Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 247725

Student’s Name: [REDACTED]

District : NYC Dept. of Ed., District # [REDACTED]

Impartial Hearing Officer: Keegan K. Staker, Esq.

Date of Filing: April 24, 2023

Hearing Requested by: Parent

Dates of Hearing: September 18, 2023

September 19, 2023 Record Close Date: December 5, 2023

Date of Decision: December 5, 2023

I. JURISDICTION

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.

The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.

II. BACKGROUND AND DUE PROCESS COMPLAINT

The Parent, through counsel, filed a Due Process Complaint(“DPC”) on or about April 24, 2023. Parent alleges that the Department of Education (“DOE”) violated the IDEA, denied Student a Free and Appropriate Public Education (“FAPE”), and violated Section 504 of the Rehabilitation Act during the 2022-2023 school year. The parent sought a declaration that the DOE denied Student a FAPE, as well as compensatory education to make up for the deprivation of FAPE.

III. PROCEDURAL HISTORY AND HEARING

I was appointed on April 26, 2023. On September 18, 2023, Parent’s Counsel appeared virtually for a hearing. DOE did not appear for the hearing, nor did they appear at any time during this action.^[1] Parent provided 48 exhibits^[2] prior to the hearing and all exhibits offered for admission were admitted into evidence. Exhibit VV is an affidavit of Parent in lieu of direct testimony. With my permission, considering DOE’s failure to appear at hearing, Parent also provided a partial affidavit of ABA provider (Exhibit XX) which was admitted into evidence on September 19, 2023. ABA provider testified further on direct examination on September 19, 2023. Following completion of the testimony, Parent requested permission to submit a closing brief, which was granted. That brief was timely submitted on October 23, 2023.

IV. LEGAL FRAMEWORK

Under the IDEA, a free and appropriate public education (“FAPE”) is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the individualized education plan (“IEP”) developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.^[3] If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. ^[4]

The IDEA directs that, in general, an Impartial Hearing Officer’s (“IHO”) decision must be made on substantive grounds based on a determination of whether the student received a FAPE. ^[5] A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” ^[6]

To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP.^[7] Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, “material.” ^[8]

In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.”^[9] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion.^[10] Although an award of damages is not available under the IDEA, 11 “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” ^[12]

NYS Education Law describes special education as including “special services or programs,” which, in turn, includes, among other things, “[s]pecial classes, transitional support services, resource rooms, direct and indirect consultant teacher services, transition services…assistive technology devices….”^[13] 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.”^[14] The IDEA requires that the CSE, when developing a child's IEP, must “consider whether the child needs assistive technology devices,” among other things.^[15] 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.”^[16] 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.”^[17] “[A]lthough

11 See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002) assistive technology will almost always be beneficial, a school is only required to provide it if the technology is necessary.” ^[18]

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, which is not the case here.^[19] The standard required is a preponderance of the evidence. ^[20]

V. FINDINGS OF FACT AND DECISION

A. Student was Denied a FAPE for the 2022-2023 School Year

At an impartial due process hearing in New York, the burden is on the District to prove that they provided Student with a FAPE. 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. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”

At the hearing the DOE utterly failed to defend their educational plan insofar as they did not appear and did not introduce any evidence whatsoever. When, as here, the DOE abdicates all responsibility concerning their burden, the allegations, facts, liability alleged in the DPC are deemed admitted.^[21] Further, the record (including both evidence and absence of evidence) substantiates the claims made in the DPC. As the burden to establish a FAPE is unquestionable on the DOE, I find that the DOE failed to provide Student with a FAPE for the 2022-2023 school year.

B. Compensatory Services

The relief requested by the Parent is equitable in nature, as the Parent is asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide Student with a FAPE for the 2022-2023 school year.

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.” In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.”

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. The Second Circuit has held, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” 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.” 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.’” “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.” Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.”

There are generally two approaches to fashioning a compensatory education award: 1) the “quantitative” approach followed in the Third Circuit, and 2) the “qualitative” approach relied on by the 6th and D.C. Circuits. 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.” 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 District has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA. However, the parent also has a responsibility to identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE for the years at issue. Here, the Parent has identified the specific remedy Parent is seeking and has provided documentary evidence and testimony in support of Parent’s request. The Parent is requesting compensatory and make-up instructional and related service hours on a qualitative basis.

Parent and ABA Instructor testified that Student should have been entitled to services that were ordered by prior IHOs, which were never implemented. Specifically, Student should have been entitled to full day Applied Behavior Analysis (“ABA”) in school, extended school day program of 15 hours,^[22] as well as related services and an appropriate communication device. I specifically find that both witnesses were credible in all respects, and credit their testimony.

a. Speech Language Therapy (“SLT”) – Student was entitled to five hours per week of SLT during the pendency of case 217611 and for the entire year as demonstrated by the pendency order in that matter and the subsequent FOFD.^[23] The unopposed testimony and credible evidence demonstrate that those services were not provided. As such, Student is entitled to 200 hours of SLT as compensatory education, based on a 40-week extended school year on a quantitative basis.

b. Extended Day ABA Services – Student was entitled to fifteen hours of extended ABA services for the extended 2022-23 school year. The credible and unopposed evidence demonstrates that these services were not implemented or provided, and to the extent the Parent arranged for ABA services on her own, those hours were billed to a bank of hours previously awarded. As such, Student is entitled to a bank of 450 ABA compensatory hours for the 2022-2023 extended school year, on a qualitative basis.

c. Compensatory ABA Supervision – ABA Instructor testified credibly that one hour of ABA supervision should be required for every ten hours of ABA instruction for the at home, extended day, ABA services.^[24] No such supervision is required for the services provided by ABA Instructor during the regular school day because she is a BCBA/LBA.^[25] Thus, based on the award of 450 hours of compensatory ABA services, I find that Student is entitled to compensatory ABA Supervision of 45 hours to be used in conjunction with the 450 hours of compensatory ABA instruction. ^[26] d. Parental training – The credible and uncontroverted evidence, specifically the testimony of ABA instructor, establishes that one hour per week or parent training should have been provided for Student and Parent in order to provide a FAPE. As such, I find that Parent is entitled to a compensatory parent training of 40 hours for the 2022-2023 extended school year.

e. Compensatory related services under pendency – Parent seeks an award of a bank of compensatory hours for any sessions of Occupational Therapy (“OT”), Physical Therapy (“PT”) and SLT not provided by DOE. With respect to OT and PT, Parent’s testimony indicates that such services were being provided^[27] and there has been no testimony of evidence to indicate that those services were not provided or otherwise deficient. Thus, I decline at this time to fashion an award for any OT or PT not provided by the DOE, but parent may renew this request in a subsequent due process proceeding, subject of course, to any applicable statute of limitations. However, I will order DOE to provide an accounting of services provided to date. With respect to SLT, the compensatory award for SLT, supra, covers the portion of the pendency order for the 2022-2023 school year. I decline at this time to award compensatory education for the portion of pendency that covers the 2023-2024, but parent may renew this request in a subsequent due process proceeding, which Counsel indicates will be filed imminently.

C. Student’s Appropriate 2022-2023 Program

For purposes of clarity for future proceedings, I find that Students 2022-2023 program should have been as follows: a) 6:1:1 placement at District 75.

b) 1:1 Applied Behavior Analysis (“ABA”) for at least 30 hours per week when school is in session, push-in to school; c) 15 hours per week of afterschool 1:1 instruction using ABA when school is in session; d) 45 hours of 1:1 ABA on days school is not in session; e) Speech and language therapy 5x60, 1:1; f) Occupational Therapy 3x30, 1:1; g) Physical Therapy, 2x30, 1:1; h) Parent training and counseling, 4x60 per month; i) Paraprofessional for feeding, 0.2 daily; j) Special transportation – Bus, Miniwagon 5x/week; k) 12-month, extended school year program; l) Implementation of mini-iPad with communication device in-school and at home; and m) 1.5 hours per week of ABA supervision.

D. Section 504 of the Rehabilitation Act

Parent, in the DPC, and Counsel, through her closing brief, requests a finding that DOE violated section 504 of the Rehabilitation Act. This relief is denied, as parent specifically withdrew their claim under Section 504 without prejudice at the hearing. ^[28]

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) the DOE denied Student a FAPE for the 2022-2023 school year;

(2) Student’s program for the 2022-23 should have been that which was provided in subsection C, supra;

(3) the DOE shall fund a compensatory bank of 200 hours of SLT to be used within three years of this order by a provider of parents choosing at market rate;

(4) the DOE shall fund a compensatory bank of 450 hours of ABA instruction to be used within three years of this order by a provider of parents choosing at market rate;

(5) the DOE shall fund a compensatory bank of 45 hours of ABA Supervision to be used within three years of this order by a provider of parents choosing at market rate;

(6) the DOE shall fund a compensatory bank of 40 hours of parent training to be used within three years of this order by a provider of parents choosing at market rate;

(7) Parent’s request for compensatory education for OT and PT for sessions not provided during the 2022-23 school year is denied without prejudice to renew;

(8) DOE shall provide a detailed accounting of related services (SLT, OT and PT) that have been provided to Student during the period of 7/1/2022 through the date of this order within 45 days;

(9) Parent’s request for compensatory education for any related services not provided during the pendency of this hearing is denied without prejudice to renew in a subsequent proceeding;

(10) Parents request for declaratory relief under Section 504 of the Rehabilitation Act is denied as it was withdrawn without prejudice.

Dated: December 5, 2023

Keegan K. Staker, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

DISTRICT EVIDENCE

PARENT EVIDENCE

A. Exhibit Description Date Pages Impartial Hearing Request 04/22/2023 29 pages

B. FOFD in Case # 184616 04/22/2021 14 pages

C. FOFD in Case # 217611 02/10/2023 16 pages

D. Pendency Agreement in Case # 03/21/2022 3 pages

E. [REDACTED] Print Out 06/05/2023 1 page

G. F ABA Invoices 2022-2023 08/2022 – 29 07/2023 ABA Program Summary 06/2023 13 pages

H. Speech RSA 2022-2023 2022-2023 2 pages

I. Resume of ABA Instructor Undated 2 pages

J. Resume of provider Undated 2 pages

L. K Learning Lab ABA Invoices 2022- 2023 12/2022- 8 06/2023 Resume of provider Undated 2 pages

M. ABA Annual Progress Report 06/23/2023 8 pages

N. Speech Invoices 2022-2023 07/2022 – 05/2023 12 pages

O. Resume of provider Undated 11 pages

P. Speech Language Therapy Annual Progress Report 06/20/2023 8 pages

Q. Email Between Parent’s Counsel and Implementation Unit 08/22/2023 – Regarding Interim Order 09/11/2023 6 pages

R. [REDACTED] Children Medical Center Developmental Behavioral Report 11/07/2017 4 pages

S. Pediatric Neuropsychology Associates Neuropsychological Exam 04/02/2018, 04/13/2018, 04/27/2018 03/16/2018 11 pages

T. Speech Pathology & Swallowing Disorders Services of [REDACTED] Initial Speech-Language Evaluation 03/30/2018 10 pages

U. Findings Of Fact And Decision in Case # 173508 08/31/2018 11 pages

V WITHDRAWN X X

W Functional Indirect and Direct Assessment 01/2019 4 X Behavior Intervention Plan 11/12/2019 7 Y Communication Matrix 2019-2020 2 Z The Assessment of Basic Language & Learning Skills 2006 104

AA ABLLS Growth 2020 2020 1 BB Speech RSA Summer 2022 Summer 2022 6 CC Assessment of Basic Language and Learning Skills 2021 2021 3

DD [REDACTED] Clinical Services Psychological Evaluation 11/05/2020 3

EE DOE Assistive Technology Evaluation 10/31/2019 14 FF [REDACTED] Clinical Services Psychosocial Evaluation 11/08/2020 3

GG DOE Student Progress Report 10/21/2022 3 HH Learning Lab Annual Progress Report 04/29/2022 7 II Learning Lab Treatment Plan 10/25/2021 9 JJ BCBA Responsibilities Undated 1 KK Progress Reports by ABA Instructor 07/2020- 26

07/2021 LL Progress Report by ABA Instructor 09/2020- 9

06/2021 MM Goal and Skill Update 2021-2022 10/15/2022 2

NN Progress Report by ABA Instructor 10/2019- 11

08/2020 OO Letter from Doctor at [REDACTED] Children’s at 09/01/2020 1

Northwell Health PP Emails Between Parent and CBST Regarding NPS Various Dates 4 from 11/2021 –

04/2022 QQ [REDACTED] Addendum 1-Service Confirmation Undated 1 RR Emails 10/21/2022 3

SS Emails 11/16/2022 – 2

11/29/2022 TT Email Re Bussing 09/19/2022 – 1

09/20/2022 UU Touch Chat Programs Undated 2 VV Special Education Standard Operating Procedures Manual 11/16/2021 124 WW Affidavit of Parent 09/14/2023 20

XX Affidavit of ABA Instructor (partial testimony) 9/18/2023 6

IHO EXHIBITS

1. Parent’s Closing Brief 10/23/23 22 pages DOE

2. E-mail correspondence between Parent Counsel and IHO post hearing APPENDIX Various [REDACTED] Information Term Used In FOFD [REDACTED] Student [REDACTED] Parent [REDACTED] Parent Attorney/Representative None DOE Attorney/Representative [REDACTED] ABA Instructor DOE

Footnotes

[1] DOE did not submit any notice of appearance in this matter, nor did a representative appear on behalf of DOE for the appearances at the prehearing conference (5/25/23), pendency hearing (6/5/23), or status conferences (6/30/23; 7/14/23; and 8/22/23).

[2] Exhibits A-VV were provided; however V was withdrawn prior to hearing and omitted from the evidence package.

[3] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

[4] See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

[5] See 20 U.S.C. § 1415(f)(3)(E)(i).

[6] Rowley, 458 U.S. at 203 (emphasis added).

[7] See Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5d Cir. 2000); Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 (3d Cir. Aug. 14, 2008); Couture v. Bd. of Educ., 535 F.3d 1243 (10th Cir. 2008); Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 (8th Cir. 2003).

[8] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 (D.D.C. 2007).

[9] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015).

[10] Florence County Sch. Dist. Four v. Carter by & Through Carter, 510 U.S. 7, 16 (1993).

[12] Doe v. East Lyme, 790 F.3d at 454.

[13] NYS Educ. Law § 4401(2)(a).

[14] 20 U.S.C. § 1401(1)(A).

[15] 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).

[16] 34 C.F.R. § 300.105(b).

[17] 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).

[18] Id.

[19] NYS Educ. Law § 4404(1)(c).

[20] See 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2d Cir. 1998).

[21] See SRO No.15-011; SRO No. 14-179; 01-044.

[22] Meaning 15 hours of ABA outside of school, per week.

[23] See Exhibit C, D.

[24] Transcript pgs. 178-180.

[25] Id.

[26] To the extent Parent was seeking 47.5 hours as listed in the closing brief, Parent clarified via e-mail that the request was for 45 hours of supervisory instruction. See Brief and IHO Exhibit 1 and post-hearing e-mail correspondence at IHO Exhibit 2.

[27] See Exhibit WW, ¶113.

[28] See Transcript, pg. 65.