Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 248838

Student’s Name: Student

Impartial Hearing Officer: Kinanda Murray

Date of Filing: 6/8/23

Hearing Requested by: Parents

Dates of Hearing: 12/5/23 & 12/7/23

Record Close Date: 12/18/23

Date of Decision: 12/20/23

On June 6, 2022, the parent filed a request for a due process hearing (DPC) against the New York City Department of Education (DOE) pursuant to the Individuals with Disabilities Education Act (IDEA) alleging that the DOE has failed to provide the student with a free appropriate public education (FAPE) for the 2021-2022; and 2022-2023 school years.

In the DPC, the parents seek, among other things, 1) compensatory education; 2) Applied Behavioral Analysis (ABA) instruction; 3) “out of pocket expenses;” 4) an order directing the CSE to reconvene; and 5) “transportation.” As interim relief, the parent also requested independent educational evaluations and assessments.

On July 18, 2023, a prehearing conference was held. On July 21, 2023, pendency was resolved in accordance with the “Pendency Implementation Form.” Pursuant to the Interim Order dated August 2, 2023, the following evaluations were ordered on consent: 1) speech-language; 2) occupational therapy;3) neuropsychological; 4) audiological; and 5) assistive technology. Additionally, the parent’s request for a functional behavioral assessment was also granted on consent. However, the parent’s request for a behavioral intervention plan, was denied. Several status conferences were held to give the parent the opportunity to complete the evaluations and assessment. On November 9 ,2023 a status conference was held, and a due process hearing was scheduled for December 5, 2023 and December 7, 2023.

On December 5, 2023 and December 7, 2023, a DPH was held. The parents withdrew all requests except for 1) an order directing the CSE to reconvene; 2) pendency; 3) compensatory education; and 4) “out of pocket expenses” for the cost of two assessments (IHO II). The DOE exhibits 1-4 was admitted into evidence without objection. The DOE did not present witness testimony. Parents exhibits A-Y were admitted into evidence without objection. The parents provided testimony from the following witnesses by affidavit: 1) Speech- Language Pathologist; 2) Speech-Language Pathologist (2); 3) Speech Pathologist and Audiologist; 4) Occupational Therapist; 5) Board Certified Behavior Analyst; 6) Board Certified Behavior Analyst (2); and 7) Parent/Mother. The DOE cross-examined the following witnesses: 1) Board Certified Behavior Analyst; 2) Board Certified Behavior Analyst (2); and 3) Parent/Mother.

PENDENCY

As pendency was resolved pursuant to the “Pendency Implementation Form, dated July 21, 2023, the issue is not addressed herein.

FINDINGS OF FACT

The [REDACTED]-year-old student was diagnosed with Autistic spectrum disorder at 18 month of age and has received ABA since that time. The student ‘s diagnoses include autism with accompanying language impairment, associated with another neurodevelopmental, mental, or behavioral disorder; attention deficit hyperactivity disorder, unspecified; specific learning disorder, with impairment in mathematics and adjustment disorder with mixed disturbance of emotions and conduct (Ex L 20). The student is currently in a specialized 12:1:1 program that is ungraded and receives instructions in Math, ELA, Science, Social-studies, Music and Art classes (Ex 2-1). He is scheduled to complete the program when he turns 22 years old (IHO VI 261-263).

CONCLUSIONS OF LAW

I find that a) the DOE failed to meet its burden that it offered the student a FAPE for the 2021-2022; and 2022-2023 school years; and c) the relief requested by the parents is appropriate as modified herein.

ANALYSIS

SECTION 504

Parents’ 504 claims are address pursuant to the decision herein.

FAPE

The IDEA provides that school districts have the burden of establishing that children with disabilities are provide with a FAPE (20 U.S.C. § 1400 [d][1][A]). 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 (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” (Endrew F. v Douglas County Sch. Dist. RE-1, 137 SCt 988, 999 [2017]).

In the instant matter, the DOE’s attempt to meet its burden with the submission of documents, and legal arguments in the form of opening and closing statements is unavailing. In the DPC the parent has raised several questions of fact regarding substantive and procedural violations of the IDEA. Among other things, the parent argue that the DOE failed to conduct triennial evaluations, implement the subject IEPs, and include appropriate transitional goals. However, the DOE has failed to offer any proof to address the specific questions of fact that have been raised by the parent. The DOE’s opening and closing statements are not evidence but are arguments that set forth what the parties intend to prove or claim to have proven. These conclusory statements are nothing more than legal arguments that present no evidentiary value for me to assess whether the DOE has sustained its burden.

Therefore, the DOE has failed to demonstrate: 1) compliance with the procedural requirements under the IDEA and 2) development of an IEP reasonably calculated to enable the student to receive educational benefits (Endrew F., 137 S.Ct. at 1002).

Based upon the foregoing, the DOE has failed to establish that the student was offered a FAPE for the 2021-2022; and 2022-2023 school years.

COMPENSATORY EDUCATION

The parties were directed to submit a 1–2-page bulleted summary of a proposed compensatory education award, if any (IHO III at 4). The DOE proposes the following compensatory award: 1) 460 hours of speech and language therapy (SLT) (276 hours for the 2021-2022 school year + 184 for the 2022-2023 school year); 2) 320 hours of occupational therapy (OT); 3) 92 hours of assistive technology training (ATT); and 4) 3 hours of parent counseling and training (PCAT) for the 2022-2023 school year (IHO IV). The DOE contends that the student is not entitled to ABA or BCBA supervision as the student received the services through pendency during the subject school year. The DOE further contends that the SLT award should be reduced by any hours received and the parent is not entitled to PCAT for the 2021-2022 school year because it was not on the IEP. The parent proposes the following compensatory education award for the 2021-2022 and 2022-2023 school years: 1) 2,760 hours of tutoring; 2) 3220 hours of Applied Behavioral Analysis (ABA); 3) 552 hours of board-certified behavior analyst (BCBA) supervision; 3) 1,110 hours of SLT; 4) 320 hours of OT; 5) 92 hours of ATT; and 6) 184 hours of PCAT (IHO III).

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE (P. v Newington Bd. of Educ., 546 F3d 111, 123 [2d Cir 2008]). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period, and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA (P., 546 F3d 111, 123; Reid v Dist. of Columbia, 401 F3d 516, 518 [DC Cir 2005]; see Draper v Atlanta Indep. Sch. Sys., 518 F3d 1275, 1289 [11th Cir 2008] [the court held that compensatory awards should place children in the position they would have been in but for the violation of the Act]). However, the finding of a FAPE violation does not, without more, trigger an entitlement to compensatory education (Killoran v. Westhampton Beach Sch. Dist., 2022 U.S. Dist. LEXIS 58579, *19 [citations omitted][court held that no compensatory education was required where any deficiencies were mitigated through the student’s pendency placement]). The entire purpose underlying the IDEA is remedial and compensatory education is meant "to make up for prior deficiencies" (id.). “[N]o compensatory education [is] required . . .[where] any deficiencies [have] been mitigated through [] pendency placement” (id.). Thus, awarding compensatory education… when there is "no discernible lost progress" is unwarranted and "would be akin to awarding damages which is not appropriate under the IDEA (id.).

In the instant matter, the DOE has failed to sustain its burden that the student was offered a FAPE over the course of the 2021-2022; and 2022-2023 school years. The DOE has not offered any testimony to establish an appropriate compensatory award. The parent submits the testimony of the following witnesses: 1) Speech-Language Pathologist; 2) Speech- Language Pathologist (2); 3) Speech Pathologist and Audiologist; 4) Occupational Therapist; 5) Board Certified Behavior Analyst; 6) Board Certified Behavior Analyst (2); and 7) Parent/Mother.

Generally, I find that some of the testimony of the parent’s witnesses was structure to prove the parent’s case and a specific number of hours of compensatory education rather than present an accurate depiction of the student’s needs. Throughout the affidavits there was specific reference to what services the student was receiving through pendency or pursuant to a prior FOFD, rather than a focus on the substantive nature of the services, and the student’s needs (see for example Ex P 6; IHO V 155-156). Further, parents’ witnesses presented contradictory and conflicting testimony as discussed herein.

I find concerning the experts request for “non-expiring” hours. Compensatory relief is premised on an assumption that the hours are needed to place the student in the position the student would have been in but for the denial of FAPE. The purpose is not to carry forward a balance of compensatory services that remain unused (Application of a Child with a Disability, Appeal No. 23-028 [upheld the placement of an expiration date on compensatory relief awarded). Therefore, the request for non-expiring hours is denied.

With respect to the specific program, there is no dispute that an appropriate compensatory education award should include the following: 1) 320 hours of OT; and 2)

92 hours of ATT. The disputed issues regarding compensatory relief are decided as follows.

Speech and Language Therapy

There is no dispute that an appropriate compensatory education award should include 460 hours of SLT, specifically, 276 hours for the 2021-2022 school year, and

184 for the 2022-2023 school year. Parent claims that an additional 650 hours is need for “inappropriate services during the 2021-2022 and 2022-2023 school years.” In support, the parent submits the testimony of a speech-language pathologist and a speech pathologist and audiologist. The speech-language pathologist testified that the student has made progress in his expressive language skills. She also noted that the student’s expressive language is significantly delay and that he can continue to make progress in an “appropriate academic ·environment.” However, witness’s recommended educational program is for the 2023-2024 school year and the witness did not connect the student’s current deficiencies to the school years at issue. (EX N 3-4). The speech Pathologist and Audiologist, who has provided SLT to the student for the past 6 years testified to the significant progress the student made during the 2021-2022 and 2022-2023 school year with the SLT the student received (X 5-6). She also testified that given the missed session an appropriate award would be 460 hours of SLT, specifically, 276 hours for the 2021-2022 school year, and 184 for the 2022-2023 school year (Ex X 5-6). However, the witness’s conclusory assertion that an additional 640 hours is necessary based on a qualitative approach to “bridge [the] tremendous gap and catch him up to his peers,” is unpersuasive (Ex X 6). The student continued to make progress with the SLT that were provided during the 2021-2022 and 2022-2023 school years and this conclusion is supported by the testimony of parent’s witnesses (Ex I-11; N 4; P 8). The goal of any compensatory SLT is to place a student in the position he would have been had the district complied with its obligations under the IDEA not to catch the student up to his peers. Here, there is nothing in the record to establish that an additional 650 hours of compensatory SLT is warranted.

Parent Counseling and Training

The DOE asserts that the parent is entitled to 3 hours of (PCAT) for the 2022-2023 school year and no PCAT for the 2021-2022 school year as it was recommended on the IEP. It is noted that the 2021 IEP did not recommend PCAT and the 2022 IEP recommended 1.5 hours of PCAT (30 minutes 3 x per year). The parent seeks 184 hours of PCAT for the subject school years based upon the testimony of the BCBA and neuropsychological evaluation (IHO II). The parent request is based upon 2 hours per week for 46 weeks for 2 school years. However, there is merely a statement in the neuropsychological evaluation that “[p]arent training” is needed without any proposed hours. Additionally, I do not find persuasive the conclusory testimony that “due to [the student’s] diagnosis of ASD and his significant needs, [he] requires the maximum amount of parent counseling and training possible” (P 13). Moreover, the testimony that PCAT is necessary for parent to “understand” the student’s needs and to generalize at home is belied by the record. The parent provided extensive testimony and demonstrated significant knowledge of the student’s needs (Ex Q). Further, the BCBA did not connect the lack of PCAT to FAPE for the school years at issue. Moreover, throughout th school years at issue, the parent received 2-3 hours weekly of PCAT (IHO 227; 229). Therefore, I find an award of compensatory PCAT is not appropriate.

Tutoring

The parent seeks 2,760 hours of tutoring. In support the parent submits the testimony of the BCBA and neuropsychological evaluation (IHO II). However, I find the conclusory testimony that the student is “entitled to compensatory academic tutoring services to make up for the denial of FAPE during the entirety of the 2021-2022 and 2022-2023 school years” is without merit. Based upon how the BCBA calculated the proposed hours of tutoring, which included 30 hours per week, for 46 weeks for 2 school years (30 x 46 x 2 = 2,760 hours), it appears that the parent is alleging that the student was unable to access his education during the school years at issue, but there is nothing in the record that supports this conclusion. Further, although the BCBA claims that the student cannot access his education “virtually due to his significant disabilities” she also testified to the student meaningful progress during the school years at issue (Ex P). The goal of any compensatory tutoring is to place a student in the position he would have been had the district complied with its obligations under the IDEA not to catch the student up to his peers (IHO 232). Therefore, I find an award of compensatory tutoring is unwarranted.

ABA and BCBA Supervision

The parent seeks 3,220 hours of ABA and 552 hours of BCBA supervision. Based upon the affidavit of the BCBA who has been providing ABA to the student since he was 18 months old, the parent arrived at this amount by multiply 35 hours weekly, by 46 weeks, by two years (46 x 35 x 2 = 3,220 hours). However, throughout the 2021-2022 and 2022-2023 school years the student was receiving 35 hours weekly of ABA with 5-6 hours of BCBA supervision through pendency (IHO VI 224-229). There were no gaps in service to the student and the student continued to make appropriate progress (IHO VI 220). Although the BCBA sought to make a distinction between services provided through pendency, the testimony of parent’s witnesses demonstrate that any deficiency were mitigated, and the student continued to make academic progress during the school years at issue. Therefore, an award of compensatory ABA and BCBA supervision is unwarranted

In light of the finding herein, I find the following compensatory education relief to be appropriate: 1) 460 hours of SLT; 2) 320 hours of occupational therapy (OT); and 3)

92 hours of ATT.

AFTERSCHOOL ABA INSTRUCTION

The parent seeks a program to include 15 hours weekly of afterschool ABA. While the student would undoubtedly benefit from a home-based 1:1 ABA program, services that are intended to generalize skills outside the classroom are not required by the IDEA (see F.L. and M.L. ex rel. F.L. v New York City Dept. of Educ., 2016 WL 3211969, at *11 [SDNY 2016]; P.S. v New York City Dept. of Educ., 2014 WL 3673603, at *13-14 [SDNY 2014]; C.M. and S.M. ex rel. L.M. v. Mount Vernon City Sch. Dist., 2020 WL 3833426, at 26 [SDNY 2020]; L.K. v New York City Dept. of Educ., 2016 WL 899321, at *8-10 [SDNY 2016], aff’d in part, L.K. v New York City Dept. of Educ., 674 Fed. App’x 100 [2d Cir 2017]). A school district is only required to offer services that seek to improve generalization “if a student’s difficulty in generalizing skills prevents him from making the progress required under the IDEA” (L.K., 2016 WL 899321, at 9).

In the instant matter, the record establishes that the student can make progress in the classroom without a home-based ABA program (IHO VI 224-230). The primary purpose of the home-based ABA program recommended for the student is to generalize skills outside the classroom which the DOE is under no obligation to provide.

Based upon the following I find that an order for afterschool ABA is unwarranted and denied.

OUT OF POCKET EXPENSE

The parent seeks reimbursed for a “ABA and Vocational Skills Assessment” I n the amount of $4,900. However, the parent never put the DOE on notice that the parent was requesting this assessment. The request for this assessment was not contained in the DPC as interim or final relief. Additionally, in light of the facts of this matter, it is unclear the purpose of this assessment. The assessment states that the “ABA skills assessment and vocational assessment has been requested to evaluate the appropriateness of [] [the student’s] current educational program and related services in regard to the 2021-2022 and 2022-2023 school year (sic)” (Ex T 1).

Based on the following, I find the parent is not entitled to reimbursement for the ABA and Vocational Skills Assessment that the parent had unilaterally performed.

The parent seeks reimbursement for a BIP in the amount of $1,400. However, I find conflicting testimony in the record as to whether a BIP is necessary. Although the BCBA (2) who conducted the FBA testified that the student has “interfering behaviors,” she also testified that the student was not being provided “any individualized structure of support” (IHO VI 236- 242). I find more persuasive, the testimony BCBA who has been providing ABA to the student since he was 18-month-old. She testified that when the student has received one on one behavioral support through ABA, he continues to make academic progress (Ex P 2-7).

Based upon the foregoing, I find the parent is not entitled to reimbursement for the BIP that the parent had unilaterally performed.

IEP

In the instant matter, based upon the interim evaluations and assessments, the parent seeks an order directing the CSE to implement an educational program. However, I decline to direct the CSE to implement a specific educational program.

Rather, the DOE shall immediately reconvene to consider all the recent evaluations to develop an IEP for the 2023-2024 school year. The DOE shall continue the current pendency program including funding of ABA, until the CSE reconvenes to develop a new program for the student.

ORDER

Based upon the above findings of fact, it is hereby ORDERED:

1. Within 10 days of the date of this order, the CSE shall reconvene to consider the evaluations and assessments to develop an IEP for the student for the 2023-2024 school year.

2. The DOE shall continue the current pendency program including funding of ABA, until the CSE reconvene to develop a new program for the student.

3. Within 10 days of the date of this order, the DOE shall fund a bank of compensatory education and related services with qualified providers of the parents’ choosing in accordance with reasonable market rates as follows:

a. 92 hours of assistive technology training.

b. 320 hours of occupational therapy.

c. 460 hours of speech language therapy.

4. To the extent such services, as described in the paragraph above, are not provided to the student by December 31, 2025, any remaining services shall expire.

5. The parent’s claims for “out-of-pocket” expenses are dismissed with prejudice.

Dated:12/20/23 Ordered: Kinanda Murray, IHO

NOTICE OF RIGHT TO APPEAL

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

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

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

DISTRICT EVIDENCE

1. Individual Education Plan 6/14/2021 26 pages DOE

2. Individual Education Plan 6/6/2022 25 pages DOE

3. Prior Written Notice 7/15/2021 9 pages DOE

4. Occupational and Physical Therapy Clinical Guide 6/24/2022 2 pages DOE

PARENT EVIDENCE

A. Due Process Complaint 06/8/2023 24 pages

B. Interim Request for Independent Educational Evaluations 07/21/2023 1 page

C. Proposal/Quote D. Proposal/Quote 1 03/23/2023 1 page

E. Proposal/Quote F. Proposal/Quote 1 03/27/2023 1 page

G. Proposal/Quote 07/19/2023 1 page

H. Proposal/Quote 07/21/2023 1 page

I. Auditory and Language Processing Evaluation 08/11/2023 15 pages

J. Goldman-Fristoe Test of Articulation-3 Score Report 08/11/2023 8 pages

K. Invoice for Auditor Processing and Speech and Language Evaluation 08/11/2023 4 pages

L. Neuropsychological Evaluation 07/05/2023 24 pages

M. Assistive Technology Evaluation 09/10/2023 19 pages

N. Affidavit of Speech Pathologist and Audiologist 10/25/2023 5 pages

O. Occupational Therapy Evaluation 09/28/2023 23 pages

P. Affidavit of Board-Certified Behavior Analyst 10/30/2023 14 pages

Q. Affidavit of Parent 10/30/2023 5 pages

R. Affidavit of Occupational Therapist 11/02/2023 5 pages

S. Functional Behavioral Assessment 11/01/2023 16 pages

T. ABA Skills and Vocational Assessment Report 11/01/2023 34 pages

U. Affidavit Board Certified Behavior Analyst (2) 11/20/2023 9 pages

X. V. CV of Board Certified Behavior Analyst (2) 3 W. Behavior Intervention Plan 10 Affidavit of Speech- Language Pathologist 11/10/2023 7 pages

Y. Affidavit of Speech- Language Pathologist (2) 11/27/2023 7 pages

IHO EXHIBITS

I. Interim Order IEE 8/2/23 3 pages IHO

II. Petitioner’s Relief Requested 12/5/23 3 pages IHO

III. Updated Petitioner’s Relief Requested 12/7/23 3 pages IHO

IV. DOE Comp Ed Recommendations Undated 2 pages IHO

V. Hearing transcript 12/5/23 266 pages IHO

VI. Hearing transcript WITNESSES 12/7/23 266 pages IHO

1. No. Called by Date Title/Name Parent Affidavit Speech- Language Pathologist IHO

2. Parent Affidavit Speech- Language Pathologist (2) IHO

3. Parent Affidavit Speech Pathologist and Audiologist IHO

4. Parent Affidavit Occupational Therapist IHO

5. Parent Affidavit & 12/7/23 Board Certified Behavior Analyst IHO

6. Parent Affidavit &12/7/23 Board Certified Behavior Analyst (2) IHO

7. Parent Affidavit & 12/5/23 Parent/Mother IHO