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NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:
For the Student:
1. REDACTED, Esq. for the parent, (hereinafter referred to as “Parent’s attorney”)
For the Department of Education:
1. REDACTED, Esq. appeared on behalf of the DOE, (hereinafter referred to as “District’s Representative”)
Identifying Information Term Used In FOFD and/or Exhibit List
REDACTED Parent
REDACTED Neuropsychologist
REDACTED Board Certified Behavior Analyst (“BCBA”)
NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (OATH)
SPECIAL EDUCATION HEARINGS DIVISION
REDACTED, a Minor, by and through his/her Parent(s),
PETITIONER
against
THE NEW YORK CITY DEPARTMENT OF EDUCATION,
RESPONDENT
Case # 246442
Dr. Oren Varnai, Esq., Impartial Hearing Officer
FINDINGS OF FACT AND DECISION
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq, as well as Section 504 of the Rehabilitation Act.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
II. Background and Procedural History
A. Due Process Complaint Notice
Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 3/3/2023, Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). The parent alleged that the District failed to provide the Student a free appropriate public education (“FAPE”) for the 2020-2021;2021-2022;2022-2023 school years. During the first day of hearing, Parent withdrew the claims for the 2020-2021 school year. [1]
During the school years in which Parent filed the DPC, Student was classified with Autism.
The Due Process Hearing (“DPH”) took place on 5/12/2023. Parent submitted documentary evidence and the affidavit testimonies of Parent, Neuropsychologist, and BCBA. DOE did not submit any documentary evidence and declined[2] to defend its provision of a FAPE to Student.
After the Parties’ respective closing statements, it became apparent (as discussed below) that an additional date was necessary to address the issue of the number of hours Student was entitled to in the form of compensatory relief based on DOE’s effective concession it had denied Student a FAPE for the 2021-2022 and 2022-2023 school years. Over DOE’s objections, IHO ordered an ABA skills assessment pursuant to 8 NYCRR 200.5(g)(2) to have a complete record upon which to issue a decision. Therefore, the proceedings continued on 6/13/2023, but despite IHO’s specific instructions to Parent’s Attorney and the issuance of an IEE for the sole purpose to provide evidence at hearing as to the compensatory hours Student was entitled to, BCBA’s report failed to address compensatory services Student was due. Again, the hearing was adjourned for BCBA to testify, and the final day of hearing took place on 6/26/2023.
III. Findings of Fact and Decision
A. The DOE Deprived Student of a FAPE for the 2021-2022 & 2022-2023, 12-month, School Years
The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed (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.[3] 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.[4] Here, the Parents are not seeking the remedy of tuition reimbursement.[5] Thus, the DOE has the burden of proof on all issues in dispute.
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, [6] 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,[7] and provides for the use of appropriate special education services. 8A free and appropriate public education can be said to be 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.[9] "[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."[10] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." [11]
Although 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,"[12] the Second Circuit explained that not all procedural errors render an IEP legally
8 See 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]. inadequate under the IDEA.[13] Under the IDEA, if procedural violations are alleged, an IHO 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. [14]
An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[15] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"[16] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."[17] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"[18] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"[19] is what is required. School districts are not required to "maximize" the potential of students with disabilities,[20] but are required to provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'"[21]
The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"[22] and designed to be provided in the least restrictive environment (“LRE”).[23] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,[24] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum[25] through the use of appropriate special education services.[26] Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his 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."[27]
Here, the DOE failed to defend its provision of FAPE for the 2021-2022 and 2022-2023 school years and failed to meet its burden at hearing. Therefore, I am constrained to find that the DOE failed to offer the Student FAPE for the 2021-2022 and 2022-2023 school years. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer a FAPE.
B. Independent Educational Evaluation
1. Evaluation/Re-evaluation
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.[28] 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. [29]
A CSE may direct that additional evaluations or assessments be conducted to appropriately assess the student in all areas related to the suspected disabilities.[30] Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. [31]
A district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors;[32] and ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social, and emotional status. [33]
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]
2. IEE
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.[35] If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. [36]
An IEE may be requested by parents.[37] If an IEE at public expense is requested by parents, “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.”[38] A parent is entitled to only one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees. [39]
Upon the receipt of the request for an IEE, a school district must either make the evaluation available at public expense “without unnecessary delay” or must file a due process complaint requesting a hearing to “show that its evaluation is appropriate or that the evaluation obtained by the Parent is inappropriate.” "When an evaluation is conducted in accordance with [34 CFR 300.304 through 34 CFR 300.311] and a parent disagrees with the 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 to determine whether the child has a disability and the nature and extent of the special education and related services that child needs.”[40] When a parent seeks an IEE to make up for a missing assessment, the district may not avoid either filing for due process or funding the IEE by simply conducting the missing assessment. [41]
An IEE may also be requested by an impartial hearing officer “as part of a hearing on a due process complaint.”[42] The Regulations do not provide limitations or guidance about hearing officer requests or directives for IEEs.
It has been held that a parent may request a district funded IEE in a DPC in the first instance, and it has also been noted that because this method can be used unfairly, a parent may be in a better position to elicit district funding of an IEE if the IEE was requested outside of the more formal context of an impartial hearing.[43] Where a request for IEEs was received for the first time in the parents' DPC, the state review officer determined that the district ought not to be faulted for attempting to defend the appropriateness of the evaluations it conducted at the resulting impartial hearing.[44] The Court in the Trumbull Bd of Educ. held that:
“The IDEA does not provide a statute of limitations for a parent's right to disagree with an evaluation for the purpose of obtaining an IEE at public expense. But that does not mean that a parent will be able to abuse the process to obtain a publicly funded IEE based on their disagreement with an old evaluation. … As a practical matter, a parent's right to disagree with an evaluation and obtain an IEE at public expense is tethered to the frequency with which the child is evaluated. And the IDEA establishes a logical timeframe in which a parent's right to request an IEE is actionable. "A parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees." 34 C.F.R. § 300.502(b)(5). Because the only evaluations that trigger a parent's right to an IEE at public expense are the initial evaluation and triennial reevaluations discussed in Section 1414 of the Act, a parent's right to an IEE at public expense ripens each time a new evaluation is conducted. The time within which a parent must express their disagreement with an evaluation and request an IEE depends on how frequently the child is evaluated. By default, triennial reevaluations must occur at least once every three years. 20 U.S.C. § 1414(a)(2)(B)(ii). Where, as here, a child is evaluated according to the default evaluation timeline, the parent must disagree with an evaluation within that three-year timeframe. By contrast, should a parent and school agree that the child be evaluated on a more frequent basis, see id. § 1414(a)(2)(A), (a)(2)(B)(i), the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs. For example, if a child is reevaluated each year, the logical time frame within which to contest the evaluation is one year. Otherwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation. The timeframe within which a parent can disagree must be adjustable because the evaluation that a parent may contest is a moving target.” The rationale for Parents’ embedded rights to demand these independent evaluations exists because “[t]he IEE process attempts to level the playing field between parent and government by securing a parent’s ability to obtain an independent assessment of their child’s disability if the school’s falls short. It provides “parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion,” and it ensures that parents “are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” [45] In this case, it became clear after the conclusion of the hearing on 5/12/2023, that Parent did not articulate a basis for the number of hours of compensatory education that were due to Student as a result of the denial of FAPE. The record did not indicate how many ABA hours Student was deprived during the school years in question, which created a significant gap in the record for IHO to decide on the merits of Parent’s claims. Although Neuropsychologist testified that Student should have been receiving ABA therapy for the two school years alleged in the DPC (exclusive of the 2020-2021 school year that was withdrawn), she specifically declined to state how many hours Student was due because “[r]egarding the number of hours per week, I am not an ABA specialist, so I can't speak to confidently to the exact number of hours. I don't want to underestimate how much he needs. That's something that would require the evaluation assessment of an ABA certified provider who can speak exactly and directly to the number of exact hours he should be receiving.” [46] Although there was indication that Student could tolerate 10 hours of ABA, there were no indications that Student did, in fact, require those hours to compensate him for the denial of FAPE.[47] Therefore, over DOE’s objections, IHO ordered an ABA skills assessment on 5/15/2023 to specifically address Student’s prospective needs, and the number of ABA hours Student should have been receiving in the 2021-2022 school year, and the portion of the 2022-2023 school year preceding the interim order.[48] On 6/13/2023, Parent submitted an older version of Ex. P-K (IHO-I), which is Student’s ABA skills assessment and recommendation, which only addressed prospective relief of ABA services, but failed to address any compensatory services Student was entitled to for the past failures of DOE to provide Student with a FAPE. After a lengthy discussion on the record, it became clear that IHO needed to have the BCBA who prepared the report to testify as to the compensatory award Student was entitled to, if any. DOE objected to calling the witness, for yet another adjournment of a hearing that was ostensibly completed on 5/12/2023, as both Parties submitted their closing statements. Nevertheless, despite Parent’s Attorney’s second attempt to have a complete record for IHO to issue a decision, IHO allowed the witness to testify so to not prejudice Student’s ability to recuperate services he was deprived of.
C. Compensatory Education
The IDEA applies to children between the ages of 3 and 21, but States have leeway with respect to eligibility age.[49] New York law entitles children with disabilities to special education services until they receive a high school diploma or complete the school year following their twenty-first birthday,[50] at which point, a child is no longer entitled to the protections of the IDEA.[51] Nevertheless, a child who is above the age of eligibility can receive "compensatory education," which is "prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education."[52]
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case,[53] with the purpose of providing an appropriate remedy for a denial of a FAPE.[54] In fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place." [55] An award of compensatory education should be designed so as to "appropriately address[] the problems with the IEP,"[56] “place children in the position they would have been in but for the violation of the Act, "[57] "replace[] educational services the child should have received in the first place"[58] and "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA." [59]
New York State Law places the ultimate burden of production and persuasion[60] on the District to express its views as part of the evidentiary record on the issue of the appropriate compensatory education which would place the Student in the position he would have been but for the denial of a FAPE. [61]
On 6/26/2023, BCBA testified and explained Ex. P-K, which included the compensatory ABA services she believed Student was entitled to for the 2021-2022, and 2022-2023 school years totaled “10 hours per week of ABA after school to make up for the lack of availability of appropriate services over the past two school years.” [62]
It became clear that “going forward, so prospectively, 15 to 20 hours of in-school ABA support”[63] applied only to the 2023-2024 school year, which was not in front of IHO as that school year was not in Parent’s DPC, nor could it have been in this case as potentially an unripe claim. Further, BCBA’s report (Ex. P-K) appeared to be very clear that the compensatory award contemplated covered the entirety of the 2021-2022 and the 2022-2023 school years, which was limited to 10 hours of ABA per week.
The fact that the final day of testimony concluded one day before the end of the 2022-2023 school year created a situation where IHO had no prospective relief to award. The school year ended on June 27, 2023, so any programmatic changes could not apply to any future school placement. More importantly, BCBA’s testimony vis-à-vis the prospective program Student should receive applied to the 2023-2024 school year, which IHO cannot address at this hearing as that school year was not challenged. Finally, Parent’s Attorney represented that the CSE held a meeting between the 6/13/2023 and 6/26/2023 to create a program for Student for the 2023-2024 school year, and that there was no recommendation for ABA therapy in that IEP. Since that IEP was created before the issuance of this FOFD, Parent would need to challenge that June 2023 IEP in a new DPC.
In addition, BCBA testified that she “recommended that [Student]… should have been receiving 10 hours of ABA for the last two school years … and … that five hours should have been in school and five hours should have been at home”[64] for the purposes of “generalizing skills.”[65] Based on the wide variation between what BCBA believed Student was entitled to for the 2021-2022 and 2022-2023 school year encompassing 10 total hours of ABA divided equally between in-school and at-home services, and the prospective program Student should receive moving forward of 15-20 hours of in-school ABA, indicated that at-home services were not required for Student to make progress. The distinction that BCBA made between the necessity of at-home services as a basis for compensatory relief and the absence of at-home services prospectively, indicates that the at-home compensatory component is aspirational rather than necessary to provide Student with a FAPE.
As discussed in a State Level Review by the Office of State Review, 66 “the IDEA does not require school districts, as a matter of course, to design education programs to address a student’s difficulties in generalizing skills and other settings outside of the school environment, particularly where it is determined that the student is otherwise likely to make progress, at least in the classroom setting.” 67
Although it is very likely that Student would generally benefit from home-based ABA services, this benefit cannot be said to be necessary for the DOE to provide Student with the educational benefits required under the holdings of Rowley and Endrew F. “[T]he IDEA ensures the provision of ‘an appropriate’ education, ‘not one that provides everything that might be thought desirable by loving parents’.” [68]
Although this case deals with the Districts denial of FAPE and the associated compensatory services Student was entitled to, “[w]hile parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement 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.” [69]
67 see, e.g., F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 [S.D.N.Y. June 8, 2016]; L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *8-*10 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100 [2d Cir. Jan. 19, 2017]; P.S. v. New York City Dep't of Educ., 2014 WL 3673603, at *13-*14 [S.D.N.Y. Jul. 24, 2014]; M.L. v. New York City Dep't of Educ., 2014 WL 1301957, at *11 [S.D.N.Y. Mar. 31, 2014]; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *14 [S.D.N.Y. Aug. 23, 2012], aff'd, 530 Fed. App'x 81 [2d Cir. July 24, 2013]; Student X, 2008 WL 4890440, at *17; A.D. v. New York City Dep't of Educ., 2008 WL 8993558, at *7 [S.D.N.Y. Apr. 21, 2008]; see also Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep't of Educ., 254 F.3d 350, 353 [1st Cir. 2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 [11th Cir 1991].
Therefore, I find that there was insufficient basis that Student requires home-based ABA services in order to receive the educational benefits the District was required to provide him[70] as it is not required to render “every special service necessary to maximize the student’s potential.” [71]
As to the total hours Student was entitled to, the Parties agreed that, as a 12-month student, the 2021-2022 and the 2022-2023 school years comprised of 42 weeks per year. Therefore, Student is entitled to compensatory ABA Special Education Teacher Support Services (“SETSS”) of 5 hours per week for 84 weeks, or 420 hours of ABA SETSS.
DOE also did not object to, defend, or opine on, 72 Parent’s claims for compensatory services for the 2021-2022 school year, representing a six-month gap in implementation of Student’s program due to lack of provider availability:
• 72, 30-minute sessions of compensatory Occupational Therapy (“OT”) [73]
• [72], 30-minute sessions of compensatory Speech and Language Therapy
(“SLT”)[74]
Therefore, Student is entitled to these claimed hours as compensatory service.
Pendency was resolved prior to hearing,[75] ordered as part of the IEE issued on 5/15/2023, and will not be addressed further.
D. Section 504 Claims
Parents asserted a claim under Section 504 of the Rehabilitation Act for the School Year in question but all the potential claims in the DPC are subsumed in the IDEA. Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].”[76] Under Section 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.” [77]
An individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.”[78] However, only students who have a substantial limitation of a major life activity are entitled to a FAPE.[79] Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others.[80] The student’s parents bear the burden of proof, both in production and persuasion, on any claim under Section 504 of the Rehabilitation Act. [81]
Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement . . . a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s] parents or guardian and representation by counsel, and a review procedure.”[82] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504. [83]
I find that all of Parents’ 504 claims are subsumed within the statutory framework of the IDEA, and that the Parents did not identify any specific regulatory requirement under 504 that is not subsumed under the IDEA and that would merit separate analysis and discussion. Therefore, I do not separately address factual determinations or analyze the 504 claims related thereto.
IV. Orders
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY:
1. ORDERED that DOE had deprived Student with a FAPE for the 2021-2022 & 2022-2023, 12-month, school years by failing to provide Student with ABA services.
2. ORDERED that DOE fund a bank of 420 hours of compensatory individual, 1:1, ABA SETSS, with an appropriately licensed or certified provider of Parent’s choosing, at reasonable market rate. Said award of compensatory ABA SETSS hours shall have no expiration date.
3. ORDERED that DOE fund a bank of 72, 30-minute sessions of compensatory Occupational Therapy (“OT”) with an appropriately licensed or certified provider of Parent’s choosing, at reasonable market rate. Said award of compensatory OT services hours shall have no expiration date.
4. ORDERED that DOE fund a bank of 72, 30-minute sessions of compensatory Speech and Language Therapy (“SLT”) with an appropriately licensed or certified provider of Parent’s choosing, at reasonable market rate. Said award of compensatory SLT services hours shall have no expiration date.
5. ORDERED that, within 30 days of the date of this Order, the CSE reconvene to consider Student’s needs for the specific methodology of Applied Behavior Analysis.
DOE shall also consider deferral of Student’s needs to the Centrally Based Support Team to consider placement in a New York State Non-Public School.
6. All other claims and requested relief not addressed at the Due Process Hearing are dismissed with prejudice.
DATED: SO ORDERED
7/7/2023
Dr. Oren Varnai, Esq., 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 proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
EXHIBITS
PARENT EXHIBITS
A. Due Process Complaint March 3, 2023 8 pages
B. Neuropsychological Evaluation November 4, 2022 10 pages
C. Third Quarter Report Card April 2023 2 pages
D. IEP Progress Report April 19, 2023 12 pages
E. Elementary Teacher Report Form November 22, 2022 8 pages
F. Teacher’s Gross Motor Checklist, Physical Therapy November 14, 2022 1 page
G. Teacher Anecdotal Sep.-Oct 2022 6 pages
H. Complete Neurological Care PC Referral September 30, 2021 7 pages
I. Notarized Affidavit of Parent May 7, 2023 5 pages
J. Notarized Affidavit of Neuropsychologist May 5, 2023 3 pages
K. ABA Skills Assessment Report Amended June 15 2023 18 pages
DOE’S EXHIBITS
1. None None None
IHO’S EXHIBITS
I. ABA Skills Assessment Report (prior version of P-K) 6/5/2023 16 pages
Footnotes
[1] Tr. p. 5.
[2] Id.
[3] 20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].
[4] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.
[5] Ex. P-A.
[6] See 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i].
[7] See 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii].
[9] Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; 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])
[10] Walczak v. Fla. 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].
[11] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].
[12] R.E., 694 F.3d at 190-91.
[13] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].
[14] 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.
[15] 20 U.S.C. § 1415[f][3][E][i].
[16] Rowley, 458 U.S. at 203.
[17] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.
[18] Endrew F., 137 S. Ct. at 1001.
[19] 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.
[20] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
[21] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].
[22] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.
[23] 20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132.
[24] 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i].
[25] 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii].
[26] 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v].
[27] Endrew F., 137 S. Ct. at 1000.
[28] 8 NYCRR § 200.4(b)(4); 34 CFR § 300.303(a)(2).
[29] 8 NYCRR § 200.4(b)(4); 34 CFR § 300.303(B)(1)-(2).
[30] 8 NYCRR § 200.4(b)(3).
[31] 20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304(b)(1)(ii); see Letter to Clarke, 48 IDELR 77 [OSEP 2007].
[32] 20 U.S.C. § 1414[b][2][C]; 8 NYCRR 200.4(b)(6)(x); 34 CFR 300.304(b)(3).
[33] 20 U.S.C. § 1414[b][3][B]; 8 NYCRR 200.4(b)(6)(vii); 34 CFR 300.304(c)(4).
[34] 8 NYCRR 200.4(b)(6)(ix); 34 CFR 300.304(c)(6).
[35] 8 NYCRR § 200.1(z); 34 CFR § 300.502(a)(3)(i).
[36] 8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b).
[37] 8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b).
[38] 8 NYCRR § 200.5(g)(1)(iv); 34 CFR § 300.502(b)(2)(i)-(ii).
[39] 8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b)(5).
[40] Letter to Baus, 65 IDELR 81 (OSEP 2015).
[41] Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[42] 8 NYCRR § 200.5(g)(2); 34 CFR § 300.502(d).
[43] See, e.g. Application of a Student with a Disability, Appeal No. 21-170; Application of the Dep't of Educ., Appeal No. 21- 135; Application of a Student with a Disability, Appeal No. 19-094.
[44] Application of a Student with a Disability, Appeal No. 21-172.
[45] D.S. v. Trumbull Bd of Educ., quoting Schaffer, 546 U.S. at 60-61.
[46] Tr. p. 22.
[47] Tr. p. 23.
[48] The timing of the DPC and the date by which an FOFD was issued, created a scenario whereby prospective relief became moot as the school year was over. BCBA’s testimony was explicit in that the compensatory services award she recommended was for the 2021-2022 and 2022-2023 school years. Her prospective programmatic recommendation, therefore, was for the 2023-2024 school year, which was not claimed in the DPC and jurisdictionally not redressable.
[49] 20 U.S.C. §1412(a)(1).
[50] N.Y. Educ. Law § 4402(5).
[51] See Somoza v. N.Y.C. Dep't of Educ., 538 F.3d 106, 113 (2d Cir. 2008).
[52] Id, at 109 n.2.
[53] Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997].
[54] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; Newington, 546 F.3d at 123.
[55] Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005].
[56] Newington, 546 F.3d at 123.
[57] Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008].
[58] Reid, 401 F.3d at 518.
[59] Id.
[60] Educ. Law § 4404[1][c].
[61] E. Lyme, 790 F.3d at 457; Reid, 401 F.3d at 524
[62] Tr. p. 106.
[63] Tr. p. 108; emphasis added.
[64] Tr. p. 112.
[65] Tr. p. 112-113.
[68] State Appeal No. 22-095 quoting Walczak, 142 F.3d at 132.
[69] Id, (emphasis in original) quoting Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148.
[70] R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *15 [S.D.N.Y. Sept. 27, 2013] ["While the record indicates that [the student] may have benefited from home-based services, it contains no indication that such services were necessary"], aff'd, 589 Fed. App'x 572 [2d Cir. Oct. 29, 2014].
[71] Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 756 [2d Cir. 2018], cert. denied sub nom., 139 S. Ct. 322 [2018].
[72] DOE’s attorney suggested that the missed sessions would need to be proven. (Tr. p. 13). However, it is DOE’s burden to prove that the services were, in fact provided as part of Student’s IEP, and absent such evidence the claim will be construed as true. This claim is materially different from the ABA SETSS compensatory award as ABA services were never provided by DOE, and not in Student’s IEP, so the IEE was necessary to establish the number of hours Student was entitled to because of DOE’s failure to provide a FAPE.
[73] Tr. p. 12.
[74] Tr. p. 11.
[75] Tr. p. 9.
[76] 34 C.F.R. § 104.33(a).
[77] 34 C.F.R. § 104.33(b).
[78] 34 C.F.R. §104.3(j)(1).
[79] 29 U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2).
[80] See 28 C.F.R. § 35.108(c)(1)(ii).
[81] See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).
[82] 34 C.F.R. § 104.36.
[83] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act- 504-delegation-Signed.pdf.