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CASE NUMBER: 597365 - NYC: 246693
ORDER OF RELIEF
Case Number: [REDACTED]
Student’s Name: [REDACTED]
School District: NYC Dept. of Education, [REDACTED]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: [REDACTED]
Hearing Requested by: Parent
Dates of Hearing: Accelerated Review (no hearing)
Record Close Date: 04/11/2023
Date of Decision: 04/16/2023 Order of Relief 2 Case No. [REDACTED]
Names and Titles of Persons Who Appeared (via electronic communications)
For the Student:
[REDACTED], Esq.
For the Department of Education:
[REDACTED], Esq.
Order of Relief 3
Background and Procedural History
On [REDACTED], the Parents, through their attorneys, filed a Due Process Complaint (DPC), against the New York City Department of Education (DOE or Department), on behalf of the Student, under Case No. [REDACTED], pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”).[1] More than 196 days elapsed without a hearing officer being appointed, giving rise to the Parents’ right to request Accelerated Review, pursuant to 8 NYCRR § 200.5(o). (See IHO Ex. II). On March 20, 2023, the Parents made such request (see id.), which also settled the issue of a free appropriate public education (FAPE), as “the district shall be deemed to have denied the student a free appropriate public education by virtue of the delay in the appointment of an impartial hearing officer.” Id. at § 200.5(o)(2).
With respect to the remaining issue of any award, the Rule calls for Parent to submit a “Proposed Order of Relief” along with supporting documentation within ten business days of my issuing a scheduling order, and the Department may submit objections and its own documentation two business days thereafter, followed by any response from the Parent two business days after the Department’s submissions. (See id. at § 200.5(o)(3)). Here, the scheduling order was issued on March 22, 2023 (see IHO Ex. II), the Parent’s submissions were timely made on April 5, 2023 (see IHO Ex. I), the Department’s submission were timely made on April 7, 2023 (see IHO Ex. III), and the Parent’s responsive submission was timely made on April 11, 2023 (see IHO Exs. IV, V, and VI).
With all submissions received, I issued a Certification of the Record on April 13, 2023 (see IHO Ex. VII), wherein all the exhibits (P-A through P-G, and D-A through D-V),[2] along with my own exhibits (IHO Ex. I through IHO Ex. VII) were admitted into evidence and certified as the record of this case. The final step in the Accelerated Review process is the instant decision. The Rule prescribes that I “shall issue a final determination in the form of: (a) the order of relief proposed by the parents; (b) the order of relief proposed by the parents as Order of Relief 4 Case No. [REDACTED] modified by the impartial hearing officer based upon the written record; or (c) a finding that no relief is warranted based upon the written record.” 8 NYCRR § 200.5(o)(3)(vi). Upon my review of the entirety of the certified record in this matter, the arguments and assertions of the Parties, and my consideration of applicable law, I conclude that this Order of Relief must take the form of “(b) the order of relief proposed by the parents as modified by the impartial hearing officer based upon the written record . . .[,]” id., for the following reasons.
Parent’s Position and Proposed Order of Relief
In the Parents’ Proposed Order of Relief, they request:
“1. Reimbursement to Parents for educational expenses (i.e., ABA and related services) incurred by the parents during the 2021-2022 school year due to the CPSE’s failure to provide a FAPE to [the Student]; “2.
Compensatory education
in the form of a bank of 1,050 hours (based upon 25 hours per week for 42 weeks) without expiration for 1:1 ABA instruction with a trained provider, under the supervision of a BCBA, to help catch [the Student] up to the levels he may have otherwise attained had he received a FAPE; “3. Direct funding during the 2022-2023 school year, beginning in July 2022, for 25 hours per week of in-home 1:1 ABA instruction with a trained provider under the supervision of a BCBA and with integrated parent training in each session; and “4. Direct funding for full-time, push-in 1:1 ABA instruction with a trained provider during the 2022-2023 school year.”
(IHO Ex. I).
Parents’ Due Process Complaint
In their DPC, the Parents assert, inter alia, the following. The Student has been diagnosed with Autism Spectrum Disorder (ASD) (¶ 2). They signed a consent for the Student to be evaluated by the Committee on Preschool Special Education (CPSE) in July 2021 and the Student’s individualized education program (IEP) meeting was held on November 29, 2021 (¶ 8), shortly before the Student turned REDACTED years old.[3] The IEP recommended a Special Education Itinerant Teacher (SEIT) for the Student, as well as speech-language therapy (SLT), occupational therapy (OT), and Parent counseling and training (PCAT) (¶¶ 9 to 10). [4] Order of Relief 5 Case No. [REDACTED]
The DPC further alleges the following. The DOE failed to obtain a SEIT for the Student before the end of the 2021-2022 school year (¶ 10). After the IEP meeting, the Student continued to show “difficulties,” so the Parents “referred him for a neurodevelopmental evaluation, conducted . . . in February 2022[,]” which confirmed the diagnosis of ASD (¶ 11). The parents emailed a copy of the neurodevelopmental report “to the CPSE and requested an IEP reconvene meeting to discuss the findings of the report.” (¶15). The CPSE did not respond to the email. (See id.)
According to the DPC, the Student requires more than a SEIT; “[i]t is important that his SEIT have specific experience working with children with ASD and utilizes the principles of ABA [applied behavioral analysis], given that language delays and social difficulties are major barriers to [his] learning and engagement in the classroom.” (¶ 12). It is therefore the Parents’ position that “[i]f a SEIT trained in ABA is not available, [the Student’s private] ABA provider should push into the classroom in order to provide [him] with the appropriate and necessary social, communication, and behavioral supports throughout the day.” (Id.) In addition, the Student “requires intensive in-home support from an experienced behavioral therapist (i.e., BCBA [Board-Certified Behavior Analyst] . . .) who utilizes the principles of . . . ABA . . . [with] at least 25 hours per week with integrated parent training in each session, to promote consistency and generalization of skills.” (¶ 14).
After the 2022-2023 extended school year began in July 2022, a SEIT was finally obtained for the Student. (¶ 16). The SEIT had limited availability, was not trained in ABA methodology, did not provide goals as an ABA instructor would, and was unable to address some of the Student’s maladaptive behaviors. (¶¶ 16 to 18). The Parents have resorted to paying for an ABA instructor, but they cannot afford to pay an instructor full time at school or 25 hours per week at home, as has been recommended by the neuropsychologist, so at different points during the 2021-2022 school year and the 2022-2023 school year, they have been able to pay as little as two hours per week of ABA services, up to 14 hours per week of ABA services. (¶ 6). [5] Order of Relief 6 Case No. [REDACTED]
Parents’ Proposed Order of Relief and DOE’s Objections to Each Proposed Relief
The Parents offered the following assertions and citations from their evidence in support of each of the four categories of relief they seek, and the Department offered the following objections and citations from the evidence for each of the Parents proposed categories of relief, as follows. [6]
1. Reimbursement for Educational Expenses for 2021-2022 School Year
The Parents’ contentions:
The evidence submitted supports Parents’ request for reimbursement for related services and ABA they provided during the course of the 2021-2022 school year. The DOE agreed in an IEP dated November 29, that the student requires speech language therapy three times a week and occupational therapy twice a week. (Ex. [P-]B at 12) The student’s neuropsychologist also recommended these services for him. (Exhibits [P-]F at 3, [P-]C at 8). The affidavit of the student’s mother states that the DOE failed to provide either speech or occupational therapy until March of 2022 and that parents provided these services themselves to the extent they were able. (Ex. [P-]E at 2). As such, there is a clear consensus that these services were necessary, and that the DOE was obligated to provide them. Parents are thus entitled to reimbursement for the costs of providing speech and occupational therapy up to the total IEP mandate.
The student’s IEP also recommended that the student receive special education itinerant teacher (“SEIT”) services for ten hours a week. (Ex. [P-]B at 12). Parent’s affidavit indicates that the DOE failed to provide any SEIT services during the 2021-2022 school year. (Ex. [P-]E at 2). Parent’s affidavit further states that they initially secured ABA services to help meet Rohan’s need for 1:1 services which were not being provided by the DOE and provided them from 2 to 5.5 hours per week. (Ex [P-]E at 2). As discussed further below, the record includes substantial evidence supporting the student’s need for an intensive program of ABA services, both at school and at home, including evaluations from the student’s neuropsychologist and developmental pediatrician, and affidavits from his neuropsychologist and behavior analyst. (Exhibits [P-]C, [P-]D, [P-]F, [P-]G) In an affidavit from the behavior analyst who provided these services, she stated that while not sufficient to meet his needs, he did benefit from them. (Ex [P-]G at 6) It is well established that an appropriate program for a student may include home-based services. See e.g.
T.Y. v NY City Dept. of Educ., 213 F Supp 3d 446, 476 [EDNY 201]). As such, parents’ request for reimbursement for the ABA hours they were able to provide during the course Order of Relief 7 Case No. [REDACTED]
of the 2021-2022 school year is reasonable and supported by the evidence, particularly in light of the DOE’s failure to provide the 1:1 SEIT support they recommended.
The Department’s Objections: NYCDOE RESPONSE [to category of relief 4]: The NYCDOE respectfully objects to the assertion that it has failed to provide FAPE to [THE STUDENT] in School Year 2021‐
2022. The unconstitutional, irrebuttable finding in this case, pursuant to 8 NYCRR
200.5(o)(2), is that the delay in appointing an impartial hearing officer during School Year 2022‐2023 was the denial of FAPE. [THE STUDENT]’s educational program for School Year 2021‐2022 was created by the IEP team after duly considering all educational and clinical evidence reasonably available to them, and the programs were reasonably calculated to enable [THE STUDENT] to make appropriate progress in light of his circumstances. As such, the NYCDOE respectfully objects to the assertion that [THE STUDENT]’s parents are entitled to any reimbursement arising from any allegations of any deficiencies in [THE STUDENT]’s educational programs compensable by compensatory education and/or compensatory services. [THE STUDENT]’s parents have proffered no documentary or testimonial evidence tending to demonstrate that they are otherwise entitled to relief.
NYCDOE RESPONSE [to category of relief 4]: The NYCDOE respectfully objects to the assertion that “there is a clear consensus that these services were necessary.” The NYCDOE acknowledges its obligation to provide speech‐language therapy and occupational therapy, and it arranged for [THE STUDENT] to begin receiving them by February 7, 2022. See [DOE Attorney] Aff. at ¶ 16 and [Ex. D-K]. The NYCDOE notes, however, that the neuropsychological evaluation data of Proposed Exhibits [P-]C and [P]F were carefully considered at the January 18, 2023 IEP meeting, and the IEP team declined to include ABA services as part of [THE STUDENT]’s educational supports and services in the finalized IEP; this omission suggests that the “clear consensus” is that ABA services are not educationally necessary for [THE STUDENT] to make progress, despite the neuropsychologist’s unsubstantiated pedagogical opinions to the contrary.
The NYCDOE does not dispute [THE STUDENT]’s parents’ right to seek and provide additional, supplementary educational services and supports for [THE STUDENT]; their desire to do so, however, is not dispositive of the necessity for such services and supports.
NYCDOE RESPONSE [to category of relief 4]: The NYCDOE acknowledges its obligation to provide SEIT services to [THE STUDENT], and, despite diligent efforts to do so, a SEIT provider was not located until June 21, 2022. See [D-V] at ¶¶ 19–24, 27, and 29–30; [DOE Attorney] Aff. at ¶¶ 12, 14, 16–18, 20, 23, and 24; and Exhibits [D-G, D-I, D-K, D–
M, D-O, D-R, and D-S]. The NYCDOE respectfully objects to the assertion that “the record includes substantial evidence supporting the student’s need for an intensive program of ABA services.” (Emphasis added.) The record of educational and clinical data available to [THE STUDENT]’s IEP teams indicates the contrary: Indeed, he made significant progress without ABA services to such a degree that he met some IEP goals within six months.
See, e.g., [DOE Attorney] Aff. at ¶ 19 and Ex. [D-N]at 5–6. These goals are in the same domains that Proposed Exhibits [P-]C, [P-]D, [P-]F, and [P-]G contend are his areas of Order of Relief 8 Case No. [REDACTED] deficit. Compare Ex. [D-N] at 5–6 with Proposed Exhibit [P-]F at ¶ 15 and Proposed Exhibit [P-]G at ¶¶ 22, 38.
[Additional objections:] The NYCDOE further objects to the characterization of Proposed Exhibit [P-]G as “an affidavit from the behavior analyst who provided these [ABA] services.” The record lacks any indication that the affiant . . . is [THE STUDENT]’s ABA service provider or has any sort of clinical relationship with him other than his being a student of an ABA therapist in her employ. Compare Ex. [D-T] at 26 (January 18, 2023 IEP attendance sheet indicating [another] participating as [THE STUDENT]’s BCBA) with Proposed Exhibit [P-]G at ¶ 32 (affiant affirming that she “ha[s] provided ABA supervision to” [THE STUDENT]) (emphasis added). As such, [the affiant] lacks a sufficient basis to opine on [THE STUDENT]’s educational progress; even if her academic and professional training supplemented her lack of direct experience with [THE STUDENT], her pedagogical conclusions are contradicted by the BCBA who worked with [THE STUDENT], attended his January 18, 2023 IEP meeting, and was able to interact with [THE STUDENT]’s other service providers who had presented favorable progress reports. Even if [the affiant] were [THE STUDENT]’s actual ABA provider, the pedagogical conclusions of her testimony via affidavit were rejected by the broader January 18, 2023 IEP team when it met, considered the neuropsychological evaluation that forms the basis of Proposed Exhibits [P-]C and [P-]F, and declined to recommend ABA on the resultant IEP for [THE STUDENT]
As such, the NYCDOE respectfully objects to the assertion that [THE STUDENT]’s parents are entitled to any reimbursement arising from any allegations of any deficiencies in [THE STUDENT]’s educational programs compensable by compensatory education and/or compensatory services. [THE STUDENT]’s parents have proffered no documentary or testimonial evidence tending to demonstrate the reasonability of or educational need for the ABA services [THE STUDENT]’s parents may have independently secured for him during School Year 2021‐2022 and/or School Year 2022‐2023. Furthermore, the NYCDOE does not dispute [THE STUDENT]’s parents’ right to seek and provide additional, supplementary educational services and supports for [THE STUDENT]; their desire to do so, however, is not dispositive of the necessity for such services and supports.
2. Compensatory Education Bank of 1,050 Hours for 1:1 ABA Instruction
The Parents’ contentions:
The evidence supports Parents’ claim for compensatory education consisting of a bank of hours equivalent to 25 hours per week of ABA therapy for each week of his 2021-2022 FAPE deprivation. The evidence supporting student’s need for an intensive program of ABA services includes his neurodevelopmental evaluation, progress notes from his developmental pediatrician, and the affidavits of both his neuropsychologist and behavior analyst. (Exhibits [P-]C, [P-]D, [P-]F, [P-]G). The neuropsychologist specifically recommended, both in her evaluation and affidavit, that the student receive 25 hours per week of home-based ABA services in addition to full-time ABA support in the classroom. (Ex. [P-]C at 8; Ex. [P-]F at 5). During the 2021-2022 school year, Parent arranged for at most 5.5 hours across both settings. Thus, the combination of 25 hours per week of Order of Relief 9 Case No. [REDACTED] compensatory ABA and reimbursement for ABA provided by the Parent still falls below the amount recommended by the neuropsychologist.
The student’s behavior analyst described the student’s improvement once ABA was being provided in both the home and school, making clear that it is an effective intervention. (Ex. [P-]G at 7). She also detailed the student’s significant continuing deficits, including repetitive stereotyped behavior, difficulty with transitions, rigid patterns of play, and yelling, hitting, or verbal refusal when told “no”. She indicates these issues continue to interfere with his ability to function in school and integrate socially and academically. (Ex. [P-]G at 7-8). Both the student’s behavior analyst and neuropsychologist supported the request for 1050 hours of compensatory ABA services, highlighting the importance of early intervention for students with ASD. Both also expressed that it could place the student closer to the position he might have been in had he received appropriate services during the 2021-2022 school year. (Ex. [P-]F at 5; [P-]G at 8) The record contains no evidence suggesting that student could make such progress with a lesser award. As such, both a quantitative analysis of the hours of service the student would have received had he been provided an appropriate program, and a qualitative assessment of his needs, supports Parents request for 1050 hours of ABA services.
The Department’s Objections: NYCDOE RESPONSE: The NYCDOE respectfully objects to the assertion that it has failed to provide FAPE to [THE STUDENT] in School Year 2021‐2022. The unconstitutional, irrebuttable finding in this case, pursuant to 8 NYCRR 200.5(o)(2), is that the delay in appointing an impartial hearing officer during School Year 2022‐2023 was the denial of FAPE. [THE STUDENT]’s educational program for School Year 2021‐2022 was created by the IEP team after duly considering all educational and clinical evidence reasonably available to them, and the programs were reasonably calculated to enable [THE STUDENT] to make appropriate progress in light of his circumstances. As such, the NYCDOE respectfully objects to the assertion that [THE STUDENT]’s parents are entitled to any reimbursement arising from any allegations of any deficiencies in [THE STUDENT]’s educational programs compensable by compensatory education and/or compensatory services. [THE STUDENT]’s parents have proffered no documentary or testimonial evidence tending to demonstrate the reasonability of or educational need for an unrestricted bank of 1,050 hours of 1:1 ABA services or that they are otherwise entitled to relief.
[Additional objections:] Furthermore, in addition to the preceding objection to this assertion, should a compensatory education award be deemed appropriate here, the NYCDOE respectfully objects to any award of any relief “in the form of a bank of...hours...for 1:1 ABA instruction” to the extent that the award is premised, in whole or in part, on effectuating the medical recommendations contained in Proposed Exhibits [P]C and [P-]F. See, e.g., Proposed Exhibit [P-]C at 8 and Proposed Exhibit [P-]F, ¶ 23. The function of compensatory education and/or compensatory services is to “to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P. v. Newington
Bd. of Ed., 546 F.3d 111, 123 (2d Cir. 2008). Determining what is sufficiently compensatory “require[s] a fact‐specific exercise” that eschews a “one‐for‐one formula” Order of Relief 10 Case No. [REDACTED] where every hour of FAPE denied justifies another hour awarded as compensation. Reid ex rel. Reid v. D.C., 401 F.3d 516, 524 (D.C. Cir. 2005); see also Bd. of Educ. of Fayette
Cnty., Ky. v. L.M., 478 F.3d 307 (6th Cir. 2007) (affirming rejection of “a rote hour‐by‐ hour compensation award”); and Application of the New York City Department of Education, SRO Appeal No. 21‐169. The educational and academic progress [THE STUDENT] made that was memorialized in the January 18, 2023 IEP justifies reducing the number of hours of ABA services to be awarded as compensatory relief. For avoidance of doubt, the NYCDOE asserts that the documentary evidence amply shows the inappropriateness of such relief here.
Furthermore, in addition to the preceding objections to this assertion, should a compensatory education award be deemed appropriate here, the NYCDOE respectfully objects to any award of any relief “in the form of a bank of...hours...for 1:1 ABA instruction” to the extent that the award is calculated starting from some point prior to when the NYCDOE may have been legally obligated to provide such services.
Notwithstanding the unsubstantiated assertion that "42 weeks” is the proper period requiring compensation, applicable regulations provide the NYCDOE up to sixty school days to arrange for any services [THE STUDENT] was entitled to receive, beginning from when the NYCDOE receives consent to conduct initial special education eligibility evaluations. See 8 NYCRR 200.4(e)(1). The NYCDOE did not receive parental consent for evaluations until October 13, 2021. See [DOE Attorney] Aff. at ¶ 7 and Ex. [D-B].
Applicable regulations justify reducing the number of hours of ABA services to be awarded as compensatory relief. For avoidance of doubt, the NYCDOE asserts that the documentary evidence amply shows the inappropriateness of such relief here.
NYCDOE RESPONSE: The NYCDOE respectfully objects to the assertion that it has failed to provide FAPE to [THE STUDENT] in School Year 2021‐2022. The unconstitutional, irrebuttable finding in this case, pursuant to 8 NYCRR 200.5(o)(2), is that the delay in appointing an impartial hearing officer during School Year 2022‐2023 was the denial of FAPE. [THE STUDENT]’s educational program for School Year 2021‐2022 was created by the IEP team after duly considering all educational and clinical evidence reasonably available to them, including the information contained in Proposed Exhibits [P-]C, [P-]D, [P-]F, and [P-]G, and the program was reasonably calculated to enable [THE STUDENT] to make appropriate progress in light of his circumstances. When [THE STUDENT]’s IEP team convened on November 29, 2021, it did not dispute Proposed Exhibit [P-]D’s medical conclusion that [THE STUDENT] is a student with ASD. See [DOE Attorney] Aff. at ¶ 11 and Ex. [D-F]. When [THE STUDENT]’s IEP team convened on January 18, 2023, it did not dispute Proposed Exhibit [P-]C’s medical conclusion that [THE STUDENT] is a student with ASD; when presented with extensive educational and academic data from [THE STUDENT]’s service providers that [THE STUDENT] was making educational and academic progress, however, the January 18, 2023 IEP team declined to adopt the contradicted pedagogical conclusions in Proposed Exhibit [P-]C that also form the basis of Proposed
Exhibits [P-]F and [P-]G. The January 18, 2023 IEP team considered the totality of [THE STUDENT]’s educational and academic data, considered the findings presented in Proposed Exhibit [P-]C, and declined to recommend ABA services for [THE STUDENT] in any settng, be it [THE STUDENT]’s classroom or his home. See [DOE Witness] Aff. at ¶¶
3, 32, 38; [DOE Attorney] Aff. at 25; Ex. [D-T]. Order of Relief 11 Case No. [REDACTED]
As such, the NYCDOE respectfully objects to the assertion that [THE STUDENT]’s parents are entitled to any reimbursement arising from any allegations of any deficiencies in [THE STUDENT]’s educational programs compensable by compensatory education and/or compensatory services. [THE STUDENT]’s parents have proffered no documentary or testimonial evidence tending to demonstrate the reasonability of or educational need for the ABA services [THE STUDENT]’s parents may have independently secured for him during School Year 2021‐2022 and/or School Year 2022‐2023. Furthermore, the NYCDOE does not dispute [THE STUDENT]’s parents’ right to seek and provide additional, supplementary educational services and supports for [THE STUDENT]; their desire to do so, however, is not dispositive of the necessity for such services and supports.
NYCDOE RESPONSE: The NYCDOE respectfully objects to the characterization of Proposed Exhibit [P-]G as coming from “the student’s behavior analyst.” The record lacks any indication that the affiant . . . is [THE STUDENT]’s ABA service provider or has any sort of clinical relationship with him other than his being a student of an ABA therapist in her employ. Compare [D-T] at 26 (January 18, 2023 IEP attendance sheet indicating
Brynn Schultz participating as [THE STUDENT]’s BCBA) with Proposed Exhibit [P-]G, ¶ 32 (affiant affirming that she “ha[s] provided ABA supervision to” [THE STUDENT]) (emphasis added). As such, [the affiant] lacks a sufficient basis to opine on [THE STUDENT]’s educational progress; even if her academic and professional training supplemented her lack of direct experience with [THE STUDENT], her pedagogical conclusions are contradicted by the BCBA who worked with [THE STUDENT], attended his January 18, 2023 IEP meeting, and was able to interact with [THE STUDENT]’s other service providers who had presented favorable progress reports. Even if [the affiant] were [THE STUDENT]’s actual ABA provider, the pedagogical conclusions of her testimony via affidavit were rejected by the broader January 18, 2023 IEP team when it met, considered the neuropsychological evaluation that forms the basis of Proposed Exhibits [P-]C and [P-]F, and declined to recommend ABA on the resultant IEP for [THE STUDENT] [Additional objections:] That both Proposed Exhibits [P-]F and [P-]G “support[] the request for 1050 hours of compensatory ABA services” may reflect the unanimity of [THE STUDENT]’s medical and neuropsychological evaluators, and such unanimity can assist an IEP team in understanding a student’s disability and in recommending appropriate pedagogical supports to help the student make appropriate educational and academic progress. See Grumer Aff. at ¶ 3. Medical and neuropsychological analyses, however, do not displace or replace the pedagogical analyses an IEP team is charged with making when considering the totality of [THE STUDENT]’s educational and academic data. See [D-V] at ¶ 3.
3. Direct Funding 25 Hours/wk of at-Home ABA for the Extended 2022-2023 School Year
The Parents’ contentions: The evidence supports Parents request for direct funding of 1:1 ABA instruction in the home for the 2022-2023 school year. As noted above, this service and frequency were specifically recommended by the student’s neuropsychologist, both in her evaluation and affidavit. (Exhibits [P-]C, [P-]F). The student’s behavior analyst’s affidavit makes clear that Order of Relief 12 Case No. [REDACTED] the commencement of ABA at-home yielded improvement and was effective, but that the student continues to have significant deficits which the current, non-ABA program has no prospect of addressing. (Ex. [P-]G at 7-8). She also described the importance of consistency and repetition to the success of an ABA program. (Ex. [P-]G at 4). The record thus supports the student’s need for 25 hours per week of at-home ABA services for the 2022-2023 school year. It is undisputed that the student requires services on a 12-month basis and as such this service too shall be on a twelve-month basis. (See Ex. [P]B at 13).
The Department’s Objections: NYCDOE RESPONSE: The NYCDOE respectfully objects to the assertion that it has failed to provide FAPE to [THE STUDENT] in School Year 2022‐2023. The unconstitutional, irrebuttable finding in this case, pursuant to 8 NYCRR 200.5(o)(2), is that the delay in appointing an impartial hearing officer during School Year 2022‐2023 was the denial of FAPE. [THE STUDENT]’s educational program for School Year 2022‐2023 was created by the IEP team after duly considering all educational and clinical evidence reasonably available to them, and the programs were reasonably calculated to enable [THE STUDENT] to make appropriate progress in light of his circumstances. As such, the NYCDOE respectfully objects to the assertion that [THE STUDENT]’s parents are entitled to any reimbursement arising from any allegations of any deficiencies in [THE STUDENT]’s educational programs compensable by compensatory education and/or compensatory services. [THE STUDENT]’s parents have proffered no documentary or testimonial evidence tending to demonstrate the reasonability of or educational need for direct funding of 25 hours of in‐home 1:1 ABA instruction or that they are otherwise entitled to relief.
NYCDOE RESPONSE: The NYCDOE respectfully objects to the assertion that [THE STUDENT]’s parents’ request for 1:1 ABA home instruction is supported by the evidence.
When [THE STUDENT]’s IEP team convened on January 18, 2023, it did not dispute
Proposed Exhibit C’s medical conclusion that [THE STUDENT] is a student with ASD; when presented with extensive educational and academic data from [THE STUDENT]’s service providers that [THE STUDENT] was making educational and academic progress, however, the January 18, 2023 IEP team declined to adopt the contradicted pedagogical conclusions in Proposed Exhibit [P-]C that also form the basis of Proposed Exhibits [P-]F and [P-]G. The January 18, 2023 IEP team considered the totality of [THE STUDENT]’s educational and academic data, considered the findings presented in Proposed Exhibit [P-]C, and declined to recommend ABA services for [THE STUDENT] in any setting, be it [THE STUDENT]’s classroom or his home. See [D-V] at ¶¶ 3, 32, 38; [DOE Attorney] Aff. at 25; and Ex. [P-T].
As such, the NYCDOE respectfully objects to the assertion that [THE STUDENT]’s parents are entitled to any reimbursement arising from any allegations of any deficiencies in [THE STUDENT]’s educational programs compensable by compensatory education and/or compensatory services. [THE STUDENT]’s parents have proffered no documentary or testimonial evidence tending to demonstrate the reasonability of or educational need for the ABA services [THE STUDENT]’s parents may have independently secured for him Order of Relief 13 Case No. [REDACTED] during School Year 2022‐2023. Furthermore, the NYCDOE does not dispute [THE STUDENT]’s parents’ right to seek and provide additional, supplementary educational services and supports for [THE STUDENT]; their desire to do so, however, is not dispositive of the necessity for such services and supports.
4. Direct Funding for Full-Time, Push-in ABA at School for the Extended ’22-’23 School Year
The Parents’ contentions: The evidence supports Parents’ request for full-time 1:1 ABA instruction during the school day for the student. This recommendation was supported by the student’s neuropsychologist in her evaluation and affidavit and developmental pediatrician in her progress notes. (Exhibits [P-]C, [P-]D, [P-]F). The provision of ABA support both in-school and at-home have proven to be effective for the student as reflected in the behavior analyst’s affidavit, which also notes that he has significant unaddressed behavioral needs. (Ex. [P-]G at 7-8) She also emphasized the importance of consistency in an ABA program and that the more time the student spends away from instruction, the more challenging it is to maintain skills (Ex. [P-]G at 6). Notably, while the student’s developmental pediatrician specifically recommended a full-time pre-school program (Ex. [P-]D at 3), Parent’s affidavit reflects that she felt constrained to limit the student’s time in pre-school to a part-time program due to the limited amount of ABA services she was able to provide him independently. (Ex. [P-]E at 3). Thus, the lack of full-time ABA support has resulted in the student missing important instructional time. For the foregoing reasons, the student is entitled to full-time ABA support in the classroom. It is undisputed that the student requires services on a 12-month basis and as such this service too shall be on a twelve-month basis. (See Ex. [P-]B at 13).
The Department’s Objections: NYCDOE RESPONSE [to category of relief 4]: The NYCDOE respectfully objects to the assertion that it has failed to provide FAPE to [THE STUDENT] in School Year 2022‐
2023. The unconstitutional, irrebuttable finding in this case, pursuant to 8 NYCRR
200.5(o)(2), is that the delay in appointing an impartial hearing officer during School Year 2022‐2023 was the denial of FAPE. [THE STUDENT]’s educational program for School Year 2022‐2023 was created by the IEP team after duly considering all educational and clinical evidence reasonably available to them, and the programs were reasonably calculated to enable [THE STUDENT] to make appropriate progress in light of his circumstances. As such, the NYCDOE respectfully objects to the assertion that [THE STUDENT]’s parents are entitled to any reimbursement arising from any allegations of any deficiencies in [THE STUDENT]’s educational programs compensable by compensatory education and/or compensatory services. [THE STUDENT]’s parents have proffered no documentary or testimonial evidence tending to demonstrate the reasonability of or educational need for push‐in 1:1 ABA instruction or that they are otherwise entitled to relief. Order of Relief 14 Case No. [REDACTED]
NYCDOE RESPONSE [to category of relief 4]: The NYCDOE respectfully objects to the assertion that [THE STUDENT]’s parents’ request for 1:1 ABA instruction during the school day is supported by the evidence. When [THE STUDENT]’s IEP team convened on January 18, 2023, it did not dispute Proposed Exhibits [P-]C’s and [P-]D’s medical conclusions that [THE STUDENT] is a student with ASD; when presented with extensive educational and academic data from [THE STUDENT]’s service providers that [THE STUDENT] was making educational and academic progress, however, the January 18, 2023 IEP team declined to adopt the contradicted pedagogical conclusions in Proposed Exhibit [P-]C that also form the basis of Proposed Exhibits [P-]F and [P-]G. The January 18, 2023 IEP team considered the totality of [THE STUDENT]’s educational and academic data, considered the findings presented in Proposed Exhibits [P-]C and [P-]D, and declined to recommend ABA services for [THE STUDENT] in any setting, be it [THE STUDENT]’s classroom or his home. See [D-V] at ¶¶ 3, 32, 38; [DOE Attorney] Aff. at 25; and [D-T].
As such, the NYCDOE respectfully objects to the assertion that [THE STUDENT]’s parents are entitled to any reimbursement arising from any allegations of any deficiencies in [THE STUDENT]’s educational programs compensable by compensatory education and/or compensatory services. [THE STUDENT]’s parents have proffered no documentary or testimonial evidence tending to demonstrate the reasonability of or educational need for the ABA services [THE STUDENT]’s parents may have independently secured for him during School Year 2022‐2023. Furthermore, the NYCDOE does not dispute [THE STUDENT]’s parents’ right to seek and provide additional, supplementary educational services and supports for [THE STUDENT]; their desire to do so, however, is not dispositive of the necessity for such services and supports.
[Additional objections:] The NYCDOE further notes that [THE STUDENT]’s parents do not allege and their proffered documentary evidence does not show any additional attempts to contact their Committee on Preschool Special Education (“CPSE”) liaison . . . or the CPSE more generally after the initial, unsuccessful attempt on July 19, 2022.
Furthermore, the NYCDOE objects to [the Parents] claiming that [THE STUDENT] needed ABA services to make adequate education progress; this claim is inadequately supported by the documentary evidence proffered by [THE STUDENT]’s parents in these proceedings, unsupported by the educational data available to the IEP teams that prepared [THE STUDENT]’s IEPs, and contrary to the consensus determinations of both of [THE STUDENT]’s IEP teams.
Affidavits
In addition to the documentary exhibits cited above, which are all found in the certified records I have reviewed and admitted (see IHO Ex. VII), the Parties offered the affidavits of four witnesses, three from the Parents, and one from the Department, which offered the following salient testimony. Order of Relief 15 Case No. [REDACTED]
Affidavit of Neuropsychologist (offered by Parent)
The Neuropsychologist who evaluated the Student testified as follows. She is a licensed clinical neuropsychologist and an assistant professor of Child and Adolescent Psychiatry at [REDACTED]. (See Ex. P-F ¶ 1). She performed “a comprehensive neurodevelopmental evaluation for” the Student “in February of 2022 and completed a report explaining the results and conclusions in May of 2022.” (Id. ¶ 9). The Student had been diagnosed with ASD in September of 2021, and her evaluation confirmed that diagnosis. (See id. ¶ 11).
The Student’s “cognitive abilities were measured . . . in the low average to average range, but due to the impact of his ASD . . . the tests likely underestimate his capability” so “he is a student with the potential to perform comparably to his same age peers if provided appropriate supports.” (Id. ¶ 14). ASD “impacts [an] individual’s ability to communicate, and interact with others” including “persistent deficits in social communication and interaction, along with restricted patterns of behaviors, interests, or activities.” (Id. ¶ 12). Because of this, “many children with ASD require intensive, consistent and highly specialized interventions in order to address their deficits . . . particularly during early development, [as it] is not only critical to allow for progress, but also to decrease maladaptive behaviors and prevent areas of regression.” (Id. ¶ 13).
Upon her evaluation of the Student, and after a review of his records and discussing the Student with the Parents, the Neuropsychologist agreed that the services recommended in the November 29, 2021 IEP were warranted (see id. ¶¶ 16 to 17), but it was her professional and clinical opinion that “he also requires an intensive program of Applied Behavioral Analysis (‘ABA’), both in-school and at-home.” (See id. ¶ 17). After describing the importance of ABA instruction and methodology to ASD (see id. ¶¶ 17 to 21), the Neuropsychologist explained why ABA was crucial for the Student, especially in light of what he was offered in the IEP at issue: “While there are various teaching methodologies that teachers may use in the classroom, these are not distinct therapeutic disciplines like ABA, do not have the same base of research support, and cannot substitute for a properly designed and implemented ABA program.” (Id. ¶ 20) (emphasis added). She added that ABA services “under the supervision of a Board Certified Behavior Analyst (‘BCBA’) [are] demonstrably effective in treating students with Autism and related disorders” (id. ¶ 21), and that if not “addressed aggressively early in life with Order of Relief 16 Case No. [REDACTED] appropriately tailored educational and therapeutic services[,]” the Student is “at risk of life-long challenges and need for support[.]” (Id. ¶ 24).
On the above, the Neuropsychologist recommended “full-time ABA support in the classroom, either from a SEIT who is able to utilize an ABA approach or by a supplemental ABA therapist” as well as “25 hours per week of home-based ABA therapy” because “these services, in conjunction with school-based ABA will assist with generalization of skills across settings.” (Id. ¶¶ 22 to 23). It is the Neuropsychologist’s further opinion that “a bank of 1,050 hours of ABA services to address the failure of the [DOE] to provide appropriate services . . . is appropriate, [as the Student] would benefit from these additional hours, and it could place him in a position closer to where he would have been had he received these services during the 2021-2022 school year.” (Id. ¶ 25).
Affidavit of Board Certified Behavior Analyst (offered by Parent)
The BCBA testified as follows. She is a licensed psychologist, a certified school psychologist, a Licensed Behavior Analyst, and a Board-Certified Behavior Analyst. (Ex. G ¶ 1). She is the owner of the ABA Facility, where she oversees the work of ABA therapists, performs ABA and PCAT, conducts functional behavioral assessments, develops behavioral intervention plans, and runs the Facility. (Id. ¶¶ 13 to 14). She has been providing ABA supervision to the Student since October of 2021. (Id. ¶ 32).
After describing the practices, purposes, and methodologies of ABA (see id. ¶¶ 16 to 28), the BCBA explained that she has “directly observed [how] intensive ABA services provided by or under the supervision of a . . . BCBA[] are highly effective in treating students with Autism and related disorders.” (Id. ¶ 29). She also finds at-home ABA important and beneficial, stating that ABA “is delivered both in direct 1:1 instruction and as a support to facilitate learning of behavioral regulation skills during other activities” so “[a]s such, a home-based program is often necessary for a student with ASD to retain the benefits of ABA therapy, generalize the skills across settings, and continued to build on them.” (Id. ¶¶ 30 to 31). In fact, “[t]he more time a student spends engaged in activities without ABA support, without the skills taught being reinforced, the more difficult it will be to retain skills and the greater the chances of regression.” (Id. ¶ 30). Order of Relief 17 Case No. [REDACTED]
The ABA Facility began providing approximately two hours per week of ABA to the Student in October of 2021, which increased up to 5.75 hours per week during the 2021-2022 school year. (Id. ¶ 34). The Student has also received up to 14 hours per week in total of ABA beginning July 2022. (See id. ¶ 36). The BCBA finds that the Student has benefitted from and has “responded positively to ABA therapy a[t] both at-school and at-home[,]” but it is also “clear he require[s] a higher intensity of programming to make meaningful gains, retain what he learned, and make progressive improvements.” (Id. ¶ 35 and 37). Some of his improvements include “learn[ing] to utilize various phrases as a means of appropriately meeting his needs . . . [which] has therefore significantly decreased his interfering behaviors across settings . . . [including] biting, spitting, and kicking[.]” (Id. ¶ 38). In addition, he “has learned to greet others appropriately, respond to direct questions, and follow multi-step instructions.” (Id.)
Further, “[a]t school, [the Student] initially engaged with a very limited number of toys and activities but since ABA services were introduced in the school setting, he is now engaging with a wider variety of toys, activities, and peers.” (Id.) Nonetheless, “his ASD continues to interfere with his functioning at school, where his behavioral and attention-related struggles impact his learning” and “he continues to engage in repetitive and stereotyped behavior, repeats specific phrases, and has difficulty transitioning between topics in conversation with peers and adults.” (Id. ¶ 39). His challenges continued to “prevent him from fully integrating into social and academic settings with same-age peers” and he “continues to display various avoidance and attention-seeking behaviors and will sometimes yell, hit, or verbally refuse when he does not get his way or when he is told ‘no.’” (Id.) He “requires more practice and teaching in order to build appropriate turn-taking and sharing skills at school and to build more tolerance for cooperative play with peers” and “more systematic teaching and reinforcement to learn to use functioning communication phrases with peers.” (Id.)
Given the experience the BCBA has had with the Student, and upon her professional and clinical judgment, it is the BCBA’s opinion that the Student “continues to require an ABA program in order to make progress commensurate to his age and ability.” (Id. ¶ 40). It is her further opinion that “1,050 hours of ABA services to compensate [the Student] for the failure of the [DOE] to provide appropriate services during the 2021-2022 school year” is something that “would be beneficial to [him] and could place him in a position closer to where he would have Order of Relief 18 Case No. [REDACTED] been had he received the[se hours] during the 2021-2022 school year” because “[e]arly intervention is particularly important for students with ASD[.]” (Id. ¶ 41).
Affidavit of the Parent (offered by Parent)
The final affidavit was offered from the Parent herself; she testified as follows. While he was still REDACTEED years old, the Student was diagnosed with ASD. (See Ex. P-E ¶ 1). In July of 2021, she signed a consent for an evaluation, and the CPSE met on November 29, 2021 to develop an IEP, wherein he was recommended SEIT for 10 hours per week, SLT three times per week, OT twice per week, and PCAT once per month. (See id. ¶ 4). The Student did not begin receiving SLT and OT until March of 2022, and the parents began paying for the services. (See id. ¶¶ 5 to 6).
The DOE never provided SEIT for the Student during the 2021-2022 school year. (See id. ¶ 7). The Parent had the neurodevelopmental evaluation performed of the Student in February 2022, and the Neuropsychologist recommended “25 hours per week of in-home ABA as well as a full-time SEIT who is trained in ABA and experienced in working with students with ASD” or “[i]n the absence of such a SEIT, she recommended his ABA therapist be present in his classroom to provide behavioral support.” (Id. ¶ 10). Consistent with these recommendations, the parents obtained ABA services, ranging from 2 to 5.5 hours per week. (See id. ¶¶ 7 to 8). Even with the amount of ABA instruction for which they pay, the Student’s “teachers continue to express concerns about his delayed social skills and behavioral rigidity, and [he] continues to show these problems at home.” (Id. ¶ 9).
The Department began providing a SEIT for the Student in July 2022, but the SEIT had limited availability, was not trained in ABA, and “the techniques she has used have not been targeted toward [the Student’s] behavioral and social pragmatic issues.” (Id. ¶ 13). The Student’s “behavioral issues increased during the summer of 2022” such as “eloping from the classroom, and requesting multiple bathroom breaks, up to ten times an hour.” (Id. ¶ 14). They have tried to provide as much of the recommended ABA in school and at home as is recommended, but they have not been able to pay for more than 14 hours in a week. (See id. ¶ 15). Because they cannot provide more ABA, they have chosen to limit the Student’s school days to two full-days and three half-days per week. (See id. ¶ 17). The parents have cooperated with the CPSE throughout the process of obtaining appropriate services for the Student. (Id. Order of Relief 19 Case No. [REDACTED]
¶ 15).
Affidavit of the CPSE Administrator (offered by DOE)
The Department’s sole witness was a preschool administrator of the CPSE that reviewed the Student’s evaluations and developed the November 29, 2021 IEP. (See Ex. D-V). As a CPSE Administrator, he holds two Master’s degrees, in Special Education and General Education, and in Educational Leadership and Administration. (See id. ¶ 7). His duties include preparing “IEPs[] for preschool students eligible for special education services” and “implementing [legal] mandates[,] . . . coordinating the assessment and placement of preschool students [,] . . . supporting families . . . through locating appropriate services[,] . . . working with assessment teams to ensure appropriate . . . recommendations[,] . . . and . . . continuously developing assessment teams’ capabilities . . . so that students may be educated in their least restrictive environments.” (Id. ¶¶ 3 to 4). He has worked with approximately 6,300 family families as a CPSE administrator and has prepared approximately 1,050 preschool IEPs. (See id. ¶ 8).
The CPSE Administrator became the Student’s Administrator on August 3, 2021. (See id. ¶ 11). After receiving written consent from the Parent on October 13, 2021 (see id. ¶ 12; see also Ex. D-B), the CPSE caused the Student’s initial assessments to be conducted, including “a psychological evaluation, a social history evaluation, and a speech-language evaluation.” (Ex. D-V ¶ 13; see also Ex. D-E). On November 29, 2021, an IEP meeting was convened, in which the Parent participated, and wherein the assessment materials, along with progress reports and other “available documents” were reviewed and the IEP program was developed. (See Ex. D-V ¶ 14). The IEP team “opined that he had expressive and receptive speech delays . . . difficulty with completing certain age-appropriate tasks and with transitioning between various activities in the preschool schedule . . . and fine-motor skill delays[.]” (Id. ¶ 15).
With respect to the Student’s disability, he was determined, “[o]n the Childhood Autism Rating Scale, [to have an] overall score of 34[, which] falls within the range to be expected of those identified with having mild to moderate autism” and “the parents agreed with the school and evaluator’s findings.” (Id. ¶ 15; see also Ex. D-F). The “IEP team agreed that [he] can access a general education curriculum with services to support development of his language, fine-motor, and social skills.” (Ex. D-V ¶ 14; see also Ex. D-F). In addition to recommending Order of Relief 20 Case No. [REDACTED]
SEIT to assist with classroom instruction, the team determined that the Student’s delays would “be addressed through speech-language therapy [and] . . . through occupational therapy” (Ex. DV ¶ 15; see also Ex. D-F). There was, however, “[n]othing presented at the IEP meeting indicat[ing] that [he] required one-to-one applied behavior therapy . . . to make educational progress[,]” as “1:1 ABA may be appropriate for some students in some situations, but [the Student’s] clinically identifiable areas of strength, areas of weakness, and IEP goals suggested that there were more appropriate, less restrictive education programs available to him.” (Ex. DV ¶ 15; see also Ex. D-F). It was therefore the CPSE Administrator’s opinion that “ABA is not essential to help [the Student] achieve his SY21-22 goals, given their emphases on helping him develop pragmatic speech in social settings such as a school environment” and that “the SY21-22 IEP’s education program was reasonably calculated to enable [the Student] to make appropriate progress in light of his individual circumstances.” (Ex. D-V ¶¶ 17 to 18; see also Ex. D-F).
The CPSE Administrator engaged in many attempts to obtain a SEIT service provider for the Student, including contacting at least 15 agencies, all of which declined to assist the Student; a SEIT provider could not be secured until June 2022, and SEIT services were administered the Student beginning on July 5, 2022. (See Ex. D-V ¶¶ 15 to 24, 27, and 28 to 30; see also Ex. DS). OT began on February 7, 2022, and SLT began on March 15, 2022. (See Ex. D-V ¶¶ 22 and 25; see also Ex. D-K). An SLT report of March 13, 2022 shows “that he was on track to meet his SY21-22 IEP’s speech-related annual goals” and it “contained an additional, more ambitious goal that . . . focused on his . . . pragmatic language skills with peers,” while an OT report dated June 15, 2022 shows that “he continued to make progress on his occupational therapy-related annual goals and short-term objectives” and it “provided additional, more ambitious updated SY21-22 IEP” goals and objectives. (Ex. D-V ¶¶ 26 and 28; see also Exs. D-N and D-P).
On January 18, 2023, the CPSE Administrator “caused to be convened . . . an IEP meeting where [he and the Parent] and the other IEP meeting participants joined by phone.” (Ex. D-V ¶ 31; see also Ex. D-T). The team reviewed the Neuropsychologist’s report, which had been “provided by [the Student’s] parents on July 19, 2022[,]” which “confirmed the results of [his] initial evaluations” and “concluded that [the Student] continued to display clinical signs of having autism[.]” (Ex. D-V ¶ 32; see also Ex. D-T). The IEP team considered this report, “alongside other information presented at the meeting, such as informal observations and form Order of Relief 21 Case No. [REDACTED] reports by [the Student’s] family and special education services providers.” (Ex. D-V ¶ 31). The “team noted that [he] acquired many academic and pre-academic skills in the preceding school year, though he continued to have deficits” that “are common traits displayed by individuals with autism[.]” (Ex. D-V ¶ 33). The team also noted signs of “his ability to exercise extended focus” such as his “SEIT not[ing] that, when [he] is interested in an activity, [the Student] can focus for at least 15 minutes on that activity.” (Ex. D-V ¶ 34). The SEIT also reported that, “with instructional support, [the Student] demonstrated greater willingness to attempt previously daunting activities and has found success in navigating them.” (Ex. D-V ¶ 34; see also Ex. D-T). There was also “considerable progress in expanding his expressive and receptive language skills” and his BCBA, who participated at the meeting, “noted [the Student’s] progress in social development, ability to interact with others, and [in] cultivating relationships with his peers” but “did not elaborate on her practice or intervention strategies used with [the Student] that might account for [his] growth during the preceding year.” (Ex. D-V ¶¶ 35 to 36; see also Ex. D-T).
On the above information, the CPSE “developed annual goals that focused on developing [the Student’s] skills in engaging in reciprocal play; sensory processing; receptive, expressive, and pragmatic language with peers and adults; and fine-motor control.” The parents agreed with the Student’s provider’s comments and characterization of his progress. (Ex. D-V ¶ 37; see also Ex. D-T).
As with the November 29, 2021 IEP, the team at the January 18 2023 IEP meeting concluded that “[n]othing presented at the IEP meeting indicated that [the Student] requires 1:1 ABA therapy to make educational progress[,]” as the Student’s “clinically identifiable areas of strength, areas of weakness, and IEP goals suggest that there were more appropriate, less restrictive education programs available to him.” (Ex. D-V ¶ 38). It was the CPSE Administrator’s continuing opinion that “ABA is not essential to help [the Student] achieve his SY22-23 IEP goals, given their emphases on helping him develop his social and language skills, sensory processing skills, and fine-motor control” (id.; see also Ex. D-T), and that “the SY22-23 IEP’s education program was reasonably calculated to enable [the Student] to make appropriate progress in light of his individual circumstances.” (Ex. D-V ¶ 39).
Credibility
Upon considering the evidence, including all admitted documents and the testimonies of the witnesses, I determine the following. With respect to the documents, other than the Order of Relief 22 Case No. [REDACTED] affidavits, I found them all relevant and representative of the facts for which they were offered, and I have no reason to doubt the contents found in each. I therefore credit all of the documentary exhibits that are not affidavits, and the relative weight I afford each of them will be reflected in the analysis.
As for the testimonies in affidavit form, I do not credit them all equally. Having reviewed the affidavits carefully, I find no reason to question the overall veracity of any of the witnesses, or the credibility of the factual statements contained in each affidavit. I also do not doubt the earnestness of the expert opinions provided by both parties; that said, I cannot credit them the same, as the Parent’s witnesses and the Department’s witness arrive at very different conclusions regarding what level of service was appropriate for the Student for the 2021-2022 school year, and is now appropriate for the current, 2022-2023 school year.
Resolving the differences between these opinions is crucial to this matter because I agree with the DOE that, notwithstanding a declaration of no-FAPE by operation of 8 NYCRR § 200.5(o), any remedy I fashion in a compensatory education/services case rests upon the degree to which the student was denied a necessary level of support during a previous time period, which requires me to analyze the appropriateness of the school district’s actions during that period. This invokes the relationship between whether there was a substantive lack of FAPE and the requested remedies.
Here, the Parent is asserting that the November 29, 2021 IEP and the steps the DOE took after it was known that ABA was being recommended constituted a denial of an appropriate program, which forms the basis for providing the Student now with a bank of hours to “make up” for the support the Student should have gotten during the 2021-2022 school year, and into the 2022-2023 school year. I cannot resolve this without first determining whether the IEPs were appropriate and, if not, then whether the ABA and other services requested by the Parent would fairly compensate the Student for what could be otherwise lost necessary services.
The Parent, through her affidavits at Exs. P-F and P-G, offered the expert opinion of the Neurologist and the BCBA, each a licensed doctor of psychology, who each independently (one through clinical evaluation and the other through the therapeutic application of services) concluded that the Student requires ABA full-time at school as well as at-home. The Neurologist is of the opinion that the Student requires 25 hours per week at home, while the BCBA did not Order of Relief 23 Case No. [REDACTED] offer a specific number of hours but did opine that “[t]he more time a student spends engaged in activities without ABA support . . . the more difficult it will be to retain skills and the greater the chances of regression.” (Ex. G ¶ 30).
The Department, on the other hand, submitted the affidavit (at Ex. D-V) of an administrator who, although credentialed in special education and education administration, and clearly well experienced in developing IEP programs for children, simply could not provide me with a clinical, therapeutic perspective as to why ABA was not necessary in order for the Student to have a fair opportunity to learn and to be able to progress academically, behaviorally, and socio-emotionally. At most, this testimony challenges the opinions of the doctors by stating that while 1:1 ABA may be beneficial to some ASD students, the Student’s strengths, weaknesses and IEP goals here “suggested” that other programs were more appropriate, as well as his opinion that ABA is not “essential” to the Student’s goals of “developing pragmatic speech in social settings, or developing social and language skills, sensory processing skills, and fine-motor control.” (Ex. D-V ¶¶ 15, 17 to 18, and 38). This testimony, however, does not specify what the range of more appropriate programs might be if it is not ABA, or why SEIT with SLT, OT and PCAT were sufficient and therefore why ABA is not essential to this Student. Most importantly, the testimony does not address why these opinions are the case notwithstanding the Neuropsychologist’s and BCBA’s findings and conclusions.
I find that the CPSE Administrator’s above opinions are unexplained, are not offered from the clinical or therapeutic perspective of someone with the qualifications to diagnose and treat ASD, and that they fall short of persuasively demonstrating that the psychologist’s opinions regarding ABA by or with a BCBA for this Student are not correct. I note that the Department could have had the Student reevaluated by a psychologist or an ABA provider or BCBA after receiving the Neuropsychologist’s report in July 2022, and then have such an expert present an opinion for my review, but the DOE did not. On this record, therefore, I find the opinions of the Parent’s experts more persuasive than the DOE’s CPSE Administrator’s opinion that the Student did not need in-school and at-home ABA by or with a BCBA. As such, I conclude that the Neuropsychologist’s and the BCBA’s opinions were more accurate and therefore more credible than that of the CPSE Administrator. The affidavits are credited in all other respects, and these findings will be reflected in the analysis. Order of Relief 24 Case No. [REDACTED]
Legal Framework
FAPE
The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[7] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[8] When the education district complies with the procedural requirements set forth in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established. [9]
The “appropriateness” in “FAPE” means that the IEP accurately reflects the results of evaluations to identify the Student's needs,[10] and then provides for the utilization of sufficient special education services,[11] and then is properly implemented.[12] In order to demonstrate a FAPE, the Department must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’”[13] The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” [14]
Where the relief sought is not funding of tuition at a private institution for a student’s school year of academic instruction, the parents have no burden of proof. A request for compensatory education or compensatory service, as is the case here, is such a form of non-tuition funding relief. Order of Relief 25 Case No. [REDACTED]
Compensatory Education and Compensatory Services
Compensatory education is an equitable remedy tailored to meet the unique circumstances of each case.[15] It must be designed to “make up” for past denials of FAPE and place the student in the position they would have been had the district complied with its obligations under the IDEA.[16] “[T]he inquiry must be fact-specific, and [in order] 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.”[17] The compensation may take the form of supplemental special education or in related services, with the goal of fashioning appropriate relief for a denial of a FAPE.[18] The compensation can also be crafted by either a “quantitative” approach (provided equal to the period of the FAPE deprivation) or a “qualitative” approach (provided as needed to address the student’s educational deficits resulting from the FAPE deprivation) approach. Courts have noted, however, that a “flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student’s] educational problems successfully.” [19]
In New York, when there is a lack of FAPE and the a parent or guardian seeks a compensation award, the burden lies with that district to “describ[e] its views, based on a factspecific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that [they] would have been but for the denial of FAPE.”[20] Even where DOE fails to offer its “position regarding the appropriate compensatory education remedy . . . an outright default judgment awarding compensatory education . . . and all of the relief requested without question . . . is a disfavored outcome[,] even where the district’s conduct in denying the student a FAPE Order of Relief 26 Case No. [REDACTED] and in failing to actively participate in the impartial hearing process is egregious[.]”[21] The specific award sought must be scrutinized because “services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity[,]”[22] and because “[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education.”[23] Nonetheless, in considering an award, I am mindful that I have at my disposal “various forms of retroactive and prospective equitable relief,”[24] with the only limitation being that the remedy “be appropriate in light of the purpose of the Act,”[25] and that damage awards are not available under the IDEA. [26]
Analysis
Free Appropriate Public Education
In the matter before, the question of FAPE has already been determined by operation of law due to the delay in assigning an IHO. (See 8 NYCRR § 200.5(o)). I have already agreed with the DOE, however, that determining FAPE on this particular procedural error alone makes it difficult to determine relief. The parents correctly point out that I may still issue an award – and I will – but it must “be appropriate in light of the purpose of the Act,”[27] regardless of which party has a burden to prove or disprove a particular remedy. In light of this precedent, and recognizing further my discretion to consider equitable factors in fashioning relief, 28 I have concluded that the only way to fairly determine whether the education and services requested by the parents are appropriate and therefore warranted is to determine the degree to which those requested services are tied to a substantive lack of FAPE in the Department’s actions since the Student’s disability was first brought to the DOE’s attention.
28 Florence County Sch. Dist. Four v. Carter by & Through Carter, 510 U.S. 7, 16 (1993). Order of Relief 27 Case No. [REDACTED]
Having credited all the exhibits, save some of the opinion evidence in the Department’s affidavit, I come to the following conclusions. The Department knew about the Student’s ASD in October 2021 and developed a program to address it in the November 29, 2021 IEP. (See Exs. P-B and D-F). At the time, neither party was aware of any opinion that ABA therapeutic instruction services might be the more appropriate method of providing services to the Student’s ability to learn.
The Neuropsychologist evaluating the Student in February 2022, completed her report in May 2022, which was not transmitted to the CPSE until July 19, 2022. (See Exs. P-C, P-F ¶ 9, D-V ¶¶ 31 to 32, and D-T). For reasons already elaborated in the Credibility section above, I am persuaded by the expert opinions of the Neuropsychologist and the BCBA over that of the BCBA Administrator, 29 and therefore credited the parents’ experts’ shared opinion that the Student would not be in a position to learn without an intensive course of in-school and at-home ABA services, administered either by or with the supervision of a BCBA.
Given the above, it is my opinion and determination on the law and facts of this case that the November 29, 2021 IEP was not “likely to produce progress[ instead of] regression” or “afford[]the student with an opportunity greater than mere trivial advancement.”[30] I note that because of the extended delay in being assigned this matter, the January 18, 2023 IEP did not exist when the DPC was filed. That said, I have reviewed it and find that it is substantially similar. It is therefore my further determination that neither IEP in evidence was “reasonably calculated to provide some ‘meaningful’ benefit” for the Student,[31] and that even if FAPE were not determined by operation of law, even if this were not an Accelerated Review matter, I would 29 I note two examples of why I do not credit the Administrator over the Neuropsychologist and the BCBA. First is the claim of the Student’s “significant progress” in the SLT report, made before it appears the Student was receiving ABA. (See Ex. D-N at pp. 5 to 6). Progress in language skills from the speech-language therapist’s perspective, are far removed from clinical opinion of two psychologists, who were considering how the Student’s ability to not just improve language skills but to be able to learn academics were impacted by ASD what was necessary to provide an opportunity for progress in all relevant areas (e.g. not just language but cognitive, executive functioning, socioemotional, etc.). Second, the Administrator and the DOE contend that the Student did not require ABA after reviewing available information at the January 18, 2023 IEP meeting. The Administrator did not address, however, that the progress they noted occurred after the Student began receiving ABA both in-school and at-home, and nothing was offered attempt to demonstrate how the Student would have progressed without out it. Order of Relief 28 Case No. [REDACTED] have independently determined, on this record, that there was a substantive denial of FAPE. The only issue, then, is whether the Student is entitled to all the relief requested by the Parents.
Compensatory Education and Compensatory Services
Because the parents seek a compensatory award, and because the burden of proof lies with the school district in New York for non-tuition reimbursement matters, the DOE had an obligation to “describ[e] its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that [they] would have been but for the denial of FAPE.”[32] Here, the Department never diverted from its position that a program of SEIT with SLT, OT, and PCAT and no ABA was appropriate, which I have found deprived the Student of a FAPE. I therefore must decide what is the most appropriate and equitable award within the bound of applicable law and the certified record before me.
In the DPC, the parents seek four things: (1) reimbursement for the payments they made for ABA services and related services they were able to provide the Student during the 2021-2022 school year; (2) a bank of 1,050 compensatory hours (without expiration) for ABA services provided by or with a BCBA, that the Student should have received but did not during the 2021-2022 school year; (3) direct funding for 25 hours per-week of 1:1 at-home ABA for the extended 2022-2023 school year; and (4) direct funding for a 1:1 full-time push-in ABA instructor while the Student is in school for the extended 2022-2023 school year. (See DPC). For the following reasons, I find that the parents are entitled to a modification of (1) and (2) with respect to the cost and a bank of services in line with what a non-ABA SEIT would cost and would have provided as recommended by and starting when the November 29, 2022 IEP went into effect and, with respect to (3) and (4) that the parents are entitled to the services described therein to the extent that the services should not be the responsibility of the DOE until it had a fair opportunity to review the evaluative materials provided by the parents and reconsider its recommended program. Order of Relief 29 Case No. [REDACTED]
November 29, 2022 IEP and 2021-2022 School Year
Consistent with its obligations, the Department sought and accepted the parents consent to evaluate and classify the Student on October 13, 2021, and it determined what it declared was an appropriate course of action within 60 days, in the November 29, 2021 IEP. (See Exs. D-B, P-B, and D-F; see also 8 NYCRR §§ 200.4(b)(1)(7), (d)(1), and (e)). The IEP listed a projected start date for services of January 12, 2022 (see Ex. P-B-1 and P-B-12), which I find reasonable, given that the DOE should have some time to find and initiate SEIT, SLT, OT, and PCAT services. The Department did not, however, begin any of these services on time. The SLT and OT did not begin until March 2022 (see Ex. P-E ¶¶ 5 to 6), and it was uncontested that SEIT did not start until July 5, 2022, which is after the 2021-2022 school year ended. (See id. ¶ 13; see Ex. D-V ¶¶ 15 to 24, 27, and 28 to 30, and Ex. D-S). The parents, therefore, were denied services as offered in the IEP, and deserve compensation for that loss, even before addressing when ABA services should have begun.
As for ABA therapy and instruction, the parents argue that it was necessary for the entire 2021-2022 school year, as well as with respect to the related services. I disagree. The Department cannot be responsible for services that it was not aware were more appropriate. This is the purpose of notice and evaluation embodied in §§ 200.4(b), (d), and (e). I therefore conclude, consistent with my equitable obligations, that the Department was not responsible for providing ABA, OT, SLT or PCAT before it knew of the necessity of those services, and had time to implement them. I find, with respect to related services, that this was January 12, 2023, as that date was the projected start date in the November 29, 2021 IEP. I note that the related services of SLT, OT, and PCAT should only be administered as recommended in the IEP. I reject the parents request for at-home PCAT (or its equivalent or a substantially similar format) during the Student’s at-home ABA. Nothing in the parents’ evidence, including the affidavits of the experts, suggests that PCAT was a necessary at-home component. I therefore find that the Department is only responsible for providing or paying for PCAT once per month in a group (60 minutes), as well as SLT thrice per week at 45 minutes per session (twice at 1:1, and once at 2:1), and OT twice per week at 45 minute sessions (1:1).
As for SEIT, the 10 hours a week recommended by the IEP should have started on January 12, 2023 as well; however, for reasons explained in the next subsection, I find that the Order of Relief 30 Case No. [REDACTED]
Department was not obligated to pay for an ABA or a BCBA during the 2021-2022 school year, and as far as September 3, 2022, except that the parents did begin paying an ABA. Under the circumstances, I find it fair and equitable, given that the Department failed to implement the special education (SEIT services) it recommended for much of the school year, that DOE should reimburse the parents for ABA services they obtained during the 2021-2022 school year, but only up to 10 hours per week, per the IEP, and only beginning January 12, 2022, and only at a rate equivalent to the average rate for a non-ABA trained SEIT provider. Because SEIT was never provided, and because the Parent’s did not describe for me home many in-school ABA hours they paid for, I will allow for a bank of hours equivalent to the number of SEIT hours that should have been provided beginning January 12, 2022, through September 3, 2022, minus any days for which the Parent seeks separate reimbursement of in-school ABA (at-home reimbursement is denied, for the reasons stated in the next subsection), and minus any days the Student did not attend school, be it by absence or an official school closure. I calculate this to mean the following:
• SEIT (or ABA): Two hours per day, based upon what was ordered in the November 29, 2021 IEP, beginning January 12, 2022, and continuing to September 3, 2022, minus any official “school closed” days, less two hours for any days the DOE has recorded as a Student having been absent from school, and less any hours (one-to-one ratio) for which the parents seek reimbursement for in-school ABA for the 2021-2022 school year and between July 1, 2022 and September 3, 2022. The rate to be paid shall be the equivalent to the high/low average rate paid to a non-ABA trained SEIT in the six months preceding this decision. At-home reimbursement for the 2021-2022 school year is hereby denied. • The DOE shall reimburse the parents for any OT, SLT, or PCAT as described above that was not so provided consistent with the November 29, 2021 IEP between January 12, 2022 and June 30, 2022, or it shall provide any non-reimbursed OT, SLT, or PCAT that was not provided during the 2021-2022 school year as a bank of hours. • Both banks (for ABA at SEIT cost as compensatory education, and for OT/SLT/PCAT as compensatory services) must be used within 18 months of the date of this order, and the DOE shall no longer be responsible for their payment after the 18-month period ends. Order of Relief 31 Case No. [REDACTED]
2022-2023 School Year
Regarding ABA, the Parent’s Neuropsychological report recommending ABA and BCBA services was not completed until May of 2022, and it was not transmitted to the DOE until July 5, 2022. Therefore, ABA was not recommended to the CPSE until after the new extended school year of 2022-2023 had began, on July 1, 2022. (See Educ. Law § 2(15). I have already held that the Department should have time to review new expert evaluative data and to reconsider the IEP. This is not a tuition funding case, so the ten-day notice provision of the IDEA does not apply. I find, therefore, that the Department should have reconsidered the November 29, 2021 IEP, and have recommended, consistent with its FAPE obligations, adding the following, by September 3, 2022, the 60th day after the DOE became aware of the ABA/BCBA recommendation. (Cf. 8 NYCRR §§ 200.4(b)(1)(7), (d)(1), and (e)):
• In-school, full-time 1:1 ABA services from an ABA-trained and experienced SEIT, or from a BCBA or an ABA with BCBA supervision, as well as 25 hours per week of 1:1 at-home ABA, administered either by a BCBA or by an ABA with BCBA supervision. The rate to be paid shall be the equivalent to the high/low average rate paid to an ABA (regardless of whether an ABA or a BCBA provides the service) in the six months preceding this decision. For any hours of such services that have not been provided or paid for since September 4, 2022, those hours shall be either reimbursed to parents at the above rate for any hours they paid for, or shall be provided as a bank of hours at a one-to-one equivalent to what have been provided (i.e., one hour for each school day hour, up to the number of school hours the student attended per week, or one hour for each at-home hour, but no more than 25 hours per week). • The DOE shall reimburse the parents for any OT, SLT, or PCAT as described above that was not so provided consistent with the November 29, 2021 and January 18, 2023 IEPs between July 1, 2022 and June 30, 2023, or it shall provide any non-reimbursed OT, SLT, or PCAT that was not provided during the extended 2022-2023 school year as a bank of hours. • Both banks (for ABA as compensatory education, and for OT/SLT/PCAT as compensatory services) must be used within 18 months of the date of this order, and the DOE shall no longer be responsible for their payment after the 18-month period ends.
The Department shall be ordered to pay for these services as described above. Order of Relief 32 Case No. [REDACTED]
DECISION AND ORDER
Upon the foregoing, it is hereby, Ordered, that the New York City Department of Education shall provide a bank of hours for ABA services, equivalent to two hours per day, based upon the hours ordered for SEIT services in the November 29, 2021 IEP, beginning January 12, 2022, and continuing to September 3, 2022, minus any official “school closed” days, less two hours for any days the DOE has recorded as the Student having been absent from school, and less any hours (one-to-one ratio) for which the parents seek reimbursement for in-school ABA for the 2021-2022 school year and between July 1, 2022 and September 3, 2022, and the DOE shall reimburse the parents upon the submission of invoices and proof of payment for any hours of the above ABA services for which the parents paid and do not seek to be part of the bank of hours; for the remaining hours constituting the bank of ABA hours for the period from January 12, 2022, and September 3, 2022, the DOE shall pay a rate equivalent to the average of the highest and lowest rates the DOE has paid to a non-ABA trained SEIT in the six months preceding this decision, available to the Student for use up to 18 months from the date of this decision; and, it is further, Ordered, that the DOE shall provide, for the Student, for the 2022-2023 extended school year, but not before September 4, 2022, through June 30, 2023, either a full-time 1:1 SEIT trained and experienced ABA therapy, and if one cannot be provided, a private, push-in ABA provider (or BCBA providing ABA therapy) of the parents’ choice, during all school hours, as well as 25 hours per week of 1:1 at-home ABA, administered either by a BCBA or by an ABA with BCBA supervision; if the services are administered by a private provider selected by the parents, the rate to be paid shall be the equivalent to the average of the highest and lowest rates paid to an ABA provider (regardless of whether performed by an ABA or a BCBA) in the six months preceding this decision; and, it is further, Ordered, that for any hours of private in-school or at-home ABA services that were to be provided (up to all school hours the Student attended in any week or up to 25 hours at-home) from September 4, 2022 through June 30, 2023, that have not been provided for which the parents found a provider and seek reimbursement for such services, those hours shall be reimbursed to parents at the above rate for any hours they paid for, upon proof of invoice and payment, but for any hours Order of Relief 33 Case No. [REDACTED] that were not provided for which the parents did not obtain such services, the Department shall provide them as a bank of ABA hours, available to the Student for use and paid for by the DOE up to 18 months from the date of this decision; and, it is further, Ordered, that the DOE shall provide SLT, OT, and PCAT as described (the same) in both the November 29, 2021 IEP and the January 18, 2023 IEP, and for every hour that was not so provided for which the parents paid a provider, the DOE shall reimburse the parents for any private services they obtained for such services, at a rate equivalent to the average of the highest and lowest rates paid to like providers in the six months preceding this decision for each such service; and, it is further, Ordered, that the DOE shall provide a bank of hours for any SLT, OT, or PCAT services that were to be provided as above but were not, and for which the parent did not obtain such services, in which case, the Department shall provide a bank of hours for each such service, available to the Student for use and paid for by the DOE up to 18 months from the date of this
decision.
So Ordered.
Dated: April 16, 2023
Richard J. Zeitler, Jr. (signed electronically) Impartial Hearing Office Order of Relief 34 Case No. [REDACTED]
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. Order of Relief 35 Case No. [REDACTED]
DISTRICT EXHIBITS
D-A. Progress Notes, [REDACTED] 09/28/2021 4 pages
D-B. Consent for Initial Evaluation 10/13/2021 1 page
D-C. [REDACTED] Student Report 10/22/2021 1 page
D-D. Evaluation Reports (various) 56 pages
D-E. Request for Commissioner’s Approval of Reimbursement for the Cost of Evaluations 11/29/2021 1 page
D-F. Individualized Education Program 11/29/2021 17 pages
D-G. DOE Emails Jan. 2022 9 pages
D-H. A1-P form (Approval and Authorization to Receive Special Education Programs/Service(s)) 01/20/2022 1 page
D-I. Final Notice of Recommendation C7P 01/24/2022 1 page
D-J. Preschool Agreement Letter 01/31/2022 1 page
D-K. DOE Related Service Tracking System Printouts 2/2 & 3/15/22 4 pages
D-L. DOE Emails 02/17/2022 2 pages
D-M. DOE Emails Feb./March 2022 4 pages
D-N. Speech-Language Therapy Annual Report 05/13/2021 6 pages
D-O. DOE Emails 06/14/2022 6 pages
D-P. Occupational Therapy Annual Report 06/15/2022 6 pages
D-Q. DOE Emails June 2022 6 pages
D-R. DOE Related Service Tracking System Screenshot (service authorization [REDACTED]) 03/30/2023 1 page
D-S. DOE Related Service Tracking System Screenshot (service authorization [REDACTED]) 03/30/2021 1 page
D-T. Individualized Education Program Order of Relief 36 Case No. [REDACTED] 01/18/2023 16 pages
D-U. C-8P Final Notice of Recommendation/Modification of IEP 03/16/2023 1 page
D-V. Affidavit of [REDACTED] 04/05/2023 10 pages
PARENT EXHIBITS
P-A. Hearing Request 08/25/2022 6 pages
P-B. Individualized Education Program 11/29/2021 15 pages
P-C. Neuropsychological Evaluation 02/01/2022 12 pages
P-D. Behavioral Pediatrics Progress Notes 09/28/2021 4 pages
P-E. Affidavit of Testimony: [REDACTED] 04/05/2023 3 pages
P-F. Affidavit of Testimony: [REDACTED] 04/03/2023 5 pages
P-G. Affidavit of Testimony. [REDACTED] 04/04/2023 9 pages
IHO EXHIBITS
II. I Parents’ Proposed Order of Relief (undated) [33] 5 IHO Scheduling Order 03/22/2023 3 pages IHO
III. DOE Objections to Parents’ Proposed Order of Relief 04/07/2023 24 pages IHO
IV. Parents’ Response to DOE’s Objections and Exhibits (undated) [34] 12 pages IHO
V. Emails regarding DOE post-submissions objections to Parents’ Response to DOE’s Objections and Exhibits 04/12/2023 14 pages IHO
VI. IHO response to DOE post-submissions objections to Parents’ Response to DOE’s Objections and Exhibits 04/12/2023 13 pages IHO
VII. Certification of the Record 04/12/2023 6 pages IHO
Footnotes
[1] See 20 U.S.C. § 1415(f), and New York State Education Law §§ 4404(1); see Ex. P-A.
[2] As used in this decision, exhibits beginning with “P-” refer to Parents’ exhibits, and exhibits beginning with “D-” refer to the Department’s exhibits.
[3] See DPC at pg. 1.
[4] See also Ex. P-B-12.
[5] See also Ex. P-E ¶¶ 8 and 15.
[6] I am listing the specific requests for relief and the Parents’ contentions offered under each from their Proposed Order of Relief. With one exception, the Department offered objections to every paragraph in the Proposed Order of Relief, not just the specific requests for relief paragraphs. To address this, I am including not only the objections to each of the Parents’ specific requests for relief paragraphs, I have also endeavored to include paragraphs of objections to other paragraphs in the Proposed Order of Relief that are related to the four categories, in order to provide a complete and accurate accounting of all the Department’s objections. As a result, some of the Department’s objection may appear in this decision as repetitive.
[7] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[8] See 34 C.F.R. § 300.13.
[9] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[10] See 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]).
[11] See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[12] See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[13] Cerra v. Pawling Cent. Schl. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130.
[14] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
[15] See Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997].
[16] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].
[17] Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").
[18] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, 546 F.3d at 123.
[19] Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007).
[20] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
[21] Application of a Child with a Disability, Appeal No. 22-004 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005).
[22] M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8, supra.
[23] C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 838 (3d Cir. 2010).
[24] See Doe v. East Lyme, 790 F.3d at 454.
[25] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[26] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[27] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[30] Cerra v. Pawling Cent. Schl. Dist., supra. (internal quotations and citation omitted).
[31] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
[32] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
[33] Submitted on April 5, 2023.
[34] Submitted on April 11, 2023.