STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-239
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Liz Vladeck, General Counsel, attorneys for respondent, by Bulban Salim, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from the decision of an impartial hearing officer (IHO) which denied, in part, her request for compensatory education for her son related to the 2022-23, 2023-24, and 2024-25 school years. Respondent (the district) cross-appeals from that portion of the IHO's decision which granted, in part, the parent's request for compensatory education services and an independent educational evaluation (IEE) at public expense. The appeal must be sustained in part. The cross-appeal must be sustained in part.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The student has received diagnoses of autism spectrum disorder, without cognitive impairment; attention deficit hyperactive disorder (ADHD); a specific reading disorder; a disorder of written expression; and a mixed receptive and expressive language disorder (Parent Exs. D at p. 15; G at p. 18). The student was initially referred for evaluation at 18 months of age and recommended for services through the early intervention program (EIP), including speech language therapy, occupational therapy (OT), and applied behavior analysis (ABA) services (Parent Exs. D at p. 2). When the student aged out of the EIP, he was referred to the committee on preschool special education (CPSE) (id.). The CPSE found the student eligible for services as a preschool student with a disability and recommended the student attend "an 8:1 special education preschool setting" and receive ABA services, physical therapy (PT), speech-language therapy, and OT (Parent Exs. D at p. 2; G at p. 2).
In preparation for the student's transition to school-age services, a CSE convened and determined that the student was eligible for special education as a student with a disability (Parent Exs. D at p. 2; G at p. 2). For kindergarten (the 2016-17 school year), the student began attending a 12:1 special class in a district public school where he received the additional support of speech-language therapy, OT, and counseling, with the addition later in the year of paraprofessional services and special education teacher support services (SETSS) (Parent Exs. D at pp. 1-2; G at p. 2). In October 2017, when the student was six years old and in first grade, the district conducted a functional behavioral assessment (FBA) of the student (Parent Ex. A at p. 1). The FBA identified the student as having a behavioral "response class" of "task avoidance" (id.).[1], [2] At the start of third grade (i.e. the 2019-20 school year) the student continued to attend a 12:1 special class; in addition, during the year, he was "successfully mainstreamed" into a math class with integrated co-teaching (ICT) services (Parent Exs. D at p. 1; E at pp. 9, 35). In March 2020, the student was switched to remote instruction when school buildings closed due to the Covid-19 pandemic (Parent Ex. O ¶¶ 11-12). To the extent the student's physical school was open during the 2020-21 and 2021-22 school years (fourth and fifth grades), the student attended a 12:1 special class while also receiving SETSS and related services (Parent Exs. E at p. 3; O ¶ 12). On March 3, 2021, the district developed a behavioral intervention plan (BIP) to address the student's task avoidance (Dist. Ex. 1 at p. 1).[3] Evaluations of the student took place between April 2021 and March 2022 (Parent Exs. B at p. 1; C at p. 1; D at p. 1; E at pp. 2-4).
On May 13 and June 28, 2022 a CSE convened to conduct the student's annual review (see Parent Ex. E).[4] The CSE found the student remained eligible for special education as a student with autism and recommended that, "beginning in September 2022," the student's educational needs be addressed in a general education class with ICT and related services, as well as a "a 1:1 paraprofessional to sustain participation in class/school activities" (Parent Ex. E at p. 9). The CSE recommended ICT services pending the student's acceptance into either the NEST or Horizon programs, both of which were specifically designed for instruction of students with autism spectrum disorder (id. at pp. 34-35). The student was accepted into the Horizon program, which included an 8:1 special class with instruction based on the principals of ABA (Tr. p. 50; Parent Exs. E at p. 34; F at p. 2; O ¶ 17).[5] The student's IEP for the 2022-23 school year was amended on June 28, 2022 to reflect his acceptance into the Horizon program (Parent Ex. E at p. 34). The CSE's revised recommendations provided that the student would attend an 8:1+1 special class with all day support from a 1:1 paraprofessional and receive five periods per week of individual SETSS for English language arts (ELA) in the classroom, five periods per week of individual SETSS for ELA in the home, one 30-minute session per week of group counseling, two 30-minute sessions per week and two 30-minute sessions per month of individual OT in a therapy room, two 30-minute sessions per month of individual OT in the classroom, two 30-minute sessions per week of group speech-language therapy in the classroom, and two 30-minute sessions per week of group speech-language therapy in a therapy room, and that the parent receive three 45-minute sessions per year of group parent counseling and training (id. at pp. 26-27). The CSE also recommended that the student receive extended school year services consisting of five periods of individual SETSS per week in July and August 2022 (id. at pp. 28-29). Behaviorally, the IEP stated that the CSE considered removing the BIP because the student's behaviors had improved but decided to keep it because of the "imminent transition to a new school environment with added stressors" (id. at p. 35). The CSE also recommended that the student receive special transportation "from the closest safe curb location to school" and assistive technology devices and/or services in the form of a "touchscreen tablet" (id. at pp. 28, 32).
The parent did not send the student to the Horizon program for the 2022-23 school year (Parent Ex. F at p. 2). Instead, the parent accepted a seat for the student at a charter school (id.).[6] According to the parent, the student did not receive all of the programming and services recommended in the June 2022 IEP throughout the 2022-23 school year at the charter school (Parent Ex. O ¶ 19; see Parent Ex. F at pp. 9-10, 43; Dist. Exs. 2 at p. 1; 3 at pp. 1-3).
A CSE convened to conduct an annual review on March 20, 2023 (Parent Ex. F). The March 2023 CSE found the student remained eligible for special education as a student with autism and recommended the student attend the charter school program in a general education classroom with a "special education teacher and assistant" with full time, individual paraprofessional support and access to assistive technology and that he receive five periods per week of individual SETSS for ELA in the home, one 30-minute session per week of group counseling, one 30-minute session per week of individual counseling, two 30-minute sessions per month of individual OT in the classroom, two 30-minute sessions per month and two 30-minute sessions per week of individual OT in a therapy room, two 30-minute sessions per week of individual speech-language therapy in the classroom, and two 30-minute sessions per week of group speech-language therapy in a therapy room (id. at pp. 1, 13, 33-35). The CSE also recommended that the parent receive three 45-minute sessions per year of group parent counseling and training, continuation of the student's BIP, that the student receive special transportation, and that the student receive extended school year services of five periods per week of group SETSS for ELA, two 30-minute sessions per week of individual speech-language therapy in the classroom, and two 30-minute sessions per week of group speech-language therapy in a separate location (id. at pp. 12, 34-36, 40). The CSE further recommended the student receive 92 60-minute sessions of individual, compensatory SETSS for ELA to "address lost skills and/or lack of expected progress due to the periods of remote and blended learning beginning in March 2020" (id. at pp. 36-37). The March 2023 CSE further described the programming that the student received at the charter school and indicated the student also participated in three "tier 2" math and ELA "intervention periods per week" in a group of six students where he received 1:1 instruction and support from the special education teacher "to help him with skill deficits" (id. at p. 10).
The student was reevaluated during the 2023-24 school year by a private evaluator (Parent Ex. G). The private psychological evaluation was shared with the CSE (Parent Ex. H at p. 1). The student's BIP was updated on February 2, 2024 (Dist. Ex. 1).[7]
A CSE convened to conduct the student's annual review on April 9, 2024 (Parent Exs. H at p. 1; I at p. 1). At the April 2024 CSE meeting, the parent's advocate "was unable to continue her participation in the meeting past . . . 2 hours" and, therefore, it was agreed that the CSE would "adjust[] the testing accommodations . . . for upcoming state exams" and "schedule a reconvene" to discuss other changes to the student's program and services (Parent Ex. H at p. 35). An IEP was generated with a projected implementation date of April 17, 2024 (id. at p. 1).
The CSE reconvened on June 12, 2024 (Parent Exs. J at p. 1; K at p. 1). The June 2024 CSE continued to find the student eligible for special education as a student with autism and developed an IEP (Parent Ex. J at p. 1). The June 2024 CSE largely recommended the same program and services as set forth in the March 2023 IEP except that the June 2024 CSE removed two 30-minute sessions per month of OT from the student's program for the 10-month portion of the school year and removed speech-language therapy from the program for the summer portion of the school year (compare Parent Ex. J at pp. 56-59, 63-64, with Parent Ex. F at pp. 33-37, 40). The June 2024 CSE also recommended that the student receive compensatory SETSS, OT, and speech-language therapy during July and August 2024 to make-up for lapses in the delivery of those services during the 2023-24 school year (Parent Exs. J at pp. 19, 24-28, 67; K at pp. 2-3). The June 2024 also carried over the recommendation for compensatory SETSS "to close gaps in expected progress toward [IEP] goals and to address skill loss experienced during blended and remote learning beginning in March 2020" (compare Parent Ex. J. at p. 59, with Parent Ex. F at pp. 36-37). During the meeting, the parent requested that the student's program include "specialized reading instruction, behavioral therapy, and a licensed behavioral analyst to provide the parent counseling and training"; however, the district members of the CSE felt that recommendations for SETSS, counseling, and parent counseling and training sufficiently addressed the student's needs (Parent Ex. J at p. 66).
The district sent the parent a prior written notice, dated June 18, 2024, summarizing the June 2024 CSE's recommendations for the student (Parent Ex. K at pp. 1-5).
A. Due Process Complaint Notice
In a due process complaint notice dated November 4, 2024, and filed with the district on November 7, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23, 2023-24, and 2024-25 school years (Parent Ex. N). For all school years at issue, the parent claimed that the district failed to recommend appropriate behavioral support for the student in the least restrictive environment (LRE) or instruction from a reading specialist trained in the Orton-Gillingham approach (id. at pp. 1, 6-8). The parent also alleged that the SETSS recommended by the CSEs for the 2023-24 and 2024-25 school years were insufficient to meet the student's needs and were not recommended to be provided using a particular methodology (id. at pp. 6, 8). Additionally, the parent alleged the district did not fully implement the student's recommended program and services in the school years at issue by failing to provide parent counseling and training in all three school years; failing to provide OT from January 2023 through June 2024 and only providing two sessions of OT for the 2024-25 school year; and failing to provide the student with speech-language therapy during the 2024-25 school year (id. at pp. 1-2, 6, 8).
For relief the parent sought compensatory education services at fair market rates consisting of 630 hours of reading specialist services; 756 hours of SETSS comprised of 126 indirect hours delivered by a Board Certified Behavior Analyst (BCBA) or a Licensed Behavior Analyst (LBA) and 630 direct hours delivered by an ABA trained provider (ABA SETSS); 360 thirty-minute sessions (i.e., 180 hours) of OT; and 144 thirty-minute sessions (i.e. 72 hours) of speech-language therapy (Parent Ex. N at pp. 9-10). In addition, the parent requested that the CSE be required to amend the student's IEP to conform to the order (id. at p. 10). Finally, the parent sought district funding for an FBA at the cost of $2,300 or fair market rate and for a BIP at the cost of $1,750 or fair market rate (id. at p. 9).
The district submitted a response to the parent's due process complaint dated November 11, 2024, which entered general denials of the parent's claims and set forth defenses the district planned to pursue (Due Process Response).
B. Impartial Hearing and Impartial Hearing Officer Decision
An IHO from the Office of Administrative Trials and Hearings (OATH) was appointed to hear the matter. A prehearing conference was held on December 16, 2024 (Pre-Hr'g Conf. Tr. pp. 1-10). By motion dated January 27, 2025, the district sought dismissal of the parent's 2022-23 claims, alleging that the allegations were time-barred by the statute of limitations (IHO Ex. II pp. 1-6). The parent submitted a response to the motion, dated January 30, 2025 (IHO Ex. III pp. 1-7).
An impartial hearing convened on February 3, 2025, and concluded that same day (Tr. pp. 1-61). At the hearing, the parties were given an opportunity to present oral arguments pertaining to the district's motion to dismiss (Tr. pp. 5-6). The IHO reserved judgement on the motion (id.). The IHO entered five of the district's offered exhibits and 22 of the parent's offered exhibits into the hearing record (Tr. pp. 6-14; see Parent Exs. A-V; Dist. Ex. 1-5). The parent's exhibits included the affidavit testimony of three witnesses who were all presented for cross-examination at the hearing (Tr. pp. 18-44; Parent Exs. O-Q). The district called no witnesses.
In a decision dated March 19, 2025, the IHO dismissed the parent's claims regarding the 2022-23 school year as barred by the statute of limitations, found that the district failed to provide the student with a FAPE for the 2023-24 and 2024-25 school years, and found the relief sought by the parent to be appropriate in part (IHO Decision at pp. 3, 12). With respect to 2022-23 school year, the IHO found that the inappropriateness of the recommended programming, as well as the district's failure to fully implement the student's services "would have been apparent during the first two months" of the school year and, therefore, the parent knew or should have known about her claims more than two years prior to the date of the due process complaint notice (id. at pp. 4, 7). The IHO also found that the withholding of information exception to the statute of limitations did not apply (id. at pp. 7-8).
After finding that the district did not meet its burden to prove that it provided the student a FAPE for the 2023-24 and 2024-25 school years, the IHO determined that the relief sought by the parent was appropriate in part and awarded compensatory education (IHO Decision at pp. 8, 10-11, 13). Specifically, the IHO ordered the district to fund compensatory education by providers of the parent's choosing consisting of 420 hours of SETSS by an Orton-Gillingham trained provider at a rate not to exceed $175.00 per hour, 84 hours of OT at fair market rate, and 72 hours of speech-language therapy at fair market rate (id. at p. 13). The compensatory services ordered had no expiration date (id.). However, the IHO found there was insufficient evidence to support an award of ABA SETSS (id. at pp. 5, 10).
Finally, the IHO found the district failed to conduct an FBA of the student since 2017 and did not defend the existing BIP; therefore, the IHO ordered the district to fund an independent FBA and BIP to be completed by a provider of the parent's choosing at a total rate not to exceed $5,000 (IHO Decision at pp. 11-13).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in finding the parent's 2022-23 school year claims were barred by the statute of limitations and in limiting the compensatory education awarded. Regarding the statute of limitations, the parent alleges "that the CSE's failure to reconvene the IEP upon the Student's placement in the charter school negated the applicability of the statute of limitations" accrual date based on the June 2022 IEP and, at a minimum, the statute of limitations should be deemed to have run beginning "as of November 7, 2023."[8] In addition, the parent alleges that the hearing record did not establish that she had sufficient notice of the recommended special education program for the 2022-23 school year or of her procedural rights to support the IHO's findings about the exception to the statute of limitations. Given the statute of limitations determination, the parent alleges the IHO improperly denied compensatory OT services to make-up for services the district failed to provide the student from January 2023 through June 2023, noting further that the implementation failures did not arise until January 2023, within the two year statute of limitations. The parent further alleges that the IHO erred by denying the parent's request for ABA SETSS and that the award for such was sufficiently supported by the record. Finally, the parent contests the IHO's fiscal cap of $175 per hour for the awarded Orton-Gillingham trained SETSS provider, arguing that said cap could impact the parent's ability to find a qualified provider.[9]
In an answer and cross-appeal, the district argues that the IHO properly dismissed the parent's 2022-23 school year claims as time barred and appropriately denied the parent's request for ABA SETSS, but erred in awarding any compensatory services and funding for an independent FBA and BIP. As for the compensatory education awarded, the district argues that the student's performance and progress did not warrant such relief because he did not demonstrate "any deficits . . . requiring remediation." Regarding the independent FBA and BIP at public expense, the district argues that the parent failed to "identify any [district] evaluation whose findings the [parent] disagree[d] with, let alone establish[ed] that the [p]arent disagreed with a [district] evaluation at the time it was conducted" and that, therefore, the parent's entitlement to a private evaluation at public expense had not been properly triggered.
In an answer to the district's cross appeal, the parent reiterates claims set forth in the request for review, adding that the statute of limitations should not bar the parent's 2022-23 school year claims, as the parent was not fully aware of the deficiencies in the student's programming for that school year until April 2024 after receiving additional information from a psychological evaluation. The parent also responds to the district's allegations, disputing the district's position that the student's progress and performance did not warrant compensatory education and arguing that there was a need for an independently conducted FBA and a resultant BIP because the last FBA was conducted in 2017 and the district failed to update it.
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (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 generallyForest 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]).
A FAPE is 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 has indicated 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, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[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 Court has also 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 administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (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).
The IDEA directs that, in general, 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). However, 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). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (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 Grim, 346 F.3d at 379). Additionally, 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). Nonetheless, a school district must 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., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the 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 Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
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]).[10]
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).
VI. Discussion
A. Statute of Limitations & FAPE
As a threshold matter, it must be determined whether or not the IHO's finding, that the parent's 2022-23 claims were barred by the statute of limitation, is supported by the record.
The IDEA provides that a claim accrues on the date that a party knew or should have known of the alleged action that forms the basis of the complaint and requires that, unless a state establishes a different limitations period, the party must request a due process hearing within two years of that date (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; Educ. Law § 4404[1][a]; 34 CFR 300.507[a][2], 300.511[e]; 8 NYCRR 200.5[j][1][i]; Somoza v. New York City Dep't of Educ., 538 F.3d 106, 114-15 & n.8 [2d Cir. 2008]; M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir. 2003]).[11] Because an IDEA claim accrues when the parent knew or should have known about the claim, "determining whether a particular claim is time-barred is necessarily a fact-specific inquiry" (K.H. v. New York City Dep't of Educ., 2014 WL 3866430, at *16 [E.D.N.Y. Aug. 6, 2014]; see K.C. v. Chappaqua Cent. Sch. Dist., 2018 WL 4757965, at *14 [S.D.N.Y. Sept. 30, 2018] [collecting cases representing different factual scenarios for when a parent may be found to have known or have had reason to know a student was denied a FAPE]). Further, two exceptions to the statute of limitations may apply to the timelines for requesting impartial hearings. The first exception applies if a parent was prevented from filing a due process complaint notice due to the district withholding information from the parent that the district was required to provide under the IDEA (20 U.S.C. § 1415[f][3][D][ii]; 34 CFR 300.511[f][2]; 8 NYCRR 200.5[j][1][i]). A second exception may apply if a parent was prevented from filing a due process complaint notice due to a "specific misrepresentation" by the district that it had resolved the issues forming the basis for the due process complaint notice (20 U.S.C. § 1415[f][3][D]; 34 CFR 300.511[f]; 8 NYCRR 200.5[j][1][i]).
None of the dates put forth by the parties, on which they allege the statute of limitations began to run for the 2022-23 school year, align with the record. The hearing record indicates that the parent was aware of the CSE's recommended programming for the student for the 2022-23 school year because she participated in the May 2022 CSE meeting and, in her pleadings, acknowledges that she received the updated June 2022 IEP (Parent Ex. E at p. 34; IHO Ex. II at pp. 19-21; Reply ¶ 2). Once the parent enrolled the student at the charter school, the parent was aware, or should have been aware, that the CSE had not convened to adjust the IEP recommendations to conform with the student's attendance at the charter school (Parent Exs. E at pp. 25-35; O ¶ 18; Dist. Exs. 3 at p. 1; 4 at p. 1).
In support of the contention that the two-year statute of limitations should run from April 2024, the parent argues that "later-acquired information, including the psychological evaluation (Parent[']s Ex. G) reviewed in April 2024, is directly relevant in determining when the parent became reasonably aware of the claims currently being pursued" (Reply ¶ 3 [emphasis added]).[12] However, the parent does not indicate what information in that evaluation made an earlier violation by the district apparent. To the contrary, the evaluation itself reports that the parent expressed concerns about the student's educational program, supporting a finding that the parent was aware of her claims before obtaining the results of the evaluation (Parent Ex. G at p. 2). While the later acquired information set forth in the evaluation may have strengthened the parent's belief that the programming provided to the student during the 2022-23 school year was inappropriate, the evidence in the hearing record demonstrates that the parent knew or should have known of the actions that formed the basis for her claim soon after the beginning of the 2022-23 school year. Finally the parent alleges that because two years prior to filing the due process complaint (i.e. November 7, 2022) falls within the 2022-23 school year, all claims related to that school year fall within the statute of limitations (Reply ¶¶ 2, 4-6); however, this endorses a "look back" approach from the date of the due process complaint notice, whereas the statute makes clear that the triggering date for the filing deadline is that upon which the parent knew or had reason to know of the alleged action that forms the basis of the complaint (20 U.S.C. § 1415[f][3][C]). Based on the foregoing, I find the statute of limitations for the parent's claims related to the appropriateness of the recommended programming began to run, at the latest, shortly after the student started attending the charter school (i.e. by no later than the end of September 2022).
The parent argues that the evidence in the hearing record did not establish that the parent received a June 2022 prior written notice or could access the link to the procedural safeguards notice, which goes to the IHO's finding that the withholding of information exception did not apply to allow her claim. The "withholding of information" exception to the timeline to request an impartial hearing applies "if the parent was prevented from filing a due process complaint notice due to . . . the [district's] withholding of information from the parent that was required . . . to be provided to the parent (20 U.S.C. § 1415[f][3][D]; Educ. Law 4404[1][a]; 34 CFR 300.511[f]; 8 NYCRR 200.5[j][1][i]). Case law interpreting the "withholding of information" exception to the limitations period has found that the exception almost always applies to the requirement that parents be provided with the written notice of procedural safeguards required under the IDEA (Bd. of Educ. of N. Rockland Cent. School Dist. v. C.M., 744 Fed. App'x 7, 11 [2d Cir. Aug. 1, 2018]; R.B. v. Dep't of Educ. of City of New York, 2011 WL 4375694, at *4, *6 [S.D.N.Y. Sept. 16, 2011]; see D.K. v. Abington Sch. Dist., 696 F.3d 233, 246 [3d Cir. 2012]; C.H. v. Nw. Indep. Sch. Dist., 815 F. Supp. 2d 977, 986 [E.D. Tex. 2011]; Tindell v. Evansville-Vanderburgh Sch. Corp., 805 F. Supp. 2d 630, 644-45 [S.D. Ind. 2011]; El Paso Indep. Sch. Dist. v. Richard R., 567 F. Supp. 2d 918, 943-45 [W.D. Tex. 2008]; Evan H. v. Unionville-Chadds Ford Sch. Dist., 2008 WL 4791634, at *7 [E.D. Penn. Nov. 4, 2008]). Such safeguards include the requirement to provide parents with prior written notices and procedural safeguards notices containing, among other things, information about requesting an impartial hearing (see 20 U.S.C. § 1415[b][3]; [d]; 34 CFR 300.503; 300.504; 8 NYCRR 200.5[a], [f]). Under the IDEA and federal and State regulations, a district must provide parents with a copy of a procedural safeguards notice annually (20 U.S.C. § 1415[d][1][A]; 34 CFR 300.504[a]; 8 NYCRR 200.5[f][3]). Additionally, State regulation provides that a district may place a copy of the procedural safeguards notice on its website (8 NYCRR 200.5[f][4]). If a parent is otherwise aware of his or her procedural due process rights, the district's failure to provide the procedural safeguards notice will not necessarily prevent the parent from requesting an impartial hearing (see D.K., 696 F.3d at 246-47; R.B., 2011 WL 4375694, at *7; Richard R., 567 F. Supp. 2d at 944-45).
The IHO correctly found that the June 2022 prior written notice provided to the parent, pertaining to the May 2022 CSE meeting, included information about how the parent could obtain a copy of the procedural safeguards notice by downloading it from the district's website or requesting a copy from a named individual for whom the notice provided a phone number (IHO Ex. II at p. 19-20). The notice provided names and addresses for a district and an independent resource that the parent could contact "TO OBTAIN ASSISTANCE IN UNDERSTANDING THE SPECIAL EDUCATION PROCESS" (id. at pp. 20-21). The notice also stated that the parent had the right to address the CSE in person or in writing regarding the appropriateness of the CSE's recommendations and that, if the parent did not agree with the CSE's recommendations, she had the right to request mediation or an impartial hearing (id. at p. 21). The notice indicated that, to request mediation or an impartial hearing, the parent should do so in writing and provided addresses for both purposes (id.).
While on appeal the parent alleges that the district did not establish her receipt of the prior written notice or her ability to access the procedural safeguards notice from the link, during the impartial hearing, the parent raised no such concern and, instead, in the response to the district's motion to dismiss, focused on the timing of the June 2022 prior written notice vis-à-vis the May 2022 CSE meeting (IHO Ex. III at p. 4), which does not speak to the parent's knowledge of her due process rights (see N.J. v. NYC Dep't of Educ., 2021 WL 965323, at *12 [S.D.N.Y. Mar. 15, 2021] [finding that "[i]t is not sufficient for a parent to argue . . . 'that she did not receive every required procedural safeguards notice' because the exception is ultimately concerned with whether and when the '[p]arent knew of her rights'"], quoting C.M., 744 Fed. App'x at 11). Based on the foregoing, I find no basis to disturb the IHO's finding that the withholding of information exception does not apply in this matter to allow the parent's claims relating to the 2022-23 school year to proceed.
Therefore, the IHO properly found the parent's 2022-23 school year claims barred by the statute of limitations with two exceptions: the district's failure to implement the student's required OT services; and the appropriateness of the March 2023 IEP, which had a projected implementation date of April 17, 2023, and therefore was the operative IEP for the end of the 2022-23 school year (see Parent Ex. F at pp. 1, 33-35). Claims pertaining to the March 2023 IEP were timely included in the parent's November 2024 due process complaint notice (see Parent Ex. N). As for implementation, the hearing record demonstrates that the student received the recommended OT services from mid-September 2022 until mid-January 2023 (Parent Ex. O ¶¶ 19-20; Dist. Ex. 4 at pp. 1-2). The OT services stopped in January because the student's provider "left" (Parent Ex. O ¶¶ 19-20). There is no evidence in the record demonstrating that the parent knew or reasonably should have known that the OT services, which were provided in the first half of the 2022-23 school year, would end in January. Based on the foregoing, the parent's claim related to the district's failure to implement OT services during the 2022-23 school year are not barred by the statute of limitations, and I find the IHO erred in dismissing the parent's claims on this basis.
As the IHO reserved his ruling on the statute of limitations until after the hearing, the district was obligated to defend against the parent's claims alleging a denial of a FAPE for the 2022-23 school year. Given this obligation, the issue of whether this failure constitutes a denial of FAPE can be decided on the record (i.e. need not be remanded to the IHO). As for the March 2023 IEP, insofar as the IHO ruled on the appropriateness of the district's offered programming for the 2023-24 school year, he in essence made a determination with respect to the March 2023 IEP. In particular, the IHO noted that the parent's claims for the 2023-24 school year included that the CSE reduced the student's SETSS mandate from 10 to five sessions and that the CSE did not require that the SETSS be provided by a provider trained in a scientifically based approach for students with dyslexia (IHO Decision at pp. 4-5). The IHO found that the district failed to meet its burden to defend the program offered (id. at p. 8), and the district has not challenged the IHO's determination in this regard. The IHO's ruling relates to the programming recommended in the March 2023 IEP and, therefore, also applies for the period of the 2022-23 school year when the March 2023 IEP was in place. Further, based on a thorough review of the record, I find that the district failed to demonstrate that it provided the student with all of his recommended OT services in the 2022-23 school year and that the lapse in services constituted more than a de minimis failure to implement all elements of the IEP; therefore, such lapse constituted a denial of a FAPE (Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]; see also Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]). Whether or not these denials require an additional compensatory award is addressed below.
B. Compensatory Education
The district did not cross-appeal the IHO's finding that it failed to prove that it offered the student appropriate programming or that it provided the student with all recommended services in the 2023-24 and 2024-25 school years or his determination that these failures resulted in a denial of FAPE to the student for the 2023-24 and 2024-25 school years. In addition, the parties do not challenge aspects of the IHO's compensatory education award, including that the compensatory services be provided by private providers, without expiration, and that the speech-language therapy and OT be at fair market rate. Therefore, these findings have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]). Moreover, as set forth above, the district did not meet its burden to prove that it offered the student a FAPE for a portion of the 2022-23 school year.
The parties' remaining claims on appeal relate to the award of compensatory education services. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; 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"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that 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"]).
With respect to such relief, it was incumbent upon the parent to propose "a well-articulated plan that reflects the student's current education abilities and needs and is supported by the record" (M.T. v. Arlington Cent. Sch. Dist., 2022 WL 16857176, at *8 [S.D.N.Y. Nov. 10, 2022]). In addition, however, the district was required under the due process procedures set forth in New York State law to address the compensatory education issue 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 (Educ. Law § 4404[1][c]; see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *4 [S.D.N.Y. Mar. 30, 2017] [noting the SRO's finding that the district had the burden of proof on the issue of compensatory education]; see also E. Lyme, 790 F.3d at 457; Reid, 401 F.3d at 524).[13]
1. BCBA-led SETSS
The parent claims that the IHO erred by denying her request for an award of "756 hours of BCBA/LBA led SETSS at market rate" (Req. for Rev. at pp. 8-10; see Parent Ex. N at p. 9).
Initially, the parent asserts that the October 2023 private psychological evaluation of the student supported her claim that the student requires compensatory ABA SETSS (see Parent Ex. G at pp 1-21). The IHO reviewed the March 2022 and October 2023 private evaluations and found that "neither . . . recommend ABA" (IHO Decision at p. 5). Although not referring directly to "ABA," the October 2023 report includes a recommendation that the student should "receive 5 hours of behavior therapy SETSS by a[n] [LBA] to address [the student's] social skills deficits, delays in his activities of daily living and delays in emotional self-regulation and control" (Parent Ex. G at p. 20).[14], [15] Yet, earlier in the report, the evaluator commented that "[r]egarding behavioral issues, [the student] doesn't present with tantrums. Sometimes, he gets upset. but it is rare," indicating that "[s]ometimes, he gets frustrated at school when it takes him longer to do his work, or it takes him longer to get things done" (id. at p. 2). The student's behavior was described as whining about writing and reading but the evaluator noted the behavior had improved (id. at p. 3).[16] As for social skills, the evaluation noted that, while described as socially awkward and shy, the student was socially interested in his peers and initiated interactions with them and had "good friends that he ha[d] known for a while" (id. at p. 3). Outside of the recommendation for "behavior therapy SETSS," the evaluation does not identify any activities of daily living with which the student struggled (see id. at pp. 1-20). Accordingly, read as a whole, the evaluation does not explain its recommendation in light of the description of the student's needs in the areas of social skills, activities of daily living, and emotional regulation.
Further, the use of the term "SETSS" to describe the recommended services, which implies delivery by a special education teacher, as well as reference to delivery of the services by an LBA, does raise questions as to whether the evaluator intended to recommend that services be provided to the student by a professional certified both as a special education teacher and as an LBA or, if not, which licensure the evaluator prioritized (Parent Ex. G at p. 20). In addition, the evaluator's use of the phrase "behavior therapy" without specifying that the student needed ABA methodology in particular did leave the recommendation open to interpretation (id.). As the evaluation did not elaborate on the reasons for or the contours of the recommendation, the IHO did not err in declining to accord weight to the evaluation in assessing the parent's request for compensatory ABA SETSS (see IHO Decision at p. 5).
In addition, the parent alleges that the testimony of the student's ELA general education teacher and SETSS provider both supported the student's need for ABA SETSS. Turning first to the testimony of the student's teachers, the record shows that both the student's ELA general education teacher for the seventh grade and the certified special education teacher who had provided the student’s SETSS since the third grade testified that the student would benefit from ABA SETSS (Parent Exs. P ¶¶ 1-7; Q ¶¶ 1-5). While both teachers made general assertions that the student "need[ed]" ABA SETSS, neither could identify what ABA SETSS actually involved (Tr. p. 43; Parent Exs. P ¶ 7; Q ¶ 5).[17] At the impartial hearing, the ELA teacher testified that he did not have a psychology degree and did not have any ABA training (Tr. pp. 39-40). When asked if he knew "what ABA is" the ELA general education teacher testified that he did not "know exactly what ABA is" (Tr. p. 43). Then, when asked why he thought the student would benefit from ABA, the ELA general education teacher testified that he did not "know the specifics of it" but opined that "based on what [he] was looking at, just it help[ed] with socialization" and then asked "[i]s that correct?" (id.). Similarly, the SETSS provider testified that he was not a registered behavioral technician, did not have training in ABA, and had not used the ABA methodology with the student (Tr. pp. 21, 27). The SETSS provider offered no substantive information about why the student required ABA (see Parent Ex. P ¶¶ 1-7). Given that neither the ELA teacher nor the SETSS provider had substantive knowledge of ABA methodology or why the student required instruction using that specific methodology, the IHO did not err in declining to accord the testimony weight in assessing the parent's request for compensatory ABA SETSS (see IHO Decision at p. 5).
The parent also points to the district's recommendation that the student attend the Horizon program for the 2022-23 school year as support for her argument that the student required ABA SETSS. The evidence in the hearing record shows that that the parent and CSE believed the student's "educational needs would be best served in a program specifically designed for instruction of students with autism spectrum disorder, such as the NEST program" (i.e. the program not identified as utilizing ABA methodology) (Parent Ex. E at p. 35). The May 2022 CSE referred the student to two programs designed for autistic students, the NEST and Horizon programs, for consideration (Parent Exs. E. at pp. 34-35; O ¶¶ 15-17). The student was accepted at the Horizon program (Parent Exs. E. at p. 34; O ¶¶ 15-17). According to the parent, the Horizon program does utilize ABA methodology (Parent Ex. O ¶ 17), but a CSE recommendation of a program that incorporates a methodology, without that specific methodology being required in the IEP, is indicative that the methodology could be beneficial, not necessarily that it is required to ensure the provision of FAPE (see generally Parent Ex. E). This is particularly so given that the NEST program was also considered and purportedly preferred.
In sum, I do not find sufficient evidence in the record to overturn the IHO's denial of the request for 756 hours of ABA SETSS.
2. Compensatory SETSS - Orton-Gillingham
In determining that an award of compensatory SETSS by an Orton-Gillingham trained provider was warranted, the IHO noted that the district did not defend the March 2023 CSE's determination to reduce the student's SETSS mandate from 10 hours to five hours per week and further indicated that the award was based on the recommendation of the private psychological evaluation, as well as the parent's testimony that, in the past, the provision of Orton-Gillingham allowed the student to access his education and improve his reading (IHO Decision at p. 10).[18] The district does not dispute the IHO's findings in this regard. Rather, the district argues that the student's "level of performance and functioning demonstrate that an award of compensatory education services is unwarranted" (Answer & Cr.-Appeal ¶ 15). The district points to an undated SETSS progress report and the student's scores "in the 'High Growth' and 'High Achievement' quadrant on standardized Math and Reading assessments" in September 2023 (see Dist. Exs. 2 at pp. 1-4; 5 at pp. 1-7). However, the evidence cited by the district does not support its position.
The student's SETSS provider, who drafted the undated SETSS progress report relied upon by the district testified that the student "need[ed] a reading specialist to assist in his . . . struggles" (Parent Ex. P ¶ 7; Dist. Ex. 2 p. 1).[19] The SETSS provider identified the student as approaching or at grade level in mathematics but still struggling significantly with reading and writing, demonstrating "difficulty with reading fluency and comprehension due to challenges with decoding and word recognition due to his dyslexia" and only using simple sentences, "avoiding complex and compound sentences" in his writing (Parent Ex. P ¶¶ 5-6). Thus, the most recent information and recommendation from the SETSS provider supports the IHO's award of compensatory SETSS.
As for the student's September 2023 standardized assessments in math and reading, I note that the assessments were administered only a few weeks into the 2023-24 school year (Dist. Ex. 5 at pp. 1-7). So, while these assessment results indicate the student did in fact demonstrate high growth and high achievement from fall 2022 to fall 2023, they do not support the district's argument that the student's performance during the 2023-24 and 2024-25 school year was such that no award of compensatory education was required to remedy its denial of a FAPE to the student for those school years (id. at pp. 5-7).[20] In contrast, between fall 2023 and spring 2024, the student's growth score in reading fell in the 5th percentile, indicating low growth, and his achievement score fell in the 26th percentile, indicating low average achievement (Parent Ex. L at p. 1). These reports indicate that the student's growth and achievement slowed during the 2023-24 school year (see Parent Ex. L; Dist. Ex. 5).
Furthermore, testimony and information from the student's SETSS provider and ELA teachers indicated the student needed intensive reading support (Parent Exs. J at pp. 14-15; P ¶¶ 3-7; Q ¶ 4). The student’s general education ELA teacher testified that the student was then-currently performing at a high fourth grade level in English and a low fourth grade level in math based on his most recent NWEA scores (Parent Ex. Q ¶ 4). The student's special education ELA teacher reported in the June 2024 IEP, when the student was entering eighth grade, that the student was reading at an early to mid-fifth grade level (Parent Ex. J at pp. 14-15).
Based on the foregoing, I find insufficient evidence in the record to overturn the IHO’s award of compensatory SETSS from an Orton-Gillingham trained provider. In addition, as I find that the IHO erred in excluding the period of April through June 2023 in his FAPE findings arising from the March 2023 IEP, an additional award of compensatory SETSS from an Orton-Gillingham trained provider is warranted. Therefore, for this period of approximately 10 weeks, I will add 50 hours to the IHO's award of 420 hours, for a total of 490 hours of SETSS by an Orton-Gillingham trained provider of the parent's choosing.
3. Compensatory OT and Speech-Language Therapy
Neither party challenges the student's need for OT or speech-language therapy as recommended in his IEPs or contests that the district failed to provide such services, at least in part, for the 2022-23, 2023-24, and 2024-25 school years. Therefore, the lone inquiries with regards to the awarded OT and speech-language therapy is whether additional compensatory OT is warranted for the 2022-23 school year and whether the IHO's award was otherwise reasonably calculated to provide the educational benefits that likely would have accrued had the district provided the recommended related services in the first place for the 2023-24 and 2024-25 school years.
The only evidence to which the district points on appeal in support of its claims that the IHO erred in awarding compensatory OT and speech-language therapy is an October 31, 2022 OT progress report and a March 13, 2023 speech-language therapy progress report (Dist. Exs. 3 at pp. 1-3; 4 at pp. 1-2). While the district correctly asserts that these progress reports do not indicate the student "experience[d] any deficits in these areas requiring remediation" (i.e. OT and speech-language therapy), this fact does not support the district's argument (see Dist. Exs. 3 at pp. 1-3; 4 at pp. 1-2). Both progress reports predate the district's failure to provide the student with OT and speech-language therapy; therefore, they offer no support for the district's challenge to the IHO’s finding the student required the compensatory OT and speech-language therapy (Dist. Exs. 3; 4). Furthermore, documents entered into evidence by the parent, but generated by the district, directly contradict the district's allegation that the student did not have deficits requiring remediation due to the district's failure to provide OT and speech-language therapy. The June 2024 IEP explicitly stated that, due to concerns regarding the impact of the lapse of counseling, OT, and speech-language therapy, the June 2024 CSE recommended the student receive makeup sessions for both OT and speech-language therapy over the summer (Parent Ex. J. at pp. 28, 67).[21] This indicates the CSE convened by the district identified an impact upon the student due to the failure to provide the student's recommended services and a need for remediation. The district entered no evidence into the record showing the recommended make-up services were provided to the student and/or demonstrating the impact had been remedied. Accordingly, I find the record does not contain any evidentiary basis to disturb the IHO's award of compensatory OT and speech-language therapy to the student to remedy the district's failure to implement services during the 2023-24 and 2024-25 school years.
Further, I find additional compensatory OT warranted to remedy the lapses in the district's delivery of OT services to the student from January through June 2023. While an hour-for-hour award of compensatory services is not a mandate, given the absence of any logs, assessments, testimony, or other evidence from OT professionals or the district generally, indicating what, if any, award of hours is appropriate, in this instance, I find that an hour-for-hour award is warranted. There were approximately 20 weeks of instruction between January 16, 2023 and the end of the 2022-23 school year, meaning the student missed approximately 30 cumulative hours of OT services during the 2022-23 school year (see Parent Exs. E at p. 27; F at p. 10). Therefore, I order the district to provide the student with 30 hours of compensatory OT to remedy its failure to implement the student's OT services during the 2022-23 school year.
3. Rate Cap for Awarded Compensatory SETSS
The parent challenges the IHO's decision to cap the hourly rate for the compensatory SETSS from an Orton-Gillingham specialist at $175 per hour. The parent claims the rate cap was arbitrary, contrary to her request for an award at the prevailing market rate, and "could significantly impede the [parent’s] ability to secure a qualified provider, thereby restricting the [s]tudent's access to necessary instructional support" (Req. for Rev. at p. 8). The record does not support these assertions.
A review of the record indicates that, contrary to the parent's claims, the $175 per hour rate cap imposed by the IHO aligns to rates demonstrated by the parent's evidence (Parent Exs. R; T). The parent entered four private provider rate sheets into evidence at the hearing (Parent Exs. R; T). The first, from Manhattan OPS, is dated July 1, 2023 and identifies the hourly rate for Orton-Gillingham trained provider tutoring as $175 per hour (Parent Ex. R at p. 1). The second, from Dyslexia Associates, Inc., dated July 1, 2024 identifies the rate for individual SETSS for the 2023-24 and 2024-25 school years as $175 per hour and the rate for individual SETSS delivered by an Orton Gillingham trained or certified provider as $175 to $200 per hour (Parent Ex. T at p. 6).[22] The third, Perspective Applied Behavior Analysis, PLLC, dated July 9, 2024, does not have a rate for Orton Gillingham trained providers but does lists the rate for individual SETSS provided in the 2023-24 and 2024-25 school years as between $175-$200 per hour depending on the student's placement (Parent Ex. U at p. 4). Finally, MMP Behavior Service shows the 2024-25 school year fee for an “Orton Gillingham Trained Teacher” as $175 per hour (Parent Ex. V at p. 1).
Given that the parent provided the apparent evidentiary basis for the IHO's rate cap awarded and that the parent offers only speculation that the rate cap could hinder her ability to secure the awarded SETSS, I find there are insufficient grounds to disturb the rate cap set by the IHO.
C. Independent Educational Evaluation(s) (IEE) – FBA and BIP
In its cross-appeal, the district challenges the IHO's award of an independent FBA and BIP at public expense, arguing that a parent's disagreement with a district's FBA, on its own, may not form the basis for an award of an IEE at public expense. In her reply, the parent claims the IHO's award was appropriate because the student had ongoing needs for behavioral interventions and the district "failed to conduct an updated FBA for over seven years, thus neglecting its obligation to assess the [s]tudent in all areas of suspected disability" (Reply ¶ 15).
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]).[23]
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]). 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]).
Relevant to the parent's request for an FBA and BIP as an IEE, the Second Circuit Court of Appeals has discussed the idea of a comprehensive evaluation or re-evaluation of a student forming the basis of an publicly-funded IEE request, as opposed to a single assessment (i.e., an FBA) (see Trumbull, 975 F.3d at 170; see also T.P. v. Bryan County Sch. Dist., 792 F.3d 1284, 1291 n.13 [11th Cir. 2015] [discussing the awkwardness of referring to individual assessments as IEEs when "evaluation" is used in the IDEA to refer to the entire process of determining a student's needs]). The Court in Trumbull held that parents may base a request for an IEE on the last full evaluation conducted by the district (975 F.3d at 169-70 ["Because the only evaluations that trigger a parent's right to an IEE at public expense are the initial evaluation and triennial reevaluations discussed in Section 1414 of the Act, a parent's right to an IEE at public expense ripens each time a new evaluation is conducted. The time within which a parent must express their disagreement with an evaluation and request an IEE depends on how frequently the child is evaluated."]).
Here, there is no indication in the hearing record the parent expressed disagreement with an evaluation or reevaluation conducted by the district. According to the parent, when the student's BIP was updated in February 2024, she expressed concern that the district had not conducted an FBA since 2017 (Parent Ex. O ¶ 25). However, there is no evidence that the parent disagreed with a district evaluation or reevaluation of the student that, for example, was inadequate because it failed to include an FBA.
Therefore, the IHO erred in the award of an independent FBA and independent BIP at district expense, as there is no legal basis for such an award. While the parent is not entitled to district funding of an independent FBA and BIP at this juncture, the parent is not without recourse. Instead, as the Court described in Trumbull, the parent may request an IEE based on her disagreement with the student's last evaluation or she may request that the district conduct a reevaluation of the student and, if the parent disagrees with that reevaluation, she can, at that point, request an IEE at public expense to include an independent FBA (see Trumbull, 975 F.3d at 167-68).[24]
VII. Conclusion
The IHO correctly dismissed the parent's 2022-23 claims as barred by the statute of limitations, with the exception of claims pertaining to the March 2023 IEP in place for the period of April through June 2023 and implementation of OT services. The IHO's findings regarding the district's failure to provide the student with a FAPE for the 2023-24 and 2024-25 school years are final and binding and the hearing record additionally supports a finding that the district denied the student a FAPE for a portion of the 2022-23 school year. The IHO awarded appropriate compensatory education and related services as equitable relief and additional relief is warranted as set forth above. The IHO erred in the award of an independent FBA and independent BIP.
Having considered the parties' remaining contentions, I find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the March 19, 2025 IHO decision is modified by reversing those portions which found the parent's claims pertaining to the March 2023 IEP and implementation of OT services in the 2022-23 school year were barred by the statute of limitations and denied relief relating thereto and which directed the district to fund an independent FBA and BIP for the student; and
IT IS FURTHER ORDERED that, in addition to the bank of compensatory education awarded in the IHO's March 19, 2025 decision, the district shall fund an additional award of 50 hours of compensatory SETSS by an Orton-Gillingham training provider at a rate not to exceed $175 per hour and 30 hours of compensatory OT services by a provider of parent's choosing at fair market rate.
Footnotes
[1] The FBA defines a response class as "a category of behaviors . . . followed by a list of specific behaviors that occur under similar circumstances or antecedents with the same outcome or function" (Parent Ex. A at p. 1).
[2] The functional hypothesis in the FBA identified the conditions that increased the likelihood of the behaviors at issue and antecedents for the behaviors as the student facing a challenge or activity he did not prefer and transitioning from a preferred to non-preferred activity (Parent Ex. A at p. 6). The target problem behaviors that followed were specifically described as the student "get[ting] out of his seat, refus[ing] to do work, walk[ing] around the room, sit[ting] quietly facing away from his classmates on the floor, yell[ing] out loudly, cry[ing], us[ing] his scissors to cut up his work, and sometimes kick[ing] others" (id.).
[3] The only BIP in evidence is identified as being developed on March 3, 2021 and last revised on February 2, 2024 (Dist. Ex. 1 at p. 1).
[4] The IEP in evidence lists the date of the CSE meeting as May 13, 2022 but includes references to amendments made to the student's programming at a June 28, 2022 meeting (see Parent Ex. E at pp. 32, 34-35). For purposes of this decision, unless relevant to the context, the IEP will be referred to as the June 2022 IEP.
[5] The transcripts of the prehearing conference and the impartial hearing are separately paginated; for purposes of this decision, citations to the transcript refer to the impartial hearing that took place on February 3, 2025 (see Tr. pp. 1-61), unless the citation is preceded with a reference to the prehearing conference (see Pre-Hr'g. Tr. pp. 1-10).
[6] Charter schools are publicly funded and, as such, share responsibility with the district to implement their students' special education and related services as specified in their respective IEPs (see Education Law §§ 2850-2857; 8 NYCRR 3.16-3.17, 119.1-119.7).
[7] The updated BIP continued to target task avoidance however, the specific behaviors now focused on vocalizing frustrations (e.g., stating "I can't do it" when presented with a non-preferred activity, complaining to his 1:1 paraprofessional, and diversionary comments) (Dist. Ex. 1 at p. 1).
[8] Despite the reference to "November 7, 2023" in the due process complaint notice, it is presumed that the parent meant November 7, 2022 (i.e., approximately two years prior to the November 8, 2024 due process complaint notice).
[9] Attached to her request for review, the parent submits a copy of her response to the district's motion to dismiss; however, the document is already included in the hearing record and will be cited as such (see IHO Ex. III).
[10] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] 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., 580 U.S. at 402).
[11] New York State has not explicitly established a different limitations period; rather, it has affirmatively adopted the two-year period found in the IDEA (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j][1][i]).
[12] The evaluation referenced was completed October 10, 2023 (Parent Ex. G. at p. 1).
[13] On the other hand, the parent has not sought remediation from the district but instead has requested compensatory education from parentally selected providers at "market rates." SROs have observed that to allow parents to obtain compensatory education from a private provider (particularly at "market" or enhanced rates) without requiring the parent to prove the appropriateness of those services would effectively allow an "end run" around the framework for tuition reimbursement recognized in Burlington/Carter unilateral placement situations, which places the burden to prove appropriateness of the private placement squarely on the parent seeking reimbursement (Application of a Student with a Disability, Appeal No. 25-051; Application of a Student with a Disability, Appeal No. 25-023; Application of a Student with a Disability, Appeal No. 25-023).
[14] The practice of ABA by an LBA means "the design, implementation and evaluation of environmental modifications, using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior" (Educ. Law § 8802). To be licensed as an LBA, the professional must have experience in the practice of ABA (see 8 NYCRR 79-17.2).
[15] The evaluator recommended a total of 16 hours per week of SETSS (five of which were recommended be delivered outside of school) with three hours per week to address math deficits; three hours outside of school to address ELA subjects; five hours of specialized reading instruction by a reading specialist; and five hours of "behavior therapy SETSS" by an LBA (Parent Ex. G at pp. 19-20).
[16] Similarly, leading up to the 2023-24 school year, the charter school reported that the student's behavior of whining and crying had decreased substantially and stopped since the beginning of the 2022-23 school year as reflected in his BIP (Parent Ex. F at pp. 7, 9). The charter school indicated that the student struggled with staying on task and would get out of his seat but was easily redirected (id.). Leading up to the 2024-25 school year, the student's teacher from the charter school reported that the student would become frustrated by a word or concept that was unfamiliar and demonstrated his frustration by raising his voice, throwing his arms, kicking his legs, banging his desk, etc. (Parent Ex. H at p. 4). It was also reported, however, that the student's one-to-one paraprofessional services provided assistance to the student with executive functioning skills to remain motivated and positive, encouragements, checklists, and personal agendas to help him remain on task, and that he responded well to rewards systems, brain breaks, and rests (id. at p. 6). The student's one-to-one paraprofessional shared that sometimes the student recognized his need for a break and requested it to cool down (id.). As for socialization, a March 2024 teacher report noted that the student could "benefit from stepping out of his comfort zone and socializing with peers during free time and group work activities" (id. at p. 20). The teacher reported that the student worked well with others in small groups but did not independently choose these groups (id.). The teacher also reported that the student "ask[ed] for help from adults [but] need[ed] to develop trust with peers and allow him to take in others' perspectives and contribute his own understanding" (id.). The teacher suggested that the student "try to develop meaningful relationships with peers by getting involved in school clubs or events" (id.). This information reflects that, although the student would benefit from support in the areas of emotional regulation and socialization, the programming delivered in the charter school, including the counseling and one-to-one paraprofessional services were sufficiently addressing these needs without relying on ABA methodology.
[17] The student's ELA teacher testified it was his opinion that the student "need[ed] ABA SETSS to address his socialization challenges along with an independent FBA and BIP to address his behavioral challenges" (Parent Ex. Q at ¶ 5). The student's SETSS provider testified that "[h]e need[ed] an ABA SETSS provider to address socialization and behavior difficulties" (Parent Ex. P at ¶ 7).
[18] The June 2022 IEP in place for the beginning of the 2022-23 school year recommended 10 hours per week of SETSS in ELA (with five in the classroom and five in the student's home) (Parent Ex. E at p. 26), whereas the student's March 2023 IEP with a projected implementation date of April 17, 2023, reduced the SETSS mandate to five hours per week in the home (Parent Ex. F at p. 33).
[19] During the February 3, 2025 impartial hearing, the student's SETSS provider who had been delivering the student's SETSS since the 2019-20 school year could not pinpoint the date of the progress report, stating that he "believe[d]" the report was from the school year prior, i.e., the 2023-24 school year (Tr. pp. 21-23; see Parent Ex. P ¶ 4; Dist. Ex. 2).
[20] The student's reading RIT 216 growth score was in the 83rd normed percentile meaning "high growth" above the mean, and his achievement score was in the 54th normed percentile reflecting "high achievement" at the mean (Dist. Ex. 5 at pp. 5-7).
[21] In relevant part, the June 2024 IEP describes the impact of the lapses at issue as follows: for speech-language therapy, the missed sessions led to missing social pragmatic cues and greater frustration with abstract instructional content, and, for OT, the absence of services was associated with poor writing stamina and delays in developing assistive technology skills (Parent Ex. J at pp. 19, 26). Both determinations directly link the loss of progress or skills to lapses in service delivery, justifying the recommendation for compensatory makeup sessions (id. at pp. 19, 26, 28, 67).
[22] The unit of instructional time affiliated with this rate is not specified (see Parent Ex. T).
[23] Guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, "the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs" (Letter to Baus, 65 IDELR 81 [OSEP 2015]; see Letter to Carroll, 68 IDELR 279 [OSEP 2016]).
[24] A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district agree otherwise (34 CFR 300.303[b][1]; 8 NYCRR 200.4[b][4]).