Impartial Hearing Decision

CASE NUMBER: 599253 - NYC: 248015

FINDINGS OF FACT AND DECISION

Student’s Name ^[1]: REDACTED (“Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: 10/17/2023

Date(s) of Hearing: 12/06/2023

Actual Record Closed Date: 12/19/2023

Date of Decision: 12/20/2023 Time Sensitive Yes Hearing Officer: Melanie L. Bota, Esq.

Names and Titles of Persons Who Appeared on December 6, 2023

For the Student:

REDACTED, Esq., REDACTED

REDACTED, Witness REDACTED, Witness REDACTED, Parent/Witness REDACTED, Observing IHO REDACTED, Observing IHO

For the New York City Department of Education REDACTED, Esq., District Representative

BACKGROUND

The Student is a REDACTED child who is classified as a student with “Autism” by the New York City Department of Education District (“DOE” or “District”) under the Individuals with Disabilities Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute. The Student did not attend a day care or universal pre-kindergarten for the 2020-21 school year.^[2] The Student attended the Prekindergarten Placement for 2021-22 and the Public School for the 2022-23, and 2023-24 school years. 3 The Parent alleges that the District failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2020-21, 2021-22, 2022-23, and 2023-24 school years.^[4] The Parent requests the following relief:

1) a finding that the District failed to provide the Student with a FAPE for the 2020-21, 2021-22, 2022-23, and 2023-24 school years; and

2) an order for the Committee on Special Education (“CSE”) to reconvene and the Centra Based Support (“CBST”) to recommend a New York State Education Department Approved Non-Public School (“NYSED NPS”) placement for the Student with 1:1 instruction and utilizes Applied Behavior Analysis (“ABA”) methodology, in a 6:1:1 or small class size, with 30 hours of ABA/week; and 3) pending the CBST’s recommendation for a NYSED NPS, an order for the DOE fund 30-hours/week of push-in ABA therapy with^[3] hours/week of Board Certified Behavior Analyst (“BCBA”) supervision at the Public School, with 1 hour/week of parent counseling and training (“PCAT”), and 10 hours /week at-home ABA with 8 hours/month of BCBA supervision;^[5] and 4) an order for the CSE to also review the Student’s evaluations and address the Student’s learning needs by creating an appropriate individualized education program (“IEP”), by recommending meaningful and measurable goals to address the Student’s social, emotional, and academic deficits; a 12-month special education program at a NPS, with the following related services: speech-language therapy (“SLT”), occupational therapy (“OT”), physical therapy (“PT”), counseling, assistive technology (“AT”), parent counseling and therapy (“PCAT”), in-school ABA, at-home ABA, BCBA supervision, and special transportation, as well as any other services recommended by the individual evaluators; and 5) the following independent educational evaluations (“IEEs”): a speech-language evaluation; OT evaluation; AT evaluation; and a functional behavioral assessment (“FBA”) and if recommended, a behavioral intervention plan (“BIP”), to be conducted by a BCBA; and 6) compensatory instructional services, like ABA and BCBA supervision, to remedy the failure of the DOE to offer an appropriate program of special education, including instructional support; and 7) compensatory related services to remedy the failure of the DOE to offer an appropriate program of related services, such as: 1:1 SLT, by a provider of the Parent’s choosing, and at the enhanced rate offered by the District; 1:1 OT, by a provider of the Parent’s choosing, and at the enhanced rate offered by the District; 1:1 counseling and social skills training, by a provider of the Parent’s choosing, at an enhanced rate offered by the District; 1:1 AT training for both the Parent and the Student, by a provider of the Parent’s choosing, at an enhanced rate offered by the District; 1:1 PCAT by a provider of the Parent’s choosing, at an enhanced rate offered by the District; and 1:1 ABA with BCBA supervision, by a provider of the Parent’s choosing, at an enhanced rate offered by the District; 8) for the assigned IHO to assign an individual from the DOE’s Implementation Unit to serve as a contact person, by ordering said person to provide their name, contact number, and email address to the Parent and Parent’s Counsel; and 9) any further relief that this IHO deems just and proper to ensure the provision of a free and appropriate education for the Student. ^[6]

PROCEDURAL HISTORY

On May 25, 2023, the Parent, through Parent’s Counsel, filed a due process complaint (“DPC”) against the District pursuant to the IDEA.^[7] I was appointed on May 8, 2023, to determine the claims in the DPC and to conduct a due process hearing (“DPH”), pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1). During the resolution period, the parties met on May 23, 2023, and reached a partial resolution agreement, dated May 31, 2023, with respect to the requested IEEs. The District funded a private neuropsychological evaluation, at a rate of $6,500, and an ABA skills assessment, at a rate of $1,000, and additionally agreed to perform PT, AT, SLT, and OT evaluations. On June 4, 2023, the resolution period expired without resolution of the remaining claims. On June 20, 2023, settlement and prehearing conferences (“PHC”) were held with the representatives of the parties. During the PHC, the Parent made an application for an interim order for the CSE to reconvene and refer the Student to the CBST for a NYSED NPS placement, and the District took no position at the PHC. On June 29, 2023, an interim order was issued, which denied Parent’s request in part, but granted it in part, as I ordered the CSE to review the DOE funded neuropsychological evaluation and autism skills assessment and reconvene to create an IEP for the Student for the 2023-24 school year. 8

On July 24, 2023, August 22, 2023, September 19, 2023, and October 11, 2023, status conferences were held with the representatives of the parties. On October 17, 2023, the Parent filed an amended DPC under Case # 264095 and requested the matters be consolidated. On October 20, 2023, a consolidation order was issued, consolidating Case # 264095 into Case #248015.^[9] On November ^[8], 2023, a prehearing conference and status conference were held with the representatives of the parties. Finally, on December 6, 2023, a DPH was held. ^[10]

At the DPH, Parent’s Counsel submitted 43 exhibits, all of which were admitted into evidence pursuant to stipulation. Parent’s Counsel also presented five witnesses: the Psychologist, the BCBA, the ELS Director, the OT/AT Provider, and the Parent. The District Representative submitted 12 exhibits, most which were admitted pursuant to stipulation,^[11] and presented no witnesses at the DPH. A list of the documentary evidence in this proceeding is appended to this Decision and Order.

JURISDICTION

A decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (“IDEA)^[12] and its implementing regulations,^[13] and the New York State Education Law^[14] and its implementing regulations. ^[15]

LEGAL FRAMEWORK

General

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.^[16] 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. 17

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.^[18] A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” ^[19]

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 relevant IEP for one of the school years in question, and will only give this exhibit limited weight. The District also withdrew District Exhibits 5, 12, 13, and ^[17], as they are duplicates of Parent Exhibits S, P, N, and K. that the school board or other authorities failed to implement substantial or significant provisions of the IEP.^[20] 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.” ^[21]

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.”^[22] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion.^[23] Although an award of damages is not available under the IDEA, 24 “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” ^[25]

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.^[26] The standard required is a preponderance of the evidence.^[27] Since this case does not involve a unilateral placement or tuition reimbursement claim, the DOE has the burden of proof on all issues. Preschool

The IDEA, specifically Part C, requires school districts to provide early intervention services for infants and toddlers with disabilities.^[28] The IDEA additionally requires that children, who participate in early intervention programs under Part C of the IDEA, have an IEP created for them under Part B, by their local school district when they turn three-years-old. ^[29] New York State (“NYS”) Education Law § 4410(1)(i) defines a preschool student with a

24 See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002) disability as a preschool child “who is eligible to receive preschool programs and services, is not entitled to attend the public schools of the school district of residence pursuant to § 3202 of the Education Law and who, because of mental, physical, or emotional reasons, has been identified as having a disability and can receive appropriate educational opportunities from special programs and services approved by the department.”^[30] In accordance with the NYS Education Law, the New York Codes, Rules, and Regulations (“N.Y.C.R.R.”) enumerates a school district’s duties as related to educational programs for preschool students with disabilities.^[31] Students who turn three-years-old, are eligible for preschool programs and services on January 2nd of that year if their birthday falls before July 1st, or they will become eligible on July 1st of that calendar year.^[32] The Committee on Preschool Education (“CPSE”) is defined as “a multidisciplinary team established in accordance with the provisions of section 4410 of the Education Law,” and is tasked with determining eligibility for special education services for a child transitioning from early intervention services.^[33] The CPSE will convene to review a preschool student’s evaluations, educational records, and any other appropriate information, provided to them by an agency charged with responsibility of the student, and develop a preschool special education program and services.^[34] The CPSE determines whether the preschool student shall receive “(i) related services only; or (ii) special education itinerant services only; or (iii) related services in combination with special education itinerant services; or (iv) a half-day preschool program as defined in section 200.1(u) of this Part; or (v) a full-day preschool program as defined in section 200.1(p) of this Part.”^[35] Prior to recommending the provision of special education services in a setting of preschool children with disabilities, the CPSE “shall first consider providing special education services in a setting where age-appropriate peers without disabilities are typically found.” ^[36] Assistive Technology

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….”^[37] 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.”^[38] The IDEA requires that the CSE, when developing a child's IEP, must “consider whether the child needs assistive technology devices,” among other things.^[39] 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.”^[40] 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.”^[41] “[A]lthough assistive technology will almost always be beneficial, a school is only required to provide it if the technology is necessary.” ^[42] Transportation The IDEA further requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.”^[43] In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs.”^[44] The requested transportation must also be “reasonable when all of the facts are considered.”^[45] In a guidance document, the State Education Department has indicated that the CSE should consider and document a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, that the IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate,” and that when determining a student’s special transportation needs, such as the need for door-to-door transportation, it must document them.^[46] Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. ^[47]

FINDINGS OF FACT AND DECISION

I. FAPE

At impartial due process hearings in New York, the burden is on the District to prove that they provided Student with a FAPE.^[48] 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.^[49] 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.” ^[50]

It is uncontested that the Student is classified with Autism and eligible for a special education program and services. At the DPH, the District Representative argued that the District provided the Student with a FAPE for 2020-21, 51 2021-22, 2022-23, 2023-24 school years. The District provided documentary evidence, but failed to explain how the recommended special education program and related services for the school years in question provided the Student with a meaningful education that would have allowed the Student to make progress in light of their

51 The Parent argued that for the 2020-21 school year, the DOE failed to identify the Student as a student with a disability under the “child find” provisions of the IDEA. See Parent Exhibit F, at 10; 20 U.S.C. § 1412 (a)(3)(A); 34 CFR 300.111; and 8 NYCRR 200.2(a)(1), (7). disability. The District also presented no witness testimony to explain why the CSE recommended the special education program, related services, or placement for any of the school years in question and how the recommendations were appropriate for the Student in light of their disability. The District never even cited to its own evidence to demonstrate whether the Student made any progress during the school years in question. While the District Representative did cross-examine some of the Parent’s witnesses, said cross-examination did not serve to rebut the relevant testimony in question.

The Parent argued that the District committed procedural and substantive violations of the IDEA and did not provide the Student with a FAPE for the 2020-21, 2021-22, 2022-23, 2023-24 school years. The Parent specifically argued that the District’s recommendations for the Student’s special education program and services were predetermined. The Parent expressed their disagreement with the CSE during IEP meetings for the school years in question, but the CSE disregarded the Parent’s objections. While the Parent additionally argued that there were other procedural violations, such as the CSE team not being duly constituted, the Parent presented no evidence or testimony beyond providing the Student’s IEPs at the DPH.

The District Representative failed to address or sustain its burden under the Education Law and failed to demonstrate they provided Student with a FAPE for the 2021-22, 2022-23, and 2023-24 school years. I will address the Parent’s “child find” allegation that the District failed to provide the Student with a FAPE for the 2020-21 school year further below. I find the record establishes that the DOE failed to provide Student with a FAPE for the 2021-22, 2022-2023, and 2023-2024 school years.

II. Child Find The purpose of the “child find” provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made. 52 The IDEA places an ongoing, affirmative duty on State and local educational agencies to identify, locate, and evaluate students with disabilities

52 See Handberry v. Thompson, 446 F.3d 335, 347-48 (2d Cir. 2006); E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 (S.D.N.Y. Nov. 26, 2012); A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 (D. Conn. 2008), aff'd, 370 Fed. App'x 202 (2d Cir. Mar. 23, 2010); see also 20 U.S.C. § 1412 (a)(3)(A); 34 CFR 300.111; 8 NYCRR 200.2(a)(1), (7)). residing in the State “to ensure that they receive needed special education services.”^[53] The “child find” requirements apply to “children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade.”^[54] To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children. ^[55]

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child.^[56] A district's child find duty is triggered when there is “reason to suspect a disability and reason to suspect that special education services may be needed to address that disability.”^[57] To support a finding that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent in failing to order testing, or have no rational justification for deciding not to evaluate the student. ^[58] States are encouraged to develop “effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education.”^[59] Additionally, a school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's program.^[60] Related to child find is the referral process. State regulation requires that a student suspected of having a disability “shall be referred in writing” to the chairperson of the district's CSE—or to a “building administrator” of the school in which the student attends—for an “individual evaluation and determination of eligibility for special education programs and services.”^[61] While a parent and certain other specified individuals may refer a student for an initial evaluation,^[62] a professional staff member of the school district in which the student resides and certain other specified individuals may request a referral for an initial evaluation.^[63] If a “building administrator” or “any other employee” of a district receives a written request for referral of a student for an initial evaluation, that individual is required to immediately forward the request to the CSE chairperson and the district must, within 10 days of receipt of the referral, request the parent's consent to initiate the evaluation of the student.^[64] State regulation also provides that, upon receiving a referral, a building administrator may request a meeting with the parent and the student (if appropriate) to determine whether the student would benefit from additional general education support services as an alternative to special education, including speech-language services, academic intervention services, and any other services designed to address the learning needs of the student.^[65] Any such meeting must be conducted within 10 school days of the building administrator's receipt of the referral and must not impede the CSE from continuing its duties and functions. ^[66]

In the case at hand, the Parent argues that the DOE failed to identify the Student as a child with a disability for the 2020-21 school year, as required by the “child find” provisions of the IDEA.^[67] The Parent alleges that the Student “was struggling academically, as well as socially, emotionally, and behaviorally,” yet the District failed to evaluate the Student or provide any special education services for the 2020-21 school year, as well as a portion of the 2021-22 school year.^[68] During this time period, the Student allegedly failed to make meaningful progress in all areas, which “clearly signaled that [they] should have been referred to the CPSE and evaluated for a suspected disability.”^[69] The Parent’s position is that the District’s failure to identify the Student and provide them with an IEP to meet their direct needs was a violation of FAPE. ^[70]

For the 2020-21 school year, the Student was REDACTED and did not receive services through early intervention.^[71] The Parent testified at the DPH that the Student was not parentally placed in a day care or universal prekindergarten and did not receive services from the DOE. When asked if the Student remained at home during the 2020-21 school year, the Parent did not answer the question, but stated that the Student was in Brooklyn, NY for that year. The Parent testified that during this time period, the Parent was concerned that the Student was not developing like their twin sister, did not have language to communicate, and did not interact like their sister.^[72] The Student began regressing at this time and engaged in repetitive behaviors and had poor attention and eye contact.^[73] For the 2021-22 school year, the Student began prekindergarten at the Prekindergarten Placement in September of 2021.^[74] The Parent testified that she requested an evaluation for services in September of 2021 and met with the CPSE in December of 2021 for an IEP meeting.^[75] The Parent never received a copy of the Student’s December 2021 CPSE IEP.^[76] In January of 2022, the CPSE convened again and the Parent was informed by the District that the Student would be transferred to a special class. ^[77]

The United States Office of Special Education Programs (“OSEP”) issued informal guidance in August of 2018 regarding the “child find” provisions of the IDEA.^[78] Letter to Seigel states in sum and substance, that there is no specific provision in the IDEA that requires local education agencies to provide information about the IDEA to all parents, regardless of whether their child is suspected of having a disability.^[79] Letter to REDACTED goes on to state that states may independently have specific requirements in their own policies and procedures for public awareness requirements.^[80] In other words, the IDEA does not have a general notification requirement.

The hearing record does not contain any evidence or testimony regarding New York State’s (“NYS”) public awareness obligations. However, based on the above OSEP guidance, the District does not have a burden to go to every child’s home and find every child that may be suspected of having a disability. The Parent testified at the hearing that the Student was not in any type of placement for the 2020-21 school year. The Parent confirmed that the Student was located in Brooklyn, New York during the school year in question, but not in any type of day care or NPS setting. The Parent has failed to show how the District could have reason to suspect this Student had a disability when this Student was not in a day care or any other type of placement. It is also not clear from the record if the Student was at home during this time, other than just being geographically located in Brooklyn. Therefore, I find that for the 2020-21 school year, the District did not violate the “child find” provisions of the IDEA. As such, I do not find that the District denied the Student a FAPE for the 2020-21 school year.

The Parent testified that in September 2021, once the Student stated at the Prekindergarten Placement, they requested an evaluation and the District conducted one. The Parent testified that “[a]s soon as [the Student] started prekindergarten at [the Prekindergarten Placement], we asked for an evaluation for services through the [CPSE]...”^[81] The Parent went on to testify that the Student began conducting these evaluations in October of 2021, within the required 60 days.^[82] The District timely conducted assessments of the Student within the required timeframe of the NYS rules and regulations. Further, the District convened a CPSE in December of 2021 to create a prekindergarten special education program for the Student. I find that for the beginning of the 2021-22 school year, the District did not violate the “child find” provisions of the IDEA. However, as I stated above, the District did not meet its burden in proving that they provided the Student with a FAPE for the 2021-22 school year.

III. Compensatory Services The relief requested by the Parent is equitable in nature, as the Parent is asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide Student with a FAPE for the 2020-21, 2021-22, 2022-2023, and 2023-24 school years.

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.”^[83] As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.”^[84] 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.” ^[85]

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education.^[86] 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.”^[87] 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.”^[88] Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”^[89] 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.’”^[90] “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.”^[91] Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” ^[92]

There are generally two approaches to fashioning a compensatory education award: 1) the “quantitative” approach followed in the Third Circuit,^[93] and 2) the “qualitative” approach relied on by the 6th and D.C. Circuits. 94 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.” 95 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.” ^[96]

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.^[97] 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.^[98] 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 instructional and related service hours on a qualitative basis. The following Parent witnesses testified: ^[99] Parent The Parent testified that they are the mother of the Student, who is almost REDACTED old.^[100] The Student is currently in the first grade at the Public School, which is a District 75

94 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”). 95 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). school.^[101] The Parent was not aware the Student had autism until they attended preschool at the Preschool Placement in September of 2021.^[102] The Parent was concerned that the Student was not developing like their twin sister, did not have language to communicate, and did interact like their sister.^[103] When the Student began prekindergarten, the Parent requested an evaluation from the CPSE in September of 2021, which evaluations were conducted in October of 2021.^[104] In December of 2021, the Parent met with the CPSE to develop an IEP for the Student, who had just begun receiving Special Education Itinerant Teacher Services (SEIT) and a 1:1 crisis paraprofessional.^[105] The Parent testified at the DPH that they never received a copy of the December 2021 CPSE IEP.

In January of 2022, the CPSE had second IEP meeting to recommend services for the Summer of 2022.^[106] During which the Parent was informed that the Student would be transferred to a special class, from an ICT class,^[107] consisting of 8 students, 1 teacher, and 2 assistants.^[108] The CPSE recommended 1:1 SLT 3x30, 1:1 OT 2x30, 1:1 counseling 2x30, a 1:1 crisis paraprofessional, and a BIP.^[109] The Student’s IEP notes that they are classified in the “moderately impaired” range of intelligence, presents with speech, language, and auditory processing delays, and has significant delays in fine motor and visual motor skills.^[110] The Student’s socialization skills are noted to be in the “low” range, they could not recognize when someone is happy or sad, did not listen to a story read to them, did not look at a person when speaking to them, and had difficulty transitioning without guidance.^[111] The Student was also noted to have “significant sensory processing immaturity,” with significant delays in “cognitive, language, motor, adaptive living and social emotional skills,” all which impair their ability to interact with their environment, peers, adults, as well as their ability to engage and complete age-appropriate activities, like communicating wants and needs.^[112] The Student was not recommended for any AT or communication device.^[113] The Parent testified that the DOE could not locate a 8:1:2 class setting for the Student.^[114] Instead, the Student stayed in a general education integrated class with a paraprofessional.^[115] The Student remained in a large class, unable to complete anything asked of them, was not making progress, and their behavior became worse. ^[116]

In April of 2022, the Student transitioned to the CSE and the Parent met with them for the Student’s turning-5 IEP meeting for kindergarten.^[117] At this time, the Student remained in the inappropriate preschool ICT placement, despite being recommended for another setting, could not perform any of the classroom activities, was frustrated, threw tantrums, crying, and would wander around the room.^[118] The CSE recommended a 12-month special education program consisting of an 8:1:1 special education class for all academic subjects, a group behavior paraprofessional, and the following related services: 1:1 counseling 2x/week for 30 minutes; 1:1 OT 2x/week for 30 minutes; 1:1 SLT 1x/week for 30 minutes in the therapy room; and 1:1 SLT 2x/week for 30 minutes in the classroom.^[119] The Student was recommended a BIP, but was not recommended a communication device or an AT device.^[120] The Student’s IEP notes that they are non-verbal, cannot count by rote, makes inconsistent eye contact, is unable to fully participate in the classroom, gets frustrated and has frequent communication breakdowns.^[121] The IEP also notes that the Student has difficulty with ADL skills, is not toilet trained, finger feeds, tries to use a spoon, displays significant delays in multiple areas of development, displays delays in cognitive, speech and adaptive behavior.^[122] According the Parent, the Student’s teacher recommended a 6:1:1 class, but there was not a lot of discussion regarding what the Student actually needed or the appropriate program for them.^[123] Instead, the Student was recommended an 8:1:1 class.^[124] The Student attended the Public School for kindergarten, but did not make progress, struggled, continued to not speak, and remained upset. ^[125]

In January of 2023, the Parent brought the Student to a private doctor, who diagnosed the Student with autism, with an accompanying language disability and cognitive impairment, and recommended the Student undergo a neuropsychological evaluation.^[126] In February of 2023, the CSE convened for another IEP meeting, during which the CSE recommended a 12-month special education program consisting of an 8:1:1 special class for all academic subjects, a 1:1 behavior paraprofessional, a SGD, and the following related services: 1:1 counseling 2x30; 1:1 OT 2x30, group PCAT 1x/month for 30 minutes; and 1:1 SLT 3x30, as well as a BIP.^[127] The Parent informed the CSE that they were concerned about how the Student was not communicating well, was not making progress, and that they needed to be more independent.^[128] The Student continued to have behavioral issues and was not offered a program that was “right” for them.^[129] The Student continue to throw tantrums, not completing their assignments, not socializing with other students, not making progress, and was not potty trained.^[130] The Student finished kindergarten and “nothing changed.” ^[131]

The Parent then requested IEEs by filing the May 2023 DPC in this matter, such as a neuropsychological, autism skills assessment, OT, PT, sensory integration praxis test, and an AT evaluation.^[132] The DOE agreed to pay for a private neuropsychological and autism skills assessment, as well as conduct a SLT, OT, PT, and AT evaluations.^[133] The Parent is in agreement with the recommendations of the Psychologist and BCBA regarding a NYSED NPS placement with a wrap-around ABA program, ABA at school and at-home, as well as an AC device and related services supported by ABA.^[134] The Student requires more than a behavioral paraprofessional, who cannot get the Student to focus and does not even have a plan for the Student.^[135] The Parent additionally requests IEEs for SLT, OT, and AT, as the DOE evaluations are not comprehensive enough, and an FBA and BIP. ^[136]

The CSE reconvened in September of 2023, pursuant to an IHO Order, after the evaluations were completed and again recommended the same program.^[137] The CSE recommended a 12-month special education program consisting of an 8:1:1 special class for all academic subjects, a group behavior paraprofessional, a SGD, and the following related services: 1:1 counseling 2x30; 1:1 OT 2x30; group PCAT 1x/month for 30 minutes; and 1:1 SLT 3x30.^[138] It is not clear if the Student was recommended a BIP.^[139] The Student’s teacher stated at the meeting that the Student has made progress in the classroom, but that they struggle to remain seated if the 1:1 paraprofessional does not redirect them and did not complete all of their tasks.^[140] The IEP notes the Parent was in disagreement with the current school placement and program and requested a NPS with ABA. ^[141] Psychologist

The Psychologist testified that they are a NYS licensed clinical psychologist in private practice, with certifications in psychoanalysis, psychotherapy, and advanced training in psychotherapy.^[142] The Psychologist specializes in in child and adolescent development, diagnostic evaluations, and psychotherapy. ^[143]

The Psychologist is familiar with the Student, who was almost REDACTED old at the time of the neuropsychological evaluation that was conducted in July and August of 2023.^[144] The Psychologist reviewed numerous medical and educational records for the Student, including the autism skills assessment, as well as, other DOE evaluations, conducted observations of the Student, and ultimately diagnosed the Student with Autism Spectrum Disorder (“ASD”) Level 3, with intellectual impairment requiring very substantial support for deficits in social communication and restricted behaviors.^[145] After reviewing the records, the Psychologist concluded that the Student’s “self-direction, maladaptive autistic behaviors (including self-stimulatory physical and vocal behaviors), lack of response to direction, limited attention, and easy dysregulation interfere with [their] ability to learn, participate in the class and one-to-one instruction/therapies, learn engage with others and the world around [them], [and] interfere with [their] development.”^[146] The Student has limited communication and requires active repetitive attempts to gain their attention, tantrums when upset, and puts up a “stimulus barrier” to control environmental stimulation.^[147] The Student’s “deficits and interfering behaviors are pervasive and involve delays in the behavioral, communication, and social domains.”^[148] The Student “displays weaknesses in expressive and receptive language, focus, cognition, attention behavior, eye contact, and socialization.”^[149] The Student’s learning is impacted by autism, as it is their biggest barrier to learning, and it is the Psychologist’s opinion that unless the Student receives an appropriate educational program for students with autism during the school day and a home-based program to address their skill using ABA, they will not be able to access any instruction provided to them.^[150] The Student’s maladaptive behaviors, which are a symptom of their autism, and need for a stimulus barrier, prevent them from being able to “take in” their academic lessons, play, and communicate with an individual.^[151] The Psychologist agreed with the recommendations in the Student’s autism skills assessment. ^[152]

The Student’s DOE psychoeducational report demonstrates that the Student cannot simply be in a 1:1 situation in order to get a response from them, as the evaluator could not even conduct the testing.^[153] The Student requires more than the recommended 1:1 paraprofessional, like a “very specialized, intensive wrap-around educational program that occurs at school and home and is inclusive of a researched-based behavioral program such as ABA…”^[154] The Student also requires a small class with a low student to teacher ration in a specialized NYSED NPS designed for children with ASD, who have intellectual and significant language impairment, that will provide them with 1:1 intensive instruction that utilizes ABA throughout the day and at-home ABA. ^[155] The Psychologist agrees with the BCBA’s recommendations of 10 hours per week of home-based ABA, with eight hours per month of BCBA.^[156] The Student requires an augmentative communication device (“AAC”) with ABA instruction to communicate and the Parent requires training to support the Student’s use of the AAC device.^[157] Along with an AAC device, the Student requires SLT multiple times per week, OT multiple times per week, with a sensory diet and specialized sensory-based occupational therapy, and a specialized counseling program for students with ASD, which all services are to be provided in a co-treat model with ABA.^[158] Additionally, the Psychologist recommends that pending the NYSED NPS placement, the Student should receive ABA therapy immediately, specifically 30 hours per week, with 3 hours of BCBA supervision per week, along with their home-based ABA program. ^[159]

The Psychologist’s opinion is that the Student’s DOE programs have failed to provide them with the support they require, has left them isolated, unable to communicate, and unable to learn. ^[160] The Student failed to make meaningful progress in their program because they were not provided the correct supports, particularly instructional ABA.^[161] The Student’s recommended ICT and 8:1:1 classroom, even with a paraprofessional, is too large with too little support.^[162] A wraparound program with ABA would allow the Student increase their academics, behavior, language, activities of daily living (“ADL”) and social skills, while decreasing problematic behaviors. ^[163] The Student requires a full-time ABA program and at-home program will decrease intermittent and inappropriate behaviors, while increasing appropriate replacement behaviors, increase ADL skills, and increase receptive and expressive language skills, while decreasing aggressive behavior and avoidant behaviors that interfere with learning.^[164] The at-home ABA will ensure that the Student is not regressing in their educational setting. ^[165]

The Psychologist also agrees with the BCBA’s recommended number of compensatory 1:1 ABA hours for the Student, with BCBA supervision, and PCAT.^[166] The Student will require a compensatory related services program that must include a significant amount of SLT, OT, and AT training for the Student and the Parent, all to be provided in a co-treat model with ABA.^[167] The SLT will address the Student’s language, communication, learning and social skill delays. ^[168] The OT will address the Student’s sensory, motor, and attentional needs.^[169] The AT will ensure the Student can use their AAC device to increase their communication and access educational and compensatory services.^[170] A “total communication approach” with collaboration between the ABA provider, AT instructor, SLT therapist, and OT therapist, will all address the Student’s motor output, motor control with syntax and the rules of grammar, both at-home and in school. ^[171]

The Student also requires an FBA and if recommended, a BIP, to ensure that the function of the Student’s behaviors are understood and appropriate.^[172] After reviewing the DOE’s SLT, OT, and AT evaluations, the Psychologist believes that more comprehensive evaluations are required.^[173] It is crucial to understand the Student’s language and communication, receptive, expressive, pragmatic, and motor skills, in order to create an appropriate program for them. ^[174] ELS Director

The ELS Director testified that they are the Executive Director of ELS, a private provider agency.^[175] The ELS Director is a NYS certified teacher, with professional teaching certificates in general education and special education.^[176] The ELS Director conducts academic assessments, develops comprehensive remediation pans, and provides individualized intensive academic remediation to students.^[177] ELS has NYS certified educators who provide SLT, OT, PT, AT instruction, AT parent instruction, counseling, PCAT, and transitional/vocational instruction to students, in addition to various evaluations.^[178] The ELS Director is familiar with the Student, as they were contacted by Parent’s Counsel to create a remediation program for deficits, if any, in PT, OT, AT, and SLT. The ELS Director, along with the OT/AT Provider, reviewed the Student’s educational records to create a compensatory services plan.^[179] The ELS Director agrees with the OT/AT Provider’s recommendation of compensatory hours as follows: 138 hours OT (1.5 hours/week x 46 week x 2 years) at a rate of $185/hour; 92 hours AT Instruction (2 hours/week x 46 weeks x 2 years) at a rate of $185/hour; 46 hours AT Parent Instruction (1 hour/week x 46 weeks x 2 years) at a rate of $185/hour; and 48 hours of indirect AT collaborative hours with an SLT provider (1 hour/bimonthly x 2 years) at a rate of $185.^[180] The ELS Director is also in agreement with the Student’s SLT provider’s compensatory service recommendations, which are 184 hours of SLT (2 hours/week x 46 weeks x 2 years), and 48 hours of indirect AT and SLT (1 hour/bimonthly x 2 years) with an AT professional specific to SLT, with both recommended compensatory services (SLT and indirect AT/SLT) to be provided at a rate each of $185.^[181] The ELS Director testified that ELS can provide OT, AT, AT Parent Instruction, SLT, and indirect AT/SLT.^[182] The services should be provided in a co-treatment model with ABA providers, who are from a different agency), as each provider can work on their goals with the Student, while the ABA provider works on ABA goals and a BIP.^[183] The Student also requires an AT device as recommended in the future comprehensive AT evaluation should that be ordered. ^[184]

ELS can also conduct evaluations and recommends the Student receive a comprehensive OT evaluation, at a rate of $1,500; an AT evaluation, at a rate of $2,200; and a comprehensive SLT evaluation, at a rate of $1,650. ^[185] OT/AT Provider The OT/AT Provider testified that they are an independent contract at ELS and hold a NYS OT license, National Board of OT certification, and active certification from the Rehabilitation and Engineering and AT Society of North America.^[186] The OT/AT Provider has previously conducted numerous OT and AT evaluations.^[187] The is familiar with the Student and was contacted by ELS to review the Student’s educational records, observe them, and create a compensatory plan.^[188] The OT/AT Provider recommended AT intervention and OT intervention.^[189] The OT/AT Provider noted that the Student’s IEPs reported minimal progress in the area of AT-related academics, communication, and OT, and additionally lacked appropriate OT and AT goals.^[190] The Student also has deficiencies in the area of OT, which were never addressed in an OT evaluation.^[191] The Student currently demonstrates deficits in “fine motor skills, visual motor skills, handwriting skills, written expression and output, executive function, time management and organizational skill, task initiation and completion,…ADL skills,…sensory process and self-regulation,…handwriting grasp, motor skills, and emotional and behavioral modulation and regulation,” all which affect their ability to access their educational curriculum.^[192] The Student requires OT at a rate of 1:1 2x/week for 30 minutes and a group of 2 1x/week for 30 minutes.^[193] The OT/AT Provider also recommends a comprehensive OT evaluation for the Student.^[194] The OT/AT Provider recommends a compensatory bank of 138 hours of OT (1.5/week x 46 weeks x 2 years). ^[195]

The OT/AT Provider did not find the DOE AT evaluation to be comprehensive, as no standardized tests were performed and the evaluation was missing baseline levels/the Student was not assessed for them.^[196] Although the Student was recommended for numerous applications on a communication device, the Student was only recommended a speech-generating device (“SGD”).^[197] The Student requires an AT evaluation.^[198] The Student requires 92 hours of compensatory AT training (2 hours/week x 46 weeks x 2 years).^[199] The OT/AT Provider recommends the assignment of an NYC DOE contact person to assist the Student with an AT device.^[200] The Student’s Parent also recommends the Parent receive 46 hours of compensatory AT Parental training (1 hour/week x 46 weeks x 1 year).^[201] The OT/AT Provider also recommends 48 hours of indirect AT and SLT (1 hour/bimonthly for 2 years).^[202] All of the recommended services should be administered in a co-treatment model with the Student’s ABA provider present to allow the Student to learn and make progress. ^[203]

BCBA

The BCBA testified that they are a licensed BCBA/LBA and own an agency named SBS.^[204] The BCBA trains and oversees individuals who require fieldwork to become a BCBA, as well as BCBAs who are undergoing certification requirements to become a licensed LBA.^[205] The BCBA additionally conducts autism skills assessments, FBAs, classroom observations, creates BIPs and has additionally attended IEP meetings.^[206] SBS employs special education certified teachers, who specialize in ABA behavior modification, etc., as well as BCBAs, and Board Analyst Certification Board Registered Technicians.^[207] SBS provides push-in services in school and at-home and uses “ABA based interventions to decrease interfering behaviors and increase language and communication skills, social skills, appropriate play skills, cooperation skills, and ADL skills, as well as academic remediation while allowing the student to be able to learn and make progress.”^[208]

The BCBA is familiar with the Student and observed them in their school in July of 2023.^[209] The BCBA conducted an ABA skills assessment^[210] of the Student, “levels of instruction, language skills, and critical domains that serve as prerequisites for further skill sets.”^[211] The BCBA learned that the Student has severe deficits in requesting, labeling, interverbal skills, such as reciprocal conversation, ability to answer questions, and providing details when items are not present, social skills, motor imitation, selfcare skills, and appropriate functional behaviors.^[212] The Student was observed in school in July of 2018 and the BCBA observed that the Student engaged in distractible behaviors that disrupted their ability to learn and engaged in frequency physical stereotypy, like repetitive physical movements, such as hand-flapping, jumping, and body rocking.^[213] The Student engaged in tantrum behaviors like screaming, crying loudly, and throwing themselves to the ground while flailing their legs.^[214] While the Student’s teachers tried to redirect them with verbal prompts, it was not effective.^[215] These behaviors were reported by the teacher to occur throughout the day and the Student was noted to not have a BIP, as an FBA was not conducted.^[216] The Student’s teacher was observed asking the Student, “what’s wrong?”, even though the Student is nonverbal.^[217] The Student is prompt dependent, had to be transitioned from class to class, and required hand-over-hand prompting to complete a worksheet.^[218] The Student was also observed to not be toilet trained, wearing a diaper, and threw a tantrum when standing in a line to go to the bathroom.^[219] The BCBA observed that the Student’s behaviors were inadvertently being reinforced in that when they tantrum, they did not have to engage in non-preferred tasks.^[220] The BCBA additionally reviewed the Student’s educational records, neuropsychological evaluation, and IEPs. ^[221]

The BCBA’s opinion is that the Student “can learn but requires immediate reinforcement,” “should be in an ABA setting” that can teach them according to their specific learning needs,” and “is prompt dependent” and “needs to learn independent skills that will teach [them] to replace inappropriate behaviors with functional skills that will allow [them] to access [their] education.”^[222] The BCBA believes that the Student has been in a “highly inappropriate setting for years” and that their “past and current educational settings do not meet [their] academic, social, behavioral, or emotional needs.”^[223] Given the Student’s frequent interfering behaviors, which prevent them from accessing their education, engaging with peers, and acquiring functional skills, as well as severe skill deficits, it is highly recommended that the Student attend a NYSED NPS with a small studentto-teacher ratio with ABA throughout the day.^[224] Pending a NYSED NPS placement, the Student requires a full-time ABA program consisting of 30 hours/week pushed-in to their current public school placement, with 3 hours/week of BCBA supervision.^[225] The BCBA also recommends a 12-month special education program for the Student, as well as full-day wrap-around ABA services in school and at-home.^[226] The Student should be recommended for 1:1 ABA for at least 10 hours per week at home, by a provider who is trained in ABA and has experience implementing a BIP, as at-home ABA will remediate behaviors in all environments and will prevent the Student from regressing at school.^[227] The at-home ABA and PCAT should be provided together.^[228] The Student’s program should also include BCBA supervision for 8 hours/month and PCAT for 4 hours/month. ^[229]

The Student requires a makeup program consisting of 920 hours of home-based ABA services (based on a formula specific to the Student of 10 hours/week ABA x 46 weeks extended school year (“ESY”) x 2 years = 920 hours).^[230] The Student also requires 184 hours of BCBA supervision (2 hours/week BCBA x 46 weeks x 2 years = 184 hours).^[231] The Parent requires 92 PCAT makeup hours to train the Parent to increase functional skills and decrease behaviors to make the Student whole again (1 hour/week x 46 weeks x 2 years = 92 hours).^[232] The BCBA recommends the compensatory makeup services take place in a full-day wraparound ABA program.^[233] The BCBA is able to provide the recommended program either by push-in to the school or at home.^[234] The hourly rate for ABA is $150/hour, and BCBA and PCAT at $200/hour.^[235] The BCBA also recommends the Student have a FBA conducted by a BCBA, and a BIP developed.^[236] The BCBA can conduct a FBA at a rate of $2,500 and develop a BIP for $1,000. ^[237]

The Parent argued in their closing statement that they were not asking for compensatory hours on a quantitative basis, but rather on a qualitative basis, as this was a case of multiple years of gross violation. The providers in this matter focused on the Student’s needs and specifically tailored recommendations as to those needs to determine what the Student requires to benefit from special education in light of their disability. Although this is a case where four years of FAPE violations are alleged, the related service providers who evaluated the Student do not recommend compensatory services for the Student at a rate of four years. Instead, the recommendations were made on a qualitative basis. Additionally, the Student remained in an inappropriate setting for the 2021-22 school year in preschool. The CPSE convened twice and recommended specialized instruction in an 8:1:2 class setting, yet the Student remained in a large ICT setting as the DOE could not locate a placement for them. The CSE convened in April of 2022 and acknowledged the Student had severe delays across the board cognitively, with speech, fine and gross motor skills, and with ADL skills, which deficits preclude their participation in a general education setting. ^[238] However, rather than placing the Student in a smaller class setting, they recommended the Student be placed in an 8:1:1 setting with a group behavior paraprofessional despite their known behavior issues that stem from autism. The DOE also never provided this student with any communication device until the end of their kindergarten year. Finally, even when the DOE agreed to evaluate this child again, the CSE made no changes to the Student’s special education program, except to reduce services from a 1:1 paraprofessional to a group paraprofessional. The Student has continued to remain nonverbal, not toilet trained, continues to tantrum in their classes, is unable to sit still, struggles with communication, and has delays with fine and gross motor skills, as well as their ADL skills. I find that all the Parent witnesses, including the Parent, are credible and that their testimony is supported by the evidence in the record.

As stated above, the DOE only submitted documentary evidence, presented no witness testimony at the DPH, failed to explain how the DOE provided the Student with a FAPE for the school years in question, and conducted an unremarkable cross-examination of all witnesses. The DOE failed to sustain its burden of proof at the DPH. The hearing record establishes that Student was not provided a FAPE for the 2021-22, 2022-23, and 2023-2024 school years. Furthermore, the uncontroverted testimony of the Parent, Psychologist, BCBA, and OT/AT Provider, and ELS Director, as well as the uncontested documentary evidence, support a finding that the Student is entitled to compensatory related services to compensate for what Student was deprived of for the school years in question.

IV. CSE/CBST

Generally, an award of prospective relief in the form of IEP amendments and the prospective placement of a student in a particular type of program and placement, under certain circumstances, has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs.^[239] However, concerns about circumventing the CSE process arise most prominently in matters where the school year challenged has ended and, in accordance with its obligation to review a student's IEP at least annually, the CSE would have already convened to produce an IEP for the following school year. ^[240]

Additionally, while prospective placement might be appropriate in rare cases^[241] the pitfalls of awarding a prospective placement have been noted in multiple State-level administrative review decisions, including that where a prospective placement is obtained by the parents through the impartial hearing, such relief could be treated as an election of remedies, where the parents assume the risk that future unforeseen events could cause the relief to be undesirable. ^[242]

The Parent requested as relief that the CSE reconvene and for the CBST to recommend a NYSED-approved NPS for the Student that utilizes ABA methodology, with a full-time 1:1 ABA therapist. As described above, the Student is recommended in a neuropsychological evaluation and ABA assessment for a NYSED NPS placement with a wrap-around ABA program, consisting of 1:1 ABA therapy, with BCBA supervision, and a special education program consisting of a small class size, related services, and compensatory related services, as well as a FBA and BIP.^[243] The District did not present any witnesses from the Public School to discuss the methodology or special education program currently used at the Public School for the Student. The Student does not currently receive any ABA therapy. No members of the CSE from any of the school years testified at the DPH. The District also presented no evidence as to whether the CSE considered a placement for the Student that implements ABA methodology. The District failed to present any evidence testimony to support their position as to the Student’s needs or defend its recommendations. They also did not rebut or contest the evidence that the Parent submitted regarding the Student’s need for a NYSED NPS that utilizes ABA methodology, recommended special education program, related services, and make-up related services.

The District’s most recent IEP notes that the Student “has a severe cognitive disability, significant deficits in communication/language, and significant deficits in adaptive behavior.”^[244] The Student “requires a highly specialized educational program provided by a District 75 school/program that facilitates the acquisition, application, and transfer of skills across natural environments” and “requires a special class to address academic needs.”^[245] The Student’s most recent private neuropsychological evaluation is summarized, but does not include the Psychologist’s recommendations for a wrap-around ABA program. Despite agreeing with the evaluators that the Student continued to have delays cognitively, with communication, fine and gross motor skills, and issues with their behavior, the District recommended the same program as the prior IEP, without a 1:1 behavior paraprofessional. Despite the Parent requesting a smaller class placement and ABA therapy based on the evaluations conducted, the District did not recommend a smaller class setting, increase related services, or provide ABA therapy. The only explanation that the District provided for rejecting a smaller class setting was that it would be “too restrictive.”^[246] In fact, the District did not even consider a NPS placement or a special class setting in a District 75 school with push-in ABA therapy.^[247] Based on the District’s inability to meet their burden at the DPH and prove by preponderance of the evidence that they provided the Student with a FAPE for the school years at issue, as well as the robust evidence in the hearing record, there is a clear “consensus” among those who most recently evaluated the Student regarding their needs that should be followed by the CSE. ^[248]

I find that this Student’s deprivation of a FAPE for the 2021-22, 2022-23, and 2023-24 school years is one of the rare instances where prospective placement is warranted at a NYSED-approved NPS that implements ABA methodology in the manner described in the Student’s evaluations, as well as the recommended frequency of related services.

V. IEEs

General Process

An IEE is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” ^[249]

The IDEA, State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation.^[250] In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. “They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” ^[251]

If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE.^[252] A school district can set criteria regarding the IEE, including the qualifications of the examiner, but the district’s criteria must be the same as the criteria it uses for its own evaluations, and the district cannot impose additional conditions or timelines related to the IEE.^[253] For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE ^[254], nor can it deny an IEE at public expense based solely on financial cost ^[255]. A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE.^[256] Finally, while the school district may “ask for the parent’s reason why he or she objects to the public evaluation,” the district cannot require an explanation or delay providing the IEE until the parent provides an explanation. ^[257]

When a parent disagrees with a school district’s evaluation and requests an IEE at public expense, the school district “must, without unnecessary delay,” either (1) ensure that an IEE is provided at public expense; or (2) initiate an DPH to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. ^[258]

A parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need.^[259] The court in D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020) stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.”^[260] The U.S. Department of Education's Office of Special Education Programs (“OSEP”), has similarly stated that when a parent disagrees with an evaluation because a child was not assessed in a particular area, “the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs.” ^[261]

The school district bears 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.^[262] Accordingly, the school district bears the burden of showing that its evaluation of student was appropriate in order to prevail in its challenge to Parent's request for IEEs at public expense. ^[263]

An IEE may also be requested by an impartial hearing officer “as part of a hearing on a due process complaint.”^[264] The N.Y.C.R.R. does not provide limitations or guidance about hearing officer requests or directives for IEEs. There are however limitations to an IHO’s authority to order IEEs “‘as part of’ the larger process.” ^[265] Timeliness

Pursuant to Federal and State regulations, the school district must conduct triennial reevaluations for a student at least once every three years.^[266] There is no statute of limitations specified in the IDEA “for a parent’s right to disagree with an evaluation for the purpose of obtaining an IEE at public expense.”^[267] However, the Second Circuit in D.S. v. Trumbull Bd. of Educ. held that “[b]ecause the only evaluations that trigger a parent's right to an IEE at public expense are the initial evaluation and triennial reevaluations discussed in Section 1414 of the Act, a parent's right to an IEE at public expense ripens each time a new evaluation is conducted.”^[268] The Court went on to explain that “[t]he time within which a parent must express their disagreement with an evaluation and request an IEE depends on how frequently the child is evaluated.”^[269] Unlike initial evaluations, the regulations do not speak to when a triennial evaluation must be completed by.^[270] However, “[w]here, as here, a child is evaluated according to the default evaluation timeline, the parent must disagree with an evaluation within that three-year timeframe.” ^[271]

As described above, the District and the Parent reached a partial resolution agreement regarding the initial IEEs that the Parent requested in the May 2023 DPC.^[272] The District agreed to fund a private neuropsychological evaluation and ABA skills assessment, as well as conduct a SLT, OT, PT, and AT evaluation.^[273] After the evaluations were conducted and the CSE convened in September of 2023, pursuant to an IHO order, the Parent amended their DPC to request IEEs for SLT, OT, PT,^[274] and AT.^[275] After the District consented to the Parent filing an amended DPC, the District failed to file a DPC defending their evaluations conducted, nor did they agree to fund the requested SLT, OT, and AT evaluations. The amended DPC was the first time the Parent put the District on notice regarding their new request for IEEs. However, at the DPH, the District failed to defend their evaluations. The Parent provided evidence and testimony in support of their request for more comprehensive IEEs for the Student, as the District’s evaluations are not sufficient or comprehensive. For example, the District’s SLT evaluation did not include standardized testing and notes the Student’s severe delays affect their academic performance and daily life, but continued to recommend the same frequency and duration of SLT services. The District psychoeducational evaluation had no recommendations, as the Student would not even sit for the evaluation. The District’s OT evaluation was not sufficient in that it had no comprehensive testing, consisted of a phone interview with the parent and classroom observation, during which the Student was constantly getting up and walking around the room, and continued to recommend the same frequency and duration of OT services. The Student’s AT evaluation continued to recommend the same SGD device that they already were recommended by the CSE. The Parent additionally argued that more comprehensive evaluations are needed to understand the Student’s needs and how their disability affects their ability to learn.

As the most recent evaluations were conducted in 2023, I find that the Parent has timely made a request for a SLT, OT, and AT IEEs. The District did not defend the evaluations conducted by means of a DPC or at the hearing, nor did they contest the reasonableness of the rates at the DPH. As such, I find that the Parent is entitled to IEEs for SLT, OT, and AT, which are to be publicly funded.

VI. DOE Implementation Unit Parent’s request for an IHO to order the DOE’s Implementation Unit to assign an individual to serve as a contact person is DENIED. The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.^[276] The Parent failed to raise in their DPC circumstances or facts relating to the District’s Implementation Unit, and the DPH record does not include any facts or circumstances that indicate issues related to said unit. To the extent the requested relief was to address a perceived systemic problem with training of staff or implementation of IHO orders in the district, generally, “systemic violations [are] to be addressed by the federal courts,” as opposed to “technical questions of how to define and treat individual students' learning disabilities, which are best addressed by administrators.”^[277] Thus, I have no plenary authority to render a decision on systemic issues related to the district's implementation policies and processes that affect all students. ^[278]

ORDER

Based upon the above Findings of Fact and Decision, it is hereby:

1. ORDERED that, the DOE failed to provide the Student with a FAPE for the 2021-22, 2022-23, and 2023-24 school years; and

2. FURTHER ORDERED that, the District shall convene the CSE to hold a meeting within 20 days of this Order to prepare an IEP that:

a. Provides that the Student attend a NYSED-approved NPS, in a 12-month special education program, in a class with a small student-to-teacher ratio, that utilizes ABA methodology throughout the day, where the Student receives full-time 1:1 ABA support by a qualified provider, with push-in BCBA supervision; and

b. Recommends the following appropriate related services, as recommended by the independent evaluations and providers, and at the recommended frequency and service delivery:

i. Speech-Language Therapy on an individual basis, 4 times per week for 30 minutes; and ii. Speech-Language Therapy, in a group setting, 1 time per week for 30 minutes; and iii. Occupational Therapy on an individual basis, 2 times per week for 30 minutes; and iv. Occupational Therapy in a group setting, 1 time per week for 30 minutes; and

v. Parent Counseling and Training on an individual basis, 4 hours per month; and vi. 10 hours per week of ABA therapy at-home, with 8 hours of BCBA supervision per month, and vii. A behavioral intervention plan, if recommended in the Student’s functional behavioral assessment, as Ordered below; and

3. FURTHER ORDERED that, pending an appropriate NYSED NPS recommendation and placement as described above, the DOE in the interim shall fund 40 hours per week of ABA services, specifically 30 hours/week of push-in ABA services in-school, with 3 hours/week of push-in BCBA supervision, and 10 hours/week of at-home ABA services, as well as 4 hours/month of BCBA supervision at-home, by an independent provider of Parent’s choosing at the providers’ customary and regular rate of $150/hour for ABA therapy and $200/hour for BCBA supervision; and

4. FURTHER ORDERED that, the DOE is directed to fund the following evaluations, by issuing payment directly to the providers of the Parent’s own choosing within 35 days of the submission of copies of the evaluations and invoices:

a. A functional behavioral assessment, and if recommended, a behavioral intervention plan, both to be conducted and created by a New York State licensed BCBA, at the provider’s customary and regular rate of $2,500 for a FBA, and $1,000 for a BIP; and

b. An occupational therapy evaluation, to be conducted by a New York State licensed provider, at the provider’s customary and regular rate of $1,500; and

c. An assistive technology evaluation, to be conducted a New York State licensed provider, at the provider’s customary and regular rate of $2,200; and

d. A speech-language evaluation, to be conducted by a New York State licensed provider, at the provider’s customary and regular rate of $1,650; and

5. FURTHER ORDERED that, the DOE shall fund the following compensatory services for the Student, which may be provided during the school year, summer, weekdays, weekends, holidays or during school vacations, by New York State licensed providers of the Parent’s own choosing at the providers’ customary and regular rate as specified below:

a. 920 hours of ABA therapy, to be used either in-school or at-home for $150/hour;

b. 184 hours of BCBA supervision, to be used either in-school or at-home for $200/hour;

c. 184 hours of speech-language therapy for $185/hour;

d. 138 hours of occupational therapy for $185/hour;

e. 92 hours of parent counseling and training for $200/hour;

f. 92 hours of assistive technology training for $185/hour;

g. 48 hours of assistive technology professional training and speech-language therapy for $185/hour each; and

h. 46 hours of parent assistive technology instruction and training for $185/hour; by issuing payment directly to the provider(s) within 35 days upon the submission of invoices for services rendered.

6. FURTHER ORDERED that, the bank of compensatory services set out in #5 of this Order shall not expire until the expiration of three (3) years from the date of this Order; and

7. FURTHER ORDERED that, that the DOE shall provide or fund an assistive technology device, software, and accessories, as specified in Parent Exhibit Q, to be used by the Student both in-school and at-home, and that upon completion of the assistive technology evaluation ordered in #4 of this Order, that the CSE shall review the AT report and consider reconvening or modifying the Student’s IEP to update its recommendations for assistive technology and software; and

8. FURTHER ORDERED that, the DOE shall fund the compensatory services, as specified in #5 of this Order, when administered in a co-treatment model and shall fund each related service provider, including the ABA therapist, when multiple providers treat the Student simultaneously and provide services at the same time; and

9. FURTHER ORDERED that, the DOE shall provide or fund door-to-door special transportation for the Student to get to and from school, and transportation from the closest safe curb location to school; and

10. FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby ordered within 15 days.

SO ORDERED.

DATED: December 20, 2023

Melanie L. Bota Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

DISTRICT EVIDENCE

1. CPSE IEP 12/01/2021 24 pages DOE

2. Preschool Evaluations (DOE withdrew pages 4, 5, 56-80) dates Multiple 84 pages DOE

3. T5 IEP 04/06/2022 25 pages DOE

4. Prior Notice Package for Placement 04/28/2022 2022 14 pages DOE

5. N/A DOE

6. T5 Social History Update 03/01/2022 3 pages DOE

7. IEP 02/28/2023 February 2023 24 pages DOE

8. IEP 06/29/2023 June 2023 26 pages DOE

9. Prior Notice Package for Placement 04/05/2023 April 2023 13 pages DOE

10. N/A DOE

11. Behavior Intervention Plan 11/16/2021 6 pages DOE

12. N/A DOE

13. N/A DOE

14. Speech Language Therapy Evaluation dates Multiple 8 pages DOE

15. IEP 09/22/2023 September 2023 29 pages DOE

16. Prior Notice Package for Placement 10/06/2023 September 2023 15 pages DOE

17. N/A DOE

PARENT EVIDENCE

A. Demand for Due Process Hearing 05/05/2023 13 pages

B. IEE Request Letter 05/03/2023 3 pages

C. Affidavit of Director of Stride Behavior Services 05/08/2023 2 pages

D. Affidavit of Psychologist 05/11/2023 2 pages

E. Affidavit of Executive Director of ELS 05/11/2023 7 pages

F. Demand for Due Process and Motion to Consolidate 10/17/2023 17 pages

G. IEP 09/22/2023 36 pages

H. IEP 02/28/2023 29 pages

I. IEP 04/06/2022 28 pages

J. IEP 01/14/2022 24 pages

K. NYC DOE Psycho-Educational Report 09/20/2023 3 pages

L. Autism Skills Assessment 08/16/2023 9 pages

M. Neuropsychological Evaluation 08/11/2023 27 pages

N. NYC DOE Occupational Therapy Evaluation of Performance and Function 06/27/2023 11 pages

O. NYC DOE Speech/Language Evaluation 06/23/2023 7 pages

P. NYC DOE Physical Therapy School Function Evaluation 06/21/2023 8 pages

Q. NYC DOE Assistive Technology Evaluation for D75 06/20/2023 11 pages

R. Children’s Mental Health Center Report 01/19/2023 3 pages

S. Teacher Report/Assessment for Turning 5 03/15/2022 3 pages

T. NYC DOE Speech-Language Evaluation 10/31/2021 4 pages

U. NYC DOE Physical Therapy Evaluation 10/31/2021 4 pages

V. NYC DOE Occupational Therapy Evaluation 10/31/2021 7 pages

W. NYC DOE Psychological Evaluation 10/19/2021 6 pages

X. NYC DOE Classroom Observation 10/19/2021 1 page

Y. NYC DOE Social History 10/17/2021 3 pages

Z. NYC DOE Educational Evaluation 10/17/2021 8 pages

AA. NYC DOE Prior Written Notice 10/12/2023 12 pages

BB. NYC DOE Prior Written Notice 06/10/2022 4 pages

CC. NYC DOE Prior Written Notice 04/28/2022 5 pages

DD. NYC DOE Notice of Eligibility for Partial Services 01/14/2022 3 pages

EE. Affidavit of Parent 11/24/2023 8 pages

FF. Compensatory Service Plan 11/28/2023 25 pages

GG. Affidavit of REDACTED 11/29/2023 10 pages

HH. Affidavit of REDACTED 11/20/2023 13 pages

II. Resume of REDACTED undated 2 pages

JJ. Resume of REDACTED undated 4 pages

KK. Resume of REDACTED undated 1 page

LL. Affidavit of REDACTED 11/29/2023 15 pages

MM. Resume of REDACTED Undated 3 pages

NN. Affidavit of REDACTED 11/29/2023 13 pages

OO. Curriculum Vitae of REDACTED Undated 2 pages

PP. Email 06/29/2023 June 29, 2023 4 pages

QQ. Meeting Notice 06/29/2023 June 29, 2023 4 pages

IHO EXHIBITS

I. DPC APPENDIX 10/17/2023 18 pages IHO

Redacted Information Term Used In FOFD

REDACTED Student

REDACTED Parent

REDACTED Parent Attorney/Counsel

REDACTED District Attorney/Representative

REDACTED Prekindergarten Placement

REDACTED Public School

REDACTED District, DOE

REDACTED, Stride BCBA

Behavior Services (“SBS”)

REDACTED Psychologist

REDACTED, Director ELS Director

Exceptional Learning

Services (“ELS”)

REDACTED, OT/AT Related OT/AT Provider

Services Provider at ELS

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] See Parent Exhibit F, at 2.

[3] See id. at 4.

[4] See id.

[5] It should be noted that the Parent only requested 30 hours of push-in ABA/week pending a NPS placement in their DPC, but requested the additional in-school BCBA supervision and at-home ABA and BCBA supervision at the DPH.

[6] See id. at 14 – 16.

[7] See Parent Exhibit A, at 1 – 13.

[8] See Interim Order, June 29, 2023.

[9] See Consolidation Order, October 20, 2023.

[10] At the time this decision was written, a transcript of the DPH was not available.

[11] At the DPH, the Parent objected to District Exhibits 2, pp 4, 5, 56-80; 8; and 10. The District withdrew District Exhibit 2, but only pages 4, 5, 56 – 80 and Exhibit 10. I overruled Parent’s objection to District Exhibit 8, as it is a

[12] See 20 U.S.C. § 1400 et seq.

[13] See 34 C.F.R. § 300 et seq.

[14] See Educ. Law Art. 89 § 4404 et seq.

[15] See 8 NYCRR § Part 200.

[16] 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).

[17] 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).

[18] See 20 U.S.C. § 1415(f)(3)(E)(i).

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

[20] 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).

[21] 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).

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

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

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

[26] NYS Educ. Law § 4404(1)(c).

[27] 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).

[28] See 20 U.S.C. § 1431(b)(1).

[29] See 34 C.F.R. § 300.124(b).

[30] NYS Educ. Law § 4410(1)(i); see 8 N.Y.C.R.R 200.1(mm)

[31] See 8 N.Y.C.R.R 200.16.

[32] See 8 N.Y.C.R.R 200.1(mm)(2).

[33] Id. at (j); see also 8 N.Y.C.R.R 200.3.

[34] See 8 N.Y.C.R.R 200.16.

[35] Id. at (e)(3).

[36] Id. at (e)(3)(i).

[37] NYS Educ. Law § 4401(2)(a).

[38] 20 U.S.C. § 1401(1)(A).

[39] 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).

[40] 34 C.F.R. § 300.105(b).

[41] 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).

[42] Id.

[43] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted).

[44] NYS Educ. Law §§ 4401(1); 4402(4)(a); see also NYS Educ. Law § 4401(2); 8 NYCRR § 200.1(ww).

[45] Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 (5th Cir. 1986).

[46] “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf).

[47] See Donald B., 117 F.3d at 1375.

[48] M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017).

[49] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

[50] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

[53] 20 U.S.C. § 1412(a)(3); 34 CFR 300.111(a)(1)(i); Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 (S.D.N.Y. Oct. 28, 2019), aff'd, 2021 WL 745890 (2d Cir. Feb. 26, 2021); E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412(a)(10)(A)(ii); see also 8 NYCRR 200.2(a)(1), (7); New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 (N.D.N.Y. 2004).

[54] 34 CFR 300.111(c)(1); see 8 NYCRR 200.2(a)(1), (7); D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012); J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 (S.D.N.Y. Nov. 18, 2011).

[55] 34 CFR 300.111(a)(1); 8 NYCRR 200.2(a)(1), (7).

[56] See Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"); see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094.

[57] J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 (D. Haw. 2001).

[58] Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 (2d Cir. 2018), quoting Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 313 (6th Cir. 2007); see A.P., 572 F. Supp. 2d at 225.

[59] Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 (C.D. Cal. 2008), citing 20 U.S.C. § 1400(c)(5).

[60] 8 NYCRR 200.4(a); see also 8 NYCRR 100.2(ii).

[61] 8 NYCRR 200.4(a).

[62] 8 NYCRR 200.4(a)(1)(i).

[63] 8 NYCRR 200.4(a)(2)(i)(a).

[64] See 8 NYCRR 200.4(a)(2][ii], [a][2][iv][a], [a][3]-[a][5]; see also 34 CFR 300.300[a])

[65] See 8 NYCRR 200.4(a)(9).

[66] See 8 NYCRR 200.4(a)(9)(iii)(a)-(b).

[67] Parent Exhibit F, at 10.

[68] Id.

[69] See id.

[70] See id.

[71] See id. at 2.

[72] See Parent Exhibit EE, at 2.

[73] See id.

[74] See id. at 2.

[75] See id.

[76] See id.

[77] See id. at 2.

[78] See OSEP, Letter to Siegel, August 2, 2018, https://sites.ed.gov/idea/files/osep-letter-to-siegel-08-02-2018.pdf (last visited December 13, 2023).

[79] See id. at 2.

[80] See id.

[81] Parent Exhibit EE, at 2.

[82] See id.

[83] See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7, 15-16 (1993).

[84] Boose v. District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015).

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

[86] E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014).

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

[88] Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008).

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

[90] Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005).

[91] See id. at 522.

[92] See id. at 518.

[93] 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).

[96] Doe. v. East Lyme, 790 F.3d at 457.

[97] Education Law § 4404(1)(c).

[98] See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), (noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”); Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017) (holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits.”) (internal quotes and citation omitted).

[99] At the DPH, the DOE only cross-examined the Psychologist and

[100] See Parent Exhibit EE, at 1.

[101] See id.

[102] See id.

[103] See id. at 1 – 2.

[104] See id. at 2.

[105] See id.

[106] See id.; Parent Exhibit J.

[107] The Parent testified at the DPH that the Student was in a general education prekindergarten class, which turned into an Integrated Co-Teaching class, as several other Students had IEPs in the class.

[108] See id.

[109] See Parent Exhibit J, at 1 and 6.

[110] See id. at 3.

[111] See id. at 4.

[112] See id. at 5 – 6.

[113] See id. at 7.

[114] See Parent Exhibit EE, at 3.

[115] See id.

[116] See id.

[117] See id.

[118] See id.; Parent Exhibit I, at 1 and 3.

[119] See Parent Exhibit I, at 19 – 20.

[120] See id. at 7.

[121] See id. at 1 – 2.

[122] See id. at 3.

[123] See Parent Exhibit EE, at 3 – 4.

[124] See id. at 4.

[125] See id.

[126] See id.

[127] See Parent Exhibit H, at 7, 20 – 21.

[128] See Parent Exhibit EE, at 3.

[129] Id. at 5.

[130] See id.

[131] See id.

[132] See id.

[133] See Partial Resolution Agreement, dated June 2, 2023.

[134] See Parent Exhibit EE, at 6.

[135] See id.

[136] See id. at 8.

[137] See id. at 7; Parent Exhibit G.

[138] See Parent Exhibit G, at 26 – 37.

[139] See id. at 13.

[140] See id. at 9.

[141] See id.

[142] See Parent Exhibit NN, at 1.

[143] See id.

[144] See id.; Parent Exhibit M.

[145] See Parent Exhibit NN, at 3, 4, and 5.

[146] Id. at 4.

[147] See id.

[148] Id.

[149] Id.

[150] See id.at 5.

[151] See id.

[152] See id.; See Parent Exhibit L, at 6 – 8.

[153] See Parent Exhibit NN, at 5.; See Parent Exhibit K, at 1 and 3.

[154] Parent Exhibit NN, at 5.

[155] See id.at 6.

[156] See id.

[157] See id.

[158] See id. at 7.

[159] See id.at 8.

[160] See id.

[161] See id.

[162] See id. at 9.

[163] See id.

[164] See id. at 10.

[165] See id.

[166] See id. 10 – 11.

[167] See id. at 11.

[168] See id.

[169] See id.

[170] See id.

[171] Id.

[172] See id.

[173] See id. at 12.

[174] See id.

[175] See Parent Exhibit GG, at 1.

[176] See id.

[177] See id. at 2.

[178] See id.

[179] See id. at 3.

[180] See id. at 3 – 4.

[181] See id. at 4.

[182] See id. at 3 – 4.

[183] See id. at 5.

[184] See id.

[185] See Parent Exhibit GG, at 7 – 8.

[186] See Parent HH, at 1.

[187] See id. at 2.

[188] See id.

[189] See id. at 2 – 3.

[190] See id. at 4.

[191] See id.

[192] See id. at 4 - 5

[193] See id. at 5.

[194] See id. at 8.

[195] See id. at 9.

[196] See id.

[197] See id. at 7.

[198] See id. at 6.

[199] See id. at 10.

[200] See id. at 10 – 11.

[201] See id. at 11.

[202] See id.

[203] See id.

[204] See Parent Exhibit LL, at 1 – 2.

[205] See id. at 2.

[206] See id. at 3 - 5.

[207] See id. at 4.

[208] Id.

[209] See id.at 5.

[210] See Parent Exhibit L.

[211] Parent Exhibit LL, at 6.

[212] See id.

[213] See id. at 7.

[214] See id.

[215] See id.

[216] See id.

[217] See id.

[218] See id. at 8.

[219] See id.

[220] See id.

[221] See id. at 9.

[222] Id. at 8 – 9.

[223] Id. at 9.

[224] See id.

[225] See id. at 10.

[226] See id.

[227] See id. at 11.

[228] See id.

[229] See id. at 12.

[230] See id. at 13. The BCBA notes that this recommendation is not a quantitative calculation, but a compensatory program to make the Student whole again after years of not making progress or having access to their education. See id.

[231] See id.

[232] See id.

[233] See id. at 14.

[234] See id.

[235] See id.

[236] See id. at 15.

[237] See id.

[238] See Parent Exhibit I, at 6.

[239] See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 (D.D.C. 2018) [noting with approval the hearing officer's finding “that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school”]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 (E.D.N.Y. Oct. 30, 2008) [noting that “services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year”]).

[240] See V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *7 (S.D.N.Y. Aug. 17, 2022) [acknowledging that "orders of prospective services are disfavored as a matter of law" and, in the matter at hand, indicating that "the CSE should have already convened for subsequent school years]; M.F. v. N. Syracuse Cent. Sch. Dist., 2019 WL 1432768, at *8 (N.D.N.Y. Mar. 29, 2019) [declining to speculate as to the likelihood that the district would offer the student a FAPE "in the future" and, therefore, denying prospective relief]; Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 (D.D.C. Aug. 24, 2012) [noting that prospective placement is not an appropriate remedy until the IEP for the current school year has been completed and the parent challenges the IEP for the current school year]).

[241] See Connors v. Mills, 34 F.Supp.2d 795, 799, 804-06 (N.D.N.Y. Sept. 24, 1998) [noting a prospective placement would be appropriate where "both the school and the parent agree[d] that the child's unique needs require[d] placement in a private non-approved school and that there [we]re no approved schools that would be appropriate"].

[242] See e.g., Application of a Student with a Disability, Appeal No. 19-018.

[243] See Parent Exhibits NN and LL.

[244] Parent Exhibit G, at 11.

[245] Id.

[246] Id. at 35.

[247] See id.

[248] See A.M. v. New York City Dept. of Educ., 845 F.3d 523, 546 – 46 (2d. Cir. 2017) (referencing and following the proposition that when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide the services consistent with that consensus is not reasonably calculated to enable the child to receive educational benefits.).

[249] 8 N.Y.C.R.R. § 200.1(z).

[250] See 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 N.Y.C.R.R. § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted).

[251] 546 U.S. 49, 60-61 (2005).

[252] 8 N.Y.C.R.R. § 200.5(g)(1)(i).

[253] 34 C.F.R. § 300.502(e)(1); 8 N.Y.C.R.R. § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989).

[254] See Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011).

[255] See Letter of OSERS, 2002.

[256] Letter to Carroll, 68 IDELR 279 (OSEP 2016).

[257] 8 N.Y.C.R.R. § 200.5(g)(1)(iii).

[258] 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 N.Y.C.R.R. § 200.5(g)(1)(iv) (emphasis added).

[259] See D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020).

[260] Id.

[261] Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016).

[262] See NYS Educ. Law § 4404(1)(c).

[263] See SRO-19-101.

[264] 8 N.Y.C.R.R. § 200.5(g)(2); 34 CFR § 300.502(d).

[265] Lyons v. Lower Merrion Sch. Dist., 2010 WL 8913276, at *3 (E.D. Pa. Dec. 14, 2010). See also S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 n.9 (D.R.I. Jan. 14, 2014), where the opinion that the regulation empowers hearing officers to solicit independent expert opinions was acknowledged, but disagreement was expressed that the regulation gives an IHO "the inherent power to make up remedies out of whole cloth", aff'd, 773 F.3d 344 (1st Cir. 2014) (cited in Application of a Student with a Disability, Appeal No. 21-021).

[266] See 20 U.S.C. § 1414(a)(2)(B)(ii); 8 NYCRR § 200.4(b)(4).

[267] Trumbull, 975 F.3d at 169.

[268] Id.

[269] Id., at 170.

[270] See 34 CFR § 300.303; 34 CFR § 300.301(c)(1)(i)-(ii);8 NYCRR § 200.4(b)(1).

[271] Trumbull, 975 F.3d at 170.

[272] See Partial Resolution Agreement, June 2, 2023; Parent Exhibit A, at 14 – 17.

[273] See Parent Exhibit L, M, N, O, P, and Q.

[274] At the DPH, the Parent withdrew their request for a PT evaluation.

[275] See Parent Exhibit F, at 14 – 17.

[276] See 20 U.S.C. § 1415(f)(3)(e)(i).

[277] Levine v. Greece Cent. Sch. Dist., 2009 WL 261470, at *9 (W.D.N.Y. Feb. 4, 2009) aff'd, 353 Fed. App'x 461 (2d Cir. Nov. 12, 2009); see also Application of a Student with a Disability, Appeal No. 11-091.

[278] See SRO No. 23-178.