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CASE NUMBER: 598258 - NYC: 247353
FINDINGS OF FACT AND DECISION
Student’s Name [1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date Complaint Filed: 04/06/2023
Date(s) of Hearing: 11/08/2023
Actual Record Closed Date: 11/09/2023
Date of Decision: 11/10/2023 Time Sensitive Yes Hearing Officer: Melanie L. Bota, Esq.
Names and Titles of Persons Who Appeared on November 08, 2023
For the Student:
REDACTED, Esq., REDACTED Law Firm, PLLC, Parent’s Counsel REDACTED, Psychologist REDACTED, Witness REDACTED, Witness REDACTED, Parent/Witness REDACTED, Witness
For the New York City Department of Education REDACTED, Esq., District Representative REDACTED, Esq., Observing District Representative
BACKGROUND
The Student is a REDACTED year-old child who is classified as a student with “Other Health Impairment” by the New York City Department of Education District (“DOE” or “District”) under the Individuals with Disabilities Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute. The Student attended Public School 1 for the 2020-21 school year, and Public School 2 for the 2021-22 and 2022-23 school years. [2]
The Parent alleges that the District failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2020-21, 2021-22, and 2022-23 school years.[3] The Parent requests the following relief: 1) that the DOE shall provide the Parent’s counsel with the Student’s related service encounter attendance records and school attendance records from the beginning of the 2020-21 school year to the present; and [4]
2) a finding that the DOE failed to provide the Student with a FAPE for the 2020-21, 2021-22, and 2022-23 school years; and
3) an interim order for the DOE to fund the following independent educational evaluations (“IEEs”): a neuropsychological evaluation; an occupational therapy evaluation, a speech-language therapy evaluation, assistive technology evaluation, an ABA skills assessment, a functional behavioral assessment (“FBA”) and if recommended, a behavioral intervention plan (“BIP”); and [5]
4) an order for the Committee on Special Education (“CSE”) to hold an individualized education program (“IEP”) meeting within 15 days of the order and review the IEE reports and adopt the recommendations and goals, and create a BIP; and
5) an order for the CSE to recommend the Student to the Central Based Support Team (“CBST”) for a New York State Education Department (“NYSED”) non-public school (“NPS”) placement within 15 days of the order, and should the DOE fail to find a NYSED NPS within 30 days, that the DOE shall fund a private school of the Parent’s choosing, that aligns with the recommendations of the IEEs; and
6) the DOE shall fund transportation to and from the Student’s new placement; and
7) the DOE shall fund compensatory services, to be provided outside of school by an independent provider of the Parent’s choosing, based on the Student’s missed related service records and IEE recommendations, including but not limited to: tutoring, Applied Behavioral Analysis (“ABA”), Parent Counseling and Training (“PCAT’), occupational therapy (“OT”), speech-language therapy (“SLT”), counseling, and assistive technology (“AT”) training; and
8) the DOE shall fund transportation for the Student and Parent to and from any compensatory services in the form of MetroCards within 15 days of the final order; and
9) that the impartial hearing officer (“IHO”) shall order the DOE’s implementation unit to authorize the service providers and the Student’s placement within 14 days of an order; and
10) that the IHO shall order the DOE’s implementation unit to issue payment to providers within 30 days; and
11) any other relief that the IHO finds just and proper to ensure the Student receives
a FAPE. 6
PROCEDURAL HISTORY
On April 6, 2023, the Parent, through Parent’s Counsel, filed a due process complaint (“DPC”) against the District pursuant to the IDEA.[7] I was appointed on April 7, 2023, to determine the claims in the DPC and to conduct a due process hearing (“DPH”), pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1). On May [6], 2023, the resolution period expired without the parties reaching an agreement. On May 9, 2023, settlement and prehearing conferences were held with the representatives of the parties. On June 20, 2023, a limited hearing was held to address Parent’s request for IEEs. On July 5, 2023, an interim order was issued for the following IEEs: a neuropsychological evaluation, speech-language evaluation, OT evaluation, AT evaluation, ABA skills assessment, a FBA, and if recommended a BIP, to be publicly funded by the District and conducted by providers of the Parent’s choosing. On July 13, 2023, September 7, 2023, and October 5, 2023, status conferences were held with the representatives of the parties. On October 26, 2023, a status conference and continued prehearing conference were held with the representatives of the parties. Finally, November 8, 2023, a DPH was held. [8]
At the DPH, Parent’s Counsel submitted 28 exhibits, all of which were admitted into evidence pursuant to stipulation. Parent’s Counsel also presented five witnesses: the neuropsychologist, the Parent, the Board Certified Behavioral Analyst (“BCBA”), the SLT/AT evaluator, and OT evaluator. The District Representative submitted no exhibits and presented no witnesses at the DPH. A list of the documentary evidence in this proceeding is appended to this Decision and Order.
JURISDICTION
A decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (“IDEA)[9] and its implementing regulations,[10] and the New York State Education Law[11] and its implementing regulations. [12]
LEGAL FRAMEWORK
Under the IDEA, a free and appropriate public education (“FAPE”) is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the individualized education plan (“IEP”) developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.[13] If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. [14]
The IDEA directs that, in general, an Impartial Hearing Officer’s (“IHO”) decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[15] A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” [16]
To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP.[17] Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, “material.” [18]
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.”[19] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion.[20] Although an award of damages is not available under the IDEA, 21 “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [22]
NYS Education Law describes special education as including “special services or programs,” which, in turn, includes, among other things, “[s]pecial classes, transitional support services, resource rooms, direct and indirect consultant teacher services, transition services…assistive technology devices….”[23] An assistive technology device is defined as “any
21 See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002) item, piece of equipment, or product system…that is used to increase, maintain, or improve functional capabilities of a child with a disability.”[24] The IDEA requires that the CSE, when developing a child's IEP, must “consider whether the child needs assistive technology devices,” among other things.[25] Further, “[o]n a case-by-case basis, the use of school-purchased assistive technology devices in a child's home or other setting is required if the child's IEP team determines that the child needs access to those devices in order to receive FAPE.”[26] Additionally, “[t]he failure to provide assistive technology denies a student [free appropriate public education] only if the student could not obtain a meaningful benefit without such technology.”[27] “[A]lthough assistive technology will almost always be beneficial, a school is only required to provide it if the technology is necessary.” [28]
The IDEA further requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.”[29] In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs.”[30] The requested transportation must also be “reasonable when all of the facts are considered.”[31] In a guidance document, the State Education Department has indicated that the CSE should consider and document a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, that the IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate,” and that when determining a student’s special transportation needs, such as the need for door-to-door transportation, it must document them.[32] Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. [33]
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement.[34] The standard required is a preponderance of the evidence.[35] Since this case does not involve a unilateral placement or tuition reimbursement claim, the DOE has the burden of proof on all issues.
FINDINGS OF FACT AND DECISION
I. FAPE
At impartial due process hearings in New York, the burden is on the District to prove that they provided Student with a FAPE.[36] 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.[37] The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” [38]
At the DPH, the District Representative conceded that the DOE did not provide the Student with a FAPE for the 2020-21, 2021-22, and 2022-23 school years.[39] As described above, the District provided no documentary evidence and presented no witness testimony at the DPH. While the District Representative did cross-examine the Parent’s witnesses, said cross-examination did not serve to rebut the relevant testimony in question. The District Representative failed to address or sustain its burden under the Education Law and failed to demonstrate they provided Student with a FAPE for the 2020-21, 2021-22, and 2022-23 school years. I find that the DOE failed to provide Student with a FAPE for the 2020-21, 2021-22, and 2022-2023 school years.
II. Compensatory Services The relief requested by the Parent is equitable in nature, as the Parent is asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide Student with a FAPE for the 2020-21, 2021-22, and 2022-2023 school years.
The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.”[40] As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.”[41] 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.” [42]
An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education.[43] The Second Circuit has held, “[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.”[44] 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.”[45] Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[46] Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate,” and “hearing officers may award ‘educational services…to be provided prospectively to compensate for a past deficient program.’” 47 “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.” 48 Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” 49
There are generally two approaches to fashioning a compensatory education award: 1) the “quantitative” approach followed in the Third Circuit, 50 and 2) the “qualitative” approach relied on by the 6th and D.C. Circuits. 51 The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion”, so long as “the relief is [] appropriate in light of the purpose of the Act.” 52 In calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP], or encompass analogous educational services appropriate to the Student’s current needs”; however, the ultimate award “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” [53]
Under New York State law and regulations, the District has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA.[54] However, the parent also has a responsibility to identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE for the years at issue.[55] Here, the Parent has identified the specific remedy
47 Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005). 48 See id. at 522. 49 See id. at 518. 50 See, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996) (holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation). 51 See, e.g., Reid, 401 F.3d at 518, 524 (requiring a flexible, fact-specific approach in which the award relies “on 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”). 52 Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 (2d Cir. 2016); see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 (E.D.N.Y 2008) (noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated”, and awarding compensatory relief equal to the amount of time the student was deprived of services). Parent is seeking and has provided documentary evidence and testimony in support of Parent’s request. The Parent is requesting compensatory and make-up instructional and related service hours on a qualitative basis.
At the DPH, the Parent argued that the Student is diagnosed with autism, attention deficit hyperactivity disorder (“ADHD”), persistent depressive disorder, a learning disorder for reading, writing, and math. The Student becomes easily frustrated when completing schoolwork, refuses to complete it, struggles with speech, and with writing, reading comprehension, and math. The Parent maintains that District failed to provide the Student with an appropriate placement, supports, and services in order for the Student to make meaningful progress during the 2020-21, 2021-22, and 2022-23 school years. The District failed to provide the Student with a BIP for the school years in question, provided them with no socialization instruction, despite noting the Student has difficulty interacting with peers, and continued to recommend the same special education program year after year. The Student made no academic progress, struggled to recall vocabulary, or retain information. However, the Student was never recommended for an extended school year. Even when the Student was given an informal BIP, not all of the Student’s teachers would adhere to it. The Parent was ignored by the DOE when they attempted to inform the DOE about the Student’s struggles in school. Overall, the Student required more intensive services to make progress and never received it. The Student’s evaluations note that the Student has several deficits and each evaluator made specific recommendations as related to the Student’s disabilities. The Parent presented witness testimony from the Parent and evaluators to support the relief sought. Neuropsychologist
The Neuropsychologist testified that they are a New York State licensed psychologist.[56] The Neuropsychologist has worked as a Consulting Pediatric Neuropsychologist at the Neuropsychology Center of New York since 1995, where their duties consist of performing neuropsychological and psychoeducational evaluations on children.[57] The Neuropsychologist works with children who have a variety of disabilities, like “learning disorders, speech and language disorders, autism, intellectual disabilities, ADHD, mood disorders, gross and fine motor deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits.”) (internal quotes and citation omitted). disorders, and neuropsychological impairments.”[58] The Neuropsychologist has conducted over 1,000 neuropsychological evaluations. [59]
The Neuropsychologist conducted a neuropsychological evaluation on the Student on August 23, 25, 29, and September 1, 2023.[60] At the time of the evaluation the Student was 12-years-old and attended Public School 2.[61] The Neuropsychologist diagnose the Student “with Autism Spectrum Disorder (“ASD”) without accompanying intellectual impairment but with accompanying language impairment-Level 2 (Requiring Substantial Support),…Attention-Deficit/Hyperactivity Disorder (“ADHD”), Predominately Inattentive Presentation, Persistent Depressive Disorder (Dysthymia) with anxious distress (Moderate/Early Onset); and Learning Disorders with impairments in reading (Moderate), written expression (Moderate), and mathematics (Moderate to Severe). [62]
As part of the neuropsychological evaluation, the Neuropsychologist interviewed the Student’s Parent, the Student’s 6th and 7th grade teachers, and reviewed numerous educational records.[63] The Student was noted to struggle in school, be fearful of being unable to complete academic assignments, feel anxious, shutdown and withdraw, and preferred to be alone rather than interacting with others.[64] The Student was also noted to not always complete their work, had difficulty following instructions or completing tasks involving multiple steps, and would shut down in school. [65]
During the evaluation, “the Student was observed…to speak in a low volume that sometimes bordered on inaudible.”[66] The Student was observed to shut down, become overwhelmed, lose focus, and make self-disparaging remarks.[67] The Student was also observed with and without medication during the evaluation, but their “attention, self-monitoring, processing speed, working memory, and planning were still inconsistent.”[68] The Student ranked in the “average range” for general cognitive functioning.[69] However, the Student was noted to have a “significant variability between [their] superior vocabulary and average verbal reasoning.”[70] The Neuropsychologist believed that “it would be inappropriate to judge [the Student’s] intellectual functioning from a unitary IQ score…” and that there was a persistent discrepancy that existed between the Student’s “cognitive skills and delayed adaptive functioning” that stemmed from the Student’s ADHD, learning disabilities, and social/emotional difficulties. [71]
The Student’s verbal reasoning fell within the average range, but they were unable to clarify or elaborate their answers in order to receive full credit during testing.[72] The Student tended to respond quickly without sufficient reflection, demonstrated lapses in attention, and became tired and unalert in the middle of this task.[73] When tested for attention and executive functions, the Student was tested with and without medicine and their performance indicated issues with medication, as they had an elevated number of omissions and slow response time.[74] With medication, the Student’s “profile was less indicative of an attention disorder but problems were still evident.”[75] The Student “made fewer omission errors,” but “[they] still missed targets more than average,” “responded somewhat slowly,” and “became less focused in the latter parts of the test, indicating a problem with sustaining [their] attention.”[76] In the area of executive functioning, the Student “low average speed and accuracy on a visual scanning task and high average speed for the motor speed condition the trial making test.”[77] The Student performed in the deficient range for sequencing of letters, performed in the deficient range when required to follow an alphanumeric sequence, and had problems with working memory. [78]
In the area of language, the Student’s “ability to follow instruction fell in the below average range” and testing indicated that they had variable attention.[79] The Student was also noted to respond incorrectly to relatively simple directions, but would respond correctly when given complicated instructions.[80] The Student’s memory and learning were tested, and when unmedicated, the Student “attainted a moderately deficient General Immediate Memory Index” and it was observed that their poor performance stemmed from their anxiety and distractibility.[81] When medicated, the Student “scored in the average range for free recall as well as free and cued recall” and “scored in the borderline range for [their] immediate and delayed list memory.” [82]
When assessing the Student’s academic achievement, the Student was noted to have average word-identification skills, but their reading comprehension was delayed by four grade levels.[83] The Student showed deficits in inferential reading, which was evidenced by the Student’s implausible answers to reading comprehension questions.[84] The Student’s oral reading fluency was also noted to be below average and delayed by over four grade levels.[85] In the area of reading comprehension, the Student scored in the low average range.[86] The Student’s writing samples “resulted in a score that was in the average range but delayed by over three grade levels.”[87] The Student’s “score on this measure was inflated by scoring criteria that does not consistently penalize for small spelling errors as well as missing capitalization and punctuation.”[88] The Student sometimes failed in following directions, and had problems with “organization, planning, and selfmonitoring,” which interfered with the clarity of their writing.[89] The Student’s writing also showed that the Student wrote run-on sentences, had a lack of compound sentences, overall poor sentence structure, and that they were disorganized.[90] The Student also scored in the low average range for solving word math problems, as they had “[l]imited procedural knowledge as well as difficulties understanding the problems and recognizing the information being asked for.”[91] In the area of social/emotional testing, the Student’s “ability to discriminate facial expressions fell in the borderline range.” [92]
Overall, the Neuropsychologist found that “based on [their] observation, record review, and testing of [the Student], it is [their] opinion that the DOE failed to provide [them] with an appropriate education.”[93] For example, the DOE recommended the same special education program for the Student over and over again since the Student was in the third grade, without AT or a BIP, despite having persistent academic and social/emotional difficulties.[94] The Student’s 2020 95 and 2021 96 IEPs note that the Student was functioning at a 4th grade level for reading and a 3rd grade level for math.[97] However, “these statements seem out of sync with the IEP listening the results of testing that indicated severely delayed reading comprehension and math skills.” [98] Most importantly, the DOE failed to diagnose the Student with Autism despite their IEP’s “regularly noting [their] anxiety, withdrawal, and atypical social presentation.”[99] The Student also had no BIP, as the DOE continuously determined that their behavior or emotions were not interfering with heir learning. [100]
The Neuropsychologist’s recommendations are enumerated in their report, dated September 1, 2023.[101] The Student is recommended for a “highly specialized program for students with high-functioning ASD and associated disabilities in order to receive an appropriate educational program.”[102] The Student requires a very small class, no more than 6 to 8 students, with a high student to teacher ratio, to allow the instructions to monitor the Student’s comprehension of what is asked of them.[103] The Student requires a program that scaffolds academic and social challenges.[104] The Student’s instructors should be experienced and trained with working with students who have ASD and other learning disorders, and their education should utilize evidence-based methods, like ABA, TEACHH, and DIRFloortime.[105] The Student should be placed with students who are of at least average intellectual functioning and they should receive
95 See Parent Exhibit B.
96 See Parent Exhibit C. educational and clinical services on a 12-month basis in light of their extensive delays and to prevent regression all summer.[106] The Student requires a speech-language pathologist, BCBA, and BIP.[107] The Neuropsychologist’s opinion is that a special class in a public school will not be able to provide the Student with the highly specialized educational and clinical services that they require to receive an appropriate education.[108] The Student requires a NYSED NPS or private school specializing in students with ASD and language-based learning disabilities.[109]
The Student also requires individual reading remediation on a daily basis with a teacher who is experienced with working with students who have difficulties with comprehension due to pragmatic learning disabilities.[110] The Student also requires individual writing remediation on a daily basis with a teacher who has experience with students who have difficulties with written expression.[111] The Student also requires individual math remediation on a daily basis with a teacher who has experience with students with pragmatic language and conceptual reasoning. [112] The Neuropsychologist also agrees with the recommendations in the Student’s AT evaluation, as the Student would benefit from AT devices to assist with their academic functioning and 30 hours of training.[113] The Student should also receive 1:1 counseling 2x/week for 30-45 minutes to address “their anxiety, avoidant behavior, withdrawal, depression, and negative selfassessment.”[114] The Parent should receive PCAT 1x/week for at least 60 minutes, to ensure that “expectations, methods, and behavioral contingencies are consistent between the home and school environment.”[115] The Neuropsychologist agreed with the recommendations in the speech-language evaluation,[116] which recommended the Student receive SLT 2x/week in a group for 30-45 minutes, and additionally recommended that the Student receive 1:1 SLT 2x/week to address the Student’s “deficits in verbal reasoning, listening comprehension, and verbal recall.”[117] The Neuropsychologist also agreed with the recommendations in the Student’s OT evaluation,[118] which recommended that the Student receive 1:1 OT 2x/week for at least 30 minutes. [119] Parent The Parent testified that they are the mother of the Student.[120] The Parent stated that they are “involved in all areas of their [child’s] education.”[121] They have attended all of the Student’s IEP meetings, as well as participated in their education to obtain appropriate services that would allow the Student to make educational progress.[122] At the DPH, the Parent testified that the Student’s current placement and services were inappropriate because the Student was not making progress at Public School 2 and was receiving SETSS in a group setting. The Parent testified that the Student was diagnosed in April of 2018 with inattentive-type ADHD.[123] The Student has delays with their emotional and social skills, is highly introverted, and has challenges with listening comprehension and conversational skills, processing speed, and understanding pose challenges that impact their academic and social development.[124] The Student experiences anxiety and self-doubt, struggles to stay focused, remain organized and manage their time effectively.[125] The Student requires extra time to complete their life skills and complete activities of daily living.[126] The student also has delays with their communication skills, as they often mumble. [127] The Student also has behavioral issues, such as shutting down and crying when they struggle to complete a task and being unable to self-regulate.[128] The Student struggles academically with writing, reading comprehension, has difficulty writing legibly, and organizing their ideas. [129]
The Student attended Public School 1 for the fifth grade during the 2020-2021 school year.[130] At that time, the Student was in a 10-month 12:1 special education program for all academic classes, and received the following related services: group counseling 1x30 in a therapy room; group counseling 1x30 during lunch recess; and SLT in a group of 3 2x30, and had testing accommodations 131 The Student also was not recommended for special transportation.[132] At the IEP meeting, the Parent informed the CSE that the Student would shut down and withdraw on their way to school and during class.[133] The Student’s IEP also notes that the Student has difficulty with comprehension, fluency, answering inferential questions at a higher level, struggles to find relevant details, and issues with writing.[134] As a result, the Student has difficulty with solving word problems in math.[135] The Student also requires extra time to complete work.[136] The Student noted the Student getting upset and frustrated when they need help or when other Students do not follow the rules.[137] However, the DOE failed to recommend a BIP for the Student.[138] The DOE acknowledges that the Student was not on grade level,[139] yet did not recommend extended school year services.[140] The District additionally failed to inform the Parent that the Student had missed services during this school year. [141]
The Student attended Public School 2 for the 2021-22 and 2022-23 school years.[142] The Parent believes that Public School 2 is not appropriate for the Student, as the Student is not receiving specialized instruction, supports, and services, which would allow them to make progress.[143] The Parent additionally stated that Public School 2 houses other schools within the building, is loud, and an overwhelming environment for the Student, who has sensory sensitivity and social anxiety.[144] In a 12 student setting, the Parent believes that “the teacher is not able to adjust the pace of the lessons and curriculum to accommodate [the Student’s] needs” and their “lessons are not differentiated to support [their] educational needs.”[145] The Student requires a
See Parent Exhibit B, at 9 - 10. smaller school setting so that they can “establish a more positive learning environment with peers that model similar behaviors and academic goals.” [146]
For the 2021-2022 school year, the Parent believed that the Student was not provided an appropriate education from the DOE.[147] The Student was recommended for a 10-month special education program consisting of 12:1 special education classes for all academic subjects, SETSS for ELA in a group 1x/week for a period and SETSS for math in a group setting for math 2x/week for a period, as well as the following related services: 1:1 counseling 1x40; counseling in a group of 3 1x40; 1:1 counseling 1x30; counseling in a group of 3 1x30; SLT in a group of 3 2x40; and SLT in a group of 3 2x40, as well as testing accommodations.[148] The Student was not recommended for a BIP or AT device[149] or special transportation,[150] and was noted to read at a 4th grade level and perform math at a 3rd grade level.[151] The Parent testified that the Student’s 2021 IEP noted that their communication skills were delayed and their ability to cope with their emotions had weakened, but the Student was only given 10 additional minutes per session of SLT and counseling. [152]
In June of 2021, the DOE created an informal BIP, which indicated that the Student’s target behavior included avoidance, as the Student experiences anxiety and feelings of frustration when faced with academic and social challenges.[153] The informal BIP had recommended strategies, like teacher support, counseling sessions, keeping a journal, and calming mechanisms, but not all of the Student’s teachers implemented the informal BIP.[154] The Parent requested the DOE conduct a formal FBA for the Student in December of 2021 and March of 2022, but the “school psychologist concluded from a brief observation that the Student’s behavior was uneventful.” [155] Public School 2 was unable to complete the FBA. [156]
For the 2022-23 school year, the Parent believed that the Student was not provided an appropriate education from the DOE.[157] The Student was recommended a 10-month special education program, consisting of 12:1 special education classes for all academic subjects, SETSS in a group for math 2x/week for a period, SETSS in a group for ELA 1x/week for a period, and the following related services: group counseling 1x40, 1:1 counseling 1x40, and SLT group of 4 2x45, as well as testing accommodations.[158] The Student was not provided an AT device, BIP, or special transportation.[159] The same placement and program were recommended again, despite the CSE noting the Student’s continued delays.[160] The Student is noted to read at a 6th grade level, but write at below grade level,[161] required 1:1 instruction in order to understand new math content,[162] cried when they were assigned a task they felt was overwhelming,[163] did not socialize with their peers,[164] and had difficulty completing their assignments independently.[165] According to the CSE, the Student performed math at a 5th grade level,[166] but their IEP also noted that the Student’s ability to perform math computations was significantly below grade expectations. [167] The Parent is “increasingly concerned” that the Student “has not been receiving necessary support in [their] current special education program.” [168]
BCBA
The BCBA testified that they are a NYS licensed BCBA and NYS licensed Behavior Analyst (“LBA”).[169] The BCBA currently works for the REDACTED (“MPG”) and one of their responsibilities is to conduct evaluations, like a FBA and ABA skills assessment.[170] The BCBA testified that they are also trained in creating BIPs and providing parent training/developing parent training programs.[171] The MPG provides services for students like ABA, counseling, PCAT, SETSS, and more.[172] BCBA is familiar with the Student and conducted an ABA skills assessment[173] on them, as well as an FBA, and created a BIP. 174175
As part of the FBA, the BCBA interviewed the Parent to gather information and learned that the Student had difficulty engaging in day-to-day tasks, as well as new tasks, without engaging in verbal refusals, challenging directives, and verbal and physical support.[176] The Student becomes anxious when facing a task they find challenging, questions the Parent for additional information and assurance, and refuses to engage.[177] The Student was observed in the home to speak in a low tone, was anxious, visibly nervous, and refused to complete some tasks.[178] The Student’s teachers were interviewed and the BCBA learned that in class, the Student exhibited behaviors like refusing to engage in an activity.[179] The Student’s “off-task” behaviors are “found to be maintained by escape consequence.”[180] The Student’s “[e]stablishing operation for escape function is found to be an aversive stimulation in the firm of a task demand or instruction placed on the Student.”[181] The BCBA recommended that the Student be placed in a private school setting that utilizes and implements procedures and principles for students with ADHD and other health impairments, that can provide behavioral management skills and/or organizational trainings, offers a small class size and high student-to-teacher ratio, special education services, promote changes in the Student’s behavior, ensures that interventions are effective/produce meaningful and reliable behavior change, and are implemented throughout different environments.[182] The Parent should receive PCAT, data driven intervention across all environments, regular meetings between the Parents and school staff, and a bank of 1,380 compensatory hours for 1:1 SETSS services, at a rate of 10 hours per week, to compensate for the loss of educational services for the school years at issue.[183] The BCBA created a BIP that provides “strategies to reduce the duration of task completion” that the Student typically finds difficult or challenging, “increase duration of on-task behaviors during
See Parent Exhibit Q.
See Parent Exhibit D, at 2. instructional and home activities; and reduce the number of prompts and support need by [the Student] during specific tasks both at home and at school.”[184] The Student is “dependent on verbal prompting to complete non-preferred and multi-step tasks in school and at home.” [185]
Additionally, during the Student’s ABA skills assessment, the Student demonstrated “notable strengths in areas of academics, spontaneous vocalization, writing, grooming and fine motor skills.”[186] The BCBA noted that the Student had a “large discrepancy between learning patterns and social and independent skills.”[187] The Student’s “overall adaptive functioning is classified as below average and [their] profile of scores show significant generalized deficits in multiple areas.”[188] The Student was noted to have delays in the play and leisure area, emits moderate negative behavior, has delays in social skills, delays in response requirement, struggled to communicate, had a difficult time staying on task, and was dependent on verbal prompting.[189] The BCBA believes that the Student’s current placement is not appropriate to address their needs.[190] The Student is recommended for a specialized private school setting, Parent Training, data driven intervention across all environments, and an award of compensatory 1:1 SETSS hours. [191] Speech-Language/AT Evaluator
The Speech-Language/AT Evaluator testified that they are a New York State licensed speech-language pathologist and currently work at the REDACTED Speech Services, PC.[192] As a speech-language pathologist, the Speech-Language/AT Evaluator conducts comprehensive speech-language and AT evaluations, as well as providing SLT to children.[193] The Speech-Language/AT Evaluator is familiar with the Student and conducted a speech-language evaluation on the Student and an AT evaluation.[194] The Student’s speech-language evaluation revealed that the Student “presents with significant delays in pragmatic (social) skills and expressive language skills.”[195] The Student performed in the average range in listening comprehension and below the average range for oral expression.[196] The Student “demonstrates a significant need in the areas of supralinguistics and pragmatic use of language.”[197] The Student has deficits in narrative generation skills, could read at 6th grade level, were more advanced with reading fluency than reading comprehension, and struggled with pre-writing, organization, grammar, and elaboration of ideas during written tasks.[198] The Student also had significant deficits in their social skills, reduced vocal volume and limited lip movement, which led to poor intelligibility.[199] The Student’s “exhibited delays…currently have and will continue to have a negative impact on [their] ability to access and understand the school curriculum as well as [their] ability to make and maintain friendships.”[200] The Student was recommended for individual and group SLT to increase their “expressive language, pragmatic language, reading comprehension, and writing skills.”[201] The Student was specifically recommended for SLT in a group of 3 2x/week for 30-40 minutes per session.[202] The Student was also recommended for a bank of 84 compensatory 1:1 SLT hours (at a rate of 1 hour of 1:1 SLT per week for 42 weeks for 2 years). [203]
The Speech-Language/AT Evaluator also conducted an AT evaluation for the Student.[204] The parent report and document portion of the evaluation revealed that the Student “was reported to struggle with initiating, focusing on, and completing tasks,” as well as “struggles with memory and organization skills, reading comprehension and elaboration in written responses, suffered from anxiety, and required 1:1 support when faced with challenging tasks.”[205] The Student’s “typing is comparable to [their] handwriting when [they] are not given supports, however [they do] verbalize a preference for typing.”[206] The Student was recommended to be allowed to type, “as it will increase [their] willingness to complete the task as well as allow [them] to access supports which will aid [their] expressive language, pre-writing, narrative composition, and executive functioning skills.”[207] The Speech-Language/AT Evaluator presumes that if the Student is given and trained in AT programs, their performance will increase.[208] It was recommended that the Student receive 30 hours of AT training, a list of reading writing, and math applications, such as Snap&Read, Epic!, Raz-Kids, Grammarly, InspirationMaps, Prodigy, and IXL.[209] The Student was also recommended for a Galaxy Chromebook 2 to allow the Student to access the curriculum. [210] Occupational Therapist
The Occupational Therapist testified that they are a New York State occupational therapist.[211] They are currently occupied as an occupational therapist with REDACTED Speech Services.[212] They provide OT services and conduct OT evaluations to students of various ages and diagnoses.[213] The Occupational Therapist is familiar with the Student, as they conducted an in-person OT evaluation on July 24, 2023.[214] As part of the evaluation, the Parent was interviewed, who stated that the Student required significant time to complete age-appropriate activities, activities of daily living, manipulating their belt, requires verbal cues during their bathing tasks, and needed consistent cuing.[215] The Student was observed to present with mild decreased muscle strength, which was evidenced by poor force production with writing and coloring tasks.[216] The Student was ranked well below average when it came to fine motor, executive functioning, and visual perceptive skills.[217] The Student “demonstrated difficulty with letter sizing, orientation to the boundary line, and speed with writing, as well as poor intrinsic hand strength as evidenced by decreased force production on writing utensils.”[218] The Student was recommended OT 2x/week for 30 minutes.[219] The Student was also recommended for 104 hours of compensatory OT services, based on a rate of 2x/week for 2 years. [220]
As stated above, the DOE submitted no documentary evidence and presented no witness testimony at the DPH and conceded that the Student was not provided with a FAPE for the 2020-21, 2021-22, and 2022-23 school years. While the District challenged the appropriateness of the related service providers, I find that the Parent does not bear a burden as to appropriateness in this proceeding. The District conceded and the hearing record establishes that Student was not provided a FAPE for the 2020-21, 2021-22, and 2022-23 school years. Furthermore, the uncontroverted testimony of the Neuropsychologist, Parent, BCBA, Speech-Language/AT Evaluator, and Occupational Therapist, as well as the uncontested documentary evidence, support a finding that the Student is entitled to compensatory related services to compensate for what Student was deprived of for the school years in question. The Parent provided provider rate sheets for the requested compensatory and make-up services.[221] The District Representative requested that the compensatory and make-up services be provided to the Student at market rate, but did not conduct any cross-examination of the Parent witnesses as related to rates, nor did they provide any documentary evidence or testimony that the rates for the Parent providers are unreasonable. As such, I find that the make-up and compensatory SLT should be provided at a rate of $300/hour, [222] compensatory OT at a rate of $300/hour,[223] compensatory academic tutoring at market rate, compensatory SETSS at a rate of $275/hour,[224] and make-up and compensatory counseling at a rate of $480/hour. [225]
III. CSE
Generally, 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.[226] However, concerns about circumventing the CSE process arise most prominently in matters where the school year challenged has ended and, in accordance with its obligation to review a student's IEP at least annually, the CSE would have already convened to produce an IEP for the following school year. [227]
Additionally, while prospective placement might be appropriate in rare cases[228] the pitfalls of awarding a prospective placement have been noted in multiple State-level administrative review decisions, including that where a prospective placement is obtained by the parents through the impartial hearing, such relief could be treated as an election of remedies, where the parents assume the risk that future unforeseen events could cause the relief to be undesirable. [229]
The Parent testified at the hearing that the Student’s placement at Public School 2 is inappropriate,[230] and that they informed the school that the Student required more in order to gain access to their educational curriculum in light of their disabilities. The Parent attended all IEP meetings and requested a FBA for the Student, as well as more services for the Student, as they were struggling with socializing, writing, math, and reading. They additionally testified that a smaller school setting, where the students have “similar behaviors and academic goals” would be more appropriate for the Student.[231] The DOE failed to conduct a FBA for this student and failed to ensure that the Student’s teachers adhered to the informal BIP that was created.[232] The Student additionally missed related services and the District never informed the Parent or provided the make-up services.[233] Despite acknowledging that the Student was struggling with their academic courses in light of their disability, the District continued to recommend the same special education program and placement year after year. [234]
Most importantly, the District additionally failed to diagnose the Student with autism, despite acknowledging that the Student had deficits in socialization skills,[235] had difficulty making friends,[236] behavioral issues when faced with a challenging task,[237] struggled with communication and spoke with a low tone of voice to the point where they were almost inaudible,[238] required 1:1 redirection,[239] and struggled with writing, reading comprehension, and math.[240] The Parent requested a modification to the Student’s special education program in light of their behavioral issues and academic struggles that stemmed from their disability.[241] The Parent informed the CSE that they had concerns about the Student’s “lack of motivation and off-task behavior,” that the Student struggled to be independent and with their problem-solving skills, was overwhelmed with homework, needed additional time to complete tasks, and expressed disagreement with the FBA that notably was not completed.[242] The Parent also testified that the Student’s teachers also failed to implemented the extended time supports for the Student so that they could turn in their assignments later. Despite the Student’s noted academic struggles and behavioral issues, the CSE continued to recommend the same placement and special education program at Public School 2.[243]
Based on the District’s concession that the DOE failed to provide the Student with a FAPE for the school years at issue, as well as the robust evidence in the hearing record, there is a clear “consensus” among those who most recently evaluated the Student regarding their needs that should be followed by the CSE. [244]
I find that this Student’s deprivation of a FAPE for the 2020-21, 2021-22, and 2022-23 school years is one of the rare instances where prospective placement is warranted at a NYSED-approved NPS that implements evidence-based methodologies, like ABA therapy, in the manner described in the Student’s evaluations, as well as the recommended frequency of related services.
IV. Interim Relief Sought: Prospective Tuition funding As prospective relief, the Parent requested that should the District fail to find an appropriate NYSED NPS for the Student within 30 days, that I should order the DOE to fund a private school of the Parent’s choosing, which aligns with the District’s IEEs.[245] The District may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.[246] These three conditions/prongs constitute the Burlington/Carter Test in a tuition reimbursement case. An analysis as to whether a prospective private placement is appropriate must be conducted in order for relief to be granted for prospective tuition reimbursement or direct funding at public expense. No such analysis was conducted here, as the Parent did not identify a private school or present any evidence that such private school is appropriate for the Student.
An order for the District to fund a unilateral placement of the Parent's choosing based upon some future contingency would be unduly speculative and insufficiently defined. If the District fails to locate a NYSED-approved NPS as ordered herein, the Parent's recourse in that instance would be to seek enforcement, which they could do by filing a State complaint against the District through the State complaint process or by seeking enforcement through the judicial system.[247] Accordingly, the Parent’s request for prospective funding at a private school of Parent’s choosing should the DOE fail to locate an appropriate NYSED NPS for the Student is DENIED.
ORDER
Based upon the above Findings of Fact and Decision, it is hereby:
1. ORDERED that, the DOE failed to provide the Student with a FAPE for the 2020-21, 2021-22, and 2022-23 school years; and
2. FURTHER ORDERED that, the District shall convene the CSE to hold a meeting within 15 days of this Order to prepare an IEP that:
a. Provides that the Student attend a NYSED-approved NPS for the 12-month school year, in a class size of no more than 6 to 8 students, that utilizes evidenced based teaching methodologies like ABA methodology; and
b. The DOE shall locate a NYSED-approved NPS for the Student within 30 days of this Order; and
c. Recommends the following appropriate related services, as recommended by the independent evaluations, and at the recommended frequency and service delivery:
i. Speech-Language Therapy on an individual basis, 2 times per week for 30 minutes a session; ii. Speech-Language Therapy in a group setting of no more than 3 students, 2 times per week for 30 minutes a session; iii. Occupational Therapy on an individual basis, 2 times per week for 30 minutes; iv. Counseling on an individual basis, 2 times per week for 45 minutes;
v. Parent Counseling and Training on an individual basis, 1 hour per week; vi. Assistive Technology Instruction on an individual basis for a total of 30 hours; vii. A behavioral intervention plan, as recommended in Parent Exhibit Q; and
3. FURTHER ORDERED that, the DOE shall fund the following compensatory services for the Student, which may be provided during the school year, summer, weekdays, weekends, holidays or during school vacations, by New York State licensed providers of the Parent’s own choosing at the providers’ customary and regular rate as specified below:
a. 690 hours of academic remediation (tutoring), at market rate;
b. 84 hours of 1:1 speech-language therapy for $300/hour;
c. 104 hours of 1:1 occupational therapy for $300/hour;
d. 1,038 hours of 1:1 special education teacher support services (“SETSS”), at $275/hour; and
4. FURTHER ORDERED that, the DOE shall fund the following make-up services for the Student for missed related services, which may be provided during the school year, summer, weekdays, weekends, holidays or during school vacations, by New York State licensed providers of the Parent’s own choosing at the providers’ customary and regular rate as specified below:
a. 74.1 hours of counseling, at a rate of $480/hour;
b. 29.13 hours of speech-language therapy, at a rate of $300/hour; and
5. FURTHER ORDERED that, the bank of compensatory and make-up services set forth in #3 and #4 of this Order shall not expire until the expiration of three (3) years from the date of this Order; and
6. FURTHER ORDERED that, the DOE shall provide or fund the necessary transportation costs to and from the tutoring center and service providers who are providing the awarded tutoring, make-up, and compensatory services, through the supply of MetroCards for the Parent and Student; and
7. FURTHER ORDERED that, the DOE shall fund the make-up and compensatory services set forth in #3 and #4 of this Order for the Student, which may be provided during the school year, summer, weekdays, weekends, holidays or during school vacations, by a New York State licensed provider of the Parent’s own choosing at the provider’s customary and regular rate, as specified above, by issuing payment directly to the provider within 30 days upon the submission of invoices for services rendered; and
8. FURTHER ORDERED that, that the DOE shall provide or fund an assistive technology device, software, and accessories, as specified in Parent Exhibit O to be used by the Student both in-school and at-home; and
9. FURTHER ORDERED that, the DOE shall provide or fund door-to-door special transportation for the Student to get to and from school, and transportation from the closest safe curb location to school; and
10. FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby ordered within 14 days.
SO ORDERED.
DATED: November 10, 2023
Melanie L. Bota Esq.
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.
DISTRICT EVIDENCE
1. N/A DOE
PARENT EVIDENCE
A. Impartial Hearing Request 04/06/2023 11 pages
B. Individualized Education Program (IEP) 06/10/2020 15 pages
C. Individualized Education Program (IEP) 06/18/2021 21 pages
D. Individualized Education Program (IEP) 06/28/2022 28 pages
E. DOE Psychological Update 05/16/2022 5 pages
F. Parent email to DOE re: Request for FBA 03/16/2022 1 page
G. Consent for Additional Assessments and Confirmation Email 03/22/2022 2 pages
H. Parent Letter Requesting IEEs and Receipts 03/22/2023 5 pages
I. Rate Affidavit and Resume of REDACTED, Neuropsychologist 05/24/2023 7 pages
J. Rate Affidavit and Resume for REDACTED, REDACTED Speech Services 05/30/2023 5 pages
K. Rate Affidavit and Resume for REDACTED, Manhattan Psychology Group 05/29/2023 3 pages
L. Independent Neuropsychological Evaluation 09/01/2023 34 pages
M. Independent Occupational Therapy Evaluation 09/20/2023 13 pages
N. Independent Speech and Language Evaluation 09/05/2023 15 pages
O. Independent Assistive Technology Evaluation 09/05/2023 13 pages
P. Independent ABA Skills Assessment 08/10/2023 33 pages
Q. Independent Functional Behavior Assessment (FBA) And Behavior Intervention Plan (BIP) 08/18/2023 19 pages
R. Student’s Related Service Encounter Attendance Records (RSEAR) and Calculations Undated 30 pages
S. Rate Sheet for REDACTED Speech Services Undated 1 page
T. Rate Sheet for REDACTED 01/01/2023 2 pages
U. Resume of REDACTED, BCBA/LBA Undated 2 pages
V. Resume of REDACTED, OT Undated 2 pages
W. Resume of REDACTED, SLP Undated 3 pages
X. Affidavit of REDACTED, Parent Undated 5 pages
Y. Affidavit of REDACTED, BCBA/LBA Undated 7 pages
Z. Affidavit of REDACTED, OT Undated 6 pages
AA. Affidavit of REDACTED, SLP Undated 6 pages
BB. Affidavit of REDACTED, Psychologist 10/26/2023 11 pages
IHO EXHIBITS
I. APPENDIX N/A IHO
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED Parent
REDACTED Parent Attorney/Counsel
REDACTED District Attorney/Representative
REDACTED Public School 1
REDACTED Public School 2
#07 District, DOE
REDACTED BCBA
REDACTED Neuropsychologist
REDACTED OT evaluator
REDACTED SLT/AT evaluator
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] See Parent Exhibit A, at 1.
[3] See id.
[4] The Parent withdrew this request on October 5, 2023.
[5] The IEEs were granted on July 5, 2023. See Interim Order, dated July 5, 2023.
[6] See Parent Exhibit A, at 9- 10.
[7] See id. at 1 – 10.
[8] At the time that this decision was written, the transcript was not available for the DPH.
[9] See 20 U.S.C. § 1400 et seq.
[10] See 34 C.F.R. § 300 et seq.
[11] See Educ. Law Art. 89 § 4404 et seq.
[12] See 8 NYCRR § Part 200.
[13] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[14] See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
[15] See 20 U.S.C. § 1415(f)(3)(E)(i).
[16] Rowley, 458 U.S. at 203 (emphasis added).
[17] See Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5d Cir. 2000); Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 (3d Cir. Aug. 14, 2008); Couture v. Bd. of Educ., 535 F.3d 1243 (10th Cir. 2008); Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 (8th Cir. 2003).
[18] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 (D.D.C. 2007).
[19] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015).
[20] Florence County Sch. Dist. Four v. Carter by & Through Carter, 510 U.S. 7, 16 (1993).
[22] Doe v. East Lyme, 790 F.3d at 454.
[23] NYS Educ. Law § 4401(2)(a).
[24] 20 U.S.C. § 1401(1)(A).
[25] 20 U.S.C. § 1414(d)(3)(B)(v); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 647 (S.D.N.Y. 2011).
[26] 34 C.F.R. § 300.105(b).
[27] J.C. ex rel. C. v. New Fairfield Bd. of Educ., 2011 U.S. Dist. LEXIS 34591, 2011 WL 1322563, at *18 (D. Conn. Mar. 31, 2011) (citation and internal quotation marks omitted).
[28] Id.
[29] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted).
[30] NYS Educ. Law §§ 4401(1); 4402(4)(a); see also NYS Educ. Law § 4401(2); 8 NYCRR § 200.1(ww).
[31] Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 (5th Cir. 1986).
[32] “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf).
[33] See Donald B., 117 F.3d at 1375.
[34] NYS Educ. Law § 4404(1)(c).
[35] See 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2d Cir. 1998).
[36] M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017).
[37] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[38] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[39] See Transcript, at 117 – 118, October 16, 2023.
[40] See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7, 15-16 (1993).
[41] Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015).
[42] Doe v. East Lyme, 790 F.3d at 454.
[43] E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014).
[44] P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[45] Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008).
[46] Doe v. East Lyme, 790 F.3d at 454.
[53] Doe. v. East Lyme, 790 F.3d at 457.
[54] Education Law § 4404(1)(c).
[55] See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), (noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”); Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017) (holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational
[56] See Parent Exhibit BB, at 1.
[57] See id.
[58] See id.at 2.
[59] See id.
[60] See id.
[61] See id.
[62] Id.
[63] See id. at 3.
[64] See id.
[65] See id.
[66] See id. at 4.
[67] See id.
[68] Id.
[69] See id. at 5.
[70] Id.
[71] Id.
[72] See id.
[73] See id.
[74] See id.
[75] Id.
[76] Id.
[77] Id. at 6.
[78] See id.
[79] Id.
[80] Id.
[81] Id.
[82] Id.
[83] See id.
[84] See id.
[85] See id.
[86] See id.
[87] Id. at 7.
[88] Id.
[89] Id.
[90] See id.
[91] Id.
[92] Id.
[93] Id.
[94] See id.
[97] See Parent Exhibit BB, at 7.
[98] Id. at 8.
[99] Id.
[100] See id.
[101] See Parent Exhibit L, at 25.
[102] Id.
[103] See id.
[104] See id.
[105] See id.
[106] See id.
[107] See id.
[108] See id. at 26.
[109] See id.
[110] See id.
[111] See id.
[112] See id.
[113] See Parent Exhibit O.
[114] Parent Exhibit L at 28.
[115] Id.
[116] See Parent Exhibit N.
[117] Parent Exhibit L at 28.
[118] See Parent Exhibit M.
[119] See id. at 28.
[120] See Parent Exhibit X, at 1.
[121] See id.
[122] See id.
[123] See id.
[124] See id. at 2.
[125] See id.
[126] See id.
[127] See id.
[128] See id.
[129] See id.
[130] See id. at 1.
[132] See id. at 13.
[133] See Parent Exhibit X, at 3.
[134] See Parent Exhibit B, at 1.
[135] See id. at 2.
[136] See id. and Parent Exhibit X, at 3.
[137] See Parent Exhibit B, at 3 and Parent Exhibit X, at 3.
[138] See Parent Exhibit B, at 4.
[139] See Parent Exhibit B, at 2 and 13; Parent Exhibit X, at 3.
[140] See Parent Exhibit B, at 13, and Parent Exhibit X at 3.
[141] See Parent Exhibit X at 3.
[142] See Parent Exhibit A, at 3 – 4.
[143] See Parent Exhibit X, at 3.
[144] See id.
[145] See id.
[146] See id.
[147] See id. at 5.
[148] See Parent Exhibit C at 13 – 15.
[149] See id. at 9.
[150] See id. at 17.
[151] See id. at 18.
[152] See Parent Exhibit X, at 4.
[153] See id.
[154] See id.
[155] Id.
[156] See id. and Parent Exhibit D at 8 – 9 and 26.
[157] See Parent Exhibit X, at 5.
[158] See Parent Exhibit D, 18 – 21.
[159] See id. at 11 and 23.
[160] See Parent Exhibit X, at 5 and Parent Exhibit D, at 3 – 10.
[161] See Parent Exhibit D, at 3.
[162] See id., at 4.
[163] See id.
[164] See id.
[165] See id., at 5.
[166] See id., at 24.
[167] See id., at 6.
[168] See Parent Exhibit X, at 5.
[169] See Parent Exhibit Y, at 1.
[170] See id.
[171] See id.
[172] See id.
[173] See Parent Exhibit P.
[176] See id. at 2.
[177] See id.
[178] See id. at 2 – 3.
[179] See id. at 3.
[180] See id. at 4.
[181] Id.
[182] See Parent Exhibit Q, at 17.
[183] See id. at 18.
[184] Parent Exhibit Y, at 4.
[185] Id.
[186] Parent Exhibit P, at 30.
[187] Id. at 31.
[188] Id.
[189] See Parent Exhibit Y, at 5 – 6.
[190] See id. at 6.
[191] See Parent Exhibit P, at 32.
[192] See Parent Exhibit AA, at 1.
[193] See id.
[194] See id., Parent Exhibit N, and Parent Exhibit O.
[195] See Parent Exhibit N, at 12.
[196] See id.
[197] Id. at 23.
[198] See Parent Exhibit N, at 13.
[199] See id.
[200] See id.
[201] See id. at 14.
[202] See id.
[203] See id.
[204] See Parent Exhibit AA, at 4.
[205] Id.
[206] Parent Exhibit O, at 10.
[207] Id.
[208] See id.
[209] See Parent Exhibit AA, at 6.
[210] See id.
[211] See Parent Exhibit Z, at 1.
[212] See id.
[213] See id.
[214] See id. and Parent exhibit M.
[215] See Parent Exhibit Z at 2.
[216] See id.
[217] See Parent Exhibit M, at 11.
[218] Id.
[219] See id.
[220] See id. at 12.
[221] See Parent Exhibits S and T.
[222] See Parent Exhibit S.
[223] See id.
[224] See Parent Exhibit T.
[225] See id.
[226] See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 (D.D.C. 2018) [noting with approval the hearing officer's finding “that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school”]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 (E.D.N.Y. Oct. 30, 2008) [noting that “services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year”]).
[227] See V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *7 (S.D.N.Y. Aug. 17, 2022) [acknowledging that "orders of prospective services are disfavored as a matter of law" and, in the matter at hand, indicating that "the CSE should have already convened for subsequent school years]; M.F. v. N. Syracuse Cent. Sch. Dist., 2019 WL 1432768, at *8 (N.D.N.Y. Mar. 29, 2019) [declining to speculate as to the likelihood that the district would offer the student a FAPE "in the future" and, therefore, denying prospective relief]; Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 (D.D.C. Aug. 24, 2012) [noting that prospective placement is not an appropriate remedy until the IEP for the current school year has been completed and the parent challenges the IEP for the current school year]).
[228] See Connors v. Mills, 34 F.Supp.2d 795, 799, 804-06 (N.D.N.Y. Sept. 24, 1998) [noting a prospective placement would be appropriate where "both the school and the parent agree[d] that the child's unique needs require[d] placement in a private non-approved school and that there [we]re no approved schools that would be appropriate"].
[229] See e.g., Application of a Student with a Disability, Appeal No. 19-018.
[230] See Parent Exhibit X at 3.
[231] Id.
[232] See id. at 4.
[233] See Parent Exhibit R.
[234] See Parent Exhibits B, C, and D.
[235] See Parent Exhibit D, at 9.
[236] See id.
[237] See id.
[238] See id.
[239] See id. at 4.
[240] See id. at 3 – 4.
[241] See id. at 8.
[242] See id. at 26 – 27.
[243] See id. at 27.
[244] See A.M. v. New York City Dept. of Educ., 845 F.3d 523, 546 – 46 (2d. Cir. 2017) (referencing and following the proposition that when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide the services consistent with that consensus is not reasonably calculated to enable the child to receive educational benefits.).
[245] See Parent Exhibit A, at 10.
[246] See School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993); See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 (Oct. 15, 2007).
[247] See 34 CFR 300.152(c)(3); SJB v. New York City Dep't of Educ., 2004 WL 1586500, at *4-*5 (S.D.N.Y. July 14, 2004) (finding that parties need not initiate additional administrative proceedings to enforce prior administrative orders); see also A.R. v. New York City Dep't of Educ., 407 F.3d 65, 76, 78 n.13 (2d Cir. 2005).