New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 185384

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: July 30, 2019

October 30, 2019

December 2, 2019

January 30, 2020

February 28, 2020

March 12, 2020

Actual Record Close Date: April 15, 2020

Hearing Officer: Linda Agoston

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 30, 2019

Attorney Parent

District Representative (via telephone) Department of Education

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 30, 2019

via Attorney Parent

telephone

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 2, 2019

via Attorney Parent

telephone

via Attorney Department of Education

telephone

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 30, 2020

via Attorney Parent

telephone

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 28, 2020

via Attorney Parent

telephone

via Attorney Department of Education

telephone

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 12, 2020

Advocate Parent

Mother Parent

Associate Director of (via telephone) Parent

via Attorney Department of Education

telephone

On July 23, 2019, I was designated by the New York City Department of Education ("DOE") as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. §1415 and Article 89 of the Education Law of the State of New York in the matter of the Student after several recusals. The Student and the Parent through their attorney who initiated this hearing on July 19, 2019, and corrected their complaint on March 12, 2020. Hearings were July 30, 2019, October 20, 2019, December 2, 2019, January 30, 2020, February 28, 2020 and March 12, 2020. An Interim Order on Pendency was issued on August 1, 2019, when I ordered that the DOE to fund the placement at the (hereinafter The Private School or "TPS") for 2019-2020 school year and to continue transportation to and from TPS throughout the pendency of the hearing.

The hearing was requested by the Parent and alleged the following: (1) that the Committee on Special Education ("CSE") failed to provide an Individualized Education Program ("TEP") since May 2017; (2) that the CSE failed to conduct the required triennial evaluation and (3) that the DOE failed to provide a school placement. The Parent seeks a Final Order for the following: (1) a finding that the Department failed to offer a free appropriate public education ("FAPE") for the 2019-2020 school year; (2) a finding that the violations significantly impeded the Parent's procedural rights under IDEA; (3) direct tuition funding to TPS for the 2019-2020; (4) independent neuropsychological, speech-language, sensory, occupational and assistive technology evaluations and (5) transportation to and from TPS (Exh. B at 2-3). The Parent withdrew her request for speech-language, sensory, occupational and assistive technology evaluations as well as transportation (Tr. at 103). The Parent requested only an _ independent neuropsychological evaluation from a provider selected by the Parent (Id.). TPS provides education to students who are diagnosed with autism spectrum disorder ("ASD") and provides Applied Behavioral Analysis ("ABA") services and speech and language therapy ("SLT") and occupational therapy ("OT") services to educate people with ASD for the 2019-2020 school year (Exh. E at 1). TPS is a private non NYSED approved school and provides 1:1 student teacher ratio for ASD students and is located in , New York (Exh. J at 1).

The parties moved to extend the compliance date in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and the required documentation provided to the parties (Tr. at 105-109; Exhs. /-V/I). The Parent submitted her post-hearing statement on April 15, 2020 and the District submitted her post-hearing statement on April 15, 2020. The actual record close date is April 15, 2020 and the decision due date is April 29, 2020.

Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

BACKGROUND

The Student is a who is classified with Autism and who is attending TPS, (Tr. at 84). The Student was diagnosed with Pervasive Developmental Disorder ("PDD-NOS") and received SL, OT, PT and ABA (4 hours a day) through Early Intervention from August 2012 through 2013 (Exh. D at 2). The Student attended a full-time pre-Kindergarten school at where he was placed in a special class with a staffing ratio of 8:1:2 in a self-contained special classroom with weekly SLT (2x30), OT (2x30), physical therapy (2x30) and counseling (2x30) from the age of 2 until the age of 4 (Id.). At the age of 4, the Student's speech was evaluated by by the Preschool Language Scale-5; however the scale was not completed as the Student did not attend and did not engage (Exh. D at 3). The evaluator made recommendations which included that the Student be reenrolled in ABA and receive additional SLT, and "a developmental feeding and swallowing evaluation, a sensory integration evaluation and an audiological evaluation" (Id.).

On November 15, 2015, when the Student was 4, a neuropsychological evaluation was conducted by evaluators who assessed his cognition general cognitive ability on the Wechsler Preschool and Primary Scale of Intelligence, 4" Edition ("WPPSI-IV") and found his composite score on the Verbal Comprehension Index of 69 was in the^[2]" percentile and the evaluators noted that the Student's "performance on tasks, which required reciprocity and/or language were significantly more difficult for him and many subtests could therefore not be validly administered" (Exh. D at 4). The Student's preacademic functioning was assessed on the Woodcock Johnson Test of Achievement-4" Edition ("WJ-IV") and the evaluators found that the Student performed in the 19" percentile in Letter-Word Identification with a standard score of 87 and the evaluators noted that the Student was able to identify a variety of letter, but was not able to expressively name any letters (Exh. D at 5). The Student's early writing skills were in the indicated that the Student further required repetition and skills to be broken down, visual support and additional time to process information and used "5-6 word phrases to request items" (Exh. G at 5) and was able to read traffic indicators and was working on the ability to "stop" on demand (Exh. G at 9). The Progress Report indicated that the Student required "1:1 support, high rates of reinforcement, and predictability of activities to decrease his interfering behaviors" and exhibited "non-contextual vocalizations, verbal protests, darting, non-contextual hand movements, non-compliance, hand movements, non-compliance, tantrums, and rule-governed behaviors"(Exh. G at 26).

The Student's Behavior Plan dated June 2019 indicated that a token economy was utilized throughout the day as well as a daily picture schedule so that the Student could predict events and make appropriate transitions and organization skills (Exh. H at 2). The Plan indicated that data was collected and graphed daily for the targeted behaviors of non-compliance, tantrums, verbal protesting, darting and non-contextual vocalization / hand movements (Exh. H at 1-5), and the that Student would earn a highly preferred reinforcer positive behavior (Exh. H at 3).

The Student's Speech Progress Report dated December 2019 indicated that the Student received weekly 1:1 SLT (5x45) inside the classroom and that the Student improved receptive vocabulary and was able to understand synonyms for 20 words and could produce up to 7-word sentence spontaneously and was making progress to answering "wh" questions following a story (Exh. I at 1-2) and was able to use the past tense for 17 verbs (Exh, I at 3) and was able to ask for assistance (Exh. I at 4) and able to engage in building circuits using a science, technology, engineering and mathematics ("STEM") toy in the Snap Circuits Jr. class (Exh. I at 5).

The Student OT Progress Report dated January 2020 indicated that the Student received as well as ABA, adaptive physical education, SLT, and OT and that the Student received weekly OT (4x45) and made slow, but steady progress in the domains "sensory processing and self-regulation gross motor skills, fine motor and visual perceptual skills,

THE DISTRICT’S CASE

The District stated that it was not presenting a case and presenting no evidence regarding the Parent's claims that there was a denial of FAPE, (Prong 1) both to the lack of program and placement. With regard to the appropriateness of the parent's placement, (Prong 2) the District asserted that the TPS was not appropriate for reasons outlined below. With regard to Prong 3 the District made no claims that the equities did not support the Parent (Tr. at 100).

THE PARENT'S CASE

The Associate Director testified that she was the Director of the for the past 5 years and that she had a Master's degree in elementary education and special education and held a Master's degree in special education from early childhood to 2TM grade and that she was employed at TPS for the past 18 years and held positions at TPS of classroom teacher and classroom supervisor (Tr. at 48). She recalled that she interacted daily with the Student for the 2019-2020 school year and that she also updated the TPS's IEPs and provided hands-on training and conducted the Assessment for Basic Language and Learning Skills ("ABLLS") assessment for the Student (Tr. at 49). She described TPS as a private school for children with autism with 1:1 ABA instructors, special education teachers, SLT and OT providers all working together (Id). She noted the past 5 years in the with a student population of comprise of 6 classes and that the Student was placed in a class of 5 with similar functioning academic peers (Tr. at 87). She stressed that there were 5 staff members in the class that included 5 ABA teachers and a speech therapist who pushed into the classroom (Tr. at 53), and that the Student was pulled out for OT 4 times per week for individual OT and then received a single group OT (Tr. at 54). She stated that the Student's head teacher held a Master's degree in ABA and was completing the requirement for a national certification as a Board Certified Behavioral Analyst ("BCBA") and the NYS certification as a Licensed Behavior Analyst ("LBA") and that another teacher held a Master's degree in special education and was completing the requirements for ABA certification and another teacher held Master's degree in health services and was completing the requirements for a BCBA certificate and was a registered behavior technician and also that the speech therapist was part of the Student's classroom staff (Tr. at 56).

The Associate Director described the Student as an engaging child who loved to interact with others, but had difficulty with attending and maintaining for long periods of time (Tr. at 57). She explained that TPS taught skills across all domains including academics (reading, math, science and social studies) and ADL skills to use the urinal appropriately and to wash his hands with 1:1 support and that the teachers rotated their work with the Student every 45 minutes to generalize skills across the staff members (Tr. at 58-59). The Student's primary case manager held a Master's degree in ABA and was completing her BCBA and LBA requirements and was responsible for compiling, graphing and monitoring the Student's progress by tracking the daily data sheets and charting progress and then conveying the progress to the staff and parents to ensure that progress continued and to create materials and behavior plans (Tr. at 61-62).

The Associate Director explained that the students in the Student's class received 1:1 academic instruction and that the class was together for meals, snacks and story time in the literacy center, physical adaptive education, STEM, yoga and sensory time (Tr. at 64). She noted that for reading in decoding, the classroom teacher used "Recipe for Reading," an Orton-Gillingham reading based program (Tr. at 59). She noted that math was taught by the 5 ABA classroom instructors and that the "Harcourt math" curriculum was used (Tr. at 65) and that 1:1 writing was worked on during the Student's weekly 1:1 OT (4x45) sessions and in the classroom when the OT pushed into the classroom for 45 minutes as well worked by the 5 ABA teachers in the literary center and the writing center (Tr. at 66).

The Associate Director stated that the Student's SLT and OT providers were NYS certified and that OT was worked in the physical adaptive therapy gym and that the OT providers worked on the Student's fine motor tasks, executive functioning skills, attending skills and self-regulation (Tr. at 67-69). She stated that the speech therapist pushed into the classroom and that the Student received weekly 1:1 SLT (5x45) to initiate interaction with a peer and to develop his listening skills and to maintain attention (Tr. at 68). She opined that the Student progressed by his OT in his ADL skills as he was able to tie his shoes, copy print lower and upper case letters and that he progressed in his comprehension by his ability to answer "wh" questions and that the Student progressed in his receptive skills to follow a 2-step command without distraction from no ability in July 2019 to the ability to retrieve an item and place the item in the correct bin with a teacher shadowing 2 to 3 feet away (Exh. G at 2;Tr. at 72). She opined that the Student progressed in his expressive skills and was able to consistently label simple pictures, actions and identify new colors and that he progressed in his ability to generate more language just by viewing a picture of the beach instead of fixating a single detail (Tr. at 74). She stated that progress was assessed with formal progress reports in July 2019 and December 2019 and that the case manager contacting the Parent daily with emails of the progress that the Student (Tr. at 76). She opined that TPS was an appropriate placement as the Student required 1:1 intensive teaching by the teachers and that he required that the teachers break down all skills into discrete steps and required 1:1 instruction to ensure that the Student would not fixate on a detail instead of the task (Tr. at 77-79). She stressed that because staff at TPS was able to lengthen the Student's ability to attend and to decrease the Student's fixation he was able to acquire more skills (Tr. at 80). She stated that the Student's Behavior Plan (Exh. H) was generated at start of the school year and was required because the Student had interfering behavior and that the Plan amended throughout the school year to enable the Student to acquire more skills (Tr. at 82). She explained that staff had a minimum of a Bachelor's degree and had experience in ABA or special education (Tr. at 83) and that only students classified with autism attended TPS and the staff had ongoing training to review behavior protocols and behavioral plan implementation weekly with the supervisor (Tr. at 84) and that the student population was assessed by the ABBLS and that the skills were assessed across all domains to ensure that no student reached plateau without the creation of new targets (Tr. at 85). She stated that an IEP was developed in the beginning of year and that the IEP was amended and that TPS did not use the common core curriculum and that the academics were taught with different instructors and opined that the Student functioned in a 2" grade level in reading and math and that all the students in his class functioned on the same level (Tr. at 87).

The Parent testified regarding her son's educational history in early intervention with ABA and recalled that he then attended a center-based school with ABA (Tr. at 97). She noted that the last time she participated in the IEP meeting was in 2017 (Tr. at 90). She stated that she signed a consent form for evaluations, but that the DOE did not conduct any evaluations and that she wrote a letter requesting evaluations on July 2019 (Exh. C) and that there was no response (Tr. at 91). She stated that she participated in all prior IEP meetings and opined that her son progressed academically, physically and socially during the 2019-2020 school year in his ability to attend his environment and not step on people (Tr. at 94), and in his ability to convey his wants and needs and he progressed in his ability to verbalize in context and related his statements to classroom instruction and was able to say that ice is a solid based on a classroom lesson about solids, liquids and gases (Tr. at 96).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written JEP (34 C.F.R. § 300.13). "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances...." and "a student offered an educational program providing 'merely more than de minimis progress' from year to year can hardly be said to have been offered an education at all" (Endrew F. v. Douglas County School District, 580 U.S. _ (2017), 2017 WL 1066260 [March 22, 2017]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (/d. at 130). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s 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. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

Prong I

I find that the District presented no witnesses or evidence to establish that FAPE was offered for the 2019-2020 school year. I find that the SRO has found that allegations that are left unchallenged are deemed as true. (See Application of a Student with a Disability, Appeal No. 01-044). I find the evidence in the record is consistent with the allegations. I find that the District did not defend Prong | of the Burlington/Carter test for reimbursement/prospective funding and did not contest any allegations contained in the due process complaint including allegations concerns the lack of program and placement and I find that the violations significantly impeded the Parent's procedural rights under IDEA (Tr. at 100).

Accordingly, I find that FAPE was not offered for the 2019-2020 school year and the Parent prevailed on the Prong 1.

Prong 2

When a public school system has failed to provide FAPE, as is the case here the program and "services chosen by the parent are "proper under the Act" if the education provided is "reasonably calculated to enable the child to receive educational benefits." Carter, 510 U.S. at 14. Although the parents bear the burden of proof with regard to the services obtained by the parents for the student, they are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2"! Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364. "Ultimately the issue turns on whether a placement...is 'reasonably calculated to enable the child to receive educational benefits. [internal citations omitted] ...", Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

I find that the testimony and evidence adduced at the hearing demonstrated that the Student's placement at TPS in very small, highly therapeutic settings supported his communication deficits, his behavior and his attention difficulties and enabled the Student to be progress academically, behaviorally and socially (Tr. at 72-75Exh. G). I find that the Student made meaningful progress in a variety of areas. I credit the testimony of the Associate Director and find the students in the Student's class were academically and functionally grouped (Tr. at 87). I credit the testimony and find that the ABA therapists, SLT and OT providers worked together to address the Student's deficits as the staff at TPS taught skills across all domains including academics (reading, math, science and social studies) and ADL skills and that the teachers rotated while working the Student every 45 minutes to generalize skills across the staff members (Tr. at 58-59). I credit the Associate Director's testimony and find that the Student progressed by the OT providers in his ADL skills to tie his shoes, to use the urinal and to wash his hand as well as he progressed in his ability to copy and print lower and upper case letters and that his comprehension improved by his ability to answer "wh" questions and that the Student progressed in his receptive skills to follow a 2-step command without distraction from no ability in July 2019, and then had the ability in December 2019, to retrieve an item and place it in the correct bin to the ability to do so with a teacher shadowing 2 to 3 feet away (Exh. G at 2;Tr. at 72). I credit the testimony and find that the Student progressed greatly in his expressive skills and was able to consistently label simple picture, actions and identify new colors and that he progressed in his ability to generate more language just by viewing a picture of the beach instead of fixating a single detail (Tr. at 74). I find that the Student's communication improved as he was better able to express his wants and needs and find that because TPS lengthened the Student's ability to attend and decreased the Student's fixation he was able to acquire more skills (Tr. at 80). I credit the testimony and find that the Student's Behavior Plan (Exh. H) was generated at start of the school year and was required because the Student had interfering behavior and I find that the Plan was amended throughout the school year to enable the Student to acquire more skills (Tr. at 82). I credit the Parent's testimony and find that her son progressed academically and emotionally as he was able to take in his environment and to attend and that his writing had improved and that his comments were now related to the topic and comments out of context. (Tr. at 94). I find that the goals were worked on and that data was collected daily and that the skills were assessed across all domains to ensure that when the Student reached plateau a new target was added to the IEP (Tr. at 87).

The uncontested testimony and evidence established that Student's issues were addressed by the use of 1:1 ABA programs and I find that TPS placed an emphasis on academic skills, ADL skills and social skills development and that socialization occurred throughout the day and in dyads and in groups (Tr. at 70-80;Exh. F at 1). I find the daily data collection and behavior plans addressed the Student's interfering behavior. I find that the OT provider addressed the Student's sensory needs to improve focus, fine motor and ADL skills (Tr. at 67-69.). I find that the staff of ABA teachers, BCBAs, LBAs and related service providers enabled the Student to progress and to generalize skills and I find that the 1:1 ABA and the speech and OT providers improved comprehension and fine and gross motor development. I find that the staff TPS addressed his unique special education needs and his distraction issues and his interfering behavior. I find that the Student progressed in academics, behavior and his ability to attend.

The District made only 3 claims with regard to the appropriateness of the Parent's placement: (1) the Student did make academic progress and (2) that TPS did not meet the least restrictive environment requirement ("LRE") and (3) that TPS did not follow the NYS minimal amount of annual instructional hour requirement (Exh. VIII at 4-6).

As to progress:

Although progress is a relevant factor, Gagliardo, 489 F.3d at 115, a finding of progress is not required for a determination that a student's unilateral placement is adequate. Scarsdale Union Free Sch. Dist. V. R.C., 2013) WL 563322, at *9-*10 [S.D.N.Y. Feb. 4, 2013]; see also Frank G., 459 F. 3d at 364.

As discussed above I find that the Student made meaningful progress in a variety of areas. I credit the testimony of the Associate Director and find that TPS taught skills across all domains including academics (reading, math, science and social studies) and ADL skills and that the teachers rotate working the Student every 45 minutes to generalize skills across the staff members (Tr. at 58-59). I find that the 1:1 ABA instruction across multiple teachers and the use of multi-sensory techniques of visual supports of schedules, multi-sensory curricula, the breaking down of skills into the small steps and the use of the token system addressed the Student's distraction issues and increased social interaction by decreasing non-contextual vocalizations and decreased maladaptive behaviors (Exh. G at 1).

I credit the Assistant Director's testimony and I find that the Student's unique special education needs of staying engaged and I find that he progressed academically in reading, writing and math (G at 4,9-10) and that he progressed socially and emotionally in his ability to tolerate making a mistake (Exh. G at 8). Further I note that no one factor is necessarily dispositive in determining that the private placement is reasonably calculated to enable the child to receive educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982).

As to LRE:

Although the restrictiveness of a parental placement may be considered as a factor in determining entitlement to an award of tuition reimbursement, parents are not as strictly held to the standard of placement in the LRE as are school districts. C.L. v. Scarsdale UFSD, 744 F. 3d 826, 830, 836-37 (2d Cir. 2014); see Carter, 510 U.S. at 14-15; M.S, 231F.3d at 105 and "the totality of the circumstances" must be considered in determining the appropriateness of the unilateral placement, Frank G., 459 F. 3d at 64. Under Frank G. and Gagliardo and the unilateral placement is a not perfect placement. M.S.. ex rel SS. v Bd. Of Ed., 231 F.3d 96 (2d Cir. 2000). I find that TPS was appropriate to meet the Student's special education needs including his academic, social and emotional needs. In the circumstance here even if TPS did not meet the LRE requirement, that fact did not render TPS inappropriate.

As to minimum annual instructional hour requirement: Evidence adduced at the hearing established that the Student had executive functioning and comprehension issues as the WPPSI-IV, the W-J IV and the CAR-2 scores indicated deficits in language and communication, reciprocity, attention, and selfdirection, all of which interfere with his daily functioning (Exh. D at 4-6). I find these issues were addressed by presenting material both verbally and visually and I find that the Student's focusing and attentions issues were addressed by 1:1 ABA instruction the large staff to student ratio, the preferential seating and checks-ins. Testimony adduced at the hearing clearly demonstrates that TPS provided a small structured therapeutic environment. The parents asserted that TPS was appropriate because the Student had made progress at TPS (Exhs. G,I,J). The evidence presented from the Parent indicated that focusing, academics and interacting with his peers were issues for the Student and I find testimony adduced at the hearing established that educational program includes academic instruction in reading, writing, math, science and social students as well as instruction in receptive and expressive language, community skills, social and leisure skills, daily living skills and behavior skills (Exh. G). I find that the Student struggled with attending both by the inability to maintain attention and attending too intently on minute details. I find that the 1:1 ABA instruction by lessons held in 45-minute increments and the 5 rotating instructors for each session allowed generalized across staff and addressed his multiple attention issues (Tr. at 59-60). I find that the Student's special education needs were met by classroom instructors who were trained and taught to implement his individual educational program across multi-sensory tools ensured that the Student's deficits in reading, math writing were addressed. I credit the testimony and I find the Student's teachers met his needs in communication, reading, writing and math with the ABA and special education strategies. I credit the testimony and I find the Student was grouped appropriately for his academic needs and his social development at TPS (Tr. at 78). Accordingly, I find that the Student's academic, physical, social and emotional needs were met at TPS. Therefore, I find that the Parent met her burden regarding the unilateral placement of the Student at TPS for the 2019-2020 school year and the program at TPS met the Student's unique special education needs.

Therefore, I find TPS was an appropriate placement. Based on the foregoing, I find the Parent satisfied the Prong 2. Prong 3 I find that the District did not raise any Prong 3 claims. Further, the evidence shows that the Parent cooperated with the CSE and appropriately and timely notified the district as to her concerns (Tr. at 91; Exh. A at 2).

I find the testimony adduced at the hearing established that the Parent cooperated with the District. I find the Parent established that she was unable to pay to the tuition by her uncontested testimony. I find that parents who have satisfied each of the Burlington factors. have a right to retroactive direct tuition payment relief (A ex. rel D.A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-429 (S.D.N.Y. 2011). I find that the Parent provided detailed and uncontradicted information as to her lack of financial resources to pay the tuition as the sole earner in her family (Tr. at 93). I credit the Parent's testimony and I find that the Parent lacked the financial resources to pay tuition for TPS for the 2019-2020 school year and it would be a hardship to pay the full tuition and wait for reimbursement. I find the parent met the Connors criteria for prospective funding for the cost of the tuition for the 2019-2020 school year at TPS and I find that the Parent is entitled to direct retroactive payment. "Once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately" (Connor v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y)).

IEE

As to the claim for prospective payment for the private evaluation of the an independent educational neuropsychological, I find that the DOE failed to appropriately and timely respond to the Parent's request for an Independent Educational Evaluation "IEE"). The Parent argued that "the Regulations of the Commissioner of Education §200.5(g)(1)(iv) state; 'If a parent requests an independent educational evaluation at public expense, 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.’ In the instant matter, the DOE failed to comply with its own regulations, failed to authorize the IEE and did not initiate a hearing" (Exh.X7 at 8). I find that the Parent requested an IEE fora neuropsychological evaluation on July 19, 2019 (Exh C). I find that it was undisputed that the DOE did not timely evaluate the Student. Under the Jose P. Order, "parents of handicapped students who have been referred for evaluation and who have not been evaluated within thirty days may obtain an independent evaluation". I find that the District did not file an impartial hearing request defending their failure to evaluate. 34 C.F.R. § 502 (b)(2)G); 8 NYCRR 200.5(g)(1)(v). Based on the foregoing, I find the Parent is entitled to funding for an independent educational neuropsychological evaluation by a provider selected by the Parent.

Order

It is ordered that the DOE provide prospective payment of $159,700 for the tuition at TPS for the 2019-2020 school year upon proof of attendance within 30 days of the submission of proof of attendance and provide payment for an independent neuropsychological evaluation by a provided selected by the Parent.

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

Dated: April 23, 2020

PLEASE TAKE NOTICE

The Parents and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO THE RECORD ON JULY 30, 2019

A. Due process complaint, 7/19/19, 4 pp.

B Final decision and order, 10/5/17, 24 pp.

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 30, 2019

I Decision on extension, 9/6/19, 1 p. IHO

I Decision on extension, 10/30/19, 1 p. THO

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 2, 2019

Il Decision on extension, 12/2/19, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 30, 2020

V Decision on extension, 1/30/20, | p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 28, 2020

VI Decision on extension, 2/28/20, 1 p. THO

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 12, 2020

Ten-day notice, 6/24/19, 2 pp. Parent

mwehne.

Due process complaint, 7/19/19, 4 pp.

Parent's letter to CSE with fax confirmation, 7/19/19, 2 pp.

Neuropsychological evaluation, 11/15/15, 12 pp

Program description, undated, 1 p.

tmSoacto

Enrollment contract, 2019-2020, 3 pp.

IEP progress report, 19/'20, 30 pp.

Student behavioral plan, 2019-2020, 7 pp.

Student speech-language progress report, 2019-2020, 5 pp.

Student occupational therapy progress report, 2019-2020, 8 pp.

Decision on extension, 9/6/19, 1 p. THO

Decision on extension, 10/30/19, 1 p. THO

IT Decision on extension, 12/2/19, 1 p. THO

IV Decision on extension, 12/3019, 1 p THO

Decision on extension, 1/30/20, | p. THO

VI Decision on extension, 2/28/20, | p. THO

VI Decision on extension, 3/12/20, | p. THO

POST HEARING SUBMISSION

VIIT District's Closing Brief, 4/15/20, 7 p. IHO

IX Parent's Closing Brief, 4/15/20, 9 pp. IHO

Footnotes

[2] TM percentile as the Student was unable to trace any letters or spell any words and his early mathematical problem-solving score was in 3% percentile as the Student was only able to "label quantities by pointing to the appropriate image" (Exh. D at 6). The results of the Childhood Autism Rating Scale, 2"' Edition ("CARS-2"), indicated that the Student met the criteria for ASD (299.00) with severe symptoms as "impairments were found in a social interaction, communication, and restricted and repetitive patterns of behavior (Id.). The evaluators noted that the Student continued "to have significant deficits in language and communication, reciprocity, attention, and self-direction, all of which interfere with his daily functioning as well as his availability for learning and ability to communicate with others" (Exh. D at 7). The evaluators recommended a highly structured, full time special education program with a small student to teacher ratio and strict 1:1 ABA with certified instructors in ABA and a behavior plan to increase the likelihood to positive behaviors and 1:1 ABA based SEIT support for 15 hours per week to make appropriate progress and not regress as well as OT (2x30), PT (2x30) and an augmentative communication device as well as ST (2x30) to increase functional communication and decrease frustration (Exh. D at 8). The Parent's enrollment contract indicated that the cost of tuition for TPS was $159,700 for the 2019-2020 school year (Exh. F at 1). A December 2019 Progress was conducted when the Student was 9 years old and indicated that the Student required a highly structured setting utilizing ABA with 1:1 instruction "to acquire and maintain skills across all domains" (Exh. G at 1). The Report and self-care" (Exh. J at 8). The OT provider indicated that "the underlying deficits include find motor control and dexterity, hand strength and endurance, visual perceptual that all the students received 1:1 ABA and that the Student had been placed at TPS for skills, bilateral hand use, motor coordination, inattention, heightened arousal, safety and body awareness, and balance" (Id.). On June 24, 2019, the Ten-Day Notice ("TND") indicated that the Student was 9 and classified with Autism with "significant deficits in language, communication, attention, reciprocity, impulsivity, sensory-seeking and behavioral concerns" and required 1:1 ABA instruction and that without a program or placement that the Student would continue the placement at TPS for the 2019-2020 school year (Exh. A at 1).