Findings of Fact and Decision - NY IHO No. 271281

CASE NUMBER: 271281

FINDINGS OF FACT AND DECISION

Case Number: 271281

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

School District: NYC DOE

Hearing Requested by: Parent

Request Date/Date Complaint Filed: 4/2/2024

Date(s) of Hearing: 6/12/2024, 6/18/2024

Actual Record Closed Date: 7/15/2024

Date of Decision: 7/16/2024

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. The Student was [REDACTED] years of age at the start of the 2023/24 school year and attending a Private School. (Ex. A). In the Due Process Complaint [hereinafter, “DPC”], the Parent alleged that the Department of Education [hereinafter, “District” or “DOE”] failed to implement and fund the services required by the Student’s IEP for the 2023/24 school year, and in so doing, deprived the Student of a Free Appropriate Public Education [hereinafter, “FAPE”] on an equitable basis for that school year. (Ex. A).

The Parent requests direct funding for the 2023/24 school year for services that were called for by the IEP but that the District never implemented as well as for certain evaluations that were needed but never received. (Ex. A).

As discussed below, I find that the District failed to provide the Student a FAPE for the 2023/24 school year. Additionally, I find that the compensatory education and evaluations that the Parent requests is reasonable.

PROCEDURAL HISTORY

The Parent filed this case on 4/2/2024. I was appointed to hear this case on 4/3/2024. A hearing was held across two dates on 6/12/2024 and 6/18/2024. (See generally, Hearing Tr.). The Parent and the District were represented by counsel (Id.).

At the hearing, the District introduced exhibits 1-5, called no witnesses, made opening and closing statements, crossed the parents’ three witnesses, and essentially conceded that the District failed to implement the Student’s program in the 2023/24 school year. (See Hearing Tr., at 17-20, 25-28, 33, 43-50, 54-61, 68-77, 79-84).

The Parents argued that the District denied the Student a FAPE for the 2023/24 school year and that the Student was entitled to the requested compensatory education and evaluations. (Id.). The Parents introduced exhibits A-E into evidence. ^[1] (See Hearing Tr., at 20-22). The Parent called three witness (all by affidavit): the Student’s Parent, OT and Speech provider, and planned ABA Provider. (Exs. C-E). The Parent made an opening and closing statement. (See Hearing Tr., at 28-33, 84-89). This order follows.

FINDINGS OF FACT

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

At the start of the 2023/24 school year, the Student was a [REDACTED]-year-old student who attended a District School. (Ex. A). The Student is diagnosed with Autism, ADHD, and Hydronephrosis, the latter of which necessitates a full-time health paraprofessional during the day to assist the Student with toileting. (Ex. E, at ¶¶ 2-3). At that time, the only IEP in effect was dated 5/25/2023, and classified the Student as a student with autism. (Ex. 1, at 1). The Student’s IEP called for an 8:1:1 classroom in a District 75 Program on a 12-month basis, along , inter alia, 1:1 OT 2x30, 2:1 OT 1x30, Group Parent Counseling and Training 4 times yearly for 1 hour per session, and 1:1 Speech therapy 3x30. (Ex. 1, at 25-27). On this IEP, the Student was listed as being at Kindergarten levels in both reading and math. Subsequent to this IEP, this District developed another IEP dated 3/25/2024. (Ex. 3). The program suggested in the 3/25/2024 IEP was identical to the 5/25/2023 IEP, except that the 3/25/2024 IEP recommended 1:1 OT 3x30 instead of 1:1 OT 2x30 and 2:1 OT 1x30. (Compare Ex. 1 with Ex. 3). Notably, four measurable annual goals were shared between the IEPs, and on the subsequent IEP, the Student was performing at a kindergarten level in both reading and math despite being in the fourth grade. (Compare Exs. 1 and 3; Ex. 3, at 23). Too, the management needs listed in the IEPs are also very similar, with both including the following passage:

[The Student] has a severe cognitive disability, significant deficits in communication/language, and significant deficits in adaptive behavior. He requires a highly specialized educational program provided by a District 75 school/program that facilitates the acquisition, application and transfer of skills across natural environments. [The Student] requires a special class (8:1:1) to address academic needs. (See Exs. 1, 3).

On 5/23/2024, the Student underwent an ABA evaluation, the results of which were recorded in Parent’s Exhibit B, entitled “Assessment Summary and Treatment Plan,” a report compiled by the Student’s prospective ABA services provider, who is employed by the agency that provided the Student’s OT and Speech therapy during the 2023/24 school year. (Ex. B; Ex. D, at ¶ 3). As part of this evaluation, the evaluator administered the Vineland 3 assessment, a part of which was the Vineland 3 Maladaptive Behavior domain. (Ex. B, at 9). Through this assessment, the evaluator identified the Student’s “interfering behaviors” as follows:

Interfering or mild inappropriate behaviors identified in the Vineland 3 Maladaptive Behaviors section include gets fixated on objects or parts of objects, harms himself, uses strange or repetitive speech, loses awareness of what is happening around him, repeats physical movements over and over, wanders or darts away, has toileting accidents and eats nonfood items. [The Student’s] mother reported that he also engages in tantrums that include crying, screaming, swatting others, and dropping to the floor approximately two times a day, oral and motor stereotypy that prevent him from completing tasks, and bolting from her in public. (Ex. B, at 9).

The Parent testified, in sum and substance, that the District provided few, if any, related services called for by either IEP, and the District did not meaningfully controvert these statements. (Ex. E, at ¶¶ 20-21, 25).

In terms of evaluations, the IEPs appeared to rely on a Psychoeducational Evaluation Report conducted on 2/20/2024 and a progress report from the Student’s speech provider dated 5/25/2023. (Ex. 3, at 1-2). Additionally, the District conducted the “Assessment of Basic Language and Learning Skills” in May of 2023. (Ex. 1, at 1). The Student scored poorly across virtually all domains on these assessments. (See Exs. 1, 3).

CONCLUSIONS OF LAW AND ANALYSIS

Except for in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]; C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 [2d Cir. 2014]).

A. FAPE

The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (20 U.S.C. § 1401[9]). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” (Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 [2017]).

Here, there is no dispute on any substantive basis that the Student is entitled to services pursuant to the IEP. The Parent testified, in sum and substance, that the District provided few, if any, related services called for by either IEP, and the District did not meaningfully controvert these statements. (Ex. E, at ¶¶ 20-21, 25). Given the District’s failure to implement the IEP as written, I find, accordingly, that the District denied the Student a FAPE for the 2023/24 school year. (See generally, Hearing Tr.).

B. Compensatory Education

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. (See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]). As compensatory services, the Parent asks for banks of hours for OT and speech therapy, along with funding for 25 hours per week of in-home, ABA services. (Hearing Tr., at 22-24).

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 [7 th 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 I ndep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 [8 th 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. It should be noted, first, that the District presented no evidence contradicting the appropriateness of Parent’s request for banks of compensatory hours for speech and OT; namely, 48 hours of compensatory speech services and 72 hours of compensatory OT. (Ex. E, at ¶ 31). Accordingly, I find these requests reasonable.

As to the Parent’s request for funding for in-home ABA services, the District elicited, on cross-examination of the Parent’s planned ABA Provider, that these services would be used, chiefly, to “generalize skills from the school.” (Hearing Tr., at 48). In support of this proposition, the District cited to L.K. v. NYC Dep't of Educ., 14-cv-7971 [AJN] [S.D.N.Y. Mar. 1, 2016], which states, in relevant part, as follows:

“In other words, the SRO concluded that the Parents should not be reimbursed for services that seek only to generalize L.K.'s skills outside of the school context. The Court agrees…[u]nder this framework, services that seek only to generalize skills may not be required to provide a FAPE. As the SRO noted, “[s]everal courts have held that the IDEA does not require school districts as a matter of course to design educational programs to address a student's difficulties in generalizing skills to other environments outside of the school environment.” This is particularly true “in cases in which it is determined that the student is otherwise likely to make progress in the classroom.” In P.S. v. New York City Department of Education, for instance, the court upheld the SRO's determination that a student did not require home-based programming because “the primary purpose of [the student's] home-based services appeared to be ‘generalization’ of behaviors learned in the school setting to the home setting.” The Parents argue that P.S. is inapposite because the court decided that case on Prong I, not Prong III, of the Burlington/Carter test. But as the Department persuasively argues, P.S. stands for the proposition that services that seek to generalize a student's skills are not necessary to the provision of a FAPE. And as the Court explained above, courts must consider the question of reimbursement, at Prong III of the analysis, through the lens of the services that the Department would have been responsible for in the first instance, i.e., the inquiry required at Prong I.” (L.K. v. NYC Dep't of Educ., 14-cv-7971 [AJN] [S.D.N.Y. Mar. 1, 2016]).

I find this case inapposite to the instant case. First of all, it is unquestionable that the Student has made no progress in the District school: the Student’s management needs have barely changed from one IEP to the next, his reading and math levels remain the same, a substantial portion of measurable annual goals remain the same from one IEP to the next, and the Student suffers, even in the fourth grade, from “:interfering behaviors” such as tantrums that including crying, hitting, kicking, and spitting. (Exs. 1, 3; Ex. B, at 9). Too, the services will not only be used to “generalize skills” learned in school – they must necessarily be used to eliminate, or at least lessen, the Student’s interfering behaviors and assist the Student in accessing his education.

At the Hearing, the District confronted none of these factual issues and instead argued, largely on the strength of its documentary submissions, that either the recommendation for ABA services was illconceived, the provider was not qualified to make the recommendation, or the rate is exorbitant. The Parent’s planned ABA provider holds a “[m]aster's Degree in Education with a concentration in Special Education and a post-graduate certificate in Applied Behavior Analysis (ABA).” (Ex. D, at ¶ 1). Further, the provider is a “Board Certified Behavior Analyst (BCBA) and hold licenses in Behavior Analysis in Connecticut, Massachusetts, Maryland, North Carolina, New York, and Rhode Island.” (Id., at ¶ 2). Finally, the provider has “performed thousands of assessments in the field of special education and ABA, spanning over 24 years” over the course of her career. (Id., at ¶ 5). Accordingly, I have no issues with the recommendations of the Student’s ABA evaluator, as I find her to be eminently qualified and the report upon which she relied upon to be comprehensive and well-founded. (Ex. B).

Compensatory education awards “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"]). Here, the record suggests that the District has been underserved for quite some time, as indicated by the Student’s reading and math attainment levels along with the type of interfering behaviors the Student exhibits, the latter of which are more typical of a much younger Student. Accordingly, as behind as this Student is, funding for 25 hours per week of 1:1 in-home ABA services for the 2023/24 school year is reasonable.

Furthermore, the Parent has averred that they are entitled to direct funding for all services at the Provider’s stated rates. I find no issue with these rates, especially where, as here, the District proposed no evidence as to alternative rates.

C. A Burlington/Carter Analysis is Inappropriate

At the hearing, the District averred that this matter should be analyzed according to the 3-prong analysis promulgated by the Burlington/Carter cases. I disagree.

While it is true that some Officers in the Office of State Review has stated that Impartial Hearing Officers should utilize the 3-Prong Burlington/Carter analysis instead of a compensatory services approach when deciding cases in which the Parent alleges that the DOE failed to implement an IESP. (Application of the New York City Department of Education, Appeal No. 23-071 [SRO NY 2023]), I find that this analysis of matters of this type to be fundamentally flawed.

Section 3602-c is entirely a creature of state law and does not have a corollary in the IDEA or other federal statutes. The Burlington/Carter cases involved Parents who (1) rejected the school district’s IEP as inappropriate and (2) unilaterally placed their children in other schools. For example, in Burlington, the Court references rejection of an IEP when it stated, “[t]he first question on which we granted certiorari requires us to decide whether this grant of authority includes the power to order school authorities to reimburse Parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act.” (Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369, [1985]). Likewise, the Court limited the discussion to schools when it wrote, “it seems clear beyond cavil that ‘appropriate’ relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school.” (Id at 369).

Unlike in Burlington and Carter, in this case, the Parents and the DOE agree that the services in the Student’s IESP were appropriate. The dispute between the parties revolves around the DOE’s unwillingness to provide the Student with services outlined in their proposed plan. Also, unlike in Burlington and Carter, where the parents placed the students in private schools, in this case, though the student may be in a private school, only the supportive services are requested, NOT tuition reimbursement.

Additionally, applying a Burlington/Carter analysis to failure-to-implement cases forces the Parents into a predicament that is contrary to the purposes of the IDEA and state law. If the district fails to implement the IESP, the Parents must either pay for the services the student should have been receiving, in which case the services are no longer “free,” or the Parents must forgo the services pending the outcome of the litigation, which is inappropriate as it forces the student to suffer without services. Ironically, Burlington addressed this exact situation when it said, “[t]he Act was intended to give [] children [with disabilities] both an appropriate education and a free one; it should not be interpreted to defeat one or the other of those objectives.” (Burlington, 471 U.S. at 372). As such, applying Burlington/Carter creates unintended outcomes that defeat the purpose of the IDEA and Section 3602-c.

In a recent decision, the SRO favored a Burlington analysis because the “administrative due process system was not designed to set rate-making policies for what has grown into a completely unregulated cottage industry.” (Application of the New York City Department of Education, Appeal No. 23-071 [SRO NY 2023]). However, Burlington/Carter requires IHOs to assess the appropriate cost of a private school’s tuition, thus setting a “rate.” IHOs regularly examine evidence of rates for Independent Educational Evaluations and compensatory services for students who attend public schools and have been denied a FAPE. The administrative due process system was specifically designed to address special education claims and set rates for tuition and services where necessary. The same recent SRO decision stated that the attempts to analyze Section 3602-c failure-to implement cases “that do not use a Burlington/Carter analysis have tended to lead to chaos,” but I disagree. (Application of the New York City Department of Education, Appeal No. 23-071 [SRO NY 2023]). In my view, these cases (including this case) are simple: the DOE was supposed to provide a service and the DOE did not provide the service, so the student is entitled to compensatory services. Too, if the result achieved by following the law in these matters leads to “chaos,” then it is the responsibility of the legislative, not the executive or judiciary branches of government, to remedy the situation.

I also note that the SRO has itself been inconsistent in about whether to apply a Burlington/Carter analysis or compensatory analysis. For example, in Appeal No. 23-065, the SRO used a compensatory services analysis in a Section 3602-c case. (Application of a Student with a Disability, Appeal No. 23-065 [SRO NY 2023]). Therefore, even some SROs believe that a compensatory services approach is the appropriate approach to deciding these cases.

Furthermore, using a Burlington/Carter analysis improperly places a burden on the parent. In New York, school districts have the burden of proof –including the burden of production and burden of persuasion – except when a Parent is seeking tuition reimbursement for a unilateral placement. (NY Educ. Law § 4404(1)(c)). Even then, the parent must only show that the placement they selected is appropriate. (Id.). The New York State Education Department (“NYSED”) itself recognizes that parents only have a burden related to the appropriateness of a private school. (See New York State Law, Regulations and Policy Not Required by Federal Law/Regulation/Policy March 2023, available at https://www.nysed.gov/sites/default/files/special-education/nys-608-analysis-updated-march-2023_.pdf [stating “[t]he law creates an exception for impartial hearings in which the parent seeks tuition reimbursement for a unilateral placement in a private school” at p. 11] [emphasis added]). Too, the plain meaning of the term tuition is the cost paid for enrollment in a school, and the term “placement” in IDEA cases has also historically referred to a school, and not related services. (See 34 C.F.R. 300.130, where the definition of parentally placed private school children means placement in schools that meet the definition of elementary or secondary schools).

What is more, Educ. Law § 4404[5] defines tuition as “instructional services.” ^[2] The definition of “instructional services, does not include the “related services” sought by parents in these actions. The Commissioner defines related services as “developmental, corrective, and other supportive services as are required to assist a student with a disability.” ^[3] The definition of SETSS (Special Education Teacher Support Services) places these services as “related” services not “instructional.” These services are not instructional and should not be lumped with cases involving the Burlington-Carter analysis.

Finally, a compensatory regime is the only type of remedy explicitly sanctioned by the Second Circuit where, as here, the District has failed to implement. In the context of a closely analogous situation, where the District simply failed to implement a Student’s stay-put program, the Second Circuit stated, in Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456-57 [2d Cir. 2015], that compensatory education, not a Burlington/Carter analysis, was the proper remedy:

“Although we have typically endorsed compensatory education as a remedy for substantive FAPE…there is no reason why the remedy should not be equally available for stay-put violations. We therefore conclude that when an educational agency has violated the stay-put provision, compensatory education may--and generally should--be awarded to make up for any appreciable difference between the full value of stay-put services owed and the (reimbursable) services the parent actually obtained. In this case, the Board owes reimbursement in the amount the Parent expended for services the Board was required to provide, plus compensatory education to fill the gap of required services that the Parent did not fund. ” (Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456-57 [2d Cir. 2015] [emphasis added]).

A Burlington/Carter analysis was meant to address cases in which a parent unilaterally places the student in a private school, not failure-to-implement cases like the one before me here. Requiring a Burlington/Carter analysis would unfairly shift the burden to the Parents to prove their eligibility for that to which they are already entitled by law. It is beyond cavil that NY Educ. Law § 4404[1][c] did not intend this, and indeed, had the Legislature intended to place a burden on Parents for 3602-c cases, they would have done so. As such, when the DOE fails to implement the services on a student’s IESP, as it has done here, a compensatory services analysis is the appropriate tool with which to devise a remedy.

D. The Student’s Claim for IEEs

Finally, the Student seeks neuropsychological, speech-language, and occupational therapy evaluations. For the reasons that follow, I find that the Parent is entitled to these evaluations 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]).

In the instant case, the Parent has timely disagreed with the District’s evaluations (or here, the failure to evaluate) the Student. (Ex. A). Indeed, in the 2023 and 2024 IEPs, the District relied upon Psychoeducational Evaluation Report conducted on 2/20/2024, a progress report from the Student’s speech provider dated 5/25/2023, and an “Assessment of Basic Language and Learning Skills” in May of 2023. (Ex. 1, at 1; Ex. 3, at 1-2). The Parent’s DPC details the clear disagreement with the District’s then-current evaluation cycle, in which insufficient evaluations were conducted. (Ex. A). This is more than specific enough to put the district on notice that Parent has disagreed with the evaluation the District has conducted (which consisted of no new assessments), and triggered the District’s responsibility to either 1) file a DPC in order to set forth that its evaluation was appropriate, or 2) without undue delay, provide the evaluations at public expense.

Because the District has taken neither of the above prescribed courses of action, I am accordingly utilizing the authority vested in me by applicable state regulations to grant, on an interim basis, all requested evaluations.

As to the Student’s neuropsychological evaluation, the record indicates that this is a clear area of suspected need, given the Student’s diagnosis of Autism and his low scores on prior assessments. (Exs. 1, 3-5). As to speech and OT, these area clear areas of need in which the record indicates the Student has apparently not been properly evaluated for some time. (See Hearing Tr.).

ORDER

Accordingly, based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered that, within 35 days of the Date of this Order, the District will directly fund, or, upon a showing of invoices, receipts, or the like, reimburse the Parent for, the following services for the 2023/24 school year:

1. A bank of 72 hours of individual occupational therapy with a provider of parent’s choosing at the provider’s stated rate; the award may be used until the expiration of the 2026/27 school year, and the recipient of the award on behalf of Student may include Parent, Grandparent, guardian, future guardian, or Student;

2. A bank of 48 hours of individual speech therapy with a provider of parent’s choosing at the provider’s stated rate; the award may be used until the expiration of the 2026/27 school year, and the recipient of the award on behalf of Student may include Parent, Grandparent, guardian, future guardian, or Student;

3. 25 hours per week of 1:1 in-home, ABA services with a provider of Parent’s choosing at the Provider’s stated rates;

4. A neuropsychological IEE of the student shall be completed with a Provider of Parent’s choosing at the Provider’s stated rate. Within 35 days of receipt by the DOE of an invoice for services rendered, the DOE shall directly fund the provider for the IEE;

5. An occupational therapy IEE of the student shall be completed with a Provider of Parent’s choosing at the Provider’s stated rate. Within 35 days of receipt by the DOE of an invoice for services rendered, the DOE shall directly fund the provider for the IEE;

6. A speech and language IEE of the student shall be completed with a Provider of Parent’s choosing at the Provider’s stated rate. 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: 7/17/2024

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]
Provider Representative	[REDACTED]
Student’s ABA Provider	[REDACTED]

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit	Document	Date	Pages
A.	Due Process Complaint	4/1/2024	4
B.	Assessment Summary and Treatment Plan	5/23/2024	24
C.	Affidavit by [REDACTED]	6/5/2024	4
D.	Affidavit by [REDACTED]	6/5/2024	2
E.	Affidavit by [REDACTED]	6/5/2024	3

DOE EXHIBITS

Exhibit	Document	Date	Pages
1.	Individualized Education Program (IEP)	5/25/2023	34
2.	Prior Written Notice (Notice of Recommendation) (PWN)	6/21/2023	9
3.	Individualized Education Program (IEP)	3/5/2024	27
4.	Psychoeducational Evaluation Report	2/20/2024	6
5.	Student Progress Report	5/25/2023	5

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.

[2] Education Law § 4401 [5] defines “tuition” as “the per pupil cost of all instructional services, supplies and equipment, the operation of instructional facilities and allocable debt service for the instructional facilities, as determined by the commissioner” [emphasis added].

[3] “Related services means developmental, corrective, and other supportive services as are required to assist a student with a disability and includes speech-language pathology, audiology services, interpreting services, psychological services, physical therapy, occupational therapy, counseling services, including rehabilitation counseling services, orientation and mobility services, medical services as defined in this section, parent counseling and training, school health services, school nurse services, school social work, assistive technology services, appropriate access to recreation, including therapeutic recreation, other appropriate developmental or corrective support services, and other appropriate support services and includes the early identification and assessment of disabling conditions in students.” NYCRR § 200.1(qq).