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FINDINGS OF FACT AND DECISION
Case Number: 170749
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 20, 2018
Actual Record Closed Date: January 6, 2019
Hearing Officer: Amy Lynne Itzla, Esq.
NAMES AN TITLES OF PERSONS WHO APPEARE ON APRIL 20, 2018
, Esq. Attorney Parent
. Father
Mother
Director of Education Parent
(via telephone)
Teacher Parent
(via telephone)
Chairperson’s Designee, DOE
DOE
(via telephone)
*The exhibit lists included are the lists submitted by the parties.
INTRO UCTION
I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding The hearing was convened at the written request of the Parent1 by letter dated November 2, 2017. (Exhibit A) The hearing was held on April 20, 2018, at the Department of Education (“DOE”) offices located at 131 Livingston Street, Brooklyn, New York. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.
In scheduling the hearing date, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]
On April 20, 2018, an Interim Order was issued, which read, in part, as follows:
While this matter is pending, the Parent is seeking an interim order on the program and placement for for the 2017-2018 school year. The DOE agrees to the pendency request made by the Parent. The parties have stipulated that the Findings of Fact and Decision of , dated October 11, 2017, constitutes the last agreed upon program and placement for (Exhibit E)
1 The te m “Pa ent” is used to collectively efe to both of pa ents, who a e efe ed to he ein.
ORDER
The Parent’s request for pendency, pursuant to the Findings of Fact and Decision of , dated October 11, 2017, is granted. The DOE shall provide the following:
1) Prospective payment to for tuition for the twelve-month 2017-2018 school year, which, in addition to the base tuition, also includes: the related services of speech/language therapy, occupational therapy, physical therapy, and parent training; and a one-to-one paraprofessional. Payment shall be made immediately upon submission to the DOE of a invoice; and 2) Ten
(10) hours per week of one-on-one ABA therapy, at home for the twelve-month 2017- 2018 school year. Payment shall be made immediately upon submission to the DOE of invoices for ABA services.
This order will continue in effect for the twelve-month 2017-2018 school year through the date this case is concluded either by a hearing officer’s decision or settlement agreement.
BACKGROUN
is currently who attended the (“ ”) for the 2017-2018 school year. has a classification from the DOE of “autism.” She has numerous medical diagnoses and an extensive medical history,
. The DOE’s
Committee on Special Education (“CSE”) convened on March 28, 2017, and created an IEP. (Exhibit 1) The CSE’s recommendation was placement in a District 75 program in a 6:1:1 classroom along with the related services of individual speech and language therapy, occupational therapy, and physical therapy. The Parent asserts that the DOE failed to provide a Free Appropriate Public Education (“FAPE”) to for the 2017- 2018 school year and is seeking tuition funding for the unilateral private placement at
.
This was second year attending . The Parent unilaterally placed at for the 2016-2017 school year. The Parent had requested an impartial hearing seeking tuition funding for that school year. Impartial Hearing Officer , Esq., issued Findings of Fact and Decision, dated October 11, 2017, and ordered prospective payment for tuition at for the 2016-2017 school year, payment for 920 hours of one-to-one ABA and 48 hours of BCBA supervision for the “deprivation of appropriate program and placement for the 2015-2016 and 2016-2017 school years,” and compensatory related services for missed occupational therapy and physical therapy during the 2015-2016 and 2016-2017 school years. (Exhibit E)
POSITIONS OF THE PARTIES
THE OE’S CASE
is a assigned to the CSE. She also
served as the District Representative for the meeting held on March 28, 2017.
described as “a student with significant delays,” who, at the time of the CSE meeting, was a non-verbal, non-toilet-trained, kindergartner functioning significantly below pre-kindergarten level academically. She also stated that had behavioral issues requiring significant support from a small environment.
explained that the CSE reviewed evaluations, reports, and the prior IEP. The Director of Education at , , and , classroom teacher, both participated in the meeting. (T. 27-28) testified that the CSE did not change its recommendation for and continued to recommend a twelve-month
District 75 program in a 6:1:1 class with physical therapy, occupational therapy, speech and language therapy and parent training. She described the program as “specifically created for children with all tiers of spectrum disorder.” (T. 27)
confirmed that, at the time of the meeting, she was aware that had recommended that continue to have a one-to-one paraprofessional to assist with daily living skills, instruction and safety. The CSE rejected the Parent’s request for a paraprofessional since they believed that the 6:1:1 would address her needs and deficits in a small, structured setting. (T. 40)
conducted an observation of , in her classroom at , on March 9, 2017, in advance of the CSE meeting. Her observation noted “poor attention span and focusing skills, at all times. Hyperactivity and avoidance behaviors were observed during all observation at the time when the observation was conducted.”
also described that was “not able to participate independently, or with minimal assistance or with verbal prompting. She required maximum support including physical prompting and hand over hand support.” The report includes that tried to escape from the table twice during a single activity. wrote that,
“Once she was approached by her para and was redirected back to the table activities, she fell on the floor and had a short tantrum. She required help of the teacher to redirect her to the current task.” She added that she was “not able to follow one step directions without 1:1 Para support and physical prompting.” (T. 51-53; Exhibit 5)
THE PARENT’S CASE
is the Director of Education at . She explained that serves students on the autism spectrum with the goal of them becoming as independent as possible. She described the admissions process and the three programs offered, based on a student’s cognitive abilities. has been in the “base program” for both the 2016- 2017 and 2017-2018 school years. The base program is generally for students with cognitive impairments, without “fluid” language, and who may have more severe behavioral needs as a result of their inability to communicate. The core methodology used is Applied Behavioral Analysis (“ABA”) and the program focuses on becoming available to learn and helping them with their behaviors. (T. 57-65)
explained that the majority of teachers have a New York State license and the related service providers have New York State licenses in their respective domains. (T. 76)
described the various types of training required of the staff at . (T. 70-72;
75) offers monthly parent training at the school on various topics, which is also available on a website for those who are unable to attend. In addition, provides individualized training to parents as needed. (T. 77) described the frequent communication between herself, teacher and her related service providers, which includes daily communication with the teacher, since is in the classroom every day, and full team meetings twice a month. (T. 89- 90)
explained that, in the base program, there is usually a one-to-one student-adult ratio. There is a teacher and a teaching assistant and most students, especially in the elementary grades, have an individual one-to-one paraprofessional. In class there are six students and seven adults. (T. 68) The students are within a 36-
month age range. (T. 94) explained ABA and, specifically, how it is used in relation to She described how a functional behavior analysis was conducted and the behavior intervention plan created as a result. There is collaboration between the and the Board Certified Behavior Analyst in developing the plan, which is then revised with the classroom staff and related service providers who will be implementing it. She also explained the skills focused on, the data taken, the importance of repetition, what happens when a skill is mastered, and the role of reinforcers.
emphasized the importance of consistency for across all domains in the school setting. (T. 68-70; 72-74)
described as having significant language delays and significant occupational and physical therapy needs. cannot speak spontaneously. At this point, she is whispering and will repeat if you give her an approximation. She has a very weak core and weak muscle tone in her legs and body. She does not hold her body upright properly to walk down stairs, so it is dangerous for her. She also doesn’t pay attention and is very easily distracted. Therefore, someone has to hold her hand when navigating the school building or she will fall. “She does not have any safety awareness.”
(T.78-80) has a one-to-one paraprofessional for safety, since traveling in the hallway and walking down stairs can be dangerous, and she is self-injurious at times. She will bang her head, throw herself on the floor, and hurt herself if someone is not there with her. This comes from her frustration because she cannot communicate fluidly. (T. 81)
participated in the March 2017 CSE meeting, along with , classroom teacher. She described the meeting as “very adversarial,” and stated that, especially became very upset and “rude” with the family, which was participating by telephone. did not listen to what they had to say and intervened often to ask her to allow the parents time to respond and participate. , and the parents all thought it was “essential” that receive home services and that she needed a one-to-one paraprofessional.
refused to entertain the idea that required home services and a paraprofessional. Despite self-injurious behaviors, stated that there would be enough staff in the classroom. testified that they made it very clear that ABA was working for , described her progress and stated that ABA was essential to her learning. They also emphasized that without someone literally sitting next to , it would be a very dangerous situation. In addition, the school’s representatives shared that someone must be with to assist her in feeding because she may not eat at all, or she will put too much food into her mouth and can easily choke. is still not completely toilet-trained and must be on a time schedule to use the bathroom. She needs assistance to wipe and pull up her pants. toileting and feeding needs were discussed at the CSE meeting. (T. 82-87)
described progress, which includes a reduction in the frequency of her self-injurious behavior, although it still occurs one or twice a week. She can hold a pencil and draw a line from one spot to another. She is able to sit for a longer period of time, and can also identify letters, colors, and shapes. She recognizes people and wants to interact. She will run up to when she enters the room and give her a hug. (T. 88-89)
has been classroom teacher for the 2016-2017 and 2017- 2018 school years. In the 2017-2018 school year there were five students in the class with , a teaching assistant and three one-to-one paraprofessionals. Most of the students are non-verbal and those beginning to have language will use one-word utterances, usually with a partial verbal prompt. The students are mostly at the same academic level and they each have their own behaviors. Each student’s instruction is individualized and ABA is used throughout the day. described the comprehensive testing tool, the “ABLLS,” used to assess every student in every area. She also went through the daily schedule in the classroom. She explained how ABA is utilized, how behavioral data is recorded, tracked and graphed, how each skill a child is working on is analyzed, what happens when mastery is achieved, and the maintenance of each skill. (T.99-105)
described academic levels as below a pre-kindergarten level.
(T.108) described progress during the 2017-2018 school year. She is able to sit and attend longer with verbal prompts, has less frequent behaviors and her communication has improved. She whispers and with a partial verbal or physical prompt will say hello to people. She says more, even if it is sometimes echolalic. has a one- to-one paraprofessional and also has one-to-one time with , the teaching assistant, and the RBT who does discrete trial work with her each afternoon. Working with various staff members helps her generalize everything she is learning. Feeding has improved and she now uses a regular spoon. Her paraprofessional and the occupational therapist are working with on her feeding needs. Either the paraprofessional or must be next to when she is eating, which is twice a day at school, because she puts too much in her mouth and coughs. is out of diapers this year, although she still must be on a toileting schedule using a timer for every 45 minutes. Her paraprofessional is usually the person assisting with toileting. (T. 106-111)
also described progress, as noted in her second quarter report card and progress report. develops the academic goals worked toward by (T. 115-116; Exhibits L and M)
testified that behavior has improved, but she can still become aggressive towards others or have self-injurious behaviors. She will drop to the floor and try to hit her head hard with any object nearby. explained the role of reinforcers that are earned by , including her preferred activities of going for a walk, running or using the spun chair. A token board is used for every activity throughout the day. (T. 111-113)
received the related services of speech and language therapy, occupational therapy and physical therapy. described her communication with related service providers. She also described her communication with the Parent. (T. 120; 122-123)
explained why home program is very important for her. At school, they are doing ABA all day. The home services are what give her the amount of repetition she needs and help her to generalize her skills outside of and across different people and in different places. (T. 123; 129)
participated in the March 2017 CSE meeting and described it as “a little tense.” was not giving the parents enough time to talk. “I definitely didn’t feel like they were heard enough.” (T. 131-132)
is mother. explained that was born very prematurely, at less than 27 weeks. She spent almost 5 months in the NICU at , during which she had tracheostomy surgery with complications. She went from to . She had a trach, needed oxygen, and had many issues.
was at for over two years. During that time she went to the for laryngeal reconstruction surgery which is a step-by- step surgical process, requiring traveling to every four to six weeks. She was discharged from when she was 3 1/2 years old and began living at home. (T. 144-145) While at , attended their preschool, which was one-to-one. She also received speech therapy, physical therapy, and occupational therapy. She had a feeding program while there too. Following her discharge, she continued and finished the school year at , but would receive the related services at home through the hospital. (T. 148-150) During the 2015-2016 school year, attended . While at , which did not use ABA, lost her feeding and toileting skills, as well as other basic skills, and experienced overall regression. (T. 149-150)
testified that she and her husband participated in the CSE meeting on March 28, 2017, by telephone. They did not agree with the recommendation of a District 75 school in a 6:1:1 classroom, which was the same recommendation the CSE had made the year before. She needs an ABA program and intensive support and structure.
stated that she and her husband also said that needs a paraprofessional, which the CSE did not recommend. and her husband toured the school recommended by the DOE. They were told that the school does not have ABA, a sensory gym, a playground, or a separate quiet feeding area to accommodate her feeding needs, which also include severe allergies and a refusal to eat in a noisy space. In addition, the school would not offer a one-to-one paraprofessional. (T. 152-156; 160) testified that she did not receive a response once the DOE was notified that the Parent was placing at .
(T. 162)
described progress. She does not speak spontaneously, but will now mimic sounds. When she calls name, will now look at her. When is hungry, she will now pull to the kitchen. Her attention span has improved and, if its for a preferred activity, it may be up to five or six minutes. described some of sensory processing behaviors. For example, she flicks her hand in front of her face and, also, tears up paper towels and rolls them in her fingers all day. stated that does not have any safety awareness. She climbs the furniture at home and, when outside, runs on the road, even dropping herself on the road. Academically, is now able to identify five colors and count with prompting. She can identify shapes and repeat the alphabet with prompting. (T. 137-142)
stated that the home-based ABA is helping improve. (T. 143) The ABA provider will work on the same skills from school. They work on colors, shapes, holding the pen to make a line, and reading. The iPad is used as a reward by the ABA provider, since that is a preferred activity for (T. 164-166)
confirmed that a $500 payment was made to on June 10, 2017, but no other payments had been made. (T. 167; Exhibit O)
FIN INGS OF FACT AN CONCLUSIONS OF LAW
The central purpose of the Individuals with Disabilities Education Act (IDEA)
(20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a Free Appropriate Public Education (20 U.S.C. § 1400[d][1][A]; see Schaffer v.
Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-
01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). 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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).
A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch.
Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).
It should be noted that the DOE responded to the Parent’s request for an impartial hearing. The DOE’s three-page boilerplate “Due Process Response,” dated November 15, 2017, confirms that the CSE met on March 28, 2017 and that was given the classification of autism. (Exhibit C) The section under which to identify the CSE’s recommendation, which requires the writer to “choose one” from six choices, including “other,” was left blank. The section under which to identify the materials relied upon by the team, which include seven types of reports, evaluations, observations and “other,” was left blank. The other sections, created to identify other programs considered and rejected by the CSE, note any additional factors relevant to the recommendation, and describe the placement offered, were all left blank. At the end of the response, it reads,
“The New York City epartment of Education reserves the right to amend and/or supplement this ue Process Response.” [Emphas s added] There is no amendment or supplement to the response in the record.
While the DOE presented a witness who had participated in the CSE meeting and the development of the IEP, her testimony certainly did not establish that the DOE had offered a FAPE to for the 2017-2018 school year. Her testimony was far from sufficient to demonstrate that the DOE had offered a FAPE to Some of the strongest evidence that the DOE did not offer a FAPE to came from testimony and from her classroom observation of . The behaviors described by in her observation report were observed in a classroom with far more support than the one recommended by the CSE, and included a one-to-one paraprofessional assigned to A review of ’s own report would establish that a one-to-one paraprofessional is a necessity for However, somehow believed that the recommended District 75 program with fewer adults in the classroom and no paraprofessional for would be appropriate. It is inconceivable that academic, behavioral, safety, and daily living needs could have been appropriately addressed in the recommended program. The CSE completely disregarded the information and recommendations it had from the professionals working with , the behavior personally observed, and all accounts of the severity of global delays and needs. Although the DOE had ample information to the contrary, it simply re-recommended the same program it had recommended in the prior year, perhaps with some added related services. As will be discussed below, it was a recommendation later deemed inappropriate by an Impartial Hearing Officer.
As requested by the Parent, great deference is given to the Findings of Fact and Decision issued by Impartial Hearing Officer , Esq., on October 11, 2017. The decision was based on the same recommendation by the CSE, which was found not to constitute a FAPE for for the 2016-2017 school year. It was also based on the same unilateral placement of at , which was found to be an appropriate placement for for the 2016-2017 school year. Most notably, the decision was unappealed by the DOE. (T. 23) As an unappealed decision, the DOE had agreed that it serves as the pendency placement for during this proceeding, as noted above. (T.
179) While the recommendation for the 2017-2018 school year was made on March 28, 2017, which was prior to IHO ’s decision for the prior year, issued on October 11, 2017, this present impartial hearing commenced subsequent to that decision. The
DOE is defending the same recommendation for the 2017-2018 school year that was deemed inappropriate for for the prior school year, and is challenging the same unilateral placement that was deemed appropriate for for the prior school year. The
DOE did not take any steps to reconvene its CSE following the decision, in order to change its recommendation for the 2017-2018 school year. No explanation has been offered by the DOE to reconcile the fact that the DOE did not appeal the decision, and yet it is continuing to maintain the same unsuccessful position for the subsequent school year. The DOE has not established, attempted to cite, or even mentioned, any changes in profile, levels of performance, areas of need, or otherwise, that would render its inappropriate recommendation for the 2016-2017 school year appropriate for the 2017- 2018 school year.[2] Similarly, there has been no reference to any changes in or in the program, deemed appropriate for for the 2016-2017 school year, that would render it inappropriate for the 2017-2018 school year. In fact, physical classroom space, classroom teacher, and one-to-one paraprofessional remained the same for the 2017-2018 school year.
For the foregoing reasons, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent’s case.
The Parent has the burden of establishing the appropriateness of the program she has provided to (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, she must demonstrate that the services provided offer an educational program which meets the student’s special education needs. [Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.
3d 105 (2d Cir. 2007)] The standard used to measure the appropriateness of the Parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000)
“The issue turns on whether a placement - public or private - is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112) The Parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])
The DOE has not made any specific challenge to the appropriateness of the program or the home ABA services for for the 2017-2018 school year. No evidence has been offered to dispute the testimony of the educational professionals who have worked with , or the testimony of her mother. There was no position taken or argument made by the DOE with regard to the appropriateness of the Parent’s placement at or the continuation of home ABA services. The appropriateness of unilateral placement at and the home-based ABA program were not addressed during the DOE’s opening statement at the outset of the hearing, or in its closing argument, after hearing the testimony from the Parent’s witnesses.
The description of IHO ’s unappealed decision, included above in the analysis of whether the DOE offered a FAPE to , is entirely applicable to this component of the analysis, regarding the appropriateness of the unilateral placement at . In addition, IHO also found that needed ten hours per week of one- to-one ABA home-based services with BCBA supervision. There has been no evidence presented or argument made to establish any change in needs that would warrant a change in her program.
I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. Those who are familiar with , and who provide direct services to her, have all determined and agree that ’s program and the home ABA program, were appropriate for for the 2017-2018 school year. , , and provided persuasive testimony and evidence to this effect. The testimony provided by these witnesses strongly affirms the appropriateness of the program. Based on the evidence submitted from the provider of the ABA home-based services and from Developmental-Behavioral Pediatrician, both recommend the ABA home-based services, in addition to the individuals who testified. (Exhibits I and K) The program and home ABA program were reasonably calculated to allow to make meaningful progress and to address her individual needs. In fact, made meaningful progress through the school year.
The final criterion for an award of funding or reimbursement is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v.
Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).
There is no basis on which to reduce or modify the remedy for the Parent. The
DOE did not offer any equitable consideration that would preclude an order in favor of the Parent.
OR ER
1. The DOE shall directly fund tuition for for the twelve-month
2017-2018 school year which, in addition to the base tuition, also includes: the related services of speech/language therapy, occupational therapy, physical therapy, parent training, and a one-to-one paraprofessional, in the amount of Payment shall be made immediately, based on the evidence presented. (Exhibits H and N)
2. The DOE shall reimburse the Parent for the $500 paid to . Payment shall be made immediately, based on the evidence presented. (Exhibits N and O).
3. The DOE shall fund ten (10) hours per week of one-to-one home-based ABA services, plus the proportionate number of hours of program supervision, for the twelve-month 2017-2018 school year at the hourly rates consistent with what has been charged and paid to date. Payment shall be made immediately upon submission to the DOE of invoices for ABA services.
Dated: February 6, 2019
AMY LYNNE ITZLA, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
The parent and/or the New York City epartment of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education epartment under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with isabilities Education Act. The epartment of Education has designated the New York City Law epartment to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO THE RECORD
DEPARTMENT OF EDUCATION
1 Individualized Education Plan (IEP), 3/28/17, 21 pages
2 Notice of IEP Meeting, 1/21/17, 3 pages
3 Minutes, 3/28/17, 2 pages
4 Prior Written Notice (Notice of Recommendation), 3/28/17, 4 pages
5 Student Observation, 3/9/17, 2 pages
6 Social History Update, 3/20/17, 3 pages
7 Academic Annual Review by , 3/23/17, 3 pages
8 Speech/Language Therapy Annual Review by , 3/23/17, 3 pages
9 Occupational Therapy Anuual Review by , 3/23/17, 3 pages
10 Physical Therapy Annual Review by , 3/23/17, 4 pages
11 Goals for 2017-2018, undated, 1 pagae
12 Functional Behavioral Assessment by , 3/6/18, 3 pages
13 Behavior Intervention Plan by , 3/6/18, 4 pages
14 Behavior Intervention Plan, 3/6/18, 5 pages
15 School Placement, 4/11/17, 2 pages
16 School Location Letter, 4/11/17, 2 pages
PARENT
A Due Process Request, 11/2/17, 8 pages
B Ten Day Notice, 6/23/17, 5 pages
C Due Process Response, 11/15/17, 3 pages
D Receipt of Ten Day Notice, 6/23/17, 1 page
E Prior Year Findings of Fact and Decision, 10/11/17, 28 pages
G BIP, 3/28/17, 6 pages
H Tuition Agreement, 7/1/17, 3 pages
I ABA Report, 7/2017, 13 pages
J Annual Review Packet, 3/2017, 8 pages
K Letter, 5/17/17, 2 pages
L 2017-18 Q2 Report, 1/2018, 1 page
M 2017-18 Q2 Progress Report, 1/2018, 20 pages
N Tuition Affidavit, 4/5/18, 1 page
O Parent Proof of Payment to , 6/2017, 3 pages
P Student Attendance, 4/6/18, 3 pages
Q Student Schedule 2017-18, undated, 1 page
R IEP, 3/6/18, 15 pages
S Annual Review Packet, 3/6/18, 25 pages
V IEP, 4/4/16, 19 pages
W Letter regarding Absences, unidentified date, 1 page
X Withdrawn
Footnotes
[2] The only diffe ence between the CSE’s ecommendation f om the p io yea and the yea at issue was an inc ease in the elated se vices by adding 30-minute individual sessions of speech and language the apy, occupational the apy and physical the apy. This change was not, howeve , cited by the DOE as making what was othe wise deemed an inapp op iate ecommendation suddenly app op iate fo the next school yea .