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CASE NUMBER: 598749 - NYC: 247701
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parents”)
Request Date/Date Complaint Filed: April 24, 2023
Date(s) of Hearing: October 23, 2023
Actual Record Closed Date: October 27, 2023
Date of Decision: November 4, 2023
Time Sensitive Yes
Hearing Officer: Robin Levin, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 23, 2023
For the Student:
[REDACTED] (“Parents’ Attorney”)
[REDACTED] (“Parent 1”)
[REDACTED] (“Clinical Director”)
For the Department of Education:
[REDACTED] (“DOE Attorney”)
INTRODUCTION
This is a decision rendered after a due process hearing (“DPH” or “hearing”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seqg., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law Article 89 §4404 ef seq., and its implementing regulations, 8 NYCRR §200.5 et seg.'! This case concerns Student, a [REDACTED] -year-old, who is classified as a student with Autism.[2]
On April 24, 2023, the Parents, through the Parents’ Attorney, filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”).[3] In the DPC, the Parents alleged that the DOE failed to provide the Student with a free appropriate public education (“FAPE”) for the 2021-2022, 2022-2023, 2023-2024 school years.[4] The Parents alleged that: (1) the DOE failed to comprehensively evaluate the Student, (2) the DOE failed to develop meaningful and measurable annual goals that address all areas of the Student’s needs, (3) the DOE failed to develop appropriate present levels of performance on the Student’s Individualized Education Program (“IEP”), (4) the DOE failed to implement the Student’s IEP, (5) the DOE failed to provide an appropriate program for the Student, (5) the DOE failed to provide appropriate related services to the Student, and (6) the DOE failed to address the Student’s behavioral needs.[5]
As interim relief, the Parents sought an order requiring the DOE to fund the cost of a comprehensive independent educational evaluation (“IEE”) to be conducted by private evaluators of the Parents’ choosing at market rates consisting of (1) a neuropsychological evaluation, (2) a speech-language evaluation, (3) an assistive technology evaluation, (4) an occupational therapy evaluation, (5) a physical therapy evaluation; and (6) an Applied Behavior Analysis (“ABA”) skills Assessment, (7) a Functional Behavior Assessment (“FBA”), and (8) a Behavior Intervention Plan
(“BIP”).[6]
As final relief at the hearing, the Parents requested an order as follows: (1) reimbursing the Parents for all out-of-pocket expenses associated with the Parents’ need to privately pay for ABA services, (2) requiring the DOE to fund 30 hours of ongoing “push-in” ABA services and 10 hours of ongoing at-home ABA services by an independent provider of the Parents’ choosing, (3) funding for compensatory services including 3,680 hours of ABA therapy, 69 hours of occupational therapy, 276 hours of speech-language therapy, 46 hours of physical therapy, 184 hours of social skills training, 184 hours of parent counseling and training, and 184 hours of board certified behavior analyst (“BCBA”) supervision provided outside of school hours by independent ' Exhibits will be referred to as “Ex.” followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and uppercase roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1). Transcripts of the Pre-Hearing Conference and the Due Process Hearing will be referred to as “PHC Tr.” and “DPH Tr.” followed by the page number(s) within the transcript as needed. 2 Ex. A; Ex. 1; Ex. 2; Ex. 3; Ex. C; Ex. D. 3 Ex. A. 4 Td. > Id.
6 Id. providers of the Parents’ choosing, and (4) funding for the cost of an appropriate assistive technology device for the Student.[7]
As discussed below, I find that the DOE denied the Student a FAPE for the 2021-2022, 2022-2023, and 2023-2024 school years. I find that the requested relief is appropriate and equitable to remedy the lack of a FAPE for the three school years at issue.
PROCEDURAL HISTORY AND POSITIONS OF THE PARTIES
On April 25, 2023, I was appointed Impartial Hearing Officer (““IHO”). A pre-hearing conference (“PHC”) was held on May 25, 2023.[8] At the PHC, the Parents’ request for an interim order for IEEs was discussed and a motion schedule was set. Thereafter, on June 5, 2023, the Parents’ Attorney filed a motion for an interim order for a comprehensive IEE of the Student.[9] The DOE did not reply to the Parents’ motion. On June 26, 2023, I issued an Interim Order, granting the Parents’ motion and ordering the DOE to fund the cost of a comprehensive IEE.'[10] Status conferences were held on June 29, 2023, August 2, 2023, September 1, 2023, and October 4, 2023 to monitor the status of the ordered evaluations and assessments.[11]
A virtual DPH was held on October 23, 2023. It was a closed hearing. Parent 1 was present and represented by the Parents’ Attorney. The DOE Attorney was present. The DOE Attorney sought to admit eight exhibits into the hearing record, and six exhibits were admitted.'[12] The Parents’ Attorney sought to admit sixteen exhibits into the hearing record, which I admitted.!?[13] The DOE Attorney gave an opening statement and did not call any witnesses at the hearing.'[14] The Parents’ Attorney gave an opening statement and called Parent 1 and the Clinical Director to testify via affidavit.[15] The DOE Attorney cross-examined both witnesses.[16] '° The Parents rested, the parties gave closing statements.'[17] The record was closed on October 27, 2023 after receipt and review of the hearing transcript.
The DOE took the position although the DOE did not call any witnesses at the hearing regarding any of the three school years at issue, the documentary evidence shows a FAPE was provided to the Student for the 2021-2022 school year.'[18] The DOE Attorney argued that the IEP in place for the 2021-2022 school year was sufficient to allow the Student to make meaningful
7DPH Tr. 58-59. 8 See PHC Tr. 1-16. ” See Parent’s Motion for IEEs.
10 See Interim Order on Motion. 'l Four extensions of the compliance date were granted to allow for the evaluations and assessments to be completed and reports to be received (See Order of Extension 1, Order of Extension 2, Order of Extension 3, and Order of Extension 4). DPH Tr. 44, 51. DOE’s exhibits 4 and 5 were not admitted into the hearing record. 'S DPH Tr. 49, 64. A detailed list of the admitted exhibits is attached to this decision as Appendix A, “Exhibits Entered Into the Record.” '4 DPH Tr. 52-53. 'S DPH Tr. 53-59; Ex. N; Ex. O. '6 DPH Tr. 65-116. ' DPH Tr. 117-133. '8 DPH Tr. 52-53, 118-120. progress. !? In addition, in the DOE Attorney’s opening statement, the DOE argued that the Parents “will not meet their burden, that the programs recommended are appropriate to meet the needs of this [S[tudent. Further, the District contends that the equities favor the [DOE] and not the Parent for the 2021 to 2022, 2022 to 2023, and the 2023 to 2024 school years.”””[20] Moreover, in the DOE’s closing statement, the DOE Attorney argued the Student was properly evaluated for the 2021-2022 school year and the IEP for that school year allowed him to make progress.[21] Regarding the 2022-2023 and 2023-2024 school years, the DOE Attorney argued that although the DOE did not call any witnesses at the hearing, the claim for compensatory services should be denied or reduced by the number of hours the Student already received.*?[22] The DOE Attorney also argued that the Speech-Language Pathologist is not qualified to give recommendations as to the Student’s need for assistive technology, and that the hearing record does not contain explanations regarding the qualifications and certifications of the various providers selected by the Parents.”>[23] Moreover, the DOE Attorney argued that the extended school year accounts for 42 weeks, not 46 weeks and therefore, if any compensatory services are awarded, the number of hours should be reduced.[24]
The Parents took the position that the DOE failed to provide the Student with a FAPE for the 2021-2022, 2022-2023, and 2023-2024 school years.”[25] The Parents’ Attorney argued, in his opening statement, that the DOE’s programs for the Student have denied him appropriate services to allow him to make meaningful progress,[19] and the only reason the Student has made any progress is due to the Parents privately securing the ABA services.[26] The Parents’ Attorney argued that the Student has not been properly evaluated throughout the last three school years, his IEPs have inaccurately described his abilities, his IEPs have not been properly implemented, the programs recommended have been inappropriate to meet his needs, the related services have been inappropriate for him, and the DOE has been unable to manage the Student’s behavioral needs.7’[27] In addition, the Parents asserted that while it was the DOE’s burden at the hearing to show that a FAPE was provided or to explain the appropriate remedy for the Student, if any, the DOE failed to do so, and even though the Parents did not have any burden at the hearing, the hearing record nonetheless supports the relief requested to remedy the denial of a FAPE for the three school years at issue.[28]
FINDINGS OF FACT
After a full review of the hearing record, I make the following findings of fact and determinations. Overall, I find all exhibits admitted into the hearing record to be relevant, and I find all the witnesses credible. I base the following on the record generated at the hearing.
' DPH Tr. 52-53.
21 DPH Tr. 118-120. 22 DPH Tr. 120-125.
2° DPH Tr. 53-59, 125-133.
26 DPH Tr. 53.
27 DPH Tr. 54.
28 DPH Tr. 53-59, 125-133.
The Student is currently [REDACTED] years old and has been diagnosed with Autism Spectrum Disorder.[29] Academically, the Student scores within the Average range in Reading and Written Expression, but scores in the Extremely Low range in Mathematics.[30] Furthermore, the Student’s receptive and expressive language abilities fall “below age expectations,” and the Student’s Withdrawal, Adaptability, Leadership, Activities of Daily Living, and Functional Communication abilities are within the “At-Risk” range.[31]
The Student’s disability impacts him in school. He was first diagnosed with Autism in October of 2020, and on December 1, 2020, the Committee on Preschool Special Education (“CPSE”) convened an IEP meeting and classified him as a Preschool Student with a Disability.°?[32] The December 1, 2020 IEP mandated a special class 12:1:3 in an approved preschool program for five hours per day, five days per week on a 12-month basis.[33] In addition, the December 1, 2020 IEP mandated related services including speech-language therapy and occupational therapy.*4[34] Subsequently, the CPSE reconvened on January 25, 2022 and recommended the same program except that physical therapy was then added to the Student’s mandated related services.[35] Meanwhile, the Student was struggling academically and behaviorally, and the Parents secured ABA therapy for the Student outside of school because the Parents were told ABA could not be provided by the DOE.*°
On April 8, 2022, a “turning five” IEP meeting was held and the CSE recommended a 12:1 special class with a behavior support paraprofessional and related services including occupational therapy, parent counseling and training, physical therapy, and speech-language therapy.[37] In September of 2022, the Student began the 2022-2023 school year in a kindergarten classroom at the Public School, and the Parents were told that the Student was not making any progress.[38] According to the April 8, 2022 TEP, the Student was “non-compliant with adults, not following directions and throwing himself on the floor. This behavior ma|de] it difficult for him to complete tasks and participate in activities. [The Student] needs to learn how to regulate himself [and] demonstrate appropriate behavior within social situations.”*’[39] Despite the Student’s needs and challenges, the April 8, 2022 IEP does not provide for any ABA services.[40]
However, following an incident at the Public School on September 15, 2022, the Parents were able to secure ABA services to be “pushed in” to the Student’s classroom by an outside provider.[41] Once the ABA services in school began, the Parents started to see the Student be able to learn in the classroom, and “it become clear that if [the Student] did not have the ABA support, 2° Ex, M-14. 30 Ex, M-13.
3? Ex. O-1; Ex. 1.
33 Ex, 1-1.
35 Ex, C-1.
36 Ex, O-1,
37 Ex, 2-15-16.
38 Ex, O-1.
39 Ex, 2-3,
40 Ex, 2-15-16.
41 Ex, O-2. the school could not maintain [his] safety.”*?[42] For instance, even though the Public School hours were 8:00 AM to 2:20 PM, the Student could only be present at the Public School from 9:00 AM to 1:00 PM because that is when the ABA therapist was present.*?[43] Therefore, the Student consistently missed more than two hours of school per day due to the Public School calling the Parents to pick him up once the ABA therapist left for the day.[44] The Parents were in constant communication with the Public School Principal regarding the Student’s needs and the lack of an appropriate program prevented him from participating in certain special classes and Public School activities.*>[45] Thereafter, on October 12, 2022, the CSE reconvened an IEP meeting, and the October 12, 2022 IEP also indicated that the Student needs “intensive support to manage his behaviors throughout the day.”*°[46] However, the CSE recommended the same program as the April 8, 2022 IEP besides that the CSE added adaptive physical education to his program.[47]
Subsequently, on February 17, March 2, and March , 2023, the DOE tried to conduct a psychoeducational evaluation of the Student.[48] According to the psychoeducational evaluation report, the Student “has had a difficult time adjusting to the kindergarten class environment” at the Public School, and the DOE Evaluator admitted that the Student “has not been able to make any noticeable progress in his current classroom.[49] The report also notes that during the evaluation, the Student “was extremely distracted” and “was not interested in the testing materials.”°’[50] The DOE Evaluator found that throughout the evaluation process, the Student’s “refusal and noncompliant behaviors increased” and therefore, the Student’s “general cognitive ability or academic achievement skills were not able to be generated due to his noncompliance behaviors.”*![51]
Moreover, on March 1, 2023, the DOE conducted an FBA and on March 24, 2023, the CSE reconvened for an IEP meeting.[52] The March 24, 2023 IEP indicated that the Student attends the Public School from 9:00 AM to 1:00/1:30 PM when the outside ABA therapist is present.°? The IEP explains that the Student has had a very difficult time and “demonstrates sensory seeking, attention seeking, avoidance, and self-stimming behaviors throughout the day. He demonstrates task avoidance/escape of academic tasks consistently.”°+[54] Therefore, due to the lack of any noticeable progress, the CSE changed the Student’s recommended program to a New York State-Approved Non-Public School (“NPS”) in a 6:1+1 special class setting with related services of occupational therapy, parent counseling and training, physical therapy, and speech-language therapy, and a 1:1 behavior support paraprofessional.*?[55] While the CSE admits, through the March 24, 2023 IEP and the Prior Written Notice (“PWN”) dated April 19, 2023, that the Student’s needs cannot be met in a public school program and the Student needs more intensive supports with 45 Ex. F, 46 Ex, 3-4. 47 Ex, 3-17-18. 48 Ex, 6. 49 Ex, 6-1; Ex. 6-3. °° Ex, 6-2. >! Rx, 6-2-3. >? Ex. D; Ex. E. teachers trained to work with children with Autism, to date, a NPS has not been located for the Student.[56] Meanwhile, the Parents have incurred out-of-pocket expenses to continue the Student’s ABA services so that he is able to attend the Public School and make progress.[57]
Over the last several months, the Student underwent a comprehensive IEE which included multiple evaluations and assessments pursuant to the Interim Order.[142][58] According to the neuropsychological evaluation report dated September 14, 2023, an _ independent neuropsychological evaluation was successfully conducted, and it was recommended that the Student attend “a very small, highly structured, and self-contained classroom environment within a special education school that utilizes ABA methodology throughout the day,”[117] including related services and year-round instruction.°?[59] The Neuropsychologist also found that “due to the absence of appropriate educational and therapeutic services while attending a DOE program, [the Student] requires compensatory education programming,” including 1:1 ABA services both in-school and at-home with BCBA supervision, occupational therapy, speech-language therapy, social skills training, and parent counseling and training.[60] The Clinical Director testified that she agreed with the recommendations of the Neuropsychologist and that the compensatory services were required “due to the absence of appropriate educational services” provided by the DOE.®!
Furthermore, on July 31, August 3, and August 6, 2023, the Student underwent an independent FBA, which included observations of the Student to determine his current level of function and identify problem behaviors.[62] The FBA Evaluator found that the Student requires full-time 1:1 ABA support in-school and at-home, including additional hours of ABA services as a compensatory award for the lack of an appropriate program and placement.® Similarly, according to the ABA Skills Assessment Report, the Student “will greatly benefit from the behavior-based strategies and approaches that ABA will incorporate.” In order for the Student to access his education, the Student’s program “should focus on functional communication and social skills that will allow him to work towards independence and self-advocacy...[while] allowing [the Student] access to individualized goals and structure that he requires to make progress in all domains.”©[65] The Parents agree that the only noticeable progress the Student has made is when the ABA support is in place full-time.
Additionally, on July 30, 2023, the Student underwent an independent speech-language evaluation to assess his current receptive and expressive speech-language abilities and deficits.° The Student “received a very low to severe composite score in the receptive language domain; a low/moderate score in core language, language content and language structure domains and a °° Ex, O-2; Ex. D; Ex. 8. °7 Ex. O-2; Ex. P. °8 Ex. G; Ex. H; Ex. I; Ex. J; Ex. K; Ex. L; Ex. M. °° Ex, M-14. 60 Ex. M-16. 6l Ex N. 6 Ex. K. 63 Ex, K-22-25, 64 Ex. L-16. © Td.
66 Ex, O-2.
67 Ex. G. borderline/marginal score in the expressive language domain.”® The Student also presented with “a significant pragmatic delay,” which affects his communication and conversational skills, and his literacy development was also found to be borderline impaired or delayed.” The Speech-Language Pathologist recommended ongoing individual speech-language therapy three times per week for 30-minute sessions and ongoing group speech-language therapy once per week for 30 minutes.[70] In addition, using a qualitative clinical approach, the Speech-Language Pathologist recommended a compensatory bank of 276 additional hours of speech-language therapy to remedy the lack of an appropriate program during the school years at issue.[71]
On July 30, 2023, the Student also underwent an assistive technology evaluation conducted by the Speech-Language Pathologist.’? The Speech-Language Pathologist found that in order to address the Student’s challenges related to reading and writing, the Student’s program needs to include an assistive technology device, specifically an iPad Pro 11” with 64 GB and associated accessories and academic applications including Pictello, Epic!, Raz-Kids, Phonemic Awareness Applications, Clicker Writer, and Tracing Letter and Number Applications.’ The use of the recommended assistive technology device and software will assist the Student with spelling, vocabulary expansion, syntax, and will help him progress academically.’* Based on the hearing record, the DOE has never evaluated the Student for assistive technology and/or recommended and provided an assistive technology device for the Student.
Next, on August 2, 2023, an occupational therapy evaluation was conducted.[75] The Occupational Therapy Examiner found that the Student has “impaired sensory perception, deficits in sensory reactivity and deficits in vestibular and bilateral integration,” meaning that it is difficult for the Student to take in sensory cues from his environment, process the information, and respond appropriately.’° In addition, the Student showed “deficits with his fine motor precision skills, fine motor integrations skills and handwriting skills.”’” He also presented with delays in endurance, strength, balance, sensory processing and body awareness. ’® The Occupational Therapy Examiner recommended ongoing occupational therapy for the Student three times per week for 45-minute sessions on a 12-month basis.’””[79] In addition, the Occupational Therapy Examiner recommended compensatory occupational therapy services in the amount of 69 hours to remedy the deficit of an appropriate program.[80]
*°
Lastly, on July 26, 2023, a physical therapy evaluation was conducted.[81] The Physical Therapist found that the Student “presents with deficits in all areas of gross motor function
68 Ex, G-17.
7 Ex, G-18.
72 Ex, H. 73 Ex, H-8-10. 74 Ex, H-8. 1 Ex, I, 76 Ex, I-12.
79 Ex, I-13.
81 Ex, J, including posture, coordination, agility, strength, and endurance,” which indicates that it is difficult for the Student to participate in age-appropriate gross motor activities.*” The Physical Therapist recommended that the Student needs consistent and skilled physical therapy services twice per week for 30-minutes on an individual basis and once per week for 30 minutes in a group setting.[83] Using both a qualitative and quantitative approach, the Physical Therapist concluded that the Student needs a bank of 46 hours of physical therapy since the lack of an appropriate program with sufficient physical therapy resulted in continued delays in his gross motor development.**[84]
For the current 2023-2024 school year, the Student remains at the Public School since the Central Based Support Team (“CBST”’) has not recommended any NPS for the Student despite a NPS being mandated in the Student’s current IEP.[85] As an alternative appropriate program for the Student to be able to make progress academically and behaviorally at the Public School, the Clinical Director, Neuropsychologist, and the FBA Evaluator all recommended ongoing full-time “push in” and at-home ABA services along with the recommended related services.[86]
CONCLUSIONS OF LAW AND ANALYSIS
This case concerns the DOE’s alleged failure to provide the Student with a FAPE for three school years: 2021-2022, 2022-2023, and 2023-2024.[87] Specifically, the Parents alleged that the DOE failed to: (1) comprehensively evaluate the Student, (2) develop meaningful and measurable annual goals that address all areas of the Student’s needs, (3) develop appropriate present levels of performance on the Student’s IEP, (4) implement the Student’s IEP, (5) provide an appropriate program for the Student, (5) provide appropriate related services to the Student, and (6) address the Student’s behavioral needs.[88]
FAPE
The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.*?[89] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.?[90] A school district has offered a student a FAPE when it complies with the procedural requirements set forth in the IDEA, and the IEP is reasonably calculated to enable the student to receive educational benefits.?[91] Under the IDEA, students with disabilities are entitled to be educated in the least restrictive environment that meets their unique needs.[92]
82 Ex, J-14. 83 Ex, J-15.
85 Ex. O; Ex. D. 86 Ex, N-3. Ex. M-15; Ex. L-16. 87 Ex. A.
89 90 U.S.C. § 1412 (aX(1)(A); 34 C.F.R. §104.33(a): Education Law §§ 4402(2)(a), (b)(2). °9 34 C.F.R. §300.13. *! Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
Parents may allege procedural and/or substantive FAPE violations. For procedural violations, a denial of a FAPE only occurs if the procedural inadequacies impeded the child’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision-making process, or caused a deprivation of educational benefits.?>[93] 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.”**[94] The District must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’””?[95] A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.?[96] The IEP must be reviewed at least annually, and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year.[97] The IEP should: (1) accurately reflect the results of evaluations to identify the student’s needs,[98] (2) provide for the utilization of sufficient special education programs or services,[99] and then (3) the IEP must be properly and timely implemented.!”°[100] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE.!"[101]
In due process hearings under the IDEA in New York, school districts have the burden of proof, including the burden of production and burden of persuasion. However, there is an exception in that a parent seeking tuition reimbursement or funding for a unilateral parental placement has the burden of persuasion and burden of production regarding the appropriateness of such placement.'[102] As this case does not involve a unilateral placement, the burden regarding all elements of the case is on the DOE.!TM
Here, I find that the DOE failed to provide the Student with a FAPE for the 2021-2022, 2022-2023, and 2023-2024 school years. The DOE Attorney argued that the documentary evidence alone shows that a FAPE was provided for the 2021-2022 school year.'"[104] I disagree. The DOE Attorney declined to call any witnesses at the hearing. There is no evidence in the record as to how the CSE made its recommendation, how any of the IEPs appropriately describe the Student, or whether the IEPs are meaningfully calculated to confer educational benefit. In short, the DOE failed to meet its burden at the hearing and failed to “offer a cogent and responsive explanation for °3 20 U.S.C. §1415 (£)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). 4 Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). °° Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998). °° Endrew F.,137 S.Ct. 988, 999. °7 34 C.F.R. §300.324(b)(1)(i); 8 N.Y.C.R.R. §200.4(e)(1)(Gi); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010). °8 34 C.F.R. § 300.320(a)(1); 8 N.Y.C.R.R. 200.4(d)(2)(); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008). ») 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v). 100 See 8 N.Y.C.R.R. 200.4(e)(7); Application ofa Child with a Disability, Appeal No. 08-087.
10l 71. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir.
2011).
103 NY Educ. Law § 4404(1)(c).
104 IDPH Tr. 117-120. their decisions” in creating any of the IEPs for the three school years at issue, and it is “through the IEP that “[t|he “free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.”!°°[105] The DOE did not present any evidence to rebut the Parents’ allegations regarding any of the three school years at issue.
Instead, the documentary evidence submitted by the DOE supports the Parents’ position that the DOE failed to properly evaluate the Student in all areas of suspected disability, failed to implement the Student’s most recent IEP and secure an appropriate placement, and the DOE Evaluator admitted in the DOE’s psychoeducational evaluation report that the Student “has not been able to make any noticeable progress.”!”°[106] In addition, specifically regarding the 2021-2022 school year, a review of the December 1, 2020 and the January 25, 2022 IEPs shows that an appropriate program was not developed for the Student as he made little to no progress on his annual goals, and thus, was not prepared to enter the Public School kindergarten program in September of 2022.'"[107] Therefore, I find the DOE’s argument that a FAPE was provided for the 2021-2022 school year is without merit, and the DOE made no arguments and presented no evidence regarding the provision of a FAPE for the 2022-2023 and 2023-2024 school years. Instead, the hearing record shows that the DOE continuously denied the Student with a FAPE as a NPS still has not been identified and secured for the Student despite his current IEP mandate.!°*[108] Overall, I find that the DOE failed to provide the Student with a FAPE for all three school years at issue.
The relief requested by the Parents is equitable in nature, as the Parents are asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide Student with a FAPE for the 2021-22, 2022-2023, and 2023-2024 school years. When determining remedies for FAPE violations, “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.”!”[109] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion.''[110] Although an award of damages is not available under the IDEA,"'[111] “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”!!”
ABA Services
Primarily, as a remedy, the Parents seek funding for ongoing push-in ABA services and ongoing home-based ABA services, and reimbursement for the out-of-pocket expenses associated with securing the private ABA provider for the Student.!'?[113] I find the requested relief appropriate, equitable, and supported by the hearing record. Here, it is undisputed that the Student needs ABA services in order to attend the Public School and access his education, and the DOE has failed to 105 Endrew F., 137 S.Ct. at 1002.
106 Ex. 6; Ex. 7; Ex. 8.
107 Ex. 1; Ex. C; Ex. O.
108 Ex. O; Ex. D; Ex. 8.
"19 Florence County Sch. Dist. Four v. Carter by & Through Carter, 510 U.S. 7, 16 (1993). "ll See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002) "2 Doe v. East Lyme, 790 F.3d at 454. "3 IDPH Tr. 58. find a NPS for the Student. The hearing record shows that the Parents originally secured ABA therapy for the Student outside of school because the Parents were told ABA could not be provided by the DOE.!"* Then, push-in ABA services began in the Public School in September of 2022 and the Public School requires the ABA provider to be present in order for the Student to attend.[115]!° The March 24, 2023 IEP indicated that the Student attends the Public School from 9:00 AM to 1:00/1:30 PM when the outside ABA therapist is present.'!°
In addition, the Clinical Director and the Neuropsychologist recommended that the Student attend “avery small, highly structured, and self-contained classroom environment within a special education school that utilizes ABA methodology throughout the day.”!'’ The Clinical Director testified that 30 hours of ABA services at-school per week combined with 10 hours of home-based ABA services were recommended for the Student in order for him to make progress and access his education.!'[118] Likewise, the FBA Evaluator found that the Student requires full-time 1:1 ABA support in-school and at-home, and according to the ABA Skills Assessment report, the Student “will greatly benefit from the behavior-based strategies and approaches that ABA will incorporate.”!'? The evidence shows that the Student needs ABA services to access a meaningful education, and the Parents agree that the only noticeable progress the Student has made is when the ABA support is in place full-time.'”’[120] Therefore, the continuation of ongoing ABA services both in-school and at-home are appropriate and must be of no cost to the Parents. The DOE shall reimburse the Parents for any out-of-pocket expenses associated with the ABA services, and the DOE shall fund a total of 40 hours per week of ABA services (30 hours in-school and 10 hours athome) by a licensed provider of the Parents’ choosing on a 12-month basis.
Compensatory Services
Next, the Parents requests compensatory services to also remedy the denial of a FAPE. Specifically, the Parents are requesting banks of compensatory services including 3,680 hours of ABA therapy with 184 hours of BCBA supervision, 276 hours of speech-language therapy, 69 hours of occupational therapy, 46 hours of physical therapy, 184 hours of parent counseling and training, 184 hours of social skills training, and 20 hours of assistive technology training. !*!
A hearing officer may award compensatory services relief in the form of supplemental special education or related services when there has been a denial of a FAPE.'?[122] Compensatory services can Serve as a “replacement of educational services the child should have received in the first place,” and any award “should aim to place disabled children in the same position they would M4 Ex O-1. MS Ex, O-2. M6 Ex, D-2. NT Ex. M-14. M8 Ex N-3; Ex. M-15. 19 Ex, K-22-25; Ex. L-16. 0 Ex, O-2. 21 DPH Tr. 58.
have occupied but for the school district’s violations of IDEA[.]’!*?[123] The Second Circuit has held, “Itlhe 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.”!**[124] 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.”!*°[125] Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”!*° 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.””!?[127]’ “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.”!**[128] Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.”[129]
!”?
There are generally two approaches to fashioning a compensatory education award: 1) the “quantitative” approach followed in the Third Circuit,'[130] and 2) the “qualitative” approach relied on by the 6" and D.C. Circuits.'[131] 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.”!*?[132] 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.”
°?
Under New York State law and regulations, the DOE has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA.!34_ However, parents also have 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 3 Reid yv. Dist. Of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that “[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act’). 24 P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). 5 Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008). 26 Doe v. East Lyme, 790 F.3d at 454. ®7 Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005). 28 See Id. at 522. 29 See Id. at 518. 130 See, e.g, MC. ex rel. J.C. v. Cent. Reg’! 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). 15! 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”). '32 Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. vy. 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).
133 Doe. v. East Lyme, 790 F.3d at 457. '54 Education Law § 4404(1)(c). Student with a FAPE for the school years at issue.'[135] Here, the Parents have identified the specific remedy they are seeking and have provided documentary evidence and testimony in support of the Parents’ request.
In the DOE’s closing statement, the DOE argues that the Parents request for compensatory services should be denied and if compensatory services are awarded, the award should be reduced by the amount of services the Student already received keeping in mind that the State Review Office (“SRO”) has previously found a 12-month school year equals 42 weeks instead of 46 weeks.'[136] The DOE made no arguments and presented no evidence as to what constitutes an appropriate remedy including any appropriate amount of compensatory services. As previously discussed, it was the DOE’s burden at the hearing to develop the hearing record to establish the appropriate amount of relief needed to remediate the DOE’s failure to provide the Student a FAPE for the school years at issue.'??[137] The DOE failed to do so. The SRO has clearly indicated that “‘it is not persuasive for the [DOE] to simply fault the [Parent’s] request for relief without also explaining its own view of what type of compensatory education relief would be appropriate to remediate the [DOE’s] failure to provide the [Student] with a FAPE.”'[138] Therefore, I find that an award of compensatory services is warranted to not leave the Parent with an “empty victory.”!*?[139] In addition, despite the DOE’s failure to develop the hearing record regarding the appropriate remedy for the DOE’s failure to provide the Student a FAPE, I find that the evidence in the hearing record nonetheless supports an award of compensatory services as discussed further below, and I find that regardless of whether a 12-month school year constitutes 42 weeks or 46 weeks, the hearing record overwhelmingly supports a finding, under a qualitative approach, that the Student needs the requested compensatory services in order to be compensated for the past deficient programs.[140] !*°
a. ABA Services
At the hearing, the Parents requested a bank of 3,680 hours of ABA therapy with 184 hours of BCBA supervision to address the DOE’s failure to provide the Student with an appropriate special education program for the school years at issue. I find this request very reasonable. There was copious information in the hearing record about the Student’s current deficits and the need for remediation. In addition, there is evidence in the hearing record that the Student benefits from ABA methodologies and has made progress when ABA services are in place full-time.[141] '*! Over the last several months, the Student underwent a comprehensive IEE which included multiple
'S86 DPH Tr. 117-125. '57 See Application ofa Child with a Disability, Appeal No. 14-014. 138 Iq '° Terry Jean Seligmann & Perry A. Zirkel, Compensatory Education for IDEA Violations: The Silly Putty of Remedies?, 45 Urb. Law. 281, 282 (Winter 2013) (citing Perry A. Zirkel, The Remedial Authority of Hearing and Review Officers under the Individuals with Disabilities Education Act: An Update, 31 J. Nat’1 Ass’n Admin. L. Judiciary 1 (2011)). 9 Reid vy. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005).
41 Bx, O-2. evaluations and assessments pursuant to the Interim Order. '*? According to the neuropsychological evaluation report dated September 14, 2023, the Neuropsychologist found that “due to the absence of appropriate educational and therapeutic services while attending a DOE program, [the Student] requires compensatory education programming,” including 1:1 ABA services both in-school and at-home with BCBA supervision.’ The Clinical Director testified that she agreed with the recommendations of the Neuropsychologist and that the compensatory services were required “due to the absence of appropriate educational services” provided by the DOE.!**
Furthermore, on July 31, August 3, and August 6, 2023, the Student underwent an independent FBA, and the FBA Evaluator found that the Student requires full-time 1:1 ABA support in-school and at-home, including additional hours of ABA services as a compensatory award for the lack of an appropriate program and placement.!*° Similarly, according to the ABA Skills Assessment Report, the Student “will greatly benefit from the behavior-based strategies and approaches that ABA will incorporate.”
!*° The Parents agree that the only noticeable progress the Student has made is when the ABA support is in place full-time.[147]
‘*’
Therefore, I find that the compensatory services award of 3,680 hours of ABA services and 184 hours of supervision by a licensed BCBA can remediate the DOE’s failure to provide the Student a FAPE. The DOE has failed to provide any evidence that the number of hours requested is unreasonable. The DOE relies solely on the argument that the number of hours were calculated based on a 46-week school year instead of a 42-week school year, and the Student has already received ABA services. However, I find these arguments unpersuasive, and I find that the DOE failed to meet its burden at the hearing to develop the hearing record regarding an appropriate remedy. I find that the hearing record supports the requested bank of compensatory ABA services.
b. Speech-Language Therapy
Moreover, the Parents have requested 276 hours of compensatory speech-language therapy services. The hearing record clearly demonstrates that the Student needs speech-language therapy as it is mandated in his current and previous IEPs, despite the frequency and nature of the services provided being insufficient to meet the Student’s needs. On July 30, 2023, the Student underwent an independent speech-language evaluation to assess his current receptive and expressive speech-language abilities and deficits.'*® The Student “received a very low to severe composite score in the receptive language domain; a low/moderate score in core language, language content and language structure domains and a borderline/marginal score in the expressive language domain.”!”?[149][68] The Student also presented with “a significant pragmatic delay,” which affects his communication and conversational skills, and his literacy development was also found to be borderline impaired or delayed.'°? Using a qualitative approach, the Speech-Language Pathologist
4? Ex. G; Ex. H; Ex. I; Ex. J; Ex. K; Ex. L; Ex. M. 3 Ex. M-16. M4 BX N. 45 Ex, K-22-25, 40 Ex. L-16. M7 Bx. O-2. MB Ex G.
149 Ex. G-17. recommended a compensatory bank of 276 hours of speech-language therapy to remedy the lack of appropriate programs during the school years at issue.!°![151] The Neuropsychologist and the Clinical Director also recommend compensatory speech-language therapy services, and the DOE has failed to provide any evidence that the number of hours requested is unreasonable or unwarranted. As such, I find that the hearing record supports the request number of hours.[152] !°?
c. Occupational Therapy
In addition, the Parents have requested a bank of 69 hours of compensatory occupational therapy services. The hearing record clearly shows that the Student needs occupational therapy services and still has deficits that need to be addressed despite receiving occupational therapy in school pursuant to his past and present IEPs. On August 2, 2023, an occupational therapy evaluation was conducted.!°?[153] The Occupational Therapy Examiner found that the Student has “impaired sensory perception, deficits in sensory reactivity and deficits in vestibular and bilateral integration,” meaning that it is difficult for the Student to take in sensory cues from his environment, process the information, and respond appropriately.!°* In addition, the Student showed “deficits with his fine motor precision skills, fine motor integrations skills and handwriting skills.”!°° He also presented with delays in endurance, strength, balance, sensory processing and body awareness.!°° The Occupational Therapy Examiner recommended compensatory occupational therapy services in the amount of 69 hours to put the Student in the position he should have been in the first place but for the lack of a FAPE.'[157] Therefore, there is ample evidence in the hearing record supporting a compensatory services award of occupational therapy and once again, the DOE has failed to provide any evidence that the number of hours requested is unreasonable or unwarranted. As such, I find that the hearing record supports this request.
d. Physical Therapy
Next, the Parents have requested a bank 46 hours of compensatory physical therapy services. The evidence shows that the DOE failed to provide any physical therapy to the Student until it was added to the Student’s IEP on January 25, 2022. Despite the limited amount of physical therapy the Student received, the recent physical therapy evaluation found that the Student “presents with deficits in all areas of gross motor function including posture, coordination, agility, strength, and endurance,” which indicates that it is difficult for the Student to participate in age-appropriate gross motor activities. !°* The Physical Therapist recommended that the Student needs consistent and skilled physical therapy services, and using both a qualitative and quantitative approach, the Physical Therapist concluded that the Student needs a bank of 46 hours of physical therapy since lack of an appropriate program with sufficient physical therapy resulted in continued delays in his gross motor development.'*?[159] Once again, the DOE has failed to provide any evidence
151 Tq
152 Ex, M-16; Ex. N-3. DS Ex. I. D4 Ex. 1-12. 155 Tq
156 Tq
157 Tq.
D8 Ex, J-14. 159 Tq that the number of hours requested is unreasonable or unwarranted. As such, I find that the hearing record supports this request.
e. Parent Counseling and Training
The Parents have requested a bank of 184 hours of compensatory parent counseling and training. According to the Neuropsychologist, parent counseling and training is a required related service to help the Parents understand the Student’s “special needs, developmental changes, manage his communication deficits, and improve his social-emotional and adaptive living skills.”!°°[160] While the Student’s IEPs have provided for parent counseling and training, the IEPs provide for it twice per year for 45 minutes, which the evidence in the hearing record shows is entirely insufficient for this Student.'°'[161] Instead, the evidence in the hearing record demonstrates that due to the Student’s unique needs and learning profile, parent counseling and training should be provided twice per week for one hour, not twice per year for 45 minutes, and therefore, the Parents have not received anywhere near the appropriate amount of parent counseling and training.'©[162] In order to remedy this, I find the requested bank of 184 hours of parent counseling and training appropriate, and again, the DOE has not provided any evidence showing otherwise.
ft. Social Skills Training
Similarly, the Parents have requested a bank of 184 hours of compensatory social skills training. According to the Neuropsychologist, the Student requires social skills training twice per week for a minimum of 45 minutes each session, including individual and small group sessions.[163] !° The small group sessions should focus on teaching the Student appropriate peer interactions.'TM While the Student’s current IEP dated March 24, 2023 explains in detail the Student’s challenges interacting appropriately with his peers, the current IEP and previous programs did not provide for any social skills training.[165] I find that the evidence shows social skills training is a required related service that the Student needs as part of his special education program. Therefore, to remedy the deficit, I find that the requested bank of 184 hours of social skills training is reasonable and appropriate. The DOE failed to meet its burden at hearing and did not produce any evidence showing that this request is unreasonable or not necessary to remedy the deficit caused by the DOE’s failure to provide a FAPE during the school years at issue.
g. Assistive Technology Training
Lastly, the Parents have requested a bank of 20 hours of compensatory assistive technology training. I find that the hearing record supports this request. The Speech-Language Pathologist who conducted an assistive technology evaluation of the Student on July 30, 2023 found that in order to address the Student’s challenges related to reading and writing, the Student’s program needs to include an assistive technology device, specifically an iPad Pro 11” with 64 GB and 100 Ex. M-16. lol Ex. D-26. 102 Ex. M-16. 163 J
165 Ex. C; Ex. D; Ex. 1; Ex. 2; Ex. 3. associated accessories and academic applications including Pictello, Epic!, Raz-Kids, Phonemic Awareness Applications, Clicker Writer, and Tracing Letter and Number Applications.'®° The use of the recommended assistive technology device and software will assist the Student with spelling, vocabulary, expansion, syntax, and will help him progress academically.'°’ Based on the hearing record, the DOE has never evaluated the Student for assistive technology and/or recommended and provided an assistive technology device for the Student. I find that 20 hours of assistive technology training will remedy this deficit in the Student’s program. Once again, despite having the burden at the hearing, the DOE has offered no evidence to show that this request is unreasonable or unwarranted, and I find the DOE’s argument that the Speech-Language Pathologist is not qualified to conduct an assistive technology evaluation is without merit.
For the reasons explained above, I find that the record supports the Parents’ request for the compensatory services, and I order the services as outlined below.
Furthermore, the Parents should not incur any out-of-pocket expenses related to transporting the Student to and from the compensatory services. The IDEA 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.[168]
!* In addition, New York State Education 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.”!®[169] The requested transportation must also be “reasonable when all of the facts are considered.”!”?[170] I find that transportation services to and from the compensatory services are reasonable and appropriate and that the Student is entitled to such. Therefore, I am ordering the DOE to provide appropriate transportation for the Student. Any outof-pocket transportation expenses incurred by the Parents should also be reimbursed.
Assistive Technology Device
Moreover, New York State 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....”!7![171] An assistive technology device is defined as “any item, piece of equipment, or product system. ..that is used to increase, maintain, or improve functional capabilities of a child with a disability.”!’?[172] The IDEA requires that the CSE, when developing a child's IEP, must “consider whether the child needs assistive technology devices,”
166 Ex, H-8-10. 167 Ex, H-8. 168 Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted). 169 8 NYCRR § 200.1(ww).
17 NYS Educ. Law § 4401(2)(a). 1290 U.S.C. § 1401(1)(A). among other things.'” 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.”!”[174] 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.”!”[175] “[A]lthough assistive technology will almost always be beneficial, a school is only required to provide it if the technology is necessary.”!”°[176]
The Parents have requested, as part of relief, for the DOE to provide the Student with an assistive technology device or fund the cost of the device at a rate not to exceed $3,000. The hearing record supports a finding that the Student needs an assistive technology device as a component of his special education program. On July 30, 2023, the Student also underwent an assistive technology evaluation conducted by the Speech-Language Pathologist.!’’[177] The Speech-Language Pathologist found that in order to address the Student’s challenges related to reading and writing, the Student’s program needs to include an assistive technology device, specifically an iPad Pro 11” with 64 GB and associated accessories and academic applications including Pictello, Epic!, Raz-Kids, Phonemic Awareness Applications, Clicker Writer, and Tracing Letter and Number Applications.'”* The use of the recommended assistive technology device and software will assist the Student with spelling, vocabulary expansion, syntax, and will help him progress academically.!”? Based on the hearing record, the DOE has never evaluated the Student for assistive technology and/or recommended and provided an assistive technology device for the Student, and I find that the requested relief is appropriate under the circumstances. Once again, I find the DOE’s argument that the Speech-Language Pathologist is not qualified to conduct an assistive technology evaluation is without merit.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
1. ORDERED that the New York City Department of Education shall fund forty (40) hours per week of ABA services on a 12-month basis, specifically thirty (30) hours of push-in ABA services in-school and ten (10) hours at-home, as well as two (2) hours of BCBA supervision per week, by a licensed provider of the Parents’ choosing at the provider’s customary and regular rate. The Department of Education shall pay the ABA provider directly within fifteen (15) days upon receipt of invoices for services rendered; and "3 20 U.S.C. § 1414(d)(3)(B)(v); 7G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 647 (S.D.N.Y. 2011). 1 34 CFR. § 300.105(b). TM TC. 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). 176 Td "7 Ex. H. M8 Ex, H-8-10.
1 Ex, H-8.
2. ORDERED that the New York City Department of Education shall reimburse the Parents for any and all out-of-pocket expenses associated with paying any independent ABA providers of the Parents’ choosing within fifteen (15) days upon submission of invoices for services rendered and proof of payment for the services; and ORDERED that the New York City Department of Education 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: 3,680 hours of ABA therapy, meoaos
184 hours of BCBA supervision, 276 hours of speech-language therapy, 69 hours of occupational therapy, 46 hours of physical therapy, 184 hours of parent counseling and training, 184 hours of social skills training, and 20 hours of assistive technology training. by issuing payment directly to the provider(s) within thirty-five (35) days upon the submission of invoices for services rendered.
ORDERED that the banks of compensatory services set out in #3 of this Order shall expire five (5) years from the date of this Order; and ORDERED that the New York City Department of Education shall provide or fund the necessary transportation costs to and from the service providers providing the awarded compensatory services; and ORDERED that that the New York City Department of Education shall immediately provide or fund an assistive technology device, software, and accessories, as specified in the hearing record, to be used by the Student both in-school and at-home. If the Department of Education does not provide the device within fifteen (15) days of the date of this Order, the Parents may purchase the device and upon submission of proof of payment, the Department of Education shall reimburse the Parents in an amount not to exceed $3,000; and
ORDERED that the New York City Department of Education’s Impartial Hearing Order Implementation Unit shall authorize all services hereby ordered within fifteen (15) days.
SO ORDERED.
DATED: November 4, 2023
Robin Levin, 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.
APPENDIX A — EXHIBITS ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Parent’s Impartial Hearing Request 4/24/2023 | 6 pages
B. DOE’s Due Process Response 5/09/2023 | 4 pages
C. Individualized Education Program 1/25/2022 | 16 pages
D. Individualized Education Program 3/24/2023 | 35 pages
F. E. Functional Behavior Assessment 3/01/2023 | 9 Emails with Parent and School Various
G. Independent Speech-Language Evaluation 8/15/2023 | 20 pages
H. Independent Assistive Technology Evaluation 8/15/2023 | 10 pages
I. Independent Occupational Therapy Evaluation 10/05/2023 | 15 pages
J. Independent Physical Therapy Evaluation 9/11/2023 | 16 pages
M. K. Independent Functional Behavior Assessment 8/15/2023 | 26 L. Independent ABA Skills Assessment 8/15/2023 | 19 Independent Neuropsychological Evaluation 9/14/2023 | 26 pages
N. Affidavit of Clinical Director 10/13/2023 | 3 pages
O. Affidavit of Parent 1 10/16/2023 | P. Payments Made for ABA Services 2/16/2023 3 pages
DOE EXHIBITS
1. Individualized Education Program 12/01/2020 | 16 pages DOE
2. Individualized Education Program 4/8/2022 22 pages DOE
3. Individualized Education Program 10/12/2022 | 4. Omitted 5. Omitted 25 pages DOE
6. DOE Psychoeducational Evaluation 3/8/2023 DOE
7. Prior Written Notice 4/27/2022 DOE
8. Prior Written Notice 4/19/2023 DOE
THO EXHIBITS
None
Ex, D-2. »° Ex, D-26-34.
Footnotes
[1] Exhibits will be referred to as “Ex.” followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and uppercase roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1). Transcripts of the Pre-Hearing Conference and the Due Process Hearing will be referred to as “PHC Tr.” and “DPH Tr.” followed by the page number(s) within the transcript as needed.
[2] Ex. A; Ex. 1; Ex. 2; Ex. 3; Ex. C; Ex. D.
[3] Ex. A.
[4] Id.
[5] Id.
[6] Id.
[7] DPH Tr. 58-59.
[8] See PHC Tr. 1-16.
[9] See Parent’s Motion for IEEs.
[10] See Interim Order on Motion.
[11] Four extensions of the compliance date were granted to allow for the evaluations and assessments to be completed and reports to be received (See Order of Extension 1, Order of Extension 2, Order of Extension 3, and Order of Extension 4).
[12] DPH Tr. 44, 51. DOE’s exhibits 4 and 5 were not admitted into the hearing record.
[13] DPH Tr. 49, 64. A detailed list of the admitted exhibits is attached to this decision as Appendix A, “Exhibits Entered Into the Record.”
[14] DPH Tr. 52-53.
[15] DPH Tr. 53-59; Ex. N; Ex. O.
[16] DPH Tr. 65-116.
[17] DPH Tr. 117-133.
[18] DPH Tr. 52-53, 118-120.
[19] DPH Tr. 52-53.
[20] Id.
[21] DPH Tr. 118-120.
[22] DPH Tr. 120-125.
[23] Id.
[24] Id.
[25] DPH Tr. 53-59, 125-133.
[26] DPH Tr. 53.
[27] DPH Tr. 54.
[28] DPH Tr. 53-59, 125-133.
[29] Ex. M-14.
[30] Ex. M-13.
[31] Id.
[32] Ex. O-1; Ex. 1.
[33] Ex. 1-1.
[34] Id.
[35] Ex. C-1.
[36] Ex. O-1.
[37] Ex. 2-15-16.
[38] Ex. O-1.
[39] Ex. 2-3.
[40] Ex. 2-15-16.
[41] Ex. O-2.
[42] Id.
[43] Id.
[44] Id.
[45] Ex. F.
[46] Ex. 3-4.
[47] Ex. 3-17-18.
[48] Ex. 6.
[49] Ex. 6-1; Ex. 6-3.
[50] Ex. 6-2.
[51] Ex. 6-2-3.
[52] Ex. D; Ex. E.
[53] Ex. D-2.
[54] Id.
[55] Ex. D-26-34.
[56] Ex. O-2; Ex. D; Ex. 8.
[57] Ex. O-2; Ex. P.
[58] Ex. G; Ex. H; Ex. I; Ex. J; Ex. K; Ex. L; Ex. M.
[59] Ex. M-14.
[60] Ex. M-16.
[61] Ex. N.
[62] Ex. K.
[63] Ex. K-22-25.
[64] Ex. L-16.
[65] Id.
[66] Ex. O-2.
[67] Ex. G.
[68] Ex. G-17.
[69] Id.
[70] Ex. G-18.
[71] Id.
[72] Ex. H.
[73] Ex. H-8-10.
[74] Ex. H-8.
[75] Ex. I.
[76] Ex. I-12.
[77] Id.
[78] Id.
[79] Ex. I-13.
[80] Id.
[81] Ex. J.
[82] Ex. J-14.
[83] Ex. J-15.
[84] Id.
[85] Ex. O; Ex. D.
[86] Ex. N-3. Ex. M-15; Ex. L-16.
[87] Ex. A.
[88] Id.
[89] 20 U.S.C. § 1412 (a)(1)(A); 34 C.F.R. §104.33(a); Education Law §§ 4402(2)(a), (b)(2).
[90] 34 C.F.R. §300.13.
[91] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[92] Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993).
[93] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).
[94] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[95] Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).
[96] Endrew F.,137 S.Ct. 988, 999.
[97] 34 C.F.R. §300.324(b)(1)(i); 8 N.Y.C.R.R. §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).
[98] 34 C.F.R. § 300.320(a)(1); 8 N.Y.C.R.R. 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008).
[99] 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v).
[100] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[101] J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[102] NY Educ. Law § 4404(1)(c); M-P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010),
[103] NY Educ. Law § 4404(1)(c).
[104] DPH Tr. 117-120.
[105] Endrew F., 137 S.Ct. at 1002.
[106] Ex. 6; Ex. 7; Ex. 8.
[107] Ex. 1; Ex. C; Ex. O.
[108] Ex. O; Ex. D; Ex. 8.
[109] Doe v. East Lyme Bad. of Educ., 790 F.3d 440, 454 (2d Cir. 2015).
[110] Florence County Sch. Dist. Four v. Carter by & Through Carter, 510 U.S. 7, 16 (1993).
[111] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002)
[112] Doe v. East Lyme, 790 F.3d at 454.
[113] DPH Tr. 58.
[114] Ex. O-1.
[115] Ex. O-2.
[116] Ex. D-2.
[117] Ex. M-14.
[118] Ex. N-3; Ex. M-15.
[119] Ex. K-22-25; Ex. L-16.
[120] Ex. O-2.
[121] DPH Tr. 58.
[122] See P. v. Newington Bd. Of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[123] Reid v. Dist. Of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that “[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act”).
[124] P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[125] Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008).
[126] Doe v. East Lyme, 790 F.3d at 454.
[127] Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005).
[128] See Id. at 522.
[129] See Id. at 518.
[130] 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).
[131] 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”).
[132] 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).
[133] Doe. v. East Lyme, 790 F.3d at 457.
[134] Education Law § 4404(1)(c).
[135] See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), (noting that “Tw]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”); Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017) (holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”) (internal quotes and citation omitted).
[136] DPH Tr. 117-125.
[137] See Application of a Child with a Disability, Appeal No. 14-014.
[138] Id.
[139] Terry Jean Seligmann & Perry A. Zirkel, Compensatory Education for IDEA Violations: The Silly Putty of Remedies?, 45 Urb. Law. 281, 282 (Winter 2013) (citing Perry A. Zirkel, The Remedial Authority of Hearing and Review Officers under the Individuals with Disabilities Education Act: An Update, 31 J. Nat’l Ass’n Admin. L. Judiciary 1 (2011)).
[140] Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005).
[141] Ex. O-2.
[142] Ex. G; Ex. H; Ex. I; Ex. J; Ex. K; Ex. L; Ex. M.
[143] Ex. M-16.
[144] Ex. N.
[145] Ex. K-22-25.
[146] Ex. L-16.
[147] Ex. O-2.
[148] Ex. G.
[149] Ex. G-17.
[150] Id.
[151] Id.
[152] Ex. M-16; Ex. N-3.
[153] Ex. I.
[154] Ex. I-12.
[155] Id.
[156] Id.
[157] Id.
[158] Ex. J-14.
[159] Id.
[160] Ex. M-16.
[161] Ex. D-26.
[162] Ex. M-16.
[163] Id.
[164] Id.
[165] Ex. C; Ex. D; Ex. 1; Ex. 2; Ex. 3.
[166] Ex. H-8-10.
[167] Ex. H-8.
[168] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted).
[169] NYS Educ. Law §§ 4401(1); 4402(4)(a); See also NYS Educ. Law § 4401(2);
[170] Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 (5th Cir. 1986).
[171] NYS Educ. Law § 4401(2)(a).
[172] 20 U.S.C. § 1401(1)(A).
[173] 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).
[174] 34 C.F.R. § 300.105(b).
[175] 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).
[176] Id.
[177] Ex. H.
[178] Ex. H-8-10.
[179] Ex. H-8.