Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 248149

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

School District: N.Y.C. Dept. of Education

Home District: [REDACTED]

Service District: [REDACTED]

Date of Filing: 05/10/2023

Hearing Requested by: Parent

Hearing Date: 10/02/2023

Actual Record Closed Date: 10/19/2023

Date of Decision: 10/20/2023

Date of Distribution: 10/20/2023

Impartial Hearing Officer: Patricia Peña, Esq.

NAMES OF PERSONS WHO APPEARED ON 10/02/2023

For Student and Parent:

[REDACTED]

Parent’s Representative

Witnesses

[REDACTED] [REDACTED]

For the Department of Education:

[REDACTED] ^[1]

Representative for the District

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC”) filed on or about 05/10/2023 on behalf of Student against the New York City Department of Education (“DOE” or “District”). I was appointed as the IHO on 05/11/2023.

On 06/13/2023, a pre-hearing conference was held wherein parties indicated the following: (1) a resolution meeting was not held; (2) DOE had not filed a response to the DPC or served Parent with prior written notice; (3) case concerned a denial of a free appropriate public education (“FAPE”) for the 2021-2022 and 2022-2023 school years for which Parent seeks compensatory relief; (4) Student was undergoing a neuropsychological evaluation, a speech and language, physical therapy, and occupational therapy evaluations as well as a functional behavioral assessment as part of an order in a prior case; (5) DOE was still investigating this case; (6) pendency had not been resolved; (7) a status conference was scheduled for 07/18/2023 for Parents to provide an update on the status of the evaluations and for DOE to provide an update on the status of its investigation and inform Parent and I of its position on the case. 2 Several status conferences were held and the compliance date was extended to allow for completion of the evaluations. Additionally, on or about 07/13/2023, I signed a pendency order as well as a subpoena for documents. DOE was given several opportunities to advice Parent and I of the District position in this case. DOE never advised of its position and was therefore barred from defending its provision of FAPE in this case.

IHO 1

A virtual due process hearing was held on 10/02/2023. Parent submitted 24 documents into evidence.^[3] Included in Parent’s evidence were affidavits from the Neuropsychologist who evaluated Student in 2023, OT Evaluator, SLT Evaluator, and PT Evaluator.

In its opening statement, Parent referenced the independent evaluations recently conducted and argued that the evaluations demonstrate Student’s need for special education services. Parent’s representative argued that since DOE was unable to meet its burden, Parent should be awarded the relief sought as outlined in Parent’s Ex. U. ^[4]

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

Student is a [REDACTED]-year-old girl classified by the Committee on Special Education (CSE) as a child with Attention-Deficit/Hyperactivity Disorder, combined type with impulsivity and poor focus (ADHD) and Autism Spectrum Disorder (ASD).^[5] In its DPC, Parent alleges that while Student has many strengths, including verbal intelligence, Student has weaknesses “in attention, executive functioning, self-regulation, working memory, fine motor control and coordination, social communication and anxiety significant impede her ability to access her education.”^[6] Parent’s further allege that Student has decreased muscle tone; sensory issues; a weakness in reading skills in particular, Student’s ability to make inferences, synthesize 2021-2022 school year, the CSE convened on or about 05/11/2021 and recommended the following program and services:

• An Integrated Co-Teaching Services (“ICT”) for Math (10 periods per week); ELA (10 periods per week); Social Studies (5 periods per week); Science (5 periods per week) • Counseling 1x30 and 1x30 in a group of 3 students • Occupational Therapy 2x30 1:1 • Supplementary Aids and Services/Program Modifications/Accommodations of: o Special seating arrangements in an area of room that minimizes distractions during the whole group, academic instruction daily; o Study guide outlines of key concepts, including graphic organizers, checklists, including a copy of classroom notes daily, as needed; o Extra time to complete assignments, additional time when taking assessments and completing academic tasks, daily as needed;

• 10-month school year (SY);

• Testing Accommodations of:

o Extended Time on all tests, time and a half; o Location with Minimal Distractions, on all tests in a small group, quiet with limited distractions; and

Id. given after three minutes of inactivity or off-task behavior. With respect to the 2022-2023 school year, the 08/11/2022 IEP, the CSE recommended the following program and services:

o An ICT class for Math (10 periods per week); ELA (10 periods per week); Social Studies (5 periods per week); and Science (5 periods per week). o Counseling Services, 1x30x1:1; o Occupational Therapy, 2x30x1:1; o Parent Counseling/Training 1x60 in a group; o Physical Therapy, 1x30x1:1; o Speech-Language Therapy 1x30xgroup of 3; o Accommodations, including special seating arrangements, study guide outlines and extra time to complete assignments; o Testing accommodations; and o 10- month school year. ^[8] Parent contends that both the 05/11/2021 and 08/11/2022 IEPs were procedurally and substantively deficient in a number of ways including DOE’s termination of 1:1 special education teacher services, a failure to recommend 1:1 instruction, and a failure to recommend adequate related services and supports.^[9] In light of these concerns, Parent filed the instant action and seek an award of compensatory education.

ISSUE

The issue for determination is whether Student was denied a FAPE for the 2021-2022 and 2022-2023 school years. By way of relief, Parent seeks:

1. A finding that FAPE was denied for the 2021-2022 and 2022-2023 school years.

2. A finding that an appropriate program and placement for the Student, was as follows:

a. Access to a general education curriculum with a small student-teacher-ratio (Exs. F, T); b. 12 hours per week of 1:1 special instruction (Exs. F, T); c. Occupational Therapy 2x30x1:1 and 1x30 in a small group of 2 students (Exs, H, R); d. Individual sensory diet (Exs. H, R); e. Speech Language Therapy 2x45x1:1 (Exs. E, S) and f. Physical Therapy 1x30x1:1 (Ex. G, Q).

g. Assistive Technology as recommended by Ms. Molly Morrow in Ex. L., including

20 hours of AT technology training for Student, her parents, providers, and teachers.

3. Compensatory Education in the form of a bank of hours at market rates with no expiration date, as follows: a. 80 hours of Occupational Therapy (Exs. H,R); b. 138 hours of Speech Language Therapy (Exs. E, S); c. 46 hours of compensatory Physical Therapy (Exs. G,Q); d. 460 hours of 1:1 Applied Behavior Analysis (“ABA”) (Exs. F, T); e. 92 hours of BCBA/LBA supervision (Exs. F, T);

f. 92 hours of Parent Training by a BCBA (Exs. F, T) and g. 960 1:1 Special Instruction (Exs. F, T).

4. ABA evaluation by a BCBA/LBA (Exs. F, T)

5. Vision Processing Evaluation^[10]

In light of the foregoing and as more fully discussed below, I find that DOE failed to meet its burden and find that Parent is entitled to the relief requested as modified in accordance with this order.

FINDINGS OF FACT AND DECISION

After a full review of the record generated at the hearing, I make the following findings of fact and determinations.

Included in Parent’s evidence are two neuropsychological evaluations. At the time of the 2021 neuropsychological evaluation, Student was in the 3rd grade.^[11] Student presented with strength in verbal intelligence and receptive and expressive language and weaknesses in her ability to work with nonverbal information. 12 Student’s visual-spatial analysis and nonverbal reasoning skills were found to be within age expectations but “significantly weaker than her verbal abilities.”^[13] Student also presented with “weaknesses in executive functioning, including inhibition, planning, cognitive flexibility, speeded scanning and sequencing, and working memory. These persistent challenges can prevent [Student] from focusing on academic tasks, fully engaging in lessons, effectively demonstrating her knowledge, and sustaining her effort on cognitively taxing tasks.”^[14] The neuropsychologist made a number of recommendations that included placement in a small classroom with individualized supports and^[12] hours of 1:1 support to reinforce concepts and skills being taught in the classroom, regulate her behavior and anxiety. ^[15]

Most recently, in August 2023, Student underwent a neuropsychological evaluation. At the time of the evaluation, Student was a rising 5th grader who attended a private school. Student was in a small mainstream class and was receiving 2 hours of SEIT services a day in addition to related services.^[16] The Wechsler Intelligence Scale for Children - Fifth Edition (WISC-V) was administered to assess Student’s cognitive levels.^[17] Student scored in the “extremely high” range for verbal comprehension, in the “very high” in the areas of fluid reasoning and general ability, in the “high average” with respect to full scale (FSIQ), and in the “average” with respect to visual spatial processing, working memory, and processing speed.^[18] Regarding the Weschler Individual Achievement Test, Student’s scores with respect to age equivalency varied with the highest in word reading where Student’s scores were equivalent to greater than a 19 year old in word reading and the lowest being that on an 8 year old in numerical operations.^[19] In all, Neuropsychologist testified that Student “is very intelligent and has advanced verbal reasoning skills in addition to strong nonverbal fluid reasoning skills, she is not as fast or efficient as she is intelligent, and she struggles significantly with focus as well as executive functioning.” ^[20] Academically, with respect to reading, Neuropsychologist testified Student’s skills “are on grade level but weaker than expected given her extremely high verbal intelligence.”^[21] With respect to math, her skills were variable and “well below expectations based on her intelligence.”^[22] Student these findings, Neuropsychologist recommended access to a general education with small student to teacher ratio and 12 hours per week of direct, one to one instruction, ABA therapy and compensatory education.^[24] On clarifying questions, Neuropsychologist testified that there is a disconnect between Student’s verbal intelligence where she almost scored the highest score possible and her varying reading abilities.^[25] He testified that “given how smart she is and where these abilities are now, it’s just really not what I’d like to see and something that makes me a little more concerned moving forward.”^[26] As part of his evaluation, Neuropsychologist did not speak to Student’s one to one instructor or review Student’s report cards.^[27] He testified that given how smart Student is, Parents were not concerned with Student’s academic performance rather, the concern was more “about some of the core abilities that impact her ability to demonstrate her academics.”^[28] Neuropsychologist’s recommendation of 960 hours of one to one instruction is based on his understanding that Student did not receive all of the services she was supposed to receive during the school years in question.^[29] He based his understanding on reports he received from the parents and documents provided to him.^[30] Neuropsychologist also recommended ABA therapy as part of his recommendation.

With respect to the SLT evaluation, the CELF-5 was administered. A normal range for this test is between a 7 and 13. Student scored within a normal range in all areas except in the category of understanding spoken where she scored a 6, pragmatics profile where Student scored

23 Id. of an 11 and 13 year old in most areas except pragmatics profile where the age equivalency was less than that of a 3 year old and metalinguistic profile and making inferences where the age equivalency is less than that of a 9 year old.^[32] The SLT Evaluator testified that Student’s scores reflect “significant difficulties with understanding spoken paragraphs, as compared to subtests that assess comprehension at the word and sentence level. Delays in these areas may impact [Student] in the classroom when comprehending grade-level text.”^[33] Additionally, “[t]he CELF-5 supplementary testing revealed reading skills in the low average range. [Student]demonstrated difficulty with responding to questions about the main idea, as her response was very verbose and not concise. Most significantly, [Student’s] performance on the Structured Writing subtest indicated significantly delayed skills in the areas of structured writing. [Student] had difficulty with sentence structure, main idea/topics, transitions, vocabulary, and writing conventions.”^[34] On the CELF-5 M which assesses a student’s ability to talk about, analyze, and think about language, Student scored within a normal range but with respect to metalinguistics profile and making inferences, Student scored at a age equivalent of less than a 9 year old.^[35] The SLT Evaluator recommended SLT Therapy 2x a week for 45 minutes to target oral and written comprehension, and writing skills, and compensatory services in the form of a bank in the amount of 138 hours based on 1.5 hours a week for 46 weeks for 2 years.^[36] SLT evaluator clarified that Student’s deficits were in the areas of higher level language, understanding spoken paragraphs; social pragmatic language with pertains to understanding gestures, jokes, sarcasm,

31 Parent’s E-004 – E--005 compensatory education based on a 40 week school year. She testified that that while Student received some speech and language during the 2022-2023 school year, it was not equivalent to what she needed. She testified that Student requires 45-minute sessions instead of 30 due to Student’s lack of focus and need for prompting. ^[38]

The OT Evaluator testified that Student has OT related challenges that include “difficulties with fine motor precision, dexterity, motor coordination, motor planning, bilateral coordination, self-regulation skills, sustained attention skills, and visual motor integration skills.”^[39] The OT Evaluator recommended that Student receive 3 30-minute sessions of OT and compensatory services in the form of a bank of 80 hours (1 hour per week for 40 weeks for 2 years).^[40] The OT Evaluator also recommends a compressive vision assessment to determine the range of Student’s vision needs and corrective supports or therapies.^[41] The OT evaluator notes that Student has been prescribed glasses for visual acuity specifically for copying from the board, but rarely wears them. ^[42]

Included in Parent’s evidence were progress reports from Student’s one to one instructor. Teacher has been working with Student since Kindergarten.^[43] The 05/06/2021 progress report as with the other reports, indicate that Student has strong reading skills, weak writing skills and difficulties in math. Student’s greatest difficulty is in the social/behavioral domain. Teacher notes that “[d]uring classroom instruction, she will talk out of turn, she shares things with the class that are inappropriate, and she has a hard time with boundaries. She tries to

37 Tr. 88, 90 help her focus.”^[44] Student requires prompting and encouragement from Teacher to do her work.^[45] The report further notes that Student “often raises false alarms. It is difficult to know when she actually needs something because she often pretends that she is not feeling well or needs other things to get out of doing work. [Student] does not have the skills to initiate and maintain an appropriate conversation.”^[46] Teacher recommended that Student continue to receive 1:1 support.

The 05/09/2022 progress report indicates that Student is a strong reader with difficulty in writing and weakness in math.^[47] Student’s greatest struggle is in the area of social/behavioral domain. For example, “[d]uring classroom instruction, she will talk out of turn, she shares things with the class that are inappropriate, and she has a hard time with boundaries. She tries to fake illness to avoid doing work, as well.” According to Teacher, Student requires prompting, redirection, and encouragement to do her work. Teacher recommends an increase in SEIT services to 12 hours a week. ^[48]

At the time of the most recent report dated 5/22/2023, Student was reading at a beginning to middle of 5th grade level. Student was described as having difficulties in writing, in the area of social/behavioral domain, and executive functioning.^[49] For example, “[d]uring classroom instruction, she will talk out of turn, she shares things with the class that are inappropriate, and she has a hard time with boundaries. She tries to fake illness and injuries to avoid doing work and to get attention. [Student] gets distracted easily during constantly. During recess and other free time, [Student] does not respect others’ personal space. She behaves and speaks inappropriately toward her peers and does not understand social cues. [Student] makes up lies and stories to get attention from her peers.”^[50] Student’s Teacher described Student’s math skills as being “weak.”^[51] Student “requires prompting and encouragement from Teacher to do her classwork. She normally gets through less than half of the assigned questions during the time allotted, despite the fact that most students in the class are able to complete the entire assignment in that time frame. Teacher provides constant redirection during math lessons. During independent assignments, Teacher provides prompting, ensures that [Student] understands the directions, and does the first few problems with [Student] before asking her to work independently. Teacher checks [Student’s] work when she is finished. [Student] does well with verbal and visual prompts.” ^[52]

Legal Framework

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in a 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. ^[53]

FAPE

The IDEA provides that children with disabilities are entitled to a FAPE. 54 A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. 55 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 Student to receive educational benefits. 56 In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” 57 School districts are not required to “maximize” the potential of students with disabilities 58 but are required to provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords Student with an opportunity greater than mere ‘trivial advancement’.” ^[59]

Compensatory Education can be an appropriate remedy for a denial of FAPE.^[60] The purpose of a compensatory education award is to place the student in the position he/she would have been in had the district complied with its obligation under the IDEA.^[61] A court may, therefore “award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”^[62] Further, “whereas ordinary IEPs need only provide ‘some benefit,’ compensatory

54 20 U.S.C. § 1400 [d] [1] [A] 55 34 C.F.R. § 300.13 56 Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]. 57 Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 [2017]. 58 Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d at 132. denied if there is not a sufficient a causal link in the record between any deprivation and Student’s current deficits. ^[64]

An award of compensatory education can be crafted following either a quantitative approach or a qualitative approach. The “quantitative” approach is based on the amount of time that comprised the FAPE deprivation.^[65] The “qualitative” approach is based on a student’s needs and on the specific educational deficits that resulted from the FAPE deprivation.^[66] This approach requires a “fact-specific inquiry”^[67] and “[t]he ultimate award of compensatory education 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.”^[68] The Second Circuit has not adopted a preferred approach and leaves the mechanics of structuring an award to the court’s discretion.^[69] Irrespective of the approach taken in crafting the award, “the remedy must be ‘appropriate in light of the purpose of the Act.’” ^[70]

In New York State, when a parent seeks compensatory relief, the burden is on the District to “describ[e] its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and 63 Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) efficiently place the student in the position that [they] would have been but for the denial of

FAPE.” ^[71]

Further, default judgements awarding compensatory education are disfavored. In Appeal No. 22-004, the SRO stated that “an outright default judgement awarding compensatory education- or as in this case, any and all relief requested without question-is a disfavored outcome even where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious.” ^[72]

ANALYSIS

As previously stated, the District bears the burden of providing that Student was offered a FAPE. Here, the District did not offer any documents or witness testimony into evidence and in fact, was notably absent from some of the scheduled status conferences and the hearing. Therefore, I find that that the District failed to meet its burden and find that Student was denied a FAPE for the 2021-2022 and 2022-2023 school years. The only question now is whether the relief sought by Parent is appropriate. The Relief

Even upon a concession of FAPE, it is incumbent upon the district to set forth an appropriate compensatory plan. The district did not do that here and while the District’s conduct is inexcusable, an outright award of compensatory education based on the district’s failures, is a disfavored outcome. As such, I must review the record and determine whether the remedy sought is appropriate. Based on my review of the record and for the reasons set forth below, I find that Parent is entitled to relief as modified by this order. SEIT/ One to One Instruction

The term SEIT and one to one instruction are used interchangeably in the reports and documents admitted into evidence. However, the term SEIT is a term a term used in the context of a preschool student the purpose of which is to provide specialized individual and or group services to a preschool student with a disability.^[73] New York State defines SEIT “an approved program provided by a certified special education teacher on an itinerant basis in accordance with the regulations of the commissioner, at a site determined by the board, including but not limited to an approved or licensed prekindergarten or head start program; the child’s home; a hospital; a state facility; or a child care location..”^[74] A review of the evidence indicates that Student was receiving one to one instruction.

Parent seeks a finding that for the 2021-2021 and 2022-2023 school years, Student should have received 12 hours of one-to-one instruction per week. At the time, Student was receiving 10 hours of one-to-one instruction. While the neuropsychologists who evaluated Student in 2021 and 2023 recommended Student receive 12 hours of one-to-one instruction, the record is devoid of documents from Student’s school regarding her academic performance or inability to access the curriculum without a one-to-one instructor which raises a question as to whether Parent seeks to maximize Student’s potential. The evidence showed that while Student has some deficits in executive function and ability to focus, Student’s overall cognitive abilities are “above average.”^[75] The neuropsychologist who evaluated Student in 2023 did not review Student’s that Parents were not concerned about Student’s academic performance with the exception of maybe math, given how smart she is but rather the concern was with “Student’s abilities to demonstrate her academics.”^[76] Further, throughout his report, Neuropsychologist notes that “while many of her performances technically fell within the average range, she performed much weaker than expected given her very high verbal intelligence.”^[77] Additionally, the progress reports from Teacher talk about Student’s need for prompting and redirection to complete tasks particularly in the area of math and writing. The reports also talk about how Student talks out of turn, shares things that are inappropriate with classmates and that Student has difficulties with boundaries. However, it is unclear what progress, if any, Student has made with the support of a one-to-one instructor. Nonetheless, given Student’s issues with focus and inattention, I find that Student requires some one-to-one support. Therefore, I find that 10 hours a week of one-to-one instruction was appropriate. Based on a calculation of 40 week in a school year, I find that Student should have received 800 hours of one-to-one instruction during the school years in question. With respect to Parent’s claim that Student did not receive the full 10 hours a week of one-to-one instruction during pendency, there is nothing in the record to support Parent’s basis for making this assertion. Nonetheless, to the extent that Student did not receive 800 hours during the school years in question, I find that Student is entitled to the difference. Applied Behavior Analysis (ABA) Therapy Parent seeks 460 hours of 1:1 ABA and 92 hours of BCBA/LBA supervision as well as 92 hours of Parent training by a BCBA, compensatory education, and an ABA evaluation. ^[78] Neuropsychologist testified that he recommended ABA to work on social and behavior skills, Student’s ability to remain engaged and to tolerate frustration, learn coping skills and adaptive self-care.^[79] However, to his understanding, Student’s behavior is not disruptive in the classroom. The record is devoid of information from Student’s teachers regarding her behavior in the classroom and whether Student exhibits behavior that warrant the use of interventions such ABA methodology. Further, Student has a one-to-one instructor in the classroom that provides not just academic support but social support as well. As such, I find that Parent’s request for ABA therapy in addition to one-to-one support is excessive. With respect to Parent training, DOE recommended Parent Counseling/Training in the August 2022 IEP. It is unclear if Parents have availed themselves of these sessions. Therefore, Parent’s request for compensatory ABA and BCBA supervision, Parent training by a BCBA, and an ABA evaluation is denied. Speech Language Therapy (SLT)

Parent seeks 138 hours of SLT for the denial of FAPE for the 2021-2022 and 2022-2023 school years.^[80] This calculation is based on two 45-minute sessions per week for 46 weeks for two years.^[81] New York State Regulations state that a student “shall be considered for 12-month special services in accordance with their need to prevent substantial regression,” if the student’s “management needs are determined to be highly intensive and require a high degree of individualized attention and intervention.^[82] Substantial regression is defined as “a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the and a period of review of eight weeks or more would indicate substantial regression.^[84] The SLT evaluation is devoid of Student’s needs for SLT services on a 12 month basis. Therefore, I find that the calculation should be on a 10-month basis and not 12 months and order DOE to fund a bank of 120 SLT. With respect to Student’s program, I find that the recommended 2x45 1:1 session is appropriate. Occupational Therapy (OT)

Parent seeks a bank of 80 hours of OT.^[85] This calculation is based on 1 hour per week of OT based on 40-week school for 2 years.^[86] The OT evaluator explained that because Student did not start OT services for the 2022-2023 school year until April 2022, this resulted in widening of existing gaps across areas of need and with academic demands growing quickly, Student is having challenges participating in various learning activities.^[87] I am ordering DOE to fund a bank of 80 hours of OT services. With respect to Student’s program, I find that 2x30x 1:1 and 1x30 in a group of 2 OT sessions per week with a sensory diet. ^[88] Vision Processing Evaluation

As part of its relief, Parent seeks a vision processing evaluation.^[89] The OT evaluator recommended that Student follow up with a developmental optometrist for an updated visual

83 8 NYCRR § 200.1 [aaa] Student has been prescribed glasses for visual acuity and to copy from the board but rarely wears them.^[91] The OT evaluator also noted that during the OT evaluation, Student did not squint or look excessively close at the paper or board or complain of eye pain but did have difficulty with eye jumps and with the inward and outward movement of the eye.^[92] Based on findings in the OT report, I am ordering the District to conduct a visual processing evaluation and determine what support or additional therapies, if any, are warranted. Physical Therapy (PT)

Parent seeks a bank of 46 hours of compensatory PT services based on a quantitative approach and a recommended 1 30-minute session per week.^[93] No justification was provided as to why Student required services on a 12-month basis. Therefore, based on a 10-month, 40-week school year, I am ordering DOE to fund 40 hours of compensatory PT. Assistive Technology (AT)

As part of its relief, Parent seeks a finding that the assistive technology recommendations set forth the AT evaluation dated 04/12/2022 be implemented as part of any declaratory relief ordered.^[94] The AT evaluation indicates that Student has several challenges related to her ability to write independently and requires use of AT support to alleviate these challenges.^[95] The evidence shows that Student has difficulties in the area of writing. The District failed to present a case or an alternate compensatory relief program. Therefore, I am ordering the district to 90 Parent’s R-005 of AT training for Student, Parents, Providers, and teachers. Limitations on the Award

Parent seeks a non-expiring bank of hours. Compensatory relief is premised on an assumption of need and that the hours are needed to place the student in the position he/she would have been in but for the denial of FAPE. The purpose is not to carry forward a balance of compensatory services that remain unused. 96 Therefore, Parent will have 2 years from the date of this order to use the bank of hours awarded pursuant to my order.

ORDER

NOW, in light of the foregoing, I HEREBY FIND: (1) DOE failed to provide Student with a FAPE for the 2021-2022 and 2022-2023 school years.

(2) The appropriate program for Student for the 2021-2022 and 2022-2023 school years was:

a. A general education curriculum with a small student to teacher ration

b. 10 hours per week of 1:1 instruction c. Occupational Therapy 2x30 1:1 and 1x30 (group of 2) d. Individual sensory diet e. Speech and Language therapy 2x45 1:1 f. Physical Therapy 1x30 1:1 g. Assistive Technology as recommended in the 04/12/2022 by Mr. Molly Morrow including 20 hours of AT training for Student, Parents, Providers, and Teachers.

h. 10-month program

(3) Parent’s request for 460 hours of compensatory 1:1 ABA is denied.

(4) Parent’s request for 92 hours of compensatory BCBA/LBA supervision is denied.

(5) Parent’s request for 92 hours of compensatory Parent training by a BCBA is denied.

IT IS THEREFORE ORDERED, (1) DOE Implementation Unit shall within 20 days of this order, calculate the number of hours of service that Student received under pendency during the 2021-2022 and 2022-2023 school year and fund the difference between the hours of service Student received and 800 hours of 1:1 special education instruction Student should have received.

a. The services should be provided by a qualified provider of Parent’s choosing at reasonable market rate, to be determined by DOE’s implementation unit based on the rate paid to similar providers in the last 6 months.

(2) DOE shall fund a bank of 120 hours of compensatory speech and language therapy to be provided by a qualified provider of Parent’s choosing at a reasonable market rate, to be determined by DOE’s implementation unit based on the rate paid to similar providers in the last 6 months.

(3) DOE shall fund a bank of 80 hours of Occupational Therapy to be provided by a qualified provider of Parent’s choosing at a reasonable market rate, to be determined by DOE’s implementation unit based on the rate paid to similar providers in the last 6 months.

(4) DOE shall fund a bank of 40 hours of Physical Therapy to be provided by a qualified provider of Parent’s choosing at a reasonable market rate, to be determined by DOE’s implementation unit based on the rate paid to similar providers in the last 6 months.

(5) All compensatory award ordered pursuant to this order shall expire within 2 years of the date of this order.

(6) DOE shall conduct a visual processing evaluation within 35 days of the date of this order.

The CSE shall reconvene within 30 days of conducting the evaluation to determine what support or additional therapies, if any, are warranted.

SO ORDERED.

Dated: 10/20/2023

Patricia Peña, Esq. (signed electronically)

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, 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

None

PARENT EVIDENCE

A. Exhibit Description Date Pages Impartial Hearing Request 5/10/2023 19 pages

B. DOE Due Process Response 6/20/2023 4 pages

C. Order on Pendency 7/13/2023 7 pages

D. Subpoena for Documents to DOE 7/26/2023 2 pages

E. Independent Speech and Language Evaluation 8/14/2023 16 pages

F. Independent Neuropsychological Evaluation August 2023 23 pages

G. Independent Physical Therapy Evaluation 7/26/2023 12 pages

H. Independent Occupational Therapy Evaluation 8/3/2023 17 pages

I. DOE Physical Therapy Evaluation 2/23/2022 7 pages

J. DOE Speech Language Evaluation 1/30/2022 7 pages

K. Independent Neuropsychological Evaluation 11/17, and 12/8, 2021 11/23 28 pages

L. Independent Assistive Technology Evaluation 4/12/2022 17 pages

M. Independent Occupational Therapy Evaluation 6/27/2022 17 pages

N. Prior Written Notice 9/7/2023 13 pages

O. Teacher Progress Report 5/9/2022 5 pages

P. Teacher Progress Report 5/6/2021 6 pages

Q. Affidavit of Physical Therapist 9/11/2023 4 pages

R. Affidavit of Occupational Therapist 9/14/2023 5 pages

S. Affidavit of Speech Language Pathologist 9/18/2023 4 pages

T. Affidavit of Neuropsychologist 9/20/2023 7 pages

U. Memorandum of Law: Parents’ Request for Relief in Impartial Hearing 9/21/2023 3 pages

V. Teacher Progress Report 5/22/2023 3 pages

W. Pendency Order in IH#200504 3/17/2022 2 pages

IHO EXHIBITS

1. PHC Summary and Order 05/25/2023 9 pages IHO

Footnotes

[1] DOE attorney made a brief appearance on the case but was not present during the hearing.

[3] Tr. 76

[4] Tr. 86

[5] Parent’s A-001

[6] Id. at Page 2 information, and organize information when writing; and low self-esteem. 7 With respect to the o On-Task Focusing Prompts on all tests, on task focusing prompt will be

[8] Parents’ A-011

[9] Id. at A-012

[10] Parent’s U

[11] Parent’s K-001

[12] Id. at K-015

[13] Id.

[14] Id.

[15] Id.

[16] Parent’s F-002

[17] Id.

[18] Parent’s F-020

[19] Parent’s F-22- F-23

[20] Parent’s T-003

[21] Id.

[22] Parent’s T-003 also struggles with social and emotional issues as well as attention and hyperactivity. 23 Based on

[24] Id. at T-004- T-006

[25] Tr. 95-96

[26] Tr. 97

[27] Tr. 97

[28] Tr. 98

[29] Tr. 103

[30] Tr. 103 a 2, and structured writing where she scored a 4. 31 The age equivalency of these scores, was that

[32] Parent’s E-011

[33] Id. E-014

[34] Id.

[35] Parents’ E-011

[36] Id. at E-014 and metaphors; and writing. 37 SLT Evaluator recommended a bank of 138 hours of

[38] Tr. 91-92

[39] Parents’ R-003

[40] Id. at R-004

[41] Parent’s H-012- H-013

[42] Id. at H-012

[43] Parent’s K-003 fake illness to avoid doing work as well. [Student] seat in class has been moved often this year to

[44] Parent’s P-001

[45] Id. at P-002

[46] Id. at P-003

[47] Parent’s O

[48] Id.

[49] Parent’s V-001 work time, whether it’s in her classroom seat or her computer seat. Redirection is needed

[50] Id.

[51] Parent’s V-002

[52] Id.

[53] NYS Educ. Law § 4404[1][c]

[59] Cerra v. Pawling Cent. Sch. Dist., 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citation omitted]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d at 254; P v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].

[60] E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014) citing Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 (2d Cir. 2008). See also, P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (finding that the “IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education”).

[61] See Newington, 546 F.ed at 123; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005]

[62] Doe v. East Lyme, 790 F.3d at 454 [2nd Cir. 2015] awards must do more—they must compensate.” 63 A request for compensatory relief may be

[64] See, e.g., Phillips v. Dist. Of Columbia, 932 F. Supp. 2d 42 (D.C.Cir. 2013) (upholding denial where student received a similar level of comparable services during the period of deprivation and there was support in the record for IHO’s conclusion that Student’s current difficulties do not stem from the FAPE denial); T.B. v. Prince George's Cty. Bd. of Educ., 897 F.3d 566 (4th Cir. 2018) (Parents failed to prove a loss of educational benefits where teachers showed that when student attended class he performed well and completed assignments); Somberg v. Utica Cmty. Schs., 908 F.3d 162 (6th Cir. 2018) (holding that Endrew F. standard is not applicable to determination of compensatory education and it is appropriate to consider any advancement made by Student in crafting an award, regardless of the substantive appropriateness of the IEP).

[65] 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].

[66] See Reid, 401 F.3d 516

[67] Id. at 524

[68] Id.

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

[70] Doe. v. East Lyme, 790 F.3d at 457 citing to Burlington, 471 U.S. at 369.

[71] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.

[72] See Application of a Child with a Disability, Appeal No. 22-004 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005).

[73] 8 NYCRR 200.16[i][3][ii]

[74] Educ. Law §44101][k]

[75] Parent’s F-015 report cards, conduct a classroom observation, or speak to Student’s teachers. He acknowledged

[76] Tr. 98

[77] Parent’s F-012

[78] Parent’s U-003.

[79] Tr. 103

[80] Parent’s U-003

[81] Parent’s S-003

[82] 8 NYCRR § 200.6 [k] [1] [i] previous school year.” 83 The typical review or reteaching period range is between 20 to 40 days

[84] D.D-S. v. Southold Union Free Sch. Dist., 2011 U.S. Dist. Lexis 100809; see also http://www.p12.nysed.gov/specialed/finance/2011QA.pdf. (New York State guidance on what constitutes an inordinate period of review); see also, F.L. v. Bd. of Educ. Of the Great Neck U.F.S.D.274 F.Supp. 3d 94 (2017) [Finding that “Plaintiffs fail to identify any evidence suggesting that an ‘inordinate period of review’ would be required to reestablish the IEP goals and objectives mastered during the prior school year.”]

[85] Parent’s U-003

[86] Parent’s H-014

[87] Id.

[88] Parent’s R-004

[89] Parent’s U-003 acuity exam to evaluate Student on her oculomotor dysfunction. 90 The OT evaluator notes that

[91] Parent’s H-014

[92] Id.

[93] Parent’s U-003

[94] Id.

[95] Parent’s A-017 implement the AT recommendations made in the 04/12/2022 AT evaluation including 20 hours 96 See Application of a Child with a Disability, Appeal No. 23-028 (upholding an IHO’s placement of an expiration date on compensatory relief awarded.).