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NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS
SPECIAL EDUCATION HEARINGS DIVISION
In the matter of Student, a Minor, by her/his Parent(s), against
THE NEW YORK CITY DEPARTMENT OF EDUCATION
FINDINGS OF FACT AND DECISION
Impartial Hearing No. 247362
Virginia Tillyard
Impartial Hearing Officer
BACKGROUND AND POSITION OF THE PARTIES
Parent, through counsel, filed a due process complaint (the “DPC”)[1] under the Individuals with Disabilities Education Act, 20 U.S.C. section 1400 ff (the “IDEA”), Article 89 of the New York State Education Law and Section 504 of the Rehabilitation Act of 1973, against the New York City Department of Education (the “DOE”) on April 7, 2023, alleging that the DOE denied Student a free appropriate public education (“FAPE”) for the 2020-21, 2021-22 and 2022-23 school years.
In the DPC the Parent alleges, among other things, substantive and procedural violations in connection with the development of Student’s individualized education programs (IEPs) developed during the years at issue [2]. As principal remedies in the DPC, Parent requests an interim order for independent educational evaluations (IEEs); a revised IEP based on the basis of the evaluation results; an order that the DOE’s Central Based Support Team (CBST) locate an appropriate non-public school placement for Student, or, alternatively, an order that the DOE fund a private school placement of the Parent’s choosing; door to door special transportation; compensatory education to compensate for the alleged denials of FAPE; make-up services for any services to which Student was entitled pursuant to
JURISDICTION
The IDEA and its implementing regulations and Article 89 of the New York State Education Law and its implementing regulations provide jurisdiction for this decision. [3]
PROCEDURAL HISTORY
I was appointed as Impartial Hearing Officer to this case on 4/10/2023. A limited hearing on Parent’s request for independent educational evaluations (IEEs) was held on June 5, 2023. I issued an interim order on the request for IEEs on June 5, 2023 and an interim order on the DOE’s motion to dismiss based on the statute of limitations on July 16, 2023. The compliance date was extended multiple times in order for independent educational evaluations to be completed.
At hearing, the Parent submitted an exhibit packet. All Parent’s exhibits were admitted.[4] The DOE did not submit any exhibits. The Parents presented the affidavit testimony of the Neuropsychologist, the BCBA, the Speech Therapist, the Occupational Therapist, the Agency Witness and the Parent. The DOE’s attorney did not cross-examine any of Parent’s witnesses. The Parent made an oral closing. [5]
LEGAL FRAMEWORK
Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a free appropriate public education (“FAPE”), 8 NYCRR § 200.5(j)(4)(i). Under the IDEA and New York law, where there is procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. [6]
The IDEA is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). Two purposes of the IDEA are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B).
Burden
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 (NYS Educ. Law § 4404(1)(c)). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).
FINDINGS OF FACT AND DECISION
The DOE’s case – provision of a FAPE
As defined in the IDEA, a FAPE consists of special education and related services provided at no cost to a parent. Special education means “specially designed instruction...to meet the unique needs of a child with a disability” and “related services” are various supportive services “as may be required to assist a child with a disability to benefit from special education”.[7] 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). The IDEA’s procedures require the school district’s IEP Team, in developing an IEP, to consider (i) the strengths of the child; (ii) the concerns of the parents for enhancing the education of their child; (iii) the results of the initial evaluation or most recent evaluation of the child; and (iv) the academic, developmental, and functional needs of the child. 20 U.S.C. § 1414(d)(1)(A)(i)(I)-(IV). An IEP Team is a group of individuals, including the student’s parents. 20 U.S.C. § 1414(d)(1)(B).
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 County Sch. Dist. RE-1, No 15- 827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). When an IEP is disputed, a school district is expected to be able to offer a “cogent and responsive explanation for their decisions” to show that a student’s IEP meets that standard. The court in Endrew F. said that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” A student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See 34 C.F.R.§§300.114 through 300.117; Walczak v. Florida Union Free Sch. Dist., supra.
The Second Circuit has confirmed that its pre-existing FAPE standard is consistent with the Supreme Court’s decision in Endrew F. Mr. P. & Mrs. P. v. West Hartford Board of Educ., 885 F.3d 735 (2d Cir. 2018).
In the DPC Parents allege, among other things, that the DOE failed to appropriately evaluate Student, and that Student’s IEPs for the 2020-21, 2021-22 and 2022-23 school years were substantively and procedurally inappropriate. They also allege that the DOE failed to appropriately implement Student’s IEPs for the years at issue, insofar as remotely delivered SLT and OT services during the 2020-21 school year were insufficient and caused regression. In my interim order on July 16, 2023, I dismissed Parents claims regarding the appropriateness of Student’s IEPs for the 2020-21 school year. However, Parent’s claims regarding implementation of Student’s IEPs for the 2020-21 school year survived the motion to dismiss. At hearing, the DOE did not attempt to defend any of the remaining claims, did not introduce any evidence or testimony of its own, and did not provide any evidence or any explanation, let alone a cogent and responsive explanation, for how the CSE developed the recommendations in the IEPs for the 2021-22 and 2022-23 school years. Based on the above, I find that the DOE failed to provide Student with a FAPE for the three school years at issue.
REMEDIES
Having determined that the DOE denied Student a FAPE, the remaining issue I must decide is relief. Any relief must be “appropriate in light of the purpose of the Act."[8] Consideration of the equities is a necessary part of any remedy granted under the IDEA: "[E]quitable considerations are relevant in fashioning relief and the court enjoys broad discretion in so doing."[9] In order to determine whether Parent’s requested remedies are appropriate, a discussion of Student's educational needs and progress is warranted.
The Student
Student is now [REDACTED] years old and is currently classified as a student with a disability with a classification of Autism. He is in fourth grade for the 2023-24 school year.
On June 5, 2019 the Committee for Special Education (CSE) developed an IEP for the 2019-20 school year. The CSE classified Student as a student with a speech or language impairment, and recommended, on a 10-month basis, a 12:1:1 special class in a DOE community (non-specialized) school, occupational therapy (OT) twice per week and speech-language therapy (SLT), 1:1, twice per week.[10] The IEP reports that the Childhood Autism Rating Scale 2 had been completed for Student and that he was found to be in the non-autistic range. The IEP also reports that Student was rated at the “extremely low” level on a number of cognitive assessments. [11]
During the 2019-20 school year Student’s teacher told Student’s mother that he needed a 1:1 paraprofessional because of his constant need for redirection. She wrote to the DOE on February 7, 2020 requesting a 1:1 paraprofessional and counseling, but the request was denied. 12 Student’s teacher completed a behavioral assessment (BASC-3) of Student on May [12], 2020.[13] The report shows high levels of hyperactivity, aggression and off-task behavior in the classroom, lack of sustained attention, and rule breaking, isolation from peers, and disconnection from surroundings. [14]
On May 26, 2020, for the 2020-21 school year, the CSE developed an IEP and recommended, on a 10-month basis, a 12:1:1 special class, OT twice per week, SLT twice per week and counseling once per week in a group of three.[15] The IEP notes that student “needs intense one on one support from an adult in order to complete tasks according to teacher reports. He is easily distracted by manipulatives....” [16]
On April 22, 2021, for the 2021-22 school year, the CSE developed an IEP and made the same recommendations as for the 2020-21 school year.[17] Student’s reading and math were reported to be at kindergarten level. The IEP reports:
[REDACTED] struggles with his social skills. Often [REDACTED] will produce echolalic phrases to himself or the provider. He can identify and label some basic items but when asked to elaborate, he struggles. [REDACTED] demonstrates difficulty with topic maintenance, providing appropriate eye contact, initiating conversation with peers….
Ex. D1-D2
During the fall of 2021, Parent arranged for the Evaluating Agency to evaluate Student. Between August and October 2021, the Evaluating Agency conducted a psychological evaluation, a psychosocial evaluation and an autism evaluation.[18] The Evaluating Agency found that Student met diagnostic criteria for autism, in the severe range,[19] as well as a mild intellectual disability. It noted that Student needs continual redirection and has difficulty understanding academic materials. The evaluations found that Student needed additional related services, social skills support, and a program with increased academic support.[20] Parent shared the reports with the CSE. [21]
On April 12, 2022, the CSE developed an IEP for the 2022-23 school year. It left Student’s classification of speech or language impairment unchanged, and again made the same recommendations as for the 2020-21 school year.[22] His reading and math were reported to be at first grade level (he was in second grade at that time). The IEP indicates that Student had made some progress, but reports:
he is generally a quiet boy but can get upset quickly if he is asked to do work. He does not motivate himself to do work independently and requires an adult next to him to help him focus and prompt him as needed….
Ex. E-2
…[REDACTED] is easily distracted and requires frequent refocusing prompts. He has difficulty working independently and requires assistance to complete tasks….
Ex. E-4
A behavior intervention plan is not recommended. [23]
The CSE completed triennial re-evaluations of Student during the fall of 2022, also completing a classroom observation, an educational report and a social history update. The reports rated his overall IQ as in the very low range, with some areas (working memory, processing speed, word reading, math problem solving and numerical operation) in the extremely low range.[24] The evaluations identified a wide range of social-emotional and behavioral problems, social disconnection, extremely low processing speed, and academic functioning in the very low or extremely low range in both literacy and math.[25] Student was uncooperative during his behavioral evaluation[26] and, as reported in the December 2022 IEP:
Behaviors included avoidance and non-aggressive verbal outbursts. [REDACTED] did show signs of cooperation. Although he did make eye contact, he did not maintain it and it was often fleeting. [REDACTED] respond to questions that were directed to him and followed directions when he was not frustrated. [REDACTED] required reinforcement and encouragement to complete tasks. [REDACTED]'s work pace varied from slow to average. He was able to transition well from task to task. [REDACTED] did appear to have distractions in this one-to-one setting during the evaluation.
Ex. F-4
On December 22, 2022 the CSE reconvened and changed Student’s classification to autism. Student’s revised IEP gives his academic levels as kindergarten level in math, and second grade level in reading. The CSE added twelve month services and parent counseling and training (PCAT) three times a year to the IEP recommendations, and changed Student’s placement recommendation to placement in On June 5, 2023, I ordered the DOE to fund the following IEEs from a duly qualified provider of the Parent’s choice: a neuropsychological evaluation; an occupational therapy evaluation; a speech-language therapy evaluation; an assistive technology evaluation; an applied behavior analysis (ABA) skills assessment; a functional behavioral assessment, and a subsequent behavior intervention plan (BIP) if necessary.
All those evaluations were completed before the merits hearing. The evaluation reports and an affidavit from each provider are included in the record.[30] All the evaluators are appropriately qualified and experienced.[31] Also in the record are an affidavit from the Parent[32] and an affidavit from the Director of the Coaching Agency, who conducted an academic assessment of Student on March 14, 2023.[33] Although all affidavits were accepted into evidence without objection, I note that the Coaching Agency and the respective agencies that engaged the BCBA, the Occupational Therapist and the Speech Therapist, have a potential interest in the outcome of the case, since they could
Sometimes described as ”deferral to the Central Based Support Team (CBST)“ 28
Ex .F
Ex. NN-1 provide any compensatory services ordered.[34] This impacts witness credibility, and I accord somewhat diminished weight to the testimony of the applicable witnesses.
Student’s needs
The Neuropsychologist diagnosed Student with Autism Spectrum Disorder, without accompanying intellectual impairment but with accompanying language impairment-Level 2 (requiring substantial support); Attention-deficit Hyperactivity Disorder (ADHD), combined presentation, and generalized anxiety disorder.[35] In March 2023 the Coaching Agency’s assessment showed Student to be at low first grade level for decoding, upper first grade level for spelling, upper kindergarten level for mathematics, first grade level for reading comprehension and kindergarten levels of writing. [36]
The BCBA observed Student at his current school over two school days in 2023, one in June and one in July. During that time he barely engaged in any classwork, remaining on task for two minutes at the very most before reverting to some preferred, self directed, off-task activity. These activities included playing games, sitting in the back of the classroom, drawing, talking about animals, elbow tapping and finger stimming. He also hit his head several times during the observations, which the BCBA hypothesized was for the purpose of escaping non preferred demands and gaining preferred items. There was no system in place at the Public School to decrease the behaviors or foster more appropriate behaviors, and the staff did not engage in classroom management with Student. [37]
The BCBA administered two assessments, one to identify deficiencies in language, academic, self-help and motor skills (the Assessment of Basic Language and Learning Skills (ABLLS-R) and one to assess deficits in social skills, based on skills used in functional everyday activities (the Adaptive Behavior Assessment System (ABAS-3). The ABLLS-R showed that while some of his skills are appropriately developed, others are not. His goals should prioritize three “major areas” in programming: co-operation, group instruction 38 In the ABAS-3, Student rated ”extremely low” in all four skill areas assessed, both at home and at school. The evaluative materials in the record in general show that he has an extremely short attention span in class and needs 1:1 support to access academic materials. The BCBA found significant delays in pragmatic language, socialization, leisure and academics. She developed a Behavior Intervention Plan (BIP) for Student based on her assessments and observations,[39] and recommended a full day Applied Behavior Analysis (ABA) program and a class setting no larger than 6:1:1.
Student’s IEPs for the years at issue (Exs. D, E and F), the Evaluating Agency reports, the DOE’s 2022 educational report, social history update and classroom observation (Exs. O-Q) show that the DOE has been aware of Student’s autism diagnosis, interfering behaviors, failure to concentrate, academic delays and need for 1:1 support for at least the two years at issue. His IEPs consistently note his various interfering behaviors and their adverse impact on his learning. Although the DOE provided some supports, they were not sufficient to meet Student’s educational needs. The BCBA’s classroom observations (Ex HH and II) provide further detail regarding his multiple interfering behaviors.
Student’s potential
The BCBA noted that Student appears to have a “much higher level of ability than demonstrated in the assessment” and his “significant difficulty answering questions on demand and aversion to demands impacts his ability to demonstrate his true abilities in an assessment setting. This has been observed and reported across teachers, providers, and prior assessment reports.” [40]
Revised IEP and Non public school placement
Ex. HH-22
The Parent requests an order requiring the DOE to hold an IEP meeting within 15 days of the order, review the IEEs, adopt their recommendations and goals, and revise Student’s IEP to include the following:
- a functional behavior assessment and a behavior intervention plan
- a class setting no larger than 6:1:1
- an educational program that incorporates elements of evidence-based teaching methodologies, i.e. DIR/Floortime, TEACCH, augmentative communication. [41]
- twelve month services
- 1 hour of parent training per week
- 10 hours per week of in-home ABA therapy and two hours per week of supervision
- SLT, 3X per week, 1:1 and SLT, 2X30, group of two/three
- OT 3X30 per week
- an iPad 9th or 10th generation with 64 gigabytes, including all recommended applications such as Logitech Rugged Portfolio, a protective case and keyboard and Bose QuietComfort wireless headphones [42]
Parent also requests an order for the CBST to locate an appropriate nonpublic school placement (NPS) within 15 days of the order; and if the DOE fails to do so, an order for the DOE to fund a private school of the parent's choosing that aligns with the recommendations of the independent evaluations.
With respect to prospective changes to a student’s IEP, the Office of State Review notes:
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 (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"]). 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 (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]).
Additionally, while prospective placement might be appropriate in rare cases (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"]), 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. 43
In this case, certain prospective changes to Student’s IEP are appropriate. Student’s December 2022 IEP is still in effect and its annual review date is December 14, 2023. 44 The DOE has already agreed to an NPS placement, and the CBST is still working with Parent to find a placement.
The above requests, as specifically cited by Parent’s counsel in her closing argument, are excerpted from the IEE reports of the various evaluators, Exhibits HH through MM. The evaluators reviewed Student’s IEPs and there is a consensus of opinion among the reports that Student requires the requested changes to his IEP.[45] The school district did not cross examine any of the IEE evaluators and did not contest the evidence supporting the student's need for a full time, specialized, ABA-based program or the IEP changes that Parent requests. Based on the record, I find that these changes (with minor modifications as discussed below) are appropriate relief in the current school year. While athome ABA therapy is not a necessary component of an IEP in every case, I find that it is appropriate in this case based on Student‘s delays and the BCBA’s finding that home based ABA therapy is to “retain and maintain newly taught skills” which in turn “will allow for an increase in skills taught in school”.[46] Further, based on the foregoing and because only a few weeks remaining before the CSE is due to meet for annual review of Student‘s current IEP, the revised IEP should remain effective for the remainder of the 2023-24 school year.
Although I am ordering most of the above requests, I am not ordering the CSE to implement verbatim the highly specific recommendations for assistive technology, which specify certain brand name products. With respect to those items, I am ordering the CSE to review the assistive technology evaluation report and revise Student’s IEP to provide Student with assistive technology and software equivalent to that described in Ex. LL (including a laptop computer or iPad). I am also ordering Student’s placement recommendation to include a full time specialized program for students with instructors and therapists trained and supervised in Applied Behavioral Analysis, in accordance with the Neuropsychologist’s and the BCBA‘s recommendations. [47]
I decline to order the CBST to fund a private school of the parent's choosing. If it fails to identify an appropriate NPS within 15 days. That would be inappropriate relief because it is not subject to FAPE (or Prong 2 Burlington/Carter) review, and is therefore contrary to the purpose of the IDEA. It could be viewed as an election of remedies. However, in the event the CBST is unable to provide the Interim relief Parent seeks an order for interim relief consisting of six hours of push-in ABA therapy per day for the five-day school week pending Student’s placement in an appropriate full time program.[48] This is an appropriate interim remedy, given Student’s longstanding FAPE deprivation and needs, combined with the demonstrated inadequacy of his current school placement. I am therefore issuing an Interim Order for Special Education Services (“IO”) concurrently with this decision. The IO is necessary because this decision does not become final until right to appeal is closed or, if appealed, may not be implemented until the appeals procedure is complete. The IO remains in force after this decision has become final, until Student is placed in an appropriate full time specialized program.
Missed Services
Parent requests total make-up services in the amounts of 76 hours and 20 minutes of speech language therapy; 39 hours of counseling, and 73 hours and 10 minutes of occupational therapy. Student’s related services attendance records are in the record as Exhibit V. Parent’s counsel arrived at these numbers based on her review of Ex. V. [49]
Compensatory Services
The Parent is requesting banks of additional compensatory education and services, from an independent provider at their normal and customary rate, based on the evaluations and assessments in the record, as follows:
• 230 hours of SLT (Ex. KK-12) • 69 hours of OT (Ex. JJ-18) • 600 hours of intensive one-to-one multisensory tutoring using the Orton-Gillingham technique (Ex. I-1 and QQ-3) • 920 hours of compensatory ABA therapy (Exs. HH-27 and II-14) • 92 hours of compensatory parent training (PCAT) (Exs. HH-28 and II-15) [50]
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE.[51] An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. Compensatory awards should aim to place students in the same position they would have occupied but for the school district's violations of IDEA.[52] It is "discretionary, prospective, injunctive relief rafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student." [53]
A compensatory education award can be crafted by either a “quantitative”, “qualitative” or hybrid approach incorporating both approaches. Under the quantitative approach, primarily followed in the Third Circuit, the compensatory award is based on the amount of time equal to the period of deprivation, but “excluding the time reasonably required for the school district to rectify the problem”. [54]
The D.C. Circuit set out the qualitative approach in detail in Reid v. District of Columbia. Many other courts follow some variant of Reid. Under a qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation, with the compensatory award being the specific services needed to correct those deficits. A qualitative approach does not require a day-for-day compensation for time missed; the award is instead “designed to ensure that the student is appropriately educated within the meaning of the IDEA”55 Reid rejected a “cookie-cutter” hour-for-hour award and cautioned that56 The qualitative approach continues to evolve as a flexible standard, and often includes a quantitative component 57 In specifying a compensatory education award, the hearing officer must undertake an inquiry that is "factspecific and, to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place." Reid, supra.
Reid, quoting Parents of Student W. v. Puyallup Sch. Dist.,No. 3, 31 F.3d 1489, 1497 (9th Cir. 1994)
See also Branham v. Gov’t of the Dist. Of Columbia, 44 IDELR 149 (D.C. Cir. 2005)
See, e.g. Mary McLeod Bethune Bay Academy Pub. Charter Sch. V. Bland, 555 F.Supp. 2d 130 (D.D.C. 2008)
The Second Circuit has declined to require any particular approach, although courts in the second circuit frequently refer to Reid and related cases. In New York, where a parent seeks a compensatory award to remedy past denials of FAPE, an “outright default” remedy is a “disfavored outcome”, even when the district’s conduct in denying a FAPE has been egregious. 58 A student is not automatically entitled to a compensatory award even where denial of FAPE is undisputed. 59 Ordering all the compensatory education relief requested by the parent, including the “monetization” of it, could amount to a punitive award or “punishment” of the school district rather than an equitable remedy (Application of a Child with a Disability, Appeal No. 23-019, citing C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 (3d Cir. Sept. 27, 2010). 60 The form of a compensatory award can vary, but it may include, among other things, compensatory education or related services (or reimbursement/funding for unilaterally obtained services, 61 a consultant, 62 a paraprofessional, 63 postsecondary education 64 or funding for a placement at a private school or other institution. 65 While an award of both Burlington/Carter tuition reimbursement for a private placement and compensatory services for the same school year may sometimes be appropriate, a compensatory award of a 58 Application of a Child with a Disability, Appeal No. 22-004 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005) 59 See Phillips v. District of Columbia, 932 F. Supp. 2d 42, 50 & n.4 (D.D.C. 2013) (collecting authority for the proposition that an award of compensatory education is not mandatory in cases where a denial of a FAPE is established, either because it would not help or because the student has flourished in the current placement) 60 C.W. notes that "[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education." See also Bd. Of Educ. of Fayette County v. L.M., 478 F.3d 307 (6th Cir. 2007) (an hour for hour award “in the absence of strong evidence in the record suggesting that so drastic a remedy is necessary, would border on punishment to the School District rather than an equitable remedy for a child in need”.
See, e.g. Reid, supra; Doe v. E. Lyme, supra.
E.g. in P. v. Newington, supra.
K.M. v. Techahapi Unified Sch. Dist. V. R.H., 68 IDELR[220] (E.D. Cal. 2016)
Streck v. Bd. Of Educ., 52 IDELR 285 (NDNY 2009), aff’d 2d Cir. 2010
See e.g. Reid, supra; Mr. And Mrs. A v. New York City Dep’t of Educ., 56 IDELR 42 (S.D.N.Y. 2011); S.A. v. New York City Dep’t of Educ. 63 IDELR 73 (E.D.N.Y. 2014); Sabatini v. Corning-Painted Post Area Sch. Dist., 31 IDELR 183 (W.D.N.Y. 1999); Brown v. D.C., 179 F.Supp. 3d 15 (DDC 2016); Sacramento City Unified Sch. Dist. V. R.H., 68 IDELR prospective private placement or services may be sometimes be viewed as circumventing the IDEA’s purpose of annual IEP review. 66
An excessive award is also inappropriate because it may not promote advancement. “Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity.” 67
Compensatory services are not appropriate where the harm has already been mitigated, 68 or where the hearing officer has already ordered prospective changes to an IEP or a change of placement to a non-public school.[69] Compensatory remedies aim to compensate for what the school district should
See V.W. v. New York City Dep’t of Educ., S.D.N.Y. 2022 (citing Doe v. E. Lyme, and awarding both because the student needed additional home based ABA therapy in order to receive a FAPE, even where the private placement had been found appropriate). The court said that ” [b]ecause compensatory education is retrospective, it does not replace the judgment of a CSE regarding which services may be appropriate for a student for the upcoming school year.“ However, in the same decision the court denied an award of prospective transportation-based ABA services because such an award can "circumvent[] the statutory process, pursuant to which the CSE is tasked with ... periodically assessing the student's needs." The court cited the record and Eley v. D.C., No. 11 Civ. 309, 2012 U.S. Dist. LEXIS
120026, 2012 WL 3656471 (D.D.C. Aug. 24, 2012: The issue of prospective placement generally arises ... only after the IEP has been properly completed and the parent wishes to remove the student from the IEP's recommended location.”
When the prospective funding is truly compensatory in nature, however, it can be appropriate (see, e.g. Sabatini, supra and other decisions cited in note 48 above). 67
M.M. v. New York City Dep’t of Educ., 60 IDELR 208 (S.D.N.Y. 2017); see also SRO decision 21-218.
See, e.g. Application of a Student with a Disability, Appeal No. 23-105: ”Generally, a request for compensatory education "should be denied when the deficiencies suffered have already been mitigated" (N. Kingston Sch. Comm. v. Justine R., 2014 WL 8108411, at *9 [D.R.I. Jun. 27, 2014], adopted at, 2015 WL 1137588 [D.R.I. Mar. 12, 2015] see
Somberg v Utica Community Schs., 2017 WL 242840, at *4 [E.D. Mich Jan. 20, 2017] [declining to award full-time tutoring for years during which student was denied a FAPE, since the student "did make some advancement over the course of his time in high school, even though he was not presented with what he was due under IDEA"], aff'd, 908 F.3d 162 [6th Cir. 2018]; Phillips v. Dist. of Columbia, 932 F. Supp. 2d 42, 50 & n.4 [D.D.C. 2013] [collecting authority for the proposition that an award of compensatory education is not mandatory in cases where a denial of a FAPE is established]).” have provided but did not, but that does not mean a compensatory award must maximize the student's potential or guarantee that the student achieves a particular grade-level in areas of need. [70]
Equitable considerations apply in fashioning compensatory education relief.[71] Equitable factors may include, for example, consideration of the parties' conduct, such as when the school system reasonably "require[s] some time to respond to a complex problem," or when parents' refusal to accept special education delays the child's receipt of appropriate services. [72]
There are no equitable considerations weighing against the Parent in this case. While the DOE clearly did not provide Student with appropriate supports during the years at issue, it made some efforts to be responsive. Within two weeks of Student’s DOE evaluations in the fall of 2022 the CSE deferred his placement to the CBST and began to search for an appropriate NPS program, albeit unsuccessfully.[73] However, there are other equitable considerations.
Although the Director of the Coaching Agency, the BCBA, the Speech Therapist, the Occupational Therapist and the Neuropsychologist all presented proposals for compensatory services, they did not know Student during the 2021-22 school year, or during the 2022-23 school year until the late summer of 2023. They based their findings regarding the adequacy of Student’s services on a retrospective review of his IEPs and assessments during those years. None of the compensatory proposals considers the feasibility or impact on Student of all proposed compensatory awards combined, or of all proposed compensatory awards combined with a greatly enhanced, twelve month daily program. I also note that Student was non-compliant much of the time during his evaluations, The total of compensatory services requested here is approximately 1900 hours. The request for compensatory ABA therapy is particularly excessive given that I am ordering a full-day ABA program, and an additional ten hours of ABA per week outside school. In addition, the DOE will be funding six hours per day of ABA therapy pursuant to the IO until Student is placed in an appropriate program. In an appropriate placement, Student should be able to improve his focus on academics once comfortable in his new environment and with behavioral supports in place.
For that reason, I decline to award additional compensatory awards. Student will receive increased related services pursuant to his revised IEP. Last, although neither party mentions this, the prospective relief is itself a form of compensatory award, and an award of compensatory services would be duplicative.
AT training
The Speech Therapist recommended 30 hours of assistive technology training. When asked about the content, purpose and delivery of the AT training, the Speech Therapist said that it would teach him how to use the various software, “[a]ll of the different programs kind of just giving him the training, watching him use them, and helping him reach independence with these so that he can use all - all of the hardware and the software to help access his curriculum”. Hearing Transcript 9/27/23, p.
59. It was not clear from the Speech Therapist’s testimony why 30 hours of AT training is necessary. I am therefore ordering the DOE to provide 10 hours of AT training, to train him in use of the assistive technology, once provided. [74]
Other remedies
I have reviewed Parents’ other requests and claims and find them either to be without merit, not supported by the record, not within my jurisdiction or beyond the scope of my authority. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.
ORDERS
IT IS HEREBY ORDERED that the New York City Department of Education (“DOE”) shall, within fifteen (15) days of the date of this decision, convene a Committee on Special Education (“CSE”) meeting to review the independent educational evaluation reports conducted for Student pursuant to the interim order in this matter dated June 5, 2023, and develop an appropriate IEP for Student that recommends the following program, on a twelve month basis:
• placement in a full time, twelve month specialized program for students with ASD and impairments in executive functions, and instructors and therapists trained and supervised in Applied Behavioral Analysis (ABA), a functional behavior assessment and a behavior intervention plan
• a class setting no larger than 6:1:1
• parent counseling and training from an appropriately licensed provider
• 10 hours per week of in-home ABA therapy (or, if an LBA cannot be found to provide ABA therapy, a special educator with ABA training under supervision of New York State licensed
LBA) with two hours per week of supervision
• Speech-language therapy, 3X 30 per week, 1:1 and SLT, 2X30, group of two/three
• Occupational therapy (OT) 3X30 per week; and it is further
ORDERED that the CSE shall review the recommendations included in the assistive technology evaluation dated August 25, 2023 (Exhibit LL in this matter) and add to Student’s IEP assistive technology and software equivalent to that described in that report (including a laptop computer or iPad); and it is further
ORDERED that the CSE shall defer Student’s IEP, as revised in accordance with the preceding order, to the New York City Department of Education’s Central Based Support Team which shall, within 45 days, locate an appropriate non-public school program that can implement the revised IEP; and it is further
ORDERED that the DOE shall provide or fund make-up services as follows:
76 hours and 20 minutes of SLT 39 hours of counseling
73 hours and 10 minutes of OT; and it is further
ORDERED that the DOE shall have the first option to provide any make-up services ordered herein and Parent shall co-operate with the DOE and any provider sourced by the DOE. However, if the DOE has not identified providers of make-up services within 60 days of implementation of this order, Parent may select a provider of choice; and it is further
ORDERED that if any of the make-up services are provided by the Parent’s provider of choice, any such provider, as a condition of payment, shall deliver to the Impartial Hearing Office’s Implementation Unit (i) an itemized invoice, with an accompanying affidavit sworn to by the applicable service provider, attesting to the service provider’s qualifications and the exact date and time that each of the billed services were provided to the Student; and (ii) a report of Student’s progress with respect to any hours implemented over the period invoiced, such progress reports to be delivered simultaneously to the CSE; and it is further
ORDERED that the DOE shall pay any such Parent’s provider of choice, within thirty-five (35) days of receipt of the above described invoice, affidavit and progress report, at the market rate of the applicable provider consistent with the rates paid by the Implementation Unit to the provider(s) of substantially similar services pursuant to hearing orders within the year preceding the delivery of such services; and it is further
ORDERED that the DOE shall provide 10 hours of AT training, once Student has received the assistive technology specified in this order; and it is further
ORDERED, that the DOE shall provide Metrocards for the Student and Parent for transportation to any provider of the make-up services ordered herein, if necessary.
October 17, 2023
Virginia Tillyard, 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
CERTIFICATION OF IMPARTIAL HEARING OFFICER
I, Virginia Tillyard, Impartial Hearing Officer in this matter DO HEREBY CERTIFY that the below list of exhibits included in this decision, taken together with any prior submissions with certifications, identifies each exhibit admitted into evidence in the above matter as of this date.
In addition, the full record of this case, maintained by the district, includes all briefs, arguments or written requests for an order filed by the parties; all written orders, decisions or subpoenas issued by me; and transcripts of all proceedings on the record, along with any other applicable items described in 8 NYCRR §200.5(j)(5)(vi)(a).
I FURTHER CERTIFY that upon information and belief, the materials included in the record are either the original or true copy of the original documents submitted in this matter.
Dated: October 17, 2023
Virginia Tillyard, Impartial Hearing Officer
EXHIBITS ADMITTED INTO EVIDENCE
PARENT EXHIBITS
A. Impartial Hearing Request 04/07/23 12 pages
B. IEP 06/05/19 19 pages
C. IEP 05/26/20 23 pages
D. IEP 04/22/21 17 pages
E. IEP 04/12/22 19 pages
F. IEP 12/14/22 30 pages
G. Parent Letter Requesting Counseling and a Paraprofessional 02/07/20 1 page
H. Parent Letter Requesting IEEs and Receipts 03/17/23 4 pages
I. EBL Coaching Tutoring Evaluation Letter 03/15/23 1 page
J. DOE BASC-3 Teacher Rating Scales 05/12/20 9 pages
K. [REDACTED] Psychological Diagnostic Evaluation 08/26/21 6 pages
L. [REDACTED] Psychosocial Evaluation 10/13/21 6 pages
M. [REDACTED] Autism Evaluation 10/28/21 7 pages
N. DOE Mandated Three Year Re-Evaluation 11/18/22 3 pages
O. DOE Classroom Observation 11/23/22 1 page
P. DOE Educational Report 11/30/22 7 pages
Q. DOE Social History Update 11/30/22 2 pages
R. Rate Affidavit and Resume of [REDACTED], Psychologist 05/24/23 7 pages
S. Rate Affidavit and Resume for [REDACTED], RBSS 05/17/23 5 pages
T. Rate Affidavit and Resume for [REDACTED], MPG 05/15/23 3 pages
U. Subpoena for Student’s Educational Records 03/28/23 2 pages
V. Student’s Related Service Attendance Records 2020-2023 48 pages
W. Rate Sheet for [REDACTED] Speech Services Undated 1 page
X. Rate Sheet for Manhattan Psychology Group 01/01/23 2 pages
Y. Rejection from [REDACTED] School 01/03/23 1 page
Z. Rejection from [REDACTED] School 01/03/23 1 page
AA. Rejection from [REDACTED] 01/19/23 2 pages
BB. Rejection from [REDACTED] School 02/01/23 1 page
CC. Parent Email to the CBST 07/06/23 1 page
DD. Resume of [REDACTED], BCBA Undated 2 pages
EE. Resume of Dr. [REDACTED] Undated 3 pages
FF. Resume of [REDACTED], OT Undated 1 page
GG. Resume of [REDACTED], SLP Undated 1 page
HH. Independent ABA Skills Assessment 07/25/23 31 pages
II. Independent FBA/BIP 07/23/23 21 pages
JJ. Independent Occupational Therapy Evaluation 08/21/23 20 pages
KK. Independent Speech Therapy Evaluation 08/25/23 14 pages
LL. Independent Assistive Technology Evaluation 08/25/23 10 pages
MM. Independent Neuropsychological Evaluation 08/01/23 27 pages
NN. Affidavit of [REDACTED], BCBA 08/28/23 8 pages
OO. Affidavit of [REDACTED], OT 09/05/23 5 pages
PP. Affidavit of [REDACTED], SLP 09/01/23 5 pages
QQ. Affidavit of Dr[REDACTED], EBL Coaching 08/28/23 3 pages
RR. Affidavit of [REDACTED], Parent 09/13/23 6 pages
SS. Affidavit of Dr. [REDACTED], Psychologist Undated 9 pages
DOE EXHIBITS
1. Due Process Complaint 4/7/2023 12 pages DOE
2. Individualized Education Program 5/26/2020 23 pages DOE
3. Prior Written Notice 8/12/2020 11 pages DOE
IHO EXHIBITS
I. DOE motion to dismiss 6/07/2023 10 pages
PARENT
II. response to DOE motion to dismiss 6/16/2023 10 pages
Footnotes
[1] Ex. A
[2] See Exs. B-F his IEPs, but that were not provided; and declaratory relief. As more fully discussed below, I find that (a) the DOE failed to meet its burden of showing that it offered Student a FAPE for the years at issue; and (b) the equities support the Parent’s requested relief to the extent discussed below.
[3] Since all the relief that Parent is requesting is available under the IDEA, I do not need to analyze any claims under Section 504.
[4] Parent’s exhibits A-T were admitted earlier at the hearing on Parent’s request for IEEs.
[5] See Hearing Transcript. References to “Hearing Transcript” in this decision refer to the cumulative transcript of any hearings in this case.
[6] 20 U.S.C. § 1415 (f)(3)(E)(ii) states: Procedural issues In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies-- (I) impeded the child's right to a free appropriate public education; (II) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child; or (III) caused a deprivation of educational benefits.
[7] See the IDEA’s definitions at 20 U.S.C. §1401.
[8] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985)
[9] Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993) (citation and internal quotation marks omitted).
[10] Ex. B. Note that the appropriateness of Exs. B and C is not at issue in this hearing and the information is reviewed for background only.
[11] Ex. B-1, B-2
[12] See Exs. G and RR
[13] Ex. J
[14] Ex. J
[15] Ex. C.
[16] Ex. C-2
[17] Ex. D [REDACTED] needs constant reminders to focus and stay on task. He drifts off very often during the day and needs to be prompted throughout the day….
[18] Exs. K-M
[19] Ex. M-5
[20] Id.
[21] Ex. RR, paragraph 19
[22] Ex. E
[23] Ex. E-4
[24] Ex. P
[25] Exs. N-Q.
[26] Ex. P-3 an approved non public school (NPS). 27 The revised IEP has an implementation date of January 2, 2023. 28 In the summer of 2023 Student’s classroom paraprofessional, the principal and psychologist at Student’s current school all acknowledged that he needs more supports and interventions for students with autism, and that the Public School cannot provide the support he needs. 29 Although the Central Based Support Team reached out to several non-public schools, as of October 12, 2023 none had offered Student a place. He therefore remained at the Public School, which he has been attending since at least the fall of 2022.
[30] Exs. HH-MM, NN-PP, and SS
[31] See Exs. DD-GG and S1-S2
[32] Ex. RR
[33] See Exs. I and QQ
[34] See Exs. W and X
[35] See Exs. MM and S-2.
[36] Ex. I
[37] Exs. HH and NN
[39] Ex. II
[40] Id.
[41] See Parent closing argument, Hearing Transcript
[42] Hearing Transcript, 9/27/23, pp. 34-38 43 Application of a Student with a Disability, Appeal No. 23-059 44 See Ex. F.
[45] Exs. HH, II, MM, NN and SS
[46] Ex. II-14
[47] Exs. MM-20 and HH-25 Parent, within 30 days of its receipt of the order, options for an appropriate non-public school placement, my orders are without prejudice to Parent’s right to identify an appropriate unilateral private placement, and seek reimbursement for the same pursuant to a future due process complaint. Until Student is appropriately placed, he will be receiving ABA therapy in his current placement pursuant to my interim order (see below).
[48] Exs. HH-28 and II-15
[49] See Hearing Transcript, 9/27/23, pp. 69-70 (2020-21 school year: 14 hours of counseling, 28.5 hours of speech, 26 hours and 10 minutes of occupational therapy; 2021-22 school year: 14.5 hours of counseling, 36.5 hours of speech, 32 hours of occupational therapy; 2022-23 school year: 10.5 hours of counseling, 11 hours and 20 minutes of speech, and 15 hours of occupational therapy As mentioned above, any issues regarding implementation of Student’s IEP for the 2020-21 school year survived the DOE’s motion to dismiss. The DOE did not object to Ex. V, did not defend Parent’s allegations of missed related services, and did not make any proposal of its own to make up Student’s missed services. I have not independently verified Parent’s totals, but am accepting them as proffered and unchallenged. Based on the foregoing, I am granting the above amounts of related services, as quantified by the Parent, in the form of banks of make-up services. The DOE has the first option to provide the make-up services but must start to do so within 45 days. If it does not, the Parent is free to source her own providers.
[50] Parent’s counsel summarized the amounts on the record (see Hearing Transcript, 9/27/23, pp. 36-37. However, her summary totals differed slightly from some of the evaluators’ recommendations, apparently because some of the evaluators’ calculations had minor numerical errors. I agree with counsel’s numerical adjustments.
[51] See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008), citing Mrs. C. v. Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990) and Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005): “The 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.”
[52] Reid, supra
[53] Reid, quoting G. ex rel. RG v. Fort Bragg Dependent Schs., 343 F.3d 295, 308 (4th Cir. 2003)
[54] M.C. v. Cent. Reg'l Sch. Dist., 81 F.3d 389, 391-92, 396-97 (3d Cir. 1996)
[220] (E.D. Cal. 2016); Draper v. Atlanta Indep. Sch. Dist., 518 F.3d 1275 (11th Cir. 2008); Somoza v. New York City Dept of Educ., 538 F.3d 106 (2d Cir. 2008). See also J.M. v. Kingston City Sch. Dist., (N.D.N.Y. Nov. 23, 2015) (although denying a compensatory award of an additional year of education in a private school to a student who had earned the equivalent of a high school diploma, the court said that "[w]here the parent has not unilaterally enrolled a child in a private school, and thus does not seek retroactive reimbursement, the child may be entitled to compensatory education."
[69] Demarcus L. v. Bd. Of Educ., 63 IDELR 13 (N.D. Ill. 2014). See also Application of a Student with a Disability, Appeal No. 23-059, denying additional compensatory education but affirming placement in a State approved nonpublic school that provides ABA therapy for the remainder of the current school year as well as the entire upcoming school year, because that placement is ”akin to, and may obviate the need for” compensatory education in the future, and citing Demarcus.
[70] See Application of a Student with a Disability, Appeal No. 21- 065 (it would be ”a pyrrhic victory if the delivery of an award of compensatory educational services only served to overwhelm the student or outpace the student's ability to make progress.”
[71] See, among other decisions, Reid 401 F.3d at 524; French v. N.Y.S. Dep’t of Educ., 476 F.App’x 468 (2d Cir. 2011); Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489 (9th Cir. 1994); Application of a Student with a Disability, Appeal No. 19-120; Application of a Student with a Disability, Appeal No. 18-002); R.L. v. Miami Dade Cty. Sch. Bd., 757 F.3d 1173 (11th Cir. 2014) (parents’ failure to consider more appropriate placements was an equitable consideration in affirming denial of compensatory award).
[72] Reid, citing M.C. v. Cent. Reg'l Sch. Dist., 81 F.3d 389, 391-92, 396-97 (3d Cir. 1996)
[73] See Exs. Y-BB even in a 1:1 assessment environment. It is unclear to what extent he would co-operate when tired after school, or at weekends, with different providers. It appears preferable that he receive his supports and services as part of an ongoing, coherent daily program. I am awarding the requested make-up services in full. For that reason, the additional compensatory requests are at least in part duplicative.
[74] See Ex. LL-10 Parent’s request for transportation to and from the make-up service provider(s) in the form of Metrocards, if necessary, for the Student and Parent is granted.
[279] and model forms are available at http://www.sro.nysed.gov