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CASE NUMBER: 601504 - NYC: 249425
FINDINGS OF FACT AND DECISION
Student’s Name:1 REDACTED (“student”)
Date of Birth: REDACTED
School District: NYC # REDACTED
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date Complaint Filed: 06/28/2023
Date(s) of Hearing: 11/28/2023
Actual Record Closed Date: 12/4/2023
Date of Decision: 12/7/2023
Date of Distribution if Different than Decision Date: N/A Hearing Officer: Leah Martin, Esq.
Time-Sensitive: No
1 Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/28/2023
For the Student:
REDACTED (“Parent Counsel”), REDACTED (“Parent”), REDACTED (“Neuro Evaluator”)
For the Department of Education:
REDACTED (“DOE Representative”)
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on June 28, 2023. (Ex. A).[2] In the DPC, Parent alleges that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) for the 2021-22, 2022-23, and 2023-24 school years. (Ex. A).
I was appointed to hear the matter on June 30, 2023. On August 1, Parent Counsel appeared virtually for a Pre-Hearing Conference (“PHC”).[3] During the PHC, Parent Counsel stated that all issues related to independent educational evaluations (“IEEs”) had been settled by a partial resolution agreement and that the IEEs were underway. (PHC Transcript). A status conference (“SC”) was scheduled for an update on the IEEs. (PHC Transcript). Later that day, the undersigned sent an email to the DOE Representative notifying him of his failure to appear and the next conference date. (Nonappearance Email). On August 24, Parent Counsel requested an extension to complete the IEEs and adjournment of the SC due to a personal emergency. (Extension Req. Emails). DOE Representative did not object to the adjournment and joined in the extension request, which was granted. (Id.; Order of Extension). On September 25, the parties appeared virtually for an SC, during which an extension was jointly requested and granted to complete the IEEs. (SC Transcript 9.25.23; Order of Extension2). On October 25, Parent Counsel appeared for another SC.[4] At the SC, Parent Counsel requested and was granted an additional extension for IEEs, hearing issues and evidence were discussed, and a hearing date was set. (SC Transcript 10.25.23; Order of Extension3). Later that day, prehearing orders were emailed to the parties since DOE Representative had not been present at the conference. (Prehearing Orders). These included the warning that all issues for hearing are limited to the allegations in the DPC. (Id.; see also SC Transcript 10.25.23). The parties were also notified in advance that although the DOE has the burden on compensatory education, any such award “must be supported by the record, including the specifics of the compensatory request, what deficits it was designed to remedy, and how it was calculated, broken down by school year.” (Prehearing Orders; SC Transcript 10.25.23). On November 20, DOE Representative again emailed indicating that he had a scheduling conflict (he had scheduled two hearings at the same time) and requested that the due process hearing (“DPH”) be adjourned. (Adj. Req. Emails). After discussion between the parties, the DPH was adjourned to a later time on the same day. (Id.).
The virtual DPH was held on November 28, 2023. It was a closed hearing. Parent Counsel and DOE Representative were both present, as was Parent. At the DPH, the DOE entered no exhibits and called no witnesses. (Tr. 30).[5] Parent entered 14 exhibits (A-N)[6] into evidence, including testimony affidavits of four witnesses: “SL Evaluator” (Ex. K), “OT Evaluator” (Ex. L), “Neuro Evaluator” (Ex.
M) and Parent (Ex. N). (Tr. 31-32). The DOE had no questions for SL Evaluator and OT Evaluator, so they testified by affidavit only. (Adj. Req. Emails; Tr. 72). Neuro Evaluator and Parent gave live testimony at the DPH. Oral closing arguments were made on the record. (Tr. 72-82). At the end of the hearing, the parties jointly requested and were granted an extension to allow for receipt of the transcript prior to the decision being issued. (Tr. 82; Order of Extension4). The record was closed on December 4, after receipt of the hearing transcript. (Tr. 82).
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. §1400 et seq., its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, NYS Educ. Law §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.
BACKGROUND
The student is REDACTED years old and classified as a student with autism. (Ex. A-2). He has been diagnosed with Autism Spectrum Disorder with intellectual and language impairment, Attention Deficit Hyperactivity Disorder (“ADHD”), combined type, Language Disorder, and Moderate Intellectual Disability. (Ex. A-2; G-14). The student presents with global delays and limited verbal and social skills. (Ex. A-2). The student received special education in preschool, including the applied behavioral analysis (“ABA”) methodology, from which he benefited. (Ex. A-2). On March 28, 2022, the DOE convened a meeting7 of the committee on special education (“CSE”) and developed an individualized education plan (“IEP”) for the student for the start of his kindergarten year on September 1, 2022. (Ex. A-2; B). The 3/28/22 IEP recommended placement in an 8:1:1 special class8 in a District REDACTED program with related services of speech-language therapy (“SLT”) (2x30x1 and 1x30x3), occupational therapy (“OT”) (2x30x1), and parent counseling and training (“PCAT”)(once per month as needed) on a 12-month basis. (Ex. B-16-17, 24; A-2).9 On March 16, 2023,[10] the DOE convened a CSE meeting and developed a new IEP for the student, to be implemented on March 30, 2023. (Ex. C-1). The 3/16/23 IEP recommended placement in an 8:1+1 special class11 in a District REDACTED program with related services of SLT (2x30x1 and 1x30x3), OT (2x30x1), and PCAT (60 minutes per month in a 7 The student’s mother participated in the meeting. (Ex. B-25; C-2). 8 The 3/28/22 IEP recommended this special class twelve times per week for ELA, eight times per week for math, twice weekly for social studies, and once a week for science. (Ex. B-16). 9 Although the IEP itself includes a 12:1+1 class on the program page, I believe that was a typographical error because it is contradicted elsewhere in the IEP. According to Parent, the prior written notice (“PWN”) concerning the 3/28/22 IEP included the recommendation for an 8:1+1 class. (Ex. A-2). Additionally, on the face of the 3/28/22 IEP it states that the student “requires a specialized special education class (D75) 8:1:1” (Ex. B-5) and that a “12:1:1 special class in a specialized school (D75) would not adequately support [the student] at this current time due to his diminished levels of attention but perhaps it can be reconsidered in the future” (Ex. B-24). The combination of this evidence supports the conclusion that while the IEP says 12:1+1 at the end, it meant 8:1:1. Furthermore, it appears that the student was placed in an 8:1:1 class for the 2022-23 school year. (See Ex. A-2-3).
11 The 3/16/23 IEP recommended this special class ten times per week for ELA, five times per week for math, three times weekly for social studies, and three times a week for science. (Ex. C-19). group) on a 12-month basis. (Ex. C-19-20; A-2-3). Parent alleges that the student “made little to no progress” during the 2022-23 school year. (Ex. A-2).
In May of 2023, due to concern over the student’s lack of progress, Parent obtained a private ABA skills assessment (“ABA Assessment”). (Ex. A-3; D). The ABA Assessment recommended that the student receive 20 hours per week of ABA therapy and four hours of PCAT per month. (Ex. A-3; D13). According to the Parent, he provided the ABA Assessment to the DOE, but they did not modify the student’s IEP to include the recommended services. (Ex. A-3). During the pendency of this case, the DOE agreed to fund additional IEEs, including an OT evaluation (“OT IEE”), a speech-language evaluation (“SL IEE”), and a neuropsychological evaluation (“Neuro IEE”), among others. (See PHC Transcript; Ex. E; F; G). The Neuro IEE recommends placement in a program that utilizes ABA methodology throughout the day, as well as a 1:1 paraprofessional, 10 hours of home-based ABA therapy per week, increased related services, and compensatory services. (Ex. G-15-17). The OT IEE and SL IEE additionally recommended an increase in related services, compensatory services, and a sensory diet. (Ex. E-13-15; F-18-19). The SL IEE also recommended a feeding evaluation. (Ex. F-19). Parent is requesting that the CSE adopt the recommendations of the various IEEs, that the CSE defer the student for placement in a non-public school (“NPS”), that compensatory services be awarded based on the IEE recommendations plus any mandated services that were not provided, and that a publicly funded feeding IEE be ordered. (Ex. A-6; Tr. 41, 77-82).12
ISSUES/POSITIONS OF THE PARTIES
The student’s eligibility for special education and disability classification are not in dispute here, nor is his need for a 12-month program. (See Ex. B; C). Parent alleges that the DOE failed to offer a FAPE, on substantive and procedural grounds, for the 2021-22, 2022-23, and 2023-24 school years. (Ex. A). More specifically, the DPC alleges a failure to evaluate in all areas of suspected disability, inappropriate annual goals13 and present levels of performance14 and a failure to provide an appropriate program for the 2022-23 and 2023-24 school years due the lack of sensory, self-regulation, and behavioral supports, AT, and ABA. (Ex. A-3-5). Additionally, the DPC alleges a failure to fully
12 The DPC additionally requested transportation to any compensatory services, but this request was not made at the hearing so it will not be discussed further herein. Any such request would be speculative anyway, as the provider for such services has not been located and there is no reason to believe that transportation would be necessary. Furthermore, the DPC included a request for an assistive technology (“AT”) device (Ex. A-6), but that request was withdrawn at the hearing (Tr. 34) and will not be discussed further. 13 Specifically, the DPC alleges that the same speech goal (to use a three-word phrase) was essentially repeated from the 3/28/22 IEP to the 3/16/23 IEP and none of the 3/28/22 IEP goals related to the student’s emotional dysregulation. (Ex. A-3-4). 14 Specifically, the DPC alleges that the 3/28/22 IEP failed to accurately describe the student because it stated that he could sit “for longer periods of time” without saying how long, and that the 3/16/23 IEP contained contradictory information because it included evaluation results showing that the student was unable to fluently add or subtract but the teacher information stated that the student’s math strengths included addition and subtraction. (Ex. A-4). The DPC further alleges that the DOE “was unable to assess [the student’s] speech and language skills and therefore could not assess his present levels of performance with regard to his speech progress.” (Ex. A-4). Although it is not explicitly stated, it appears that the latter allegation relates to the 2023-24 school year, because it is contained in a paragraph about the “2023 IEP.” (Ex. C-4). According to one of the IEEs in evidence, the DOE conducted a bilingual speech-language evaluation in February 2020. (Ex. F-2). implement the student’s mandated related services during the 2022-23 school year. (Ex. A-2, 4). There are no factual allegations in the DPC specific to the 2021-22 school year. (See Ex. A). When I inquired at the PHC as to the lack of specific allegations in the DPC corresponding to the 2021-22 school year, Parent Counsel asserted that the FAPE denial was “more limited” that school year, and only included the generalized allegations in the DPC, such as the failure to address the student’s behavioral needs, the failure to conduct an AT evaluation, and the general failure to provide an appropriate program, without any identified services that are lacking. (PHC Transcript, p. 9-10).
Importantly, the DPC does not allege a FAPE denial for any relevant school year based on an insufficient mandate for OT or SLT. (See Id.). Nor does it allege a FAPE denial based on a lack of counseling, supervision by a board-certified behavior analyst (“BCBA”), or PCAT. (See Id.). The only factual allegations in the DPC regarding a lack of related services concern the failure to fully implement the mandated related services during the 2022-23 school year. (See Id.). Accordingly, any other allegations raised in Parent’s hearing evidence and/or argued at hearing regarding the need for additional related services during the school years at issue were not timely raised and are not properly at issue here.[15] The allegations in the DPC regarding a lack of services for the school years at issue that resulted in a denial of a FAPE concern a lack of sensory, self-regulation, and behavioral supports, and ABA therapy. Accordingly, if a denial of a FAPE is found, the only compensatory remedies properly at issue here are those that correspond to the alleged denials specified in the DPC.
At hearing, although the DOE did not concede a denial of a FAPE, they did not present a case, nor did they argue that a FAPE had been provided in either their opening or closing statements. (Tr. 72-76). The DOE’s only arguments at hearing were related to the proposed remedies. Specifically, the DOE agreed to conduct a feeding evaluation, but disputed that a publicly funded IEE was warranted since the DOE had not first had the opportunity to conduct their own evaluation. (Tr. 36-37). Additionally, the DOE agreed that the CSE should reconvene to consider the new evaluations but argued that an order for the CSE to adopt a specific program would be “premature,” as they had not first had the opportunity to consider the IEE reports and “make a determination.” (Tr. 76). Furthermore, the DOE disputed the requested compensatory services, arguing that there was no evidence that the mandated services were not provided and that there was no articulable basis in the record to support the other requested compensatory hours. (Tr. 73-75). Moreover, as to the requested home-based ABA hours, DOE Representative argued that services to address home-based behavior and generalization are not required for the provision of a FAPE. (Tr. 35, 74). Finally, the DOE argued that, given the large amount of requested compensatory hours, it is unlikely that the student could meaningfully benefit from such an abundance of hours. (Tr. 75).
In response, Parent Counsel argued that the burden of proof on compensatory education lies with the district and that there is a sufficient basis in the record to support the requested hours. (Tr. 77-78). They further argued that the fact that the record is insufficient as to the student’s past needs is due to the district’s insufficient evaluations and should weigh against the district rather than against the Parent’s requested relief. (Tr. 79-80). As to home-based ABA services, Parent Counsel argued that they are necessary to a FAPE because “if a child cannot generalize skills learned in a classroom in any other setting, how can [his] progress be meaningful?” (Tr.78-79 ). Finally, Parent Counsel argued that an order for the CSE to reconvene without ordering the addition of specific program recommendations “is not an order that has any effect” because the district has not evaluated the student or developed appropriate IEPs like they are required to do. (Tr. 81).
FINDINGS OF FACT[16]
It appears from the record that the student’s last comprehensive evaluation was in January/February of 2020, and consisted of a social history, a psychological evaluation, a classroom observation, a bilingual speech-language evaluation, and an OT evaluation. (Ex. F-2). The DPC alleges that no AT assessment, functional behavior assessment (“FBA”), or ABA assessment have ever been done by the district. (Ex. A-3). None of the DOE’s evaluations are in evidence. There is no indication in the record that Parent ever requested additional evaluations of the district prior to these due process proceedings.
The student’s IEP for the 2021-22 school year is not in evidence. However, the student was in preschool during that time. (Ex. A-2). During that school year, the student was placed in an 8:1:2 class utilizing the methodologies of ABA and Treatment and Education of Autistic and related Communication Handicapped Children (“TEACCH”). (Ex. B-1). The student was also receiving SLT and OT. (Ex. B-2-4).[17] Parent confirmed in the DPC that the student received the ABA methodology in his preschool, and he benefitted from that program. (Ex. A-2). According to Parent, the student has struggled since he stopped receiving ABA in school. (Ex. N-1-2).
The 3/28/22 IEP contains information from some standardized assessments (“DAS-2,” “ABLLSR,” the “Early Communicator Assessment,” and the “Westby Play Scale”19), including results of [18] testing related to the student’s verbal, nonverbal, cognitive, social, and daily living skills. (Ex. B-1-3).[20] The IEP indicates that the student’s functional ranges in those areas are low for verbal, average for nonverbal, below average for cognitive, moderately low for socialization, and low for daily living skills. (Ex. B-1). The IEP also contains information from the student’s teacher and service providers. (Ex. B-1-4). The 3/28/22 IEP describes the student’s skills and abilities at the time: he was able to complete inset puzzles and put up to eight pieces in a form box, he was able to identify and match up to eight objects
19 This is a “checklist used for assessing a [child’s] social and play skills. (Ex. B-3). and pictures, he was able to identify all uppercase and lowercase letters, sounds, shapes, colors, numbers, and his written name, he was beginning to decode simple words and could read color and number words, he could identify numbers from one to one thousand, he could follow one and two-step directions with cueing, he could identify body parts and clothing items, he could combine up to three words to express requests, he could reciprocate greetings, he was able to appropriately play with several toys (including cause-and-effect toys like a piggy bank) and engage in functional and pretend play, he could engage in simple turn-taking with support, he could feed himself independently, his ability to don and doff clothes was emerging, he demonstrated good in seat behaviors during tabletop activities, he was able to imitate vertical and horizontal strokes with visual cueing, and he was able to imitate a circle with fair to poor formation. (Ex. B-1-4). Difficulty was noted with counting numbers from a larger set, consistently responding to his name, sometimes repeating words without communicative intent, regulating his voice volume (too loud), responding to “wh” questions, expressing when he needs to use the bathroom, developing his ELA and math readiness skills, playing interactively with peers, taking turns, sharing, repetitive and self-stimulating behaviors, expressing his needs and wants precisely, imitating shapes and manipulating classroom tools without manual assistance, fine motor skills, visual motor skills, graphomotor skills, and he was noted to have a short attention span which impacted other areas. (Ex. B-1-4). He was beginning to use targeted vocabulary words spontaneously and made progress following directions and staying in his seat for longer periods of time. (Ex. B-2). His instructional levels for math and reading were noted to be at a pre-kindergarten level. (Ex. B-22).
The 3/28/22 IEP included the following management needs: a structured classroom with multimodal approach, redirection, visual or verbal cues, positive reinforcement, modeling, imitation, repetition, and verbal and visual prompts. (Ex. B-4). According to the IEP, he did not need a behavior intervention plan (“BIP”), strategies to address behaviors that impede his learning or that of others, or an AT device. (Ex. B-5). The IEP included goals and objectives for picture matching, use of three-word phrases for communication, reproducing shapes, sequencing, interactive play, responding to “wh” questions, conversation, and using scissors. (Ex. B-6-15). The CSE considered and rejected a general education program, related services only, and a 12:1+1 class, but there is no indication that any more restrictive programs than 8:1+1 were considered. (Ex. B-24). There is no indication in the record that the student’s parents requested ABA methodology or expressed any concern over the lack of ABA therapy at the CSE meeting.
The DPC alleges that the DOE failed to provide all the mandated related services during the 2022-23 school year. (Ex. A-2, 4). However, at hearing, Parent testified that the notice he received saying that the student was not receiving his SLT was regarding the 2023-24 school year, and that he had not received such a notice for prior school years. (Tr. 69-70). He seemed uncertain of the date of the letter. (Tr. 69-70). Accordingly, it is unclear from the record what, if any, mandated related services the student missed during the 2022-23 school year. As the DPC does not allege any missed related services during the 2023-24 school year, that is not properly at issue here and will not be discussed further.
In February of 2023, Parent obtained an ABA skills assessment (“ABA Assessment”). (Ex. A-3; D). The evaluator was a licensed master social worker (“LMSW”), licensed behavior analyst (“LBA”), and board-certified behavior analyst (“BCBA”). (Ex. D-13). The ABA Assessment was issued on May 18, 2023 (Ex. D-14), so it was not available to the CSE at the time of the 3/28/22 IEP meeting. Although Parent alleges that the report was provided to the DOE and that they did not make any changes to the IEP (Ex. A-3; N-2), there is no indication in the record when it was provided or whether Parent requested that the CSE reconvene at that time.[21] The ABA Assessment involved a review of records, the Vineland-3 standardized assessment,[22] and observation of the student in the home, clinic, and community settings, but not in a school setting. (Ex. D-1-2). The ABA Assessment notes that the student has minimal expressive language consisting of mostly one-word mands, a “stronger receptive repertoire,” and “minimal safety awareness,” and lacks age-appropriate social and daily living skills. (Ex. D-1). On the Vineland subtests, the student was found to be in the 1st percentile for adaptive behavior composite, 4th percentile for communication and daily living, less than the 1st percentile for socialization, and to have elevated levels of maladaptive behaviors. (Ex. D-2-5).
The ABA Assessment report suggested a number of goals for the student, based on his assessment results. (Ex. D-5). These included manding for cessation, following one-step instructions, one-word tacts, motor imitation, playing with a variety of toys, turn-taking, responding to compliance instructions, labelling emotions, appropriate ways to seek attention, stimulus orienting, waiting for desired objects/actions, and accepting “no.” (Ex. D-5-8). The report also included a BIP, which targeted tantrum behavior. (Ex. D-8). The antecedent approach to tantrums was to change commonly occurring signals that the student will not get what he wants and to teach functional communication through prompts. (Ex. D-8). The report indicated that the student’s parents would be trained to implement the BIP in the home setting. (Ex. D-9). The ABA Assessment recommended a treatment plan of 20 hours per week of 1:1 ABA therapy, 12 hours per month of program supervision, and 4 hours of PCAT per month. (Ex. D-13).
There is no indication in the record that the student’s regular triennial reevaluation was done in January/February of 2023. The 3/16/23 IEP contains information from a number of standardized assessments23 (the Writing on Demand Narrative Samples, Fountas and Pinnell (“F&P”) Benchmark Reading System, F&P Levelling System, F&P high frequency word list assessment for levels A-J, Kindergarten Envision math placement test, a k-2 test of addition and subtraction fluency, CEP Financial Literacy Assessment, Map Growth Math assessment, Aperture Devereaux Student Strength Assessment for Social Emotional Learning, and New York State Identification Test for English Language Learners (“NYSITELL”)24). (Ex. C-1-2). It also contains results from informal SLT and OT assessments (including language screeners, social skills and pragmatics checklists, a language sample, and observations) and input from the student’s teacher and related service providers about his skills and deficits. (Ex. C-1-6). In reading, the student tested at a F&P level A for instruction with 100% accuracy
23 The source of this information is unclear from the record.
24 Although the IEP noted that the student’s home language is REDACTED (Ex. C-2), that appears to be inaccurate. According to the SL IEE, the home language is predominantly English (80% English and 20% REDACTED) (Ex. F-5). Additionally, based on testing, the student “was judged to be significantly more proficient in the English language” than in REDACTED. (Ex. F-6). and 50% comprehension, meaning that he could read books with one sentence per page and needed support for relating to the story. (Ex. C-1). He also scored 192/200 on his high frequency word list assessment for levels A-J, meaning that he could read the vast majority of the high frequency words. (Ex. C-1). In the F&P Leveling test, the student was on an independent book level A, meaning he was functioning at a Kindergarten level. (Ex. C-1). The Envision math test was done in September of 2022 and showed the student’s skill in counting and shape recognition but difficulty with tallying and addition. (Ex. C-1). His scores on the addition and subtraction fluency test showed a lack of fluency with both skills (he scored 35% in addition and 5% for subtraction). (Ex. C-1). He scored 50% in financial literacy; he could not name all coins or tell their value. (Ex. C-1). The Aperture assessment showed that the student struggles with relationship skills. (Ex. C-2).
According to the 3/16/23 IEP, the student displayed many strengths in reading, writing, and [25] math. (Ex. C-2-3). In reading, he was “able to accurately read all the words on the page. … For books on his level, [he] is able to tell you what happened in the story.” (Ex. C-2). The student struggled relating to stories and explaining why certain actions occurred. (Ex. C-2). In writing, the student could identify and write each letter, trace words to form a sentence, and write his name independently. (Ex. C-2-3). He struggled independently writing words to match a picture. (Ex. C-3). In math, he was able to add and subtract sums up to ten with support but displayed difficulty with word problems and operations. (Ex. C-3). In speech, the student was able to communicate needs and wants through a combination of verbalizations (typically one-word utterances) and nonverbal means, use three-to-four-word phrases with prompts, and could respond to “what” and “who” questions based on picture scenes with one-word answers. (Ex. C-3-4). However, it was noted that the student did not respond well if his requests were not immediately answered, displayed echolalia, was unable to respond to story element questions based on a text, could not engage in interactive play or reciprocal conversation with peers, and was self-directed and easily distracted. (Ex. C-3-5). In OT, the student made progress with fine motor and self-regulation skills but still struggled with excessive activity, distractibility, management and manipulation of classroom items, self-help skills, sensory and self-regulation skills (including sustained attention, sitting still, safety awareness, and frustration tolerance), voice volume regulation, and impulsivity. (Ex. C-2, 5). Further weakness was noted in hand function, which effects his ability to use scissors, open and close containers, write legibly with a pencil, don and doff his jacket and shoes, and manipulate buttons and zippers. (Ex. C-6). In daily living skills, he was able to put his belongs away at arrival, retrieve his food at mealtimes, and ask to use the bathroom independently. (Ex. C-3).
In terms of performance in class, the student was able to make eye contact and follow single-step directions. (Ex. C-5). However, he struggled to stay on task more than five minutes, complete work without prompting (both in a 1:1 and group setting), remain regulated during challenging tasks, and ask for help. (Ex. C-3). It was noted that the student needed consistent prompting, an option of three choices if he had to decide, visual choices to answer questions, visual behavior prompts, consistent repetition, multiple opportunities to demonstrate an acquired skill, hands-on manipulatives, counters and blocks for counting, and more time to complete tasks. (Ex. C-3). It was also noted that he had “not adjusted to the classroom after school breaks” and would “cry at random times during the day.” (Ex. C-5). He was noted to respond well to individual adult attention, visual supports, consistent routines, structure, and positive reinforcement. (Ex. C-5-6). The student’s functional reading and math was noted to be at the kindergarten level. (Ex. C-26).
The 3/16/23 IEP included the following management needs: an 8:1:1 special class with SLT and OT, gestural prompts, visual supports for comprehension and behavior, a visual schedule, teacher directed modeling, repetition, a reward system, visual math mats, multiple opportunities to learn new skills, teacher support and prompting, sentence starters, adapted and modified materials, a token board, small group and 1:1 instruction, manipulatives for math, and testing26 and transportation[27] accommodations. (Ex. C-6-7). According to the 3/16/23 IEP, the student did not need a BIP, strategies to address behaviors that impede his learning or that of others, or an AT device. (Ex. C-8). The IEP included goals and benchmarks for receptive language skills, turn-taking and following one to two step directives, use of two-to-four word phrases for communication,[28] manipulating buttons and zippers, using scissors, self-regulation skills (remaining seated for ten consecutive minutes and using breathing and relaxation techniques when feeling agitated), identifying with a story, writing words to describe a picture, and solving single-step word problems (including determining the correct math operation to use). (Ex. C-9-18).
The 3/16/23 IEP indicates that placement in a 6:1+1 and 12:1+1 class was considered and rejected. (Ex. C-28). The 12:1:1 was rejected because the student required a more structured learning environment to support his deficits in ELA, math, and social-emotional skills. (Ex. C-28). The 6:1:1 was rejected because the CSE believed the student could function in a less-restrictive environment with a higher student to teacher ratio and that his independence would diminish in a 6:1:1 class. (Ex. C-28). There is no indication in the record that the student’s parents requested ABA methodology or expressed any concern over the lack of ABA therapy at the CSE meeting.
On September 30, an independent OT evaluation (“OT IEE”) was conducted in the student’s home by OT Evaluator.[29] (Ex. E-1). The evaluation report was issued on November 2, 2023. (Ex. E-1). The OT IEE involved clinical observation in the home, teacher and parent interviews, a caregiver questionnaire (Child Sensory Profile 2), and two assessments (“BOT 2”[30] and “The Real”31). (Ex. E-2).[32]
26 These include frequent breaks, focusing prompts, read aloud and repeated directions, extended time, and use of manipulatives. (Ex. C-7).
31 This stands for the Roll Evaluation of Activities of Life. (Ex. E-2). The OT Evaluator noted that the student was easily distracted and sensory under-responsive,[33] and required frequent verbal cues, redirection, repetition, visual modeling, and hand-over-hand assistance for fine motor tasks. (Ex. E-2, 8). The student’s teacher reported similar issues in school, such as the student’s lack of attention and focus, inability to sit still or follow directions, and the need for cues, prompting, and redirection. (Ex. E-2).
During the OT IEE, the student’s grasp pattern was observed to be significantly below age expectations, which affects his writing speed. (Ex. E-2-3). He was also noted to apply heavy pressure to paper. (Ex. E-3). The student was unable to follow directions to complete the sentence copy test. (Ex. E-3). The student’s assessment results showed that his fine motor precision is well below average, his fine motor skills are below average, his fine manual control is in the 3rd percentile, and his manual dexterity is well below average. (Ex. E-4-5). The student’s poor manual dexterity will affect his ability to perform activities of daily living, such as manipulating the fasteners on clothes, tying shoelaces, and unlocking doors with a key. (Ex. E-8). Based on the sensory questionnaire and observations, the student “demonstrates impaired sensory perception,[34] deficits in sensory reactivity35 and deficits in vestibular and bilateral integration.”[36] (Ex. E-10). On The Real assessment, the student was found to be in the less than 1st percentile in activities of daily life compared to same-aged peers, including deficits in dressing skills, hygiene and grooming, feeding skills, toileting skills, functional mobility (like safety belts and getting in/out of vehicles), housework, personal safety (like stranger awareness, calling 911, or notifying an adult when injured), and school-related skills (such as managing his school materials and completing assignments). (Ex. E-11-12).
According to OT Evaluator, the student’s various deficits, as described in the OT IEE, have negatively impacted his ability to participate in the academic curriculum. (Ex. E-13). She believes, based on the OT IEE, that the student requires individual OT three times per week for 45 minutes37 each on a 12-month basis, with access to a sensory gym. (Ex. E-13-14; L-2). OT Evaluator believes that “the absence of appropriate clinical intervention in [the student’s] current and prior programming have not met his needs and have not allowed him to further develop the [OT] skills needed to be successful and independent in school, at home and within his community.” (Ex. E-13). OT Evaluator further recommended 92 hours of compensatory OT services (60 minutes per week for two 46-week school years) to allow the student “to make consistent improvements.” (Ex. E-14; L-2). Additionally
35 Children who exhibit under-responsiveness to sensory input “demonstrate a high neurological threshold with a passive selfregulation strategy. These students tend to ‘miss’ sensory cues that others notice easily (e.g. the teacher calling their name or clothing twisted on their body).” (Ex. E-10).
OT Evaluator believes that 45 minutes sessions are needed “in order to best support [the student’s] need for sensory breaks, positive reinforcement breaks, as well as to adequately address all areas of deficits.” (Ex. E-14). recommended was a sensory diet.[38] (Ex. E-14; L-2). The OT IEE also includes some recommended OT goals for the student. (Ex. E-15; L-2).
On September 16, 2023, a bilingual speech-language evaluation (“SL IEE”) was completed in the student’s home by SL Evaluator.[39] (Ex. F-1-2; K-1). It lasted two hours and 45 minutes. (Ex. F-2). The SL IEE involved a records review, parent and teacher input, input from the student’s SLT provider, clinical observation, and a number of assessments (FCP-R,40 PLS-5,41 ROWPVT,42 EOWPVT,[43] Sounds-in-Words Subtest, and Dynamic Assessment: Non-Word Repetition Task). (Ex. F-1, 4).[44] The student’s teacher reported to SL Evaluator that as of mid-September, the student was functioning below a first-grade level for reading – while he can read the words he struggles with comprehension. (Ex. F-4). In math, the student was reported to be on grade level, with the ability to add and subtract. (Ex. F-4). The student was noted to struggle with communicating in functional sentences rather than one-to-two-word utterances, holding a pencil and writing legibly, maintaining attention/focus, and staying in his seat. (Ex. F-4). The student’s current SLT provider reported that the student was progressing in “all facets of receptive, expressive, and pragmatic language” this school year. (Ex. F-4). The student was noted to be able to express his wants and needs, to request assistance, to identify actions in his environment and in pictures, to attend to a story and answer what/what doing/who/where questions with support, to answer multiple-choice comprehension questions, to follow one-to-two step directions when focused, to sort and categorize nouns, to initiate and return greetings, and “to create verbal and written sentences of increasing complexity,” albeit inconsistently. (Ex. F-5). The student was noted to continue to struggle with focus, attention, turn taking, and impulsivity. (Ex. F-5). Based on the Parent’s report and observation, the student will not eat crunchy foods or non-preferred food items and comes home hungry from school for lack of eating. (Ex. F-3, 7).
Based on the PLS-5, the student’s auditory comprehension, word comprehension, expressive communication, pragmatic language skills, and total language scores were below average. (Ex. F-7, 10-11, 15). It was noted that the student presents with stereotyped repetitive motor mannerisms, physical aggression (towards himself and others), social isolation, echolalia, property destruction, poor sensory integration, ritual speech, poor safety awareness, resistance to change, lack of fear, noncompliance, hyperactivity, and poor frustration tolerance. (Ex. F-12). Based on all the assessments, SL Evaluator determined that the student’s basic interpersonal communication skills are still developing, and his cognitive academic language proficiency is not yet acquired, as demonstrated by his inability to make inferences or process more complex information. (Ex. F-17). The student’s speech was observed to be 40 This stands for Functional Communication Profile – Revised. (Ex. F-1).
41 This stands for Preschool Language Scale – 5. (Ex. F-1).
42 This stands for Receptive One Word Picture Vocabulary Test. (Ex. F-1). repetitive and primarily scripted, with an average phrase length of two-to-three words. (Ex. F-13, 17). His receptive, expressive, and pragmatic language skills were found to be “profoundly delayed.” (Ex. F-17). While some of his literacy skills were above age expectations, like decoding, his reading comprehension was below age expectations. (Ex. F-17-18).
According to SL Evaluator, the student’s “limited vocabulary, inability to communicate and decreased comprehension and attention impacts access to the school curriculum.” (Ex. F-18). She recommended SLT five times per week (4x30x1 and 1x30x2) on a 12-month basis. (Ex. F-18-19; K-2). Additionally recommended was PCAT (1x60x1 weekly), an AT assessment, and a feeding evaluation.[45] (Ex. F-19; K-2). SL Evaluator further recommended 345 hours of compensatory SLT (2.5 hours per week for two 46-week years),[46] which she believes is the amount “needed to give [the student] consistent access to therapeutic intervention that will address his specific language delays …[and] minimize the gaps that are present in his receptive, expressive, and pragmatic language skills.” (Ex. F-19; K-2). The SL IEE also included recommended SLT goals for the student, including goals relating to understanding symbol/object correspondence, staying on task without frustration, following two-to-three step directions, answering what/who/where questions and using up to four-word utterances with AT assistance, social interaction, turn-taking, and improving the clarity of his speech. (Ex. F-20 -21; K-2).
On September 15, 2023, a neuropsychological evaluation (“Neuro IEE”) was conducted by Neuro Evaluator47 under the supervision of a neuropsychologist.[48] (Ex. G-1, 5; M-2). The Neuro IEE report was created on November 9, 2023. (Ex. M-2). This was the first time Neuro Evaluator met the student. (Tr. 61). The Neuro IEE involved review of records,[49] clinical observations, parent and teacher questionnaires, and standardized assessments (ADIR, ADOS-2, BASC-3 PRS, BASC-3 TRS, Bender Gestalt Test, CVLT-C, CELF-3, DAS-II, Sensory Profile-2 Child, Vineland Adaptive Scales, VIATIV).50 (Ex. G-1; M-2; Tr. 50). Neuro Evaluator noted that she was not able to develop a good rapport with the student “due to his unresponsiveness and preference for self-directed activities.” (Ex. G-9). At hearing, Neuro Evaluator described that during their session the student’s behavior was “very difficult to manage” and the student would hit her and throw things. (Tr. 47-48). The student’s session with Neuro Evaluator was approximately four hours, during which the student could stay on task in his seat for only 30-45 seconds at a time unless he was particularly interested in the task, in which case he could sit for
47 She is a licensed school and clinical psychologist and neuropsychology fellow. (Ex. G-18; J-1; M-1).
50 The acronyms stand for Autism Diagnostic Interview Revised, Autism Diagnostic Observation Schedule, Second Edition, Behavioral Assessment System for Children, Parent Rating Scales, Behavioral Assessment System for Children, Teacher Rating Scales, California Verbal Learning Test, Child, Clinical Evaluation of Language Fundamentals, Preschool, Third Edition, Differential Ability Scales, Second Edition, and Wechsler Individual Achievement Test, Fourth Edition, respectively. The CVLT-C was only attempted. (Ex. G-6). one-to-two minutes. (Tr. 48). Neuro Evaluator testified that it appeared from some of the reports she reviewed that the student possibly behaved better in other settings than he had in her testing session. (Tr. 50). She did not observe the student in class as part of the evaluation. (Tr. 50). Neuro Evaluator testified that the results of the Neuro IEE provide a snapshot of the student’s current needs and cannot tell us how he performed or his needs in the past. (Tr. 62-63). However, she testified that the student’s diagnosis is a lifelong developmental disorder that would be unlikely to have occurred recently. (Tr. 63).
The background information in the Neuro IEE indicates that the student’s parents struggle to manage his behaviors at home and in the community. (Ex. G-2). Parental concerns about this behavior include “short attention span, reduced concentration, frequent distraction, hyperactivity, restlessness, subpar handwriting and coordination, and difficulties with adapting to changes.” (Ex. G-2). During the clinical observation the student cried when it was time to accompany Neuro Evaluator to the testing room, attempted to elope, and disturbed items from a shelf. (Ex. G-5). The student was not able to identify colors or shapes for Neuro Evaluator. (Ex. G-5). He also struggled to identify body parts. (Ex. G-6). He spoke some phrases, but also displayed echolalia and was generally difficult to understand. (Ex. G-5). He was absorbed in the textures of toys but did not exhibit much functional play. (Ex. G-5). The student was observed to be self-directed, did not transition well between tasks, and would tantrum if something happened that he did not like. (Ex. G-6).
The student’s overall intelligence was found to be in the very low range (less than .1st percentile), with relative strength in nonverbal tasks (2nd percentile) and weakness in the verbal (less than .1st percentile) and spatial (less than .4th percentile) realms. (Ex. G-6). In academic achievement, the student’s total score was in the extremely low range (.3rd percentile). (Ex. G-7; M-2). It was noted that on reading tasks, the student could identify some letters but could not read letter blends or words. (Ex. G-7). His overall reading score was in the very low range (5th percentile). (Ex. G-7). In writing, it was noted that the student could write his name but not any additional letters, words, or any numbers. (Ex. G-7). His written expression score was in the extremely low range (.1st percentile). (Ex. G-8). In math, the student was noted to be able “to count and identify some shapes and colors … [but not] to solve any problems of quantity or matching.” (Ex. G-8). His math score was in the extremely low range (.5th percentile). (Ex. G-8). The results of the ADOS-2 showed significant symptoms of autism, such as a lack of communication, avoidant eye contact, lack of joint attention and social communication, selfdirected behavior, repetitive and stereotyped behaviors, echolalia and repetitive utterances, and sensory issues. (Ex. G-9; M-2). Neuro Evaluator could not score the student’s CELF-3 core language score because he could not perform all subtests; on subtests he did complete, he scored in the very low range (.1st percentile). (Ex. G-10). Based on Parent’s questionnaire, the student has “Clinically Significant levels of Attention Problems, Atypicality, Withdrawal, Social Skills, Leadership, Functional Communication, and Activities of Daily Living, and At-Risk levels of Hyperactivity and Adaptability.” (Ex. G-10). However, the student scored significantly better based on his teacher’s questionnaire, with the only At-Risk levels being Atypicality and Functional Communication, and no Clinically Significant Levels. (Ex. G-11, 20).[51] The student scored below age expectations in adaptive functioning (less than 1st percentile) based on Parent reports, including the areas of communication skills, daily living skills, socialization, and motor skills. (Ex. G-11). The student was reported to sometimes harm himself. (Ex. G-12). The student’s visual-motor skills were in the low average to average range, with age-equivalent skills for copying geometric shapes with a paper and pencil. (Ex. G-12). Based on Parent’s reports, the student was also found to “both detect[] and miss[] many more sensory cues than others.” (Ex. G-12). He was noted to be averse to certain food textures and be “a picky eater.” (Ex. G-13).
Neuro Evaluator recommended that the student be placed in a classroom with no more than 8 students with instruction “that is infused with ABA principles” because “ABA has a robust research foundation that supports its use in children with autism.” (Ex. G-15; M-3). She did not specify which ABA principles or facets are needed for this particular student or why other methodologies that employ similar aspects could not be effective. (See Ex. G; M).[52] Additionally recommended were various accommodations, including:
a. Individualized visual schedules, supports, and cues paired with verbal instructions b. Structured and predictable routines c. Visual behavior boards and charts to perform multi-step activities d. Repeated directions e. Repetitive practice to aid retention f. Positive reinforcers/tangible reinforcers (high frequency) g. Use of a reward system, such as a token economy h. Picture boards for multi-step tasks i. Preferential seating close to the source of instruction to help [him] remain engaged j. Check for understanding to ensure comprehension of multi-step and more complex instructions k. On-task focusing prompts l. Modified classroom environment: minimal distracting items (Ex. G-15; M-3). A 1:1 paraprofessional for attention and behavior and a 12-month program was also recommended. (Ex. G-15). Additionally recommended were SLT (5x45-60 per week), an AT evaluation, OT (4x45-60), PCAT (2x60x1), and counseling (2x45-60x2) to focus on social skills. (Ex. G-16).
Neuro Evaluator also recommended 30 hours of school-based and 10-hours of home-based[53] ABA therapy per week (with two hours of BCBA supervision per week) to target the student’s “repetitive behaviors, inattention, and social and communication deficits.” (Ex. G-16; M-3). An ABA skills assessment was also recommended prior to starting ABA therapy. (Ex. G-16). Neuro Evaluator testified at hearing that these ABA recommendations (30 school-based hours and 10 home-based hours per week) were calculated based on the fact that the student was a level two (out of three) on the autism scale, in combination with her clinical observation and testing results. (Tr. 52-53).54 Neuro Evaluator testified that she recommended home-based ABA because the student is “having difficulties at home, such as, like, daily functioning, following routines, sitting still while eating, tying his shoes, doing just basic daily functions. And he’s not able to be independent at home and follow directions in order to go with the family schedule.” (Tr. 54). She also indicated that the home-based hours would help the student generalize adaptive skills he learns at school to the home environment. (Tr. 54-55).
According to Neuro Evaluator, “[d]ue to the absence of appropriate educational and therapeutic services while [the student] has been attending a DOE program, [he] requires compensatory education programming that includes:” 1,380 hours of school-based ABA therapy per school year (30 hours per week for 46 weeks per year), 460 hours of home-based ABA therapy per school year (10 hours per week for 46 weeks per year), 184 hours of OT per school year (4 hours per week for 46 weeks per year), 230 hours of SLT per school year (5 hours per week for 46 weeks per year), 92 hours of counseling per school year (2 hours per week for 46 weeks per year), 92 hours of PCAT (2 hours per week for 46 weeks per year), and 92 hours of BCBA supervision per school year (2 hours per week for 46 weeks per year). (Ex. G-17; M-3-4).55 Finally, an evaluation with a child psychiatrist or developmental pediatrician was recommended to determine if the student would benefit from medication to manage the symptoms from his ADHD and ASD. (Ex. G-18).56
Neuro Evaluator testified at hearing that this calculation of compensatory services was simply based on the number of hours she is currently recommending that he receive, multiplied by the number of weeks in a school year. (Tr. 55, 57). When asked at hearing how this number of hours could be practically implemented for the student, Neuro Evaluator suggested that the student’s need for ABA could be filled either by ABA-infused instruction or with compensatory hours after school (Tr. 56-57), suggesting that if the student receives the appropriate program during the regular school day, that would eliminate the need for after-school compensatory hours. According to Neuro Evaluator, ABA is “a methodology used to teach” not something that would need to be provided in a separate pull-out session. (Tr. 56-57). Parent testified at hearing that he believes the student could handle up to four hours of compensatory services after a full school day “with the right help.” (Tr. 70-71).
LEGAL FRAMEWORK
IDEA
The IDEA provides that children with disabilities are entitled to a free appropriate public education (“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 Individualized Education Program (“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
54 She did not provide any specifics about what testing results or clinical observations contributed to this recommendation. Based on her answers, it appeared to be based more on the student’s autism “level.” 55 These recommendations do not appear to take into account the related services that the student already received during the school years at issue. 56 There is no indication in the record that such an evaluation has been done. 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 S.Ct. 988, 999 (2017). A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.” Id. The IEP must be reviewed at least annually [34 C.F.R. §300.324(b)(1)(i)], and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year [8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010)]. Generally, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with nondisabled peers, known as the least-restrictive environment (“LRE”). 34 C.F.R §300.114(a)(2).
The appropriateness of an IEP should be evaluated prospectively from the time that it was created. See R.E. v. N.Y.N. Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012); D.N. v. Bd. of Educ., 2015 WL 5822226, *29 (E.D.N.Y. 9/28/15). Information not available to the CSE may not be relied upon to invalidate a substantively appropriate IEP. C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376, *13 (S.D.N.Y. 12/23/13); J.M. v N.Y.C. Dep't of Educ., 2013 WL 5951436, *18-*19 (S.D.N.Y. 11/7/13)(holding that a progress report created subsequent to the CSE meeting may not be used to challenge the appropriateness of the IEP).
An IEP must include a written statement of the student’s present levels of academic achievement and functional performance and measurable annual goals designed to meet the student’s needs that result from their disability. 20 U.S.C. §1414(d)(1)(A); 34 C.F.R. §300.320(a); 8 N.Y.C.R.R. §200.4(d)(2). Even where deficiencies are identified in the IEPs annual goals, that is unlikely, on its own, to rise to the level of a denial of a FAPE because an IEP need not identify annual goals as the only vehicle for addressing each of the student’s needs. See J.B. v. NYC Dep’t of Educ., 242 F.Supp.3d 186, 199 (E.D.N.Y. 2017). Furthermore, courts have been reluctant to find a denial of a FAPE based on insufficient specification regarding how goals will be measured if the goals otherwise address the student’s area of need. See D.A.B. v. NYC Dep’t of Educ., 973 F.Supp.2d 344, 359-61 (S.D.N.Y. 2013); A.D. v. NYC Dep’t of Educ., 2013 WL 1155570, at *10-11 (S.D.N.Y. 3/19/13); J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *13 (S.D.N.Y. 2/20/13); P.K. v. NYC Dep’t of Educ., 819 F.Supp.2d 90, 109 (S.D.N.Y. 2011); Application of a Student with a Disability, Appeal Nos. 23-087 (“I do not find that the goals in the proposed IEP were so faulty that it would have prevented the student from making educational progress”); 23-117 (finding that while the student’s math goal was “broad, when considered in combination with the supports recommended for the student, including math ICT services, the math annual goal generally addressed the student’s math needs as described in her present levels of performance. …while the CSE could have written a more detailed and particularized math goal, I decline to find that any flaws would alter the outcome of this case because when assessed within the context of the overall supports and services recommended for the student in [the IEP]”).
Generally, an IEP need not specify a particular instructional methodology. Rowley, 458 U.S. at 204; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 (2d Cir. 10/29/14); A.S. v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 (2d Cir. 7/29/14); K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 (2d Cir. 7/24/13). However, “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 services consistent with that consensus is not ‘reasonably calculated to enable the child to receive educational benefits.’” A.M. v. New York City Dept. of Educ., 845 F.3d 523, 543 (2d Cir. 2017) citing R.E. v. New York City Dept. of Educ., 694 F.3d 167 (2d Cir. 2012) and C.F. v. New York City Dept. of Educ., 746 F.3d 68 (2d Cir. 2014).
For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dept. of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
The IDEA requires school districts to provide appropriate education to students with disabilities, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Several courts have held that the IDEA does not require school districts, as a matter of course, to design educational programs to address a student's difficulties in generalizing skills to other settings outside of the school environment, particularly where it is determined that the student is otherwise likely to make progress, at least in the classroom setting. See, e.g., F.L. v. New York City Dep't of Educ., 2016 WL 3211969, *11 (S.D.N.Y. 6/8/16); L.K. v. New York City Dep't of Educ., 2016 WL 899321, *8-*10 (S.D.N.Y. 3/1/16), aff'd in part, 674 Fed. App'x 100 (2d Cir. 1/19/17); P.S. v. New York City Dep't of Educ., 2014 WL 3673603, *13-*14 (S.D.N.Y. 7/24/14); M.L. v. New York City Dep't of Educ., 2014 WL 1301957, *11 (S.D.N.Y. 3/31/14); K.L. v. New York City Dep't of Educ., 2012 WL 4017822, *14 (S.D.N.Y. 8/23/12), aff'd, 530 Fed. App'x 81 (2d Cir. 7/24/13); Student X v. New York City Dep’t of Educ., 2008 WL 4890440, *17 (E.D.N.Y. 10/30/08); A.D. v. New York City Dep't of Educ., 2008 WL 8993558, *7 (S.D.N.Y. 4/21/08). In Application of a Student with a Disability, Appeal No. 23-019, the SRO found that “While the neuropsychologist pointed to what the student could work on in a home-based ABA program and testified that a program without the home-based component ‘would not be sufficient,’ she did not seem to consider the student's progress during the 2021-22 school year without the home-based program or how the home-based program would help the student receive educational benefit from his school program.” In that case, the SRO found that, “[b]ased on the evidence in the hearing record, the IHO did not err in finding that the home-based program was recommended predominantly for the purpose of generalizing the student's skills to the home or community setting” and thus no compensatory remedy was required to make up for lack of a home-based program. Id., citing Y.D. v. New York City Dep't of Educ., 2017 WL 1051129, *8 (S.D.N.Y. 3/20/17)(finding out-of-school services were unnecessary to ensure the student made progress in the classroom and would, instead, be aimed at managing behaviors outside the school day); R.B. v. New York City Dep't of Educ., 2013 WL 5438605, *15 (S.D.N.Y. 9/27/13)("While the record indicates that [the student] may have benefited from home-based services, it contains no indication that such services were necessary"), aff'd, 589 Fed. App'x 572 (2d Cir. 10/29/14).
The IDEA requires that school districts re-evaluate students with disabilities at least once every three years, unless the parent and the District agree that re-evaluation is unnecessary. 34 C.F.R. §300.303(b). Additionally, a district must honor a parent’s request for re-evaluation if one has not occurred within the previous 12 months. M.S. v. Lake Elsinore Unified School District, 69 IDELR 148 (9th Cir. 2017). As part of any re-evaluation, the CSE must review existing evaluative data on the student, including any private evaluations, classroom observations, and observations by teachers and service providers, and then conduct further assessments if necessary. 34 C.F.R. §300.305. The failure to conduct further assessments can result in a denial of a FAPE if more information is needed to develop an appropriate IEP. See, e.g., New Mexico Pub. Educ. Dep’t, 115 LRP 12278 (SEA NM 03/02/15); James v. Dist. of Columbia, 68 IDELR 11 (D.D.C. 2016). The CSE must consider the development of a behavior intervention plan (“BIP”) when a “student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions,” and include any behavioral strategies in the student’s IEP. 8 N.Y.C.R.R. §200.22(b). A functional behavior assessment or BIP are not necessary to the provision of a FAPE if the student’s IEP appropriately “identifies a student’s behavioral impediments and implements strategies to address that behavior.” M.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131, 140 (2d Cir. 2013).
Relief
Compensatory Education
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 a FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 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 of time 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. Id.
A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits). Compensatory education is an equitable remedy, so principles of equity and fairness come into play and may impact whether compensatory education is awarded or the amount of the award. See, e.g., Garcia v. Bd. of Educ. of Albuquerque Pub. Schs., 49 IDELR 241 (10th Cir. 2008); Application of Student with a Disability, Appeal No. 21-244.
An IHO generally has broad authority to fashion appropriate equitable relief. See Mr. and Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 (S.D.N.Y. 2011); Forest Grove v. T.A., 129 S.Ct. 2484 (2009). “Generally, compensatory services are not designed for the purpose of maximizing a student's potential or to guarantee that the student achieves a particular grade-level in the student's areas of need.” Application of a Student with a Disability, Appeal No. 23-028, citing Application of a Student with a Disability, Appeal No. 16-033; cf. Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998). “Rather, an award of compensatory education should place the student in the position that he would have been in had the district acted properly.” Id. citing Parents of Student
W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1497 (9th Cir. 994)(holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA" and finding "[t]here is no obligation to provide a day-for-day compensation for time missed"). IEEs
An IEE is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 NYCRR §200.1(z). The IDEA and State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. 20 U.S.C. §1415(b)(1); 34 C.F.R. §300.502(b); 8 N.Y.C.R.R. §200.5(g)(1); D.S. v. Trumbull Board of Education, 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). A parent may request an IEE if the district did not conduct a sufficiently comprehensive evaluation or failed to test the student in an area of need. Trumbull, 975 F.3d at 165; Letter to Baus, 65 IDELR 81 (OSEP 2015); Letter to Carroll, 68 IDELR 279 (OSEP 2016).
Disagreement with a specific DOE evaluation is a prerequisite for an IEE. K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. 1/13/12); R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 (D. Conn. 2005)(finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense). A parent is entitled to only one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees. 34 C.F.R. §300.502(b)(5). A parent must disagree with a district evaluation as of the time it was conducted, and subsequent changes in circumstances do not support a disagreement with an evaluation. Trumbull, 975 F.3d at 171, citing N.D.S. by and Through de Campos Salles v. Acad. for Sci. and Agric. Charter Sch., 2018 WL 6201725, at *2 (D. Minn. Nov. 28, 2018)(["'Informing a school that, subsequent to an evaluation, a child's condition has changed is not the same thing as disagreeing with the evaluation'"). Under those circumstances, the appropriate course of action would be more frequent evaluations (and the parents are entitled to request one per year) not an IEE at public expense. Application of a Student with a Disability, Appeal No. 23-096; 23-018. The two-year statute of limitations does not apply to IEE requests. However, the timing of an IEE request is “tethered to the frequency with which the child is evaluated.” Trumbull, 975 F.3d at 169. So, if the triennial evaluation is due, the request for an IEE is untimely. See Id. at 169-170. Prospective IEP Modifications
A court may direct a school district to reconvene and revise a student’s IEP for the purpose of recommending an appropriate program and placement. See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381 (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”). However, prospective relief in the form of IEP amendments may have the effect of circumventing the statutory process in that the CSE is tasked with reviewing information about the student's progress and periodically assessing the student's needs. See Adams 285 F. Supp. 3d at 393; Student X v. New York City Dep't of Educ., 2008 WL 4890440, *16 (E.D.N.Y. 10/30/08)(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"). 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. See V.W. v. New York City Dep't of Educ., 2022 WL 3448096, *7 (S.D.N.Y. 8/17/22)(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, *8 (N.D.N.Y. 3/29/19)(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); Application of a Student with a Disability, Appeal No. 23-010 (declining to award prospective placement where the school year at issue had already ended “and presumably the CSE had an opportunity to craft an IEP or IESP that met the student’s needs for the [following school year]). One of the rare instances where prospective placement may be warranted is one in which the school year at issue has not yet ended, there is a clear consensus as to the need for a certain program or service, and the district has repeatedly failed to make the necessary change despite a prior IHO’s decision ordering them to consider it. See Application of a Student with a Disability, Appeal No. 23-059.
Burdens
In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c). The DOE has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme, 790 F.3d at 457; Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169. However, just because the DOE does not submit a case does not mean the parent is necessarily entitled to their full requested compensatory remedy. See M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8 (S.D.N.Y. 2017); Application of Student with a Disability, Appeal No. 21-213.
Requested compensatory hours may be limited if the need for them is inadequately supported by the record, would lead to diminishing returns, or could overwhelm the student. See M.M., 2017 WL 1194685, at *8 (“[c]ommon sense and experience teaches that services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become useless, or even burdensome, if provided in overwhelming quantity”); Application of Student with a Disability, Appeal No. 21-213 (“While the district failed to present evidence or its view of an appropriate compensatory education award, the IHO was not required to award all of the relief that the parents sought. Such an outright default judgment awarding compensatory education - or as in this case, any and all of the relief requested without question - is a disfavored outcome even where the district's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious.”) citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir.
2005) and M.M., supra. Furthermore, a request for compensatory relief may be denied if there is insufficient causal link in the record between any deprivation and the student’s current deficits. See, e.g., Phillips v. Dist. Of Columbia, 932 F. Supp. 2d 42 (D.C. Cir. 2013) (upholding denial where student received a similar level of comparable services during the period of deprivation and there was support in the record for the IHO’s conclusion that the student’s current difficulties do not stem from the FAPE denial); T.B. v. Prince George's Cty. Bd. of Educ., 897 F.3d 566 (4th Cir. 2018) (parents failed to prove a loss of educational benefits where teachers showed that when student attended class he performed well and completed assignments); Somberg v. Utica Cmty. Schs., 908 F.3d 162 (6th Cir. 2018) (holding that the Endrew F. standard is not applicable to the determination of compensatory education and it is appropriate to consider any advancement made by the student in crafting an award, regardless of the substantive appropriateness of the IEP); Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489 (9th Cir. 1994) (denying compensatory education where the student was able to graduate with his class and the parents had declined the district’s offer of extra services). Moreover, unreasonable actions on the part of the student’s parents may make it appropriate to reduce a compensatory award. See Application of a Student with a Disability, Appeal No. 23-093.
ANALYSIS AND CONCLUSIONS OF LAW
As noted previously, the student’s eligibility for special education and disability classification are not in dispute here, nor is his need for a 12-month program. However, contrary to the Parent’s assertion, the 12-month school year is 42 weeks long, not 46 weeks. See Application of a Student with a Disability, Appeal Nos. 23-153; 23-019, citing NYS Educ. Law §3604(7); 8 N.Y.C.R.R. §§175.5(a), (c), 200.1(eee).
As a final preliminary matter, it is important to note that because the appropriateness of an IEP must be evaluated prospectively at the time it was created, based on information known to the CPSE/CSE at that time, the analysis regarding these IEPs will not include consideration of any of the IEEs in evidence or the Evaluators’ testimony as to the results of testing. Nor will it include consideration of the ABA Assessment, which was not completed until after the relevant CSE meetings. Because these reports were not created until after the operative CPSE/CSE meetings, the CPSE/CSE was not aware of their contents at the time the IEPs were drafted. The testimony of the Evaluators regarding the results of subsequent testing similarly was not available to the CPSE/CSE. When analyzing each respective IEP, I will only consider the information that the CPSE/CSE possessed at the time of the meeting. Any additional information in the record will be considered only in the context of any appropriate relief to be granted.
2021-22 School Year
Due to the lack of specific factual allegation in the DPC concerning this school year, I do not find that any specific denials of a FAPE have been appropriately raised for this school year, other than the allegation regarding sufficient evaluations. Even if the substantive appropriateness of the student’s program for this school year had been properly raised, I find that any such allegation is controverted by the record, including the Parent’s contradictory allegations. Although the DPC alleges, in conclusory fashion, a denial of a FAPE for this school year, it elsewhere states that the student was provided with ABA services in his preschool program, which would have been the 2021-22 school year, and that he was benefitting from that program. So, the Parent cannot legitimately argue that the program was insufficient and/or did not address the student’s behavioral needs while also endorsing the method used to address his behavior and stating that he was benefiting therefrom. In addition to ABA, the student also received TEACCH methodology in preschool as well as SLT and OT. His preschool teacher reported progress in his ability to follow directions and stay in his seat for longer periods of time.
As for evaluations, it appears that the student was comprehensively evaluated in 2020, so those evaluations would still have been current for the 2021-22 school year. Parent has not alleged that any specific evaluation was lacking, other than an AT assessment. It is unclear from the record why an AT evaluation would have been needed for preschool, when instruction is based more in functional play than academics. However, even if the DOE had reason to know that AT was an area of need for the student, I would not find a denial of a FAPE on that basis. The student’s placement in a classroom that utilized methodologies for “Communication Handicapped Children”(TEACCH) and the provision of SLT suggests that the district was aware of the student’s communication deficits and needs and implemented corresponding supports. There are no allegations to the contrary. Based on the allegations in the DPC, it appears that the preschool program was appropriate for the student. Accordingly, even if the substantive appropriateness of the 2021-22 IEP was properly at issue in this case, I would not find a denial of a FAPE for that school year.
2022-23 School Year
Although the 3/28/22 IEP recommended a 12-month school year, it was not set to be implemented until September for the 10-month portion of the year. The record here contains no information about the student’s services during the summer of 2022. However, the Parent appears to have been satisfied with the student’s preschool IEP, which would have remained in effect until the implementation date of the kindergarten IEP in September. The DPC does not allege that the student did not receive appropriate summer services under the prior IEP during July and August of 2022. To the contrary, the factual allegations of a FAPE denial in the DPC begin with the 3/28/22 IEP, which was implemented in September. Accordingly, the summer of 2022 is not properly at issue here, and even if it were, there is no indication in the record that the student did not continue to receive his appropriate preschool services during that time period. Thus, any alleged denial of a FAPE for the 2022-23 school year will only include the 10-month (36-week)[57] portion of the year.
From September 2022 to March 30, 2023 (the implementation date of the 3/16/23 IEP), the DOE did not meet its burden of proof. Although the student’s triennial evaluation should have been done in January/February 2023, I do not find that the DOE lacked sufficient evaluative information. Again, the comprehensive 2020 evaluation was still current at the time this IEP was created and through the majority of the time it was in effect. The IEP contained sufficient information about the student’s present levels of performance, including assessment results and considerable information about his skills and deficits. Although Parent has alleged a denial of a FAPE based on a lack of an AT evaluation, there is no indication in the record indicating that the CSE was aware of the need for one. There is no indication that Parent, or anyone else, had requested an AT evaluation or expressed concern over the lack of AT. Rather, the IEP indicated that the student did not need AT. I also do not find a denial of a FAPE due to the IEP’s insufficient goals. Although the IEP should have included goals related to the student’s emotional dysregulation, that deficit does not rise to the level of a FAPE denial because the student’s regulation needs were addressed elsewhere in the IEP – through the recommended program and management needs.
Where I find evidence lacking, however, is related to the DOE’s decision to eliminate the ABA services the student had been receiving. The evidence suggests that the student was benefiting from those services, and their elimination was a significant change in the student’s program. There is no evidence in the record explaining the CSE’s reasoning behind that change. While the record does not contain evidence that there was a consensus that the student required ABA methodology at that time, the DOE has also provided no evidence or testimony to explain this program modification. Accordingly, they have not provided a cogent or responsive explanation for that decision made in the 3/28/22 IEP.
The DOE has similarly failed to meet their burden regarding the 3/16/23 IEP. Although the student’s triennial evaluation was past due at the time this IEP was created, I do not find that this procedural violation rose to the level of a denial of a FAPE because the IEP included information from a number of recent assessments, as well as input from the student’s teachers and services providers. It included a significant amount of information about the student’s present levels of performance, including both his abilities and his areas of need. Despite the Parent’s allegation that the CSE could not assess the student’s present levels of performance regarding speech, the IEP contains the results of informal speech assessments (including language screeners, social skills and pragmatics checklists, a language sample, and observations) as well as input from the student’s speech provider regarding his abilities and areas of continued struggle.
Furthermore, I find that the goals were appropriate to address the student’s areas of need. I do not credit the Parent’s allegation that the goals were inappropriate because the speech goal related to the use of a three-word phrase was essentially repeated from the 3/28/22 IEP. As noted in the facts section above, although the goal was similar, it was more challenging in the subsequent IEP. Furthermore, some carry-over of goals between school years is not inappropriate if, as here, it reflects the student’s needs. See P.C. v. Rye City Sch. Dist., 232 F.Supp.3d 394, 413-15 (S.D.N.Y. 2017), quoting L.B. v. NYC Dep’t of Educ., 2016 WL 1609266, *15 (S.D.N.Y. 3/29/18)(finding that, despite “some carry-over” between goals for the years at issue, “each of the disputed IEPs contained a number of new goals and objectives that appropriately reflected [the student’s] progress and updated evaluative information”). The goals in the 3/16/23 IEP included variations on multiple goals from the ABA Assessment and SL IEE and included self-regulation goals to address tantrum behavior. Furthermore, although the IEP did not include a BIP, in addition to the self-regulation goals, it also included management needs for the student’s behavior, including prompts, visual supports for behavior, a reward system/token board, teacher modeling and support.
The evidence lacking for this IEP is again related to the DOE’s decision to continue the denial of ABA services the student had been receiving. Again, the Parent has alleged a denial of a FAPE based on the lack of ABA services and the DOE has provided no evidence or testimony to explain how the recommended program met the student’s needs without ABA. Accordingly, they have not provided a cogent or responsive explanation for that decision made in the 3/16/23 IEP.
Furthermore, although the Parent alleged that the student’s mandated related services were not fully implemented for the 2022-23 school year, the DOE has not attempted to prove that they were. Although Parent gave conflicting testimony regarding the implementation of these services, it was the DOE’s burden to prove that they were provided, and they failed to do so here.
For these reasons, I find that the DOE has not met their burden of proving that the student was offered a FAPE for the 10-month portion of the 2022-23 school year. Specifically, the denial of a FAPE includes the denial of ABA services and failure to fully implement the student’s related services for the 2022-23 10-month school year.
2023-24 School Year
Here, the DOE did not meet its burden of proof regarding the provision of a FAPE for 2023-24 12-month school year. As discussed above, the DOE has failed to show that the IEP in effect at the start of the school year (the 3/16/23 IEP) offered the student a FAPE. However, I do not find an additional procedural violation based on the DOE’s failure to implement the recommendations of the ABA Assessment, as there is no evidence in the record regarding when it was provided to the DOE, nor has the Parent alleged that they requested a new CSE meeting after providing the report to the DOE. Because the DOE has failed to offer a cogent and responsive explanation for the lack of ABA in the 3/16/23 IEP, I find that they have not met their burden as to the provision of a FAPE for the 2023-24 school year. Specifically, the denial of a FAPE includes the denial of ABA services for the 2023-24 12-month school year up to the date that the next IEP is implemented.
Relief
IEE:
I do not find that Parent is entitled to the requested IEE at public expense. First, Parent has not disagreed with a specific DOE evaluation here, which is a prerequisite for a publicly funded IEE. Second, a parent is only entitled to one IEE at public expense per DOE evaluation, and they already requested and were granted a collection of IEEs at public expense by partial resolution agreement. Furthermore, they did not disagree with the lack of feeding evaluation at the time of the DOE evaluation, or even at the time their initial IEE request was made in the DPC. Moreover, since the student’s triennial evaluation is due, any request for a publicly funded IEE based on the DOE’s last evaluation is now untimely. Finally, even if all other requirements were met, I would deny this IEE request because it was made for the first time during the due process hearing, which is not the process contemplated by the IDEA. See Application of a Student with a Disability, Appeal Nos. 23-034; 23-081; 23-102; 23-050; 23-096; 22-150; Application of the Dep’t of Educ., Appeal Nos. 23-034; 22-121. For these reasons, I find that Parent is not entitled to an independent feeding evaluation at public expense. However, the DOE has agreed to conduct a feeding evaluation here, and I find it appropriate that they do so.
Compensatory Education:
I find that some, but not all, of the requested compensatory educational services are appropriate in this case. Here, the FAPE denials consist of a deprivation of ABA services for the 2022-23 10-month school year and the 2023-24 12-month school year up to the date that the next IEP is implemented, as well as the potential failure to fully implement the student’s related services for the 2022-23 10-month school year.[58] The record here is unclear as to what, if any, related services the student was mandated but failed to receive during the 2022-23 10-month school year. However, it is appropriate that the student receive makeup services for any missed due to the school’s staffing shortages. Accordingly, the DOE should review service records for that time period and provide any missed services as a bank of compensatory hours, to be implemented by an appropriately qualified provider of the Parent’s choosing at a reasonable market rate.
As for the ABA services, the calculation is much more difficult. None of the evaluations relied on by the CSE for the two relevant IEPs are in evidence, so it is difficult to determine from the record what the CSE should have done at the time based on the available evaluative data. Nor is there specific information in the record as to what ABA services the student was receiving in his preschool program. Furthermore, the Parent’s evidence provides inconsistent information about the student’s ABA needs. According to the Neuro Evaluator, based on recent testing, the student needs 30 hours of school-based compensatory ABA and 10 hours of home-based compensatory ABA for each week of a FAPE denial.[59] However, this recommendation appears to be based more on a rote calculation corresponding to the student’s autism “level” than any specific educational deficits caused by the denial of a FAPE or any independent determination of the amount of services needed to bring the student to the level he would have been, but for the FAPE deprivation. Furthermore, Neuro Evaluator testified that her evaluation only gives us a snapshot of the student’s current needs and cannot tell us anything about past needs at the time the IEPs were created. While the record here establishes that the student’s autism diagnosis existed at the time of the IEPs, it does not establish that his needs were the same at that time.
Moreover, her testimony established that ABA is methodology that should be infused with the curriculum and used while teaching, rather than something that should be provided in a separate pull-out session. This weighs against the value of any recommendation for hundreds of hours of standalone ABA sessions. Neuro Evaluator seemed to admit as much when she testified that the student would only need after school ABA hours if he were not placed in a program that infuses ABA with instruction.
As to home-based hours specifically, Neuro Evaluator recommended the home-based services to work on home skills and generalize skills learned at school to the home environment. However, while generalizing skills to the home environment may be helpful to the student and thought desirable by his loving parents, I find that it is above and beyond what would have been required for a FAPE. I do not find evidence in the record that the student is unable to make progress in the classroom setting without home-based generalization supports, nor did Neuro Evaluator make such a claim. Based on the evidence before me, it appears that the home-based program was predominantly recommended for the purpose of generalizing skills to the home environment, which I do not find necessary to remedy with compensatory services.[60] Furthermore, I have doubts about the accuracy of the Neuro IEE results, which informed the recommendations of Neuro Evaluator. While the evaluation included a significant number of assessment tools, it appears that the results were not consistent with the student’s abilities in the classroom, which is the most relevant consideration here. Neuro Evaluator was unable to establish a rapport with the student, was unable to manage his behavior (even with the help of his parent), he hit her and threw things during testing, and the results he achieved were below his capabilities, based on other evidence in the record. Neuro Evaluator admitted at hearing that she reviewed evidence suggesting that the student behaved better in other settings than he did during the evaluation. Her observations during testing were more consistent with the parents’ observations of the student at home. However, based on comparison of the teacher and parent questionnaires, it appears that the student behaves significantly better at school than he does around his parents. Many of the assessment tools used in the evaluation were based on parent reports, and the parent was present during the evaluation. So if the student’s behavior around his parents is not indicative of his school behavior, the assessment results could be skewed by that as well. Neuro Evaluator did not observe the student in a classroom setting as part of the evaluation, so additional evidence of the student’s classroom performance was lacking.
Moreover, the inaccuracy of the Neuro IEE results is evident in places where the student was unable to demonstrate skills that he has clearly shown in other settings, as established elsewhere in the record. For example, the student was not able to identify shapes, colors, letters, or body parts during the evaluation, which are all skills he was able to perform at the time of his 3/28/22 IEP. Similarly, he did not exhibit functional play, which was also a skill noted in the 3/28/22 IEP. The 3/28/22 IEP noted that the student could read color and number words and other simple words, and the 3/16/23 IEP noted that the student could read the vast majority of the high frequency words, but yet the Neuro IEE reported that the student could not read any words. The 3/16/23 IEP noted that the student could identify and write each letter, trace words to form a sentence, and write his name independently, yet the Neuro IEE reported that the student could only write his name and not any additional letters, words, or any numbers. Accordingly, I have significant doubts about the accuracy of the Neuro IEE results and consequently have afforded them little weight in this decision.
I have similar concerns over the accuracy of the ABA Assessment. While it was created by someone with more specialization in ABA (which weighs in its favor), it involved only a single assessment tool based entirely on a parent questionnaire. As discussed previously, there is evidence here that the parents’ observations at home are significantly worse than how the student performs in school. The ABA Assessment also lacked any observation in a school setting. So, its recommendations appear to have been geared more towards home-based services rather than the student’s educational needs.[61] Furthermore, the recommendations of the Neuro IEE are not consistent with the recommendations of the ABA Assessment which was performed by a BCBA. There is no indication in the record that Neuro Evaluator has ABA training. So, although the ABA Assessment similarly lacked observation in a school setting, which could impact its accuracy, I give more weight to its recommendations because 1) it was created closer in time to when the relevant IEPs were created, 2) it does not appear to have most of the same inaccuracies described in the previous paragraph, and 3) it was created by someone with more expertise in the field of ABA. While the DOE has the burden of proof on compensatory education, there must be a factual basis in the record to support such an award, of which I informed the parties well in advance of the hearing. Here, for the reasons described above, I do not find sufficient basis in the record to support the requested amount of compensatory ABA hours. I find insufficient link between the student’s current educational deficits or his needs at the time the deficient IEPs were created and the Parent’s compensatory request. Moreover, there is evidence in the record that the student made progress during the school years at issue despite any lack of ABA services. Between the 3/28/22 and 3/16/23 IEPs, the student progressed from a pre-kindergarten to a kindergarten functional level for reading and math, which corresponds to his grade at those respective times. Between the 3/16/23 IEP and the recent IEEs, the student continued to progress. According to teacher reports contained in the SL IEE, while the student’s overall reading is slightly below grade level, his decoding is above grade level, and he is performing on grade level in math. So the amount of ABA hours requested is grossly out of proportion with any educational deficit caused by the denial of a FAPE. Furthermore, the sheer number of hours requested could lead to diminishing returns or overwhelm the student. Here, although it may be optimistic, I credit Parent’s testimony that, based on their knowledge of the student, he could meaningfully benefit from four hours per day of afterschool ABA services. That would amount to twenty hours per week, which is consistent with the recommendation of the ABA Assessment.[62] I find that for the period of a FAPE denial here, starting in September of 2022, the DOE shall provide a bank of compensatory ABA services amounting to 20 hours per week, for a total of 720 hours for the 2022-23 10-month school year, plus 20 additional hours per week for the 2023-24 12-month school year up to the implementation date of the student’s next IEP. Since the period of a FAPE denial spans two school years, the hours must be used within two years of the implementation date of the student’s next IEP. There are no equitable considerations that affect this award. IEP Modifications: While I find it appropriate for the CSE to reconvene and consider the results of all current evaluations, I decline to order them to implement any specific programs or methodology. I find that the directives of the IDEA would be best effectuated by ordering an IEP review. Although the school year at issue is not over, the student is almost due for his annual IEP review anyway. Furthermore, this is not the rare situation where there is a clear consensus as to the need for a certain program or service and the district has repeatedly failed to make that change. Here, the record does not establish that the student’s current teachers or service providers agree that ABA methodology is needed to allow the student to make educational progress. Without that information, it is unclear whether there is a consensus as to that need (and methodology need not be specified on an IEP unless there is a clear consensus as to the need for such provision). Moreover, there is insufficient evidence in the record to determine the student’s least restrictive educational environment or any need for a non-public school placement. Furthermore, none of the evaluations in the record here were available to the CSE at the time the last IEP was developed. So, this is not an instance of the DOE repeatedly ignoring evaluative data and refusing to consider certain recommendations. Here, the CSE should first have the opportunity to consider all the available evaluative material in determining the appropriate program for the student.
I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
1. ORDERED that the New York City Department of Education shall conduct a feeding evaluation of the student; it is further
2. ORDERED that the New York City Department of Education shall review the student’s related service records for the 2022-23 10-month school year and provide any missed services as a bank of compensatory hours, to be implemented by an appropriately qualified provider of the Parent’s choosing at a reasonable market rate. All sessions must be used within one year of the date of this Order; it is further
3. ORDERED that the New York City Department of Education shall provide a bank of compensatory 1:1 ABA services amounting to 20 hours per week, for a total of 720 hours for the 2022-23 10-month school year, plus 20 additional hours per week for the 2023-24 12-month school year from July 2023 to the implementation date of the student’s next IEP. All hours must be used within two years of the implementation date of the student’s next IEP; and it is further
4. ORDERED that the New York City Department of Education’s Committee on Special Education shall, upon receipt of the results of all pending IEEs as well as the above-ordered feeding evaluation, convene a review meeting to consider all available evaluative material and develop an IEP with an appropriate program and services in light of the findings therein.
SO ORDERED.
DATED: December 07, 2023 Leah Martin, Esq. (Signed Electronically)_
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.
APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD
DOE’S EXHIBITS
- - - -
PARENT EXHIBITS
A. DPC 6/28/23 7 pages
B. IEP 3/28/22 25 pages
C. IEP 3/16/23 29 pages
D. ABA Assessment 5/18/23 14 pages
E. OT IEE 11/2/23 16 pages
F. SL IEE 9/16/23 21 pages
G. Neuro IEE 11/9/23 23 pages
H. SL Evaluator Resume Undated 3 pages
I. OT Evaluator Resume Undated 1 page
J. Neuro Evaluator Resume Undated 4 pages
K. SL Evaluator Testimony Affidavit 11/17/23 2 pages
L. OT Evaluator Testimony Affidavit 11/20/23 2 pages
M. Neuro Evaluator Testimony Affidavit 11/21/23 4 pages
N. Parent Testimony Affidavit Undated 2 pages
IHO’S EXHIBITS
- - - -
Footnotes
[2] Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parent Exhibits, numbered designations for DOE’s Exhibits, and roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent Exhibit A, page 1, will be referred to as (Ex. A-1). A complete list of hearing exhibits is attached herewith as Appendix A.
[3] Despite being included on the scheduling email and conference invitation and confirming that he was available at the proposed conference time, the DOE Representative did not appear at the PHC.
[4] DOE Representative had emailed the undersigned three minutes before the scheduled start time indicating that he had a sudden scheduling conflict and could not appear. (DOE Nonappearance 10.25).
[5] References to the hearing transcript will be referred to as (Tr.) followed by the page number within the transcript.
[6] Exhibit N is the direct testimony affidavit of Parent. It is not signed or notarized but was sworn on the record. (Tr. 67).
[10] Both parents were present at the meeting. (Ex. C-2).
[15] Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing. Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056. Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees. 20 U.S.C. §1415(f)(3)(B); 34 C.F.R. §§300.508(d)(3)(i), 300.511(d); 8 N.Y.C.R.R. §§200.5(i)(7)(i)(a); (j)(1)(ii); R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 187-88 n.4 (2d Cir. 2012)(“To permit [the parents] to add a new claim after the resolution period has expired would allow them to sandbag the school district"). Here, the DOE did not consent to expand the issues, nor did they open the door at the DPH.
[16] Facts contained in the “Introduction and Procedural History” and “Background” sections above are incorporated here as well.
[17] The 3/28/22 IEP includes information from the student’s SLT and OT providers, suggesting that he was receiving these services during the 2021-22 school year. (Ex. B-2-4). There is no contradictory evidence in the record.
[18] This stands for Assessment of Basic Language and Learning Skill – Revised.” (Ex. B-2).
[20] The source of this information is unclear from the record.
[21] The DPC does not allege a denial of a FAPE based on the failure of the CSE to consider the ABA Assessment or reconvene an IEP meeting, so that is not appropriately at issue in this hearing and will not be discussed further.
[22] This appears to be a standardized assessment based on a comprehensive parent questionnaire. (Ex. D-2).
[25] Specifically, for math, the IEP states that the student “displays many strengths in math such as adding and subtracting numbers with sums up to 10 with prompting and using multiple strategies (draw a picture, manipulatives, counting on), compare groups of objects to determine greater and less.” (Ex. C-3). Although Parent has alleged that this is inconsistent with the assessment finding that the student lacked addition and subtraction fluency, I do not necessarily find them inconsistent, as it seems reasonable that “fluency” in addition and subtraction would involve sums great than ten.
[27] This involves curb to curb transportation with the student remaining in a safe place until transportation arrives. (Ex. C-7).
[28] Although Parent has asserted that the similar goal from the previous IEP (to use three-word phrases for communication) is encompassed in this goal, thus showing a lack of progress, they are subtly different. The previous year’s goal only required the student to use a three-word phrase “in three or more opportunities during a 30-minute activity” (Ex. B-7), whereas this year’s goal requires using a two-to-four-word phrase five times in a 30-minute session (Ex. C-11). So, although the latter goal is similar, it is slightly more challenging.
[29] She is a licensed occupational therapist with a Master of Science degree in occupational therapy. (Ex. E-16; I-1; L-1).
[30] This stands for Bruininks-Oseretsky Test of Motor Proficiency. (Ex. E-2).
[32] OT Evaluator testified that the evidence used for the OT IEE as well as its findings and recommendations are accurately described in the evaluation report. (Ex. L-1).
[33] This was evidenced by the student’s lack of response to his name, frequent noise making, need for repetition, constant movement, and inability to sit and engage with activities. (Ex. E-2).
[34] This is the awareness or interpretation of sensation. (Ex. E-9).
[36] This is “defined by inefficient vestibular processing associated with poor postural, ocular-motor, and bilateral function. Children who demonstrate this pattern of sensory integration dysfunction will demonstrate challenges with posture, balance, ocular motor control, bilateral integration and sequencing skills.” (Ex. E-9).
[38] This “is a carefully designed series of physical activities and accommodations tailored to give each child the sensory input he or she needs to maintain a ‘just right state,’ necessary for learning, playing appropriately with peers, and participation in both preferred and non-preferred school and home activities.” (Ex. E-14).
[39] She is a licensed speech pathologist with New York State certification as a school building leader, school district leader, and teacher of the speech and hearing handicapped. (Ex. F-21; H-3; K-1).
[43] This stands for Expressive One Word Picture Vocabulary Test. (Ex. F-1).
[44] SL Evaluator testified that the evidence relied on in the SL IEE as well as its findings and recommendations are explained in the evaluation report. (Ex. K-2).
[45] This was recommended “to assess [the student’s] feeding skills and any sensory deficits which may be contributing towards [his] inability to accept a variety of foods differing in taste, temperature or texture …[and] to understand ways to expand upon his ability to consume a variety of foods so he can participate in school activities, such as lunch and breakfast.” (Ex. F-19).
[46] This recommendation does not appear to take into account the SLT sessions the student already received during the school years at issue.
[48] The terms of the supervision are unclear from the record.
[49] Included in the records review was an undated progress report from the student’s SLT provider recommending a continuation of three sessions of SLT per week (2x30x1 and 1x30 in a group). (Ex. G-5).
[51] The Neuro IEE did not explain this discrepancy, nor did Neuro Evaluator in her testimony.
[52] When asked about the need for ABA methodology at the hearing, Neuro Evaluator testified only that “ABA is a very highly researched, evidence-based therapy that has a good track record of helping children with behavior difficulties associated with autism.” (Tr. 53-54).
[53] Additional supports such as in-home behavioral support were also recommended by the 10/20/21 Social Evaluation. (Ex. G-3).
[57] The 10-month school year is 36-weeks long. See Application of a Student with a Disability, Appeal Nos. 23-153; 23-019, citing NYS Educ. Law §3604(7); 8 N.Y.C.R.R. §§175.5(a), (c), 200.1(eee).
[58] As noted previously, since the DPC did not allege a denial of a FAPE based on an insufficient mandate for OT, SLT, counseling, BCBA supervision, or PCAT, those are not properly at issue. Accordingly, there is no deprivation of a FAPE that would appropriately be remedied through the provision of those services. Parent Counsel was on notice that the issues for hearing would be limited to the allegations in the DPC. They could have amended the DPC when they received the IEE results if they wished to supplement the allegations regarding the denials of a FAPE, but they chose not to do so. Furthermore, there is no indication in the record that the CSE had reason to know that the related service mandates were insufficient at the time the IEPs were developed.
[59] I am using the weekly breakdown of recommended hours rather than the total number of recommended hours, as her recommendation was based on a larger period of a FAPE denial than I have found and an inaccurate number of school weeks in a year.
[60] See Application of a Student with a Disability, Appeal No. 23-019; Y.D. v. New York City Dep't of Educ., 2017 WL 1051129, *8 (S.D.N.Y. 3/20/17); R.B. v. New York City Dep't of Educ., 2013 WL 5438605, *15 (S.D.N.Y. 9/27/13) aff'd, 589 Fed. App'x 572 (2d Cir. 10/29/14).
[61] Parent Counsel argued as much in his opening. (Tr. 40).
[62] On the record before me, I find that the agreement between the Parent’s estimate and the ABA Assessment, which, however flawed, was at least created closer in time to the relevant IEPs by someone specializing in the field, to be the best evidence available on which to base the compensatory remedy.