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FINDINGS OF FACT AND DECISION
Case Number: 251482
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # [REDACTED]
Impartial Hearing Officer: Nicholas Bancroft
Date of Filing: July 7, 2023
Hearing Requested by: Parent
Date(s) of Hearing: September 19, 2023
Record Close Date: October 20, 2023
Date of Decision: October 20, 2023
Time Sensitive: Yes
BACKGROUND
The Parent, [1] through counsel, filed a Due Process Complaint (“DPC”) on or about July 7, 2023. In the DPC, the Parent alleges the Department of Education (“Department”) failed to offer the student a free appropriate public education (“FAPE”) for the 2023-2024 school year. [2] The District did not file a response to the DPC.
Parent alleges the DOE: (1) failed to recommend appropriate related services, supports, and accommodations for Student; (2) failed to recommend an appropriate placement for Student; (3) failed to recommend research-based methodologies; (4) failed to develop appropriate, meaningful and measurable goals to address the Student’s needs; (5) failed to provide Student with extended school year services; and (6) impeded the Parents meaningful participation in Student’s educational decision-making. [3]
By way of relief, Parent seeks: (1) a finding that the DOE denied Student a FAPE for the 2023-2024 school year; (2) an order for the DOE to provide all related service encounter attendance records from the beginning of the 2023-2024 school year to the present, at least five days before any resolution meeting; (3) an order for the DOE to reconvene an IEP meeting to include the following as recommended in Student’s recent, independent evaluations: (a) small class of 8-12 students; (b) occupational therapy (“OT”), individually, three times a week for forty-five minute sessions; (c) parent counseling and training (“PCAT”), two hours a week; (d) physical therapy (“PT”), individually, two times a week for forty-five minute sessions; (e) speech and language therapy (“SLT”) in a group of two, once a week for a forty-five minute session; (f) SLT, individually, twice a week for forty-five minute sessions; (g) social skills group, three times a week; (h) feeding therapy, individually, once a week for a thirty-minute session; (i) inclusion of a sensory diet; (j) applied behavior analysis (“ABA”), individually, five hours a day at-school; (k) ABA, ten hours a week at home; (l) access to a sensory gym; (m) implementation of Student’s January 26, 2023 behavior intervention plan (“BIP”); (n) research based method of reading and writing instruction; (4) an order that the DOE fund compensatory education and services in areas that include, but are not limited to: (a) SLT; (b) OT; (c) PT; (d) social skills training; (e) counseling services; (f) ABA therapy; (g) feeding therapy; (h) PCAT; and (i) any additional services to remedy the DOE’s failure to provide an appropriate educational program and methodologies that could allow for meaningful educational progress; (5) an order for the DOE to recommend an appropriate placement that will provide the Student with the individualized instruction he requires and that can appropriately address his needs. If the DOE cannot identify an appropriate placement, the DOE shall defer the case to the Central Based Support Team (“CBST”) to identify an appropriate placement for Student within 15 days of the IEP meeting. If the DOE fails to locate an appropriate non-public school (“NPS”) placement through the CBST within 30 days of the IEP meeting, then the DOE shall fund a private school of the Parent’s choosing; (6) until an appropriate placement is located and Student begins attending such a placement, an order that the DOE fund thirty hours a week of push-in, 1:1 instruction by a provider trained in ABA of the Parent’s choosing at the provider’s normal and customary rate; and (7) an order for the DOE to fund/reimburse ten hours a week of home-based ABA to the extent not covered by the Parent’s insurance. [4]
In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered Student a FAPE for the 2023-2024 school year, b) Parent is entitled to compensatory and equitable relief and, c) the relief requested is appropriate in part.
PROCEDURAL HISTORY
I was appointed on July 13, 2023. A pendency hearing was held on July 25, 2023. [5] After the pendency hearing, I issued a Pendency Order granting the Parent’s pendency request. [6] A Settlement and Pre-Hearing Conference (“PHC”) was scheduled for August 11, 2023. At the PHC, the parties had not reached a resolution and the case was scheduled for a Due Process Hearing (“DPH”) to be held on September 19, 2023. At the PHC, we discussed the disputed issues and remedies, as well as evidentiary and witness disclosures. [7] Furthermore, Parent’s counsel requested a subpoena duces tecum addressed to the CSE requesting Student’s related service encounter attendance records, which I ordered. [8]
On September 19, 2023, the parties appeared for a Due Process Hearing. At the hearing, the District submitted proposed exhibits 1-21. [9] Parent submitted proposed exhibits A-X. [10] Many of the District’s and Parent’s proposed exhibits were duplicates. [11] For clarity, I will refer to the exhibits by their original identification number or letter. I admitted both the District’s and Parent’s exhibits in their entirety. [12] The District called no witnesses. [13] Parent called three witnesses who testified via affidavit. [14] The District chose not to cross examine Parent’s witnesses. [15] Both parties gave a combined opening and closing statement. [16]
FINDINGS OF FACT AND DECISION
After a full review of the record generated at hearing, I make the following findings of fact and determinations.
Student is a [REDACTED]-year-old student with a disability classification of autism. [17] Student first began receiving special education services through Early Intervention. [18] During the 2022-2023 school year Student’s related service mandates included: special education itinerant teacher services (“SEIT”), SLT, OT, and PT. [19] However, the Department failed to provide Student with all of the mandated services. [20] Parent noticed Student’s regression when he was not receiving services. [21] Student attended a private pre-school in 2022-2023 as the Department did not provide Student with a placement. [22]
In preparation for Student’s kindergarten year, the Department sent a Notice of Recommendation to Parent notifying Parent of upcoming reevaluations to determine if Student will continue to be eligible for special education services and if so, to determine the services Student requires to meet their educational needs. [23]
Student was evaluated in the following areas: neuropsychology, speech language, occupational therapy, physical therapy, assistive technology, feeding and swallowing. [24] Additionally, a functional behavior assessment was conducted, and a behavior intervention plan created. [25] Lastly, Student’s ABA skills were assessed. [26]
Summaries of the pertinent evaluations are as follows:
Neuropsychology Evaluation (March 2023)
The evaluation was conducted by Psychologist. [27] Student was first diagnosed with autism in April of 2021. [28] As a result of this evaluation, Student was diagnosed with autism spectrum disorder, mixed expressive receptive language delay, and ADHD-primarily hyperactive type. [29] Student’s overall intellectual functioning was within the extremely high range of functioning. His overall intellect was placed at the 99.9th percentile. [30]
Psychologist’s opinion is that Student should attend a class of 8-12 students in a small, full time special education program geared towards children with autism spectrum disorder and hyperactivity. [31] Student requires this type of placement because while Student is extremely intelligent, it takes a significant amount of work to get him to engage in instruction. [32] Further, his behavior in the classroom can be disruptive to others. [33] He needs support in learning to be available to learn even when the topic is not numbers. [34] Student will need to work on appropriate classroom behavior, appropriate ways to engage with others, and general classroom safety. [35]
Psychologist’s evaluation was shared with the CSE prior to finalizing Student’s April 28, 2023 IEP. [36] However, the CSE determined an ICT classroom was an appropriate program placement for Student. [37] Psychologist’s opinion is that an ICT classroom is inappropriate because Student is very self-directed and it is difficult to get Student to engage in instruction. [38] Student requires a smaller class size with a high student to staff ratio to allow him to participate in the instruction. [39] Student needs significant support to stay on task and stay with the teaching. [40]
As it relates to the length of Student’s school year, Psychologist testified a 12-month program is appropriate because his profile indicates that he will lose significant ground during the two-month break. [41] Student’s impairments are severe, and he will need someone to help him continue to be available to learn. [42]
Speech-Language Evaluation (February 2023)
Student has previously been diagnosed with a speech delay and a developmental delay. [43] Results from the assessment indicate that Student presents with delays in many areas, specifically with higher level expressive language skills and social/pragmatic language skills. [44] These remarkable deficits are compromising his academic success and put him at risk for further delayed language functioning. [45] Based on formal and informal assessment, it is determined that the significant delays that are present in Student’s expressive language and play/pragmatic language will have negative secondary effects on his ability to participate in the current curriculum. [46] Student needs consistent support and models to develop the skills he is lacking. [47]
Speech-Language Pathologist recommended: individual SLT, 2x per week for 45- minutes; SLT in a group of 2, 1x per week for 45 minutes to target social/pragmatic skills; compensatory services in the form of a bank of 207 SLT hours. [48] Speech-Language Pathologist regarding the recommendation for compensatory SLT hours:
“The hours would give [Student] consistent access to therapeutic intervention that will address his significant deficits. Providing these services will allow [Student] to have the opportunity to address his specific needs in a consistent manner. [Student] needs intensive therapy to establish the foundational language skills he is lacking. This recommended amount was derived from a qualitative clinical approach, considering [Student’s] current needs and the time he will need to ‘catch up’ to make him whole. These hours are recommended in addition to his provision of service to help expedite minimizing the gaps that are present. Unfortunately, without a robust clinical program, the gaps will continue to widen. It is recommended that these hours shall not have an expiration date, to allow access to them over time.” [49]
Occupational Therapy Evaluation (January 2023)
In addition to Student’s many strengths, the evaluation reveals Student has several challenges that impact his participation in daily activities and meaningful occupations. [50] This includes significant difficulties in motor coordination, bilateral coordination, fine motor, visual motor, sensory processing, self-regulation, ADL/iADL, attention, and transition skills at home and at school. [51] It is recommended that Student continue receiving OT services, 3 sessions per week for 45 minutes, at school, individually. [52] Occupational Therapist recommends a bank of compensatory OT hours (92 hours). [53] The recommended amount was derived from considering Student’s current needs, insufficient OT therapy mandates in the past, and a gap in services between ages 3 and 4 that contributed to further widening of existing developmental delays. [54] Occupational Therapist opines that without these foundational skills, Student will have difficulty participating in and accessing his school curriculum and daily routines. [55]
Physical Therapy Evaluation (January 2023)
Formal testing and informal observation revealed that Student presents with deficits in all areas of gross motor functioning including posture, ambulation, balance, coordination, strength, and endurance. [56] Testing indicates that it is difficult for Student to participate in age-appropriate gross motor activities and engage with peers at home, at school, and in the community. [57] Recent studies have upheld the hypothesis that muscle weakness, poor balance, and decreased coordination are directly related to functional limitations in the school, home, and community environments. [58] Additionally, these deficits make him more at risk for falls, decrease his overall level of safety in his school and community, and limit his ability to access extracurricular activities designed for children with ASD. [59] Lack of access to activity has been demonstrated to increase an individual’s risk of comorbidities including obesity and heart disease, as well as increase social isolation. [60] These factors are suggestive of Student needing consistent, skilled PT services to help him function with safety at home, in school and in the community as well as to increase his participation in all age-appropriate physical activities alongside his peers. [61] Physical Therapist recommends 2 sessions per week of PT for 45 minutes per session, individually. [62] Physical Therapist recommends a bank of 104 hours of PT as compensatory education. [63] These hours will ensure that Student has consistent access to therapeutic intervention to address his significant gross motor deficits and to make up for the interruptions and lack of services between 2020 to the present. [64]
Assistive Technology Evaluation (February 2023)
This evaluation was ordered to help determine if assistive technology would help Student access his curriculum. [65] Given Student’s age and the results from the evaluation it is not recommended that Student receive supplemental assistive technology support at this time. [66] Given Student’s age and current level of function, it is imperative that he receive foundational instruction to address his reading comprehension difficulties, and not be stifled by the integration of technology that may detract from the efficacy of more traditional intervention. [67]
Feeding and Swallowing Evaluation (February 2023)
Student presents with a mild to moderate sensorimotor feeding disorder. [68] It is determined that the delays that are present in specific areas of feeding have negative secondary effects on Student’s social relationships and independence, in both academic and home settings. [69] In order for a student to benefit from the curriculum, they must have adequate nutrition in order to be healthy enough to attend school, have stamina, eat school meals safely, and socialize with peers. [70]
Speech-Language Pathologist recommends individual feeding therapy, one time per week individually for 30 minutes per session. [71] Additional recommendations include a bank of 46 hours of feeding therapy as compensatory education. [72] Speech-Language Pathologist concludes Student needs therapy to establish the foundational feeding skills he needs. [73]
Applied Behavior Analysis (“ABA”) Skills Assessment (January 2023)
Parent provided affidavit testimony of Board-Certified Behavior Analyst (“BCBA”). Regarding Student’s ABA skills assessment report BCBA testified:
“I found [Student’s] overall score was lower than a typically developing child of his age. His maladaptive behaviors have been reinforced for years in inappropriate learning environment[s] that were unable to meet his behavioral and communication needs. These behaviors have impeded his learning and prevented him from developing the foundational skills he needs to become independent.” [74]
The ABA skills assessment recommended: (1) enrollment in a specialized school with a BCBA on staff and a one-to-one instructional format; (2) utilization of the Behavior Intervention Plan; (3) a predictable and quiet environment; (4) 10 hours a week of home-based ABA therapy provided by a BCBA or licensed behavior analyst (“LBA”); (5) ongoing parent/caregiver training; (6) compensatory ABA and parent training hours; (7) regular meetings between [Student’s] parents, home provider, and school staff members. [75]
The assessment concludes that the above-mentioned recommendations are crucial to appropriate and effective education for [Student]:
“In the absence of the aforementioned recommendations, I determine that [Student] will not make the educational progress he is capable of making. The presence of these components will assist in ensuring that meaningful, reliable, and lasting changes in [Student’s] behavior/skill profile will occur, setting the stage for his eventual enrollment in a less restrictive setting with eventual inclusion opportunities once requisite skills have been solidified in [Student’s] behavioral/skill repertoire. [76]”
Parent submitted the above evaluations to the Department. [77] An IEP meeting was held on April 28, 2023. [78] While the IEP team reviewed the evaluations before making their recommendations, Student’s proposed program differed from recommendations made in Student’s evaluations. [79] The Department offered no testimony at hearing defending the decisions made in Student’s IEP. However, the Department did provide Prior Written Notice that offers some insight into the Department’s decision making. [80]
Parent was seeking a smaller class size than what was offered by the Department. [81] The Department in explaining their decision not to recommend a 12:1 classroom determined that:
Due to [Student’s] high level cognitive abilities a 12:1 in a community [school] was found to be inappropriate as [Student] benefits from vast opportunities to be academically challenged. The IEP team and parents agreed an Integrated Co-teaching classroom with related services of physical therapy, speech therapy, counseling, and occupational therapy in order for [Student] to access the general education curriculum. [Student] will also be provided a 1:1 Behavior Paraprofessional due to [Student’s] remarkable difficulties when transitioning from one activity to another.
[Student] is a student who demonstrates “twice exceptional traits,” his cognitive abilities are in the Superior range, [Student] needs a classroom environment that will challenge him academically and strengthen his skills. [Student] displays significant deficits in social perception, language, and attention that make most educational settings challenging which are related to his diagnosis of autism and ADHD. [Student] would benefit from an integrated co-teaching classroom setting with related services of speech therapy, physical therapy, occupational therapy and counseling to access the general education curriculum. Due to [Student’s] personal weakness in attention, hyperactivity and difficulties with transitions from one area or activity to another he requires a 1:1 behavior support paraprofessional to facilitate his ability to self-regulate and engage in classroom activities throughout the school day. [82]
In April of 2023, Parent received a letter offering Student a kindergarten place at Public School. [83] Parent toured Public School in June 2023. [84] Parent had concerns regarding Public School. Public School did not have a sensory gym, Student would be in a class of up to twenty-five students, and Parent was concerned that a “typical Kindergarten” class would not challenge Student academically. [85] Student was accepted to the Department’s Talented and Gifted program, but Parent gave up Student’s seat because the class did not have a special education teacher. [86]
Parent sent a letter to the Department on June 21, 2023 outlining a few of their concerns. [87] Student had not received the SEIT services outlined in his IEP and had not received a summer placement for summer 2023. [88] Parent disagreed with the Department’s recommendations in Student’s IEP. [89] Specifically, Parent disagreed with the lack of an NPS recommendation, the lack of ABA services, the lack of social skills training, and the lack of a recommendation for a small class size. [90] The Department did not respond to Parent’s letter. [91]
Burden
In IDEA due process hearings in New York, school districts have the burden of proof- including the burden of production and persuasion – except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. [92]
In this case, the Parent is seeking: an IEP reconvene to alter and add to Student’s current education plan; compensatory services; transportation; an order for the Department to recommend an appropriate placement; if the Department cannot identify an appropriate placement, a deferral to the CBST to identify an appropriate placement for Student; if the CBST cannot locate an appropriate nonpublic school (“NPS”) then the Department will fund a private school of the parents’ choosing until an appropriate placement is located; 30 hours a week of push-in one-on-one instruction by a provider trained in ABA of the Parent’s choosing at their normal and customary rate; and an order for the Department to fund or reimburse ten hours a week of home-based ABA to the extent not covered by Parent’s insurance. [93] As this case does not involve a parental unilateral placement, the burden regarding all elements of the case is on the District. [94] Provision of FAPE The record shows Student is a bright and intelligent child who still has needs that need to be addressed with appropriate services and supports. I find that the Department failed to adequately defend their IEP and failed to challenge the Parent’s proffered evidence with adequate evidence of their own. Many of the evaluations Parent is relying on as a basis for their requested relief were also proffered by the Department. The Department’s contention that they are “resting their FAPE case on the documents” is therefore without merit. [95]
Here, the District argues all relief should be denied. [96] “It is not persuasive for the district to simply fault the parent’s request for relief without also explaining its own view of what type of compensatory education relief would be appropriate to remediate the district’s failure to provide the student with a FAPE.” [97]
The inquiry here is what services and supports are necessary for Student to progress rather than regress as well as enjoy an opportunity greater than mere trivial advancement. [98] The IDEA does not require the District to provide the optimal level of services. [99]
Broad Discretion of IHO in Fashioning Relief
Under the IDEA, courts can “grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” [100] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. [101] Although an award of damages is not available under the IDEA, “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [102]
Alterations to Student’s IEP
Parent is requesting an IEP reconvene in order to add the following to Student’s IEP: a small class of 8-12 students; OT, individually, three times per week for 45 minutes; PCAT, two hours per week; PT; individually, two times per week for 45 minutes; SLT in a group of two, once a week for a 45 minute session; SLT, individually, twice a week for 45 minutes; social skills group, three times a week; feeding therapy, individually, once a week for a 30-minute session; a sensory diet; ABA, individually, five hours a day at school; ABA ten hours a week at home; access to a sensory gym; extended school year services; implementation of Student’s BIP; and multisensory reading and writing instruction. [103] As addressed above, these services are recommended in Student’s evaluations. [104]
As it relates to the request for a small class size of 8-12 students, Parent offers two evaluations to support their request: an ABA Skills Assessment and a Neuropsychological Evaluation. [105] Additionally, testimony was offered from Psychologist explaining the request. [106] The evaluations and testimony indicate Student requires a small class size in order to participate in instruction. “[Student] needs significant support to stay on task and stay with the teaching.” [107] Student is currently in an ICT classroom, which Psychologist believes is inappropriate. [108]
The Department offered no witness testimony at the DPH. The only evidence provided by the Department defending their decision to recommend an ICT classroom came from the Prior Notice Package. [109] The District believed a 12:1 would be inappropriate as Student benefits from vast opportunities to be academically challenged. [110]
I find the weight of the evidence supports Parent’s request. It is the Department’s burden to prove that the Student’s current educational placement provides Student with FAPE. The Department did not meet their burden. If the composition of a class or a class size affects the provision of FAPE, the district must consider this when developing the Student’s IEP. [111]
Parent further requests the IEP be amended to offer Student OT, individually, three times per week for 45 minutes. Parent offers the evaluation of Occupational Therapist to support this request. [112] As it relates to OT, Student’s IEP currently recommends OT one time per week for 30 minutes individually and 2 times per week for 30 minutes in a group of two. [113] The Department provided no evidence or testimony to support their OT recommendation in Student’s IEP. I am ordering the Department to amend Student’s IEP as it relates to OT to three times per week, individually for 45-minute sessions.
Parent next requests the IEP be amended to recommend PCAT for two hours per week. Student’s current IEP recommends PCAT for one hour per month. [114] The Parent offers Student’s FBA/BIP and ABA Skills Assessment to support this request. [115] Based on the evidence provided by Parent, I am unconvinced that two hours per week of PCAT are necessary for Student to receive a FAPE. The reports are vague on this issue. The evidence is clear that Parent requires PCAT in order to promote Student’s skills; however, BCBA testified parents need only “regular training”. [116] I find one hour per month is sufficiently regular PCAT.
Parent next requests modification of Student’s IEP as it relates to PT. Parent requests PT, individually, two times per week for 45 minutes as recommended in Student’s Physical Therapy evaluation. [117] Student currently receives PT, two times per week for 30 minutes. [118] I find the request is appropriate. Student’s evaluation indicates he is below average compared to neurotypical peers as it relates to gross motor function. [119] Physical Therapist indicates in their report that:
“[I]t is difficult for [Student] to participate in age-appropriate gross motor activities and engage with peers at home, at school and in the community. Recent studies have upheld the hypothesis that muscle weakness, poor balance, and decreased coordination are directly related to functional limitations in the school, home, and community environments. Additionally, these deficits make him more at risk for falls, decrease his overall level of safety in his school and community, and limit his ability to access extracurricular activities designed for children with ASD. Lack of access to activity has been demonstrated to increase an individual’s risk of comorbidities including obesity, and heart disease, as well as increase social isolation, which is already a challenge for families of children with ASD.” [120]
Parent next requests modification of Student’s IEP as it relates to SLT. Parent requests SLT, in a group of two, once a week for a 45-minute session and SLT, individually, twice a week for 45 minutes. Student currently receives SLT in a group of two, one time per week for 30 minutes and SLT individually two times per week for 30 minutes. [121] Parent relies on Student’s Speech and Language Evaluation as a basis for the request. [122] I find this request appropriate as Speech Language Pathologist notes: “that the significant delays that are present in [Student’s] expressive language and play/pragmatic language, will have negative secondary effects on his ability to participate in the current curriculum.” [123]
Parent next requests that a social skills group three times per week should be added to Student’s IEP. This recommendation comes from Student’s Neuropsychological Evaluation conducted by Psychologist. [124] Psychologist’s testimony does not reference a social skills group. [125] In reviewing Psychologist’s report, the report indicates that Student’s teachers reported Student has age-appropriate social awareness, social cognition, and social communication. [126] However, Student’s teachers report impaired social motivation. [127] Student’s Parent’s reported Student has age appropriate social awareness, strong social cognition, good social communication, and that he is motivated socially. [128] The report also notes that socially, Student spends a lot of time with his cousin, but has a hard time with other peers. [129] The report notes that Student has a packed schedule with related services making play dates difficult. [130] Psychologist’s recommendation is conclusory regarding the social skills group: “Student will require social skills group three times week.” I find the testimony and evidence insufficient to support altering Student’s IEP to add another related service. Furthermore, the evidence does not indicate the social skills group is necessary to provide FAPE.
Parent next requests feeding therapy, individually, once a week for a 30-minute session. This recommendation stems from Student’s Feeding and Swallowing Evaluation. [131] The feeding and swallowing assessment showed Student to have alertness within normal limits, reflexes within normal limits, his general muscle tone was good, head control/stability was good, head/neck/trunk alignment was good, shoulder alignment was good, and trunk stability was good. [132] Student was observed drinking through a straw normally, bite/chew observation as well as swallowing appeared unremarkable. [133] Student was given a “T-Score” at the evaluation. [134] The T-Score comes from the Montreal Children’s Hospital Feeding Scale. [135] Student scored a 61 indicating mild feeding difficulties (T-score of 61-65 indicates mild feeding difficulties). [136] Results of the evaluation indicate that Student presents with a mild to moderate sensorimotor feeding disorder. [137] The severity of this diagnosis is due to Student’s significantly limited diet, sensory difficulties regarding food, and the informed clinical opinion of Speech-Language Pathologist.
Parent testified Student “has been trying more foods. He will put them in his mouth and take a small bite, but he continues to like his preferred food items.” [138] Speech-Language Pathologist indicates that in order for a student to benefit from the curriculum they must have adequate nutrition. [139] There is no evidence in the record to indicate Student’s ability to attend and benefit from school has been affected by a lack of proper nutrition. I do not find this service necessary for Student to receive a FAPE.
Parent next requests inclusion of a sensory diet. The request is based on Student’s Occupational Therapy and Neuropsychological evaluations. [140] Neuropsychologist’s report notes that Student has significant sensory needs which impact his functioning in everyday environments. [141] Occupational Therapist noted similar observations regarding Student’s sensory needs; however, Occupational Therapist focused more on Student’s sensory needs in the home environment. [142] In balancing the evidence, including the lack of evidence on this issue offered by the District, I find a sensory diet is necessary for Student to make progress in the school environment.
Parent next requests ABA, individually, for five hours a day at school as recommended by BCBA. BCBA testified Student has made a lot of progress over the course of receiving ABA. [143] He began talking, learned to answer questions, follow instructions, and join group activities in daycare and follow the school calendar. [144] Furthermore, BCBA testified ABA has been proven to be effective in improving appropriate behaviors and reducing undesired behaviors for individuals with autism. [145] These thoughts were echoed in Student’s ABA Skills Assessments. [146] I find the at-school ABA appropriate in order for Student to make appropriate progress.
Parent next requests ten hours of ABA per week at home. The support for this request is found in the same testimony and reports addressed immediately above. As it relates specifically to home-based ABA, the ABA Skills Report notes:
“[Student’s] avoidant behaviors have been reinforced for years in inappropriate learning environments that failed to recognize his behavioral and communication needs. These behaviors have now pervaded every aspect of his life and prevented him from developing the foundational skills he needs to cultivate higher-level skills that will afford him independence. Given his thick learning history of success with these behaviors, the close involvement of a Board-Certified Behavior Analyst is necessary to ensure extinction of the interfering behaviors. Ten hours a week of home-based ABA services from a BCBA or LBA, will lead to a reduction in these maladaptive behaviors and allow [Student] to make adequate progress.” [147]
I find that the at home ABA is an appropriate service for Student to make progress.
Parent next requests access to a sensory gym for Student as recommended by Student’s Physical Therapy and Neuropsychological Evaluation. [148] Both evaluations indicate that Student should receive treatment in a sensory gym. [149] A sensory gym allows Student to be introduced to multiple sensory modalities in a safe and controlled environment. [150] I find Student should have access to a sensory gym for his related services.
Parent next requests extended school year services as recommended by Psychologist. Psychologist testified Student requires a 12-month program because his profile indicates that he will lose significant ground during two-month breaks. [151] Parent similarly testified she observed Student regress when he was not receiving services. [152] The District’s Prior Written Notice does not address the decision to offer Student a 10-month school year. [153] Without an explanation from the District explaining their decision, combined with the uncontroverted testimony of Psychologist and Parent, I find a 12-months school year is appropriate.
Parent next requests implementation of Student’s Behavior Intervention Plan (“BIP”). The failure to develop a BIP when a child needs one can result in a denial of FAPE. [154] Student was observed to have behaviors that prevent him from functionally engaging in his environment both at home and at school. [155] Those behaviors include: task refusal, stereotypy (walking on toes, jumping, and flapping arms), non-compliance, out of seat behavior, scripting. [156] I find Student’s BIP should be implemented and order the District to do so.
Finally, as it relates to alteration of Student’s IEP, Parent requests multisensory reading and writing instruction for Student as recommended by Speech-Language Pathologist. Student’s current IEP’s Individual Needs section notes Student will benefit from a multi-sensory reading and writing instruction; however, that notation comes from Student’s Assistive Technology Evaluation and Student was not recommended for Assistive Technology. [157] I have read Student’s Speech and Language Evaluation, as cited by Parent’s Representative as a basis for the request and found no reference to multi-sensory reading and writing instruction. [158] Student’s present levels of performance as reported by Student’s teacher and parent indicate he can read and decode words, as well as write and sound out words. [159] While I am confident Student would benefit from multi-sensory reading and writing instruction, I do not find that it is necessary to provide Student a FAPE.
Compensatory Services
Parent further requests compensatory services for the District’s failure to provide Student with a FAPE. Specifically, Parent requests: 69 hours of SLT, 69 hours of OT, 23 hours of PT, 138 hours of social skills training, 1,840 hours of applied behavior analysis therapy, 46 hours of feeding therapy, and 80 hours of PCAT. [160]
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. [161] Compensatory education can serve as a “replacement of educational services the child should have received in the first place,” and any award “should aim to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA.” [162]
There are generally two approaches to creating a compensatory education award. The Third Circuit follows a “quantitative” approach which focuses remediation on how many hours the student was denied FAPE and providing an award on an hour-to-hour basis. [163] The D.C. Circuit and the Sixth Circuit take a “qualitative” approach which recommends an equitable approach considering both the number of hours the child was denied FAPE as well as other factors. [164]
The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion,” so long as “the relief is appropriate in light of the purpose of the Act.” [165] I will address each request for compensatory education relief in turn.
As it relates to feeding therapy, increased PCAT sessions, and social skills training, I decline to award this basis of relief. As outlined above, the record does not support the conclusion these services are necessary to provide Student a FAPE.
Parent’s request for 69 hours of SLT, 69 hours of OT, 23 hours of PT, and 920 hours of applied behavior analysis therapy are granted. Parent’s representative in their closing requested 1,840 hours of ABA compensatory education. [166] However, Student’s ABA Skills Assessment recommends 920 hours and I will follow that recommendation. [167] The witnesses and evaluations cited to and introduced by Parent agree that compensatory education in the above areas is appropriate for Student to make progress and avoid regression, which Parent has observed when Student did not receive mandated services. The amount of compensatory service hours was calculated by reviewing the recommendations of the independent evaluators in comparison to the Department service mandates and multiplying by the 46 weeks in an extended school year. [168] The District offered no alternative but to posit that I should deny all of Parent’s requested relief. [169]
Transportation
The IDEA specifically includes transportation, as well as any modifications or accommodations needed to assist a student to benefit from his or her special education, in its definition of related services. [170] Under New York law and regulations, special education is defined as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” [171] The “language and spirit of the IDEA” supports providing transportation to students with a disability classification as a related service, and transportation is an integral part of the DOE’s obligation to provide a student with a FAPE. [172]
Parent testified she is worried about Student’s safety on a large school bus as well as Student’s auditory sensitivity regarding noise on a large school bus. [173] Parent is also concerned because Student can get car sick. [174] It is unclear from the record what transportation would be suitable for Student with these concerns in mind. Nevertheless, Student must get to and from their services. I am ordering the Department to provide appropriate transportation to and from Student’s related services.
Appropriate Placement
Parent next requests an order for the Department to recommend an appropriate placement that will provide Student with the individualized instruction he requires and that can appropriately address his needs. The Parent further requests that if the Department cannot identify an appropriate placement, the Department shall defer the case to the Central Based Support Team (“CBST”) to identify an appropriate placement for Student within 15 days of the IEP meeting. Further, if the Department fails to locate an appropriate non-public school (“NPS”) placement through the CBST within 30 days of the IEP meeting, then Department shall fund a private school of the Parent’s choosing.
Student requires a placement that can accommodate Student’s related service needs, the requirement of a class size of 8-12 Students, and sufficient opportunities for individual attention and instruction. I find the requested relief appropriate. Furthermore, until an appropriate placement is located, and Student begins attending that placement, the Department shall fund thirty (30) hours a week of push-in, 1:1 instruction by a provider trained in ABA of the Parent’s choosing at the provider’s normal and customary rate.
ABA Funding
Parent’s final request is for ten hours a week of home-based ABA, to the extent not covered by the Parent’s insurance. I have previously ordered Student’s IEP amended to add ten hours a week of home-based ABA. I am ordering the Department to fund this request, to the extent not covered by Parent’s insurance, up to and until Student beings receiving home-based ABA pursuant to his IEP.
Other Relief
The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party; and entitlement, if any, to costs must be determined by a court of competent jurisdiction. Only a court can determine who is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parent is entitled to attorneys’ fees. Other than the relief set out in my Order below, I find that no basis and/or evidence in the Record supports any additional relief.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) The DOE shall reconvene the IEP Team within 30 days of this order for the purpose of considering Student’s IEEs and to develop an appropriate IEP that will include an appropriate program of support and related services to include: (a) a class of size of between 8-12 students; (b) occupational therapy, three times per week, individually, for 45-minutes; (c) physical therapy, two times per week, individually, for 45-minutes; (d) speech and language therapy, one time per week, in a group of two, for 45- minutes; (e) speech and language therapy, two times per week, individually, for 45- minutes; (f) inclusion of a sensory diet; (g) ABA, 5 hours per day, at school; (h) ABA, 10 hours per week, at home; (i) access to a sensory gym; (j) extended school year services; (k) implementation of Student’s BIP.
(2) The DOE shall provide and fund Student with a bank of 69 hours of compensatory Speech and Language Therapy to be provided to Student by the Provider of Parent’s choosing. The DOE is directed to pay the provider of Parent’s choosing their standard ordinary market rate.
(3) The DOE shall provide and fund Student with a bank of 69 hours of compensatory Occupational Therapy to be provided to Student by the provider of Parent’s choosing. The DOE is directed to pay the provider of Parent’s choosing their standard ordinary market rate.
(4) The DOE shall provide and fund Student with a bank of 23 hours of compensatory physical therapy to be provided to Student by the provider of Parent’s choosing. The DOE is directed to pay the provider of Parent’s choosing their standard ordinary market rate.
(5) The DOE shall provide and fund the student with a bank of 920 hours of compensatory ABA therapy to be provided to Student by the provider of Parent’s choosing. The DOE is directed to pay the provider of Parent’s choosing their standard ordinary market rate.
(6) All of the above compensatory education shall be provided at a time of Parent’s choosing, including outside of school hours should Parent make that choice.
(7) The DOE shall provide appropriate transportation to and from Student’s related services appointment locations.
(8) The DOE shall recommend an appropriate placement that will provide Student with the individualized instruction he requires and that can appropriately address his needs. If the Department cannot identify an appropriate placement, the Department shall defer the case to the Central Based Support Team (“CBST”) to identify an appropriate placement for the Student within 15 days of the IEP meeting. If the Department fails to locate an appropriate non-public school (“NPS”) placement through the CBST within 30 days of the IEP meeting, then the Department shall fund a private school of the Parent’s choosing.
(9) Until an appropriate placement is located, and Student begins attending that placement, the DOE shall fund thirty (30) hours a week of push-in, 1:1 instruction by a provider trained in ABA of the Parent’s choosing at the provider’s normal and customary rate.
(10) The DOE shall fund ten hours a week of home-based ABA, to the extent not covered by the Parent’s insurance. the DOE shall fund this service, to the extent not covered by Parent’s insurance, up to and until Student beings receiving home-based ABA pursuant to his IEP.
(11) The implementation unit shall authorize any services within 14 days and payments must be made within 30 days of receipt of invoices.
(12) The compensatory education services shall have no expiration date.
Dated: October 20, 2023
Nicholas Bancroft
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DISTRICT EVIDENCE
Exhibit Title Date Pages
1. IEP 04/28/2023 43
2. Notice of Recommendation 01/17/2023 4
3. Prior Notice Package 05/12/2023 5
4. Prior Written Notice (Notice of Recommendation) 06/09/2023 5
5. Speech-Language Referral 11/22/2023 1
6. Consent for Additional Assessments 01/17/2023 1
7. Parent Survey Undated 4
8. Progress Report (1) 11/01/2022 3
9. Progress Report (2) 12/16/2022 3
10. Progress Report (3) 06/12/2023 3
11. Occupational Therapy Progress Notes 01/11/2023 3
12. Related Services Progress Report 12/16/2022 4
13. ABA Skills Assessment 02/06/2023 23
14. Assistive Technology Evaluation 02/23/2023 8
15. Feeding and Swallowing Evaluation 02/23/2023 9
16. Speech and Language Evaluation 02/23/2023 9
17. Occupational Therapy Evaluation 02/28/2023 18
18. Physical Therapy Evaluation 03/13/2023 13
19. Classroom Observation 04/20/2023 2
20. Neuropsychological Evaluation Undated 16
21. Wechsler Preschool and Primary Scale of Intelligence Undated 4
PARENT EVIDENCE
Exhibit Title Date Pages
A. Parent’s Impartial Hearing Request 07/06/2023 8
B. Individualized Education Program 06/03/2022 20
C. Individualized Education Program 04/28/2023 31
D. Functional Behavior Assessment (FBA)/Behavior 01/26/2023 25
Intervention Plan (BIP)
E. Applied Behavior Analysis (ABA) Skills Assessment 02/06/2023 26
F. Assistive Technology (AT) Evaluation 02/23/2023 8
G. Feeding and Swallowing Evaluation 02/23/2023 9
H. Speech and Language Evaluation 02/23/2023 9
I. Occupational Therapy Evaluation 02/28/2023 18
J. Physical Therapy Evaluation 03/13/2023 13
K. Neuropsychological Evaluation 03/16/2023 20
L. Classroom Observation 04/20/2023 2
M. Kindergarten Offer Letter April 2023 4
N. Prior Written Notice (Notice of Recommendation) 05/12/2023 4
O. Email chain with Parent and Department re: April 28, 05/05/2023- 6
2023, IEP and placement 06/20/2023
P. Notice Letter with Receipts 06/21/2023 5
Q. Email chain with Parent and Department re: School Visit 06/23/2023- 2
06/27/2023
S. Acceptance to Gifted and Talented Program 09/06/2023 1
T. Affidavit and Resume of [REDACTED] 08/24/2023 10
U. Affidavit and Resume of [REDACTED] 08/31/2023 4
V. Affidavit of [REDACTED] 09/01/2023 5
W. [REDACTED] Speech Services Rate Sheet UNDATED 1
X. [REDACTED] Prep Rate Sheet UNDATED 1
IHO EXHIBITS
Exhibit Title Date Pages
i. Pendency Hearing Transcript 07/25/2023 15
ii. Pendency Decision 08/01/2023 6
iii. Pre-Hearing Conference Transcript 08/11/2023 23 iv. Pre-Hearing Conference Summary & Order 08/11/2023 6
v. Subpoena Duces Tecum 08/11/2023 1
vi. Due Process Hearing Transcript 09/19/2023 50
APPENDIX A
[REDACTED] Information Term Used In FOFD
[REDACTED] Student
[REDACTED] Parent
[REDACTED] Parent
Attorney/Representative
[REDACTED] District
Attorney/Representative
REDACCTED District
Attorney/Representative
[REDACTED] Public School
[REDACTED] Psychologist
[REDACTED] Speech Language Pathologist
[REDACTED] Occupational Therapist
[REDACTED] Physical Therapist
[REDACTED] Board Certified Behavior
Analyst (“BCBA”)
Footnotes
[1] Personally identifiable information is attached as Appendix A to this decision and must be removed prior to public distribution.
[2] Exhibit P-A.
[3] Id.
[4] Id.
[5] Exhibit IHO-i.
[6] Exhibit IHO-ii.
[7] Exhibit-iii; Exhibit IHO-iv.
[8] Exhibit IHO-v.
[9] Exhibit IHO-vi at p. 44.
[10] Id. at p. 52.
[11] District’s 1 is Parent’s C, District’s 3 is Parent’s N, District’s 13 is Parent’s E, District’s 14 is Parent’s F, District’s 15 is Parent’s G, District’s 16 is Parent’s H, District’s 17 is Parent’s I, District’s 18 is Parent’s J, District’s 19 is Parent’s L, District’s 20 and 21 are Parent’s K.
[12] Exhibit IHO-vi at p. 44-54; I overruled a relevance and foundation objection from the Parent as it related to District’s 10 & 12.
[13] Exhibit IHO-vi at p. 55.
[14] Exhibit P-T; Exhibit P-U; Exhibit P-V.
[15] Exhibit IHO-vi at p. 55.
[16] Exhibit IHO-vi at p. 56-70.
[17] Exhibit D-1.
[18] Exhibit P-V at p. 1.
[19] Id.
[20] Id.; Exhibit D-7.
[21] Exhibit P-V at p. 1.
[22] Id.
[23] Exhibit D-2.
[24] Exhibit P-K; Exhibit P-H; Exhibit P-I; Exhibit P-J; Exhibit P-F; Exhibit P-G.
[25] Exhibit P-D.
[26] Exhibit P-E.
[27] Exhibit P-T.
[28] Exhibit P-K at p. 2.
[29] Exhibit P-T.
[30] Exhibit P-K at p. 10.
[31] Exhibit P-T at p. 2.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Exhibit D-1 at p. 34.
[38] Exhibit P-T at p. 2.
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] Exhibit P-H.
[44] Id. at p. 7.
[45] Id.
[46] Id.
[47] Id. at p. 8.
[48] Id.
[49] Id. Speech-Language Pathologist did not testify at the hearing, these passages are taken from the evaluation.
[50] Exhibit P-I at 15.
[51] Id.
[52] Id.
[53] Id. at 16.
[54] Id.
[55] Id.
[56] Exhibit P-J at p. 11.
[57] Id.
[58] Id.
[59] Id.
[60] Id.
[61] Id.
[62] Id.
[63] Id. at p. 12.
[64] Id.
[65] Exhibit P-F at p. 7.
[66] Id.
[67] Id.
[68] Exhibit P-G at p. 7.
[69] Id.
[70] Id.
[71] Id. at p. 8.
[72] Id.
[73] Id.
[74] Exhibit P-U at p. 2.
[75] Exhibit P-E at p. 22-25.
[76] Id. at p. 25.
[77] Exhibit P-V at p. 2.
[78] Id.
[79] Id.
[80] Exhibit D-3.
[81] Exhibit P-V at p. 3.
[82] Exhibit D-3 at p. 3.
[83] Exhibit P-M.
[84] Exhibit P-V at p. 3.
[85] Id. at p. 4.
[86] Id.; Exhibit P-S.
[87] Exhibit P-P.
[88] Id.
[89] Id.
[90] Id.
[91] Exhibit P-V at p. 4.
[92] NY Educ. Law § 4404(1)(c); M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
[93] Exhibit IHO-vi at p. 70.
[94] NY Educ. Law § 4404(1)(c); Application of a Student with a Disability, Appeal No. 11-091 (SRO NY 2011).
[95] Id. at 57.
[96] Exhibit IHO-vi at p. 57.
[97] Id.
[98] Student X, 2008 WL 4890440 at 50.
[99] Id.
[100] Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015)(internal citation omitted).
[101] Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993).
[102] Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002); Doe v. East Lyme, 790 F.3d at 454.
[103] Exhibit IHO-vi at p. 68.
[104] Exhibit P-K; Exhibit P-E; Exhibit P-I; Exhibit P-D; Exhibit P-J; Exhibit P-H; Exhibit P-G; Exhibit P-F.
[105] Exhibit P-E; Exhibit P-K; Exhibit D-13; Exhibit D-20.
[106] Exhibit P-T at p. 2.
[107] Id.
[108] Id.
[109] Exhibit D-3 at p. 3.
[110] Id.
[111] A.W. v. N.Y. City Dep’t of Educ., 287 F.Supp. 3d 420 (S.D.N.Y. 2018).
[112] Exhibit P-I; Exhibit D-17.
[113] Exhibit P-C at p. 23.
[114] Id.
[115] Exhibit P-D; Exhibit P-E.
[116] Exhibit P-E at p. 24; Exhibit P-U at p. 3.
[117] Exhibit P-J.
[118] Exhibit P-B at p. 23.
[119] Exhibit P-J.
[120] Id.
[121] Exhibit P-B at p. 23.
[122] Exhibit P-H.
[123] Id. at p. 8.
[124] Exhibit P-K; Exhibit P-T.
[125] Exhibit P-T.
[126] Exhibit P-K at p. 8.
[127] Id.
[128] Id.
[129] Id. at p. 3.
[130] Id.
[131] Exhibit P-G.
[132] Id. at p. 3-4.
[133] Id at p. 5.
[134] Id. at p. 7.
[135] Id. at p. 6.
[136] Id. at p. 7
[137] Id.
[138] Exhibit P-V at p. 5.
[139] Exhibit P-G at p. 7.
[140] Exhibit P-I; Exhibit P-K.
[141] Exhibit P-K at p. 12.
[142] Exhibit P-I at p. 8.
[143] Exhibit P-U at p. 2.
[144] Id.
[145] Id.
[146] Exhibit P-E at p. 24.
[147] Id.
[148] Exhibit P-J; Exhibit P-K.
[149] Exhibit P-K at p. 15; Exhibit P-J at p. 11.
[150] Exhibit P-J at p. 11.
[151] Exhibit P-T at p. 2.
[152] Exhibit P-V at p. 1.
[153] Exhibit D-3.
[154] R.K. v. New York City Dep’t of Educ., 2011 WL 1131492.
[155] Exhibit P-D at p. 7.
[156] Id.
[157] Exhibit P-C at p. 8.
[158] Exhibit IHO-vi at p. 68; Exhibit P-H.
[159] Exhibit P-C at p. 8.
[160] Exhibit IHO-vi at p. 69.
[161] See P. v. Newington Bd. Of Educ., 546 F.3d 111, 123 (2d. Cir. 2008).
[162] Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005)
[163] See, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996).
[164] See, e.g., Reid, 401 F.3d at 518, 524.
[165] Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 (2d Cir. 2016); see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 (E.D.N.Y 2008) (noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated,” and awarding compensatory relief equal to the amount of time the student was deprived of services).
[166] Exhibit IHO-vi at p. 69.
[167] Exhibit P-E at p. 24.
[168] Exhibit IHO-vi at p.
[169] Id. at p. 57.
[170] 20 U.S.C. § 1401[26]; 34 CFR 300.34[a], [c][16].
[171] NYS Educ. Law §§ 4401(1) (emphasis added); 4402(4)(a); see also Educ. Law § 4401(2); 8 NYCRR § 200.1(ww).
[172] See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 (9th Cir 1994); Ne. Cent. Sch. Dist. v. Sobol, 79 N.Y.2d 598, 608 (1992).
[173] Exhibit P-V at p. 5.
[174] Id.