent training service for Student should not be less than 92 hours; - The aforementioned recommended essential program components are key to appropriate and effective programming for Student; - In the absence of the aforementioned fundamental program components, it is the evaluator’s determination that Student would most likely not make the educational progress he is capable of making; - The presence of these components will assist in ensuring that meaningful, reliable and lasting changes in Student’s behavior/skill profile will occur. By providing Student with an opportunity to be exposed to the program with these components, it will allow his eventual enrollment in a less restrictive environment; - Additionally, inclusion opportunities could be explored for him once he develops a more solid skill set in a domain of communication, play, social and problem behavior reduction; - Due to the current shortage of LBAs (Licensed Behavior Analyst) in NYS, if a licensed clinician cannot be identified, 1:1 instruction may replace the ABA.
This service should be performed by a BCBA (Board Certified Behavior Analyst) or a special educator with ABA training under the supervision of a NYS LBA. (L 20-21)
M Independent Neuropsychological Evaluation 07/14/23
Evaluation details Student educational history, results of Student testing, and areas of delay. (Ex M 1-11)
Diagnoses include:
- Autism Spectrum Disorder: Social Communication, Level 3, Requiring Very Substantial Support; Repetitive Behavior, Level 3, Requiring Very Substantial Support; With accompanying Intellectual and Language Impairments and - Attention Deficit Hyperactivity Disorder, Inattentive Type (Ex M 12) Student program recommendations include: - An ABA skills assessment (Ex M 13); - ABA therapy, Home-based and in-school ABA support are recommended, specifically 30 hours of school-based and 10 hours of home-based behavior therapy each week, targeting Student’s repetitive behaviors, inattention, and social and communication deficits. It is important that Student’s school and home-based providers communicate regularly and collaborate with one another to ensure that everyone is aligned in their goals and treatment methods, as this will be essential in supporting Student’s overall growth and development; - BCBA supervision is recommended for two hours a week to be provided in the home setting (Ex M 13-14); - Related Services of SLT, OT, PCAT and Counseling (Ex M 13).
Compensatory services are recommended: “Due to the absence of appropriate educational services while attending a DOE program, [Student] requires compensatory education programming that includes:
• 1:1 Applied Behavior Analysis (ABA) - 40 hours per week (30 hours school-based and 10 hours home-based) ○ 1,380 hours school-based and 460 hours home-based per year • BCBA Supervision- 2 hours per week ○ 92 hours per year • Speech Language Therapy (SLT) - 4 hours per week ○ 184 hours per year • Occupational Therapy (OT) - 2 hours per week ○ 92 hours per year • Parent Counseling and Training (PCAT) - 2 hours per week ○ 92 hours per year • Social Skills Training (SST) - 2 hours per week ○ 92 hours per year • Counseling Services - 2 hours per week ○ 92 hours per year (Ex M 15)
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education 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 (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).
Under the IDEA, if procedural violations are 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
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). The statute ensures an "appropriate" education, "not 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 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, 2012 WL 4946429 [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]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
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. Dep't 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]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).
Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).
DOE offer of FAPE for the 21-22, 22-23 & 23-24 School Years The DOE opted not to present a defense to the Parent’s allegations.
The district has presented no witnesses in this matter.
Various District Documents are entered into the Record. (Ex B through F)
The IEP documents (Ex B, C & D) evidence a lack of Student progress throughout several school years. Additionally, no Student provided service is evidenced to have had any positive impact upon the Student’s education. Student began, and remains, at a PreKindergarten level. (Ex B 20, C 27 & D 22)
Although several District documents are entered into the Record, it is well established that an IEP does not on its own, without testimony to explain its appropriateness, establish that a FAPE has been provided. See e.g. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016)
Accordingly, I conclude that the District has not met its burden to establish that it provided a FAPE.
The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 21-22, 22-23 and 23-24 school years.
I find the DOE failed to offer the Student a FAPE for the 21-22, 22-23 & 23-24 school years.
COMPENSATORY SERVICES
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).
The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court 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.”); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).
In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought.10 Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology supports.); Woods v. Northport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) (upholding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”).
If Student is found to be entitled to compensatory education under applicable law; compensatory education is an equitable remedy that arises out of the jurisdiction of 20 U.S.C. § 1415; equitable factors do not bar relief here and no inequitable conduct was established on the part of the parents. N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Dist. of City, No. 07 Cv. 9648 (BSJ), 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) (Reversing the SRO and upholding the award; Court found that it is well established that, in the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim for tuition.); Wolfe v. Taconic Hills Cent. Sch. Dist., 167 21 F.Supp.2d 530 (N.D.N.Y. 2001)( the equities—requires a balancing of both parties’ conduct and interest—not merely the actions of the parent). There are no facts established here that show that the parent failed to cooperate or acted inequitably to interfere with the DOE’s ability provide FAPE.
A FAPE has already been found to have been denied the Student for the 21-22, 22-23 and 23-24 school years.
Evidence reflects a lack of Student progress over several years. There is no evidence of any DOE action attempting to address the continued denial of FAPE.
Notably, the DOE failed to even attend the first three dates of this Hearing.
Parent evidence is uncontested and presents a reasonable basis for award of compensatory services, in light of the DOE failure. Compensatory services are intended to make up for the Student’s educational loss, brought about by the continued DOE failure to offer the Student a FAPE, and includes:
PROGRAM AND PLACEMENT
When determining an appropriate placement on the educational continuum, a CSE should first determine the extent to which the student can be educated with nondisabled peers in a public school setting before considering a more restrictive nonpublic school option (see E.F. v New York City Dept. of Educ., 2013 WL 4495676, at *15 [E.D.N.Y. Aug. 19, 2013] [explaining that "under the law, once [the district] determined that [the public school setting] was the least restrictive environment in which [the student] could be educated, it was not obligated to consider a more restrictive environment, such as [the nonpublic school]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *8 [finding that "[o]nce the CSE determined that [public school setting] would be appropriate for the [s]tudent, it had identified the least restrictive environment that could meet the [s]tudent's needs and did not need to inquire into more restrictive options such as nonpublic programs"]). An IHO Order that the CSE refer the student to the CBST for placement in a nonpublic school, particularly when read in conjunction with his order that the CSE reconvene to consider the results of the various ordered evaluations of the student, would violate the CSE's duty to first determine if the student can be educated in a public school setting, and, as such, is premature (see Cooke Center for Learning and Dev. v. Mills, 19 A.D.3d 834, 836 [3rd Dep't 2005] ["The federal law prefers a 'public' education, where a 'child is educated in the school that he or she would attend if nondisabled,' if possible"]; Matter of Pelose, 66 A.D.3d 1342, 1344 [4th Dep't 2009] ["Indeed, the central purpose of the IDEA …and article 89 of the Education Law is to afford a 'public' education for children with disabilities"]).
Parent Attorney contends, due to the denial of FAPE, for the past several years, the evaluations and documentary evidence support specific relief. Relief sought includes and Order directing a specific Student Program be developed, for the Student. (Ex I 20 & M 13).
As a result of the Parent commencing the Hearing Process (Ex A), a considerable amount of newly acquired evaluative material has accumulated. (Ex I, J, K, L & M)
The lack of DOE activity to address the alleged, and now confirmed, denial of FAPE, has crept into the 23-24 school year.
The most recent insufficient IEP, of 12/20/2022, includes 12 month Student services. (Ex D 18)
It also continues to make the same failing recommendations of the prior two IEPs. (Ex B & C)
Relief in the form of IEP amendments and prospective placement of the student in a nonpublic school is not appropriate in this instance as it would tend to circumvent the statutory process, under which the CSE is the entity tasked with reviewing information about the student's progress under current educational programming and periodically assessing a student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval 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"]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]).
At this point, the 12 month, 2023-2024, school year is underway.
The DOE should already be moving forward with an IEP meeting to review the Student’s recently obtained evaluative materials.
Considering the evaluations were Ordered back on 03/30/2023, and no action by the DOE has ben evidenced, an IEP meeting is Ordered to take place as quickly as possible, considering the several months the DOE has had to prepare and the continued denial of a FAPE to the Student.
A CSE meeting is Ordered below to allow for the DOE to develop an appropriate IEP, and allow the Parent to respond, as soon as reasonably possible.
INDEPENDENT EDUCATIONAL EVALUATIONS
The IDEA provides parents with a number of procedural safeguards. Among them is the "right . . . to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" (34 CFR 300.502[a][1], [3][i]). Parents who express a disagreement with an evaluation conducted by the district also have the right to seek an IEE conducted at public expense in some circumstances (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; see also Lauren W. v. DeFlaminis, 480 F.3d 259, 275 [3d Cir. 2007] [explaining that parents do not have the right to an IEE at public expense where parents actually agreed with the school's evaluation]; Edie F. v. River Falls Sch. Dist., 243 F.3d 329, 335 [7th Cir. 2001] [explaining that parents do not have the right to an IEE at public expense where their disagreement was with the result of the child's IEP not with a particular diagnosis or methodology of evaluation]; M.C. v. Katonah/Lewisboro Union Free Sch. Dist., 2012 WL 834350, at *11–12 [S.D.N.Y. Mar. 5, 2012]; M.V. v. Shenendehowa Cent. Sch. Dist., 2013 WL 936438, at *6 [N.D.N.Y. Mar. 8, 2013]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense that was sought for additional information]).
An IEE must use the same criteria as the public agency's criteria (Seth B. v. Orleans Par. Sch. Bd., 810 F.3d 961, 973–79 [5th Cir. 2016]). Informal guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area (Letter to Baus, 65 IDELR 81 [OSEP 2015]), however recent caselaw clarifies that parents may not demand a comprehensive IEE at public expense while at the same time refusing to consent to the school district's offer to conduct the same assessments (D.S. v. Trumbull Bd. of Educ., 357 F. Supp. 3d 166, 178 [D. Conn. 2019], citing N.D.S. v. Acad. for Sci. & Agric. Charter Sch., 2018 WL 6201725, at *5–*7 [D. Minn. 2018] [explaining that where parents request an IEE to challenge an obsolete evaluation, they are entitled to a due process hearing limited only to whether the evaluation was appropriate at the time it was completed; if parents wish for a publicly funded IEE with respect to their child's current condition, then they must allow the school district to conduct a current reevaluation and then request an IEE if they disagree]).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). In accordance with this burden, the district bears the burden of showing that its evaluation of the student was appropriate in order to prevail in its challenge to the parents' requests for IEEs at public expense
Additionally, an IHO is vested with the authority to direct that a student be evaluated at district expense (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]). IHOs are "granted broad authority in their handling of the hearing process and to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA" (Warren Consolidated Schs., 106 LRP 70659 [LEA MI 2000]).
A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]).
An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).
In the current case a recent evaluation calls for a Feeding Evaluation. (Ex J 12)
The DOE offers no response to the requested evaluation.
In light of the evidence presented, and the obligation of the DOE to evaluate the Student in all areas of suspected disability, I find it appropriate to Order the Student receive a Feeding Evaluation.
I also find it proper to allow the DOE a reasonable amount of time, in light of the proceedings, to conduct the evaluation.
If the DOE does not avail itself of the time to evaluate the Student, then the Parent will be empowered to so, via an independent evaluation, funded by the DOE..
ORDER
1. The Department of Education (DOE) failed to offer the Student a FAPE for the 21-22, 22-23 and 23-24 school years.
2. The DOE shall fund compensatory services for the Student, to be utilized by 12/31/2025. Rate to be paid at reasonable market rate, via Parent chosen provider(s):
- Occupational Therapy (OT) services in the form 138 hours; - Speech and Language Therapy (SLT) services in the form of 207 hours; - Physical Therapy (PT) services in the form of 23 hours; - Counseling services in the form of 184 hours; and - Applied Behavior Analysis (ABA) services in the form of:
o 3,680 hours of 1:1 ABA services, to be utilized at home and/or at school o 184 hours of BCBA Supervision.
3. The DOE shall conduct a Feeding Evaluation, of the Student, by 08/31/2023. If the DOE fails to complete said Evaluation, then the DOE shall directly fund an Independent
Feeding Evaluation, via Parent chosen evaluator, at reasonable market rate.
4. The DOE shall convene a Committee on Special Education (CSE), conduct, and deliver a Student Individualized Education Program (IEP), by 08/31/2023.
5. The DOE shall provide Parent with any documents or forms necessary to facilitate service(s), evaluation, and payment under this Order, by 08/07/2023.
6. This decision is subject to appeal and review by the State Review Officer.
DATED: July 24, 2023
DANIEL AJELLO
DANIEL AJELLO
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.
Footnotes
[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 - 138 hours of OT (Ex I 21, Ex M 15); - 207 hours of SLT (Ex J 12, Ex M 15); - 23 hours of PT (Ex K 13); - 3,680 hours of ABA (Ex L 20-21 & Ex M 15); - 184 hours of PCAT (Ex L 20-21, Ex M 15); and - 184 hours of Counseling (Ex M 15).