New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 175963

NYS Identifier Number N/A

Student’s Name: [“confidential”]

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 03/13/19, 04/04/19, 05/23/19 &

08/02/19

Actual Record Close Date: 01/27/20

Hearing Officer: Edgar De Leon Case No. 175963

On August 30, 2018, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a student attending a private school and the New York City Department of Education (“DOE”) - , concerning the student’s special education program.

After adjournments were granted at the request of the parties and on consent, or for good cause, the impartial hearing was held on March 13, 2019, April 4, 2019, May 23, 2019 and August 2, 2019. The Parent’s written closing statement was received on September 16, 2019. (T-396-8 & P-II) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”)

made by the student’s Parent via her attorney(s), the and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about August 29, 2018. The DPC is carried under New York City (“NYC”) Case No.

175963.

The Parents in this case alleges that the student has been denied a “free and appropriate public education” (“FAPE”) for the 2016-2017, 2017-2018 and 2018-2019 school years. At the impartial hearing, the Parent seeks the following relief:

(a) An independent comprehensive neuropsychological evaluation with a provider of the Parent's choosing at a rate not to exceed $6,000.00, an independent evaluation by a BCBA of the Parent's choosing at a rate not to exceed $5,000.00, an independent functional behavior assessment with a provider of the Parent's choosing at a rate not to exceed $5,000.00, an independent assistive technology evaluation with a provider of the Parent's choosing at a rate of not to exceed $3,000.00, an independent speech and language evaluation with a provider of the Parent's choosing at a rate of not to exceed $3,000.00, an independent OT evaluation with a provider of the Parent's choosing at a rate not to exceed $2,000.00 and an independent PT evaluation with a provider of the Parent's choosing at a rate not to exceed $2,000.00; and

(b) An order directing the DOE to provide direct tuition funding, funding for all related services and other costs and fees for the student’s attendance at a private school for the 2017-2018 and the 2018-19 school years, as well as reimbursement to the Parent for any portion of the aforementioned educational expenses already paid by the Parent; and

(c) An order directing the DOE to continue to provide the student with door to door bussing to and from his home and the school with any necessary specialized transportation requirements, including but not limited to air conditioned mini-bus, or to provide direct funding for private car service to transport the student to and from his home and the private school; and

(d) An order directing the DOE to provide direct payment for free breakfast and lunch for the student while attending the private school and reimbursement of any payments already expended; and

(e) An order directing the DOE to pay for (800) hours of one-on-one outside

ABA services at a rate of up to $250 per hour, with a provider of the Parent's choosing to be scheduled between the provider and parent as they see fit without expiration until the hours are used up; and

(f) An order directing the DOE to provide the student with assistive technology device or devices such as Nova Chat or LAMP; and

(g) Any such other and further relief as the hearing officer deems just and proper.

THE DOE’S CASE

The DOE called (4) witnesses to testify on its behalf and submitted (15)

documents in evidence. The testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

The Parent called (5) witnesses to testify on her behalf, who did not testify on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. The Parent also submitted (28) documents in evidence. The testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley,

458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) W hile school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA.

(See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent.

Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 W L 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

Under the IDEA, if a procedural violation is 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. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 W L 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch.

Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 W L 3852180 [2d Cir. Aug.

19, 2008])

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 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." (See 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." (See W alczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and Rowley, 458 U.S. at 189) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See W alczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379)

Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and W alczak, 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.'" (See Cerra, 427 F.3d at 195, quoting W alczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 W L 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent.

Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; W alczak, 142 F.3d at 132; E.G. v. City

Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v.

Bd. of Educ., 583 F. Supp. 2d 422, 428 [W .D.N.Y. 2008])

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No.

07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and

SRO No. 08-087)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim.

(See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) 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. (See Burlington, 471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "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 offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; W alczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419)

A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-

014 and 01-105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000])

"Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement… .'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006]

[quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) W hen determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits."

(See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina

City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision.

(See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-

133; 07-120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and 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." (See W olfe 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]) W ith respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 W L 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch.

Dist., 2008 W L 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 W L 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v.

V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 W L 2335140 [2d Cir.

Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners 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 tuition reimbursement. (SRO No. 04-049)

The Parent asserts that the student’s January 5, 2017 is procedurally and substantively flawed, because in part it was not based upon appropriate evaluations, the Parent was not permitted to meaningfully participate in the meeting and the student was never provided with the program supports and services mandated by the defective IEP. (P-

W & P-II) The only evaluation used was a psychoeducational evaluation conducted by the DOE school psychologist. (P-L & P-II) The only testing instrument attempted during that evaluation was the “W PPSI”, which is an “intelligence” test that did not produce any scores.

(T-244, P-L & P-II) The evaluator acknowledged that the student was nonverbal but she did not attempt to use any other testing instruments. (T-168, P-L & P-II)

In general, a school 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. (See 34 CFR 300.303[a][2], 8 NYCRR 200.4[b][4]); however, a school district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary. (See 8 NYCRR 200.4[b][4] and 34 CFR 300.303[b][1]-[2])

A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. (See 8 NYCRR 200.4[b][3]) Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent that may assist in determining, among other things the content of the student's IEP. (See 20 U.S.C. § 1414[b][2][A], 34 CFR 300.304[b][1][ii] and Letter to Clarke, 48 IDELR 77 [OSEP 2007]) In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. (See 20 U.S.C. § 1414[b][2][C], 34 CFR 300.304[b][3] and 8 NYCRR 200.4[b][6][x])

A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. (See 20 U.S.C. § 1414[b][3][B], 34 CFR 300.304[c][4] and 8 NYCRR

200.4[b][6][vii]) An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related service needs, whether or not commonly linked to the disability category in which the student has been classified.

(See 34 CFR 300.304[c][6] and 8 NYCRR 200.4[b][6][ix])

The Parent’s psychologist testified that the W PPSI was an inappropriate instrument to administer to the student. (T-245) First, it is a very language-based test that is inappropriate for a nonverbal student. (Id.) Secondly, it only looks at intelligence and for a student with autism that is functioning at an age level below where their chronological age is, one should use a neuropsychological evaluation that is going to look at the different facets of cognitive functioning, not just intellect, which in this case is very limited in scope.

(T-245-6) If an intelligence test were required, the Stanford-Binet 5th edition, offers the same tests as the W PPSI in the nonverbal equivalent, with minimal verbal demands or language demands. (T-247) W hat’s more, the DOE school psychologist conceded that the student presented as needing speech, and OT, and PT services. (T-171) However, no such evaluations were conducted and the student’s January 5, 2017 IEP does not provide those services. (D-1) Additionally, the Parent asserts that she was denied the opportunity to participate at the CSE meeting. She credibly testified that she was not given a copy of the psychological report or any social history report before or during the IEP meeting. (T-369-70)

The record reveals that the psychoeducational evaluation used in this case does not meet the standard articulated above. As it was the only evaluation used, it rendered the resulting IEP substantively flawed. (Supra)

Regarding the student’ IEP dated March 16, 2017 (D-2), the Parent successfully argued that it is substantively flawed because it does not provide the student with the ABA services that he requires. (P-II) A litany of witnesses for the Parent testified that the student needs ABA in school, a significant amount of one-on-one support and instruction, a class with a low student to teacher ratio, with related services and appropriate facilities and staff trained in dealing with autism. (T-206-11, 233-4, 239 & 291) Home-based ABA was also strongly recommended. (T-206-12, 237, 290, 301 & 346) One of these witnesses is a pediatrician that has been treating children for (30) years. (T-199-203) Her recommendations were supported by another doctor. (T-207-9) A third doctor testified that neither a 6:1:1 nor an 8:1:1 considered and offered by the DOE was appropriate for the student if it did not include an ABA program. (T-239) He also found the IEP deficient because it did not provide the student with a “Behavior Intervention Plan” (“BIP”), necessary to address the student’s elopement, aggressive behaviors and hygiene issues. (T-255)

The March 16, 2017 IEP does not provide for a one-on-one paraprofessional the student needs. (T-324-5) By contrast, the private school placed the student in their most intensive therapeutic program, the “ ”, with an ABA program, one-on-one support and high level of trained staff. (T-318-23) The BCBA who testified on behalf of the Parent said that the student requires a school-based ABA program as well as home-based ABA and that a District 75 6:1:1 would not be appropriate for him. (T-291)

All of the testimony regarding the student’s need for ABA services was largely and significantly uncontroverted. Indeed, the DOE witness who testified in support of the March 2017 IEP had never evaluated the student, did not remember him and had no independent recollection of the meeting. (T-180, 183 & 187) She did recall, based solely on her review of documents that the student was having a very difficult time in his current 8:1:1 placement. (T-183) The Parent requested assessments and services including ABA, OT, PT and speech in January of 2017, but an ABA assessment was not conducted for the student. (T-377-8, D-2 & P-H) There was no discussion of ABA at home or at school, no behavior intervention plan developed and no para was even discussed or offered.

As for the student IEP dated February 6, 2018, the Parent again provided the reports from her outside providers, with the recommendations cited above. (P-J, P-K, P-I &

P-V) There was testimony that the teacher and the Parent requested a school program with ABA and that the school reports, behavioral pediatrician reports, and a letter from a doctor all referenced the student’s need for ABA. (T-340-1, P-U, P-I & P-V) The Parent and school participants did not agree with the recommendation for a D-75, 6:1:1 program and other options were not considered. (T-341) In fact, out of approximately 50-60 IEP meetings that the witness had conducted during the 2017-18 school year, not once had a school-based ABA program or home-based ABA program been recommended for any student attending the private school, unless the DOE had been ordered to do so, despite the testimony that this is what the student clearly needed. (T-342-3)

The unconverted record evidences that the DOE denied the student a FAPE for the 2017-2018 and 2018-2019 in the that the IEPs created for those years were based on faulty evaluations and do not reflect the credible recommendations made by the student’s numerous outside providers. Accordingly,, I find that the student was denied a FAPE for the 2017-2018 and 2018-2019 school years.

As for the appropriateness of the student’s private school placement, numerous witnesses testified that the private school provides the highly supportive and structured learning environment, the ABA methodology and the one-on-one adult support that the student requires and that he is making meaningful progress thereat. (T-324-35) The private school principal testified that she reviewed the student’s IEP of March 2017, a DOE psychological assessment of December 2016, “screened” the student, reviewed his records and ultimately accepted him in the private school. (T-314-5, 318 & P-L) The student was placed in their “Base Program”, which is their “most intensive therapeutic program” for “students who need an ABA learning approach”, where the class has no more than six students, is generally a “one-to-one ratio for the children” and all of the teachers and all of the professionals have a very intensive training program in ABA. (T-318-20)

The student’s private school program, provides ABA throughout the day, as well as

Speech, PT, OT, parent counseling and counseling, with his related service providers having access to the BCBA. (T-335-7) The private school also provided the student with a paraprofessional and created and tweaked behavior plans that enabled the student to see gains in his behavior and functioning. (T-322-32) The record clearly evidences the appropriateness of the student’s private school placement.

There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parent. For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that they have met their burden under Schaffer to prevail in their request for tuition reim bursem ent.

NOW therefore, it is hereby

ORDERED that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent or directly pay cost of the student’s receipt of an independent comprehensive neuropsychological evaluation with a provider of the Parent's choosing at a rate not to exceed $6,000.00, an independent evaluation by a BCBA of the Parent's choosing at a rate not to exceed $5,000.00, an independent functional behavior assessment with a provider of the Parent's choosing at a rate not to exceed $5,000.00, an independent assistive technology evaluation with a provider of the Parent's choosing at a rate of not to exceed $3,000.00, an independent speech and language evaluation with a provider of the Parent's choosing at a rate of not to exceed

$3,000.00, an independent OT evaluation with a provider of the Parent's choosing at a rate not to exceed $2,000.00 and an independent PT evaluation with a provider of the Parent's choosing at a rate not to exceed $2,000.00; and it is further

ORDERED that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent or directly pay cost of the student’s tuition at the private school for the 2017-2018 and the 2018-19 school years; and it is further

ORDERED that the DOE will continue to provide the student with door to door bussing to and from his home and the school with any necessary specialized transportation requirements, including but not limited to air-conditioned minibus; and it is further

ORDERED that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent or directly pay cost of the student’s receipt of (800) hours of one-on-one outside ABA services at a rate of up to $250 per hour, with a provider of the Parent's choosing to be scheduled between the provider and Parent as they see fit without expiration until the hours are used up; and it is further

ORDERED that the DOE shall provide the student with assistive technology device or devices such as Nova Chat or LAMP; and it is further

ORDERED that the DOE shall conduct evaluations of the student in all areas of his suspected disabilities not identified above and not evaluated within the last two years, for the 2020-2021 school year; and it is further

ORDERED that the CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student’s evaluations and any other relevant information and produce a new IEP for the student’s 2020-2021 school year; and it is further

ORDERED that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: February 7, 2020 Edgar De Leon

New York, New York Edgar De Leon - IHO

PLEASE TAKE NOTICE

The parent and/or the New York City Departm ent of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Departm ent under Part 200.5(k) of the Regulations of the Com m issioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. Directions and form s can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.htm l Case No. 176963

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

01 IEP 01/05/17 DOE 16

02 IEP 03/16/17 DOE 20

03 IEP 02/06/18 DOE 22

04-10 W ithdrawal / Not Received N/A DOE N/A

11 Psychoeducational Evaluation 02/05/18 DOE 04

12 Annual Review 01/20/18 DOE 03

13 S&L Review 01/08/18 DOE 02

14 OT Review 01/20/18 DOE 02

15 PT Review 01/20/18 DOE 02

16 Social-Emotional Review 01/20/18 DOE 01

17 FBA 02/06/18 DOE 02

18 BIP 02/06/18 DOE 05

19 Pediatric Revisit 09/22/17 DOE 03

20 Augmentative Communication 04/30/18 DOE 02

21-25 W ithdrawal / Not Received N/A DOE N/A

26 Parent Letter 01/26/17 DOE 01

A-D W ithdrawal / Not Received N/A PARENT N/A

E School Report 07-10/2016 PARENT 01

F Letter from 05/21/16 PARENT 01

G Request for Evaluations 12/16/16 PARENT 01

H Request for Re-Evaluations 01/26/17 PARENT 01

I Pediatric Behavior Report 09/22/17 PARENT 03

J Pediatric Report 09/05/17 PARENT 10

K Pediatric Report 08/22/17 PARENT 09

L Psychological Evaluation 12/21/16 PARENT 05

M Unilateral Placement 06/18/18 PARENT 04

N Unilateral Placement 05/24/18 PARENT 04

O Unilateral Placement 08/30/17 PARENT 04

P Private School Contract 05/24/18 PARENT 02

Q Private School Contract 09/15/17 PARENT 03

R Class Schedule 2017-2018 PARENT 01

S Class Schedule 2018-2019 PARENT 01

T W ithdrawal / Not Received N/A PARENT N/A

U Private School Report undated PARENT 12

V Letter from 02/05/18 PARENT 01

W DPC 08/29/18 PARENT 08

X PT Evaluation 03/07/17 PARENT 05

Y OT Evaluation 03/10/17 PARENT 02 Z Speech Evaluation 02/27/17 PARENT 04 AA Referral from 07/03/17 PARENT 01 BB Prescription 07/03/17 PARENT 01 CC Prescription 07/03/17 PARENT 01 DD Prescription 02/27/17 PARENT 04 EE Prescription 07/03/17 PARENT 01 FF ABBLES Document 12/04/18 PARENT 10 GG-HH W ithdrawal / Not Received N/A PARENT N/A II Closing Statement 09/16/19 PARENT 40

N/A N/A N/A IHO N/A