New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 247141

Student’s Name: [REDACTED] (Student)

Date of Birth: [REDACTED]

School District: New York City Department of Education (DOE)

Hearing Requested by: [REDACTED] (Parent)

Date Complaint Filed: March 30, 2023

Date of Hearing: July 12, 2023

Record Closed Date: September 1, 2023

Date of Decision: September 1, 2023

Impartial Hearing Officer: Amy Randhawa, Esq.

INTRODUCTION

This case concerns the Student whose eligibility for special education supports and services is not in dispute. The Parent, through counsel, filed a Due Process Complaint (DPC) alleging that the New York City Department of Education (DOE) failed to offer the Student a free appropriate public education (FAPE) for the 2020-2021, 2021-2022 and 2022-2023 school years. P Ex. A 1.^[1] The DPC alleges, among other things, that the DOE failed to: recommend an appropriate program and placement; provide remote learning that was specially designed to meet the Student’s unique needs; provide extended school year services; follow the required evaluations and procedures when classifying the Student with a Learning Disability; meaningfully include the Parent; adequately assess the Student’s behavior and management needs; evaluate the Student; provide appropriate speech-language, occupational therapy, physical therapy, and counseling services; and develop meaningful and measurable goals. Id. at 10-15.

By way of relief, the Parent requests that the DOE: (1) promptly convene the Committee on Special Education (CSE) to develop an Individualized Education Program (IEP) for the Student which includes meaningful and measurable goals, a 12-month non-public school program, and the following related services based on the findings of the independent evaluators: speech-language therapy 2x45:1 and 1x30:2, and occupational therapy 2x45:1; (2) fund 966 hours of one-to-one tutoring at the rate of $175 per hour by a special education provider of the Parent’s choosing; (3) fund 138 hours of counseling services at the rate of $155 per hour by a counseling provider of the Parent’s choosing; (4) fund 207 hours of speech-language therapy at the rate of $185 per hour by a New York State licensed speech therapist of the Parent’s choosing; (5) fund 138 hours of occupational therapy at a rate of $185 per hour by a New York State licensed occupational therapist of the Parent’s choosing; (6) fund 46 hours of Assistive Technology instruction for the Student at the rate of $185 per hour by a provider of the Parent’s choosing; (7) fund 46 hours of Assistive Technology instruction for the Parent at the rate of $185 per hour by a provider of the Parent’s choosing; (8) fund 92 hours of Sensory Based Feeding instruction at the rate of $185 per hour by an New York State licensed occupational therapist of the Parent’s choosing; and, (9) fund a Sensory Based Feeding Evaluation at the rate of $2,200 to be conducted by a New York State licensed occupational therapist of the Parent’s choosing. IHO Ex. II: 18-19; Ex. OO:4; Tr. 52 ¶9-53 ¶8.

I find that: (1) the DOE denied the Student a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years; (2) the DOE did not carry its burden with respect to the relief; and, (3) the Parent’s requested relief, in general, is appropriate.

JURISDICTION

This due process hearing (DPH) was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. § 1400 et seq., and its implementing federal regulations, 34 C.F.R. § 300 et seq.; Section 504 of the Rehabilitation Act of 1973; and New York State Education Law § 4404 et seq. and its implementing regulations at 8 NYCRR § 200.5 et seq.

PROCEDURAL HISTORY

The DPC was filed on March 30, 2023, and I was appointed to hear this case on March 31, 2023. P Ex. A 1. The parties appeared for a pre-hearing conference on May 1, 2023, a status conference on June 7, 2023, and a DPH on July 12, 2023. Tr. 10 ¶¶1-19. At all appearances, the Parent was represented by the Parent Attorney, and the DOE was represented by the DOE Attorney. Id.

On May 11, 2023, I issued an interim order for independent educational evaluations (IEEs).

At the DPH, without objection from the Parent, the DOE entered exhibits 1-5, 7, 8, 13, 14, 16, 17, 20, 21, 24-30 into the record (Tr. 18 ¶8-24 ¶19), waived an opening statement (Tr. 28 ¶16-29 ¶2), offered no witnesses, rested its case relying on the documents submitted (Tr. 54 ¶¶13-17), and issued a closing statement (Tr. 86 ¶12-88 ¶8).

The Parent entered exhibits A through EE into the record,^[2] including testimony by affidavit from the Clinical Psychologist (P Ex. KK) who conducted a neuropsychological evaluation of the Student from MayJuly 2023 (P Ex. KK); the Parent (P Ex. LL); the Executive Director at the Provider Agency which provides evaluations as well as academic and therapeutic remediation services to students (P Ex. MM); and the Occupational Therapist and Assistive Technology (AT) Professional, an independent contractor of the Provider Agency, (P Ex. NN) who conducted an occupational therapy evaluation (P Ex. L) and AT evaluation (P Ex. M) of the Student in May 2023 and collaborated with the Executive Director to prepare the Compensatory Services Plan for the Student (P Ex. OO). Tr. 25 ¶16-28 ¶15; Tr. 81 ¶8-85 ¶22.

The DOE declined to cross-examine the Clinical Psychologist or the Occupational Therapist (Tr. 14 ¶¶12-22), but cross-examined the Executive Director (Tr. 54 ¶23-70 ¶25) and the Parent (Tr. 74 ¶8-78 ¶20). The Parent made opening (Tr. 29 ¶4-52 ¶8) and closing statements on the record (Tr. 88 ¶17-91 ¶23).

Following the DPH, both parties submitted briefs regarding whether the Parent’s 2020-2021 FAPE allegation is time-barred due to the two-year statute of limitations (SOL) and/or whether the DOE waived the SOL defense by failing to raise it pursuant to my DPH Order. IHO Ex. I; IHO Ex. II; IHO Ex. III.

FINDINGS OF FACT

I make the following findings of fact.

The Student is currently a [REDACTED] who began attended a DOE public school (DOE School) in kindergarten during the 2018-2019 school year. P Ex. A; P Ex. H:3. He and was re-classified in March 2023 as a student with an “Emotional Disability” and recommended a state approved Non-Public School (NPS), which he began attending at the end of the 2022-2023 school year in fourth grade. P Ex. C:1, P Ex. LL ¶1.

The Student received preschool special education services in the form of once-a-week speech and language therapy (SLT) for 60 minutes in a group of two. P Ex. AA:1.

In kindergarten, during school year 2018-2019, the Student was classified as a Student with Speech or Language Impairment. P Ex. I:1. The Student was placed in a general education classroom with integrated coteaching (ICT) support and provided SLT twice a week for 30 minutes in a group of 3 for a 10-month school year. Id. at 10-11. Of note, the Student’s kindergarten year IEP notes that he continued to present with difficulty utilizing age-appropriate expressive skills which prevent progress within the general education curriculum. Id. at 4.

In January 2019, at the Parent’s request, the DOE conducted a psychoeducational evaluation of the Student after the Parent reported behavioral and academic concerns. P Ex. Z:1. The evaluation found that the Student’s verbal development lagged in comparison to his development of logical reasoning skills and was an area for “continued intervention”; that he may have relative difficulty understanding visual information; achieved below age and grade level expectations in ELA, writing, and math; and may benefit from multiple interventions aimed at supporting his academic progress. P Ex. Z: 2, 5. However, the evaluation did not make any specific program recommendations. P Ex. Z.

In February 2019, the DOE held a CSE meeting, changed the Student’s classification to Learning Disability, continued to recommend a 10-month general education classroom with ICT support, reduced small group SLT from twice to once a week for 30 minutes, and added group counseling once a week for 30-minutes. Ex. H:1, 18. The IEP notes that in or around mid-October 2018, the Student started to become defiant and refused to participate in classroom activities, crawled around the room and under tables, threw his shoes and belongings, exhibited a lack of cooperation, required encouragement and praise in order to cooperate or respond to questions, displayed difficulty following simple directions, and was easily distracted. Id. at 5-7. Nonetheless, the did not recommend behavioral interventions, supports, or other strategies to address the Student’s behaviors or a behavioral intervention plan (BIP), and only provided counseling in a group setting.

Id. at 8. Further, although the IEP noted that the Student’s “informal language comprehension is significantly impaired,” and that he has made very little progress in speech to date during the 2018-2019 school year, the IEP reduced SLT services from twice to once a week. Id. at 5-6, 18.

In 2019-2020, during the Student’s first grade year, the Student performed below grade level in ELA, math, social studies, and science evaluations; required many supports and frequent 1:1 teacher assistance across all subjects to complete independent or small group work; and required verbal prompts and repetition to follow directions. P Ex. G: 1-2. The IEP developed for the Student on January 28, 2020 notes that the Student “requires a lot of adult support when doing independent work. He struggles to complete much work, even when receiving 1:1 assistance, unless he is given extra time. [The Student] also needs frequent verbal reminders to follow academic instructions, as he has trouble understanding even visual checklists. [The Student] has demonstrated to be a visual and kinesthetic learner and learns best in small groups with teacher support, with 1:1 assistance, through the use of visuals, manipulatives, simple instructions, modeling and repetition.” Id. at 2. Further, the IEP notes that the Student “has severe difficulty with learning, processing, recalling, and retaining information, and learns at a slower rate than his same age peers” and could “benefit from occupational therapy to strengthen and build stamina for his writing tasks as well as maintaining focus during all activities.” Id. at 3. The Parent communicated her concerns to the DOE that the Student may need a smaller class because he is not making academic progress in the ICT classroom and because there are too many students and too much noise for him to learn. Id. at 5, 6. Nonetheless, the DOE continued the Student’s 10-month placement in an ICT classroom, reinstated small group SLT services from once to twice a week for 30 minutes, and reduced group counseling services from once a week for 30-minutes to twice a month for 30-minutes, through the end the 2019-2020 school year. Id. at 16-17; P Ex. F:16. The DOE did not provide any OT services. P Ex. G: 16-17.

On February 5, 2020, the Student’s Special Education Teacher requested a re-evaluation of the Student, noting that the Student struggled “immensely” in the ICT first grade setting, even with the support of two teachers and two paraprofessionals, and “needs modified work and a smaller class size in order to grow academically.” P Ex. EE; P Ex. F:23. The teacher reported that the Student was very sullen, melancholy, and withdrawn; didn’t engage in conversations or have any age-appropriate play with friends; could not do any classwork independently, including write anything or calculate any math skill without support; did not know any sight words or recall 1-2 letter sounds; did not know his numbers, how to count, or how to do basic addition or subtraction; could not verbalize when he needed help; never participated; and shut down when asked to engage in classroom activities and/or became defiant and easily embarrassed. P Ex. EE.

On May 29, 2020, the DOE developed an IEP for the 2020-2021 school year changing the Student’s placement from an ICT classroom to a 12:1:1 (eight times per week for Math, eight times per week for ELA, two times per week for Social Studies, and two times per week for Sciences), with the same related services (group counseling twice a month for 30 minutes, and small group SLT twice a week for 30 minutes) in a 10-month program. P Ex. F: 16-17. The IEP notes that an OT screening was recommended in September 2020 to determine if OT intervention supports should be implemented. Id. at 22. However, the Parent asserts, and the DOE does not refute, that no OT evaluation was conducted during the 2020-2021 school year. IHO Ex. II: 5; P Ex. A: 4. Due to the COVID-19 pandemic, the Student remained in remote instruction through the 2020-2021 school year. Id.

During the 2020-2021 school year the Student was in second grade at the DOE School through remote instruction and although he was moved from an ICT to a smaller 12:1:1 program, he continued to struggle academically and performed below grade level on all reading and math evaluations. P Ex. E:1-2. Towards the end of the school year, the Student could only read 3 out of 40 sight words taught, and performed at a kindergarten level in both reading and math. Id. at 2-3. Further, the Student struggled with remote learning, his attendance was inconsistent, he frequently had his camera off or was not visible, and he often did not respond to direct questions. Id. The Student was excessively absent for SLT and did not join counseling sessions consistently. Id. at 4-5.

On May 20, 2021, the DOE developed a new IEP for the Student effective June 7, 2021. P Ex. E:1. The IEP notes that the Student has difficulty engaging with peers and teachers in a small group setting and is “much more receptive to talking and working when he was one-to-one with the teacher” and that the Student’s ELA and math difficulties have a direct effect on his participation within the general education curriculum and the Student needs the guidance and support of a full time special education teacher, speech and language provider, and guidance counselor. Id. at 5, 7. Nonetheless, the DOE continued to recommend a 12:1:1 special education class (increasing sessions from eight to ten times per week in Math and ELA, and continuing sessions two times per week for Social Studies and Sciences), along with the same related services of group counseling (twice a month for 30 minutes) and small group SLT services (twice per week for 30 minutes in a group of 3) in a 10-month program. Id. at 16-18.

During the 2021-2022 school year, the Student returned to in-person learning at the DOE School for third grade in a 12:1:1 program along with group counseling and SLT services, and continued to struggle academically and behaviorally and require constant redirection and reinforcements to be engaged and participate in the classroom and during related services. P Ex. D:1-3. Although in third grade, the Student performed at a kindergarten level on reading and math evaluations; did not know all the letters; and could only read numbers and count to 20. Id. at 2-3. The Parent reported that the Student could not read or write, that he refused to complete assignments, walked out of the classroom, and disrupted other students. Id. at 2. Teachers similarly reported that the Student provided minimal effort during instructional and independent reading time, demonstrated limited motivation to complete academic tasks, and struggled or refused to do work most of the time. Id. at 2, 5. Both the Parent and the Student’s SLT provider noted that he could not express his feelings, thoughts and ideas effectively. Id. at 2-3. Further, the Student’s teachers reported that when upset, the Student displayed a variety of behavior including shutting down, not verbalizing his wants or needs, and running away from the assigned location. Id. at 5. Also, the Student became physically aggressive, mostly toward objects, and banged his body against the classroom door and kicked his desk. Id. at 5. These behaviors could last from 10 minutes up to 3 hours and the guidance counselor had to support the Student numerous times throughout the school year. Id.

On May 17, 2022, the DOE conducted a Psychological Update of the Student at the Parent’s request. P Ex. W. The DOE noted that the Parent requested a re-evaluation during the 2019-2020 school year which was not completed due to the COVID-19 pandemic and that the Student’s general ability was last assessed three years earlier, in January 2019. Id. at 1-2. The results indicated “significant problems” with academics; learning problems, including completing assignments, keeping up with lessons, maintaining good grades, reading and spelling; study skills, including completing homework, reading, staying focused, staying organized, and studying; and aggression. Id. at 3-4. The evaluation found that the Student functioned within the extremely low range for cognitive ability and overall verbal skills. Id. at 2-3. The Student’s scores on learning problems, study skills, and aggression fell in the clinically significant range, and areas of concern included adaptability, depression, attention problems, functional communication, leadership, atypicality, social skills, withdrawal (anxiety), and hyperactivity. Id. at 3. The evaluation found that the Student would benefit from the use of positive behavioral supports as necessary, and a structured environment with clear and concise expectations in order to improve his ability to cope with frustration, increase stamina and tolerance for academic tasks, as well as increase motivation. Id. at 5. Further, the evaluation found that that the Student may benefit from multiple interventions aimed at supporting his academic progress, and from dialogic reading which involves adults asking the child specific questions about reading material to encourage interest, comprehension, and critical thinking. Id. at 5-6.

On June 17, 2022, the DOE held a CSE meeting and developed an IEP for the Student effective June 21, 2022. P Ex. D:16. The IEP notes the Parent’s concerns, including that the Student continued to struggle in the 12:1:1 setting, failed to demonstrate academic progress, and the Parent requested more counseling support for the Student as well as updated in-person assessments because the Student was not formally evaluated during the most recent Parent-requested re-evaluation. P Ex. D: 2, 4, 22. Nonetheless, the DOE continued to recommend a 10-month program in a 12:1:1 special education class (decreasing sessions from ten to eight times per week in Math and ELA, removing two sessions a week for Social Studies, and continuing sessions two times per week for Sciences), along with the same related services of group counseling (which increased from twice a month for 30 minutes to once a week for 30 minutes) and small group SLT services (which remained the same in duration and frequency, twice a week for 30 minutes, but increased from a group of 3 to a group of 4). Id. at 16-17. Further, although the IEP noted that a “10-day behavioral checklist will begin in Sept. 2022 in order to start the process of creating a BIP,” the IEP still failed to identify the Student as needing positive behavioral interventions, supports and other strategies to address his behaviors and selected “No” in response to whether the Student needed a BIP. Id. at 6-7. The IEP noted that general education, special education teacher support services (SETSS), and ICT were considered and rejected because the Student’s “needs can be met in a Special Class in a community school 12:1+1 with the support of related services of counseling and speech.” Id. at 23.

During the 2022-2023 school year, while in the 12:1:1 program, the Student continued to exhibit concerning behavior in school including leaving the classroom and refusing to return, shouting “No” when asked questions or directives by adults and actively defying orders, throwing himself and objects on the floor, barricading himself underneath a table, and screaming and sobbing. P Ex. DD. As early as October 11, 2022, the School Counselor requested additional services to better support the Student given the aforementioned behaviors and on November 17, 2022, the Student had an incident in which he refused to remain with his class, ripped down posters and bulletin boards, ran up and down the stairs, refused to speak and express his needs, and was found “on the floor kicking, crying, and screaming, with his sneakers off.” Id.; P Ex. CC. On December 5, 2022, the DOE developed a BIP for the Student noting that he engaged in avoidant and attention seeking behaviors including refusal to follow directions, running away, and disrupting the class physically and verbally; had difficulty expressing his wants; refused to do work most of the time; and struggled with transitions outside the classroom. P Ex. P. However, the independent Neuropsychological Evaluation accurately found that the BIP created by the DOE was incomplete and inadequate as it failed to include appropriate intervention strategies to address the Student’s maladaptive behavior, failed to include strategies to teach him alternative and adaptive behaviors, and failed to include appropriate and adequate positive reinforcement strategies. P Ex. J:6. Further, the evaluation noted that the BIP was not based on information from a detailed and complete Functional Behavior Assessment (FBA), which the Clinical Psychologist who completed the evaluation held is the sole method of data collection that contributes to an accurate BIP. Id.

Throughout 2022, the Parent obtained various independent assessments for the Student,^[3] culminating in a December 2022 report diagnosing the Student with a learning disability, language disorder involving understanding and expression of language, mixed receptive-expressive language disorder, and hyperactivity. P Ex. Q. The report found that the Student’s reading, writing, and math skills fell in the extremely low range; his inattention appeared to be a consequence of language and learning difficulties; and, the Student’s basic academic skills were not yet automatic and required significant cognitive resources to successfully complete tasks which depleted the cognitive resources available for higher order skills such as sustained attention and memory. Id. at 2. The Student presented with deficits in receptive and expressive language; slightly elevated levels of hyperactivity; and low self-esteem that impacted his motivation in school. Id. at 2-3. The report noted that the Student’s learning difficulties may have been upsetting and frustrating and that given his language impairment, the Student may not have had an adaptive outlet through which he could express these feelings resulting in the Student acting out in school engaging in off-task, defiant and disruptive behaviors due to frustration or avoidance of completing challenging academic tasks. Id. at 3. Also, given the Student’s language weakness, the evaluators noted that it may have been difficult for the Student to share his feelings with others and establish and maintain healthy peer relationships. Id.

The evaluators recommended that the Student be placed in a small, supportive, language enriched classroom; that he continue to receive school-based SLT two times per week; that he continue to receive school-based counseling; that he receive an intensive, phonics-based, multisensory reading program such as the Wilson Reading System, or another Orton-Gillingham based approach; that he receive a FBA and a BIP to address behavioral concerns in school; that he receive a follow up with audiology; and that he be referred for psychotherapy to improve his frustration tolerance and emotional/behavioral functioning. Id.

In addition, a January 17, 2023 psychiatric evaluation conducted on behalf of the DOE diagnosed the Student with Attention Deficit Hyperactive Disorder (ADHD), combined; a Rule Out of selective mutism; Autism Spectrum Disorder (ASD), pending confirmation with neuropsychological testing and autism diagnostic observation schedule (ADOS) testing; persistent depressive disorder with anxious distress; receptive and expressive language disorders; reading and language disorder involving the understanding and expression of language; and communication disorder. P Ex. O. The evaluator found that the Student’s emotional issues and his learning disabilities needed to be addressed with equal concern and effort, that it was urgent that he be treated for his anxiety and depression and receive all academic remedies that could assist him with his learning issues. Id. at 7. The evaluation recommended that the Student be placed in a small, nurturing private or non-public school placement with all the resources required to help him with his learning problems, social skills deficits and his behavioral issues, including that the new placement include Applied Behavioral Analysis (ABA) in the school curriculum to help the Student with his self-regulation, hyperactivity and emotional issues. Id. at 8. The evaluation also recommended tutoring to remedy his severe reading and language disorder, psychiatry and psychotherapeutic interventions to treat the Student’s depression, anxiety, and avoidant behaviors; and parent counseling and training. Id.

On March 13, 2023, the DOE created an IEP for the Student effective May 1, 2023, changing the Student’s classification from Learning Disability to Emotional Disability and recommended a 10-month 8:1:2 special education in a NPS, eight times per week for ELA, eight times per week for Math, and two times per week for Sciences4, with related services of individual counseling one time per week for 30 minutes and group SLT one time per week for 30 minutes. P Ex. C:1, 15-16. The Student’s teachers indicated that his misbehaviors drastically increased, that instructors suspect that the Student is in crisis, school-based interventions have not been successful, EMS has been called to assist, and the Student gets very upset at small occurrences or inconveniences and responds by destroying classroom material, flipping chairs, kicking the classroom door, guttural crying or grunting, and/or throwing himself on the floor. Id. at 2-4. Further the IEP The IEP lists “Sciences” twice and omits Social Studies, which may have been a clerical mistake. P Ex. C:15. notes that the Student continued to perform below grade level in all areas; refused to participate in all academic ELA lessons, even with individual support and prompting; and that there was no math academic data because the Student refused to complete work and assessments. Id. at 3-4.

The Parent obtained IEEs for the Student from May through July 2023, including a Neuropsychological Evaluation (P Ex. J), a Speech-Language Evaluation (P Ex. K), an Occupational Therapy Evaluation (P Ex. L), an AT Evaluation (P Ex. M), and a Physical Therapy Evaluation (P Ex. N). Further, the Parent obtained a comprehensive Compensatory Services Plan from the Provider Agency (P Ex. OO) recommending a specific remediation program to remedy any deficits in counseling, OT, AT, and speech/language. P Ex. MM ¶9. The plan was developed by experts, including those who conducted the Student’s OT, AT, and speech-language evaluations, after a thorough review of the Student’s educational records and the results of the Neuropsychological Evaluation. Id. at ¶¶ 10-11. The Compensatory Services Plan recommendations are based on a qualitative, rather than quantitative, analysis. The Executive Director credibly testified that the recommendations - which vary from one year for AT instruction, to two years for sensory-based feeding instruction and OT, to three years for Individualized Academic Remediation (IIAR), counseling, and SLT – are based on the qualified professionals’ opinions regarding the shortest amount of time needed to remedy the Student’s deficits, get him back on track, and make the Student whole within a reasonable amount of time while also avoiding regression. Tr. 71 ¶2-72 ¶22.

The Neuropsychological Evaluation, conducted at the end of the Student’s fourth grade by the Clinical Psychologist, found that he was functioning only at the prekindergarten to kindergarten level in all academic areas, well below his grade; there was a “huge gap between his intelligence and educational skill set,” causing profound frustration due to his lack of progress and resulting in emotional dysregulation; and, that the Student has “serious language-based learning disorders” and presents with dyslexia and dysgraphia, as well as significant deficits in language processing, phonological processing, auditory processing, attention, and executive functioning. P Ex. KK ¶¶14, 16. The Student was diagnosed with Social Pragmatic Communication Disorder; Specific Learning Disorders in reading (dyslexia), written expression, and math; ADHD; and met the criteria for ASD and Language Disorder. Id. at ¶14.

The Clinical Psychologist asserted that because the Student is far behind, it will take time and intensive instruction to remediate his deficits given his language-based learning disabilities and attentional deficits; and recommended a very specialized quiet, flexible learning environment that allows him to move at his individualized pace needs, and placement in a small class in a specialty nonpublic school program for children with language-based learning disabilities, behavioral dysregulation and ADHD. Id. at ¶¶19-20. The Clinical Psychologist also asserted that the Student requires the use of evidence-based sequential instructional methodologies developed for children with language-based learning disabilities; an appropriate AT device and instructional support for the Student and Parent to ensure effective use of his AT device; one-one-one intensive instructional remediation program addressing his reading and writing skills outside of school; remediation program to address his phonological processing deficits, receptive and expressive language deficits, executive functioning deficits, and any fine motor or sensory-based processing deficits. Id. at ¶¶21-24.

Further, the Clinical Psychologist supported the Compensatory Services Plan’s recommended compensatory bank of hours of tutoring, speech-language therapy, OT, and AT instruction, explained below; found that the Student immediately requires a Central Auditory Processing evaluation by an experienced audiologist5; that the Student requires 1000 compensatory hours in reading, 1000 hours compensatory hours in math, 1000 compensatory hours in writing; and that the Student’s educational classification should be Learning Disability 6, and he should be provided with a full 12-month educational program. Id. at ¶¶25-28.

The Compensatory Services Plan recommends the following7: (1) a bank of 966 hours of compensatory IIAR, tailored for the Student at 7 hours weekly (3 hours of Orton Gillingham instruction, 2 hours of Writing, and 2 hours of Math) for 46 weeks for 3 years to be implemented by a Special Education teacher. P Ex. OO: 7; P Ex. MM ¶15. The Executive Director credibly testified that she has over twelve years of experience as a special education teacher and developed the 966 hours recommendation after reviewing the Student’s DOE educational records and comprehensive evaluations, along with the Student’s present levels of performance, and determined the amount of compensatory one-on-one services the Student needs in order to bridge the very large deficits between him and his peers and place him back on track had he been provided an appropriate placement and interventions by the DOE. Tr. 58 ¶10-62 ¶22.

(2) a bank of 138 hours of compensatory Counseling, a formula of 1 hour weekly8 for 46 weeks for 3 years to be implemented by a licensed Clinical Social Worker or licensed Mental Health Counselor to remedy the DOE’s failure provide an appropriate counseling program to the Student for years; address the challenges of the additional supports being provided as a result of his previously inappropriate program; and, provide strategies to address his generalized anxiety. P Ex.

OO: 4, 7-8; P Ex. MM ¶18.

(3) a bank of 207 hours of compensatory SLT, a formula of 1.5 hour weekly for 46 weeks for 3 years to address the Student’s deficits in expressive language, receptive language, attention, listening comprehension, and social language skills that should have been appropriately developed by previous school programs. P Ex. OO: 32-33. The plan explains in detail the rationale for the SLT recommendation, noting that the DOE had evaluative data indicating the severity of the Student’s deficits and how his verbal expression, phonological awareness, and cognitive skills impacted his ability to access the curriculum and participate at school, however the DOE failed to develop appropriate speech-language goals or provide him with the required more intensive and specialized supports. Id. at 11-13. For example, the Speech-Language Pathologist who conducted the Student’s Speech-Language Evaluation (P Ex. K) and developed the plan’s SLT recommendations asserted that it was an “injustice” that despite the Student’s demonstrated failure to make progress in SLT, in 2019, the DOE reduced SLT services from twice a week to once a week, and that it is

“inexcusable” that the same IEP only provided a single inadequate expressive language goal for 5 The Parent did not request this specific remedy in their Closing Brief or at hearing, but it is considered in my Order. IHO Ex. II: 18-19; Tr. 49 ¶25-53 ¶15; Tr. 88 ¶18-91 ¶23. 6 The Parent also did not request this specific remedy in their Closing Brief or at hearing, but is considered in my Order. IHO Ex. II: 18-19; Tr. 49 ¶25-53 ¶15; Tr. 88 ¶18-91 ¶23. 7 This section highlights the plan recommendations that are requested by the Parent as relief in this matter. 8 Although page 8 of the Compensatory Services Plan lists the formula as 1.5 hours weekly, 1 hour weekly is listed on page 4 of the plan as well as the Executive Director’s affidavit and matches the total number of hours requested (138). P Ex. OO: 4, 7-8; P Ex. MM ¶18. the Student despite his global deficits. Id. at 13. The plan identifies other deficiencies in the IEPs developed for the Student, including ineffective goals that fail to address the Student’s needs, language deficits, and fail to use quantitative data to measure mastery; and the continued recommendation for group SLT services although the DOE is aware that the Student has difficulty engaging with peers, including presenting behaviors during group SLT sessions, and is more receptive in a 1:1 setting. Id. at 15, 17, 20, 23.

(4) a bank of 138 hours of compensatory OT services, a formula of 1.5 hours weekly for 46 weeks for 2 years to be implemented by an Occupational Therapist with experience in Sensory Integration to address the DOE’s failure to provide the Student with any OT services through the years so he can master lost skills. P Ex. OO: 41-42. The Occupational Therapist conducted the Student’s OT Evaluation (P Ex. L) and developed the plan’s OT recommendations. P Ex. L. The OT evaluation found that the Student demonstrated well below average handwriting and fine motor skills; presents with deficits in visual-motor skills and in vestibular processing, proprioceptive processing, and bilateral integration; and may present deficits in sensory processing skills. P Ex. L: 12-14. The evaluation recommended specialized and targeted intervention to improve hand-strengthening and fine motor control to increase handwriting form and speed for greater functional performance in the school setting; specialized and targeted intervention to address his deficits in horizontal and vertical tracking, convergence and divergence, visual perception, visual processing, and visualmotor integration; and, targeted and specialized intervention to address deficits in vestibular processing, proprioceptive processing, balance, praxis/motor planning, coordination, and postural control to increase his educational access. Id. The Occupational Therapist testified that it will take the Student 2 years to remediate not having an appropriate program and master the lost skills and make him whole again after years of the inappropriate support in his occupational therapy needs.

P Ex. NN ¶34.

(5) a bank of 46 hours of compensatory AT Instruction for the Student, a formula of 1 hour weekly for 46 weeks for 1 year to be implemented by a Certified Assistive Technology Professional^[9] to facilitate the Student to be in a position where he can utilize his device effectively, allowing it to be most impactful. P Ex. OO: 42. The Occupational Therapist conducted the Student’s AT Evaluation (P Ex. M) and developed the plan’s AT recommendations.^[10] The Occupational Therapist held that this request is individualized and specific to the Student based upon his deficits, overall presentation, performance; is necessary to support his access to his curriculum and skills acquisition after years of not receiving this vital device; and that AT was also recommended by the DOE’s January 2023 Psychiatric Evaluation (P Ex. O) and the Student’s independent Neuropsychological Evaluation (P Ex. J). P Ex. OO: 42; P Ex. NN ¶¶28-29. The Occupational Therapist testified that the Student has gone several years without an appropriate AT device and services; he was not provided with the AT support he undoubtedly needed to access his curriculum; that past IEPs reported very minimal progress pertaining to the domains of assistive technologyrelated academics; and, that the Student requires a assistive technology support during the school day. P Ex. NN ¶¶23-24, 26, 36.

(6) a bank of 46 hours of compensatory AT Parental Training, a formula of 1 hour weekly for 46 weeks for 1 year to be implemented by a Certified Assistive Technology Professional for ongoing parental training to enhance device understanding, knowledge, and facilitate the Student to be able to access his device. P Ex. OO:42; P Ex. NN ¶37.

(7) a bank of 92 hours of compensatory Sensory-Based Feeding Therapy, a formula of 1 hour weekly for 46 weeks for 2 years to be implemented by an Occupational Therapist with experience and expertise in Sensory-Based Feeding Therapy. The Occupational Therapist developed this recommendation and testified that the therapy will assist the Student in facilitation of age-appropriate feeding skills to eat an age-appropriate and nutritionally supportive diet safely and efficiently; increase the range of textures accepted; facilitation of age-appropriate chewing and drinking skills; reduction of stress surrounding mealtimes; reduction of sensory-seeking behaviors impacting attention, appetite, interest, feeding performance, and independence; and a decrease in the amount of time spent at mealtimes. P Ex. NN ¶38; P Ex. OO: 42.

Of note, the Occupational Therapist also testified that the “recommendation is based on the observable deficits and indications from my interviews and observation; however, the full comprehensive evaluation is still necessary to develop a clear and tailored program with goals and services. This will allow him to be available to learn and make progress in the school setting.” P

Ex. NN ¶39.

(8) a Specialized Sensory-Based Feeding Evaluation at the rate of $2,200 to be conducted by a New York State licensed Occupational Therapist of the Parent’s choosing. P Ex. OO: 40-41. The basis for this recommendation is that the Parent reported the Student’s restricted diet, including a refusal to accept a range of textures, and the evaluation is recommended to determine the extent of his deficits, to expand his diet, and increase the acceptance of a wider variety of foods that can support his nutritional needs and subsequent levels of energy and engagement and allow him to better access the educational curriculum. Id., P Ex. NN ¶31.

(9) Further, the plan recommends the following services on the Student’s IEP:

a. SLT 2x45:1 and 1x30:3. P Ex. OO:32.

b. OT 2x45:1. P Ex. OO:41. The basis for this request is the OT evaluation finding that the Student requires immediate individual sensory-based OT to address ongoing deficits in fine motor and visual-motor skills, handwriting skills, keyboarding skills, coordination, attention/focus, strength, endurance, motor planning, activities of daily living skills, instrumental activities of daily living, executive function, time management and organization, sensory registration, processing, integration, modulation, and regulation, and vestibular and proprioceptive processing, affecting his academics in school when it comes to writing, reading, using school materials, completing projects, and interacting with peers and adults. The Occupational Therapist credibly testified that the given the Student’s level of distractibility and difficulties with sensory processing, these sessions should be individual to allow for intensive training. P Ex. NN ¶26, 33.

With respect to the hourly rate for the services the Parent is requesting for the Student, the Executive Director testified that the Provider Agency is available to provide IIAR at a rate of $175/per hour, counseling at a rate of $155/hour, SLT at $185/hour; OT at $185/hour, and AT instruction for the Student and Parent both at $185/hour, and that these rates are well within the range of rates charged for the respective service in the New York City area. P Ex. MM. Further, she testified that the Provider Agency is available to conduct a Sensory-Based Feeding Evaluation for $2,200 and that this rate is within the range of rates for this type of evaluation within the New York City area. Id. at 36-37. The DOE presented no evidence that the rates requested are not within the range of rates charged by other providers.

CONCLUSIONS OF LAW AND ANALYSIS

Burden

In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c). The DOE has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169.

Provision of FAPE

The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A). 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. 34 C.F.R. § 300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order 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.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 389 (2017).

I find that the DOE failed to offer the Student FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years.

With respect to the 2020-2021 school year, the DOE argued that since the DPC was filed on March 30, 2023, the Parent’s claims concerning the 2020-2021 school year are time-barred due to the two-year SOL. Tr. 86 ¶¶12-19. In its Closing Brief the DOE asserted that the 2020-2021 school year IEP was developed on May 29, 2020 and that the Parent attended the meeting and actively participated. Therefore, the Parent knew or should have known of the 2020-2021 school year claims as of the date of the IEP meeting on May 29, 2020 and thus the two-year SOL expired on May 29, 2022, prior to the filing of the DPC on March 30, 2023. IHO Ex. I:2-3.

Further, the DOE argued that contrary to my assertion at the DPH that the DOE waived the SOL defense by raising the defense for the first time the morning of the DPH on July 12, 20223, instead of five business days prior to the DPH as required by my June 7, 2023 hearing orders, that the DOE timely raised the SOL on the day the substantive hearing. Id.; Tr. 79 ¶8- 81 ¶2; IHO Ex. III. Specifically, the DOE cited to caselaw that supports the argument that the DOE can raise the SOL for the first time at the DPH. See M.G. v. N.Y.C. Dep’t of Educ., 15 F. Supp. 3d 296, 304, 306. Nonetheless, the DOE failed to offer any argument or caselaw supporting the position that this right is absolute, and that the DOE is not bound by my June 7, 2023 hearing orders which held:

Except for motions for an extension of the compliance timeline, all other motions, requests for orders, or affirmative defenses (e.g., motions to bar claims based on the Statute of Limitations, jurisdiction, etc.) should be raised during the PHC, and must be made in writing 5 business days prior to the hearing on the merits (i.e., before or by July 5, 2023), and shall include any affidavits or exhibits relied upon, or will be deemed waived. If such a request is made, the opposing party will respond in writing within 3 business days before the hearing (before or by July 7, 2023) and indicate their position. Additional time for the opposing party to respond may be granted upon application of the party responding, at the discretion of the Hearing Officer. Any requests that do not comply with these instructions will be deemed waived, and I will not consider them. IHO Ex. III.

The DOE confirmed receipt of my June 7, 2023 hearing orders and their understanding of my rules. Id., Tr. 16 ¶¶16-25. Nonetheless, the DOE did not raise a SOL defense until the morning of the July 12, 2022 DPH. IHO Ex. III. By making a conscious choice, for whatever reason, to wait to raise the SOL defense until the morning of the DPH, contrary to my hearing orders, the DOE waived the defense. See N.L.R.B. v. New York. Tele. Co., 930 F.2d 1009 [2d Cir. 1991]. Generally, unless specifically prohibited by regulation, IHOs are provided with broad discretion, subject to administrative and judicial review procedures, in how they conduct an impartial hearing, so long as they "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; see Impartial Due Process Hearing, 71 Fed. Reg. 46,704 [Aug. 14, 2006] [indicating that IHOs should be granted discretion to conduct hearings in accordance with standard legal practice, so long as they do not interfere with a party's right to a timely due process hearing]).

Further, as the record reflects, on May 20, 2021, the DOE developed a new IEP for the Student effective June 7, 2021. P Ex. E:1. This IEP was in effect for the 2020-2021 school year and failed to provide the Student a FAPE. Last, I am awarding relief to the Parent based on a qualitative, not quantitative, approach and as such, the relief I am awarding would be no different if I limited the relief to the 2021-2022 and 2022-2023 school years.

With respect to the 2021-2022 and 2022-2023 school years, the DOE argued that the Student was offered a FAPE, but the DOE rested on the documents it submitted. Tr. 86 ¶¶20-23. I do not give any weight to the DOE’s arguments and find that the DOE failed to meet its burden at hearing. The DOE should 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.” Endrew F., 580 U.S. at 404. Here, the DOE relied on the documents entered into the record to defend FAPE but provided no witness to explain the relevance of the documents, including but not limited to how the IEPs developed for the Student for the 2020-2021 through 2022-2023 school years were reasonably calculated to enable the Student to make progress. Id.

The evaluative data before the DOE clearly underscored the Student’s academic and behavioral deficits including his need for individualized support and his high level of distractibility. Nonetheless, the DOE failed to ensure that the Student’s academic and behavioral concerns were adequately addressed by the DOE’s recommended programs and related services. For years, the Student performed several grade levels behind; refused to complete any work; demonstrated little to no motivation to complete academic tasks; and exhibited defiant and disruptive behaviors including shutting down, struggling with transitions outside the classroom, being unable to verbalize his concerns or needs, leaving designated space without permission, becoming upset and destroying classroom materials, screaming, and throwing himself on the floor. Yet, the DOE never provided the Student with extended school year services, an AT device, individualize related services, or a FBA or appropriate BIP.

Relief

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. When a school district denies a child a FAPE, the courts have “broad discretion” to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16. 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.” Doe v. East Lyme Bd. of Educ., 790 F.3d 454 (2d Cir. 2015).

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). 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.”

P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).

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.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008) (citations omitted). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). An award of compensatory education “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.” Reid, 401 F.3d at 518, 524.

There are generally two approaches to fashioning a compensatory education award, the “quantitative” approach and the “qualitative” approach. M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 [3d Cir. 1996]; See, e.g., Reid, 401 F.3d at 518, 524. The quantitative approach provides for compensatory education equal to the period of deprivation, whereas the qualitative approach fashions an award based upon individual assessments and is 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.” Reid, 401 F.3d at 518, 524. The Second Circuit has generally adopted the practice of leaving “the mechanics of structuring the compensatory education award” to the sound discretion of the court to fashion a relief that is appropriate in light of the purpose of the Act, without articulating a specific formula or approach. 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]. When 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,” but 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.” Doe. v. East Lyme, 790 F.3d at 457.

Under New York law, the district has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award, but the parent must identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the years it is claimed the student was denied a FAPE. Education Law § 4404[1][c]; See JKG v. Wissahickon Sch. Dist., 2021 U.S. Dist. LEXIS 55235 *25 [E.D. Pa. 2021]. The IHO may order that an award of services be placed in a bank to be used by a certain date to allow flexibility in the implementation. M.M. v. New York City Dep’t of Educ., 2017 U.S. Dist. LEXIS 47812, *25 [S.D.N.Y. 2017].

I find that the DOE did not carry its burden to establish the appropriate amount of relief needed to remediate the DOE’s failure to provide FAPE. The DOE did not call any of its own witnesses, propose an amount of compensatory services, or otherwise develop the record to establish that the Parent’s requests are inappropriate. At hearing the DOE argued that the Parent’s requested compensatory services are “excessive and inappropriate”; the Parent has not provided evidence regarding how the requested services will realistically be implemented; the Parent did not present evidence that the rates requested are reasonable; and, that the provision of any compensatory services remotely would be inappropriate for the Student. Tr. 86 ¶24-88 ¶4.

I do not credit the DOE’s arguments and find that the Parent met her obligation to offer evidence in the record of a specific remedy for the denial of FAPE for the 2020-2021 through 2022-2023 school years. I find that the relief requested by the Parent is, with the exceptions identified below, appropriate to remedy the Student’s documented academic deficits. The granted relief is reasonably calculated to provide the Student with the skills that the Student would likely have accrued if the DOE had met its FAPE obligations, and is supported by credible information included in the record regarding the Student’s current performance levels. Further, I credit the Parent’s evidence that the requested rates are reasonable and note that the DOE failed to present any evidence that they rates are inappropriate.

Request for CSE Reconvene

The Parent requests an order directing the CSE to reconvene and to develop an IEP for the Student which includes meaningful and measurable goals, a 12-month non-public school program, and the following related services based on the findings of the independent evaluators: speech-language therapy 2x45:1 and 1x30:2, and occupational therapy 2x45:1.

I. am denying the Parent’s request to order the CSE to implement any specific prospective changes to the Student’s IEP. As noted in Application of a Student with a Disability, Appeal No. 23-059, “an award of prospective relief in the form of IEP amendments and the prospective placement of a student in a particular type of program and placement, under certain circumstances, has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student’s progress under current educational programming and periodically assessing the student’s needs.” Id. at *7, citing Adams v. Dist. of Columbia (285 pages)

F. Supp. 3d 381 (D.D.C. 2018), Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 (E.D.N.Y. Oct. 30, 2008). I find that a prospective placement for the 2023-2024 school would circumvent the statutory process and be inappropriate. See Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 (D.D.C. Aug. 24, 2012).

Instead of the Parent’s request, I am ordering the CSE to reconvene and develop the Student’s IEP, as appropriate, after considering the results of the Student’s IEEs, as well as the results of the Sensory Based Feeding Evaluation, including the requests for: meaningful and measurable goals; a 12-month non-public school program; speech-language therapy 2x45:1 and 1x30:2; occupational therapy 2x45:1; Sensory-Based Feeding Therapy; and the Clinical Psychologist’s recommendations for a Central Auditory Processing evaluation by an experienced audiologist and classifying the Student with “Learning Disability” rather than “Emotional Disability.”

Request for compensatory Sensory-Based Feeding Therapy

The Parent also requested a bank of 92 hours of compensatory Sensory-Based Feeding Therapy. As testified by the Occupational Therapist, this recommendation is based on the Student’s observable deficits and indications from her interviews; however, a full comprehensive evaluation is necessary to develop a clear and tailored program with goals and services. Given that I am ordering a Sensory Based Feeding Evaluation, I find that it would be inappropriate to recommend a specific number of compensatory hours prior to the completion of the independent evaluation.

Further, I do not find that the evidence in the record supports this request. The Parent reported that the Student has a restricted diet and refuses to accept a range of textures. However, it is unclear what, if any, specific deficits the Student has in this area and how any deficits have affected his access to his education. Therefore, it is unclear if Sensory-Based Feeding Therapy remedies the DOE’s earlier deprivations in the Student’s education, or is calculated to provide the educational benefits that likely would have accrued from special education services the DOE should have supplied in the first place. Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008); Reid, 401 F.3d at 518, 524.

Therefore, I am denying this request.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered: (1) The DOE shall convene a meeting of the CSE and meaningfully consider the results of the Student’s IEEs, as well as the results of the Sensory Based Feeding Evaluation ordered below, and develop the Student’s IEP, as appropriate. The CSE will specifically consider: developing meaningful and measurable goals; a 12-month non-public school program; speech-language therapy 2x45:1 and 1x30:2; occupational therapy 2x45:1; Sensory-Based Feeding Therapy; a Central Auditory Processing evaluation by an experienced audiologist; and, classifying the Student with “Learning Disability” rather than “Emotional Disability.” (2) The DOE shall fund 966 hours of one-to-one tutoring at the rate of $175 per hour by a special education provider of the Parent’s choosing; (3) The DOE shall fund 138 hours of counseling services at the rate of $155 per hour by a counseling provider of the Parent’s choosing; (4) The DOE shall fund 207 hours of speech-language therapy at the rate of $185 per hour by a New York State licensed speech therapist of the Parent’s choosing; (5) The DOE shall fund 138 hours of occupational therapy at a rate of $185 per hour by a New York State licensed occupational therapist of the Parent’s choosing; (6) The DOE shall fund 46 hours of Assistive Technology instruction for the Student at the rate of $185 per hour by a provider of the Parent’s choosing; (7) The DOE shall fund 46 hours of Assistive Technology instruction for the Parent at the rate of $185 per hour by a provider of the Parent’s choosing; and (8) The DOE shall fund a Sensory Based Feeding Evaluation at the rate of $2,200 to be conducted by a New York State licensed occupational therapist of the Parent’s choosing.

SO ORDERED.

DATED: September 1, 2023 s/ Amy Randhawa

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A – REDACTION IDENTIFICATION PAGE

Term Used In FOFD [REDACTED] Information

Student [REDACTED]

Parent [REDACTED]

Parent Attorney [REDACTED]

DOE Attorney [REDACTED]

DOE School [REDACTED]

Clinical Psychologist [REDACTED]

Executive Director [REDACTED]

Provider Agency [REDACTED]

Occupational Therapist [REDACTED] `

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

DOE EXHIBITS

1. Number Document Date No Pages Prior Written Notice 5/1/23

3 pages DOE

2. Prior Written Notice 4/18/23

9 pages DOE

3. Prior Written Notice 4/17/23

8 pages DOE

4. Notice of Secured Placement - Approval Notification 4/14/23

1 page DOE

5. Prior Written Notice 3/13/23

8 pages DOE

6. WITHDRAWN DOE

7. School Psychologist Report 2/28/23

3 pages DOE

8. Remote Assessment Agency Evaluator Pre-Evaluation Checklist 1/17/23

2 pages DOE

9. WITHDRAWN DOE

10. WITHDRAWN DOE

11. WITHDRAWN DOE

12. WITHDRAWN DOE

13. Psychiatric Assessment 12/2/22 7 pages DOE

14. Functional Behavior Assessment (FBA) 12/1/22 7 pages DOE

15. WITHDRAWN DOE

16. Prior Written Notice 11/9/22

3 pages DOE

17. Behavior Checklist 9/23/22 34 pages DOE

18. WITHDRAWN DOE

19. WITHDRAWN DOE

20. [REDACTED] Teacher Report 6/3/22

5 pages DOE

21. Social History Report 5/16/22

3 pages DOE

22. WITHDRAWN DOE

23. WITHDRAWN DOE

24. Prior Written Notice - (Reevaluation) 3/16/22

3 pages DOE

25. Parent Request for Reevaluation 3/8/22

1 page DOE

26. Psychosocial Records October 2022 9 pages DOE

27. [REDACTED] Final Report Card 2022 - 2023 9 pages DOE

28. Special Education Program Adaptations Document (PAD) 6/22/21 3 pages DOE

29. Prior Written Notice 6/22/21

3 pages DOE

30. Student Progress Report 5/20/21

2 pages DOE

31. WITHDRAWN DOE

32. WITHDRAWN DOE

33. WITHDRAWN DOE

34. WITHDRAWN DOE

35. WITHDRAWN DOE

36. WITHDRAWN DOE

37. WITHDRAWN DOE

38. WITHDRAWN DOE

PARENT EXHIBITS

Exhibit

A. Number Exhibit Date No. of Pages Demand for Due Process Hearing 03/30/23 18 pages

B. IEE Request Letter INDIVIDUALIZED EDUCATION PROGRAM 03/29/23

3 pages

C. IEP 03/13/23 23 pages

D. IEP 06/17/22 23 pages

E. IEP 05/20/21 24 pages

F. IEP 05/29/20 23 pages

G. IEP 01/28/20 23 pages

H. IEP 02/01/19 25 pages

I. IEP 03/20/18 16 pages

EVALUATIONS, ASSESSMENTS, AND REPORT CARDS

J Neuropsychological Evaluation 07/03/23

34

K Speech-Language Evaluation 06/17/23

62

L Occupational Therapy Evaluation 06/17/23

19

M Assistive Technology Evaluation 06/17/23

18

N Physical Therapy Evaluation 06/17/23

6

O Psychiatric Evaluation 01/17/23

8

P NYC Behavioral Intervention Plan 12/05/22

7

Q [REDACTED] Team Conference Summary 12/09/22

4

R [REDACTED] Psychoeducational Evaluation 12/06/22

S [REDACTED] Psychological Report 11/30/22

9

T. NYC DOE Report Card Marking Period 1, 2022-2023 SY Undated (2 pages)

U [REDACTED] Speech-Language Evaluation 08/31/22

6

V. NYC DOE Final Report Card, 2022-2023 SY Undated (2 pages)

W NYC DOE Psychological Update 05/23/22

6

X [REDACTED] Audiology Report 05/09/22

2

Y [REDACTED] Integrated Evaluation 7/0 and Above 03/30/22

7

Z NYC DOE Psychoeducational Evaluation 02/01/19

5. AA NYC DOE Educational Evaluation 03/19/18 (3 pages; DOE)

COMMUNICATION

BB Admission Letter from [REDACTED] 03/20/23 1 CC NYC DOE Occurrence Letter 11/17/22 2 DD NYC DOE Letter from School Counselor to Parent 10/11/22 1 EE NYC DOE Teacher Request for Reevaluation 02/05/20 2

RESUMES

FF Resume of [REDACTED] Undated 2 GG Resume of [REDACTED] Undated 2 HH Curriculum Vitae of [REDACTED] Undated 2 II Resume of [REDACTED] Undated 1 JJ Resume of [REDACTED] Undated 4 KK Affidavit of [REDACTED] 07/03/23 6 LL Affidavit of Parent 06/27/23 5 MM Affidavit of [REDACTED] 07/05/23 8 NN Affidavit of [REDACTED] 06/12/23 8 OO Compensatory Service Plan 07/05/23 46

IHO EXHIBITS

I. Exhibit Description Date No. of DOE Closing Brief 7/26/2023 6 pages

PARENT

II. Closing Brief III DPH Orders and Emails regarding SOL June-July 6 2023 7/25/2023 20 pages

Footnotes

[1] Exhibits are referred to as follows: “D” for DOE exhibits, “P” for Parent exhibits, and “IHO” for Impartial Hearing Officer exhibits, followed by the exhibit number, and if applicable, page number(s) and paragraph(s).

[2] The DOE objected to Parent exhibits F, G, H, I, and EE, arguing that the documents relate to prior school years that are time-barred by the statute of limitations and/or are irrelevant; the objections were overruled; the exhibits were found to be relevant to the Parent’s request for compensatory services and were admitted into the record. Tr. 25 ¶19-28 ¶15.

[3] These included a neurodevelopmental pediatric evaluation on March 30, 2022 (P Ex. Y), an audiological evaluation on May 9, 2022 (P Ex. X), a speech-language evaluation on August 31, 2022 (P Ex. U), a psychological evaluation on October 18 and November 2, 2022 (P Ex. S), and a psychoeducational evaluation on November 8, 2022 (P Ex. R).

[9] As designated by Rehabilitation Engineering and Assistive Technology Society of North America.

[10] The Occupational Therapist is also an Assistive Technology Professional; has conducted AT evaluations numerous times since receiving her full certification on October 29, 2021; and declared an expert in assistive technology approximately fifteen times. P Ex. NN:1.