NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 599894 - NYC: 248429
FINDINGS OF FACT AND DECISION
Student’s Name [1]: REDACTED (“Student”)
School District: N.Y.C. Dept. of Ed.
Hearing Requested by: REDACTED (“Parent”)
Date of Filing: 05/19/2023
Date(s) of Hearing: 08/09/2023
Actual Record Closed Date: 09/15/2023
Date of Decision: 09/15/2023
Hearing Officer: Peggy K. Chan
Time Sensitive: Yes
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 7, 2023
For the Student:
REDACTED (hereinafter referred to as “Parent’s Representative”) REDACTED (hereinafter referred to as “Parent”) REDACTED (hereinafter referred to as “Parent 2”) REDACTED (hereinafter referred to as “Clinical Director”) For the Department of Education (“DOE”): REDACTED (hereinafter referred to as “District’s Representative”) REDACTED (hereinafter referred to as “Teacher”)
BACKGROUND
On May 19, 2023, Parent, through counsel, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. and its federal and state implementing regulations.
In the DPC, Parent alleges that the District failed to offer Student a free and appropriate public education (“FAPE”) for the 2018-2019, 2019-2020, 2020-2021, 2021-2022, and 2022-2023 school years (“SYs”). Specifically, it is alleged that, among other things, the District: (1) denied Parent the right to meaningfully participate in the development of Student’s educational program; (2) failed to comprehensively evaluate Student; (3) failed to develop meaningful and measurable annual goals and appropriate present levels of performance; and (4) failed to provide an appropriate program and related services to Student (Ex. P-A).
By way of relief requested in the DPC, Parent seeks an order to require the District to provide extended eligibility to Student and to fund compensatory education and services in areas that include, but are not limited to, Applied Behavior Analysis (“ABA”) therapy, speech-language therapy (“SLT”), occupational therapy (“OT”), academic tutoring, and any additional services to remedy the District’s failure to provide a FAPE (Id. at 4).
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA2 and its implementing regulations, [3] and the New York State Education Law[4] and its implementing regulations. [5]
PROCEDURAL HISTORY
I was appointed on May 23, 2023 to determine the claims in the DPC and to conduct an impartial hearing pursuant to 20 U.S.C. § 1415(f) and the New York State Education Law § 4404(1).
2 20 U.S.C. § 1400 et seq.
On June 5, 2023, a resolution meeting was held without the parties reaching an agreement. On June 20, 2023 and July 10, 2023, the parties appeared for a prehearing conference and a status conference, respectively. On July 12, 2023, the District filed a written motion to dismiss the claims related to the 2018-2019, 2019-2020, and 2020-2021 SYs on the basis that these claims are barred by the statute of limitations (“SOL”) under the IDEA (Tr. at 24; Ex. IHO-I). On July 17, 2023, Parent filed a written motion in opposition to the District’s motion to dismiss (Tr. at 24; Ex. IHO-II). After reviewing both parties’ motions, I determined that I was not able to issue a ruling based on the pleadings alone. I directed the parties to present evidence on the SOL issue at the upcoming due process hearing (“DPH”) and informed the parties that I would reserve my ruling on the motion to dismiss until I issued the final Findings of Fact and Decision (“FOFD”) (Tr. at 24-25).
A DPH was held on August 9, 2023. At the DPH, the District offered 15 documents in support of its case, including the sworn affidavit of Teacher (Ex. DOE-15). After overruling Parent’s objections to a number of the proposed exhibits and addressing several discrepancies arising from the District’s inaccurate labelling of exhibits, DOE Exhibits 1 through 14 were admitted to the record (Tr. at 29-39). Parent cross-examined Teacher, and DOE-15 was subsequently admitted to the record when Teacher testified (Tr. at 87).
Parent sought to introduce 8 documents in support of her case, including the unsworn affidavit of Parent and sworn affidavit of Clinical Director (Ex. P-G and P-H, respectively). Parent’s exhibits A through E were admitted into evidence without objection (Tr. at 40-41, 43). The exhibit marked for identification as P-F was withdrawn as a duplicate of DOE-6 (Tr. at 28). The District cross-examined Parent and Clinical Director, and Exhibits P-G and P-H were subsequently admitted to the record when the witnesses testified, with the exception that the District moved to strike paragraph 8 of Exhibit P-G as the statement was about an offer that was made at a resolution meeting as proof that Student was denied a FAPE (Tr. at 40-41, 43, 60, 122). As I reserved ruling on the District’s motion to strike until I issued this final FOFD, I allowed the affidavit to admitted to the record at the DPH (Tr. at 41-42).
Both parties made opening statements (Tr. at 45-47, 50-53). At the conclusion of the parties’ cases, the District made an application to submit a closing brief in lieu of an oral closing statement due to the complexity of the case. I allowed the parties to submit written closing statements over the objection of Parent’s Representative (Tr. 147). Parent’s Representative made an oral closing statement at the conclusion of the DPH in addition to submitting a written closing statement (Tr. 149-153).
Additional documents were admitted to the record as IHO exhibits. A list of exhibits admitted into evidence is attached hereto as Appendix B. Although only portions of the evidence are referenced herein, the testimony and documents were reviewed in full.
ISSUE(S) IN DISPUTE
(1) Whether Parent’s claims for the 2018-2019, 2019-2020 and 2020-2021 SYs are time-barred by the SOL.
(2) Whether Student was provided a FAPE for one, some, or all the SYs at issue.
(3) The relief to be awarded if it is found that the DOE failed to provide Student with a FAPE for one, some, or all the SYs at issue.
FINDINGS OF FACT AND DECISION
After a full review of the record generated at hearing, I make the following findings of fact and determinations.
Student is a REDACTED-year-old classified as a student with Autism under the IDEA. Student’s eligibility for special education supports and services for the SYs at issue is not in dispute. [6]
Parent asserted that the last time the District comprehensively evaluated Student in all areas of his suspected disability was in 2012, an allegation that was not challenged by any evidence in the record (Ex. P-A-2). According to the District’s Psychological Update conducted as part of a triennial mandated assessment, dated January 12, 2012, Student had been provided special education services from the outset of his educational career (Ex. P-C-1). At the time, Student was a fourth grader attending a 6:1:1 special education program, receiving SLT, OT, and PT (Id.). Student had been assigned a full-time behavior management paraprofessional who assisted Student with focusing and staying on tasks (Id.).
The Psychological Update noted that “formal cognitive testing was attempted and terminated prior to completion due to limited conceptual skills for the directions and objectives of the tasks” (Id. at 2). For the same triennial period, a Speech/Language Evaluation was conducted on January 9, 2012 (Ex. P-D). Both reports described Student as a non-verbal communicator who used gestures and picture symbols to inconsistently communicate, as well as eye gaze and vocalizations (Id. at 1, Ex. P-C-1). Student often required verbal and hand-over-hand prompting to complete assignments (Ex. P-C-2). Student had difficulty processing language which impacted his recognition of directions or requests (Id.). Student exhibited attentional challenges and disruptive behaviors but was easily redirected with the support of a crisis paraprofessional (Id.).
According to Student’s most recent Individualized Education Program (“IEP”) in the record, dated October 21, 2022, Student was recommended a twelve-month placement in a 6:1+1 special education classroom and adapted physical education, with the following related services: (1) OT, individual service, two times per week for 30 minutes a session; (2) PCAT, group service, four times a year for 1 hour each session; and (3) SLT, in a group of 2, three times per week for 30 minutes per session (Ex. P-E-20-22). In addition, Student was recommended to have a full-time 1:1 paraprofessional for behavior support, assistive technology devices, testing accommodations, transition services, and special transportation (Id. at 22-26).
[I] Burden of Proof
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement – which does not apply in this case. [7] [II] District’s Motion to Strike Paragraph 8 of Parent’s Affidavit
The District moved to strike paragraph 8 of Parent’s affidavit as the statement was about an offer that was made at a resolution meeting as proof that Student was denied a FAPE (Tr. at 40-41, 43).
Case law, State Review Officer decisions, and guidance from the Office of Special Education Programs (“OSEP”) in the U.S. Department of Education are clear that statements made in a resolution meeting can be introduced as evidence in a due process proceeding. “Unlike mediation, the IDEA and the implementing regulations contain no requirement for discussions in resolution meetings to be kept confidential and not be introduced in a subsequent due process hearing or civil proceeding. Absent an enforceable agreement by the parties requiring these discussions to remain confidential, either party may introduce information discussed during the resolution meeting at a due process hearing.” [8]
I find the statement at issue to be relevant to the claims raised in the DPC. As the parties did not present any evidence of a confidentiality agreement prohibiting the disclosure of information shared during the resolution meeting, the District’s motion to strike is denied.
[III] Statute of Limitations
A DPC must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint. [9] New York State has adopted a timeline and limitations period that is consistent with the IDEA.[10] The school district has the burden of proving that the SOL bars a parent’s claim. [11]
In accordance with the IDEA and New York law, a claim begins to accrue when a party in question knew or should have known of the alleged action that forms the basis of the complaint (referred to as the “KOSHK date”) and the complaint must be filed within two years of that date.[12] Determining when a parent knew or should have known of an alleged action "is necessarily a fact-specific inquiry." [13]
Moreover, the IDEA creates two tolling exceptions to the two-year SOL period. The SOL does not apply to a parent if “the parent was prevented from requesting the hearing due to (i) specific misrepresentations by the local education agency that it had resolved the problem forming the basis of the complaint or (ii) the local educational agency’s withholding of information from the parent that is required to be provided under the IDEA 20 U.S.C § 1415(f)(3)(D).” [14]
The first tolling exception pertains to when the District specifically misrepresents that it had resolved the issues forming the basis for the DPC notice, thereby causing the parent not to file a DPC. The IDEA does not define the term “misrepresentation,” but courts have construed its meaning narrowly. In order to be excused from the SOL under the misrepresentation exception, it must be shown that the school district had “knowledge that its representations of a student’s progress or disability [were] untrue or inconsistent with the school’s own assessments,” or that the school district had “intentionally misled them or knowingly deceived them regarding their child’s progress.” [15]
The second tolling exception pertains to when the District withholds information from the parent that it was required to provide. Federal and New York State regulations require a school district to provide parents with a notice of procedural safeguards “at a minimum one time per year and also: (i) upon initial referral or parental request for evaluation; (ii) upon the first filing of a due process complaint notice…or an impartial hearing; (iii) upon request by a parent; (iv) upon a decision to impose a suspension or removal…; and (v) upon first receipt of a State complaint.”[16] Again, that withholding must thereby cause the parent not to file a DPC.[17] Generally, case law looks at whether the District provided written notice of procedural safeguards required under the IDEA such as Prior Written Notice (“PWN”) and how to file a complaint and request an impartial hearing. [18]
Additionally, there may be specific tolling provisions not normally in effect, but applicable under specific circumstances. For example, in New York, during the initial stages of the COVID pandemic, the Governor issued Executive Order 202.8 beginning on March 7, 2020 with subsequent extensions tolling the period through November 3, 2020, for a total of 241 calendar days.
Finally, although determining when a parent knew or should have known about the claim involves a factual analysis, which can be similar to the denial of a FAPE analysis, the issue is simply whether claims are time barred – not whether the parent will prevail if they are timely and litigated.
In arguing that Parent’s claims for the 2018-2019, 2019-2020 and 2020-2021 SYs are time-barred, the District considered the start of the 12-month SY, or July 1, as the latest KOSHK date for each SY at issue (Ex. IHO-I-6; Tr. at 118-119). The District’s reasoning is that Student’s IEPs were developed in the middle of the SY for these 3 years at issue – specifically, on November 15, 2017, November 7, 2018, and November 1, 2019 (Ex. DOE-2, DOE-3, DOE-4). Soon after each IEP meeting, the District sent a PWN to Parent with information to download the Procedural Safeguards (Ex. DOE-1). It is the District’s position that Parent knew or should have known about her rights at the time, and since the IEPs continued to be in effect at the beginning of the next SY, the District determined that the latest time Parent knew or should have known of her right was no later than the start of each SY at issue, or July 1, 2018, July 1, 2019, and July 1, 2020, respectively (Ex. IHO-I-6, IHO-III-4; Tr. at 118-119).
In arguing that the claims related to the 2018-2019, 2019-2020 and 2020-2021 SYs are timely, Parent asserted that the District failed to appropriately evaluate Student since 2012, failed to develop appropriate annual goals and present levels of performance, misrepresented to Parent about Student’s progress year after year, as well as “knowingly and maliciously created IEPs that they knew contained false information” (Tr. at 50, 55, 119-120; Ex. IHO-II-2-3). It was only when Student was unable to be accepted into an adult day program leading up to his graduation due to his lack of life skills that Parent realized there was a “disconnect” between what the District had told her about Student’s progress and where Student was actually functioning (Tr. 130-131). Parent argued that she could not have known about the District’s failure to offer Student a FAPE until Student was evaluated in an ABA Assessment, completed on May 10, 2023, that showed Student to be “drastically behind” (Tr. at 119-120; Ex. IHO-II-2). Only then was Parent able to see that the District had not been truthful about Student’s progress and that Student required additional services than what the District had been providing (Tr. at 55).
As to the first tolling exception – specific misrepresentation – the District argued that there is no evidence to demonstrate that the District intentionally or knowingly deceived Parent regarding the relevant facts (Ex. IHO-I-6, IHO-III-5). Parent argued that the District had “deliberately misled” her by failing to evaluate Student, keeping Parent in the dark about his progress, repeating the multiple annual goals year after year while noting that Student was anticipated to meet the goals, and keeping Student in the same program and related services as he remained at a pre-kindergarten reading and math levels throughout the SYs at issue (Ex. IHO-II-4, IHO-IV-4-7). Consequently, the District represented to Parent that Student was making adequate progress because he did not need additional services (Id.). Parent further argued that the District knowingly misled Parent into signing a document waiving her right to a triennial evaluation (Ex. IHO-IV-9).
As to the second tolling exception – the withholding of specific information required to provide to Parent under the IDEA – the District argued that no facts supported the existence of this exception as Parent was provided a PWN for each of the three SYs at issue and was therefore aware of her rights (Ex. IHO-I-6-7).
As Parent’s Representative argued at the DPH and in his Closing Brief (Tr. 119-120), I find that the District’s determination of the KOSHK date based on when Parent knew or should have known of her rights to bring a claim against the District to be an inaccurate interpretation of the law. A parent might very well know that they have due process rights under the IDEA but might still not realize that they have a cause of action unless they suspect that the District has failed to provide a FAPE to their child. The relevant inquiry is, therefore, when Parent knew or should have known about the alleged action by the District that forms the basis of the complaint.
Based upon the evidence on record, which is fully discussed below, I find that Parent knew or should have known of the District’s alleged failure to provide Student a FAPE in the 2018-2019, 2019-2020, and 2020-2021 SYs at the IEP meeting for each relevant SY - specifically, on November 15, 2017, November 7, 2018, and November 1, 2019 (Ex. DOE-2, DOE-3, DOE-4). While the IEPs were developed in the middle of the previous SY and the District had the opportunity to revise the program before the start of the new SY, there was no evidence that the District did so. As the IEPs continued to be in effect at the beginning of the next SY, I find that the latest date by which Parent knew or should have known of the District’s alleged failure to provide Student a FAPE was the start of each SY at issue, or July 1, 2018, July 1, 2019, and July 1, 2020, respectively.
In making this determination, I am mindful that the burden is on the District to show when Parent knew or should have known about the District’s alleged denial of FAPE. Although the District submitted a number of documents into evidence, including the IEPs for all the SYs at issue, the District’s only witness, Teacher, was not a participant in any of the IEP meetings held for the 2018-2019, 2019-2020, or 2020-2021 SYs and could not testify about the information that was presented in the IEPs (Tr. at 94). As such, I have sought to determine the KOSHK date based on a preponderance of the evidence which includes all the documents on record as well as the testimonies of Parent’s witnesses.
Parent testified that she attended every single IEP meeting that the District had held for Student (Ex. P-G-1). At every meeting, she was told that his teachers reported that “he’s doing fine and nothing additional needs to happen” and that “everything that can be done, is being done” (Id.). Parent testified that it was only as Student’s graduation was approaching that she had Provider conduct an ABA Assessment on Student and she was “shocked to find out that he was extremely far behind where he was supposed to be and that he did not have the basic skills necessary to succeed in his post-graduation life” (Id.). Parent was told by Provider that Student could have been receiving ABA therapy for his entire education in non-public schools (Id. at 2). Parent testified that “I feel as if I have been lied to by his school” and that she was misled to believe Student was making progress and “kept in the dark” about what the school should have been doing for Student (Id.).
Parent’s primary argument was that the District misrepresented Student’s progress to her year after year. However, a review of the hearing record shows that there were indications that Parent knew or should have known that Student made little or no progress at all during the relevant SYs. Parent testified that she attended all of Student’s IEP meetings and received the IEPs (Ex. P-G-1; Tr. at 128-129). The IEPs for the 2018-2019 through the 2022-2023 SYs show that Student was assessed to be functioning at a preKindergarten level in both math and reading for each SY (Ex. DOE-2-24, DOE-3-28, DOE-4-28, DOE-5-30, DOE-6-25, P-E-28). In addition, as Parent’s Representative acknowledged in his closing brief, the IEPs themselves were “replete with examples of failures to make progress” and cited to multiple examples in which the District simply repeated the same annual goals year after year (Ex. IHO-IV-5-7). I find that the fact that the annual goals were repeated year after year should have placed Parent on notice that Student was not making progress.
A review of the IEPs shows that the IEPs provided mixed reports of Student’s independent living functioning, which was the “disconnect” that prompted Parent to obtain an ABA assessment that led to the filing of this DPC (Tr. at 130-131). In the November 15, 2017 IEP, Student “need[ed] prompts to clean his face after meal[,] continue[d] to need step by step prompts to thoroughly wash his hands[,] require[d] prompting and constant supervision in the school and community environment due to his lack of safety awareness of his surroundings and difficulty with staying with the group” (DOE-2-4). It was noted that Student exhibited aggressive behavior but that Parent “has seen improvement in his behavior” and the OT therapist noted that Student was “better able to respond to redirection” (Id. at 2, 4). According to staff observation and discussion with Parent, Student “require[d] moderate assistance with activities of daily living including toileting, dressing, and bathing” (Id. at 2). Parent was also concerned about Student’s overeating (Id. at 5). In the November 7, 2018, November 1, 2019 and October 26, 2020 IEPs, Student required a 1:1 behavior paraprofessional due to his aggressive behavior as evidenced by screaming, hitting or grabbing staff, banging furniture, or wandering (Ex. DOE-3-3, DOE-4-3, DOE-5-2 & 6). In the October 26, 2020 IEP, Parent expressed concerns regarding Student’s vocational needs as he was transitioning from school into the community, his behavior at home, as well as regression of some skills during the COVID remote learning period (Ex. DOE-5-5 & 8).
The concerns noted in the IEPs are many of the same concerns that Parent shared with Evaluator at the time the ABA Assessment was conducted on May 8, 2023. During the assessment, Parent reported to Evaluator that Student “hits his head on a weekly basis” when he cannot communicate what he wants, “may smack others with an open hand, very hard, on a bi-weekly basis,” “engages in noncompliant behavior daily,” “has tantrums on a weekly basis,” breaks furniture while in a tantrum, “will eat non-stop,” “will hit and/or cry until he gets what he wants,” is unable to perform simple motor actions, is unable to wipe himself after a bowel movement, is unable to brush his teeth or take a shower independently, cannot dress himself independently, and that Parent “must tell [Student] to do each step of something” (Ex. P-B4-5). I find Parent’s statements to the Evaluator were consistent with what were reported in the IEPs for the 2018-2019, 2019-2020, and 2020-2021 SYs and demonstrate that Parent was aware of Student’s severe deficits and their impact on his daily living.
Parent further argued that the District’s failure to evaluate Student kept her in the dark about Student’s progress. To Parent’s knowledge, Student had not been evaluated since at least 2012 (Ex. P-G2). It was only after she obtained an ABA Assessment for Student that Parent was provided the contact information for an attorney, and for the first time found out that the District was supposed to be evaluating Student every three years (Id.). Parent alleged that the District never informed her of its obligation to evaluate Student (Id.).
Under the IDEA, a reevaluation must occur at least once every three years, unless the parent and the school district agree that a reevaluation is unnecessary.[19] The District presented a request for waiver, signed by Parent on April 25, 2021, to demonstrate that Parent waived her right to a triennial reevaluation under the IDEA. The document, in relevant part, reads:
The Department of Education (DOE) must conduct a reevaluation at least once every three years to determine a student’s continued eligibility for special education services.
According to our records, [Student] is due for a reevaluation. However, after a review of [Student’s] evaluative and educational information, the DOE has determined that a reevaluation is not necessary at this time.
The determination that the mandated three-year reevaluation is not necessary was made for the following reason(s): A new Annual Review has taken place this year therefore a Triennial Review is not needed at this time.
You have the right to disagree with this decision and request that a reevaluation be completed at this time. Regardless of your decision, please understand that the DOE maintains the responsibility for conducting an annual review of your child’s IEP.
If you agree with the DOE’s proposal not to conduct a reevaluation at this time, you must sign below and return this form…
If we do not receive this form by 04/28/2021 we will proceed with the reevaluation.
(DOE-9-1).
Questions were raised at the DPH whether the District misrepresented to Parent the reason for its determination that a reevaluation was not necessary at the time, and whether Parent fully understood that she was waiving her right to a triennial reevaluation when she signed this document. I address this asserted misrepresentation as well as the document Parent signed further below.
However, for the purpose of the SOL discussion here, I find that this signed waiver presented very clear language to inform Parent of the District’s obligation to conduct a reevaluation at least once every three years. Whether Parent ultimately agreed or disagreed with the District’s determination that a reevaluation was not necessary at the time does not negate the fact that she was informed of her rights.
Based upon the evidence on record, I find that Parent had sufficient information about Student’s lack of progress or areas of deficits at the time of each IEP meeting, or at the latest, by the start of each SY at issue, to put her on notice that the District might be denying Student a FAPE. As addressed earlier, I find that Parent knew or should have known of the District’s alleged failure to provide Student a FAPE no later than the start of each SY at issue, or July 1, 2018, July 1, 2019, and July 1, 2020, respectively. I also find that Parent knew or should have known about her right to a triennial reevaluation at the latest by April 25, 2021 and should have raised the failure to evaluate claim by April 25, 2023. Under either scenario, Parent’s claims for the 2018-2019, 2019-2020, and 2020-2021 SYs fall outside of the 2-year SOL and are untimely. [20]
However, my analysis does not end here, as both parties made arguments about the applicability of the two SOL tolling exceptions.
First, I address the first tolling exception, which was raised by both parties in their briefs on the motion to dismiss as well as their closing statements (Ex. IHO-I through IHO-IV).
Parent made several claims that the District “lied or grossly misrepresented” Student’s progress (Ex. IHO-II-4; Tr. at 151). The progress reports in the IEPs were either “negligently created” or “purposefully misleading” in that many of the IEP goals were repeated year after year. Despite the fact that Student did not make progress year after year, the IEPs noted that the Committee on Special Education (“CSE”) team “anticipate[d] meeting goal” or would leave progress blank, which concealed Student’s lack of progress (Ex. IHO-IV-4; Ex. DOE-2-13, 15; Ex. DOE-3-10-13, 20; Ex. DOE-4-12-19; Tr. at 151). Thus, Parent argued that the District either “knowingly misled” or “intentionally deceived” Parent by pretending that Student was making progress, all the while knowing his goals were repeated and he was not progressing” (Ex. IHOIV-7).
The IDEA does not define the term “misrepresentation.” Courts, however, have construed its meaning narrowly and require the parents to show an “intentional” or “knowing” misrepresentation by the school district that it has resolved the problem forming the basis of the complaint.[21] In this case, I find that Parent fell short of showing that the District’s representations that Student was making progress at the IEP meetings were intentional or knowing. A review of the IEP Progress Report sections shows that the District often noted that it anticipated Student to be meeting his goals when the same goals were repeated year after year while concurrently noting “little progress made” (e.g. Ex. DOE-2-13 & 15; DOE-3-10-20; DOE-4-11-20; DOE-5-22). While these goals were inappropriate and the District’s reports were inconsistent, which would have been relevant to whether the District’s offered a FAPE, but for SOL purposes, I find that the District was not concealing Student’s present level of performance at the time. For example, the District developed annual goals for Student to follow 2-step directions in the November 15, 2017 IEP, 1-3 step directions in the November 7, 2018 IEP, and 3-step directions in the November 1, 2019 (DOE-2-11, DOE-3-11, DOE-4-13), while Teacher conceded that Student currently can only follow one-step directions (Tr. at 111). But throughout the IEPs from the 2018-2019 through the 2020-2021 SYs, there were reports that Student could only follow 1-2 step directions (See DOE-2-4 & 7; DOE-3-2 & 5; DOE-4-3 & 5; DOE-5-7). As such, to the extent that the District made inconsistent statements in reporting Student’s progress and developing his annual goals, its action was more negligent, rather than intentional or knowing.
Parent additionally argued that prior to Student’s graduation in June 2023, Student received awards for self-advocacy and home economics, “both of which, if he had those skills that the school is awarding him, he would have been accepted into a day-hab program” (Tr. at 130-131). Parent testified that there was a “disconnect” between the fact that Student was not accepted into an adult day program and the fact that the District was giving Student awards (Tr. 131). I do not find that the purpose of giving students such awards is to provide an accurate assessment about the students’ present level of performance or progress to family members, as opposed to recognizing students for their hard work and providing positive reinforcement. As such, I do not find the District’s action in issuing Student those awards rose to the level of a misrepresentation as contemplated by this exception.
Further, Parent argued that the District “lied or grossly misunderstood” the law regarding triennial reevaluation (Tr. at 151). On cross-examination regarding how the District determined that a triennial reevaluation was not necessary in April 2021, Teacher testified that “[w]hat happened is the teacher, at that time, conducted an annual review. When the three-year annual review was up, the school psychologist determined, under the DOE's flexible assessment procedures, that a triennial was not needed at this time, which is why that waiver letter was sent out” (Tr. at 98). When asked by Parent’s Representative “[a]nd because a new annual review happened, because an IEP meeting happened, the school determined that the evaluation does not need to occur; is that fair to say?” Teacher responded “Yes, that's essentially what was done by the school psychologist” (Tr. at 105).
Parent testified that she signed the April 25, 2021 document waiving her right to a triennial reevaluation because “I understood that they were replacing a let's-wait-every-three-years-to-evaluate-him, and they were replacing it with an annual one. When I saw the sentence, a new annual review has taken place this year, IEP…and then annual review thrown in instead of the word IEP, made me think this was something different than an IEP. They are also doing an annual review. So I don't need to wait, let's say, three years, or I'm not going to -- they're not going to -- they are not going to wait three years to do it. So I'm thinking, yes, of course, as a parent, you would want an annual rather than waiting three years” (Tr. at 142).
I find that Teacher’s explanation of the waiver conflated the District’s responsibility to conduct an annual IEP meeting[22] with its obligation to conduct a triennial reevaluation.[23] The reason the District put forth for why it determined that a triennial was not necessary at the time was not valid as it represented a misstatement of the law. As such, I find Parent did not waive her right to a triennial reevaluation, and that the District maintained the responsibility to conduct a reevaluation at the time.
However, I find that the language of the waiver, on its face, clearly informed Parent that the District has an obligation under the law to conduct a triennial reevaluation. Based on Parent’s testimony, I also find that she understood that obligation. However, she was led to believe that the District was proposing to replace the triennial reevaluation with an annual one (Tr. at 142).
While I find the District’s reason for foregoing the triennial reevaluation to be inaccurate, confusing, and negligent, I do not find that it rose to a level of intentional or knowing misrepresentation. Nor was it a misrepresentation that the District had resolved the problem forming the basis of the complaint, causing Parent not to file a DPC. As I find that Parent understood that the District had an obligation to reevaluate Student, whether every three years or as she believed, annually, when the District failed to meet its obligation to evaluate, Parent was not prevented from filing a DPC. When asked if she ever requested any evaluations to be done on Student since 2012, Parent testified, “No, I didn’t request any more because I didn’t think it was needed. I thought, again, since there was no alarming phone call, no letters saying he doesn’t belong here, he belongs, you know, in an even smaller setting so that he can get on in life or anything like that, I thought, okay, this is all correct” (Tr. at 143). Thus, the reason why Parent did not request updated evaluations was not due to the District’s request for waiver letter, even though it incorrectly noted the reason for determining that a triennial reevaluation was unnecessary, but because Parent did not believe one was needed.
Based on the foregoing, I find that the first tolling exception – i.e. specific misrepresentation – does not apply.
As to the second tolling exception – that the District withheld notice of procedural safeguards as required under the IDEA – I find this exception is not applicable. The record reflects that the District provided Parent a PWN soon after each IEP meeting at issue with instructions to download a copy of the Procedural Safeguards Notice on the District’s website or to request a copy from a named District staff member (Ex. DOE-1-3, 6, 11). Parent testified that she received a copy of the PWN shortly after each IEP meeting, but she did not recall downloading a copy and she did not try to contact the District staff member to request a copy (Tr. at 128, 145-146). Parent did not present any evidence that the District had withheld the PWNs or Procedural Safeguards Notice from her. As such, I find that the second tolling exception does not apply.
As neither tolling exception applies, Parent’s claims in the DPC relating to the 2018-2019, 2019-2020, and 2020-2021 SYs are time-barred by the SOL.
[IV] Denial of FAPE for the 2021-2022 and 2022-2023 SYs
The IDEA provides that children with disabilities are entitled to a FAPE.[24] 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. [25]
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.[26] In order to meet its substantive FAPE obligations, a school 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.”[27] 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.” [28]
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. [29]
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. [30]
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."[31] However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.”[32] “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.”[33] The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” [34]
The District argued that it had provided a FAPE to Student for the 2021-2022 and 2022-2023 SYs in that the District: (1) developed a valid IEP for Student prior to the start of each SY; (2) implemented the IEPs; and (3) conducted various assessments on Student (Ex. IHO-III-3).
The District called only one witness, Teacher, to testify at the DPH. Teacher testified that he had known Student since 2018, as Teacher personally worked with Student as a substitute teacher on “multiple” occasions at the DOE school that Student attended prior to his graduation (Ex. DOE-15-1; Tr. at 87-88). In addition, Teacher also served as a special education coordinator and participated in meetings for Student, including an IEP meeting that took place in June 2023 immediately prior to Student’s graduation (Ex. DOE-15-1; Tr. at 88, 92).
Teacher conceded that he was not a participant in the IEP meetings held for the 2021-2022 and 2022-2023 SYs (Tr. at 94). His testimony about the IEPs that were in place for Student at the start of the 2018-2019 through 2022-2023 SYs was based on his review of the IEPs and his understanding as to how IEPs are developed in general, and not based on any actual knowledge of the circumstances at the time of the IEP meetings (DOE-15-2; Tr. 94-95). I find that Teacher’s testimony generally summarized the IEPs’ program and service recommendations, and accommodation and management needs, but offered no specific, cogent or responsive explanation as to how the program or related services recommendations were made, whether the CSE team had the necessary evaluative data to inform its recommendations, or whether the annual goals and present levels of performance were appropriate (Ex. DOE-15-2-7). Similarly, Teacher’s testimony about the implementation of the IEPs was based on a review of the teacher reports that were documented in the IEPs and not from personal knowledge (Id. at 5-6). Although his written testimony stated that specific methodologies such as ABA may be used with a student who is autistic, on cross-examination, he could not say if such methodologies were actually used in Student’s case (Ex. DOE15-5-6; Tr. at 95-96).
As the District did not call any other witnesses who could provide a “cogent and responsive” explanation as to how the District provided Student a FAPE for the 2021-2022 and the 2022-2023 SYs, I have sought to determine if the programs provided for those SYs were reasonably calculated to enable Student to make progress appropriate in light of his circumstances, based on a preponderance of the evidence which includes all the documents on record as well as the testimonies of Parent’s witnesses. In making this determination, I am mindful that school districts are not required to “maximize” the potential of students with disabilities,[35] but must provide “an IEP that is likely to produce progress, not regression, and ... affords the student with an opportunity greater than mere trivial advancement.”[36] The IEPs must have been “reasonably calculated to provide some ‘meaningful’ benefit.” [37]
Under the IDEA, a reevaluation of a student with disability must occur at least once every three years.52 In conducting the evaluation, the school district must use a variety of tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, to determine the content of the student's IEP.53 The evaluation must be sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the disability category.54
As already addressed under the SOL analysis, Student made no progress at all in his functional reading and math levels in the 2021-2022 and 2022-2023 SYs as he remained in pre-kindergarten level (Ex. DOE5-30, DOE-6-25). The District also continued to repeat the same annual goals as previous years, often noting “little progress made” while anticipating Student to meet the annual goals (compare DOE-5-12 with DOE-6-17, DOE-5-20 with DOE-6-9 & P-E-18, DOE-5-15 with P-E-14, and DOE-5-19 with P-E-16).
At the October 26, 2020 IEP meeting, Parent expressed concern regarding Student’s behaviors at home, as well as the regression of skills during the COVID remote period, yet there is no evidence that the District provided compensatory services or modified Student’s program or related services recommendations to address the regression (Ex. DOE-5-8, compare DOE-5-24 and DOE-4-21).
Despite Student’s persistent lack of progress, the District has made little effort 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.”55 For each relevant SY, the District continued to offer more of the same ineffective program, and failed to explore different settings or intensity of services. Even though Teacher testified that the District may offer specific methodologies such as ABA, there is no evidence in the record that the District actually considered offering ABA to Student (Ex. DOE15-5-6). In fact, the October 22, 2021 IEP inexplicably removed group OT sessions without the support of evaluative data, even though Student continued to struggle with behavior and self-regulation (Ex. DOE-6-
6 & 7).
The District did not present any evidence to challenge Parent’s claim that Student has not been comprehensively evaluated in all areas of his suspected disability since 2012. The only assessments in the record were the Psychological Update conducted by the District on January 12, 2012 and the Speech/Language Evaluation conducted by the District on January 9, 2012 (Ex. P-C; P-D). As the District’s own record shows, Student had been receiving SLT, OT and PT services since at least 2012, yet there have been no evaluations on file assessing his needs in these areas.
While the IEP for each relevant SY listed results of Student’s SANDI assessments and teacher and related service provider reports, these sources failed to provide comprehensive evaluative data to determine the nature and extent of Student’s cognitive, academic, and social-emotional functioning or explain why Student was not making progress.
Despite Student’s lack of meaningful academic progress, the record shows that the District failed to fully and comprehensively evaluate Student in every area of Student’s suspected disability. Without comprehensive and up-to-date evaluative data to inform its action, the District could not possibly determine Student’s present levels of performance and what Student was capable of achieving in the classroom, sufficiently identify all of Student’s special education and related services needs, create specific measurable goals, and recommend appropriate type and level of services. Without evaluations assessing all of Student’s areas of suspected disability, the District deprived Parent of her ability to participate meaningfully in the development of Student’s educational programs. As such, I find that the IEPs developed were not reasonably calculated to enable Student to make meaningful educational progress.
While the District attempted to demonstrate that Parent had waived her right to the triennial reevaluation in April 2021, for the reasons stated above, I find that the waiver contained misstatement of the law and therefore vitiated Parent’s true consent to waive. As such, the District maintained the responsibility to conduct a reevaluation at the time. However, even assuming the waiver was valid, the District presented no witness testimony to explain the basis for which the District had determined that a reevaluation was not necessary in the first place in light of Student’s severe disabilities and the lack of any evaluative data since 2012. Teacher’s explanation that because an annual IEP meeting had just taken place and as such, a triennial reevaluation was not necessary conflates the District’s two separation obligations under the IDEA (Tr. at 101). As such, the District had no valid basis for determining that a triennial reevaluation was not necessary. The IEPs developed during the 2021-2022 and 2022-2023 SYs were not reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, given the lack of evaluative data resulting from the District’s failure to have conducted a triannual evaluation when due, or during subsequent SYs.
Although not the Parent’s obligation in the first place, I find Parent has presented clear and uncontroverted evidence that the District failed to provide a FAPE. In the face of overwhelming evidence of Student’s persistent lack of progress, the District’s ongoing failure to comprehensively reevaluate Student in all areas related to Student’s disability, actual and suspected, and its continued failure to address Student’s needs, deprived Student of a FAPE and resulted in Student being denied educational benefits. Under these circumstances, I find that there was a denial of a FAPE for the 2021-2022 and 2022-2023 SYs.
[V] Appropriate Remedies: Compensatory Services The IDEA requires states to make a FAPE available to children with disabilities between the ages of 3 and 21 inclusive.[38] New York law specifically provides IDEA eligibility to children through the end of the school year in which they turn 21.[39] In general, under the IDEA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one."[40] Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]."[41] The IDEA’s protections and benefits include, of course, the right to a FAPE and an annual IEP. However, the Second Circuit has held that, compensatory education may be awarded to students who are ineligible for services under the IDEA by reason of age or graduation only if the district committed a “gross violation” of the IDEA, which resulted in the denial of, or exclusion from, educational services for a substantial period of time. [42]
The relief requested by Parent is equitable in nature as Parent is asking the IHO to devise an appropriate remedy to address the deprivation resulting from the District’s failure to provide Student with a FAPE for the five SYs at issue. Specifically, at the DPH, Parent requested the IHO to order the following relief: (1) 10,400 hours of 1:1 ABA therapy; (2) 120 hours of PCAT; (3) 240 hours of Board Certified Behavior (“BCBA”) supervision (Ex. IHO-IV-14).[43] In Parent’s Closing Brief, Parent further seeks compensatory services for the following related services: (1) 230 hours of OT; (2) 345 hours of SLT; and (3) 230 hours of PT (Ex. IHO-IV-14). [44]
The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.”[45] As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.”[46] 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.” [47]
An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education.[48] The Second Circuit has stated, “[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.”[49] 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.”[50] Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[51] 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.’”[52] “If the IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.” [53] Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” [54]
There are generally two approaches to fashioning a compensatory education award. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the deprivation of a FAPE (in which a student is entitled to compensatory education for a period equal to the period of such deprivation).[55] Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the deprivation of a FAPE (with the compensatory award being the specific services needed to correct those deficits). [56]
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.”[57] 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.” [58]
There is additional authority that also bears mentioning in the context of the relief sought, namely: “Indeed, an award ordered without considering the nature of the FAPE violation to be remedied and the impact of the award on the child's educational needs could ultimately do more harm than good for a student.”[59] The purpose of compensatory education is neither to punish the District[60] nor to “maximize the student's potential or to guarantee that the student achieves a particular grade-level in his areas of need. Thus, it would, for certain, be a pyrrhic victory if the delivery of an award of compensatory educational services only served to overwhelm the student or outpace the student's ability to make progress.” [61]
Under New York law, the District has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA.[62] 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 District’s failure to provide the Student with a FAPE for the years at issue. [63]
Based on the District’s failures addressed above, I find that the District committed a gross violation of the IDEA resulting in a denial of a FAPE for the 2021-2022 and 2022-2023 SYs. As such, I find that compensatory education is an appropriate remedy to compensate for the violations that occurred before Student aged out of the public education system, denying Student a FAPE.
Compensatory ABA, BCBA, and PCAT services
Parent identified the specific remedy Parent is seeking and has provided documentary evidence and testimony in support of her request for compensatory ABA services.
Clinical Director testified, in relevant part, to the following:
Clinical Director is the founder, president and chief executive clinical director of Provider (Ex. P-H-2). Clinical Director holds Master’s Degrees in forensic psychology and early childhood general and special education, and a Doctorate in clinical psychology (Id. at 1). Clinical Director holds an advanced graduate certificate in ABA and has been a BCBA since 2004 (Id. at 1). Clinical Director is certified as a Board Certified Behavior Analyst-Doctoral (“BCBA-D”) and a New York State (“NYS”) Licensed Behavior Analyst (“LBA”) (Id. at 2).
Provider is an agency that specializes in providing ABA consultations, evaluations, and behavior analytic support services to children with autism spectrum disorders (“ASD”) and other developmental disabilities (Id.). It also performs BCBA supervision and provides parent training services (Id.).
As part of his responsibilities, Clinical Director conducts classroom and home-based observations, formally assesses students, and provides direct 1:1 ABA services at home to students with ASD (Id.). Clinical Director also develops recommendations and educational plans for students receiving services (Id.). Clinical Director supervises and coordinates all the clinical services delivered by Provider including overseeing the LBAs and BCBAs who conduct ABA services (Id. at 2-3).
On May 10, 2023, Evaluator, who is Clinical Director’s partner, conducted an in-person ABA Assessment of Student to determine Student’s functioning and needs (Id. at 4, Ex. P-B). A direct observation and direct interview with Parent as well as the Assessment of Basic Learning & Language Skills-Revised (“ABLLS-R”) were conducted in the home to evaluate Student’s abilities in domains such as cognitive functioning, speech/language and communication, social-emotional, motor skills, and adaptive functioning (Ex. P-B-2). Evaluator also reviewed Student’s IEPs as part of the assessment (Tr. at 61). Clinical Director reviewed the assessment, concurred with its final conclusion and recommendations, and signed the report (Ex. P-H-4, P-B).
According to the assessment, Student displays symptoms of ASD that have been found to interfere with learning across multiple settings (Ex. P-B-6). Student presents with underdeveloped skills in generalized imitation, speech/language and communication, receptive and expressive language, cognitive abilities, play and social skills, motor skills, and adaptive and self-help skills (Ex. P-B-2-5). Student was non-verbal and engaged in vocal stereotypy (Id. at 2). Student used a GoTalk20+ to communicate in school but did not use it effectively at home (Id. at 2-3). Parent reported that Student engages in self-injurious behavior when he cannot communicate what he wants (Id. at 3). Student also reportedly smacks others with an open hand, very hard, on a bi-weekly basis, engages in noncompliant behavior daily, and has tantrums on a weekly basis, sometimes breaking furniture and appliances (Id. at 4).
During the assessment, Student was observed to be unable to perform simple motor actions, manipulate toys, trace simple lines or shapes, hold a writing tool in a tripod grasp, or manipulate scissors (Id. at 4-5). Parent further reported that Student is unable to independently perform basic activities of daily living such as wiping himself or washing his hands after using the bathroom, brushing his teeth, taking a shower, and dressing himself (Id. at 5).
Parent further reported to Evaluator that she never received training to use the assistive technology device to communicate in the home, nor did she receive parent training in the home to address Student’s self-injurious behaviors, lack of communication, or self-help skills (Id. at 3, 5).
Based on the assessment, Evaluator, among other things, highly recommended that Student receive an additional two years of placement within an educational setting along with intensive 1:1 ABA services to address his deficits across the multiple domains and help generalize acquired skills across multiple learning environments (Id. at 6). The goal of the individualized 1:1 learning opportunities would be to increase on-task behavior in order to develop skills Student requires to enter adulthood (Id.). As research has shown that children with ASD who receive up to 40 hours per week of 1:1 ABA services show higher gains and better overall functioning compared to children who do not receive this amount of ABA services, Evaluator strongly recommended that Student receive: (1) 40 hours per week of ABA services (30 hours per week of push-in ABA or in a center-based program that utilizes ABA for the entire school day and 10 hours per week at home); (2) an additional 10 hours per week of 1:1 ABA at home focused solely on lifeskills training (e.g. toileting, brushing teeth, bathing, dressing); (3) 4 hours per month of NYS LBA/BCBA supervision of the ABA services; and (4) 2 hours per month of parent training by a NYS LBA/BCBA to ensure the behavioral interventions are maintained in the home and community, and to promote active participation in addressing the noted deficits (Id. 6-8; Tr. at 76-78).
Clinical Director testified that Student requires the recommended level of services so that he has the opportunity to make academic progress but also to learn the skills necessary to have a safe life (Ex. P-H4). Student’s maladaptive behavior is impacting his learning and performance at home, in school, and in the community and therefore, a significant ABA mandate is necessary (Id. at 5).
Clinical Director testified that, if Student were to enroll in ABA Program, Student would receive full-day, one-to-one ABA services, from morning to evening, including a teacher arriving at his home in the morning to help Student get ready for school and to travel to the center together (Tr. at 62-63). The ABA strategies to be used include imitation training, mand training to teach Student how to request and communicate, training to learn receptive and expressive associations, discrimination training to teach him how to identify people and objects, and independence skills training (Tr. at 62-63, 68-70). ABA Program would address Student’s maladaptive, self-injurious, and aggressive behaviors by teaching him play skills and how to relate to others (Tr. at 70-71). Student would have one-to-one interaction that teaches him how to manipulate common environmental stimuli in a functional manner without errors, how to not injure himself, and how to stay engaged with the lesson with other peers (Tr. at 63).
Clinical Director further testified that he is unsure if ABA Program would be successful in getting Student to imitate sound or speech, as Student’s age makes it difficult for him to learn vocalizations compared to starting training at a younger age, “but I’m going to try really hard and try to get him to imitate and see where it goes” (Tr. at 71-73). However, Clinical Director has “complete confidence” that Student will learn to imitate hand and feet movements, communicate through pictures, identify many objects receptively, and to be independent when showering, toileting, grooming, dressing, and with food preparation (Tr. at 73).
Clinical Director testified that based on observation and the review of the IEPs, it appears that Student has not been making progress for several years (Id. at 4; Tr. at 74-75). The observation showed that Student has no communication repertoire, suggesting that Student has not been taught to communicate, which was the most severe finding (Tr. at 67, 75). In addition, Student has no imitation repertoire, which is common among children with ASD, but Clinical Director had expected Student to function at a higher level (Id.). Student’s association skills are at the pre-school level, and he is unable to identify any object receptively or expressively (Id.). Further, Student’s self-injurious behavior and lack of toileting skills were very severe (Id.). Because of the severity of Student’s deficits, Clinical Director testified that the Evaluator had enough data from the assessment and determined it was unnecessary to observe Student in a classroom as part of the evaluation process (Tr. at 61-62).
Clinical Director testified that Student should have been receiving ABA services the entire time he was being educated by the District. (Ex. P-H-5). Based on Student’s significant deficits and current overall functioning, he believes Student requires 6 years of services in a full-time 1:1 ABA center-based program, on a 52-week year (Id.). The rationale for a 52-week year was to prevent regression and non-engagement, and his experience is that children with this level of severity are typically recommended for a 52-week year (Tr. at 79-80).
Despite the District’s assertion that Student “made meaningful progress at school” (Ex. IHO-III-6), the hearing record established otherwise. As the District maintained that it provided Student a FAPE for the 2021-2022 and 2022-2023 SYs, it provided no evidence to dispute the appropriateness of Parent’s request for compensatory services to make up for the denials of a FAPE. In its closing statement, the District challenged the way the ABA Assessment was conducted without a classroom observation, the size of the recommended award, as well as the credibility of the recommendations due to the possible financial benefit Clinical Director could receive as a result of an award.
The District’s argument is not persuasive. The District’s argument that Student made meaningful progress is simply not supported by the evidence. While the District failed to demonstrate that it provided a FAPE for the SYs in question, it also failed to present testimony or evidence regarding the appropriate types or amount of compensatory services or any proposed remedy that would be appropriate if the District was unsuccessful. Other than general assertions, the District produced no competing evidence or any evaluation to contest Clinical Director’s recommendations. Thus, the District failed to meet its burden of proof regarding the appropriateness of a compensatory education award under the IDEA.
Further, I find the ABA Assessment to be an accurate assessment of Student’s current functioning and deficits. The District presented no challenge to the evidence-based recommendation that 40 hours per week of 1:1 ABA services have been shown to improve the functioning of children with severe autism (Ex. P-B-6). Additionally, I find Clinical Director to be a credible witness, as he has the requisite experience in providing ABA services to students with autism (Ex. P-H-2), strong knowledge of Student’s current functioning and needs (Tr. at 66-74), and has addressed how ABA Program would tailor instruction and services to remediate the denials of a FAPE and to teach Student the necessary skills to transition into adulthood (Tr. at 62-64, 66-74, 77-78; Ex. P-H-05). Furthermore, I find Clinical Director’s explanation of why a classroom observation was not required due to the severity of Student’s functioning to be reasonable (Tr. 61-62, 66-68).
The hearing record establishes that Student was not provided a FAPE for the 2021-2022 and 2022-2023 SYs. Furthermore, the uncontroverted testimony of Clinical Director and the documentary evidence support a finding that Student is entitled to compensatory services for the SYs in question. For the foregoing reasons, Parent’s request for compensatory ABA services is granted. The award is adjusted to reflect the two years remaining, given my finding on the SOL, for which Student was denied a FAPE, as follows: (1) 4,160 hours of 1:1 ABA therapy; (2) 48 hours of PCAT; and (3) 96 hours of BCBA supervision.
The award has an expiration period of three years to ensure that the compensatory award is carried out to remedy the deprivation of a FAPE and to allow Student to use the services at a time when it would be the most impactful for Student to gain the skills necessary to transition into adulthood.
Compensatory OT, SLT, and PT services
Although the DPC includes broad language to request that the IHO order compensatory education and services that “include, but are not limited to, ABA therapy, SLT, OT, academic tutoring, and any additional services[,]” neither party argued for or against or presented any information during the DPH that spoke to the appropriateness of compensatory OT, SLT, and PT services. In addition, the focus of the discussions of Parent’s requested relief at the status conference on July 10, 2023 was whether Student would be accepted into a full-time ABA center-based program (Tr. at 8). Parent’s Representative indicated that if Student was accepted, Parent would no longer be requesting extended eligibility for the District to continue to provide a school program for Student, as a compensatory ABA award would be sufficient to allow Student to receive full-time ABA services “for an entire school day…over the next number of years” (Tr. at 8-9). Parent’s Representative further clarified that if Student was accepted, Parent would be “seeking…a bank of hours that include ABA therapy and then supervision by a [BCBA], and potentially parent counseling and training. But there’s no tuition. [The center-based program] charge[s] everything on this hourly per service basis” (Tr. at 8-9).
On July 11, 2023, Parent’s Representative informed the District and this IHO via email that Student has been accepted into a center-based program and confirmed that Parent would be “asking for a bank of hours that will allow the student to receive services at ABA Program for a period of five years.” (Ex. IHOV-2-3). There was no mention of a request for any compensatory OT, SLT, or PT services.
In his opening statement at DPH, Parent’s Representative requested the following relief for each SY Student was denied FAPE: 2,080 hours of ABA services, 24 hours of PCAT, and 48 hours of BCBA supervision (Tr. at 53). At no point during the hearing did Parent request compensatory OT, SLT, and PT services.
In his Closing Brief, Parent’s Representative, for the first time, requested compensatory award for these related services. Specifically, Parent’s Representative argued that “the IHO expressed a concern” about Student’s potential need for PT, SLT, and OT, and proposed essentially a quantitative approach to calculating an award based on what Student was recommended to receive in his last IEP. As Student’s last IEP mandated 1 hour of OT and 1.5 hours of SLT per week, and Student “should have been mandated” 1 hour of PT per week, Parent requested compensatory related services for 5 years of FAPE deprivation on a 12-month or 46-week basis as follows: (1) 230 hours of OT; (2) 345 hours of SLT; and (3) 230 of PT (Ex. IHO-IV-14).
At the status conference on July 10, 2023, I made it abundantly clear that I expected the parties to present evidence on the appropriateness of a compensatory education award: “[A]t the hearing I would expect the parties to present some information to help me craft an award of compensatory education services if I were to decide that FAPE was denied. So just making it really clear that I would need some information to help me determine what, if any, would be the right amount of services to make the student whole, given the allegation that FAPE had been deni[ed] for quite some years” (Tr. at 11).
At the DPH, neither party presented any information on a compensatory OT, SLT, or PT award. While the District bears the burden to demonstrate the appropriateness of a compensatory award, Parent also has a responsibility to identify the specific remedy. Parent, in filing the DPC, had contemplated requesting compensatory services for related services (Ex. P-A-4). Parent had the opportunity to, but had determined not to, request such relief at the two conferences or the DPH or present any argument or information regarding Student’s deficits in these areas.
The purpose of a compensatory service award is to “aim to place disabled children in the same position they would have occupied but for the school district’s violation of IDEA.”[64] The hearing record shows that Student had been recommended to receive OT and SLT for the 2021-2022 and the 2022-2023 SYs (Ex. DOE-4, DOE-5-24, P-E-21) and there is documentary evidence that Student had been receiving such services (Ex. DOE-4-6-7 & 21-22, DOE-5-8 & 10, P-E-7-8, DOE-13, DOE-14). At the DPH, Parent did not raise any argument challenging the appropriateness of the related services Student was recommended to receive or their implementation, or the fact that Student had not been recommended to receive PT in the IEPs.
The record is devoid of evidence as to Student’s specific deficits in the areas of speech-language, OT, and PT resulting from the denial of a FAPE and the specific compensatory measures needed to correct those deficits.[65] Without any information as to what, if any, deficits in the OT, speech-language, or physical domains had resulted from the denial of a FAPE, and what, if any, services would be appropriate to compensate Student, I do not have sufficient information to fashion an award that is reasonably calculated to provide the benefits that Student should have received in the first place had a FAPE been provided.
Furthermore, at the DPH, when asked whether the 1:1 ABA therapy would address Student’s related services needs, Clinical Director stated:
[W]ould a speech therapist doing speech therapy benefit [Student] in addition to getting speech therapy from an ABA professional the way we would…do it, the mand training,… teaching him to point, point-look, point-look- imitate an oral motor movement like a lip movement, and then point-look and imitate a speech sound? Yes, ABA can do that, but in a parent's eyes and, you know, also conceptually, you could also say a speech therapist could also contribute with her way of doing it. So…[the 1:1 ABA services]…would work on a lot of OT, PT, and speech goals, so I could say with confidence that [the related services goals] would be worked on tremendously. Now, an argument could say, well, why shouldn’t he get two times OT, two times PT, two times speech? And my rebuttal to that is only an eval[ulation] can reveal that.
(Tr. at 81-82).
I give weight to Clinical Director’s testimony that 1:1 ABA therapy would simultaneously address Student’s SLT, OT, and PT goals, and I concur with his opinion that only evaluations would reveal whether additional SLT, OT, and PT would be necessary to compensate Student for what, if any, deficits might have resulted from the deprivation that occurred. To award additional SLT, OT, and PT compensatory services, given Clinical Director’s testimony and the ABA hours being awarded would, under these circumstances be duplicative, punitive to the District, and “ultimately do more harm than good” for Student. [66]
For the foregoing reasons, Parent’s request for compensatory SLT, OT and PT services is denied.
Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that, the DOE shall fund the following compensatory services for Student, which may be provided during the school year or during the summer (July and/or August), on weekdays, weekends, on holidays, or during school vacations, by duly New York State licensed providers of the Parent’s own choosing at the reasonable market rate:
a) 4,160 hours of 1:1 ABA therapy.
b) 48 hours of PCAT.
c) 96 hours of BCBA supervision.
2. FURTHER ORDERED that, the bank of compensatory services set out in #1 of this Order shall not expire until the expiration of three (3) years from the date of this Order.
3. FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby ordered within 15 (fifteen) days.
SO ORDERED.
DATED: September 15, 2023
/s/ Peggy K. Chan
Impartial Hearing Officer
Peggy K. Chan
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A – REDACTION IDENTIFICATION PAGE
REDACTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
redacted
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[3] 34 C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq.
[5] 8 NYCRR § Part 200.
[6] Student turned REDACTED during the 2022-2023 SY and graduated at the end of the 2022-2023 SY (Tr. at 92).
[7] NYS Educ. Law § 4404(1)(c).
[8] Letter to Cohen, 67 IDELR 217 (OSEP 2015); see also Dispute Resolution Procedures Under Part B of the Individuals with Disabilities Act, 61 IDELR 232, Question D-17 (OSEP 2013); Analysis and Comments to the Regulations, Federal Register, Vol. 71, No. 156, Page 46704 (August 14, 2006); Letter to Baglin, 53 IDELR 164 (OSEP 2008); Friendship Edison Pub. Charter Sch. v. Smith, 561 F. Supp. 2d 74, 75 (D.D.C. 2008) (finding that the hearing officer erred in excluding relevant evidence from a resolution session); Application of a Student with a Disability, Appeal No. 13-185 (“relevant information relating to the resolution process are not confidential and may be admissible in an impartial hearing”).
[9] 20 U.S.C. § 1415(b)(6)(B); 34 C.F.R. § 300.507(a)(7).
[10] 8 NYCRR § 200.5(j)(1(i).
[11] K.H. v. New York City Dep't of Educ., 2014 U.S. Dist. Lexis 108393 at 51 (E.D.N.Y. Aug. 6, 2014).
[12] 20 U.S.C. 1415(f)(3)(C); see also 20 U.S.C. § 1415(b)(6)(B); Education Law § 4404(1)(a); 34 C.F.R. § 300.507(a)(2); 34 C.F.R. § 300.511(e); 8 NYCRR § 200.5(j)(1)(i); Somoza v. New York City Dept. of Educ., 538 F.3d 106, 114-15 & n.8 (2d Cir. 2008).
[13] K.C. ex rel. J.C.T. v. Chappaqua Cent. Sch. Dist., 218 WL 475965 at 14 (S.D.N.Y. 2018); K.H. v. New York City Dep't of Educ., 2014 WL 3866430, at *16 (E.D.N.Y. Aug. 6, 2014).
[14] K.H., supra; 8 NYCRR §200.5(j)(1)(i).
[15] D.K. v. Abington Sch. Dist., 696 F.3d 233, 246 (3d Cir. 2012); see also Ms. S. v. Regional Sch. Unit 72, 65 IDELR 140 (D.C. Maine 2015), 916 F.3d 41, 73 IDELR 223 (1st Cir. 2019) (suggesting that the parent would need to show an intentional misrepresentation by the school district); I.H. ex rel. D.S.v. Cumberland Valley Sch. Dist., 842 F. Supp. 2d 762, 775 (M.D. Pa. 2012) (“[A]t the very least, a misrepresentation must be intentional in order to satisfy [this exception].”); In re Educ. Assignment of C.C., Spec. Ed. Op. No. 1866, at 10 & n.64 (Mar. 5, 2008) (“the alleged misrepresentation…must be intentional or flagrant rather than merely a repetition of an aspect of the FAPE determination.”).
[16] 8 NYCRR § 200.5(f)(3); see also 34 CFR. §300.504.
[17] See 20 U.S.C. § 1415(f)(3)(D); 34 CFR § 300.511(f); Educ. Law § 4404(1)(a); 8 NYCRR 200.5(j)(1)(i); R.B. v. Dept. of Educ., 2011 WL 4375694, at *6-7 (S.D.N.Y. Sept. 16, 2011).
[18] See e.g. R.B., 2011 WL 4375694, at *4, *6; D.K., 696 F.3d at 246; see also 20 U.S.C. § 1415(b)(3), (d); 34 CFR § 300.503; 34 CFR § 300.504; 8 NYCRR § 200.5(a), (f).
[19] C.F.R. § 300.303(b)(2); 8 NYCRR § 200.4(b)(4).
[20] In addition, even taking into account the COVID tolling period, the claims for the 2018-2019, 2019-2020, and 2020-2021 SYs would still be time-barred.
[21] See, e.g. Ms. S. v. Regional Sch. Unit 72, 65 IDELR 140 (D.C. Maine 2015), 916 F.3d 41, 73 IDELR 223 (1st Cir. 2019) (suggesting that the parent would need to show an intentional misrepresentation by the school district); D.K. v. Abington Sch. Dist., 696 F. 3d 233, 59 IDELR 271 (3d Cir. 2012) (holding that, in order to be excused from the statute of limitations period under misrepresentation exception, parents must show that the school district "intentionally misled them or knowingly deceived them regarding their child's progress"); Coleman v. Pottstown Sch. Dist., 983 F. Supp. 2d 543, 62 IDELR 105 (E.D. Pa. 2013), aff'd, 581 F. App'x 141, 64 IDELR 33 (3d Cir. 2014) (unpublished) (same).
[22] 34 C.F.R. § 300.324(6)(1)(i)
[23] 34 C.F.R. § 300.300.303.
[24] See 20 U.S.C. § 1400 (d)(1)(A).
[25] See 20 U.S.C. § 1401(9).
[26] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[27] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[28] Id. at 1002.
[29] 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).
[30] 20 U.S.C. § 1415(f)(3)(E)(i).
[31] Rowley, 458 U.S. at 203.
[32] Walczak v. Florida Union Free School Dist., 142 F.3d 119, 130 (2d Cir. 1998); Rowley, 458 U.S. at 189.
[33] Endrew F., 137 S. Ct. at 1001.
[34] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 (2d Cir. 1989).
[35] Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Central School Dist., 346 F.3d 377, 379 (2d Cir. 1998); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).
[36] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[37] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
[38] 20 U.S.C. § 1412 (a)(1)(A).
[39] N.Y. Educ. Law § 4402(5).39 See also N.Y. Educ. Law § 4401(1); 8 NYCRR 200.1(zz).
[40] Mrs. C. v. Wheaton, 916 F. 2d 69 (2d Cir. 1990).
[41] Honig v. Doe, 484 U.S. 305, 318 (1988); see Cosgrove v. Bd. of Educ., 175 F. Supp. 2D 375 (N.D.N.Y. 2001).
[42] See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 n.15 (2d Cir. 2015); French v. New York State Dep't of Educ., 476 Fed. App’x 468, 471 (2d Cir. Nov. 3, 2011); Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071, 1078-79 (2d Cir. 1988), aff'd on reconsideration sub nom. Burr v. Sobol, 888 F.2d 258 (2d Cir. 1989); Cosgrove v. Bd. of Educ. of Niskayuna Cent. Sch. Dist., 175 F. Supp. 2d 375, 387 (N.D.N.Y. 2001).
[43] The bank of hours is based on Evaluator’s recommendation that for every year Student was denied a FAPE, Student should be entitled to: (1) 2,080 hours of 1:1 ABA therapy (40 hours of ABA therapy per week on a 52-week basis); (2) 24 hours of PCAT; and (3) 48 hours of BCBA supervision (Ex. IHO-IV; Tr. at 153-154).
[44] The breakdown of hours for the denial of a FAPE for each SY is as follows: (1) 46 hours of OT; (2) 69 hours of SLT; and (3) 46 hours of PT.
[45] 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).
[46] Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015).
[47] Doe v. East Lyme, 790 F.3d at 454.
[48] E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014).
[49] P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[50] Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008).
[51] Doe v. East Lyme, 790 F.3d at 454.
[52] Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005).
[53] See Id. at 522.
[54] See Id. at 518.
[55] See, e.g., M.C. v. Cent. Reg'l Sch. Dist., 81 F.3d 389, 23 IDELR 1181 (3d Cir. 1996); Manchester Sch. Dist. v. Christopher B., 807, F. Supp. 860, 19 IDELR 389 (D.N.H. 1992).
[56] See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005).
[57] 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).
[58] Doe. v. East Lyme, 790 F.3d at 457.
[59] See M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 (S.D.N.Y. Mar. 30, 2017) ("Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity").
[60] See C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 (3d Cir. Sept. 27, 2010).
[61] See Application of the Bd. of Ed. of the S.C.S.D, Appeal No. 21-065.
[62] Education Law § 4404(1)(c).
[63] 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).
[64] Reid, 401 F.3d at 518 (Compensatory education is "replacement of educational services the child should have received in the first place.")
[65] See JKG, 2021 WL 1122526, at *8; Butler v. Dist. of Columbia, 275 F. Supp. 3d at 5.
[66] See M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8; C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x at 828.