FINDINGS OF FACT AND DECISION - 267156

CASE NUMBER: 620714 - NYC: 267156

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

School District: NYC DOE

Hearing Requested by: Parent

Request Date/Date Complaint Filed: 12/20/2023 Date[s] of Hearing: 3/6/2024, 4/24/2024 Actual Record Closed Date: 6/1/2024

Date of Decision: 6/2/2024

Hearing Officer: Paul J. DeSena

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act [hereinafter, “IDEA”] and Section 504 of the Rehabilitation Act of 1973. This case concerns Student, who was, at the start of the 2023/24 school year, a [REDACTED]-year-old, sixth grade Student attending a public school. (Ex. A). In the Parent’s Due Process Complaint [hereinafter, “DPC”], the Parent alleged that the Department of Education [hereinafter, “District” or “DOE”] failed to provide the Student a Free and Appropriate Public Education [hereinafter, “FAPE”] for the 2022/23 and 2023/24 school years. (Ex. A, at 2).

In their DPC, the Parent requests the following: a finding that the District failed to provide the Student a FAPE for the 2022/23 and 2023/24 school years; prospective placement in either a residential program or, in the alternative, in a non-public specialized school on a 12 month basis; a functional behavior assessment and concomitant behavioral intervention plan; prospective services in the form of four hours in-home ABA per day, continuation of related services on the Student’s IEP, including occupational therapy and speech therapy, continuation of testing accommodations, group counseling that including a social skills program.

As discussed below, I find that the DOE denied the Student a FAPE for the 2022/23 and 2023/24 school years. Additionally, I find that the Student is entitled to a functional behavioral and compensatory education he seeks. Finally, I find that, in this case, certain prospective services are warranted, and that the CSE team should reconvene to develop an IEP for the Student, but that the team should defer, regarding placement, to the CBST for placement in a non-public school.

PROCEDURAL HISTORY

The Parent filed this case on 12/20/2023. (Ex. A, at 1). I was appointed to hear this case on 12/21/2023. I conducted a Pre-Hearing Conference [hereinafter, “PHC”] with the Parties on 1/29/2024. (See generally, PHC Tr.). I conducted a hearing across two dates on 3/6/2024 and 4/24/2024 (See generally, Hearing Tr.)

At the hearing, the District called no witnesses, introduced no exhibits, made opening and closing statements, waived its opportunity to cross-examine Parent’s witnesses, and conceded, essentially, that the District had failed to provide the Student with a FAPE. (See Hearing Tr., at 28, 35-37, 61-62).

The Parents argued that the District denied the Student a FAPE for the 2022/23 and 2023/24 school years and that the student was entitled to their requests as outlined above. (See generally, Hearing Tr.). The Parents introduced exhibits A–I and K into evidence.^[1] (Hearing Tr., at 28-33, 49-50). The Parent’s attorney delivered an opening statement. (Hearing Tr., at 36-37). The Parent called three witnesses: the Student’s Parent, the Student’s neuropsychologist, and a licensed BCBA. (all by affidavit). (Exs. G, H, I). The Parent’s attorney made a closing statement. (Hearing Tr., at 62-65). This Order follows.

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

At the time of the DPC, the Student was a [REDACTED]-year-old student attending a District 75 program at a public school. (Exs. A, E). Via neuropsychological evaluation conducted in June of 2023, the Student is diagnosed with ASD, Level 3, ADHD, combined type, specific developmental disorder of motor function, and epilepsy. (Ex. B, at 17). The neuropsychologist recommended that the Student receive 1) a small, structured classroom with teachers experienced in handling autism in a nonpublic or specialized school, 2) at-home ABA services for four hours per day, 3) related services that are integrated with his school curriculum, 4) 1:1 instruction with a hands-on, multisensory curriculum, 5) an FBA and resultant BIP, 6) social skills training, speech therapy, occupational therapy, extended time, preferential seating, instructor focusing prompts, testing accommodations, and assistive technology. (Ex. B, at 18-20). The DPC alleges, and the Parent agrees, that the Student has made no progress at school in the past

5 years. (Ex. A, at 1-2; Ex. H).

On 4/27/2022, the District held an IEP meeting, which the Parent attended. (Ex. D). The Student was recommended placement in a 6:1+1 classroom on a 12-month basis, including 1:1 OT 3x30, Communication with the Parent 3x per week for the duration of the school year, classroom observations 3x yearly, monthly, 2 hour Parent workshops from September through June, 1:1 nursing services as needed, 1:1 ST 2x30, 2:1 ST 1x30, a 1:1 paraprofessional for health and epilepsy, SETSS ABA outside school for 3 hours per week, and a 1:1 dynamic display speech generating device. (Ex. D, at 21-22). At the time this IEP was generated, the Student weas performing at a kindergarten level in both English and math. On 4/17/2023, the District held another IEP meeting, which the Parent attended. (Ex. E). The District’s recommendations were the same as for the previous IEP. (Compare Ex. D, at 21-22 with Ex. E at 19-21). Here again, the Student’s grade level in English and math was listed as kindergarten. (Ex. E, at 27). On 9/28/2023, the District held yet another IEP meeting for the Student, and again, the District’s recommendations were identical to the two previous iterations. (Ex. F, at 18-20). Once again, the Student’s grade level in English and math was listed as kindergarten. (Ex. F, at 26).

Via affidavit dated 2/26/2024, the neuropsychologist testified that “[t]he student exhibited difficult behaviors in the classroom,” that the Student “hit a student sitting beside him and his paraprofessional,” that “when he did hit, he looked to the teacher for a reaction,” and that when the Student “became frustrated for not earning a reward from the teacher, he hit and screamed.” (Ex. G, at ¶ 10). The neuropsychologist went on to state that when the Student “became frustrated, he would get antsy, whine, and hit others,” that the Student “sometimes stuck his finger in his paraprofessional’s ear,” and that while he used to play with his brother at home, he no longer does because his behavior has become so aggressive towards his own family members. (Ex. G, at ¶¶ 11-12). Additionally, the Student “exhibits self-distracting behaviors, has a difficult time following instructions, and needs constant reminders to focus on the task at hand. [The Student] shows frequent off-task behaviors like producing unintelligible sounds and clapping…the Student chews on inedible objects like paper…[the Student’s] mood is volatile, and his aggressive behavior is unpredictable,” and the Student “shifts quickly between being calm and happy one moment, to hitting, screaming, and throwing things the next.” (Ex. G, at ¶ 19). Finally, the neuropsychologist testified that the Student’s behaviors “pose a risk to his safety” in that the Student does not understand rules of conduct, is prone to elopement in public with no knowledge of traffic or safety rules, and that the Student “has cut his hair with scissors, which has left him with bald spots.” (Id.).

Via affidavit dated 2/26/2024, the Student’s Parent testified that the Student “is unable to communicate in any way to me even for his basic needs…cannot speak in full sentences…has a difficult time doing basic daily tasks…does not know how to socialize…[and] is not careful around sharp objects and has not made progress with academics.” (Ex. H, at ¶ 5). Further, the Parent testified that the Student “has become violent…hits [the Parent] and other family members…throws things when he gets upset…[and] that [the Parent] had not seen [the Student] make meaningful progress all year and that [the Student] was getting even worse at home.” (Ex. H, at ¶¶ 6, 11). The testimony of the Parent’s third witness, a licensed BCBA, largely corroborates the Parent’s and neuropsychologist’s accounts and recommendations. (See generally, Ex. I).

Finally, on 4/17/2024, the Parent received a letter from the principal and assistant principal of a state-approved nonpublic school that stated that the school “would be an appropriate next step” for the Student. (Ex. K).

The Parent put forth all of the above facts, and the District controverted none of them.

CONCLUSIONS OF LAW AND ANALYSIS

This case concerns the Parent’s requests for the following: a finding that the District failed to provide the Student a FAPE for the 2022/23 and 2023/24 school years; prospective placement in either a residential program or, in the alternative, in a non-public specialized school on a 12 month basis; a functional behavior assessment and concomitant behavioral intervention plan; prospective services in the form of four hours in-home ABA per day, continuation of related services on the Student’s IEP, including occupational therapy and speech therapy, continuation of testing accommodations, group counseling that including a social skills program.

It is well-settled that a DPC may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” 20 U.S.C. § 1415[b][6][A]. In IDEA due process hearings in New York, school districts have the burden of proof – including the burden of production and burden of persuasion. See NY Educ. Law § 4404[1][c].

A. The Parent’s Claims for Compensatory Education

In her DPC, the Parent’s requests mainly sound in prospective relief, but the Parent did request compensatory education in the form of make-up hours of at-home ABA instruction that the Student’s IEP called for but that were not delivered. Additionally, the Parent requested prospective placement in either a residential program or, in the alternative, in a non-public specialized school on a 12 month basis; and prospective services in the form of four hours in-home ABA per day, continuation of related services on the Student’s IEP, including occupational therapy and speech therapy, continuation of testing accommodations, group counseling that including a social skills program.

1. FAPE

The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed 1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and 2) to ensure that the rights of students with disabilities and parents of such students are protected. (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (See 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (See 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). A free and appropriate public education can be said to be offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) “[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court ruled that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137

S. Ct. 988, 999 [2017]).

Although school districts must comply with the checklist of procedures for developing a student's IEP, “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not” (R.E., 694 F.3d at 190-91), the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA. (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an IHO may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203), but the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). Indeed, “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created” (Endrew F., 137 S. Ct. at 1001), and an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents,” is what is required. (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see also Grim, 346 F.3d at 379). School districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132) but are required to provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]).

The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001) and designed to be provided in the least restrictive environment (hereinafter, “LRE”). (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; and Walczak, 142 F.3d at 132.). An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), and outline annual goals specifically designed to address the Student’s needs resulting from his disability to make progress in the general education curriculum (34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]) through the use of appropriate special education services. (34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” (Endrew F., 137 S. Ct. at 1000).

Although federal and State regulations do not expressly state that a district must provide a written notice to the parents in any particular format describing the "”bricks and mortar” location to which a student is assigned and where the student's IEP will be implemented, once an IEP is developed and a parent consents to a district's provision of special education services, the IDEA is clear such services must be provided to the student by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR § 300.320). When determining how to implement a student’s IEP, the assignment of a particular school is an administrative decision, provided it is made in conformance with the CSE's educational placement recommendation (see K.L.A. v. Windham Southeast Supervisory Union, 371 Fed. App'x 151, 154, 2010 WL 1193082, at *2 [2d Cir. Mar. 30, 2010]; White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 [5th Cir. 2003]; see Veazey v. Ascension Parish Sch. Bd.,

121 Fed. App'x 552, 553 [5th Cir. Jan. 5, 2005]; A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 [4th Cir. 2004]; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 [2d Cir. 1980]). To be clear there is no requirement in the IDEA that a student's IEP name a specific school location (see, e.g., T.Y., 584 F.3d at 420). Moreover, parents generally do not have a procedural right in the specific locational placement of their child (see Luo v. Baldwin Union Free Sch. Dist., 2013 WL 1182232, at *5 [E.D.N.Y. Mar. 21, 2013], aff'd, 556 Fed. App'x. 1, 2013 WL 6726899 [2d Cir Dec. 23, 2013]; J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *10 [S.D.N.Y. Feb. 20, 2013]; see also R.E., 694 F.3d at 191-92 [finding that a district may select a specific public school site without the advice of the parents]; F.L. v. New York City Dep't of Educ., 2012 WL 4891748, at *11 [S.D.N.Y. Oct. 16, 2012] [noting that parents are not procedurally entitled to participate in decisions regarding public school site selection]).

Although not explicitly stated in federal or State regulation, however, implicit in a district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an IEP, a district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student's IEP (see T.C. v. New York City Dep't of Educ., 2016 WL 1261137, at *9 [S.D.N.Y. Mar. 30, 2016] [“a parent must necessarily receive some form of notice of the school placement by the start of the school year”]; Tarlowe, 2008 WL 2736027, at *6 [a district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year]). While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation, it nonetheless follows that it must be shared with the parent before the student's IEP may be implemented.

Finally, A FAPE must provide “related services” tailored to meet the unique needs of a particular child. (20 U.S.C. § 1401[9]). Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034, 73 L. Ed. 2d 690 [1982]); Walczak, 142 F.3d at 122. “[R]elated services” include “transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education.” (20 U.S.C. § 1401[26][A]; see Rowley, 458 U.S. at 188; see also P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 741 [2d Cir. 2018]).

In the instant case, the District failed to make any disclosures or controvert – at all – any evidence the Parent put forth. (See generally, Hearing Tr.). Accordingly, the District failed to carry its burden at the Hearing to show that it provided the Student with a FAPE for the 2022/23 and 2023/24 school years.

Further, I will note that the District has uniquely underserved the Student at issue here. Despite the fact that the Student, now 12, has been reading, writing, and doing mathematics at a kindergarten level since 2022, the District has not varied its IEP recommendations in the slightest. (Exs. D-F). Further, the Parent has alleged, and the District has not controverted, that the Student has made zero progress in the past five years. (Ex. A). Add to this the Student’s increasingly aggressive and destructive behaviors, along with the Student’s apparent regression over time, and I can only conclude that the blame, for lack of a better phrase, for the Student’s failure to make adequate educational progress over the past five years falls squarely upon the District.

Because of the District’s near-total failures as to this Student for the 2022/23 and 2023/24 school years, it is your undersigned’s belief that extraordinary remedies are required to begin to set this Student’s education upon a productive path.

2. The Student’s Claims for Compensatory Education

In his DPC, the Parent requests compensatory education in the form of a bank of 120 hours for missed in-home ABA services during the 2023/24 school year. At the Hearing, the licensed BCBA testified that, though the Student’s IEP had ordered the Student be provided with 3 hours per week of inhome ABA instruction, the District had, as of September of 2023, failed to provide it. (Hearing Tr., at 56).

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. (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.

(P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008]). 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[.]" (Reid v. Dist. of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]).

Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent to compensate for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate remedy. (Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 [7th Cir. 2015] [citing cases]). Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. (Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 [D. Minn. 2022], citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 [8th Cir. 2019]).

The DOE is required under the due process procedures set forth in New York State law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that he would have been but for the denial of a FAPE. The DOE had an opportunity during the impartial hearing to set forth its position regarding the appropriate compensatory education remedy but did not so much as appear at the Hearing. (See generally, Hearing Tr.). Because the District failed to controvert – at all – evidence that they had failed to provide the above-mentioned ABA services during the 2023/24 school year, a bank of 120 hours of in-home, ABA instruction with a provider of the Parent’s choosing at the provider’s stated rates are appropriate.

3. The Student’s Request for Prospective Services and Prospective Placement

At the Hearing, the Student requested what amounts to a prospective placement at a nonpublic school and a prospective increase to the Student’s in-home ABA services. For the reasons that follow, I am granting these requests.

It is well-settled that prospective placements may act to circumvent the statutory process outlined by the IDEA. In rare cases, however, the SRO has deemed them appropriate. Specifically, the SRO in Appeal No. 23-059 wrote as follows:

“Generally, as the IHO noted (IHO Decision at p. 15), an award of prospective relief in the form of IEP amendments and the prospective placement of a student in a particular type of program and placement, under certain circumstances, has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y. Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]). However, concerns about circumventing the CSE process arise most prominently in matters where the school year challenged has ended and, in accordance with its obligation to review a student's IEP at least annually, the CSE would have already convened to produce an IEP for the following school year (see V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *7 [S.D.N.Y. Aug. 17, 2022] [acknowledging that "orders of prospective services are disfavored as a matter of law" and, in the matter at hand, indicating that "the CSE should have already convened for subsequent school years]; M.F. v. N. Syracuse Cent. Sch. Dist., 2019 WL 1432768, at *8 [N.D.N.Y. Mar. 29, 2019] [declining to speculate as to the likelihood that the district would offer the student a FAPE "in the future" and, therefore, denying prospective relief]; Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 [D.D.C. Aug. 24, 2012] [noting that prospective placement is not an appropriate remedy until the IEP for the current school year has been completed and the parent challenges the IEP for the current school year]).

Additionally, while prospective placement might be appropriate in rare cases (see Connors v. Mills, 34 F.Supp.2d 795, 799, 804-06 [N.D.N.Y. Sept. 24, 1998] [noting a prospective placement would be appropriate where "both the school and the parent agree[d] that the child's unique needs require[d] placement in a private non-approved school and that there [we]re no approved schools that would be appropriate"]), the pitfalls of awarding a prospective placement have been noted in multiple State-level administrative review decisions, including that where a prospective placement is obtained by the parents through the impartial hearing, such relief could be treated as an election of remedies, where the parents assume the risk that future unforeseen events could cause the relief to be undesirable (see, e.g., Application of a Student with a Disability, Appeal No. 19-018).

Here, I find that this matter presents one of the rare instances where prospective placement is warranted because despite passage of two impartial hearing proceedings, I am not convinced by the district's conduct that the district's administrative processes are sufficiently intact to effectuate the changes needed to remediate the student's situation on its own. Several factors in this case lead me to conclude that more extraordinary measures are appropriate. First, as of the date of this decision, the 2022-23 school year has not ended. Second, despite having access to the several sources of information indicating that the student had benefited from ABA in the past and recommending a full-time ABA program for the student going forward (Parent Exs. G; K; I; P), the unappealed April 2022 IHO decision directing the district to provide the student with ABA (Parent Ex. B), as well as the unappealed portion of the March 2, 2023 IHO decision under review herein that directed the district to convene a CSE and develop a program taking into consideration the student's need for an ABA-based educational program (IHO Decision at pp. 15-17), the district's CSE convened weeks ago and again did not recommend ABA programming for the student (Req. for Rev. Ex. 3). According to the March 2023 IEP, the CSE considered ABA for the student in order to comply with the IHO's March 2, 2023 decision but concluded that a 6:1+1 special class in a specialized school with paraprofessional and related services but without a specific recommendation for ABA would be appropriate to meet the student's needs (id. at pp. 29-30, 35). Because the district presented no evidence in this matter, it is not clear that the district can provide ABA programing for this particular student in an in-district program. Furthermore, while the district may have relied on its own evaluations to make recommendations for the student for the 2022-23 school year that did not include ABA, the district utterly failed to participate in the impartial hearing to present its view of the student's needs or defend its recommendations, or even update the IHO regarding its view of the student's current needs. Thus, the district did not rebut or contest the evidence supporting the student's need for ABA, and, based on the evidence in the hearing record, there is a clear "consensus" among those who evaluated the student regarding his needs that should be followed by the CSE (see A.M. v. New York City Dep't of Educ., 845 F.3d 523, 543–46 [2d Cir. 2017] [referencing and following the proposition that when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide services consistent with that consensus is not reasonably calculated to enable the child to receive educational benefits]).

After April 2022 IHO decision ordering ABA programming, there is no indication that the CSE meaningfully engaged with that unappealed order and, quite shockingly, proceeded to meet and develop IEP programing without the parent's participation at all which prompted the parent to go to due process all over again. It is apparent from the evidence that the same pattern is occurring repeatedly with little to no change. Absent some articulation from the district about its rationale for declining to recommend ABA for the student, the IHO's order for the CSE to consider the student's need for ABA is insufficient relief in this instance. Instead, I will order the district to convene the CSE and develop an IEP places the student in a State-approved nonpublic school that provides ABA programming, which the district must identify as soon as possible. Moreover, due to the nearness of the end of the 2022-23 school year and the extent of the district's denial of FAPE to the student for its protracted failure to recommend providing ABA to the student, an appropriate remedy for the student calls for prospective placement of the student in the State-approved nonpublic school for the duration of the 2023-24 school year unless the parties otherwise agree to a different placement as set forth below.” (Application of a Student with a Disability, Appeal No. 23-059).

The Student presents with significant behavioral challenges, which the District has done little to remedy. To wit: via affidavit dated 2/26/2024, the neuropsychologist testified that “[t]he student exhibited difficult behaviors in the classroom,” that the Student “hit a student sitting beside him and his paraprofessional,” that “when he did hit, he looked to the teacher for a reaction,” and that when the Student “became frustrated for not earning a reward from the teacher, he hit and screamed.” (Ex. G, at ¶ 10). The neuropsychologist went on to state that when the Student “became frustrated, he would get antsy, whine, and hit others,” that the Student “sometimes stuck his finger in his paraprofessional’s ear,” and that while he used to play with his brother at home, he no longer does because his behavior has become so aggressive towards his own family members. (Ex. G, at ¶¶ 11-12). Additionally, the Student “exhibits self-distracting behaviors, has a difficult time following instructions, and needs constant reminders to focus on the task at hand. [The Student] shows frequent off-task behaviors like producing unintelligible sounds and clapping…the Student chews on inedible objects like paper…[the Student’s] mood is volatile, and his aggressive behavior is unpredictable,” and the Student “shifts quickly between being calm and happy one moment, to hitting, screaming, and throwing things the next.” (Ex. G, at ¶ 19). Finally, the neuropsychologist testified that the Student’s behaviors “pose a risk to his safety” in that the Student does not understand rules of conduct, is prone to elopement in public with no knowledge of traffic or safety rules, and that the Student “has cut his hair with scissors, which has left him with bald spots.” (Id.).

Additionally, via affidavit dated 2/26/2024, the Student’s Parent testified that the Student “is unable to communicate in any way to me even for his basic needs…cannot speak in full sentences…has a difficult time doing basic daily tasks…does not know how to socialize…[and] is not careful around sharp objects and has not made progress with academics.” (Ex. H, at ¶ 5). Further, the Parent testified that the Student “has become violent…hits [the Parent] and other family members…throws things when he gets upset…[and] that [the Parent] had not seen [the Student] make meaningful progress all year and that [the Student] was getting even worse at home.” (Ex. H, at ¶¶ 6, 11).

Despite the Student’s extreme behaviors as described above, the District’s IEP recommendations have not changed in the past two years. (Exs. D-F). What is worse, the Student is regressing, and his behaviors are even alienating him from his family. (Ex. H, at ¶ 5). This cannot continue.

Accordingly, and like the SRO above, I agree that this case presents “one of the rare instances where prospective placement is warranted.” (Appeal No. 23-059). Given the District’s history of failures as to this Student, I am ordering that the CSE convene “and develop an IEP [that] places the student in a State-approved nonpublic school” on a 12-month basis, and the program in which incorporates the recommendations of the Student’s neuropsychologist and the input of the Student’s Parent and chosen BCBA. To the degree the CSE needs to defer to the CBST to make the placement, it shall do so. Finally, I also direct that this IEP to be developed shall include four hours per day of in-home ABA instruction. This latter service is necessary not only for the Student’s education, but for the safety of the Student and his family.

B. The Student’s Claim for an FBA and BIP

Finally, the Student seeks a functional behavior assessment. For the reasons that follow, I find that the Parent is entitled to this assessment based upon my discretionary authority pursuant to 8 NYCRR § 200.5[g][2].

The IDEA and State and federal regulations guarantee parents the right to obtain an IEE (See 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]), which is defined by State regulation as "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]; see 34 CFR 300.502[a][3][i]). Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; 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]). The Second Circuit Court of Appeals has recently found that, if a district and a parent agree that a student should be evaluated before the required triennial evaluation "the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs" or "[o]therwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation" (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 170 [2d Cir. 2020]). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]). Additionally, both federal and State regulations provide that "[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 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]).

It is within an IHO's authority to order an IEE at public expense as part of an impartial hearing (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]; Luo v. Roberts, 2016 WL 6831122, at *7 [E.D. Pa. Oct. 27, 2016] [noting that an IHO "is permitted, and in some cases required, to order an [IEE] at public expense"], on reconsideration in part, Luo v. Owen J. Roberts Sch. Dist., 2016 WL 6962547 [E.D. Pa. Nov. 28, 2016], aff'd, 2018 WL 2944340 [3d Cir. June 11, 2018]; Lyons v. Lower Merrion Sch. Dist., 2010 WL 8913276, at *3 [E.D. Pa. Dec. 14, 2010] [noting that the regulation "allows a hearing officer to order an IEE 'as part of' a larger process"]; see also S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 n.9 [D.R.I. Jan. 14, 2014] [acknowledging opinion that the regulation empowers hearing officers to solicit independent expert opinions but disagreeing that the regulation gives an IHO "the inherent power to make up remedies out of whole cloth"], aff'd, 773 F.3d 344 [1st Cir. 2014]; M.Z. ex rel. D.Z. v. Bethlehem Area Sch. Dist., 521 F. App'x 74, 77 [3d Cir. 2013] [affirming district court's decision that the Hearing Officer had committed legal error [pursuant to 34 CFR § 300.502] when she declined to order a publicly-funded independent education evaluation despite her conclusion that the School District's report was inappropriate]; Lyons v. Lower Merrion Sch. Dist., No. 09-5576, 2010 WL 8913276, at *3 [E.D. Pa. Dec. 14, 2010] [recognizing that 34 C.F.R. § 300.502[d] "allows a hearing officer to order an IEE 'as part of' a larger process"]; S. Kingstown Sch. Committee v. Joanna S., No. 13-127, 2014 WL 197859, at *9 [D.R.I. Jan. 14, 2014] [noting that a hearing officer can order an independent evaluation if the evidence establishes a deficient evaluation with which the parent disagrees], aff'd 773 F.3d 344 [1st Cir. 2014]; Manchester-Essez Reg'l Sch. Dist. Comm'n v. Bureau of Special Ed. Appeals, 490 F. Supp. 2d 49,

54 [D. Mass. 2007) (noting that a Hearing Officer is permitted to order additional evaluations by the school district at public expense when necessary]).

Further, “’[p]rocedural flaws do not automatically require a finding of a denial of a FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent's participation in the creation or formulation of the IEP constitute a denial of FAPE.’” (E.H. v. N.Y.C. Dep't of Educ., 164 F. Supp. 3d 539, 553 [S.D.N.Y. 2016] quoting W.S. ex rel. C.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 138 [S.D.N.Y. 2006]). Finally, a district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]).

Because, over the course of two years, the District has done nothing to alter the course of this Student’s education, I am accordingly utilizing the authority vested in me by applicable state regulations to grant, on an interim basis, a functional behavioral assessment. The Student’s behaviors described above are extreme and his regression troubling. Accordingly, an FBA and concomitant BIP are necessary for all parties involved in the Student’s education, from teachers, to Parents, to administrators, to begin to combat the Student’s troublesome behaviors and allow the Student to access, in some part, his educational curriculum.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

1. The CSE shall convene and develop an IEP that places the student in a State-approved nonpublic school, and whose programming substantially comports with the recommendations in the Student’s 2023 neuropsychological evaluation as well as the input of the Parent, their chosen

BCBA, any updated evaluations, and any communications from any nonpublic schools with which the Parent has previously engaged in discussions. To the degree the CSE needs to defer to the CBST to make the placement in a State-approved nonpublic school, it shall do so. Finally, I also direct that this IEP to be developed shall include four hours of daily, in-home, ABA instruction with a provider of parent’s choosing at the provider’s stated rate.

2. The District shall fund 120 hours of private, 1:1 in-home ABA instruction with a Provider of parent’s choosing at the Provider’s stated rate; the time limit of this award is limited only by the Student’s eligibility for special education services in the State of New York, and the recipient of the award on behalf of Student may include Parent, Grandparent, guardian, future guardian, or Student;

3. A functional behavioral assessment shall be completed with a Provider of Parent’s choosing at the Provider’s stated rate. If necessary, a competent behavioral intervention plan shall be developed. Within 35 days of receipt by the DOE of an invoice for services rendered, the DOE shall directly fund the provider for the IEE.

SO ORDERED.

DATED: 6/2/2024

Paul J. DeSena

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 – REDACTION IDENTIFICATION PAGE

Term Used In FOFD	[REDACTED] Information
Student	[REDACTED]
Parent/Guardian	[REDACTED]
Parent Attorney/Representative	[REDACTED]
District Attorney/Representative	[REDACTED]
District	[REDACTED]
Student’s neuropsychologist	[REDACTED]
Licensed BCBA	[REDACTED]

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit	Document	Date	Pages
A.	Impartial Hearing Request	12/19/2023	3
B.	Neuropsychological Evaluation	6/27/2023	23
C.	Resume of [REDACTED]	Undated	3
D.	Individualized Education Program (“IEP”)	4/27/2022	31
E.	Individualized Education Program (“IEP”)	4/17/2023	30
F.	Individualized Education Program (“IEP”)	9/28/2023	28
G.	Affidavit from [REDACTED]	2/26/2024	7
H.	Affidavit from [REDACTED]	2/26/2024	4
I.	Affidavit of [REDACTED]	2/26/2024	6
J.	N/A	N/A	N/A
K.	Letter from State-Approved nonpublic school	4/17/2024	1

DOE EXHIBITS

Exhibit	Document	Date	Pages
1.	N/A	N/A	N/A

IHO EXHIBITS

Exhibit	Document	Date	Pages
I.	N/A	N/A	N/A

Footnotes

[1] A detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.