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FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED
Date of Birth: REDACTED
Home District: REDACTED
Hearing Requested by: Parent
Record Close Date: August 2, 2023
Decision Date: August 2, 2023
Hearing Officer: Eryn DeFontes, Esq.
Time Sensitive: Yes
NAMES AND TITLES OF PERSONS WHO APPEARED AT HEARING
For the Student:
Parent’s Attorney/Representative
Clinical neuropsychologist (“neuropsychologist”)
Board Certified Behavior Analyst (“BCBA”)
Occupational Therapist (“OT”)
Executive Director of Service Provider Agency (“Provider Director”)
For the Parents:
For the Department of Education:
(“District” or “DOE”)
DOE Representative
PROCEDURAL HISTORY
On March 3, 2023, a due process complaint (“DPC”) was filed against the New York City DOE by the Parent under Case No. 246415, pursuant to the Individuals with Disabilities Education Act (“IDEA”) (20 U.S.C. Section 1415(f)) and Section 4404(1) of the New York State Education Law. 1 The undersigned Impartial Hearing Officer (“IHO”) was appointed on March 7, 2023. A pre-hearing conference was held on April 4, 2023, where Parent requested interim relief in the form of an independent autism skills assessment (“ASA”). 2 As the DOE objected to such relief, the undersigned presided over a limited hearing on the matter and thereby issued an Interim Order on May 11, 2023.[3] The parties appeared virtually for a merits hearing was held on June 29, 2023. The DOE did not present a case.[4] A list of the documentary evidence in this proceeding is appended to this Order.
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[5] and its implementing regulations,[6] and the New York State Education Law, and its implementing regulations. [7]
BACKGROUND AND POSITIONS OF THE PARTIES
The Student is a REDACTED-year-old child who is classified by the DOE’s Committee on Special Education (“CSE”) as a child with a disability.[8] The Parent alleges that the DOE denied the Student a free appropriate public education (“FAPE”) for each of the 2020-2021, 2021-2022 and 2022-2023 school years.[9] The DOE failed to put forth a case, defend FAPE, or proffer exhibits, despite its burden to do so.[10] The Parent presented a case consisting of exhibits 1 P-A. 2 IHO i. A through AA, which were admitted into evidence with no objection from the DOE.[11] In addition the testimony of the Neuropsychologist, BCBA, OT, Provider Director and the Parent. The DOE Representative cross-examined the witnesses.
LEGAL STANDARDS AND FRAMEWORK
In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017). Both the IDEA and the Education Law provide that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive IEP. 20 U.S.C. §§ 1401(9), (29).
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).
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. [12]
As this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.
FINDINGS OF FACT AND DECISION
In this case, the DOE did sustain its burden of proof.[13] Consequently, the Parent is entitled to a presumption as to the truth of the asserted facts underlying claims that are contained in the documentary evidence and testimony, to the extent those facts are credible and are not contradicted by the hearing record. Notwithstanding DOE’s failure to sustain its burden, the hearing record establishes that the DOE both procedurally and substantively denied the Student a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years through its failure to provide the Student with specialized education and related services designed to meet the Student’s unique needs, provided in conformity with comprehensive IEPs; failure to properly evaluate the student; and preventing the Parent from meaningful participation in the development of the Student’s special education programs. [14]
Pursuant to a February 2023 IEP, student is classification is noted as “Other Health Impairment” with the following recommendations 12:1+1 classroom setting and receives the following related services: Individual Occupational Therapy 2 x per week/30 min., Individual Speech-Language Therapy 2 x per week/30 min., Group Speech-Language Therapy 1 x per week/30 min., and a full-time paraprofessional (para) for global developmental delays and toileting.[15] An ASA and Neuropsychological were performed wherein the Student was diagnosed with autism spectrum disorder “with accompanying language impairment (DSM-5: 299.00)”. [16] The neuropsychologist conducting the evaluations further observed the Student to present “criteria for a diagnosis of attention-deficit/hyperactivity disorder (ADHD), combined presentation (DSM-5: 314.01)…marked learning deficits across domains, aligned with diagnoses of a specific learning disorder with impairment in reading (DSM-5: 315.00), specific learning disorder with impairment in written expression (DSM-5: 315.2), and specific learning disorder with impairment in mathematics (DSM-5: 315.1).”[17] The ASA recommends, inter alia, “a highly structured, specialized, full-day [applied behavior analysis] (“ABA”) program... in a Non-Public School [NPS] setting. [Student]is not making consistent academic progress as a result of the maladaptive behaviors that he engages in frequently throughout the day, which interferes with his ability to learn and access the curriculum.” [18]
The recommendations referenced from the hearing record will be considered in the succeeding relief section.
Requested Relief
The relief request by the Parent is equitable in nature, as they are requesting that the IHO devise an appropriate remedy to address the DOE’s failure to provide the Student with a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years.[19] The Parent in this matter requests inter alia, that the DOE fund and/or reimburse the following independent evaluations: a Neuropsychological evaluation, a functional behavior assessment (“FBA”) and behavior intervention plan (“BIP”) conducted by a BCBA, Speech/Language therapy (“SLT”) and Occupational therapy (“OT”) evaluations, and an Assistive Technology (“AT”) evaluation. 20
An IEE is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 NYCRR § 200.1(z). The IDEA and State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation.[20] U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted).
The evidence, in the form of an IEE request letter, demonstrates that the Parent communicated their disagreement to the DOE regarding evaluations and/or lack thereof.[21] The hearing record further documents the ways in which the evaluations conducted by the DOE were insufficient.[22] The DOE failed to present any evidence to the contrary, failed to defend its evaluations, failed to prove that Student should not have been assessed in these areas of suspected disability at the time that it conducted its reevaluation of Student, and failed to propose an alternative compensation plan.
Based upon the foregoing, the evidence establishes that the Student is entitled to funding and/or reimbursement for the aforementioned independent evaluations, which shall be conducted by qualified providers of the Parent’s choosing, at rates set forth in the Order section of this decision.
The Parent further requests 12-month (“ESY”) placement in a NPS specializing in ABA programming, interim and compensatory services, BCBA supervision, and parent counseling and training (“PCAT”).[23] The BCBA and neuropsychologist credibly testified regarding the Student’s need for “data driven ABA instruction throughout the day as part of a full-time, 12-month special education program”,[24] in addition to both in-school and home-based ABA support and BCBA supervision to immediately address the Student’s maladaptive behaviors.[25] The BCBA maintained that “home-based” ABA is a necessary service to ensure that [the Student] does not regress at school if behaviors are not remediated in all environments” and the Student is “unlikely to receive educational benefit from school in the absence of an at-home ABA program, as ABA is very methodical and mut be applied and reinforced to prevent regression and reinforcement of maladaptive behaviors.” [26]
Finally, the neuropsychologist summarized the Student’s need for an appropriate program and placement:
[The Student] requires immediate implementation of 1:1 direct, data-driven ABA instruction and support throughout the school day as part of a full-time, 12-month special education program in order to engage appropriately in a classroom setting and to be available for learning. This mode of instruction is essential to his basic educational progress, including his access to instruction and functioning in the school setting.
In addition to functional academic skills and communication, his programming should target behavior, including social interaction and reciprocity. He requires a highly structured classroom with behavioral supports that can address his complicated language, behavioral, and social needs. He must be placed with peers without significant behavioral and emotional issues. Until a nonpublic school can be located, the full-time ABA should be pushed into the public school setting immediately along with BCBA supervision. [27]
The DOE presented no evidence to the contrary. Based upon the foregoing, the hearing record supports an Order granting Parent’s requested relief.
Compensatory Relief
The Parent seeks compensatory relief so as to remedy multiple years of FAPE denial. [28] Compensatory relief encompasses “discretionary, prospective, injunctive relief crafted by a court [and/or hearing officer] to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student". [29]
Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies”.[30] Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate”, and “hearing officers may award ‘educational services…to be provided prospectively to compensate for a past deficient program’”.[31] Furthermore, “if IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves”.[32] Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place”. [33]
In this case, Parent’s witnesses’ detailed and individualized remedial proposals for the Student are credible and convincing and based upon a comprehensive review of the Student’s assessments, interviews and evaluations.[34] Witnesses’ testimony and reports address instances where the Student’s IEPs fell short, thereby linking the remedial services proposed to the deprivations experienced. [35]
Furthermore, the burden of proof lies with the school district during an impartial hearing, (Educ. Law § 4404[1][c]; see also, M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]) (holding that “it is not persuasive for the district to simply fault the parent's request for relief without also explaining its own view on what type of compensatory education relief would be the student's least restrictive environment]”. [36]
The DOE did not specifically refute or contest any witness recommendations, nor did the DOE offer insight or alternate proposals to remedy the multiple denials of FAPE. Rather, the DOE Representative merely asserted the following position at the close of the hearing, which the undersigned finds unavailing: “the student does not have the type of [] significant academic and cognitive delays that might warrant the amount of evaluations and services requested…as such, we would just object to some, if not all of those evaluations…we…request the reimbursement at market rate, or lower…” [37]
Accordingly the credible evidence establishes that the Student is entitled to both prospective and compensatory education and services in the amount, duration and rates recommended by Parent’s witnesses, which the undersigned finds reasonable and credible, in order to place the Student in a position they would have been but for the denial of FAPE. [38]
Attorney’s Fees
Parent included a notice of claim for attorneys’ fees in their due process complaint.[39] The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006).
Therefore, the undersigned would be exceeding the permissible scope of authority by determining that Parent is the prevailing party entitled to costs. To the extent that Parent seeks reimbursement and/or payment of attorneys’ fees and costs from the undersigned, such request is denied.
CONCLUSION
The DOE denied the Student a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years.
The undersigned further finds that in the absence of any contradictory evidence from the DOE, the rates to be charged for the respective services detailed in the Compensatory Services Plan and affidavits are reasonable and commensurate with prevailing market rates. [40]
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that the CSE team shall convene within fifteen (15) days of all evaluations referenced in the hearing record, including the independent evaluations referenced in #7 and #8 of this Order, to review the results therein and create an appropriate IEP that includes at a minimum:
a. Specific, meaningful, and measurable goals tailored to the Student and based upon the Student’s current academic and functional levels, b. A twelve-month program, c. 10 hours per week of home-based ABA, d. 8 hours per month of BCBA supervision;
e. PCAT 4 times per month,
2. IT IS FURTHER ORDERED that the DOE shall defer the Student’s placement to the CBST for placement in an appropriate NPS specializing in full-day ABA programming for children with a diagnosis of Autism Spectrum Disorder;
3. IT IS FURTHER ORDERED that until Student begins attending the above-referenced NPS, the DOE shall provide an interim program consisting of 30 hours per week of push-in ABA services into Student’s current school program, as well as 2 hours per week of BCBA supervision;
4. IT IS FURTHER ORDERED that the DOE shall fund a bank of compensatory services for the Student, which may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations, by qualified providers of the Parents’ own choosing at the providers’ customary and regular rates limited to the amounts set out in this Order:
i. 1,380 hours of ABA to be conducted by a NYS certified provider a rate not to exceed $150 per hour, ii. 276 hours of BCBA supervision to be conducted by a NYS certified provider a rate not to exceed $200 per hour, iii. 138 hours of PT to be conducted by a NYS certified provider at reasonable market rate, iv. 138 hours of SLT, to be conducted by a NYS certified provider at reasonable market rate,
v. 138 hours of OT, to be conducted by a NYS certified provider at reasonable market rate, vi. 46 hours of AT instruction, to be conducted by a qualified provider at reasonable market rate, vii. 46 hours of AT instruction for the Parent, to be conducted by a qualified provider at reasonable market rate;
5. IT IS FURTHER ORDERED that the DOE shall authorize any Ordered services, instructions, or payments within fifteen (15) days of invoice submission to the DOE;
6. IT IS FURTHER ORDERED that the bank of compensatory services set out in #4 of this Order shall not expire until the expiration of three (3) years from the date of this Order;
7. ORDERED that within fifteen (15) days of this Order, the DOE shall fund independent education evaluations, to be conducted by qualified providers of the Parent’s choosing, at providers’ customary and regular rates and/or limited to the amounts set out in this Order:
a. An FBA and BIP to be conducted by a NYS certified BCBA of the Parent’s choosing, paid at reasonable market rates consistent with rates that have been paid by the DOE’s impartial hearing office’s Implementation Unit for comparable FBAs and BIPs within the six-month period prior to the date of this Order, b. A SLT evaluation to be conducted by a NYS certified provider of the Parent’s choosing, paid at a rate of $1,450,
c. An OT Evaluation, to be conducted by a NYS certified provider of the Parent’s choosing, paid at a rate of $1,450, d. An AT evaluation to be conducted by a NYS certified provider of the Parent’s choosing, paid at a rate of $2,000;
8. IT IS FURTHER ORDERED that within fifteen (15) days of invoice submission the DOE shall fund the cost of the independent Neuropsychological Evaluation (exhibit P-O) obtained by the Parent from REDACTED in the amount of $7,500, minus any payment made by Parent;
9. IT IS FURTHER ORDERED that within fifteen (15) days of submission of proof of payment, the DOE shall reimburse the Parent for any payments made towards the cost of the independent Neuropsychological Evaluation referenced in #8 of this Order;
10. IT IS FURTHER ORDERED, that to the extent not already provided, within forty-five (45) days of the date of this decision, the DOE shall provide to the Parent the following special education records dating from the beginning of the 2021-2022 through the 2022-2023 school year: IEPs, IEP meeting notes, due process notices, including prior written notices and procedural safeguard notices, assessments, and other evaluation materials used to assess the Student;
11. IT IS FURTHER ORDERED that the DOE’s implementation unit shall authorize all services hereby ordered within fifteen (15) days.
SO ORDERED.
Dated: August 2, 2023 Eryn DeFontes
Eryn DeFontes, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of their decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov
DOCUMENTS ENTERED INTO THE RECORD
DOE EXHIBITS
None
PARENT’S EXHIBITS
A. Exhibit Number Number Exhibit Date of Pages Demand for Due Process Hearing 03/03/23 15 pages
B. IEE Request Letter 02/17/23
3 pages
C. Affidavit of Director of REDACTED Services INDIVIDUALIZED EDUCATION PROGRAM 03/31/23
2 pages
D. IEP 02/16/23 23 pages
E. IEP 02/17/22 30 pages
F. IEP 05/28/21 19 pages
EVALUATIONS, ASSESSMENTS, AND PROGRESS REPORTS
G Compensatory Service Plan 06/20/23
24
H Autism Skills Assessment 06/20/23
8
I NYC DOE Functional Behavior Assessment No Clear Date 6
J NYC DOE Speech/Language Evaluation 05/05/23
10
K. NYC DOE Elementary School Occupational Therapy 05/03/23 (12 pages)
Evaluation of Function and Participation L NYC DOE Assistive Technology Evaluation 04/27/23 11 M NYC DOE Psychical Therapy School Function Evaluation04/20/23 7 N IEP Progress Report 03/27/23 10 O Neuropsychological Evaluation 02/27/23 17 P NYC DOE Psychoeducational Evaluation 09/12/22 11
COMMUNICATION WITH DISTRICT
Q. NYC DOE Prior Written Notice 02/17/23 (9 pages)
ADDITIONAL DOCUMENTS
R. Resume of BCBA Undated 3 pages
S. Resume of DIRECTOR Undated 2 pages
T. Resume of REDACTED Undated 4 pages
U. Curriculum Vitae of Neuropsychologist Undated 9 pages
V. Affidavit of DIRECTOR 06/20/23
7 pages
W. Affidavit of REDACTED 05/25/23
5 pages
X. Affidavit of Neuropsychologist 05/25/23
5 pages
Y. Affidavit of Neuropsychologist on rate for IEE 04/03/23
2 pages
Z. Affidavit of Parent 06/21/23
2 pages
AA. Affidavit of BCBA 06/22/23 11 pages
IHO EXHIBITS
Footnotes
[3] Id. The undersigned issued an Interim Order directing the DOE to fund an independent ASA, to be performed by a BCBA of the Parent’s choosing. This BCBA also testified at the instant hearing.
[4] Tr. 60:20-23.
[5] 20 U.S.C. § 1400 et seq.
[6] 34 C.F.R. § 300 et seq.
[7] Educ. Law Art. 89 § 4404 et seq., 8 NYCRR § Part 200.
[8] P-A-1; IHO iii-1. Student’s classification is not in dispute.
[9] Id.
[10] Tr. 60:17-23; see, NYS Educ. Law § 4404(1)(c).
[11] Tr. 63:1-4.
[12] NYS Educ. Law § 4404(1)(c).
[13] Tr. 60:17-23.
[14] P-G-4-22; P-V; P-W; P-X; P-Y; P-Z-1, 2; P-AA.
[15] P-D-15, 16.
[16] P-H; P-O-1-10.
[17] P-O-10.
[18] P-H-6¶1.
[19] P-A-12-14 (including any further relief deemed “just and proper”).
[20] The undersigned issued Interim Relief in the form of an Order that the DOE fund an Autism Skills Assessment (“ASA”), to be performed by a BCBA of the Parent’s choosing. This BCBA also testified at the instant hearing.20
[21] P-B.
[22] P-G; O; V-X; Z; AA.
[23] P-A-12 (pursuant to referral to the DOE’s central based support team (“CBST”); IHOiii-6, 11
[24] P-O-11¶1.
[25] P-H-6; P-AA (Student engages in “frequent physical and vocal stereotypes which make him very distractable.”) P- AA-9¶34; P-O-11, 12.
[26] P-AA-9¶¶34, 35. PCAT was similarly recommended to train parents on “how to implement the strategies and the behavior change principles in order to decrease reinforcement of problem behaviors”. P-H-7.
[27] P-O-11.
[28] IHO iii-11.
[29] Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 522, 523, 525 (D.C. Cir. 2005) citing G. ex rel. RG v. Fort Bragg Dependent Schs., 343 F.3d 295, 309, 40 IDELR 4 (4th Cir. 2003).
[30] See, Doe v. East Lyme, 790 F.3d at 454.
[31] Reid, 401 F.3d at 516, 522, 525 (emphasis in original).
[32] Id. at 522.
[33] Id. at 518.
[34] P-G; H; O; P; V-AA.
[35] P-G-19-22; P-H-7, 8; P-AA.
[36] SRO 11-091 (citing M.P.G. v. New York City Dep't of Educ.)
[37] Tr. 115:21-25; Tr. 16:1-5.
[38] P-N-10-12.
[39] P-A-14.
[40] P-G-20-22; P-V-AA.