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CASE NUMBER: 600976 - NYC: 249078
FINDINGS OF FACT AND DECISION
Case Number: 249078
Student’s Name[1]: [REDACTED] (“Student”)
Date of Birth: May 17, 2011
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: 05/23/2023
Date(s) of Hearing: 10/16/2023; 10/31/2023
Actual Record Closed Date: 10/31/2023
Date of Decision: 11/01/2023
Time Sensitive: Yes
Hearing Officer: Melanie L. Bota, Esq.
Names and Titles of Persons Who Appeared on October 16, 2023
For the Student
[REDACTED], Esq., Parent’s Counsel
[REDACTED], Witness
[REDACTED], Witness
[REDACTED], Witness
[REDACTED], Parent/Witness
For the New York City Department of Education
[REDACTED], Esq., District Representative
Names and Titles of Persons Who Appeared on October 31, 2023
For the Student
[REDACTED], Esq., Parent’s Counsel
[REDACTED], Witness
[REDACTED], Parent/Witness
For the New York City Department of Education
[REDACTED], Esq., District Representative
Names and Titles of Persons Who Appeared on October 31, 2023
For the Student
[REDACTED], Esq., Parent’s Counsel [REDACTED], Witness [REDACTED], Parent/Witness
For the New York City Department of Education [REDACTED], Esq., District Representative
BACKGROUND
The Student is a [REDACTED]-year-old child who is classified as a student with “Autism” by the New York City Department of Education District (“DOE” or “District”) under the Individuals with Disabilities Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute. The Student attended the Public School for the 2020-21, 2021-22, 2022-23, and 2023-24 school years.[2]
The Parent alleges that the District failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2020-21, 2021-22, 2022-23, and 2023-24 school years.[3] The Parent requests the following relief:
1) a finding that the District failed to provide the Student with a FAPE for the 2020-21, 2021-22, 2022-23, and 2023-24 school years; and
2) an order for the Committee on Special Education (“CSE”) to reconvene and the Centra Based Support (“CBST”) to recommend a New York State Education Department Approved Non-Public School (“NYSED NPS”) placement for the Student with 1:1 instruction and utilizes Applied Behavior Analysis (“ABA”) methodology; and
3) pending the CBST’s recommendation for a NYSED NPS, an order for the DOE fund 30-hours/week of push-in ABA therapy with Board Certified Behavior Analyst (“BCBA”) supervision at the Public School; and
4) an order for the CSE to also review the Student’s evaluations and address the Student’s learning needs by creating an appropriate program, such as including meaningful and measurable goals and recommending a 12-month special education program at a NYSED NPS, including the following related services: speechlanguage therapy (“SLT”), occupational therapy (“OT”), physical therapy (“PT”), counseling, assistive technology (“AT”) training, parent counseling and training (“PCAT”); ABA therapy in school and at home, BCBA supervision, and special transportation; and
5) a functional behavioral assessment (“FBA”) and if recommended, a behavioral intervention plan (“BIP”), to be conducted by a BCBA; and
6) compensatory services to remedy the failure of the DOE to offer an appropriate program of special education, including instructional support; and
7) compensatory related services to remedy the failure of the DOE to offer compensatory related services to remedy the failure of the DOE to offer an appropriate program of related services.[4]
PROCEDURAL HISTORY
On May 25, 2023, the Parent, through Parent’s Counsel, filed a due process complaint (“DPC”) against the District pursuant to the IDEA.[5] I was appointed on June 21, 2023, to determine the claims in the DPC and to conduct a due process hearing (“DPH”), pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1). On June 24, 2023, the resolution period expired without the parties reaching an agreement. On June 20, 2023, settlement and prehearing conferences were held with the representatives of the parties. On July 5, 2023, a limited hearing was held to address Parent’s request for IEEs. On July 14, 2023, an interim order was issued for the following IEEs: a neuropsychological evaluation, speech-language evaluation, PT evaluation, OT evaluation, AT evaluation, sensory integration and praxis test, and autism skills assessment, to be publicly funded by the District and conducted by providers of the Parent’s choosing. On July 26, 2023 and August 17, 2023, status conferences were held with the representatives of the parties. On September 19, 2023, a status conference and continued prehearing conference were held with the representatives of the parties. Finally, on October 16, 2023, and October 31, 2023, a DPH was held.[6]
At the DPH, Parent’s Counsel submitted 36 exhibits, all of which were admitted into evidence pursuant to stipulation. Parent’s Counsel also presented five witnesses: the neuropsychologist, AT/OT Related Services Provider, BCBA, Parent, and Director of ELS. The District Representative submitted five exhibits, which were admitted pursuant to stipulation, and presented no witnesses at the DPH. A list of the documentary evidence in this proceeding is appended to this Decision and Order.
JURISDICTION
A decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (“IDEA)[7] and its implementing regulations,[8] and the New York State Education Law[9] and its implementing regulations.[10]
LEGAL FRAMEWORK
Under the IDEA, a free and appropriate public education (“FAPE”) is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the individualized education plan (“IEP”) developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.[11] 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.[12]
The IDEA directs that, in general, an Impartial Hearing Officer’s (“IHO”) decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[13] A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”[14]
To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP.[15] Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, “material.”[16]
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.”[17] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion.[18] Although an award of damages is not available under the IDEA,[19] “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[20]
NYS Education Law describes special education as including “special services or programs,” which, in turn, includes, among other things, “[s]pecial classes, transitional support services, resource rooms, direct and indirect consultant teacher services, transition services…assistive technology devices….”[21] An assistive technology device is defined as “any item, piece of equipment, or product system…that is used to increase, maintain, or improve functional capabilities of a child with a disability.”[22] The IDEA requires that the CSE, when developing a child's IEP, must “consider whether the child needs assistive technology devices,” among other things.[23] Further, “[o]n a case-by-case basis, the use of school-purchased assistive technology devices in a child's home or other setting is required if the child's IEP team determines that the child needs access to those devices in order to receive FAPE.”[24] Additionally, “[t]he failure to provide assistive technology denies a student [free appropriate public education] only if the student could not obtain a meaningful benefit without such technology.”[25] “[A]lthough assistive technology will almost always be beneficial, a school is only required to provide it if the technology is necessary.”[26]
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.[27] The standard required is a preponderance of the evidence.[28] Since this case does not involve a unilateral placement or tuition reimbursement claim, the DOE has the burden of proof on all issues.
FINDINGS OF FACT AND DECISION
I. FAPE
At impartial due process hearings in New York, the burden is on the District to prove that they provided Student with a FAPE.[29] 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.[30] 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.”[31]
At the DPH, the District Representative stated that the District provided the Student with a FAPE for the alleged years of denial of FAPE.[32] The District provided documentary evidence, but failed to explain how the recommended special education program and related services for the school years in question provided the Student with a meaningful education that would have allowed the Student to make progress in light of their disability. The District also presented no witness testimony to explain why the CSE recommended the special education program or related services for any of the school years in question and how the recommendations were appropriate for the Student in light of their disability. The District never even cited to its own evidence to demonstrate whether the Student made any progress during the school years in question. While the District Representative did cross-examine the Parent’s witnesses, said cross-examination did not serve to rebut the relevant testimony in question. Therefore, the District Representative failed to address or sustain its burden under the Education Law and failed to demonstrate they provided Student with a FAPE for the 2021-20, 2021-22, 2022-23, and 2023-24 school years. As explained further below, I find the record establishes that the DOE failed to provide Student with a FAPE for the 2020-21, 2021-22, 2022-2023, and 2023-2024 school years.
II. Compensatory Services
The relief requested by the Parent is equitable in nature, as the Parent is asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide Student with a FAPE for the 2020-21, 2021-22, 2022-2023, and 2023-24 school years.
The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.”[33] As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.”[34] 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.”[35]
An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education.[36] The Second Circuit has held, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.”[37] 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.”[38]
Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[39] 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.’”[40] “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.”[41] Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.”[42]
There are generally two approaches to fashioning a compensatory education award: 1) the “quantitative” approach followed in the Third Circuit,[43] and 2) the “qualitative” approach relied on by the 6th and D.C. Circuits.[44] 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.”[45] 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.”[46]
Under New York State law and regulations, the District has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA.[47] However, the parent also has a responsibility to identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE for the years at issue.[48] Here, the Parent has identified the specific remedy Parent is seeking and has provided documentary evidence and testimony in support of Parent’s request. The Parent is requesting compensatory instructional and related service hours on a qualitative basis.
Neuropsychologist
The Neuropsychologist testified by affidavit that the Student that they are a private, clinical psychologist, specializing in child and adolescent development, diagnostic evaluations, and psychotherapy, in addition to providing consultations to parents regarding their child’s learning, school achievement, and emotional functioning.[49] The Neuropsychologist is familiar with the Student in this matter. They conducted a comprehensive neuropsychological evaluation of the Student over the course of three days in August and September of 2023, finalizing the neuropsychological report on September 15, 2023.[50] At the time the Student was evaluated, they were 12 years old and entering the 7th grade.[51] The Neuropsychologist administered several assessments and ultimately diagnosed the Student with “Autism Spectrum Disorder, Level 3, with intellectual impairment and language impairment requiring very substantial support for deficits in social communication and restricted behaviors.”[52] During testing, the Neuropsychologist found that the Student was able to be engaged in testing “by using applied behavior analysis, or ABA, techniques.”[53] By utilizing ABA techniques during testing to gain a clearer understanding of the Student’s strengths and deficits, and the type of educational program they require, the Neuropsychologist was able to determine the level of effectiveness of ABA in engaging the Student sot that they are able to learn in light of their disability.[54] The Neuropsychologist additionally found that the Student “has not been learning over many years and so [their] knowledge base is very limited and so [they] cannot answer many of the questions in an assessment, for example, [they] have no understanding of shapes, colors, letters, or numbers.”[55] However, following the implementation of ABA, the Student was able to demonstrate “an availability for learning using ABA, which will allow [them] to make progress.” [56]
The Neuropsychologist’s opinion is that “an appropriate intensive educational full-day and home-based program using one-to-one ABA will allow [the Student] to better engage the world around [them], including in the educational setting and with [their] instructors and service providers, and begin to replace the interfering maladaptive behaviors with skills that allow [them] to make progress academically[,] as well as socially and in [their] communication, along with increasing [their] attention, all necessary fundamental skills needed to engage in any instruction provided.”[57] The Neuropsychologist also recommended a NYS BCBA to oversee the program being administered.[58] The Student was also recommended for a “small class with low student to teacher ratio in a specialized [NYS] approved nonpublic setting designed for children on the Autism Spectrum with significant language impairment that will provide [them] one-to-one intensive instruction utilizing discrete trial ABA throughout the school day, along with a home ABA program,” consisting of 15 hours of home-based ABA with 1.5 hours of BCBA supervision.[59] The Neuropsychologist reviewed the Student’s ABA skills assessment and other related service assessment reports and agreed that the Student requires “appropriate related services and an augmentative communicative device, an AAC device, with ABA instruction” to help them engage the device to communicate, in addition to the Parent requiring training as well for the device.”[60] The Neuropsychologist endorsed the recommended frequency of related services that the other providers recommended in the Student’s related services assessment reports.[61] The Neuropsychologist also recommended that while the Student is pending modification of their current educational program, that the Student begin to receive ABA immediately.[62]
It additionally is the Neuropsychologist’s opinion that the Student’s current educational program “has failed to provide [them] the educational program [they] require[] and that has left [them] isolated, unable to communicate, and unable to learn, while practicing maladaptive behaviors that have made it even more difficult to teach [them].”[63] At the DPH, the Neuropsychologist testified on cross-examination that the Student required increased services, as the providers must work hard to engage with the right techniques and the right services and frequency to allow for progress.[64] The Student requires “a very intensive remediation program in addition to a comprehensive wrap-around school and home-based ABA program in order to make progress and ensure [their] own safety, [their] ability to access [their] education, [their] engagement with others, and [their] independence.” [65]
OT/AT Related Services Provider
The OT/AT Related Services Provider testified that they are an independent contractor of ELS, a private provider agency.[66] The OT/AT Related Services Provider testified that they are a NYS licensed Occupational Therapist and Certified in AT.[67] As part of their duties as an OT/AT provider, they conduct comprehensive pediatric OT evaluations and AT evaluations.[68] The OT/AT Related Services Provider was contacted by the Executive Director of ELS to conduct an OT and AT evaluation of the Student, review the Student’s records, determine if the Student required compensatory education make-up services, and to make any findings/recommendations.[69] The Student was assessed for an OT evaluation in August of 2023.[70] The OT/AT Related Services Provider found that the program that the DOE recommended did not provide the Student with the AT support they needed in order to access their curriculum or even functionally communicate.[71] The Student’s IEPs demonstrated that they were making “very minimal progress pertaining to the domains of assistive technology-related academics and occupational therapy, and lacked appropriate occupational therapy services and goals.”[72]
The Student’s sensory processing skills were also an area of concern that was not appropriately addressed in OT.[73] The Student currently demonstrates numerous deficits in their communication skills, fine motor skills, activities of daily living, handwriting skills, motor coordination, functional independence and life skills, social-emotional skills, emotional and behavioral regulation and modulation, executive function and cognitive skills, among numerous other deficits.[74] The Student “is not able to access [their] educational curriculum appropriately…[with] these ongoing deficits.”[75] Further, “[t]he severity of [the Student’s] current deficits is directly related to the lack of appropriate services.”[76] The OT/AT Related Services Provider found that the Student “had not had [their] OT needs met by the DOE whatsoever during [their] DOE program for years.”[77] The OT/AT Related Services Provider found that the Student “presents with difficulties in vestibular and proprioceptive processing and bilateral integration and requires sensory-based OT coupled with behavioral strategies in an individualized setting to attain age-appropriate skills.”[78] The Student was found to “demonstrate the functional grasping abilities of a child less than a year old.”[79] The Student needs “specialized and targeted intervention to improve hand-strengthening and fine motor control to increase [their] ability to initiate and maintain a handwriting grasp and develop handwriting form and speed for greater functional performance in the school setting.”[80] The OT/AT Related Services Provider recommended that the Student receive sensory-based occupational therapy at a frequency of 3x30 per week on an individual basis so that they could attain age-appropriate skills.[81] The Student additionally requires a “sensory diet and assistive technology support during the school day.”[82] The Student was also recommended a bank of 92 hours for compensatory OT services, based on a formula of 1 hour weekly for 46 weeks, for 2 years.[83] The recommended OT should be implemented by an occupational therapist with experience in sensory integration to address the failure of the DOE to provide the Student with appropriate OT services.[84] The OT/AT Related Services Provider believes that it will take the Student at least 2 years to remediate not having an appropriate program and to master the lost skills and be whole again after years of the inappropriate support in their OT needs.[85] It was also recommended that the Student’s ABA therapist be present for a co-treatment model to allow the Student appropriate access to the services while addressing their known maladaptive behaviors that interfere with skill acquisition.[86]
In addition to the recommendation of increased OT services as part of the Student’s educational program, the OT/AT Related Services Provider also recommended a bank of 92 hours of compensatory sensory integration therapy services, based on a formula of 1 hour weekly for 46 weeks, for 2 years, to be implemented by an occupational therapist with sensory integration therapy experience.[87] It will take the Student at least 2 years to remediate not having an appropriate program and master the lost skills.[88] Compensatory hours of sensory integration therapy will address the Student’s needs, including their significant sensory dysregulation issues, and allow them to access their curriculum.[89] It was also recommended that the Student’s ABA therapist be present for a co-treat model to allow the Student access to the services while addressing their known interfering behaviors.[90]
The OT/AT Related Services Provider found that the Student had endured several years without an appropriate AT device and services.[91] At the time of the evaluation, the Student was in possession of an Apple iPad with GoTalk software.[92] At the evaluation, the Parent explained that they were not sure if the Student was able to use the device or if nine cells per screen was overwhelming for the Student, as they previously were used to a device that had up to two choices per screen.[93] The Student “was not observed to utilize [their] current communication device in a functional manner and seemed generally unfamiliar with it.”[94] The Student “does demonstrate potential that is further enhanced in the presence of assistive technology.”[95] The Student should be provided with two devices immediately, one to be used as an augmentative and alterative (“ACC”) device so that the Student could express their wants and needs in school and at home, as well as to facilitate communication and language development, and the other device would have several applications to address the Student’s deficits in the areas of reading, writing, and math.[96]
It is recommended that the Student receive AT training at a frequency of 4x30 weekly.[97] They also recommended that the Student receive 92 hours of compensatory assistive technology training, based on a formula of 2 hours weekly for 46 weeks, for 1 year, to allow the Student to be able to utilize their devices effectively.[98] The Parent was additionally recommended for 92 hours of compensatory assistive technology parental training, based on a formula of 2 hours weekly for 46 weeks for 1 year, “for ongoing parental training to enhance device understanding, knowledge, and carryover for [the Student’s] AT devices.”[99] The above trainings should be provided by a Certified AT Provider, who will also assist the Parent with facilitating the Student to be able to access their devices.[100] The Student’s recommended applications and software specific and individualized to the Student’s areas of deficit should be loaded onto the recommended devices.[101] The OT/AT Related Services Provider also recommended that the DOE assign a contact person to avoid delay in the acquisition of said AT devices and programs, which would be detrimental to the Student’s acquisition of necessary age-appropriate skills, functional communication, and ability to their curriculum.[102] The student’s ABA provider is also recommended to be present for a co-treat model so that the Student can access their services appropriately while addressing their symptoms of autism.[103]
Finally, the OT/AT Related Services Provider recommended that the Student receive 92 hours of compensatory SLT/AT indirect services with the Speech Language Pathologist and the AT Professional, which was calculated at a rate of 1 hour bi-monthly for 2 years, and as necessary with the DOE contact person.[104]
All the above recommended compensatory related services are recommended to be provided with the Student’s ABA provider as part of a co-treat model to “enable [them] appropriate access to these services while simultaneously addressing [their] interfering behaviors.” [105]
BCBA
The BCBA testified that they are the Director and Behavior Analyst at [REDACTED].[106] Their duties include developing “comprehensive ABA programs, analyze data, and develop behavior interventions that are evidence-based,” as well as conducting “several types of evaluations….”[107] The BCBA conducts ABA skills assessments, FBAs, and also develops BIPs.[108] [REDACTED] provides “educational remediation, behavioral intervention services, including ABA, Parent training and support, transitional services, vocational assessments, and functional transitional/vocational training.”[109] [REDACTED] also “provide[s] educational and behavioral services to students with disabilities directly, as well as support services and evaluation services to New York City Kids.”[110]
The BCBA testified that they are familiar with the Student and conducted an ABA skills assessment over the course of two days in August and September of 2023.[111] The BCBA observed that the Student “demonstrated difficulty reaching a starting point (basal) for tasks presented” during the ABA skills assessment.[112] The Student was not able to identify colors, shapes, animals, or food items.[113] The Student’s “incorrect responding appeared to be the result of academic deficits and not generalization deficits.”[114] “[B]ecause [the Student] demonstrated minimal ability to identify any stimuli present, the assessment was terminated.”[115] The BCBA noted that in reviewing the Student’s 2023 IEP, it reported the Student had significant problem behaviors that interfered with the Student’s ability to complete tasks.[116] However, the Student was not recommended for a behavioral intervention, supports or other strategies to address their behavior.[117] The Student’s “problem behaviors have a significant impact on learning as they impede their ability to access the curricula in a meaningful way.”[118] The BCBA’s opinion is that “[w]ithout proactive and reactive interventions, the Student will not be able to acquire skills as the maladaptive behaviors interfere with skill acquisition.”[119]
The BCBA noted that in reviewing the Student’s Fall 2022 report card, they were alarmed by a note which reported that the Student’s instructional/functional levels were at a prekindergarten and kindergarten level, but they were being taught at a 6th grade level.[120] The Student was observed to be unable to verbally speak and communicate, despite being recommended for a speech-generating device (“SGD”).[121] Without a means for communication, the Student’s problem behaviors will increase.[122] There was not a clear intervention plan in the Student’s IEPs for staff to “increase allocation of responding to the device.”[123]
In speaking with the Parent, the BCBA learned that the Student is nonverbal, has poor social skills, was not toilet trained, does not communicate much, had deficiencies in self-help skills, and activities of daily living, drank from a sippy cup, could not dress themselves, and required “support via hand-over hand facilitation including feeding and using utensils.”[124] Prior to the implementation of ABA, the Student “was observed to frequently emit interfering problem behaviors when presented with academic tasks.”[125] When ABA was implemented, “shaping behavior began to take effect and [the Student] began to understand the three-term contingency.…”[126] The implementation of ABA was effective in changing the Student’s behavior and they sat and responded for over 45 minutes with consistent presentation of academic task demands.[127] However, before that, the BCBA was unable to gain the Student’s attention for any period of time in order for the Student to attend to the task at hand.[128] It is the BCBA’s clinical opinion that the Student has severe academic deficits, but has the potential to learn.[129] However, the Student’s ability to learn has been hindered as they have not had the opportunity to learn based on their “unique needs due to the inappropriate placement, programming and services that [they] have received for many years.”[130]
The BCBA recommends a “full-time ABA program that utilizes evidence based principles to effect behavior change throughout the school day.”[131] The BCBA recommends 30 hours per week of ABA to be pushed-in immediately to the Student’s current placement, a 1:1 full-time paraprofessional for toileting, in addition to seizures/falling.[132] The BCBA also recommends BCBA supervision of the push-in ABA program at a rate of three hours per week, and to oversee the home-program, which should also be added into the Student’s IEP.[133] The BCBCA recommended SLT, “a small class size of no more than six students in a school environment that utilizes the principles of ABA throughout the day….”[134] The BCBA additionally testified that a District 75 program was not appropriate for the Student, as they do not utilize ABA and do not utilize ABA throughout the day.[135] The Student also requires 15 hours of at-home ABA with 1.5 hours of BCBA supervision at-home.[136] The Parent should also receive PCAT for four hours a month to train the family in the evidence-based interventions.[137]
The BCBA also found that the Student required a FBA to be conducted by a BCBA, in order to create a BIP based on the functions of the Student’s behaviors which were a symptom of their disability.[138] The Student demonstrated “significant problem behaviors that interfere with [their] ability for learning, thereby compromising skill acquisition and progression.”[139] These behaviors impact the Student’s ability to “engage in appropriate social interactions within the home, school and community.”[140]
As a result of the Student’s “inappropriate placement, programming and services across multiple school years, [the Student] requires 1,035 hours of 1:1 make-up ABA services to address deficits in academic skills, social skills, daily living schools, self-help skills, community skills, and language skills while simultaneously diminishing/extinguishing maladaptive severe problem behaviors that interfere with skill acquisition.”[141] This is the minimum required “to make [the Student] whole again and to get [them] to a place where [the Student] should have been all along” had they been provided with the appropriate placement and services.”[142] The BCBA believes that the Student has not had access to education for “years and years.”[143] The BCBA also recommended 103.5 hours of make-up BCBA supervision, based on a formula of 1 hour of BCBA supervision for every 10 hours of ABA.[144] It was also recommended that the Parent receive 138 hours of make-up PCAT, based at a rate of 4 hours/month x 11.5 months x 3 years) for multiple school years.[145]
The customary rate at [REDACTED] for ABA services is $150/hour, for BCBCA services from [REDACTED] is $200/hour, and for PCAT is $200/hour.[146] The customary rate at [REDACTED] for a FBA is $2,800 and a BIP is $550.[147] [REDACTED] can provide immediate push-in ABA and BCBA services at public school settings.[148]
Parent
The Parent testified that they are the mother of the Student, who is [REDACTED]-years old and enrolled in the seventh grade at the time of the DPH.[149] The Parent testified that the Student currently attends the Public School, and has attended this school since kindergarten.[150] The Student suffered from seizures at an early age and was diagnosed with autism.[151] The Parent never received PCAT, even though the Student’s IEPs recommended PCAT as a related service.[152] The Parent testified that the Student was recommended for a District 75 school since the Student was in kindergarten.[153] The District 75 school did not use ABA therapy and the CSE never recommended ABA therapy for the Student, even though one teacher attempted to use it with the Student and found it successful.[154] The Parent testified that the Student entered the third grade with the same educational program, which was repeated year after year, and continued to not learn.[155] The Student’s IEP meeting was held in February of 2020, during which the Student was recommended for a special education program consisting of a 6:1:1 special education class for all academic subjects, a health paraprofessional, a keyboard/flip chart, a speech generating device, and the following related services: 1:1 OT 2x30; 1:1 PT 2x30; PCAT as needed 50 mins; 1:1 SLT 3x30.”[156] The Parent stated that during the COVID-19 Pandemic in 2020, the Student’s services were no longer offered in-person and “it became really clear that [the Student] was not learning and could not learn remotely.” [157]
During the 2020-21 school year, the Student attended the Public School for the fourth grade.[158] The Student returned to in-person training, but had not made progress during remote learning, and they did not consistently receive their related services remotely.[159] The Parent arranged for the Student to have after-school SLT and was using the device that the Parent bought the Student after their SGD broke and the DOE never replaced it.[160] The Parent reported that the Student made progress with the private SLT and communication device unlike the DOE’s “communication system.”[161] In January of 2021, an IEP meeting was held for the Student, during which the Student was recommended for a special education program consisting of a 6:1:1 special education class for all academic subjects; a health paraprofessional; a keyboard/flip chart; SGD; and the following related services: 1:1 OT 2x30; 1:1 PT 2x30; PCAT as needed 50 minutes; 1:1 SLT 3x30.[162] In this IEP, the Student is noted to “respond better to one-on-one or small group instruction, and learns better through frequent repetition.”[163] The Student also required “frequent redirections to attend and complete [their] work.”[164] The IEP notes that the Student is at a prekindergarten reading and math level.[165] The Parent stated that the Student “still had goals for just looking at a book and turning the page or to attend to someone speaking with him.”[166] The Student was still working on “picking one picture out of two related.”[167] The Student’s activities of daily living skills did not improve, they were not toilet trained, they could not use a utensil, dress themselves, and was not playing with other kids.[168] The Student’s program did not change, except that the Student’s paraprofessional was removed.[169] The Parent clarified at the DPH that the Student did not have a paraprofessional for the 2021-22 school year, even though the IEP recommended one.[170] The Parent attempted to use the Student’s device that they used with the athome speech-language therapist, but the DOE rejected that device.[171] The Student was then given a device that had only 2 symbols.[172]
For the 2021-22 school year, the Student made no progress and “still was not communicating, was not toilet trained, [and] was not playing….”[173] The CSE convened in December of 2021 to create an IEP and recommended a special education program consisting of a 6:1:1 special education class for all academic subjects; a 1:1 full-time health paraprofessional; Yes/No choice board, alphabet flip-chart, and SGD; as well as the following related services:1:1 OT 2x30; PCAT as needed for 50 minutes; 1:1 PT 2x30; 1:1 SLT 3x30.[174] The Parent stated that the Student still was not making progress and no changed were made to their program.[175] The CSE never discussed any alternative programs, as they stated they did in the IEP.[176] The Parent was not aware that there were other options available for the Student.[177] The Parent attempted to arrange for more at-home services for the Student because they did not know that the Student could get more services from the DOE.[178] On December 14, 2021, the Parent requested that the DOE conduct a psychoeducational evaluation and a speech evaluation.[179] In the Spring of 2022, the DOE conducted limited evaluations, but they were not sufficient.[180] The psychoeducational evaluation did not make “any recommendations on how to teach [them] and just did nothing to actually test [them].”[181] The speech-language evaluation “did not determine whether PROMPT would be effective or how to get [them] to actually make progress in communication or any actual recommendations.”[182] The Student continued to not learn.[183]
For the 2022-23 school year, the Student’s May of 2022 IEP recommended the same program as the year before, recommending a 6:1:1 special educational class for all academic subjects, a 1:1 full-time health paraprofessional, three cell choice board, yes/no choice board, alphabet flip chart, and SGD, as well as the following related services: 1:1: OT 2x30; PCAT as requested 50 mins; 1:1 PT 2x30; 1:1 SLT 3x30.[184] For the 2022-23 school year, the Student continued to not learn.[185]
In December of 2022, the Student was diagnosed with Autism with accompanying language disability and a motor coordination disorder.[186] The physician who diagnosed the Student “determined [they] needed a comprehensive neuropsychological evaluation and that [they] definitely needed to receive a different and more appropriate education that included ABA in school and home.”[187] The Parent provided the DOE with this report.[188]
For the 2023-24 school year, the Student’s April of 2023 IEP recommended a special education program consisting of a 6:1:1 special education class for all academic subjects, ; 1:1 OT 2x30; PCAT 50 mins; 1:1 PT 2x30; 1:1 SLT 2x30; group of 2 SLT 1x30; 1:1 full-time health paraprofessional, a yes/no choice board, board maker flip chart, and an alphabet chart.[189] The Student notably had no SGD device recommended.[190] The Parent sent the District a letter requesting independent educational evaluations (“IEE’s”) and subsequently filed this request.[191]
The Parent stated at the DPH that they had asked the CSE for ABA therapy for the Student in the past, but they informed her that the DOE does not provide ABA.[192] The Parent testified that they had “always” informed the CSE that the Student was not making progress in the recommended DOE special education program.[193] The Parent clarified that the CSE did not specifically ask the Parent about whether the Student had regressed because of remote learning.[194] The Student’s April 2023 IEP notes that the Student does not “require additional services to address lost skills and/or lack of expected progress due to the periods of remote and blended learning beginning in March of 2020.”[195] The Parent additionally stated that the Student required a BIP because the Student kicks and screams and the Parent wants to ensure that the Student’s does not engage in maladaptive behavior in school and then at-home.[196]
After receiving the IEE reports in September of 2023, the Parent learned that the Student had been recommended for an intense program with ABA, both in school and at-home, in a specialized NPS, and that their intensive related services should be provided with ABA.[197] The Parent would like the Student to receive the program that the Neuropsychologist and related service providers recommended, which is a wrap-around educational program in a NPS with ABA at-home and in school.[198] The Student requires the makeup services that were also recommended because “[they have] so much ground to make up.”[199] The Parent also would like the Student to receive the AT supports that were recommended, but would require instruction, along with the Student, as to how to use such devices and supports.[200] While the Student had a SGD, the Student did not use it at home and the Parent would have to engage in “hand-over-hand” with the Student when using the SGD at home.[201] The Student also requires that their ABA therapist to assist them when learning how to use the AT device., along with their SLT and AT providers.[202]
Director of [REDACTED]
The Director of [REDACTED] testified that they are the Executive Director of [REDACTED].[203] [REDACTED] is a “contract agency that provides school age students with evaluations as well as academic and therapeutic remediation services.”[204] Their duties entail of conducting “academic assessments, develop[ing] comprehensive remediation plans, and provide individualized academic remediation, or IIAR to students.”[205] The providers at [REDACTED] are “NYS certified educators” who are “contracted as needed to provide services to children in the domains of intensive and individualized academic remediation….”[206] The Director of [REDACTED] was contacted by the Parent’s Counsel to conducted a review of the Student’s records and special education program, and to create a remediation program for the Student’s related services.[207] Several of [REDACTED]’ providers, including the Director, conducted an extensive review of the Student’s records to determine a recommendation for compensatory hours, and if warranted, “set forth a plan for remediation of [the Student’s] deficits.”[208] These recommendations are set forth in the Student’s “Compensatory Services Plan.”[209]
The Director of [REDACTED] summarized the related service providers’ recommendations for compensatory hours for the Student as follows: 207 hours for PT, at a rate of $185.00 per hour; 92 hours of OT, at a rate of $185; 92 hours of sensory integration therapy, at a rate of $200.00; 92 hours of AT instruction, at a rate of $185; AT Parent Instruction, at a rate of $185; 48 hours of indirect SLT and AT, at a rate of $185 each, and 230 hours of SLT, at a rate of $185.[210] The Director of [REDACTED] additionally testified that “it is essential that [the Student’s] compensatory services in PT, SLT, AT, and OT are delivered simultaneously with [their] ABA provider for a co-treatment model. The ABA provider will be working on ABA goals and a BIP, [REDACTED] providers will be working on the PT, AT, OT, and SLT goals.”[211] The Director of [REDACTED]expressed that should such relief be granted, that language be included in the order of this decision to permit a co-treat model for this student.[212] The Director of [REDACTED] additionally stated that they were in agreement that the Student also be provided with the “full menu of all recommended software applications from the comprehensive AT evaluation.”[213] They believe that “beyond the need for a more supportive placement, [the Student] requires substantial remediation in the areas of ABA, PT, OT, AT, and SLT, in order to be made whole after many years of inappropriate programming.”[214] [REDACTED] “is available [and] prepared to provide the Student with all recommended services contained within the individualized Compensatory Services Plan, delivered through a comprehensive after-school and/or weekend program, if [their] parent chooses [REDACTED] as the agency to provide the service.” [215]
Physical Therapy
The Parent submitted a Physical Therapy Evaluation Report[216] in support of their request for compensatory PT hours and for an increase in PT services in the Student’s IEP. The PT evaluator noted that the Student “was not able to participate in standardized testing as [they] were not able to follow most simple directions or was not interested in participating in gross motor tasks.”[217] The Student was noted to have “low tone and general gross motor weakness all throughout [their] body….” and “presented with poor coordination, decreased balance, upper extremity, lower extremity and core weakness, decreased motor planning and decreased musculoskeletal endurance.”[218] The Student was recommended to receive PT on a 1:1 basis 3x30 per week.[219] They were recommended to receive 207 hours of compensatory PT, based on a formula of 1.5 hours weekly for 46 weeks for 3 years.[220]
At the DPH, the District argued in their closing statement that the Student should not be entitled to compensatory services on a 12-month basis for a total of 46 weeks. Instead, the DOE argued that should the Student be entitled to compensatory education, that the Student receive services for 42 weeks based on NYS Office of State Review (“SRO”) # 23-146.[221] SRO 23-146 at FN 8 notes that it was unclear to the SRO how the parent in that case calculated the hours requested for compensatory education services.[222] While the SRO calculated the 10-month school year to be 36 weeks and a 12-month programming to be 42 weeks, citing NYS Educ. Law § 3604[7]; 8 NYCRR 175.5 [a], [c]; 200.1[eee]), none of these regulations actually provide a set number of weeks for the 10 or 12-month school year. NYCRR 200.6(k)(1) specifies which students are eligible for a 12-month special service and/or program.[223] 8 NYCRR 175.5 [a] and [c] clarify the minimum annual hourly requirement for the school year.[224] As the above SRO decision is not binding, I do not find that decision to be controlling as to how many weeks are in an extended school year.
The Parent argued in their closing statement that they were not asking for compensatory hours on a quantitative basis, but rather on a qualitative basis, as this was a case of multiple years of gross violation. The providers in this matter focused on the Student’s needs and specifically tailored recommendations as to those needs to determine what the Student requires to benefit from special education in light of their disability. Although this is a case where four years of FAPE violations are alleged, the related service providers who evaluated the Student do not recommend compensatory services for the Student at a rate of four years. Instead the recommendations were made on a qualitative basis.[225] I find that all the witnesses, including the Parent, are credible and that their testimony is supported by the evidence in the record.
As stated above, the DOE only submitted documentary evidence, presented no witness testimony at the DPH, failed to explain how the DOE provided the Student with a FAPE for the school years in question, and conducted an unremarkable cross-examination of all witnesses. The DOE therefore failed to sustain its burden of proof at the DPH. The hearing record establishes that Student was not provided a FAPE for the 2020-21, 2021-22, 2022-23, and 2023-2024 school years. Furthermore, the uncontroverted testimony of the Parent, Neuropsychologist, BCBA, and OT/AT Related Services Provider, and Director of ELS, as well as the uncontested documentary evidence, support a finding that the Student is entitled to compensatory related services to compensate for what Student was deprived of for the school years in question.
III. CSE
Generally, an award of prospective relief in the form of IEP amendments and the prospective placement of a student in a particular type of program and placement, under certain circumstances, has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs.[226] However, concerns about circumventing the CSE process arise most prominently in matters where the school year challenged has ended and, in accordance with its obligation to review a student's IEP at least annually, the CSE would have already convened to produce an IEP for the following school year.[227]
Additionally, while prospective placement might be appropriate in rare cases[228] the pitfalls of awarding a prospective placement have been noted in multiple State-level administrative review decisions, including that where a prospective placement is obtained by the parents through the impartial hearing, such relief could be treated as an election of remedies, where the parents assume the risk that future unforeseen events could cause the relief to be undesirable.[229]
The Parent requested that the CSE reconvene and for the CBST to recommend a NYSED-approved NPS for the Student that utilizes ABA methodology, with a full-time 1:1 ABA therapist, or in the interim that the Student receive 45 hours per week of ABA therapy at the Public School, with 15 hours at-home, and3 hours per week of BCBCA supervision in the Public School and 1.5 hours per week of BCBA supervision at-home. The District did not present any witnesses from the Public School to discuss the methodology or special education program currently used at the Public School for the Student. The Student does not currently receive any ABA therapy.[230]
As described above, the Student is recommended in a neuropsychological evaluation and ABA assessment for a NPS placement with 1:1 ABA therapy with BCBA supervision and a special education program consisting of a small class size, related services, and compensatory related services, as well as a FBA and BIP.[231] No members of the CSE from any of the school years testified at the hearing. In the most recent IEP, the CSE relied on their 2022 evaluations, which consists of a psychoeducational evaluation that made no recommendations as to the Student’s program,[232] and a speech-language evaluation that recommended a nonverbal student use a voice output device and listed two vague goals.[233] The District presented no evidence or testimony supporting how their evaluations were comprehensive. The District also presented no evidence as to whether the CSE considered a placement for the Student that implements ABA methodology.[234] The District failed to present any evidence testimony to support their position as to the Student’s needs or defend its recommendations. They also did not rebut or contest the evidence that the Parent submitted regarding the Student’s need for a NYSED NPS that utilizes ABA methodology, recommended special education program, related services, and make-up related services.
The District’s most recent IEP notes that the Student “requires frequent redirection and 1:1 assistance, as well as visual and verbal prompts, to attend to and compete [their work]” and “will need consistent repetition and multiple opportunities to demonstrate acquired skills.”[235] The Student additionally is still noted to not be toilet trained, is nonverbal, requires 1:1 assistance to use their iPad, in the 6th grade, but reading and writing at pre-kindergarten levels.[236] Based on the District’s inability to meet their burden at the DPH and prove by preponderance of the evidence that they provided the Student with a FAPE for the school years at issue, as well as the robust evidence in the hearing record, there is a clear “consensus” among those who most recently evaluated the Student regarding their needs that should be followed by the CSE.[237]
I find that this Student’s deprivation of a FAPE for the 2020-21, 2021-22, 2022-23, and 2023-24 school years is one of the rare instances where prospective placement is warranted at a NYSED-approved NPS that implements ABA methodology in the manner described in the Student’s evaluations, as well as the recommended frequency of related services.
ORDER
Based upon the above Findings of Fact and Decision, it is hereby:
1. ORDERED that, the DOE failed to provide the Student with a FAPE for the 2020-21, 2021-22, 2022-23, and 2023-24 school years; and
2. FURTHER ORDERED that, the District shall convene the CSE to hold a meeting within 20 days of this Order to prepare an IEP that:
a. Provides that the Student attend a NYSED-approved NPS, in a class size of no more than six students, that utilizes ABA methodology, where the Student receives 1:1 ABA support by a qualified provider, with 3 hours per week of push-in BCBA supervision, and a full-time 1:1 paraprofessional for seizures/falling/toileting; and
b. Recommends the following appropriate related services, as recommended by the independent evaluations, and at the recommended frequency and service delivery:
i. Speech-Language Therapy on an individual basis, 4 times per week for 30 minutes a session; and ii. Speech-Language Therapy in a group setting, 1 time per week for 30 minutes a session; and iii. Occupational Therapy on an individual basis, 3 times per week for 30 minutes; and iv. Physical Therapy on an individual basis, 3 times per week for 30 minutes; and
v. Parent Counseling and Training on an individual basis at home, 4 hours per month; and vi. Assistive Technology Instruction on an individual basis, 4 times per week for 30 minutes; and vii. 15 hours per week of ABA therapy at-home, with BCBA supervision 1.5 hours per week, and viii. A behavioral intervention plan, if recommended in the Student’s functional behavioral assessment, as Ordered below; and
3. FURTHER ORDERED that, pending an appropriate NPS recommendation and placement as described above, the DOE in the interim shall fund 45 hours per week of ABA services, specifically 30 hours of push-in ABA services in-school, with three hours of push-in BCBA supervision, and 15 hours of at-home ABA services, as well as 1.5 hours of BCBA supervision at-home, by an independent provider of Parent’s choosing at the providers’ customary and regular rate of $150/hour for ABA therapy and $200/hour for BCBA supervision; and
4. FURTHER ORDERED that, the DOE is directed to fund the following assessment, by issuing payment directly to the providers of the Parent’s own choosing within 35 days of the submission of copies of the evaluations and invoices:
a. A functional behavioral assessment, and if recommended, a behavioral intervention plan, to be conducted by a New York State licensed BCBA at KS, at the provider’s customary and regular rate of $2,800 for a FBA, and $550 for a BIP; and
5. FURTHER ORDERED that, the DOE shall fund the following compensatory services for the Student, which may be provided during the school year, summer, weekdays, weekends, holidays or during school vacations, by New York State licensed providers of the Parent’s own choosing at the providers’ customary and regular rate as specified below:
a. 1,035 hours of ABA therapy, to be used either in-school or at-home for $150/hour;
b. 103.5 hours of BCBA supervision, to be used either in-school or at-home for $200/hour;
c. 230 hours of speech-language therapy for $185/hour;
d. 92 hours of occupational therapy for $185/hour;
e. 207 hours of physical therapy for $185/hour;
f. 138 hours of parent counseling and training for $200/hour;
g. 92 hours of sensory integration therapy for $200/hour;
h. 92 hours of assistive technology training for $185/hour;
i. 48 hours of assistive technology professional training and speech-language therapy for $185/hour each; and
j. 92 hours of parent assistive technology instruction and training for $185/hour; by issuing payment directly to the provider(s) within 35 days upon the submission of invoices for services rendered.
6. FURTHER ORDERED that, the bank of compensatory services set out in #5 of this Order shall not expire until the expiration of three (3) years from the date of this Order; and
7. FURTHER ORDERED that, that the DOE shall provide or fund an assistive technology device, software, and accessories, as specified in Parent Exhibit N, to be used by the Student both in-school and at-home; and
8. FURTHER ORDERED that, the DOE shall configure the Student’s AT device and software, as well as coordinate with the Student’s teachers, parent, and related services providers on an as needed basis; and
9. FURTHER ORDERED that, the DOE shall fund the compensatory services, as specified in #5 of this Order, when administered in a co-treatment model and shall fund each related service provider, including the ABA therapist, when multiple providers treat the Student simultaneously and provide services at the same time; and
10. FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby ordered within 15 days.
SO ORDERED.
DATED: November 1, 2023
Melanie L. Bota Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DISTRICT EVIDENCE
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| 7. | Prior Written Notice | 02-09-2021 | 10 |
| 8. | Prior Written Notice | 05-25-2023 | 14 |
| 9. | Vocational Assessment – Teacher | 04-28-2023 | 3 |
| 12. | Speech Language Referral | 10-10-2022 | 1 |
| 13. | Speech Language Referral | 09-15-2019 | 1 |
PARENT EVIDENCE
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| A. | Demand for Due Process Hearing | 05/25/2023 | 14 |
| B. | IEE Request Letter | 05/23/2023 | 3 |
| C. | Affidavit of Director of [REDACTED], Inc. | 06/14/2023 | 3 |
| D. | Affidavit of Executive Director of [REDACTED], LLC | 06/14/2023 | 7 |
| E. | Affidavit of Neuropsychologist | 06/16/2023 | 2 |
| F. | IEP | 04/20/2023 | 35 |
| G. | IEP | 04/29/2022 | 35 |
| H. | IEP | 12/02/2021 | 36 |
| I. | IEP | 01/26/2021 | 34 |
| J. | IEP | 02/10/2020 | 36 |
| K. | Speech/Language Evaluation | 09/19/2023 | 10 |
| L. | Occupational Therapy Evaluation | 09/19/2023 | 20 |
| M. | Sensory Integration Evaluation | 09/19/2023 | 15 |
| N. | Assistive Technology Evaluation | 09/19/2023 | 19 |
| O. | Physical Therapy Evaluation | 09/19/2023 | 6 |
| P. | Neuropsychological Evaluation | 09/15/2023 | 24 |
| Q. | Autism Skills Assessment | 09/14/2023 | 14 |
| R. | [REDACTED] Report by [REDACTED] | 01/20/2023 | 4 |
| S. | NYC DOE Psychoeducational Evaluation | 04/07/2022 | 4 |
| T. | NYC DOE Speech/Language Evaluation | 04/04/2022 | 7 |
| U. | NYC DOE Assistive Technology Evaluation for D75 | 08/05/2021 | 14 |
| V. | NYC DOE Assistive Technology Referral | 04/07/2021 | 5 |
| W. | Psychological Evaluation | 02/16/2019 | 7 |
| X. | Request for Evaluation | 12/14/2021 | 1 |
| Y. | Affidavit of [REDACTED] | 09/21/2023 | 19 |
| Z. | Resume of [REDACTED] | Undated | 1 |
| AA. | Affidavit of [REDACTED] | 10/02/2023 | 10 |
| BB. | Curriculum Vitae of [REDACTED] | Undated | 2 |
| CC. | Compensatory Service Plan | 10/03/2023 | 27 |
| DD. | Affidavit of [REDACTED] | 10/03/2023 | 7 |
| EE. | Affidavit of [REDACTED] | Undated | 6 |
| FF. | Resume of [REDACTED] | Undated | 2 |
| GG. | Resume of [REDACTED] | Undated | 1 |
| HH. | Resume of [REDACTED] | Undated | 1 |
| II. | Resume of [REDACTED] | Undated | 4 |
| JJ. | Affidavit of [REDACTED] | 10/10/2023 | 13 |
IHO EXHIBITS
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| I. | n/a |
APPENDIX
| [REDACTED] Information | Term Used In FOFD |
|---|---|
| [REDACTED] | Student |
| [REDACTED] | Parent |
| [REDACTED] | Parent Attorney/Counsel |
| [REDACTED] | District Attorney/Representative |
| [REDACTED] | Non-Public School |
| #75 | District, DOE |
| [REDACTED] | BCBA |
| [REDACTED] | Neuropsychologist |
| [REDACTED] | Director of [REDACTED] |
| [REDACTED] | AT/OT Related Services Provider |
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] See Parent Exhibit A, at 1.
[3] See id.
[4] See id. at 11 – 14.
[5] See id. at 1 – 14.
[6] See Transcript, October 16, 2023. At the time that this decision was written, the transcript was not available for October 31, 2023.
[7] See 20 U.S.C. § 1400 et seq.
[8] See 34 C.F.R. § 300 et seq.
[9] See Educ. Law Art. 89 § 4404 et seq.
[10] See 8 NYCRR § Part 200.
[11] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[12] See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
[13] See 20 U.S.C. § 1415(f)(3)(E)(i).
[14] Rowley, 458 U.S. at 203 (emphasis added).
[15] See Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5d Cir. 2000); Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 (3d Cir. Aug. 14, 2008); Couture v. Bd. of Educ., 535 F.3d 1243 (10th Cir. 2008); Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 (8th Cir. 2003).
[16] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 (D.D.C. 2007).
[17] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015).
[18] Florence County Sch. Dist. Four v. Carter by & Through Carter, 510 U.S. 7, 16 (1993).
[19] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002)
[20] Doe v. East Lyme, 790 F.3d at 454.
[21] NYS Educ. Law § 4401(2)(a).
[22] 20 U.S.C. § 1401(1)(A).
[23] 20 U.S.C. § 1414(d)(3)(B)(v); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 647 (S.D.N.Y. 2011).
[24] 34 C.F.R. § 300.105(b).
[25] J.C. ex rel. C. v. New Fairfield Bd. of Educ., 2011 U.S. Dist. LEXIS 34591, 2011 WL 1322563, at *18 (D. Conn. Mar. 31, 2011) (citation and internal quotation marks omitted).
[26] Id.
[27] NYS Educ. Law § 4404(1)(c).
[28] See 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2d Cir. 1998).
[29] M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017).
[30] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[31] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[32] See Transcript, at 117 – 118, October 16, 2023.
[33] 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).
[34] Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015).
[35] Doe v. East Lyme, 790 F.3d at 454.
[36] E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014).
[37] P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[38] Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008).
[39] Doe v. East Lyme, 790 F.3d at 454.
[40] Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005).
[41] See id. at 522.
[42] See id. at 518.
[43] See, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996) (holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation).
[44] See, e.g., Reid, 401 F.3d at 518, 524 (requiring a flexible, fact-specific approach in which the award relies “on individual assessments” and is “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place”).
[45] 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).
[46] Doe. v. East Lyme, 790 F.3d at 457.
[47] Education Law § 4404(1)(c).
[48] 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).
[49] See Parent Exhibit AA at 1 – 2.
[50] See id. at 2 – 3.
[51] See id. at 3.
[52] See id.
[53] See id. at 4.
[54] See id.
[55] Id. at 5.
[56] Id.
[57] Id. at 4.
[58] Id.
[59] Id. at 6.
[60] Id. 6 – 7.
[61] See id.
[62] See id. at 7 – 8.
[63] Id. at 8.
[64] See Transcript, at 145, October 16, 2023.
[65] Parent Exhibit AA, at 9.
[66] See Parent Exhibit EE, at 1.
[67] See id.
[68] See id.
[69] See id. at 2.
[70] See Parent Exhibit L, at 1.
[71] See Parent Exhibit EE, at 2.
[72] Id. at 3.
[73] See id.
[74] See id.; Parent Exhibit L, at 4.
[75] Parent Exhibit EE, at 3.
[76] Id.
[77] See id. at 4.
[78] Id.
[79] Parent Exhibit L, at 9.
[80] Id. at 14.
[81] See Parent Exhibit EE, at 3.
[82] See id.
[83] See id.
[84] See id.
[85] See id.
[86] See id.
[87] See id. at 5.
[88] See id.
[89] See id.
[90] See id.
[91] See id.
[92] See Parent Exhibit N, at 6.
[93] See id.
[94] Id. at 7.
[95] Id. at 11.
[96] Id. at 11 – 12.
[97] See id. at 17.
[98] See Exhibit EE, at 5.
[99] Id.
[100] See id.
[101] See id.
[102] See id.
[103] See id.
[104] See id. at 6.
[105] See id.
[106] See Parent Exhibit Y, at 1.
[107] Id.
[108] See id. at 2.
[109] Id.
[110] Id.
[111] See id. at 5.
[112] See id.
[113] See id.
[114] Id.
[115] Id.
[116] See id. at 5 – 6.
[117] See id. at 6.
[118] See id.
[119] See id.
[120] See id. at 7.
[121] See id.
[122] See id.
[123] See id.
[124] Id. at 8.
[125] Id. at 10.
[126] Id.
[127] See id. at 11.
[128] See id.
[129] See id. at 12.
[130] Id.
[131] Id. at 13.
[132] See id. at 14.
[133] See id.
[134] Id.
[135] Id.
[136] See id. at 16.
[137] See id.
[138] See id. at 17.
[139] See id. at 16.
[140] See id.
[141] Id. at 17.
[142] Id.
[143] Id.
[144] Id.
[145] See id. at 18.
[146] See id.
[147] See id.
[148] See id.
[149] See Parent Exhibit JJ, at 1.
[150] See id. at 2 – 4.
[151] See id. at 4.
[152] See id. at 5; see Parent Exhibits F, G, H, I, J; Transcript, at 212, October 16, 2023.
[153] See Parent Exhibit JJ, at 5..
[154] See Parent Exhibit JJ, at 5.
[155] See id. at 6.
[156] See Parent Exhibit J, at 25 – 26.
[157] See Parent Exhibit JJ, at 7.
[158] See Parent Exhibit I, at 3.
[159] See Parent Exhibit JJ, at 7.
[160] See id.
[161] See id.
[162] See Parent Exhibit I, at 25 – 26.
[163] Id. at 5.
[164] Id.
[165] See id. at 32.
[166] See Parent Exhibit JJ, at 7.
[167] Id.
[168] See id. at 7 – 8.
[169] See id. at 8.
[170] See Transcript, at 228, October 16, 2023.
[171] See Parent Exhibit JJ, at 8.
[172] See id.
[173] See id. at 9.
[174] See Parent Exhibit H, at 26 – 27.
[175] See Parent Exhibit J, at 9.
[176] See id.
[177] See id.
[178] See id.
[179] See id.
[180] See id.
[181] Id. at 10.
[182] Id.
[183] Id. at 11.
[184] See Parent Exhibit G, at 25 – 26.
[185] See Parent Exhibit JJ, at 11.
[186] Id.
[187] Id.
[188] See id.
[189] See Parent Exhibit F, at 24 – 25.
[190] Id. at 25.
[191] See Parent Exhibit JJ, at 11.
[192] See Transcript, at 226, October 16, 2023.
[193] Id.
[194] Id. at 229.
[195] Parent Exhibit F, at 26.
[196] See Transcript, at 232 – 233, October 16, 2023.
[197] See Parent Exhibit JJ, at 11 – 12.
[198] See id. at 12.
[199] Id.
[200] See id. at 13.
[201] See Transcript, at 230, October 16, 2023.
[202] See id.
[203] See Parent Exhibit DD, at 1.
[204] Id. at 2.
[205] Id.
[206] Id.
[207] See id.
[208] Id. at 3.
[209] Parent’s Exhibit CC.
[210] See id. at 3 – 5.
[211] Id. at 5 – 6.
[212] See id. at 6.
[213] Id.
[214] Id.
[215] Id.
[216] See Parent Exhibit O.
[217] Id. at 1.
[218] Id. at 2.
[219] See id. at 3.
[220] See Parent Exhibit CC, at 8.
[221] See SRO 23-146 at FN 8.
[222] See id.
[223] NYCRR 200.6(k)(1).
[224] 8 NYCRR 175.5.
[225] See Parent Exhibit CC, at 4.
[226] See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 (D.D.C. 2018) [noting with approval the hearing officer's finding “that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school”]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 (E.D.N.Y. Oct. 30, 2008) [noting that “services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year”]).
[227] See V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *7 (S.D.N.Y. Aug. 17, 2022) [acknowledging that "orders of prospective services are disfavored as a matter of law" and, in the matter at hand, indicating that "the CSE should have already convened for subsequent school years]; M.F. v. N. Syracuse Cent. Sch. Dist., 2019 WL 1432768, at *8 (N.D.N.Y. Mar. 29, 2019) [declining to speculate as to the likelihood that the district would offer the student a FAPE "in the future" and, therefore, denying prospective relief]; Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 (D.D.C. Aug. 24, 2012) [noting that prospective placement is not an appropriate remedy until the IEP for the current school year has been completed and the parent challenges the IEP for the current school year]).
[228] See Connors v. Mills, 34 F.Supp.2d 795, 799, 804-06 (N.D.N.Y. Sept. 24, 1998) [noting a prospective placement would be appropriate where "both the school and the parent agree[d] that the child's unique needs require[d] placement in a private non-approved school and that there [we]re no approved schools that would be appropriate"].
[229] See e.g., Application of a Student with a Disability, Appeal No. 19-018.
[230] See Parent Exhibits F, G, H, I, and J.
[231] See Parent Exhibits P and Q.
[232] See Parent Exhibit S.
[233] See Parent Exhibit T.
[234] See District Exhibits 7, 8, 9, 12, and 13.
[235] Parent Exhibit F, at 5.
[236] See Parent Exhibit F.
[237] See A.M. v. New York City Dept. of Educ., 845 F.3d 523, 546 – 46 (2d. Cir. 2017) (referencing and following the proposition that when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide the services consistent with that consensus is not reasonably calculated to enable the child to receive educational benefits.).