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CASE NUMBER: 597132 – NYC: 246507
FINDINGS OF FACT AND DECISION
Student’s Name: 1 [REDACTED] (“Student”)
School District: N.Y.C. Dept. of Ed., District # [REDACTED]
Impartial Hearing Officer: Peggy K. Chan
Date of Filing: 03/09/2023
Hearing Requested by: [REDACTED] (“Parent”)
Date of Hearing: 10/04/2023
Record Close Date: 10/26/2023
Date of Decision: 10/26/2023
1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 4, 2023
For the Student:
[REDACTED] (hereinafter referred to as “Parent’s Representative”)
[REDACTED] (hereinafter referred to as “Parent”)
For the Department of Education:
[REDACTED] (hereinafter referred to as “District’s Representative”)
BACKGROUND
On March 9, 2023, Parent, through counsel, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the Individuals with Disabilities Education Act[2] (“IDEA”) and its federal and state implementing regulations (Ex. P-A).
In the DPC, Parent alleges that the District failed to offer Student a free appropriate public education (“FAPE”) for the 2021-2022 and 2022-2023 school years (Id.). It is alleged that, among other things, the District failed to evaluate Student, provide an appropriate program for Student, implement Student’s Individualized Education Program (“IEP”), and address Student’s behavioral needs (Id.).
Parent seeks an order directing the District to: (1) fund the following compensatory services by providers of Parent’s choosing at their normal and customary rates: a. 3,680 hours of compensatory individual Applied Behavior Analysis (“ABA”) therapy; b. 184 hours of compensatory social skills training (“SST”); c. 184 hours of compensatory parent counseling and training (“PCAT”); d. 184 hours of compensatory Board Certified Behavior Analyst (“BCBA”) supervision; e. 276 hours of compensatory speech-language therapy (“SLT”); f. 138 hours of compensatory occupational therapy (“OT”); g. 46 hours of compensatory physical therapy (“PT”); (2) fund an independent feeding evaluation by a provider of Parent’s choosing; and (3) conduct an assistive technology (“AT”) evaluation and fund appropriate AT device(s) for Student.
(Ex. P-A; Tr. at 33-37). [3]
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA 4 and its implementing regulations, [5] and the New York State Education Law[6] and its implementing regulations. 7
PROCEDURAL HISTORY
I was appointed on March 12, 2023 to determine the claims in the DPC and to conduct an impartial hearing pursuant to 20 U.S.C. § 1415(f) and the New York State Education Law § 4404(1). On April 8, 2023, the resolution period expired without the parties reaching an agreement. At the prehearing conference (“PHC”) held on April 17, 2023, Parent’s Representative sought an interim order for the Independent Educational Evaluations (“IEEs”) that were requested in the DPC.
A limited hearing was scheduled for April 28, 2023 to allow the parties to submit evidence supporting the parties’ positions regarding the IEEs. Shortly prior to the start of the limited hearing, the parties reached an agreement regarding Parent’s request for IEEs. Based on the parties’ agreement, on April 28, 2023, I issued an interim order granting Parent’s request for the following IEEs: (1) neuropsychological evaluation; (2) speech-language (“SL”) evaluation; (3) OT evaluation; and (4) PT evaluation (Ex. IHO-I). Pursuant to the interim order, Provider 1 completed a SL evaluation on Student on August 11, 2023 (Ex. P-E), an OT evaluation on July 26, 2023 (Ex. P-F), and a PT evaluation on July 30, 2023 (Ex. P-G); and Provider 2 completed a neuropsychological evaluation on August 7, 2023 (Ex. P-H).
On May 30, 2023, July 11, 2023 and August [7], 2023, status conferences were held. On October [4], 2023, a due process hearing (“DPH”) was held.
At the DPH, the District did not seek to present any documentary evidence or witness testimony (Tr. at 26). The District indicated that it would not be presenting a case to demonstrate that Student was offered a FAPE for the 2021-2022 and 2022-2023 school years (Tr. at 26-27).
Parent sought to introduce 8 documents in support of her case. Parent’s Exhibits P-A through P-H were admitted into evidence without any objection (Tr. at 30). The Parent did not call any witnesses and rested on the submitted documents (Tr. at 27).
The District’s Representative waived its opening and closing statements and the Parent’s Representative made a combined opening and closing statement (Tr. at 30-36).
A list of exhibits admitted into evidence is attached hereto as Appendix B. Although only portions of the evidence are referenced herein, the testimony and documents were reviewed in full.
LEGAL FRAMEWORK
Both the IDEA and the Education Law provide that children with disabilities are entitled to a FAPE.[8] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive Individualized Education Program (“IEP”).[9] 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.[10] To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[11] If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE.[12] School districts are obligated to provide the special education services listed in a student’s IEP. [13]
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.[14] A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”[15] However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.”[16] “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.”[17] The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.”[18] Additionally, school districts are not required to “maximize” the potential of students with disabilities.[19] 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.’”[20] The IEP must be “reasonably calculated to provide some ‘meaningful benefit.’”[21] The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” [22]
In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.”[23] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion.[24] Although an award of damages is not available under the IDEA, 25 “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [26]
Under the Education Law, school districts have the burden of proof, including the burden of persuasion and the burden of production, in 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 the burden of production on the appropriateness of such placement. [27]
25 See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002).
FINDINGS OF FACT AND DECISION
After a full review of the record generated at the hearing, I make the following findings of fact and determinations.
Student is an [REDACTED] -year-old classified as a student with Autism under the IDEA (Ex. P-B-1; Ex. P-C-1). Student’s eligibility for special education supports and services is not in dispute (Id.).
Student has been diagnosed with autism spectrum disorder (“ASD”), attention deficit/hyperactivity disorder (“ADHD”), intellectual disability, and oppositional defiant disorder (Ex. P-E-1). The most recent neuropsychological evaluation, completed on August 7, 2023, diagnosed Student as having a severe level of ASD – (1) social communication, level 3; (2) repetitive behavior, level 3; (3) with language impairments; and (4) with intellectual disability (Ex. P-H-14). Student has a history of developmental delays (Ex. P-E-2). Student began receiving Early Intervention services, including SLT, OT, and ABA therapy, at age two (Id.).
When the DPC was filed, Student’s June 23, 2022 IEP was in effect (Ex. P-C). The IEP recommended a 12-month program and placement at a New York State approved non-public school (Id. at 21, 24), with the following related services: (1) OT, individual service, two times per week for 30 minutes; (2) Parent Counseling and Training (“PCAT”), group service, four times per year for 60 minutes; (3) PT, individual service, two times per week for 30 minutes; (4) Speech-Language Therapy (“SLT”), individual service, five times per week for 30 minutes; (5) SLT, group of two, one time per week for 30 minutes; (6) a full-time 1:1 paraprofessional for behavior support; and (7) Board Certified Behavior Analyst (“BCBA”), one time per week for 30 minutes (Id. at 20-21). Student was also recommended for a dynamic display speech generating device (“SGD”) to be integrated into the existing school program (Id. at 21).
In addition to the related services Student receives in school, Student receives home-based PT two times per week and SLT three times per week provided by the Office for the People with Developmental Disabilities (“OPWDD”) (Ex. P-E-2).
Despite the IEP’s program recommendation, the CBST has not located a New York State approved non-public school placement for Student (Ex. P-A-4; Tr. at 32).
[I] Denial of FAPE
In IDEA impartial due process proceedings conducted in New York, the burden is on the District to establish that it provided a student with a FAPE.[28] At the hearing, the District did not attempt to demonstrate that Student was provided with a FAPE for the 2021-2022 and 2022-2023 school years. The District did not submit any documentary evidence, present any witnesses, or make any arguments to explain in a cogent or responsive way whether or how it had offered Student appropriate program and placement recommendations for the 2021-2022 and 2022-2023 school years. As such, I find that the District failed to offer Student a FAPE for the 2021-2022 and 2022-2023 school years. Moreover, a review of the record establishes that the weight of the evidence supports the conclusion that the District failed to offer Student an educational program reasonably calculated to offer a FAPE for the 2021-2022 and 2022-2023 school years.
[II] Appropriate Remedy: Compensatory Education Services The relief requested is equitable in nature as Parent is asking the IHO to devise an appropriate remedy to address the District’s failure to provide Student a FAPE for the 2021-2022 and 2022-2023 school years.
The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.”[29] As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.”[30] In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” [31]
An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education.[32] The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.”[33] Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education.”[34] Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[35] 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.’”[36] “If the IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.” [37] Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” [38]
There are generally two approaches to fashioning a compensatory education award. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation).[39] Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits). [40]
The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion,” so long as “the relief is…appropriate in light of the purpose of the Act.”[41] In calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP], or encompass analogous educational services appropriate to the Student’s current needs;” however, 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.” [42]
Under New York law, the District has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA.[43] However, the Parent also has a responsibility to identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the District’s failure to provide the Student with a FAPE for the years at issue.[44] Here, Parent has identified the specific remedy Parent is seeking and provided documentary evidence and testimony supporting her request. As the District did not introduce any evidence or put forth any argument with respect to Parent’s requested relief, Parent’s documentary evidence regarding the Student’s need for compensatory education is uncontroverted.
(a) ABA Therapy, BCBA Supervision, SST, PCAT
Pursuant to my Interim IEE order, Provider 2 conducted an in-person neuropsychological evaluation on Student on July 14, 2023 and a report was completed on August 7, 2023 (Ex. P-H).
The evaluation shows Student’s cognitive ability to be “significantly below average” (FSIQ=40), with his Nonverbal IQ, Verbal IQ, Fluid Reasoning, Knowledge, Quantitative Reasoning, Visual-Spatial Processing, and Working Memory scores all falling “significantly below average” (at or below 0.1st percentile) (Id. at 6-7). Student’s academic scores fell within the Very Low range (Id. at 8). Regarding his language skills, Student’s receptive and expressive language skills are “well below” age expectations (below 0.1st percentile) (Id. at 10). On the Autism Diagnostic Observation Schedule, Second Edition (“ADOS-2”), Student presents a high level of symptoms in both Social Affect and Restricted and Repetitive Behaviors (Id. at 9). Student demonstrates “clinically significant levels of atypicality, withdrawal, social skills, leadership, and functional communication” in relating to peers (Id. at 10). Student demonstrates sensory sensitive behaviors (Id. at 12-13). Additionally, he presents with “significantly below age level” of adaptive skills both at home and in school (all areas ranked below 1st percentile) (Id.). The neuropsychological evaluation diagnosed Student to have a severe level of ASD requiring “very substantial support” – (1) social communication, level 3; (2) repetitive behavior, level 3; (3) with language impairments; and (4) with intellectual disability (Id. at 14).
Based on the assessments, Provider 2 recommended that, among other things, Student be placed in a 12-month special education program that utilizes ABA methodology throughout the day, in a small classroom size of no more than six students (Id. at 14-15). Provider 2 recommended full-time ABA support (30 hours of school-based and 10 hours of home-based therapy each week) to target Student’s repetitive behaviors, inattention, and social and communication deficits; as well as BCBA supervision at home for 2 hours a week (Id. at 15). Student is also recommended to have a 1:1 paraprofessional in class to help manage his inattentive and hyperactive behaviors (Id. at 14). Student is recommended to receive SST two times per week for 45 minutes to one hour, including individual and small group sessions, to target learning, understanding, and demonstrating appropriate social skills and managing peer interactions (Id. at 16). Furthermore, Provider 2 recommended PCAT two times per week for one hour, provided in the home setting, to help Parent understand Student’s special needs and developmental changes, manage his communication deficits, and improve his social-emotional and adaptive living skills (Id. at 16).
To make up for the lack of appropriate educational services while Student attended a DOE program, Provider 2 recommended the following compensatory education services per year: (1) 1,380 hours of school-based and 460 hours home-based 1:1 ABA therapy (i.e. a total of 40 hours per week); (2) 92 hours of SST (i.e. 2 hours per week); (3) 92 hours of PCAT (i.e. 2 hours per week); and (4) 92 hours of BCBA supervision (i.e. 2 hours per week) (Id.).[45] The recommendations were calculated based on a 12-month, 46-week school year (Id.).
To compensate Student for the deprivation of a FAPE for the two school years at issue, Parent requests funding of compensatory services as follows: (1) 3,680 hours of 1:1 ABA therapy; (2)[184] hours of SST; (3) (c) Compensatory OT services
Pursuant to my Interim IEE order, Provider 1 conducted an in-person OT evaluation on Student on June 30, 2023 and a report was completed on July 26, 2023 (Ex. P-F).
Results of standardized testing, clinical observations, and teacher and parent reports indicate that Student displays delays in visual motor skills, visual perceptual skills, motor coordination, fine motor coordination, sensory processing, and activities of daily living (Id. at 17). Student demonstrated fleeting attention throughout the evaluation and self-stimulatory behavior (Id. at 2). Student is reported to have strong emotional outbursts, is distressed by changes in plans and routines, and reacts to sensory experiences more quickly and intensely than other children (Id. at 8). Student’s test scores indicate difficulty with some aspects of executive function, including problem-solving rigidity, emotional dysregulation, resisting impulses, considering consequences before acting, adjusting to changes flexibly, and sustaining working memory and to initiate, plan, organize, and monitor problem solving (Id. at 11-15).
Based on the results of the OT evaluation, Provider 1 recommended that Student receive ongoing OT sessions, three times per week for 30 minutes (Id. at 17). Student is also recommended to take movement breaks throughout the school day; a sensory diet for use during school and at home; and using certain tools for writing (Id. at 17).
In addition, Provider 1 recommended that Student receive a bank of 138 compensatory OT hours (approximately 1.5 hours per week for 46 weeks, for 2 years) (Id. at 18). Provider 1 calculated this recommendation based on a qualitative approach considering Student’s needs and the time needed to make him whole (Id.). Providing these services would allow Student to address his needs consistently and address the gaps that are present as his academic program did not adequately address his significant needs (Id.).
(d) Compensatory PT Services
Pursuant to my Interim IEE order, Provider 1 conducted an in-person PT evaluation on Student on June 16, 2023 and a report was completed on July 30, 2023 (Ex. P-G).
Formal testing and informal observation revealed that Student has delays in balance, bilateral coordination, and agility skills (Ex. P-G-11). Student presented with a mild to moderate decrease in balance and strength, and he could not perform many skills that required bilateral coordination or coordinated use of the right side of his body in conjunction with the left (Id.).
Based on the results of the PT evaluation, Provider 1 recommended that Student receive 1:1 PT two times a week for 30 minutes, pushed in, when possible, to address core muscle strengthening, balance, coordination, endurance, running and ball skills (Id. at 11). In addition, Provider 1 recommended that Student receive a bank of 46 hours of compensatory PT services (providing 2 x 30 minutes or 1 x 60 minutes a week for 46 weeks, for approximately one year) (Id.). These hours would provide Student with consistent access to therapeutic intervention to address the gross motor deficits attributed to missing sessions following a head injury and a craniotomy. Student underwent surgery in April 2022, which resulted in Student missing school from April to September 2022 (Id. at 1, 11).
Equitable Considerations:
While the District failed to demonstrate that it provided a FAPE for the school years in question, it also failed to present testimony or evidence regarding the appropriate type or amount of compensatory services. The District further failed to propose a remedy in light of the FAPE deprivation. Moreover, the District did not make any arguments to contest Provider 1 or Provider 2’s recommendations (Tr. at 59-60). Thus, the District failed to meet its burden of proof regarding the appropriateness of a compensatory education award under the IDEA. [46]
The hearing record establishes that Student was not provided a FAPE for the 2021-2022 and 2022-2023 school years. Furthermore, Parent’s uncontroverted documentary evidence supports a finding that Student is entitled to compensatory services for the school years in question. As such, Parent’s requests for compensatory services in the areas outlined above is GRANTED, subject to the below adjustments.
I decline to accept the calculations used by Provider 1 and Provider 2. In making their compensatory services recommendations, Provider 1 and Provider 2 calculated the amounts based on a 12-month, 46-week school year. However, pursuant to State regulation, a 10-month school year (from September through June) consists of at least 36 weeks, and a 12-month school year (from June through July) consists of 42 weeks.[47] This determination is based on the 180 instructional days in a 10-month school year, plus an additional 30 days during the 12-month portion of the school year that occurs over a summer, typically during a six-week program.[48] As such, I am adjusting the award for each category of compensatory services to reflect a 42-week school year as follows:
1. 3,680 hours of compensatory individual ABA therapy – adjusted award: 3,360 hours
2. 184 compensatory hours of SST – adjusted award: 168 hours
3. 184 compensatory hours of PCAT - adjusted award: 168 hours
4. 184 compensatory hours of BCBA supervision - adjusted award: 168 hours
5. 276 compensatory hours of SLT - adjusted award: 252 hours
6. 138 compensatory hours of OT - adjusted award: 126 hours
7. 46 compensatory hours of PT - adjusted award: 42 hours
Expiration Period:
This award has an expiration period of four years to ensure that the compensatory award is carried out to remedy the deprivation of a FAPE and to allow Student to use the services at a time when it would be the most impactful for Student to catch up. The award term balances the reality of Student’s significant deficits with the immediacy of having the remedial services in place while offering flexibility to enable Student to learn at a rate that is achievable and not overwhelming.
Finding on Providers Rates:
The hearing record includes the following proposed rates for compensatory services:
1. 1:1 ABA - $330 per hour
2. SST (ABA) - $330 per hour
3. PCAT - $330 per hour
4. BCBA Supervision - $330 per hour
5. SLT - $300 per hour
6. OT - $300 per hour
7. PT - $300 per hour (Ex. P-D).
Lacking any contradictory evidence or challenge from the District, I find that the proposed rates are reasonable and not excessive.
[III] Appropriate Remedy: Independent Feeding Evaluation
An impartial hearing officer has broad authority to grant any relief such officer deems necessary, under the particular facts and circumstances of each case as supported by the hearing record, to ensure that a child receives the free and appropriate public education to which the child is entitled. [49]
I find that the facts and circumstances of this case amply support an award of an independent feeding evaluation under my own authority. As already addressed above, the District’s failed to offer Student a FAPE for the 2021-2022 and 2022-2023 school years. A comprehensive evaluation of Student in all areas of Student’s disability, actual or suspected, is necessary to remedy the denial of FAPE. While Student underwent several evaluations pursuant to my interim IEE order, the SL evaluation highlights an additional area of concern that might impact Student’s speech and language.
In the SL evaluation, Provider 1 noted the concerns Parent reported regarding Student’s eating habits. According to Parent, Student prefers to eat soft foods and takes a long time to eat. Student eats purees, and currently prefers homemade soups. At home, Student feeds himself yogurt. Parent further reported that Student does not typically open his mouth. Due to Student’s “extremely select diet,” oral motor difficulties, and self-feeding difficulties, Provider 1 recommended that Student receive a feeding evaluation (Ex. P-E-12).
I find that feeding is an area related to Student’s disability where Student should be appropriately assessed. Furthermore, the results of the feeding evaluation would provide additional information to allow the District to make informed decisions concerning Student’s needs and appropriate services.
The hearing record includes the proposed rate of $2,700 for a feeding evaluation (Ex. P-D-1). The District did not present any argument or evidence challenging Parent’s request for the evaluation or the proposed rate for the evaluation. Lacking any contradictory evidence or challenge from the District, I find that the proposed rate for the feeding evaluation is not unreasonable and is commensurate with the prevailing market rate.
[IV] Appropriate Remedy: AT Evaluation and AT Device(s)
In the DPC, Parent initially requested an interim AT evaluation for Student (Ex. P-A-4). Parent subsequently withdrew her request for the evaluation as part of the agreement reached regarding interim IEEs (Ex. IHO-I-3). In his closing statement, Parent’s Representative argued that Student “did not have an appropriate assistive technology device that would allow him to communicate” (Tr. at 32). Neither representative could confirm at the DPH whether the District had agreed to conduct a new AT evaluation for Student (Tr. at 37).
The record demonstrates that Student is using at least one AT device. The August 6, 2021 IEP recommended a dynamic display SGD (Ex. P-B-13-14). According to the June 23, 2022 IEP, Student was evaluated by the District’s AT team in July 2021 and was provided with the Proloquo2Go communication application, which he is using (Ex. P-C-3; Ex. P-E-2). Student’s classroom teacher and speech therapist both reported that Student is using his device to communicate (Ex. P-E-3). In the SL evaluation, Provider 1 noted that Student navigated the device with familiarity, and could make comments, express wants, and describe how he was feeling (Id. at 6). Provider 1 noted that Student does “really well” navigating his device and picks up new vocabulary after being given a few models (Id. at 3). Parent also reported that Student uses his device to make requests (Id. at 6).
However, without an updated evaluation, it is unclear if the device that Student uses addresses all his AT needs. The parties agree that Student should receive an updated AT evaluation. The District’s Representative agreed that “the DOE can always do [the AT] evaluation if necessary” (Tr. at 37). As such, Parent’s Representative renewed the request that the final order include an AT evaluation to be conducted by the District “[i]f the DOE is amendable to it” (Tr. at 37).
I find that an updated AT evaluation is necessary for the District to comprehensively assess Student’s AT needs and to allow the District to make informed decisions concerning Student based on evaluative data. I further find that given Student’s documented deficits in verbal communication, appropriate devices are necessary to provide Student with a FAPE, by facilitating Student’s communication and allowing Student to access learning. As such, Parent’s request for the District to conduct an AT evaluation and to fund the cost of appropriate assistive technology device(s) for Student is GRANTED.
Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby: (1) ORDERED that, the District shall fund 3,360 hours of compensatory Applied Behavior Analysis therapy, by a duly New York State licensed provider of Parent’s choosing, at the provider’s customary and regular rate not to exceed $330.00 per hour; and it is (2) FURTHER ORDERED that, the District shall fund 168 hours of compensatory social skills training, by a duly New York State licensed provider of Parent’s choosing, at the provider’s customary and regular rate not to exceed $330.00 per hour; and it is (3) FURTHER ORDERED that, the District shall fund 168 hours of compensatory parent counseling and training, by a duly New York State licensed provider of Parent’s choosing, at the provider’s customary and regular rate not to exceed $330.00 per hour; and it is (4) FURTHER ORDERED that, the District shall fund 168 hours of compensatory Board Certified Behavior Analyst supervision, by a duly New York State licensed provider of Parent’s choosing, at the provider’s customary and regular rate not to exceed $330.00 per hour; and it is (5) FURTHER ORDERED that, the District shall fund 252 hours of compensatory speech-language therapy, by a duly New York State licensed provider of Parent’s choosing, at the provider’s customary and regular rate not to exceed $300.00 per hour; and it is (6) FURTHER ORDERED that, the District shall fund 126 hours of compensatory occupational therapy, by a duly New York State licensed provider of Parent’s choosing, at the provider’s customary and regular rate not to exceed $300.00 per hour; and it is (7) FURTHER ORDERED that, the District shall fund 42 hours of compensatory physical therapy, by a duly New York State licensed provider of Parent’s choosing, at the provider’s customary and regular rate not to exceed $300.00 per hour; and it is (8) FURTHER ORDERED that, the bank of compensatory services set out in #1 through 7 of this Order shall not expire until the expiration of four (4) years from the date of this Order; and it is (9) FURTHER ORDERED that, the District shall fund a feeding evaluation to be conducted by a duly New York State licensed provider of Parent’s choosing, at the provider’s customary and regular rate not to exceed $2,700.00; and it is (10) FURTHER ORDERED that, the District shall conduct an assistive technology evaluation and fund the cost of appropriate assistive technology device(s) for Student; and it is (11) FURTHER ORDERED that, the Committee on Special Education shall convene a review meeting within twenty-one (21) days of the feeding evaluation being obtained and provided by Parent to the District, and the assistive technology evaluation being completed by the District, to review the results of such documents and any other evaluations conducted or obtained by the District, and prepare an appropriate IEP for Student.
Dated: October 26, 2023
/s/ Peggy K. Chan
Impartial Hearing Officer
Peggy K. Chan
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.
APPENDIX A – REDACTION IDENTIFICATION PAGE [REDACTED]
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
P-A. Parent’s Impartial Hearing Request 03/09/23 5 pages
P-B. Individualized Education Program 08/06/21 20 pages
P-C. Individualized Education Program 06/23/22 27 pages
P-D. Rate Sheets 01/01/23 3 pages
P-E. Independent Speech Language Therapy Evaluation 08/11/23 13 pages
P-F. Independent Occupational Therapy Evaluation 07/26/23 19 pages
P-G. Independent Physical Therapy Evaluation 07/30/23 13 pages
P-H. Independent Neuropsychological Evaluation 08/07/23 25 pages
IHO’S EXHIBITS
IHO-I Interim Order on Independent Educational 04/28/23 7
Evaluations (IEEs)
Footnotes
[2] 20 U.S.C. § 1400 et seq.
[3] In the DPC, Parent requested an order to require the District to fund 40 hours per week of push-in ABA until the District’s Central Based Support Team (“CBST”) locates an appropriate placement for Student, as well as 20 hours per week of home-based ABA (Ex. P-A-5). In his closing, Parent’s Representative stated that the compensatory award would cover this request and therefore Parent no longer seeks this remedy (Tr. at 35).
[4] 20 U.S.C. § 1400 et seq.
[5] 34 C.F.R. § 300 et seq.
[6] Educ. Law Art. 89 § 4404 et seq.
[7] 8 NYCRR § Part 200.
[8] 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[9] 20 U.S.C. §§ 1401(9), (29).
[10] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[11] Endrew F. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017).
[12] Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381-82 (2d Cir. 2003); W.G. v. Bd. of Trustees of Target Range School Dist. No. 23, 960 F. 2d 1479, 1484 (9th Cir. 1992); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); 8 NYCRR § 200.5(4)(ii).
[13] 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d).
[14] 20 U.S.C. § 1415(f)(3)(E)(i).
[15] Rowley, 458 U.S. at 203.
[16] Walczak v. Florida Union Free School Dist., 142 F.3d 119, 130 (2d Cir. 1998); Rowley, 458 U.S. at 189.
[17] Endrew F., 137 S. Ct. at 1001.
[18] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 (2d Cir. 1989).
[19] Rowley, 458 U.S. at 189; Walczak, 142 F.3d at 132.
[20] Cerra v. Pawling Central School Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130.
[21] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”); Rowley, 458 U.S. at 192.
[22] Endrew F., 137 S. Ct. at at 1002.
[23] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015).
[24] Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993).
[26] Doe v. East Lyme, 790 F.3d at 454.
[27] Education Law § 4404(1)(c); T.K. and S.K. ex rel. L.K. v. New York City Dept. of Educ., 810 F.3d 869, 875 (2d Cir. 2016); C.F. ex rel. R.F. and G.F. v. New York City Dept. of Educ., 746 F.3d 68, 76 (2d Cir. 2014), R.E. v. New York City Dept. of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012).
[28] 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).
[29] See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7, 15-16 (1993).
[30] Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015).
[31] Doe v. East Lyme, 790 F.3d at 454.
[32] E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014).
[33] P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[34] Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008).
[35] Doe v. East Lyme, 790 F.3d at 454.
[36] Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005).
[37] See Id. at 522.
[38] See Id. at 518.
[39] See, e.g., M.C. v. Cent. Reg'l Sch. Dist., 81 F.3d 389, 23 IDELR 1181 (3d Cir. 1996); Manchester Sch. Dist. v. Christopher B., 807, F. Supp. 860, 19 IDELR 389 (D.N.H. 1992).
[40] See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005).
[41] Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 (2d Cir. 2016); see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 (E.D.N.Y 2008) (noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated,” and awarding compensatory relief equal to the amount of time the student was deprived of services).
[42] Doe. v. East Lyme, 790 F.3d at 457.
[43] Education Law § 4404(1)(c).
[44] See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), (noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”); Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017) (holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”) (internal quotes and citation omitted).
[45] The neuropsychological evaluation also contains recommendations concerning OT and SLT services, in the form of both prospective relief and a compensatory education award (Ex. P-H-15, 16). However, as Student was evaluated by certified specialists in the OT and SL fields (see Ex. P-F and P-E), Parent requests that the compensatory education awards in those areas be based on recommendations made in the OT and SL evaluations (Tr. at 35). I find that Student’s functioning and needs in those respective areas are addressed with greater specificity by specialists certified in the OT and SL fields. As such, I agree with Parent’s reasoning and find that the recommendations made in the OT and SL evaluations form the basis of Parent’s request.
[184] hours of PCAT; and (4) 184 hours of BCBA supervision (Tr. at 36). (b) Compensatory SLT services Pursuant to my Interim IEE order, Provider 1 conducted an in-person SL evaluation on Student on June 24, 2023 and a report was completed on August 11, 2023 (Ex. P-E). According to the SL evaluation, Student presents with severe delays in his expressive, receptive, and pragmatic language skills, and his yielded age equivalents are significantly below his chronological age (Id. at 10). Formal and informal testing indicated significant difficulty with oral comprehension, understanding routine and environmental command, objects identification, two-dimensional recognition, self-expression, appropriate object use, and basic communication expression (Id.). Student presents with significant delays with pragmatic/social language, including limited communicative intent, as well as difficulties with initiating communication, answering questions, and conversational skills (Id.). In addition, Student presents with significant difficulties with oral motor coordination to produce connected speech (Id. at 11). Based on the results of the SL evaluation, Provider 1 determined that Student would benefit from ongoing individual and group SLT that uses a total communication approach which focuses on finding and using the right combination of communication methods, including verbal speech signs, and augmentative and alternative communication (Id.). Provider 1 recommended that Student receive 1:1 SLT, provided 5 times per week for 30 minutes, and SLT in a group of 2, provided once per week for 30 minutes, to target his expressive, receptive, and pragmatic language deficits (Id.). Provider 1 also recommended that Student receive a bank of 276 hours of compensatory SLT services (providing approximately 3 hours a week for 46 weeks, for approximately 2 years) (Id.). Provider 1 asserted that the recommendation is based on a qualitative approach accounting for the hours required to make Student whole (Id.). These recommended hours would give Student consistent access to a therapeutic intervention to address his speech and language deficits and help him establish the foundational speech and language skills (Id.). It is recommended that the hours be delivered in both Student’s academic and home environments, to allow for consistent carryover and training of all the adults who support him (Id.).
[46] See Education Law § 4404(1)(c).
[47] See Application of a Student with a Disability, Appeal No. 23-028; Educ. Law § 3604(7); 8 NYCRR 200.1(eee).
[48] Id.
[49] See Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359,556 IDELR 389 (1985) (IDEA empowers courts [and hearing officers] with the broad authority to fashion appropriate relief, considering equitable factors, which will effectuate the purposes of IDEA); Forest Grove Sch. Dist. v. TA., 557 U.S. 230, 52 IDELR 151, n. 11 (2009); Cocores v. Portsmouth Sch. Dist., 18 IDELR 461 (D.N.H. 1991) (finding that a hearing officer's ability to award relief must be coextensive with that of the court); Letter to Kohn, 17 EHLR 522 (OSEP 1991) ("Although Part B does not address the specific remedies an impartial hearing officer may order upon a finding that a child has been denied FAPE, OSEP's position is that, based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary, inclusive of compensatory education, to ensure that a child receives the FAPE to which he/she is entitled").