NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 248595 Student’s Name: [REDACTED] School District: N.Y.C. Dept. of Ed., District # [REDACTED] Impartial Hearing Officer: Roberta Wolf Date of Filing: 05/26/2023 Hearing Requested by: Parent Date of Hearing: 07/11/2023 Record Close Date: 08/30/2023 Date of Decision: 08/30/2023 Time Sensitive: No Case No. 248595
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 11, 2023:
(DOE): — DOE
[REDACTED], Representative — DOE
[REDACTED], School Psychologist — DOE
[REDACTED], Advocate — Student
[REDACTED], Parent-Father — Student
[REDACTED], Program Coordinator at State-Approved Non-Public School — Student
BACKGROUND
On May 26, 2023, the Parents, on their own behalf, filed a due process complaint (DPC)
against DOE on behalf of the Student, under Case No. 248595, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)) and Section 4404(1) of the New York State Education Law (Education Law). [1]
In the DPC, the Parents assert that DOE failed to provide the Student with a free appropriate public education (FAPE) for the 2023-2024 school year when its Committee on Special Education (CSE) failed to recommend for him for an appropriate Kindergarten program that implemented Applied Behavior Analysis (ABA) therapy.2 Additionally, DOE provided the Student with an unsafe school placement.3 In relief, the Parents seek the Student’s continued placement at the State-Approved Non-Public School (NPS) where he attended preschool for the 2022-2023 school year.4 The Parents also seek 680 hours of ABA therapy, to be administered by the provider of their choosing at market rate and with no expiration date, as compensatory education for unimplemented services during the 2020-2021 school year and for DOE’s failure to recommend ABA in the first instance for the 2021-2022 school year.5
I was appointed impartial hearing officer (IHO) on May 30, 2023; conducted prehearing conferences on June 29, 2023, and July 24, 2023; and adjudicated a due process hearing on August 16, 2023. At the hearing, DOE relied on documentary and testimonial (live and affidavit form) evidence to establish that the Student’s IEP for the 2023-2024 school year provided him with a FAPE. DOE also moved to dismiss the Parents’ claim for compensatory relief that relied on unimplemented services during the 2020-2021 school year as both time-barred by the statute of limitation, and claim-barred because the Student received the services via the City’s Early Intervention (EI) program, when DOE bears no obligation to provide a FAPE. In the alternative, DOE argued that if the Student received an award for ABA services, any hours should expire within one year of the date of the Order. In response to DOE’s motion to dismiss, Parents’ Advocate argued that the Parents’ claim for unimplemented services from the 2020-2021 school year was not time-barred because DOE issued internal guidance urging IEP teams to consider providing compensatory education to students who did not receive services during the COVID pandemic and DOE never complied with that guidance. The Parents similarly proffered documentary and testimonial (live and affidavit form) evidence. All exhibits were entered into the record, a list of which is appended to this Order.
FINDINGS OF FACT
The Student is now [REDACTED] years old and his eligibility for special education supports and services is not in dispute. In 2019, when the Student was [REDACTED] months old, he was referred for a psychological evaluation through the City’s EI program and diagnosed with autism spectrum disorder (ASD). 6 The evaluator recommended that the Student receive ABA therapy and assessments for speech and language, occupational, and physical therapies (SLT, OT, PT). 7 The evaluation consisted of six pages.8 Regarding ABA therapy, the evaluator stated in total:
[The Student] is recommended to receive ABA therapy aimed at: a. Developing greater capacity for shared attention and engagement – use facial emotional, verbal and gestural
6 Ex. B5. 7 Ex. B6. 8 Ex. B.
animation to join [the Student], get his attention and sustain the interaction for as long as possible; b. Supporting the emergence of language functioning; c. Supporting the development of initiative in language use and social reciprocity; d. Supporting the emergence of functional and later symbolic/pretend play.9
EI began providing the recommended services within a few months,[10] including 10 weekly hours of ABA,[11] and continued them until March 2020 when the Student’s school closed due to the COVID pandemic.12 At that time, the Parents lost the ABA provider and a subsequent provider did not resume services until April 2021.13 However, the second provider administered
ABA remotely and the Student received no benefit due to his inability to focus his attention in that environment.14
On March 4, 2021, when the Student was about to turn [REDACTED] years old, the CPSE convened to create an IEP for the 2021-2022 preschool year.[15] The Student’s Mother attended the meeting.16 The CPSE recommended that the Student be placed in a Special Class with a student-to-teacher ratio of 8:1:2 (i.e., eight students, one teacher, and two assistant teachers)
plus SLT, OT, and PT for the extended 12-month school year.[17] The 2021 IEP identified the Student’s need for “verbal, visual and physical prompts during instruction to address [his]
attending, cognition and communication skills,” “[s]mall group instruction,” “[r]edirection during . . . activities to increase his focus and attention,” “[o]pportunities for reciprocal play to facilitate purposeful interactions with peers,” “[r]epetition and verbal models to increase his receptive, expressive and pragmatic language skills,” and “[o]pportunities for motor activities to provide input and hand over hand prompting to address motor and ADL [activities of daily
9 Ex. B6.
living] delays.”[18]
The IEP makes no mention of the Student’s prior ABA therapy or any discussion with the Student’s Mother about the need for that service.19 DOE does not adhere to one specific teaching methodology, such as ABA, for instruction, but instead uses multiple strategies, techniques, and methodologies specifically tailored for children with ASD and other learning challenges.[20] The instruction is explicit and highly individualized, and the special education teachers who provide such instruction hold Master’s Degrees.21 They are specifically trained in developing students’ attention, cognition, socio-emotional, and communication skills, and the small classroom setting of 8:1:2 provides a nurturing environment to support that instruction.22
The Parents accepted the placement of the Student at the Public School, and the Student attended classes at the Public School for the 2021-2022 school year.23
On April 28, 2022, the CPSE convened to create the Student’s IEP for the 2022-2023 preschool year. The Student’s Father attended. The CPSE recommended the same program and supports recommended for the 2021-2022 school year because, “[b]ased on the needs presented in the documented evaluations and in parental input, the . . . program appears to be an appropriate program recommendation for this [S]tudent.”[24] The 2022 IEP identified the needs of the Student similarly as in the previous IEP: “[v]erbal, visual and physical prompts during instruction to address [his] attending and communication skills,” “[s]mall group instruction,”
“[r]edirection during . . . activities to increase his focus and attention,” “[v]isual aids/[p]icture cards to aid with communication,” “[o]pportunities for reciprocal play to facilitate purposeful interactions with peers,” and “[r]epetition and verbal models to increase his receptive, expressive and pragmatic language skills.”25 The IEP acknowledged the Student’s need for, and response to, “a multi-sensory learning environment with small group instruction and visual support,” “positive behavior strategies such as verbal praise, tickles, and edible reinforcement,”
“prompting,” “visual aids . . . . such as shape sorters, peg boards, and puzzles,”26 “redirection to task,” “structure and clear, simple directives,” and “differentiation and modification to meet his academic needs.”[27] The IEP noted that “[the Student] responds to small group instruction
(2:1),”28 and “has made gradual progress adjusting to the classroom environment”29 but “will tantrum when preferred activities are removed . . . cry and drop to the floor . . . cry[] and refus[e] to do work.”[30] The Student also “requires prompting to sit appropriately in his chair and engage in group activities.”31 He “does not use utensils independently . . . and has a limited diet of finger foods” and “is dependent for all clothing and school bag fasteners.”32 With respect to the Student’s ability to communicate, the Student relied primarily on gestures and the aforementioned AT device;33 however, he also imitated and used “noun labels to request with verbal approximations.”34 The Student could also trace letters and shapes with hand-over-hand assistance.35
As in the 2021 IEP, the 2022 IEP does not identify a need for ABA therapy, nor does it refer to any discussion with the Student’s Father about that service.36 The Student’s Father addressed
25 Ex. C7. 26 Ex. C3.
the Student’s inconsistent attendance (attributed to his limited progress with OT)37 as the result of frequent illness38 and expressed concern about the Student’s inability to communicate his needs39 and lack of awareness of dangerous situations (e.g., streets, water).40 However, the Father “shared that [the Student] loves going to school.”41 Similarly, per the 2022 IEP: “[The Student] enjoys interaction and is eager to please his teachers,”42 “thoroughly enjoys participating in circle time and singing along to songs that correspond with lessons,”43
“reach[es] for [classmates’] hands while walking,”44 “is eager to engage with familiar adults in the classroom,”45 “enjoys giving hugs and playing tag,”46 and “enjoys pretend play in the kitchen. He is cooperative and eager to please. He loves and is motivated by music.”47
DOE offered the Student a continued placement at the Public School48 beginning May 13, 2022, the date of the 2022 IEP’s implementation.49 The Student remained at the Public School from that date until approximately June 27, 2022,50 when the Parents expressed concern about a safety incident that occurred there.51 In response to that safety concern, DOE transferred him to the NPS effective July 5, 2022.52
Sometime after June 22, 2022, a clinician drafted an undated psychological evaluation at the request of the Parents after observing and assessing the Student on April 20, 2022, May 5, 2022,
37 Ex. C5. 38 Ex. C3. 39 Ex. C2, C4. 40 Ex. C3. 41 Id. 42 Id. 43 Ex. C4. 44 Id. 45 Id. 46 Id. 47 Ex. C5. 48 Ex. D2. 49 Ex. C2. 50 Ex. D2. 51 Tr. p. 53 lines 20-25, p. 54 lines 1-7, p. 104 lines 15-17. 52 Ex. D2.
and June 22, 2022.53 The Parents arranged for the evaluation “to assess his current functioning and how they can help [the Student].”54 During that evaluation, the Student could not complete any tests.55 The clinician noted: “[He] is nonverbal. He could not express himself verbally or nonverbally such as pointing . . . . He is extremely self-directed and is unable to follow any direction . . . He presents with very low frustration and poor emotion regulation . . . . His inability to follow direction or do tasks is not from defiance or opposition, but rather his inability to connect with the world as expected.”56 The clinician made no recommendations for ABA or any other therapy; made no comments, observations, or findings with respect to any skills that the Student had previously acquired and subsequently lost from a lack of ABA; and concluded that the Student’s performance on the assessments confirmed the Student’s diagnoses of ASD and also met criteria for attention deficit disorder.57
On July 5, 2022, the NPS enrolled the Student in an 8:1:2 program and provided the related services of SLT, OT, and PT as set forth in the 2022 IEP.58 The NPS serves students with developmental delays from preschool to high school59 and uses ABA, which it describes as a behavioral methodology aimed at reinforcing appropriate behaviors and reducing inappropriate behaviors for children with ASD and other learning disabilities.60 The Program Coordinator at the NPS obtained an ABA certificate by completing a 40-hour course. 61 The NPS faculty made nearly identical recommendations as DOE with respect to the Student’s needs, such as “frequent, consistent positive reinforcement in the form of preferred edibles, toys, activities, and
53 Ex. 20. 54 Ex. 20-7. 55 Ex. 20. 56 Id. 57 Id. The Student’s Father attests that he shared the evaluation with the CSE in advance of the April 28, 2022, April 18, 2023, and June 7, 2023, CSE meetings. Ex. N3 para. 13. 58 Ex. M3, M4. 59 Ex. M2. 60 Id.; Tr. p. 85 lines 25-26, p. 86 lines 1-14; p. 96 lines 4-9. 61 Tr. p. 83 lines 19-25, p. 84 line 1.
praise or tickles”62 “frequent reinforcement,”63 “structure of classroom routines,” and “various visuals,” including puzzles and shape sorters64 to keep him motivated to complete tasks. 65
However, after implementing those recommendations, by the end of the school year, the Student “still require[d] redirection at times and ha[d] difficulty sitting with a task or toy for more than 2 minutes. 66 He also continued to eat finger foods and could not use utensils or fasten his jacket.67 The Student’s tantrums also continued “when he does not want to participate in a preferred activity and transition to another,” 68 or when “he wants something that is not in reach.”69 Similarly, his ability to communicate remained the same: “He is able to verbally imitate one-word utterances to request objects and direct actions. He primarily utilizes gestures and pointing to request desired items.”70 “[He] is non verbal . . . . [He] will spontaneously vocalize[] random words. Other words, he will sometimes imitate the sounds.”71 The Student’s written skills showed some progress in that he could independently grasp a crayon, 72 but he still required “hand over hand prompting . . . to trace simple shapes. 73 The Student’s lack of fear of social dangers also remained a concern.74
On April 18, 2023, the CSE convened to create an IEP to be implemented for the Student on September 1, 2023,75 as he transitioned from preschool to Kindergarten.76 The Parents and two
62 Ex. M4. 63 Ex. M3. 64 Id. 65 Ex. M5. 66 Id. 67 Ex. E1. 68 Ex. E3. 69 Ex. E4. 70 Ex. M5, E1. 71 Ex. E3. 72 Ex. I5. 73 Ex. M5. 74 Ex. 24-3, 24-4. 75 Ex. 24. 76 On June 7, 2023, the CSE convened to create an IEP for July and August as the Student prepared to transition from preschool to Kindergarten. Ex. I. The Student’s Mother and NPS faculty members attended the meeting. Ex. I23. The CSE recommended the same 8:1:2 Special Class with the same related services supports as in the Student’s two prior
NPS faculty members attended the meeting.77 The CSE recommended an 8:1:1 Special Class with the same SLT, OT, PT and AT services as previously provided, for the extended 12-month school year.78 The CSE again acknowledged the Student’s need for “[p]ositive praise and reinforcements (fidgets, bubbles), sensory breaks, [v]erbal, visual and physical prompts . . . .
redirection during . . . group activities to increase his focus and attention, [v]isual aids/[p]icture cards to aid with communication, [o]pportunities for reciprocal play to facilitate purposeful interaction with peers, and [p]ragmatic and verbal models to increase his receptive, expressive and pragmatic language skills.”79 The CSE determined that the Student did not require compensatory services to address lost skills or lack of progress during periods of remote learning due to COVID. 80
Similar to the previous IEPs, the 2023 IEP did not identify a need for ABA therapy, although the Mother conveyed her satisfaction with the NPS and the ABA support it provided in a Social History Update reviewed in advance of the CSE meeting.81 The Parents also expressed their wish that the Student remain at the NPS out of concern that a change in the Student’s placement would cause regression.82 However, the CSE notified the Parents at the meeting that it intended to place the Student in a District 75 specialized school (Second Public
School). 83
IEPs and a new AT device to assist with his communication skills. Ex. I, I24. The Mother expressed her satisfaction with the NPS and the Student’s progress there (more use of spontaneous words) (Ex. I4), although she raised concerns about his “grasp and pre-writing development.” Ex. I7. A NPS faculty member noted that the Student could sit through circle time with little prompting and eagerly participated. Ex. I4. The Student completed the remainder of preschool at the NPS. Ex. 24-4. 77 Ex. 24-23. 78 Ex. 24-16, 24-17. NPS faculty included the school’s psychologist, who recommended an 8:1:3 classroom. Tr. p. 95 lines 12-21. 79 Ex. 24-5. 80 Ex. 24-18, 25-2. 81 Ex. 21. 82 Ex. 24-3. 83 Ex. 24-23.
On May 16, 2023, the Parents’ Advocate asked if the CSE would reconvene to discuss the Parents’ disagreement with the Student’s proposed placement; however, the CSE declined to reconvene unless new information warranted reconsideration of the placement.84
On May 26, 2023, the Parents provided a letter from the clinician who evaluated the Student the prior year.85 In that letter, the clinician stated that the Student “has made significant progress” at the NPS and she recommended that he remain in that placement because “[t]his setting will continue to provide [the Student] with intensive ABA treatment . . . . [NPS] uses a specialized evidence-based ABA curriculum which is perfect for [the Student’s] needs. It is this clinician’s recommendation that [the Student] attend an ABA program. This will allow him to receive a meaningful education.”86 After review of the letter, the CSE reiterated that it would not reconvene because it contained no new data.87
Also on May 26, 2023, the Parents filed the instant DPC to request a due process hearing.88
They did not contest any portion of the program recommended in the 2023 IEP or the ability of the Second Public School to implement it.89 Rather, they challenged DOE’s failure to implement the IEP using ABA methodology, stating:
Both the recommended D75 placement and the state approved non-public school have zero access to non-disabled peers, both have small class ratios. The only difference is that the approved non-public school utilizes the peer-reviewed methodology of ABA and has a BCBA [board-certified behavior analyst] on staff, the District 75 program does not.90
In the DPC, the Parents allege that the Student regressed at the Public School during the 2021-2022 school year and threw tantrums to avoid attending class there.91 The Parents further
84 Ex. G3. 85 Ex. H; 20. 86 Ex. H. 87 Ex. G. 88 Ex. A. 89 Ex. A5, A6. 90 Id. See also Tr. p. 100 lines 7-10; p. 109 lines 5-7. 91 Ex. A3.
allege that the Student’s inability to complete tasks during the 2022 psychological evaluation resulted from regression due to a lack of ABA therapy, and that the Parents sought out that evaluation because of DOE’s failure to provide it in prior school years.92 Additionally, the Parents assert that they witnessed regression when the Student did not receive ABA therapy through EI in the form of increased tantrums and the Student’s inability to independently hold eating utensils and crayons.93 They credit ABA therapy provided to the Student at the NPS with calming him behaviorally.94
On June 9, 2023, DOE mailed a School Location Letter to the Parents placing the Student in the Second Public School.95 The Parents toured that school and rejected it for multiple reasons, including the distance from their home, overcrowding, the limited number of grades taught
(Kindergarten to second grade), loose railings on the playground, the close proximity of poison ivy and a transformer to the playground, windows that opened on two upper floors of classrooms, the small size of the furniture, and the tour guide’s lack of knowledge on how to address a child’s sensory meltdown.96 The Parents did not ask anyone at the Second Public School whether it could implement the IEP. 97
ANALYSIS
The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.98 A FAPE is offered to a student when (a) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive
92 Ex. A3, N3. See also Tr. p. 104 lines 12-15. 93 Tr. p. 119 lines 22-25, p. 120 lines 1-13. 94 Tr. p. 104 lines 12-20. 95 Ex. 26. 96 Tr. p. 100 lines 22-25, p. 101 lines 1-25, p. 102 lines 1-25, p. 103 lines 1-3. 97 Tr. p. 103 lines 4-6. 98 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
educational benefits; and (b) DOE complies with the procedural requirements set forth in the IDEA. 99 For a procedural violation, an impartial hearing 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 parent’s 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.100 In general, an IHO’s decision must be made on substantive grounds as to whether the student received a FAPE.101
The Absence of ABA in the 2023-2024 IEP Did Not Deprive the Student of a FAPE
A school district offers a student a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”102
Personalized instruction requires “adapting, as appropriate to the [student’s] needs . . . , the content methodology, or delivery of instruction. As long as the methodologies referred in the IEP are ‘appropriate to the [student’s] needs,’ the omission of a particular methodology is not a procedural violation.”103 An IEP is inadequate when there is a clear consensus that the student requires a specific methodology.104
Courts recognize ABA as “an intensive one-on-one therapy that ‘involves breaking down activities into discrete tasks and rewarding a student’s accomplishments.’”105 In the present case, there is no evidence in the record to establish that the Student could receive educational benefits only through the exclusive use of ABA methodology. Nothing in the plain language of
99 Board of Education v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). 100 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). 101
20 U.S.C. § 1415(f)(3)(E)(i). 102 Rowley, 458 U.S. at 203. 103 R.B. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 142208 at *29-30 citing 34 CFR § 300.39(b)(3); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 192-94 (2d Cir. 2012). 104 R.E., 694 F.3d at 192-94; see also Doyle v. Arlington Cnty Sch. Bd., 953 F. 2d 100 (4th Cir. 1991). 105 R.E., at 176 quoting Cnty. Sch. Bd. v. Z.P. ex rel. R.P., 399 F.3d 298, 301 (4th Cir. 2005).
any of the Student’s IEPs, with respect to his needs or program objectives, evinces the need for any particular methodology,106 nor is there evidence in the record that the NPS faculty who attended the Student’s 2023 IEP meeting, including the school psychologist, concluded that the Student could learn only through ABA. On the contrary, the psychologist only recommended that the CSE increase the number of teaching assistants from one to three.107 Moreover, as noted above, this hearing record shows that the methodologies and techniques used by DOE to meet the Student’s needs and program objectives are largely identical to those employed by the NPS
(e.g., praise, tickles, puzzles, redirection, clear instruction, sensory breaks).
Turning to the 2019 and 2022 psychological evaluations proffered by the Parents, neither of those evaluations state that the Student could learn using only an ABA approach or that a subsequent IEP could only be implemented via ABA methodology. The 2019 evaluation, now four years old and out of date, provides only a brief recommendation for ABA therapy for general goals applicable to an 18-month-old child, such as improving the Student’s “attention and engagement,” “emergence of language functioning,” and “emergency of functional and later symbolic/pretend play.” However, at no time does the 2019 evaluation conclude that the Student must have, and can only benefit from, an education implemented through ABA. The 2022 evaluation draws no conclusions about the Student’s need for ABA or any methodology whatsoever.
Although the clinician who conducted the 2022 evaluation wrote a letter a year later, noting the Student’s “significant progress” at the NPS and attributing that progress specifically to the ABA methodology used there, the clinician fails to provide any basis for these observations or conclusions. The clinician evaluated the Student between April 2022 and June 2022 – prior to
106 Application of a Child with a Disability, Appeal No. 14-095 (internal citations omitted). 107 As previously noted, the Parents never contested the student-to-teacher ratio of the IEP in the DPC, but only the lack of ABA therapy to implement the program.
the Student’s enrollment at the NPS on July 5, 2022. As a result, I do not credit the letter in any respect.108 Additionally, the evidence in the record fails to support the conclusion that the Student made significant progress at the NPS.
With respect to the appropriateness of the Second Public School as a placement for the Student, “placement” does not refer to DOE’s choice of a specific site, but “only to the general type of educational program in which a child is placed.”109 “Educational placement” refers to the nature of the offered program itself, such as the class ratio and additional services the student will receive, rather than the “bricks and mortar” of the specific school.110 Again, the Parents did not contest the program mandated by the IEP, but only DOE’s failure to provide it using ABA therapy. Here, DOE need only establish that it could implement the IEP at the Second Public School,111 and the Parents testified that they never asked the tour guide about implementation. With respect to the Parents’ related concerns about open windows, insufficient furniture, and loose railings, on this record, they have not established that DOE was unwilling or unable to address them.112
Compensatory Relief of 680 Hours of ABA Must be Denied
Compensatory education and services are equitable remedies tailored to meet the unique circumstances of each case.113 An award must be designed to “make up” for past denials of FAPE and place the student in the position he would have had if the district complied with its obligations
108 I also do not credit the Father’s claim that he shared the contents of the 2022 evaluation with the CSE in advance of the April 28, 2022, IEP meeting because the clinician did not complete the evaluation until June 22, 2022, two months after the meeting occurred. Similarly, I cannot credit the Father’s attestation that he witnessed the Student’s regression at the Public School during the 2021-2022 school year or that he sought out the 2022 evaluation because of that regression because neither the evaluation nor the record supports that finding. When attending the 2022 IEP meeting, the Parent expressed to DOE that the Student enjoyed his 2021-2022 classroom (see fns. 40-46). I credit those assertions over contrary claims made later in time and in anticipation of litigation. 109 R.E. at 191 (citing to T.Y. v. N.Y. City Dep’t of Educ., 584 F.3d 412, 419 (2d Cir. 2009) and Concerned Parents v.
N.Y.C. Bd. of Educ., 629 F.2d 751, 756 (2d Cir. 1980). 110 T.Y. at 419. 111 R.B. at *45. 112 R.B. at *46 (internal citations omitted). 113 See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
under the IDEA.114 “[T]he inquiry must be fact-specific, and [in order] to accomplish IDEA’s purposes, 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.”115 The compensation may take the form of supplemental special education or in related services, with the goal of fashioning appropriate relief for a denial of a FAPE. 116 It is calculated by either a “quantitative” approach (provided equal to the period of the FAPE deprivation) or a “qualitative” approach (provided as needed to address the student’s educational deficits resulting from the FAPE deprivation). Courts have noted that when the qualitative analysis is available, it can be the more “flexible approach, rather than a rote hour-by-hour compensation award, [and thus] more likely to address [the student’s] educational problems successfully.”117
Here, the Parents seek 680 hours of ABA therapy (calculated at 10 hours per week based on
EI’s prior mandate) for DOE’s failure to require ABA during the 2021-2022 school year and
EI’s failure to implement it during the 2020-2021 school year. However, as addressed above, neither the IDEA nor its implementing regulations require an IEP to mandate a specific educational methodology, such as ABA therapy, unless evaluative data establishes that the Student must have that specific methodology to receive a FAPE. 118 In the present case, no evaluative data shows that the Student must have ABA therapy and only ABA therapy to receive educational benefit. With respect to the unimplemented ABA therapy mandated through
EI, DOE is not required to provide those services because EI is a program implemented by the City that is wholly separate and apart from DOE.119 Last addressing DOE’s internal guidance on
114 P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008). 115 Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that compensatory awards should place children in the position they would have been in but for the violation of the Act). 116 See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, 546 F.3d at 123.
117 Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007). 118 K.G., v. Cinnaminson Township Bd. of Educ., 73 IDELR 19 (Dist. Ct. NJ, Sept. 19, 2018). 119 8 NYCRR § 200.5(m)(3).
providing compensatory services to students who lost services during the COVID pandemic, that guidance obliges CSEs and CPSEs to consider replacing missed services provided by DOE during the 2021-2022 school year that resulted in a denial of FAPE. Consequently, the guidance does not apply to the Parents’ claim for missed services because EI, not DOE, mandated the services, and the Parents’ only allegation of a FAPE denial pertains to the 2023- 2024 school year rather than 2021-2022.120
ORDER
Based upon the above Findings of Fact, it is hereby ORDERED that the Parents’ claims are
DISMISSED WITH PREJUDICE.
SO ORDERED.
DATED: August 30, 2023
/s/ Roberta Wolf, Esq.
Impartial Hearing Officer
Roberta Wolf
120 In the alternative, even assuming that the Parents’ claim for the 2020-2021 school year pertained to a violation by DOE rather than EI, that claim would be time-barred by the statute of limitation which requires a party to request a due process hearing within two years of when it knew or should have known of the alleged action that formed the basis of the complaint. 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). Here, the Parents knew that the Student stopped receiving mandated ABA therapy in March 2020, thereby requiring the Parents to file a due process claim no later than March 2022.
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DISTRICT EVIDENCE
Exhibit Title Date Pages 1 Psychological Educational Evaluation 02/08/2021 7 2 Educational Evaluation 02/08/2021 3 3 Observation 02/08/2021 1 4 Social History Evaluation 02/08/2021 3 5 Pre-K Evaluation Summary 02/08/2021 2 6 OT Evaluation 02/17/2021 7 7 PT Evaluation 02/17/2021 4 8 SLT Evaluation 02/17/2021 7
9 2021 – 2022 CPSE IEP 03/04/2021 21
10 Pre-K School Location 06/03/2021 1 11 Decline Remote PT 11/01/2021 1 12 2021-2022 Attendance 2021-2022 1 13 OT Clinical Guide 2021-2022 3 14 PT Clinical Guide 01/25/2022 4 15 Fall Student Annual Needs Determination Fall 2021/2022 7
Inventory (SANDI) 16 Spring SANDI Spring 2021/2022 7 17 SLT Progress Report 03/29/2022 2 18 Teacher Progress Report 04/12/2022 2 19 [REDACTED] Progress Report 11/18/2022 3 20 Psychological Evaluation 06/22/2022 8 21 Social History Update 02/02/2023 3 22 Classroom Observation 02/16/2023 3 23 Vineland 04/04/2023 14
24 [REDACTED] IEP 04/18/2023 23
25 Prior Written Notice 04/28/2023 4 26 [REDACTED] School Location Letter 06/09/2023 5 27 [REDACTED] Affidavit 08/04/2023 3
PARENTS’ EVIDENCE
Exhibit Title Date Pages A Request for Impartial Hearing May 25, 2023 7 B Psychological Evaluation October I, 2019 6 C Individualized Education Program April 28, 2022 18 D Final Notice of Recommendation June 15, 2022 3 E Annual Educational Progress Report March 9, 2023 6 F Email correspondence April 28, 2023 I G Email correspondence May 16, 17, 26, & 27, 2023 4 H Recommendation Letter May 26, 2023 2 I Individualized Education Program June 7, 2023 23 J Authorization of IEP June 7, 2023 I K Due Process Resolution Agreement June 12, 2023 2 L Revised -Due Process Resolution June 12, 2023 2
Agreement M Witness Affidavit - [REDACTED] August 7, 2023 6 N Parent Affidavit August 7, 2023 6 O New York State Education Department 8
Guidance Document- Compensatory June 2021
Services for Students with Disabilities as a
Result of the COVID-19 Pandemic P New York City Department of Education 3
Document-Determining the Need for Undated
Compensatory Services at IEP Meetings
Footnotes
[1] Ex. A. The Parents’ Advocate filed a notice of appearance on May 30, 2023, and made no amendments to the DPC. 2 Id. 3 Id. 4 Id. 5 Id.
[10] Tr. p. 118 lines 4-15.
[11] Tr. p. 114 lines 6-7. 12 Ex. N1. 13 Id. 14 Id.
[15] Ex. 9-1, 9-21. 16 Id.
[17] Ex. 9-17, 9-18.
[18] Ex. 9-6. 19 Ex. 9.
[20] Tr. p. 69 lines 12-25, p. 70 lines 1-25, p. 71 lines 1-14. 21 Id. 22 Id. 23 Ex. C2.
[24] Ex. C1, C18, C14, C15. The CPSE also provided an assistive technology (AT) device. C14.
[27] Ex. C2, C3, C4, C5. 28 Ex. C2. 29 Ex. C4.
[30] Ex. C2, C3. 31 Ex. C2. 32 Ex. C5. 33 Ex. C3; fn. 18. 34 Ex. C3. 35 Ex. C5. 36 Ex. C.