New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 525833 - NYC: 184049

FINDINGS OF FACT AND DECISION

Case Number: 184049

Student’s Name: REDACTED (hereinafter “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: REDACTED

(hereinafter “Parent”)

Date of Hearing: August 19, 2020

Record Close Date: January 25, 2023

Hearing Officers: Robert Briglio (“IHO I”),

Ginger James (“IHO II”);

Eryn DeFontes(“IHO III”/ “undersigned IHO”)

Hearing Officer’s Fact of Finding and Decision

________________________________________________________________________

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

REDACTED (hereinafter referred to as “Parent’s representatives”)

Board Certified Behavior Analyst (“BCBA”)

For the Department of Education (“DOE”):

REDACTED (hereinafter referred to as “District’s representative”)

Hearing Officer’s Fact of Finding and Decision

INTRODUCTION

A due process complaint (“DPC”) was filed by the Parent on or about July 1, 2019 (P-A).

The matter was assigned to IHO I on July 2, 2019. IHO I presided over the due process hearing (“DPH”) but did not render a final decision.^[1] IHO II was appointed on October 17, 2022 but the appointed was rescinded on October 19, wherein the undersigned IHO was appointed to preside over the case on October 19, 2022. The Parties represented that the hearing record was complete and only a final decision was outstanding. The undersigned further determined that the record was sufficient to render a decision. The Parent’s Motion to Recuse the undersigned IHO was denied (IHO I, II). The undersigned IHO renders this final decision based upon the evidence and hearing record compiled thus far pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1) The Parent submitted a closing brief (IHO V). The DOE waived a closing statement.^[2]

PROCEDURAL HISTORY

On August 23, 2019, IHO I issued an Order on Pendency, which included the following: (a) 6:1:3 special class at the non-public school (“NPS”) (b) 5x30 speech and language therapy (“SLT”), on a 1:1 basis;(c) 2x30 occupational therapy (“OT”); (d) 2x30 physical therapy (“PT”); (e) 5x30 hearing education services (“REDACTED”); (f) 30 hours per week of ABA services; (g) 2 hours per week of ABA supervision; (h) special transportation (IHO VII).

IHO I issued Interim Orders on August 23, 2019, January 13, 2019 and January 21, 2022 and a Consolidation Order on January 13, 2019.^[3] The undersigned IHO Ordered the DOE to provide a service accounting via Order and Subpoena.^[4]

JURISDICTION

A decision in this matter is being rendered, pursuant to the IDEA,^[5] and its implementing regulations^[6] the New York State Education Law,^[7] and its implementing regulations,^[8] and Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (Section 504).^[9] Parent also raised claims pursuant to 42 U.S.C. § 1983; as this tribunal does not have jurisdiction to hear 42 U.S.C. § 1983 matters, any claims or relief set forth pursuant to this section were not considered.

Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement... a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s] parents or guardian and representation by counsel, and a review procedure.”^[10] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The DOE delegated to OATH the authority to adjudicate due process complaints under Section 504.^[11]

POSITIONS of the PARTIES

Parent’s case:

The Parent asserts that the District failed to provide the Student with a FAPE for the 2017-2018, 2018-2019 and 2019-2020 school years (“SY”) by inter alia, failing to:

• • timely, thoroughly, and appropriately reevaluate Student and his special education needs; (b) develop a substantively and procedurally valid IEP for Student; (c) provide a timely and appropriate placement to Student; (d) violated the Parent’s language access rights under the IDEA which resulted in their exclusion from the special education process; (e) provide Student with a FAPE.

The Parent’s representative submitted Exhibits P-A through P-EE, which were admitted into evidence.^[12] Parent further asserts that the DOE violated the IDEA and discriminated against Student in violation of Section 504 by adopting and implementing blanket policies with respect to the recommendations made on his IEP and the provision of special education services. Finally, Parent argues that the DOE violated 42 U.S.C. § 1983 by adopting policies and customs that deprive Student of his right to special education under state and federal law (P-A-2).

District’s case:

The DOE stated that it would be “submitting evidence and resting its case”^[13]. On November 6, 2019, the District’s representative submitted Exhibits D-1 through D-4, which were admitted into evidence.^[14] DOE did not present any witnesses. On or about November 23, 2022, the DOE produced a number of documents requested by the Parent, including attendance records from the 2019-2020 school year.^[15]

FINDINGS OF FACT AND DECISION

Denial of a FAPE:

The Parent’s representative asserts inter alia, that the DOE has failed to provide the Student with a FAPE for the 2017-2018, 2018-2019 and 2019-2020 SYs.^[16]

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 Committee on Special Education (“CSE”) through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits^[17]. 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.^[18]

In addition, a school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”^[19]

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement.^[20] Parents bear the burden of proof, both in production and persuasion, on any claim under Section 504 of the Rehabilitation Act.^[21]

Although the DOE has not conceded that it failed to provide Student with a FAPE for all SYs at issue, it elected not to call any witnesses to testify, and did not offer any “cogent and responsive” explanation for the programs and services recommended to the Student^[22]. Rather, the DOE relied upon four documents submitted into evidence. As such, the undersigned IHO has sought to determine if the programs provided for those SYs were reasonably calculated to enable Student to make progress appropriate in light of Student’s circumstances, based on a preponderance of the evidence which includes all evaluations on record as well as the affidavit from the Parent’s witness. Student is REDACTED years old and attends the NPS. His eligibility for special education pursuant to the IDEA will expire in June 2024. The Student was diagnosed with Autism^[23] (“ASD”), is non-verbal and deaf and utilizes cochlear implants (P-B, DD-4; G-1, H-1). The Student is unable to discriminate sounds, his native language is Arabic, which is spoken in the household, and he communicates using a Prologue2Go computer application and iPad. The Student experiences seizures in addition to exhibiting involuntary motor movements and “painful” spasms and exhibits self-injurious and maladaptive behaviors, such as pinching and biting (P-DD-4-35; 6:50-52; P-G-2; P-P-1; P-Q-2, 3)

The DOE failed to sustain its burden in this case. The evidence establishes that during the 2017-2018, 2018-2019, 2019-2020, SYs: The DOE procedurally and substantively denied the Student a FAPE, the Student’s placement at the NPS resulted in denial of a FAPE, as the NPS failed to provide personalized instruction with sufficient support services to permit the Student to benefit educationally from that instruction.^[24]

The BCBA credibly testified:

I have visited [NPS] many times over the years…when I observe [Student] at school, he is never receiving direct 1:1 instruction and on most days, the students were simply left to their own devices to engage in independent work…I have never observed ABA being provided in school. During any day I observed, the teacher or paraprofessionals were mainly engaged in re-direction…from what I can determine, the level of work being conducted in his classrooms is often work that [Student] completed at home many years ago. For example, this year, when I visited, the students were engaged in color matching. [Student] learned to color match many years ago.^[25]

[Student’s] functioning is higher during his 1:1 sessions at home than at school. When [Student] gets bored, or feels he cannot achieve or understand a task he is being asked to do, he loses motivation. In my opinion, this program is not appropriate for [Student]. ^[26]

The BCBA recommended the following services and programs for the Student^[27]: full-day of push-in 1:1 instruction using ABA this year, as well as his home-based program; a bank of at least twenty hours of 1:1 instruction per week using an ABA approach and these services should be able to be pushed into his school on a 1:1 basis or used during the school day; Student should have received his complete number of ABA hours, as well as with eight hours per month of BCBA supervision. ^[28] The BCBA further testified: “To the extent there were gaps in these home-hours due to lack of providers or the pandemic, Student should have those hours returned; going forward, I strongly recommend that, in addition to his home program, Student receive twenty hours per week of push-in ABA services to be provided by one of the in-home providers, whether those hours are to be pushed in to school (if he is allowed to attend school) or is at home.”^[29]

Notably, despite allegations of a denial of a FAPE for multiple school years, the DOE proffered only one IEP, dated October 2, 2019 (“October 2019 IEP”)^[30]. Nonetheless, the exhibits proffered by the DOE fail to establish that the Student was provided with a FAPE. For example, the Management Needs section of the October 2019 IEP indicated that the Student required a curriculum that incorporated highly structured instructional methods with systematic reinforcement which utilized repetition and prompting procedures to acquire new skills and increase his adaptive behavior, required a high level of reinforcement to attend to tasks, structured environment, close supervision, repetition of instruction, continuous reinforcement. Recommended special education programs and services included a 6:1+3 NPS class, REDACTED 5x/wk, OT 2x/wk, parent counseling and training (“PCAT”) monthly, SLT 3x/wk, an FM, iPad and Proloquo2go software.^[31]

The BCBA testified that the DOE “never provided the October 2019 IEP to our team”, and further maintained that the subject IEP was not appropriate testifying, inter alia, that:

“[Student] requires intensive, individualized one-to-one instruction with ABA in order to learn, and, even with that level of instruction, at home due to the fact that he is deaf and has ASD, he is a very slow learner. As there are no 1:1 ABA programs near his home, for the past few years, I have been recommending that [Student] receive push-in ABA at school, as well as ABA at home. Each year that an IEP meeting is held, I participate in the meeting for [Student] and I indicated that [he] continues to require 1:1 instruction using ABA and intensive repetition to acquire new skills, whether he is at school or at home. The IEP team regularly ignores our input and never recommends 1:1 instruction or ABA and always terminates these services, forcing the parents to continue filing hearings. For the past few years, I have been expressly requesting that 1:1 instruction be pushed into his school”^[32].

“I informed the team that [Student] requires 1:1 instruction and ABA to acquire new skills and that there is a discrepancy between his in-school functioning and his ability to perform with 1:1 ABA. Given that he is deaf, and he can only receive direct instruction on a 1:1 basis with signing or visual prompts, it makes no sense for [him] to be receiving education in a group of six children”.^[33]

“I expressly opined that there should be additional staff pushed in providing ABA for this reason. That feedback was, as usual, ignored”.^[34]

The DOE did not provide evidence or testimony to the contrary, nor did the DOE “offer a cogent and responsive explanation for their decisions” in creating an IEP (for any of the SYs at issue), tailored to the unique needs of this Student.^[35] It is noted that subsequent to the conclusion of the hearing on this matter, the DOE provided several documents pursuant subpoena^[36], including DOE records labeled “OT Attendance 19-22”. However, the DOE failed to proffer such documents as exhibits or argue in support of their relevance.^[37]

The BCBA provided credible and unrefuted testimony to establish that Student’s placement at the NPS was not appropriate: (a) Student is unable to learn in a group due to his “deafness and Autism”; (b) he requires direct 1:1 interaction for communication; (c) he displays a higher level of skills and capacity to learn with ABA at home, than in school; (d) the goals and curriculum are too simple and provide no benefit; (e) Student requires ABA, which to her knowledge, was not provided by the NPS.^[38]

The hearing record further establishes that Student did not, over the course of the SYs at issue, receive his full mandate of services: “[a]lthough [Student] was allocated ABA services for 30 hours each week and ABA supervision for 8 hours each month during the 2017-2018 school year…[NYSED] implemented laws, rules and regulations that decreased the number of providers qualified to provide ABA services in New York.”^[39] The BCBA also testified that for “the first part of the 2019-2020 school year, [Student] did not have a full-mandate of ABA services…there have often been gaps in services…[Student] is unable to independently engage in remote learning and [his] mother was unable to facilitate the lessons due to English language proficiency.” ^[40] The NPS further noted in 2019 in a correspondence with the BCBA, “[Student] is to be receiving 30 in-home ABA hours per week…[a]t this point in time, [he] is receiving 15 hours per week...[a]ccording to the IEP [Student] is to be receiving hearing services. At this point in time, [NPS] does not have a hearing provider to fill those hours…”.^[41]

In addition, the DOE’s minimal attempt to illustrate that it provided the Student a FAPE, is unconvincing. For example, the DOE proffered a 2019 progress report from the NPS. However, the report clearly shows that a number of Student’s IEP goals reveal the following: “little progress made”, “progress made, goal not met” with respect to skills such as writing last name, answering no to a non-preferred item, identifying up to six body parts, improvement in math skills, matching numbers, responding to hello and goodbye, answering personal information with a device, improving independent living skills with self-care tasks^[42]. A report generated by the BCBA (and proffered by the DOE) further notes: Student “infrequently engages in property destruction, a high rate and long duration of stereotypic behavior, experiences erections frequently across the week, engages in intense body jerking”... [Student] “maintains the skills that he has learned in previous years. He continues to make slow and steady performance improvements across academic and communication repertoires…p]erhaps because [Student] is experiencing puberty and experienced a seizure in April, nonproductive behavioral repertoires have increased this year relative to last year”. ^[43]

Although it is widely held that school districts are not required to “maximize” the potential of students with disabilities^[44], they must, by the same token, provide “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement’.” ^[45] In short, an IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”^[46] In this case, the evidence establishes that the programs and services offered to the Student during the SYs at issue, to the extent they were provided, did not afford the Student the opportunity greater than mere trivial advancement.

Therefore, I am unable to find that the DOE meet its burden to establish that the Student was offered a FAPE for the SYs at issue. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer the Student a FAPE for the SYs at issue.

Psychological Evaluation FBA and BIP

If a parent disagrees with an evaluation obtained by the school district, the parent has the right to obtain an IEE at public expense. 8 N.Y.C.R.R. § 200.5(g)(1).

When a parent requests an IEE, the school district “must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.” (emphasis added) 8 N.Y.C.R.R. § 200.5(g)(4). Lastly, the burden rests with the DOE to prove that its evaluation is appropriate.^[47] The DOE has failed to meet its burden in this regard. In this case, the Student’s most recent IEP (October 2019) notes that Student was evaluated using “the Vineland-3 comprehensive teacher form”. No other evidence of subsequent evaluations performed by the DOE were submitted, the DOE did object to Parent’s request for evaluations, nor did the DOE file a DPC of its own.

Based upon the foregoing, the CSE’s failure to have conducted a psychological evaluation to fully determine Student’s needs and level of functioning contributed to the Student being denied a FAPE. The DOE is therefore being ordered to fund this evaluation as part of the final relief being awarded to Parent. Hearing officers are empowered with broad discretion to order evaluations during the course of hearings or award funding for them as equitable relief to remedy violations of a student’s rights under the IDEA. Id; 20 U.S.C. § 1415(i)(2)(C)(iii), § 1439(a)(1). School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359, 360 (1985). Polera v. Board of Educ. of Newburgh, 288 F.3d 478, 486 (2d Cir. 2002).

The Parent in this case requests an FBA and BIP (P-A-10). An FBA is an evaluation that gathers information to determine why a student exhibits certain behaviors that impede learning and how these behaviors are a result of the student’s environment. In New York, CSEs must consider conducting an FBA under certain situations. These include when the CSE is developing an IEP for a student whose behavior impedes his or her learning or that of others.^[48]

The purpose of an FBA is to isolate a target behavior and develop a hypothesis regarding the function of the target behavior. A target behavior is one that interferes with a student's ability to progress in the curriculum and to achieve the student's IEP goals. Once the target behavior is identified and the hypothesis developed, a positive behavior intervention plan can be prepared to address the target behavior with strategies and interventions, if necessary, or the target behavior can be addressed using a more informal approach^[49] In this case, the unrefuted evidence demonstrates that Student exhibits various forms of problem behaviors which impedes his learning and the learning of his peers, namely, self-injurious behaviors and frequently masturbating on the school bus (P-DD-14:126; EE-6). Based upon the foregoing, the CSE’s failure to have conducted an FBA and BIP contributed to the Student being denied a FAPE. The DOE is therefore being ordered to fund both an FBA and BIP as part of the final relief being awarded to Parent.

Transition services:

The Parent asserts that the District has not complied with its transition obligations under the IDEA. Under the IDEA, to the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later post-school activities, including post-secondary education, employment, and independent living.^[50] Accordingly, pursuant to federal law and State regulations, an IEP for a student who is at least 16 years of age (15 under State regulations), or younger if determined appropriate by the CSE, must include appropriate measurable post-secondary goals based upon age-appropriate transition assessments.^[51]

An IEP must also include the transition services needed to assist the student in reaching those goals.^[52] In this regard, State regulations require that an IEP include a statement of a student's needs as they relate to transition from school to post-school activities^[53], as well as the transition service needs of the student that focus on the student's course of study, such as participation in advanced placement courses or a vocational education program.^[54] Regulations also require that a student's IEP include needed activities to facilitate the student's movement from school to post-school activities, including instruction, related services, community experiences, the development of employment and other post-school adult living objectives and, when appropriate, the acquisition of daily living skills and a functional vocational evaluation,^[55] as well as a statement of responsibilities of the school district (or participating agencies) for the provision of services and activities that "promote movement" from school to post-school.

Student would have turned REDACTED during the 2019-2020 school year and, therefore, the CSE team that developed Student’s 2019 IEP^[56] were required to develop post-secondary goals and transition services that addressed his needs.^[57] The October 2019 IEP states: “[Student] takes part in the school wide vocational program by working outside the classroom at several jobs. [He] is working on prevocational skills in his individual programs and during group work. In his individual program, [Student] independently sweeps the floor in the classroom at the end of each day and cleans tables...participates in the school wide pre vocational program in which he goes into other classrooms to clean their class IPADS. [Student] can independently request the bathroom at times and complete the toileting process with some prompting to wipe.” (D-1-2).

The “measurable postsecondary goals” section of the 2019 IEP indicates that after graduation, Student will attend a day habilitation program “where he will continue to work on developing life and work skills; Student will participate in various different vocational jobs at his day habilitation program; [he] will continue to live at home (Id). The attendant “transition needs” section adds, “[Student] needs to work on following a visual checklist to complete vocational tasks. [He] will gain experience by participating in school wide vocational program” (Id). Lastly, the “coordinated set of transition activities” section of the IEP lists “use of self-management system/schedule”, “will purchase items in the school store”, “will work on school maintenance program”, “will follow a visual checklist”, “functional vocational assessment: considered, not needed.”^[58] The BCBA testified that the NPS indicated that they would initiate new transition programs, such as “warming food in microwave”, “clean bathroom mirror”, “brush teeth” and “clean i-Pad” (P-DD-12). To her knowledge, these programs were not implemented, as “during the [October 2019] IEP meeting it was clear that no one had discussed or initiated any transition planning with the family” (P-DD-13:112, 113).^[59]

As the DOE did not offer any testimony or evidence to contradict the BCBA’s testimony, her testimony is accepted as credible, leading to a finding that that the DOE has not complied with its transition obligations under the IDEA. On the face of the 2019 IEP, the DOE has not complied with its obligations in this regard in any meaningful way.

Based upon the foregoing, the undersigned IHO concludes that the DOE’s failure to comply with its transition obligations under the IDEA further contributed to the denial of a FAPE for the 2019-2022 SY. The DOE is therefore being ordered to comply with its obligations in this regard as part of a reconvene meeting.

Based upon the foregoing, the undersigned IHO finds that the DOE did not support its burden to show that the Student was provided a FAPE for the SYs at issue. The unrefuted testimony and evidence established that Student’s placement at the NPS during the SYs at issue did not afford the Student with an opportunity greater than mere ‘trivial advancement’” ^[60] and Student’s placement was not “reasonably calculated to provide some ‘meaningful’ benefit”^[61].

Based upon the foregoing, I find that the District denied the Student a FAPE for the 2017-2018, 2018-2019 and 2019-2020 school years.

§ 504 Claims

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, prohibits a recipient of federal funds from discriminating against an individual with a disability solely by reason of that disability. The relief sought in this matter is available pursuant to the IDEA act and its implementing regulations. Therefore claims set forth under this section will not be addressed.

Transportation The Parent requests transportation to and from school (P-A-10). The 2019 IEP submitted by the DOE recommends special transportation (D-1-19). State law defines special education as “specially designed instruction... and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,”. As the SYs at issue are long over, such an award will have no practical effect. The DOE is however reminded of its obligations which requires school districts to provide disabled students with “suitable transportation to and from special classes or programs” for the current and future SYs, which are not before the undersigned IHO. Education Law §§ 4401[1], 4402[4][a]; see also Education Law § 4401(2); 8 NYCRR § 200.1[ww]).

Relief Sought and Compensatory Services:

The Parent is seeking various forms of relief in addition to compensatory relief for the District’s failure to provide the student with a FAPE for the SYs at issue (P-A-9, 10; IHO V5-10).

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE.^[62] An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position the student would have been in had the district complied with its obligations under the IDEA^[63]. As the claims and DOE’s failure to provide a FAPE cover multiple SYs, I find that an award of compensatory services is appropriate.

A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).

Given the duration of the deprivation and the evidence on record, this case lends itself more appropriately towards the qualitative approach, but also not wholly unconnected to the period of the deprivation (i.e. the quantitative approach).

Most importantly, the DOE provided no evidence and made no assertions to substantiate a reduction of any proposed compensatory hours to be awarded.

CONCLUSION:

The Student experienced the denial of a FAPE and deprivation of appropriate services for the SYs at issue. As the DOE’s opposition was based on the assertion that it provided the Student with a FAPE^[64], it did not take any specific position with respect to the type or scope of compensatory education that would be appropriate if the Parent was the prevailing party.

Based on the Parent’s detailed reports and the testimony on Record, the undersigned IHO finds that the compensatory services being awarded below are an appropriate form and amount of compensatory education for the denial of a FAPE that the Student experienced over the three SYs at issue. The DOE presented no evidence to the contrary.

ORDER

Based upon the above Findings of Fact, evidence and hearing record before me, it is hereby:

• • ORDERED that the DOE shall fund, to the extent that it has not already conducted any of these since November 28, 20222, an independent psychological evaluation, FBA and BIP, to be conducted at the prevailing market rate of the Parent’s duly licensed independent provider(s) of choice capped at the lowest price the DOE’s Implementation Unit has paid for substantially similar evaluations/assessments to the same provider(s) during the twelve months preceding the date of this decision, or if it has not paid the same provider(s) within the preceding twelve months, what it has paid for substantially similar evaluations/assessments to a similar provider during the twelve months preceding the date of this decision;
• • IT IS FURTHER ORDERED that the CSE shall convene a review meeting within 15 (fifteen) days of the CSE having received all of the evaluations/assessments obtained pursuant to #1 of this Order and prepare an appropriate IEP for the Student that includes at a minimum:
• • Accurate PLAAFP;^[65]
• • Specific and measurable goals tailored to the Student and based on the Student’s current academic and functional levels;
• • Appropriate modifications and accommodations to be listed as part of the Student’s IEP program;
• • Placement at a nonpublic school for children with autism that offers at least 20 hours per week of 1:1 instruction, ABA or an equivalent evidence-based instructional strategy, with at least the following supports and services (on a twelve-month school year basis):
• • five 30-minute sessions per week of speech/language therapy;
• • two 30-minute sessions per week of 1:1 occupational therapy;
• • five 30-minute sessions per week of REDACTED education services (“REDACTED”) services;
• • assistive technology (MAC computer/laptop for keyboarding, iPad with Prologue2Go software) to be used at school and at home;
• • thirty hours per week of home-based ABA provided by private ABA instructors selected by the Parent (at an enhanced rate); and
• • two hours per week of ABA supervision;
• • In the alternative to item (d), a push-in, 1:1 ABA teacher for 25 hours per week at Student’s current school; and
• • Transportation to and from the school^[66];
• • IT IS FURTHER ORDERED that the DOE shall reimburse the Parent for the cost of the iPad and any apps and programs that the Parent had to purchase as a result of the failure to implement pendency and provide access to the device within 30 days of receipt of invoices;
• • IT IS FURTHER ORDERED that the DOE shall provide and fund a bank of 4095 compensatory hours pursuant to subsections (a) and (i) below^[67]:
• • Compensatory services set forth in (i) below are to be provided outside of school hours, during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations, to be provided at the prevailing market rate of the Parent’s duly licensed service provider(s) of choice capped at the lowest price the DOE’s Implementation Unit has paid for substantially similar services to the same provider(s) during the twelve months preceding the date of this decision, or if it has not paid the same provider(s) within the preceding twelve months, what it has paid for substantially similar services to a similar provider during the twelve months preceding the date of this decision;
• • The bank of 4095 compensatory hours awarded set out in #4 of this Order shall not be awarded for each individual service, but may be distributed amongst each of the following services as needed: ABA, ABA supervision, PT, OT, SLT and REDACTED;
• • IT IS FURTHER ORDERED that the DOE shall issue payment directly to providers within 30 (thirty) days upon submission of invoices for services rendered;
• • IT IS FURTHER ORDERED that the bank of compensatory services set out in #4 of this Order shall expire upon either of the following occurring: i) Student “aging out” and no longer being eligible for special education; or ii) Student’s eligibility for special education is subsequently extended beyond the time period that Student would otherwise have aged-out^[68], then upon the expiration of that extended period, or three years from the date of this Order, whichever occurs first;
• • IT IS FURTHER ORDERED that the DOE’s implementation unit shall authorize all compensatory services hereby Ordered within 15 (fifteen) days;
• • IT IS FURTHER ORDERED that, the CSE shall meaningfully assess the Student's post-secondary goals and vocational needs and, after doing so, include this information on the Student's IEP, consistent with State regulation, as part of the IEP being prepared pursuant to the IEP meeting being convened in terms of #2 of this Order.

SO ORDERED.

DATED: January 25, 2023

Eryn DeFontes

Impartial Hearing Officer

Eryn DeFontes, Esq.

Hearing Officer’s Fact of Finding and Decision

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A – PERSONALLY IDENTIFIABLE INFORMATION

STUDENT v. SCHOOL DISTRICT

REDACTED

Student

REDACTED and REDATED

Parents

Student’s DOB

REDACTED

Home District

REDACTED

Service District

REDACTED

REDACTED

Parent Attorney

REDACTED

DOE/District Representative

Dr. REDACTED

BCBA

REDACTED

NPS

REDACTED Psychology Group (REDACTED)

ABA Services Provider

REDACTED, Qualified Behavior Analyst

QBA

Student’s previous name

REDACTED

APPENDIX B – ADMITTED EXHIBITS

STUDENT v. SCHOOL DISTRICT

Districts Exhibits:

Exhibit No. Date Description of Exhibit No. of pages 1 10/02/2019 Individualized Education Plan (IEP) 22

2 10/02/2019 Meeting Minutes 3

3 08/02/2019 Progress Note at QSAC 3

4 05/09/2019 Service Providers Report 2

Parent’s Exhibits:

Exhibit

Description

Date

Pages

A Impartial Hearing Request 06/30/2019 11

B Findings of Fact and Decision #145211 12/17/2015 12

C Interim Order #161377 09/18/2018 4

D Consolidated Impartial Hearing Request 191848 with 184049 12/30/2019 7

E CSE Meeting Minutes 04/07/2016 2

F CBST Documents * 12/05/2016 5

G REDACTED Letter 2018 and ABA Reports 06/2018 8

H REDACTED Audiological Evaluation 07/27/2012 1

I Email Between DOE & REDACTED Psychology Group Regarding Hours 01/03/2020 3

J Email with REDACTED Psychology Group regarding Invoices 03/2020 4

K SESIS Log Various Dates 13

L REDACTED Annual Summary of Progress 2016-2017 9

M REDACTED Annual Summary of Progress 2015-2016 12

N DOE Social History Update 11/02/2016 1

O Vocational Interview 11/02/2016 3

P ABA Report 05/09/2019 3

Q ABA Report Undated 4

R

Cover From REDACTED to REDACTED With Report from Dr. REDACTED

06/25/2013

6

S Amended Findings of Fact and Decision #139159 - Corrected 01/14/2013 20

T Findings of Fact and Decision in #122056 09/03/2010 16

U Second Interim Order in #122056 10/13/2009 6

V Statement of Agreement and Interim Order in #122056 06/03/2010 9

W Email from REDACTED Regarding Impartial Request 06/25/2012 1

X REDACTED vs DOE Decision 01/04/2016 49

Y NYSED Letter to REDACTED 07/02/2012 4 Z omitted n/a n/a

AA CSE Meeting Minutes 05/24/2012 3

BB NYSED Letter 04/30/2013 3

CC ABA Progress Report for 2019-2020 7/27/2020 5

DD Affidavit of REDACTED 08/19/2020 15

EE Emails Between REDACTED and REDACTED With Attachments 2019 23 *exhibits withdrawn IHO Exhibits

Exhibit

Description

Date

Pages

I

NOTICE OF MOTION

10/23/22

2

II

MEMORANDUM IN SUPPORT OF RECUSAL

10/23/22

12

III

RECUSAL RULING AND EXTENSION

11/3/22

12

IV

DOCUMENT SUBPOENA

11/25/22

3

V

PARENT’S CLOSING BRIEF

12/16/22

10

VI

DOE WAIVER OF CLOSING BRIEF

12/19/22

1

VII

IHO I: ORDER ON PENDENCY

8/23/19

7

VIII

IHO I: CONSOLIDATION ORDER

1/10/20

3

IX

IHO I: INTERIM ORDER FOR NEUROPSYCHOLOGICAL IEE

8/23/19

4

X

IHO I “PROPOSED” INTERIM ORDER FOR DOE TO PROVIDE SERVICE ACCOUNTING

1/21/22

1

XI

IEP

10/2/2019

22

XII

EMAIL FROM DOE REGARDING DOCUMENTS RELATED TO STUDENT’S SERVICES/ STUDENTS REDACTED

11/30/22

3

Footnotes

[1] While presiding over the instant matter, IHO I granted in excess of 33 extensions.

[2] Parent referenced a closing brief that the DOE may have submitted to IHO I, however the DOE did not produce it for the undersigned IHO and indicated that they would waive closing statements (IHO VI; Tr. 337:6-11)

[3] IHO VII-X.

[4] IHO IV.

[5] U.S.C. § 1400 et seq.

[6] C.F.R. § 300 et seq.

[7] Educ. Law Art. 89 § 4404 et seq.

[8] NYCRR § Part 200.

[9] Regulations implementing Section 504 in the context of educational institutions appear at 34 C.F.R. Part 104. However, as relief in the matter is available pursuant to the IDEA, any claims set forth pursuant to Section 504 are hereby subsumed by the IDEA and will not be addressed separately.

[10] C.F.R. § 104.36.

[11] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf.

[12] Parent’s exhibits F, J, K, L, M, N, and O were withdrawn.

[13] Tr. 93:8-11

[14] IHO I admitted DOE’s exhibits over Parent’s objection (Tr. 154, 156:17-23). DOE’s exhibits are referenced May, August, and October of 2019.

[15] IHO XII and XIII. DOE complied with Parent’s document request (or subpoena).

[16] P-C-1-4; P-E-2; P-CC-1-5; P-DD-9, 12-14; P-EE-1, 18-23; SRO No. 13-225; D-1-21; D-2-1-3; D-3-3; D-4-2; Tr. 93:8-11, 23, 24; IHO-1-VI)

[17] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].

[18] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].

[19] Rowley, 458 U.S. at 203.

[20] NYS Educ. Law § 4404(1)(c).

[21] See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).

[22] See, Endrew F., 137 S.Ct. at 1002

[23] Student’s classification is not in dispute.

[24] P-C; P-G; P-I; P-P-2, 3; P-CC; P-DD; P-EE.

[25] P-DD-10:80-85

[26] Id. at 10:87.

[27] Id. at 13.

[28] Although during cross examination, the BCBA stated that the bank of ABA hours recommended is based upon “literature” rather than data collection, the DOE failed to present any evidence or testimony to refute those recommendations (Tr. 143:12-25).

[29] The BCBA explained that push-in services would allow Student to acquire new skills at an appropriate rate and ensure coordination between his in-school and home-based program that is focused on transition (P-DD-14:123; P-G-4).

[30] D-1

[31] Id at 15-17.

[32] Tr. 142:10-23; P-DD-11; P-DD12:104.

[33] Id.

[34] Id.

[35] See, Endrew F., 137 S.Ct. at 1002.

[36] In response to Parent’s claim that the DOE repeatedly failed to provide Student’s attendance records as well as accounting records, the undersigned IHO issued a document subpoena (IHO IV).

[37] See IHO XII. The email also notes that Student was previously known by the name REDACTED (“Student’s previous name”) See also Document Subpoena (IHO IV).

[38] P-DD-9-14.

[39] See Bellevue letter, P-G-2.

[40] During the Covid-19 Pandemic, Student was unable to engage in remote learning due to the nature and extent of his disabilities. Tr. 125:13-19; 145:1-6; P-G-2, 3; P-CC-1;P-DD-3.

[41] P-EE-19, 20.

[42] D-3-1, 2.

[43] D-4-2.

[44] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.

[45] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.

[46] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.

[47] N.Y. Educ. L. § 4404(1)(c).

[48] NYCRR 200.4(b)(1)(v); 200.4(d)(3)(i).

[49] Broward County Sch. Bd., 110 LRP 38160 (SEA FL 05/07/10).

[50] U.S.C.§ 1401[34]; see Educ. Law § 4401[9]; 34 CFR 300.43; 8 NYCRR 200.1[fff].

[51] U.S.C. § 1414[d][1][A][i][VIII]; 34 CFR 300.320[b]; 8 NYCRR 200.4[d][2][ix].

[52] U.S.C. § 1414[d][1][A][i][VIII]; 34 CFR 300.320[b].

[53] NYCRR 200.4[d][2][ix][a].

[54] NYCRR 200.4[d][2][ix][c].

[55] NYCRR 200.4[d][2][ix][d].

[56] The projected IEP implementation date was recorded as 10/16/2019 and the projected date for annual review was recorded as 10/02/2020 (D-1-1).

[57] CSEs must develop transition services "[f]or those students beginning not later than the first IEP to be in effect when the student is age 15..."]. 8 NYCRR 200.4[d][2][ix].

[58] D-1-17.

[59] The NPS, in a correspondence with the BCBA, notes that skills Student needs in order to transition to a day habilitation program “when he turns 21 years old”, yet no methods for attaining such skills are mentioned (P-EE-19).

[60] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.

[61] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.

[62] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].

[63] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].

[64] The DOE only proffered exhibits referring to the 2019-2020 school year, which were inadequate to establish that a FAPE was provided and which were successfully refuted by the Parent’s witness (the BCBA) and documentary evidence.

[65] Present levels of academic achievement and functional performance. Endrew F., 137 S. Ct. at 988.

[66] Parent’s additional request for “a paraprofessional in school, if necessary, for safety” is denied. The need for this service is contingent upon the findings of the independent evaluations, which are awarded pursuant to #1 of this Order.

[67] Provider set forth rates for ABA services, albeit, for rates applicable in 2019-2020 (P-I-1).

[68] No such relief has been requested in the DPC and is therefore not under consideration before the undersigned IHO, and should not be inferred from the relief granted in these proceedings.