New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 191554

Student's Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: 06/15/2020. & 06/18/2020

Actual Record Close Date: 07/08/2020

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/15/2020

For the Student:

ESQ., Attorney (Via Telephone)

Parent (Via Telephone)

Principal, (Via Telephone)

Observing (Via Telephone)

Observing (Via Telephone)

For the Department of Education:

District Representative (Via Telephone)

social Worker, (Via Telephone)

school Psychologist, (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/18/2020

For the Student:

ESQ., Attorney (Via Telephone)

Parent (Via Telephone)

BCBA (Via Telephone)

For the Department of Education:

District Representative (Via Telephone)

INTRODUCTION

On 05/29/2020, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Hearing was conducted on 06/15/2020 and 06/18/2020.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Parent filed Due Process Complaint (DPC), dated 12/13/2019. (Ex A)

Hearing Request alleges the DOE failed to offer the Student a Free and Appropriate Public Education (FAPE) for the 2015-2016, 2016-2017, 2017-2018, 2018-2019 & 2019-2020 school years. (Ex A 1)

Parties has brief discussions regarding Statute of limitations (SOL). IHO advised the Parties that the school years of 16-17 through 19-20 would be considered as part of the matter, since the DPC would pull in the school years as far back as 17-18. These years, if the Parent allegations are correct, would allow consideration of sought after relief. (T 12-14, 19) Parent seeks relief that includes:

* Relief requiring the DOE to directly fund [Student]’s, 19-20 tuition, at in the amount of $107,000.0; and

* Relief requiring the DOE to (i) reimburse for the cost of an initial assessment in the amount of $1500.00, and (ii) fund 10 hours per week of home-based services, to be provided by at arate of $125 per hour. (Ex A 11)

Parties were given time to submit any post hearing Brief or documents they felt were needed to complete the record. (THO Ex IT & III)

Parent sets forth Student educational history in DPC and via Closing Brief. (Ex A & IHO I)

Student educational profile is summarized: “medical profile is complex; she is diagnosed with tuberous sclerosis complex, seizure disorder, traumatic brain injury, global developmental delays, intellectual disability, and autism. See Tr. 111; Ex. M; Ex. J-1—J-4. These conditions have a “global and profound” impact on [Student]’s behavior, adaptive functioning, academic abilities, and social-emotional needs. See Ex. J-2, J-4.” (THO Ex 2)

Autism has a profound effect on her education, whereby behaviors impeded education: “autism in particular has impeded her educational progress. She is “generally non-verbal,” struggles with social reciprocity, and “exhibits stereotyped/repetitive behaviors.” Ex. J-2. [Student] has also developed aggressive and “maladaptive” behaviors, including hitting, head butting, throwing objects, screaming, and shrieking. Tr. 113:9-12; Ex. J-4. As [Parent] explained, these behaviors “impact [[Student]’s] ability to learn and her ability to socialize with peers,” and have hampered her educational progress. Tr. 113:1—5.” (THO Ex II 3)

THE PARENT’S POSITION

Parent Attorney set forth the basic Parent position, via DPC. (Ex A)

Though Parent believes home ABA is appropriate for the Student, it is not being received, for the 19-

20 school year.

“The student has not been receiving home-based ABA for the '19/'20 school year. So the parent is not able to afford the cost of those services on her own. So [Student] has not been receiving the home-based services.” (T 15)

Parent presented several witnesses, whose testimony is outlined below. , Principal, (Via Telephone), testimony included: Qualifications of “a master's degree in speech-language pathology. I have a master's degree in educational leadership. And I have a license from the New York State in both of those areas.” (T 78); As Principal witness oversees: “operations of the school, going into the classrooms and observing, working with the teachers, working with the therapists. I am the primary liaison for more global issues with the parents. I am the first person that the parent will meet coming into the school, so I'm in charge of all the tours and the intakes. I work with any community partners that we have. Just all of the dayto-day operations of running a special needs school, I am involved with.” (T 78-79); is a small school: “...we had 41 students this year. We're located in the section of . We specialize in working with kids with developmental disabilities and one of those, of course, would be autism. We're a one-to-one program. And the two main methodologies that we use are applied behavioral analysis, otherwise known as ABA, and DIR, developmental, individual, relationship-based therapy, otherwise known as DIR, although some people refer to it as the Floortime method.” (T 80); uses Floortime and ABA methodologies. (T 81-82); classroom characteristics include: “There is a master's level teacher. There is a teacher's assistant, who is typically somebody working towards their master's degree in any of the fields related to special education. There are classroom instructors, and they could be at different levels of their education, but we're wanting people that are looking to go into this field because they really come to get the extensive training that we offer. And then we have all the related-service providers that work within a classroom on a rotating basis...So if there are six students in the class, there are always five dedicated staff plus one relatedservice provider, so it rotates, so somebody will always have either speech, or OT, or Floortime, or music therapy, art therapy, whatever it is. And that could be within the classroom or out of the classroom.” (T 83); Witness reviewed the admissions process (T 84-86 & 87); Initial impression of Student included: intense behaviors, transitioning concerns, academic markers were not met, and need for a communication device to target communication concerns and decrease behaviors. (T 86); At the Student had a Behavior Plan, manipulatives, visuals in place for her to start (T 87); Student was aggressive, hitting and screaming at first (T 88); Student behavior improved: “Dramatically. Significantly. From the beginning of the year to March, when we went remote, I would say most of the off-task behaviors... were already extinct, meaning that they weren't happening at all anymore, and the few that were remaining, the one or two that were remaining, were at such a low frequency and duration that we did, of course, continue the behavior plan, but I really felt that we had addressed some of the underlying pieces that were causing the behaviors...and that we had been very successful in getting her to a place that she was regulated and attentive and could learn...because if you don't have that, you can't even get to the learning piece.” (T 88-89); Witness reviewed Student program: “very structured routine”...ADLs, daily schedule, work to decrease anxiety, academics and related services (T 89-90); Class ratio is important for Student who does not do well with noise nor too many things happening around her; “For her academics, there is never more than one or two other students working in the room at the same time. We do have other therapy and treatment rooms that we can bring students to so we can always decrease or increase the ratio dependent upon, you know, where a student's regulation is.” (T 90); Student receives ABA therapy incorporated throughout the day (T 91); Regarding the necessity of ABA for the Student: “She definitely needs it. There is no question about it. There are so many competing factors for this young lady, and in the absence of a highly, highly structured academic setting, she is not going to make progress academically.” (T 92); Behavior Plan is set forth as Exhibit U, of which communication device is a part: “So her device was really transformative for her, as you can see here in this statement, as well as all of the sensory and regulation pieces...which is changes in the environment and making sure she's getting the sensory input and making sure that we're there to respond to her communication initiations...” (T 93); Witness identified Student Progress Report, with goals for the 19-20 school year, and notes progress in several areas, as reflected in Report (T 94-99, Ex V); Witness reviewed Remote Learning Plan (T 99-100); Placement in a class ratio of 12:1:4 would not have been appropriate for the Student: “Too many students. Too many moving parts. Not enough individualized learning.” (T 101); Student was not appropriately placed prior to : “With the amount of behaviors and the lack of academic skills, and as you pointed out, the toilet training, the lack of her ability to even ask for the -- for the bathroom and still be in Pull-Ups, the answer is no.” (T 101); Student needs ABA at home for generalization and maintenance, and would be a tremendous benefit to the Student (T 101).

, Parent (Via Telephone), testimony included:

Attendance at all Student IEP meetings (T 110); Student medical history includes seizures, tumors, as well as traumatic brain injury (T 111); Student continues to have seizures, and cause regression as well as affect behavior (T 111-112); Student Autism affect behaviors, which impacts her ability to learn and socialize (T 113); Maladaptive behaviors includes hitting, throwing objects, and screaming (T 113); Referring back to summer of 2019: Student was mostly non verbal, communicating with gestures and pointing (T 114); Student was able to ambulate with one on one supervision (T 114); Student needed supervision with all ADLs, which have now improved (T 114-115); Student was not toilet trained (T 115); was not working with Student on potty training, though para was (T 115); Student received special education services since early intervention (T 116); At Student class had 12 students, 1 teacher and 4 to 5 different adults in the room (T 116-117); Witness describes class, relative to Student: ’The students were kept in the same classroom all day and expected to sit in their chair, which for [Student] was a struggle... They were given handouts and worksheets with no adaptive way, at least for [Student], nothing was adapted in a way that she could really understand what was being given to her or expected of her, not only in the classroom but also sent home as homework...she didn't have any -- she had a Dynavox, which was a device given -- and worked on with a speech therapist, , at the time. And it worked for maybe a year, but it wasn't really intuitive or really formulated, I feel, for [Student]'s needs. So she couldn't really understand it... And that was never written into her IEP to be used. So no training was given to any of the staff or her para, and it wasn't used as part of her curriculum. So she was kind of lost, I feel.” (T 117); Witness shared Student Autism diagnoses with , and was told it would not change the IEP nor services (T 120-121); Parent has sought additional Student services relative to the Autism diagnoses, and requested a Functional Behavior Assessment (FBA) (T 121); Behavior Plan was developed, and effective in minimal ways, but not in impacting Student ability to learn (T 122); ABA services were requested several times, and Parent as told that recommendation could not be made (T 122-123)

Student displayed maladaptive behaviors over the years (T 124); Witness asked for different Student placement and did see some other placement in the past, but none were suitable, lacking ABA (T 125); For the 17-18 school year, Parent sought an independent neuropsychological evaluation, completed 02/12/2018 (T 126, Ex J) Asked why evaluation was obtained: “We were trying to obtain a suitable free and appropriate education for [Student] because we felt like it was beyond the time period where it was detrimental to both, presently and, even more so, in her future.” (T 127); Agreement with findings and recommendations of evaluation, which were shared with Student’s school (T 127-129, Ex J); Agreement with recommendations contained in Doctor Letter, which was shared with the DOE (T 130-131, Ex I); Evaluations were shared with IEP meeting in spring of 2018, where she was told it could not be used (T 133); No educational progress during the 17-18 nor 18-19 school years (T 134); IEP meeting was held for the 19-20 school year (T 134); Parent attended and requested ABA therapy, and was advised the DOE cannot make such a recommendation (T 134-135); Same recommendation was made as previous years with no change in goals nor methods (T 136); Parent sought and received an independent behavioral evaluation (T 137, Ex H); Agreement with recommendations of the evaluation (T 138-139, Ex H); Regarding the need for home ABA services: “Well, I feel like if -- that is sort of like what [Student] needed for so many years. So in some ways, we're just trying to either do -- not even restorative but very ageressive, intensive approach to get her close to where her baseline should have been.” (T 39) Student needs home ABA services to address Autism (T 144-145); Enrollment at for the 19-20 school year: “Well, we were looking for a long time for schools with programs that would actually help [Student] with different scientific approaches -- Floortime, ABA, small class sizes, one-on-one instruction. And once we found , actually my sister, who is a BCBA, told me about it, and I looked into it -- we just -- it felt right. It felt like that could be the school that would be right for [Student].” (T 140); Witness continued: “They have the extra-curriculars for the children, and they really focus on building a relationship with the family and independence and potty-training. Like, that was like the -- they -- they were really proactive about working on that with [Student]. And they took a chance with [Student].” (T 141); To meet Student needs, , came to the Student’s home for training with the behavior plan, initiated 1:1 instruction and used Student device (T 141-142); Student has made academic progress at : “they really meet [Student] on the level of where she is to get her to her goals and her targets. So she made significant progress, which she has made especially in the area of speech.” (T 142); Student, at , happily goes to school, has meaningful social relationships with peers and staff, is NOW using up to three word sentences, and uses her device without prompt to request her needs throughout the day. Student is also independent in using the bathroom (T 143); provides Student related services (T 143-144); Student behavior has improved at : “the issues that were there for the maladaptive behaviors have been so efficiently worked on with the behavior plan that was formulated for [Student]. Not to say that there is never an incident with behavior. But it is at least 80 percent less, if | were to put in a percent, or 85 percent less because she can now communicate and speak, and she's not dealing with those frustrations of not being able to get what she needs or say what she needs.” (T 144); Parent testifies she cannot afford the Tuition, of about $100,000.00 (T 145-146).

, BCBA (Via Telephone), testimony included:

A review of her qualifications (T 158-164); Testimony as to ABA methodology, including: “So ABA is a data-driven program, and it has a couple of components. Primarily, it is a function-based program that behaviors are a product of their function, whether that's to get something they want, to get out of work, sensory overload, emotional breakdown, whatever, there's a reason that we all do certain behaviors...So the first part of ABA is kind of trying to hypothesize what that behavior is. And we will conduct assessments and observations, and there are a few programs out there where you kind of say when it happens so we can kind of see what it is. And then developing a plan that replaces those behaviors with the behaviors that are more appropriate but meet the same need” (T 164, 164-167); Completion, and review of her Student ABA Assessment (T 169-176, Ex H).

DEPARTMENT OF EDUCATION POSITION

DOE Representative appeared at Hearing of 06/15/2020, and presented two witnesses.

, social Worker, (Via Telephone), provided testimony that included:

Familiarity with the Student, as a social worker (T 26); participation in the 18-19 and 19-20 TEP meeting (T 27, Ex B & C); Student class size and services were reviewed (T 28-30); witness reports hearing of Student progress (T 31); ABA is not used at (T 31); student has made steady progress over the years (T 33); witness was not part of any Student progress reports. (T 39).

, school Psychologist, (Via Telephone), provided testimony that included:

Familiarity with the Student via providing counseling services and creating Behavior Plan (T 43-44); witness notes significant progress of Student “Once counseling began, we had a routine and she, you know, it took some time to begin and start seeing that progress. It definitely took the first year of counseling was where that big progress first started. It took about a year for her to learn the routine and what we were going to do together. But since then there has definitely been progress each year in the skills we were working on (T 44); witness provided Progress Reports and Behavior Plan for IEP meeting of 04/05/2019 (Ex 45, Ex B); witness formulated the goals for counseling contained therein (T 48, Ex B 7); for IEP of04/25/2018, witness did not see his goals therein (T 50, Ex C); witness did see his counseling goals in IEP of 05/05/2017 (T 51-51, Ex D 9); witness believes the Student met the goal regarding her communication device (T 51); witness states there was a “very big increase in her academic skills” during the 18-19 school year (T 56-58); all progress reports are provide to the Parent (T 63 & 66, Ex O); witness believes Student made progress “She has improved significantly from when I first began working with her -- considerably a different child over the years. Much more focused, much more sensory regulated, much calmer, much more active -- providing much more active participation within sessions, within her classroom setting, within the school” (T 64); Student behavior has improved (T 64-65).

DOE sought to support its position via Closing Brief. (IHO Ex III)

DOE’s contention therein that the Student was offered a FAPE for the school years in question, is not supported by the evidence, as reviewed below.

FINDING OF FACTS AND DECISION

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 (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). '"[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an JEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007)).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E] [ii]; 34 CFR 300.5 13[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an [HO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an JEP that is ‘likely to produce progress, not regression,’ and .. . affords the student with an opportunity greater than mere 'trivial advancement" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.1 14[a][2][i], 300.116[a][2]; 8 NYCRR 200. 1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; 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 includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "academic, developmental, and functional needs" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][1], [2][;][A]; 8 NYCRR 200.4[d][2][i1i]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her 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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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 (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "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 (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][11]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; 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; Walczak, 142 F.3d at 129). 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 (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 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 [dl]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["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 appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

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. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents’ claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that 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, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][i11]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"}).

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 their removal of the student 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" (20 U.S.C. § 1412[a][10][C][iu|[1]; see 34 CFR 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" (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 reimbursement in cases where it was shown that parents failed to comply with this statutory provision (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]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2017-2018, 2018-2019 & 2019-20 School Years

DOE presented two witnesses, and Closing Brief, seeking to defend its offer of FAPE.

In part, the DOE contends, the IEP “team did not constrict her learning to one specific program. The school utilizes a specially designed instruction model to break down and assist each individually on using the curriculum with the individual student.” ([HO Ex II 2)

However, there is evidence that, over the years, the IEP team considered neither alternate programs nor methodologies, as sought by the Parent, as discussed further below.

One witness testified to hearing about Student Progress (T 31); and that Student has made steady progress over the years (T 33); however, witness was not part of any Student progress reports. (T 39).

Another witness testified to familiarity with the Student via providing counseling services and creating Behavior Plan (T 43-44); witness notes significant progress of Student. (T 44)

However, as outlined further below, one IEP lacked Counseling goals. (T 50, Ex C)

Witness did see his counseling goals in IEP of 05/05/2017 (T 51-51, Ex D 9); and witness believes the Student met the goal regarding her communication device (T 51); and states there was a “very big increase in her academic skills” during the 18-19 school year. (T 56-58)

Witness concludes that the Student “She has improved significantly from when I first began working with her -- considerably a different child over the years. Much more focused, much more sensory regulated, much calmer, much more active -- providing much more active participation within sessions, within her classroom setting, within the school” (T 64); Student behavior has improved (T 64-65).

No document was presented that indicated specific progress.

A review of the documents below evidences a lack of progress, contrasting with the testimony of the witnesses. Items BOLDED for emphasis. B 2019-20 Individualized Education Program April 5, 2019: Classification: Multiple Disabilities (Ex B 1); Includes Autism: (Ex B 1); Behaviors: include spitting and aggressive behavior (Ex B 1); angry and upset (Ex B 3); Behavior Intervention Plan Recommended (Ex B 5); Recommendation: 12:1+4 NYS Approved Day Program, Counseling, Occupational Therapy, Physical Therapy and Speech Language Therapy, and paraprofessional (B 15-16); Instructional Functional Level for Reading and Math at Pre Kindergarten (Ex B 19); Note: No actual Behavior Intervention plan is presented.

C 2018-19 Individualized Education Program April 25, 2018: Classification: Multiple Disabilities (Ex C 1); Includes Autism: (Ex C 1); Behaviors: include spitting and aggressive behavior (Ex C 1); throws things at others (Ex C 3); Behavior Intervention Plan Recommended (Ex C 5); Goals: No Counseling Goals set forth;

Recommendation: 12:1+4 NYS Approved Day Program, Counseling, Occupational Therapy, Physical Therapy and Speech Language Therapy, and paraprofessional (C 10-11); Instructional Functional Level for Reading and Math at Pre Kindergarten (Ex C 14); Note: No actual Behavior Intervention plan is presented.

Note: No Counseling goals included.

D 2017-18 Individualized Education Program May 5, 2017: Classification: Multiple Disabilities (Ex D 1); Includes Autism: (Ex D 1); Behaviors: include spitting and aggressive behavior (Ex D 1); Behavior Intervention Plan Recommended (Ex D 3); Goals: No Counseling Goals set forth; Recommendation: 12:1+4 NYS Approved Day Program, Counseling, Occupational Therapy, Physical Therapy and Speech Language Therapy, and paraprofessional (D 10-11); Instructional Functional Level for Reading and Math at Pre Kindergarten (Ex D 13); Note: No actual Behavior Intervention plan is presented.

Note: No Counseling goals included.

F 2016-17 Individualized Education Program March 18, 2016: Classification: Multiple Disabilities (Ex F 1); Behaviors: inappropriate, unpredictable and dangerous (Ex F 2); Recommendation: 12:1+1, Counseling, Occupational Therapy, Physical Therapy and Speech Language Therapy, and paraprofessional (F 7); Instructional Functional Level for Reading and Math at Pre Kindergarten (Ex F 10); Note: No actual Behavior Intervention plan is presented.

G 2015-16 Individualized Education Program February 25, 2015: Classification: Multiple Disabilities (Ex G 1); Behaviors: include spitting and aggressive behavior (Ex G 2); Behavior Intervention Plan Recommended (Ex G 3); Recommendation: 12:1+4 NYS Approved Day Program, Counseling, Occupational Therapy, Physical Therapy and Speech Language Therapy, and paraprofessional (G 8); Instructional Functional Level for Reading and Math at Pre Kindergarten (Ex G 11); Note: No actual Behavior Intervention plan is presented.

A review of the above IEPs reflects no academic progress. Every IEP includes the same Instructional Functional Level for Reading and Math of Pre Kindergarten.

Adverse behaviors are indicated throughout, without neither a Functional Behavior Assessment nor Behavior Intervention Plan.

Progress Reports also indicate a lack of progress:

N Review of Mastery of IEP Goals , March 2019: No goals met. O Quarterly Progress Report, June 8, 2018: No goals met. P Quarterly Progress Report, June 2, 2017: No goals met. Q Quarterly Progress Report, June 15, 2016: No goals met.

IEPs consistently include serious adverse Student behaviors, requiring intervention.

Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ., 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172; J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 [S.D.N.Y. 2009]; M.M., 583 F. Supp. 2d at 510; Tarlowe, 2008 WL 2736027, at *8; W.S., 454 F. Supp. 2d at 149-50; Application of a Student with a Disability, Appeal No. 09-101; Application of a Student with a Disability, Appeal No. 09-038; Application of a Student with a Disability, Appeal No. 08-028; Application of the Dep't of Educ., Appeal No. 07-120). To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student (20 U.S.C. § 1414[d][1][A][i][TV]; 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v][a], [b][3]; M.W., 2013 WL 3868594, at *5; Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100, at *1 [S.D.N.Y. Apr. 7, 2011]; Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 [N.D.N.Y. Sept. 29, 2009] [discussing the student's IEP which appropriately identified program modifications, accommodations, and supplementary aids and services]; P.K., 569 F. Supp. 2d at 380; see also Schreiber v. East Ramapo Central Sch. Dist., 700 F. Supp. 2d 529, 556 [S.D.N.Y. 2010] [noting that when defending a unilateral placement as appropriate under the IDEA, a parent in some circumstances may also be required to demonstrate that appropriate "supplementary aids and services" are provided to the student]).

State regulations call for the procedure of using an FBA when developing a BIP, and the Second Circuit has explained that when required "[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all (R.E., 694 F.3d at 190). However, the failure to comply with this procedure does not automatically render a BIP deficient (M.W.., 2013 WL 3868594, at *5; R.E., 694 F.3d at 190; A.D., 2013 WL 1155570, at *9; A.H., 2010 WL 3242234, at *4; see F.B., 2013 WL 592664, at *8-*1; R.C. v. Byram Hills Sch. Dist., 906 F. Supp. 2d 256, 269, [S.D.N.Y. 2012]; F.L., 2012 WL 4891748, at *8; K.L., 2012 WL 4017822, at *11; T.M. v. Cornwall Cent. Sch. Dist., 900 F.Supp.2d 344, 354 [S.D.N.Y. 2012].

With regard to a BIP, the special factor procedures set forth in State regulations further note that the CSE or CPSE "shall consider the development of a [BIP] for a student with a disability when: (1) the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions; (ii) the student's behavior places the student or others at risk of harm or injury; (111) the CSE or CPSE is considering more restrictive programs or placements as a result of the student's behavior; and/or (iv) as required pursuant to" 8 NYCRR 201.3 (8 NYCRR 200.22[b][1]). Once again, "[i]f a particular device or service, including an intervention, accommodation or other program modification is needed to address the student's behavior that impedes his or her learning or that of others, the IEP shall so indicate" (8 NYCRR 200.22[b][2]).

If the CSE determines that a BIP is necessary for a student, "the [BIP] shall identify: (1) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors . . . ; (11) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s); and (111) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals (8 NYCRR 200.22[b][4]).

Neither an FBA nor BIP was developed nor presented over the Student’s evidenced IEPs.

DOE failed to address serious adverse Student behaviors in an appropriate manner, leading to Parent to seek out independent evaluation, and ultimately an appropriate Student placement for the 19-20 school year.

Parent Attorney correctly argues that IEP meetings were improper in ignoring consideration of Parent request to seek out other potential programs and methodologies for the Student. Parent evidenced a concern for Student and a willingness to consider alternatives, ultimately settling on ABA, once recommended:

“The DOE’s repeated statements to [Parent] that it could not recommend ABA and its failure to consider ABA in the 2018-19 and 2019-20 IEPs indicate that it impermissibly restricted [Student]’s educational program to its available offerings. See Deal, 392 F.3d at 858-59 (finding predetermination where school district had “unofficial policy of refusing to provide one-on-one ABA programs”); see also E.H.,^[164] F. Supp. 3d at 552—53 (refusing “to consider a more restrictive ratio than its public offerings were able to provide” amounts to predetermination). The fact that the DOE recycled [Student]’s program year after year provides further support that its mind was closed to other options. See Ex. B-15; Ex. C-10; Deal, 392 F.3d at 858 (discussing school district’s obligation to keep an “open mind” at IEP meetings). The DOE’s failure to consider an ABA program for [Student] denied her the setting and methodology she requires to make educational progress, see I-3, J-5, and therefore rises to the level of FAPE deprivation. See Deal, 392 F.3d at 858—59 (holding predetermined refusal to offer ABA program constituted FAPE deprivation); E.H., Witness testified: Student placement in a class ratio of 12:1:4 would not have been appropriate for the Student: “Too many students. Too many moving parts. Not enough individualized learning.” (T 101); Student was not appropriately placed prior to : “With the amount of behaviors and the lack of academic skills...the toilet training, the lack of her ability to even ask...for the bathroom and still be in PullUps...” (T 101)

I find the DOE failed to offer the Student a FAPE for the 17-18, 18-19 and 19-20 school years.

placement for the 1920 School Year

Testimony and documentary evidence support an appropriate Student placement for the 19-

20 school year.

Parent witnesses, as outlined above, described Student’s special education needs (T 86, 92, 111, 113, 114, 115, 121, 124, 141-142, 143-144, 144-145); services to address those needs (T 80-83, 87-88, 89-90, 91, 93, 114, 121); and indicated progress (T 88-89, 142 144).

Documentary evidence submitted supports as an appropriate Student program for the 19/20 school year.

Evidence also supports use of ABA methodology as an effective foundation to address Student behaviors and enable educational progress.

Documentary evidence includes: A Due Process Complaint and Transmittal Confirmation December 13, 2019:

Details Student educational history, allegations, and sought after relief; E Letter to November 17, 2016: Indicates some success with the Behavior Plan at the time, and seeks additional supports is search of appropriate setting for the Student; H Initial Intervention Plan, July 9, 2019: With the DOE lacking in development of neither an FBA nor BIP, this Plan was obtained by the Parent in an effort to obtain appropriate Student services and supports. Includes Student data, goals and supports to address Student aggression and stimulatory behaviors; Ultimately, recommendation is made to utilize ABA methodology to address behaviors: “Service Recommendations: It has been proven that ABA methodology is effective in the remediation of maladaptive behaviors and skill deficits demonstrated by children diagnosed with Autism Spectrum Disorder (ASD). Data will be taken to measure pertinent skills, and it will help determine what the client needs to learn in order to achieve mastery. This will enable each step to be taught until mastery is attained. Establishing an intensive home program using the principles of ABA, will aid in addressing any maladaptive behaviors and teach age-appropriate skills to enable [Student] to function in her environment appropriately (NAC, 2009).” (Ex H 9); “To implement this behavior intervention plan with integrity, the hours summarized in the table below are being recommended. The behavior analyst will be responsible for providing initial training on the plan, coordinating with other service providers, designing instructional procedures, monitoring the outcomes, providing oversight for the behavior technician, and assisting in ongoing planning and problem-solving. The teacher will facilitate day-to-day implementation of the plan, collecting data and working closely with Scarlet’s caregivers and professionals. This plan will include shifting responsibility for monitoring to the caregivers and staff by reducing direct ABA hours.” (Ex H 9);

I Letter from Dr. ; April 9, 2018:

Notes behaviors concerns, and recommends individual support via ABA (Ex I 3); along with related services and behavior management strategies (Ex I 3);

J Neuropsychological Report of Dr. ; February 12, 2018:

Notes behavior and academic concerns related to the Student, an recommends a 1:1 ABA program, with related service and behavioral supports (Ex J 5-6);

K Social History Update November 21, 2016:

Notes Student areas of concern, including toileting;

L DOE Psychoeducational Evaluation Report October 25, 2016:

Confirms Student behavioral and academic challenge and recommends a small class. Also notes that Student responded well in a one to one setting;

M Autism Evaluation, , August 18, 2014:

Details Student areas of challenge and need, such as, communication and social interaction (Ex M 1-2); and recommends ABA with related services, as well as after school and home services (Ex M 4);

T Remote Learning Plan, March 2020:

Detail Remote Learning Plan implemented for the Student;

U Positive Behavior Support Plan, March 30, 2020:

Details updated FBA and BIP for the Student, targeting adverse behaviors and implementing plan for each; V Progress Report 2019-20, June 5, 2020: Indicates progress and mastery of some goals (Ex V 1-3); including detailed statement regarding academics, communication and behaviors:

“Second Trimester: [Student] continues to demonstrate significant improvement in regulation, attention, and engagement during group activities, academics, and vocational tasks. Behaviors such as hitting, head butting, throwing materials and vocalizing “Donna” have drastically reduced throughout her school day. A voice output device has been implemented where she initiates requests and comments during mealtime, academics, and other school settings. These comments include but are not limited to “I'm okay,” “Hi _,” “I want to eat pancakes,” etc. [Student] utilizes her device appropriately and meaningfully, with minimal prompting in navigating and pressing the correct buttons. During literacy, science, and our weekly “Step by Step Carol Goosen " morning group, she is well aware of her expectations, and enjoys the process of following the steps to make food recipes/craft making. In regards to her academic programs, [Student] has demonstrated progress in labeling and identifying pictures, fluency, and two-step directions. Her typing program is challenging as she is required to trace letters vertically and horizontally. This task involves focus, attention, and prompting for [Student] to utilize her fingers in order for her to scan and trace the letters, thus using her fine motor skills. [Student] is a pleasure to have in our classroom, and we look forward to continued progress.” (Ex V 4);

“Second Trimester: Over the course of the second trimester, [Student] has made continued progress toward goal achievement. She has continued to use her voice output device with a dynamic display (iPad with TouchChat software) of symbols organized categorically in a grid of 15 symbols. As [Student] has improved in her accuracy with producing messages using her device, more buttons are being added (unhidden) for her to produce more complex utterances with a variety of verbs and nouns. She is aware of which device within the classroom belongs to her, and when asked to find her voice (or prompted with “what do we need?”) she will walk over and lift it up using the strap and place the strap over her head. She transitions with her device appropriately throughout the building as well as on vocational outings. [Student] has improved significantly in her ability to request desired objects and events using her device when provided with minimal verbal and/or gestural prompting (i.e. I want + play + train, I want + a turn + play

+ train, I want + eat + bagel). At this time, [Student] requires moderate gestural prompting to request recurrence of desired objects or actions (i.e. more + train, more + pizza). She is learning to produce one message utterances coding action (i.e. go, ride, get). [Student] uses verbal speech and/or her speech generating device to request her wants and needs when provided with moderate gestural prompting (i.e. I need to use the bathroom). She appropriately greets and gains the attention of familiar staff and peers using her device (1.e. hi + ; ). [Student] often names the people in the room using her device and when asked who is sitting over there she typically responds accurately using her device. In regards to verbal speech, she often responds appropriately using verbal speech when asked yes/no questions (i.e. “alright” or “yes”, “no’’).

Using tactile prompts to facilitate external programming of articulators to achieve target productions, [Student] has been attempting to produce a variety of sounds and approximations of words (i.e. “mamama’’, “bus’’, “not”, “that’s yuammy”’). [Student]’s focus for the remainder of the year will be to increase more independent use of her voice output device to serve a variety of communicative functions (i.e. rejection of unwanted actions/objects, assistance/attention).” (Ex V 6);

“DIR/Floortime Main Goal: [Student] will increase range of affect during intentional interactions (will develop overall intentionality through use of appropriate tone and range of affect to express different emotions in play and work) by maintain self-regulation (calm and organized state). Functional Emotional Developmental Levels (FEDLs)” (Ex V 13); includes progress in addressing behaviors such as self regulation, and attention (Ex V 13);

W Affidavit of ; re: ABA Services January 7, 2020:

Available provider to implement home ABA services, at a rate of $125.00 per hourly session;

Y [Student] Schedule, 2019 —2020:

Student academic and related service schedule.

is evidenced to have tailored an educational program, and services, to the address Student’s special education needs.

I find provides an appropriate education and program for the Student for the 19/20 school year.

provides special education services specifically tailored to meet the needs of the Student.

TUITION FUNDING 19-20 School Year

Parent is entitled to funding for the 19-20 Tuition.

Supportive evidence includes:

R Ten Day Notice August 16, 2019 :

Parent submitted appropriate Ten Day Notice to the DOE indicating dissatisfaction with most recent IEP Program developed, and notification of intended unilateral placement with intent to seek DOE funding; and

S Enrollment Contract September 3, 2019:

Sets forth 19-20, 10 month, tuition of $107,000.00 and includes signature of Parent obligating payment.

Parent testifies she cannot afford the Tuition, of about $100,000.00, detailing limited family income. (T 145-146).

No evidence was brought forth to contest the Parent assertion regarding ability to pay the tuition.

No evidence is brought forth to indicate the Parent in any way frustrated any DOE attempt to offer the Student a FAPE.

Parent establishes a denial of FAPE and appropriateness of I find the Parent is entitled to direct funding as Ordered below.

INDEPENDENT EDUCATIONAL EVALUATIONS

The IDEA and State and federal regulations guarantee parents the right to obtain an IEE (see20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]). IEEs are defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200. 1[z]; see 34 CFR 300.502[a][3][1]).

Additionally, an IHO is vested with the authority to direct that a student be evaluated at district expense (34 CFR 300.502[d]; 8 NYCRR 200.5[¢][2]; [j][3][viii]). IHOs are "granted broad authority in their handling of the hearing process and to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA" (Warren Consolidated Schs., 106 LRP 70659 [LEA MI 2000)]).

A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 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 (8 NYCRR 200.4[b][3]).

An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).

Under 200.5 (g) of the New York regulations and 34 CFR § 300.502 (b) (1) of the federal regulations, if a Parent disagrees with a district’s evaluation or re-evaluation of her child, she has the right to request an IEE at public expense. Upon Parent IEE request the public agency must, without unnecessary delay, either: (1) File a due process complaint to request a hearing to show that its evaluation is appropriate; or (11) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria. 34 CFR 300.502(b)(2). 8 NYCRR § 200.5 (g)

With the DOE lacking in development of neither an evidenced FBA nor BIP, Parent acted to obtain evaluation to address Student behaviors. (Ex H)

DOE acknowledges the need for a BIP throughout the IEPs in evidence. BIP requires an FBA, which was not evidenced.

Parent reasonably sought out evaluation to fill the unmet need of the Student.

As far back as the 17-18 school year, Parent sought an independent neuropsychological evaluation, completed 02/12/2018 (T 126, Ex J)

This Plan was obtained by the Parent in an effort to obtain appropriate Student services and supports.

I find the evaluation was necessary to enable the Student to obtain a FAPE.

Affidavit of , , sets forth a rate of $1,500.00 for his completed Student evaluation. (Ex X)

Therefore, I find Parent is entitled to fund dependent educational evaluation obtained, and reimbursement in the amount of $1,500.00.

COMPENSATORY SERVICES

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][ii1]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][1i]; Application of a Child with a Disability, Appeal No. 04-100).

The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) ( “Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).

In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought.10 Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology supports.); Woods v. Northport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) (upholding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”’).

If Student is found to be entitled to compensatory education under applicable law; compensatory education is an equitable remedy that arises out of the jurisdiction of 20 U.S.C. § 1415; equitable factors do not bar relief here and no inequitable conduct was established on the part of the parents. N.R. ex rel. T.R. v. Dep't of Educ. of City Sch. Dist. of City, No. 07 Cv. 9648 (BSJ), 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) (Reversing the SRO and upholding the award; Court found that it is well established that, in the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim for tuition.); Wolfe v. Taconic Hills Cent. Sch. Dist., 167 21 F.Supp.2d 530 (N.D.N.Y. 2001)( the equities—requires a balancing of both parties’ conduct and interest—not merely the actions of the parent).

Presently, there are no facts established here that show that the parent failed to cooperate or acted inequitably to interfere with the DOE’s ability offer a FAPE.

Parent seeks relief addressed below.

HOME ABA SERVICES

Parent contends home ABA services are necessary moving forward.

Attorney argues:

“In the summer of 2019, hoping to develop a “behavior plan that was truly formulated for [Student],” [Parent] obtained an independent functional behavioral assessment (“FBA”) conducted by Board Certified Behavior Analyst (““BCBA”) of (“ ”). Tr. 138:1-4; Ex. H. The resulting FBA recommended that [Student] receive (1) 10 hours of direct 1:1 ABA instruction, (11) 1 hour of treatment planning, and (111) 1 hour of BCBA supervision per week. Ex. H-9. [Parent] testified that she agrees with this recommendation, because given [Student]’s past years of deprivation and her limited level of functioning, she needs 1:1 ABA at home, in addition to her school program, to make progress. Tr. 138:8—139:18, 144:17—145:6. As [Parent] explained, [Student] needs a “very aggressive, intensive approach to get her close to where her baseline should have been,” so that she “can foster some level of dignity and independence” as she approaches her post-secondary transition. Tr. 139:2—-16. These concerns were echoed by Ms. , who explained that 10 hours per week of home-based ABAis critical for [Student] to “get her independent and get her functioning” given her advanced age and extremely limited adaptive and verbal skills. Tr. 171:11—172:2.” (THO Ex 5)

Student is evidenced to have made meaningful progress at “[ Student] made meaningful progress at , where she was provided with an individualized behavior plan targeted toward addressing her maladaptive behaviors and an appropriate communication device. Tr. 87:20—89:2; Ex. U. By March 2020, [Student]’s maladaptive behaviors had been nearly extinguished. Ex. U-1 (“dysregulation on near extinction levels at school’); Tr. 88:11—89:2, 141:16—24. Progress reports from show that [Student] is “gaining competency,” has “mastered,” or has “maintained/generalized” at least 26 goals across the areas of academics, vocational, adaptive daily living skills, speech, OT, PT, and mental health. See Ex. V.” (HO Ex II 12) Student has also: “generalized five of her seven toilet-training goals. Ex.V-3; Tr. 143:7—10. [Parent] testified that [Student] is “completely different”; she can now communicate in more complex sentences using her device and is more independent in her daily living skills. Tr. 143:2—15, 144:5—16. Indeed, Ms. testified that [Student] “[rJeally exceeded, to be honest, how far I thought she would come.” Tr.

92:3—6.” (THO Ex II 13)

Witness, and documents do consistently recommended home ABA therapy.

“The Parent also presented substantial evidence that, given [Student]’s current level of functioning, she requires home-based ABA in addition to ’*s school program to make meaningful progress. Home-based ABA has long been recommended by [Student]’s medical providers. Ex. J-5 (carrying over ABA into the home is “important” for [Student]); Ex. I-3 (“Home-based behavior therapy is strongly recommended to minimize challenging and aggressive behaviors that interfere with [Student] V’s functioning.”) An FBA conducted by confirmed these findings, and recommended that [Student] receive 10 hours per week of home-based 1:1 ABA instruction, with | hour of BCBA supervision and 1 hour of treatment planning per week. Ex. H-9. As the BCBA who evaluated [Student] explained:

[M]y perspective of it is we’re dealing witha -year-old who’s got years of school left, and because she is so developmentally delayed across all areas ... even an ABA school alone is not going to be able to get her to reach her academic potential, language potential, anything, that a lot of the time has been lost, and she needs to undo the behaviors she learned. And at this point, she needs everything she can get so that we can get her on the right track.

Tr. 175:9-18 (emphasis added). Ultimately, Ms. opined that without the combination of 1:1 ABA both at school and at home, [Student] will not be able to make meaningful educational progress. Tr.

175:9-25.” (IHO Ex 13)

The Parent’s witnesses highlighted that, while [Student] has made what seems to be somewhat surprising and significant progress: “her true potential has not yet been unlocked because she is just now receiving the appropriate services she has needed for years. See, e.g., Tr. 127:14—23, 132:25—133:5; 138:24-139:7, 144:22—145:7, 171:22—-175:2. As [Parent] explained, because [Student] needed ABA “for so many years,” she now needs a “very aggressive, intensive approach to get her close to where her baseline should have been.” See Tr. 139:2—7. As Ms. put it, “there’s so much inside of her that we’ve even yet to discover.” Tr. 98:16—17.” (HO Ex II 14)

In this case the Student, at years of age, has functioned continuously, at , ata Pre Kindergarten Level for several tears, with no progress. The evidence reveals that this is related, at least in part, to the failure of an appropriate plan to address Student adverse behaviors which have continuously impeded her learning.

While other options may exist for compensatory services to allow the Student to make up for several years denial of FAPE and lost opportunity related thereto, only one option is presented.

Parent Attorney sets forth relevant information regarding how Home based ABA is appropriate, and has been appropriate for several years.

Home-based ABA has long been recommended by [Student]’s medical providers. Ex. J-5 (carrying over ABA into the home is “important” for [Student]); Ex. I-3 (“Home-based behavior therapy is strongly recommended to minimize challenging and aggressive behaviors that interfere with [Student] V’s functioning.”) An FBA conducted by confirmed these findings, and recommended that [Student] receive 10 hours per week of home-based 1:1 ABA instruction, with | hour of BCBA supervision and 1 hour of treatment planning per week. Ex. H-9. As the BCBA who evaluated [Student] explained: [M]y perspective of it is we’re dealing witha -year-old who’s got years of school left, and because she is so developmentally delayed across all areas ... even an ABA school alone is not going to be able to get her to reach her academic potential, language potential, anything, that a lot of the time has been lost, and she needs to undo the behaviors she learned. And at this point, she needs everything she can get so that we can get her on the right track. Tr. 175:9—18 (emphasis added). Ultimately, Ms. opined that without the combination of 1:1 ABA both at school and at home, [Student] will not be able to make meaningful educational progress. Tr. 175:9—25. (THO Ex IT 13)

Available provider sets forth availability and rate to deliver the Home ABA services, at a rate of $125.00 per hourly session. (Ex W)

Parent argues that the Home ABA instruction is necessary as a component of a Student Program, along with . THO Ex II 13)

At this point the 19-20 school year has ended.

It is not presently proper for the IHO to craft what would be services, and an IEP, for the 20-21 school year.

I do find it appropriate to Order relief in the form of Home ABA services to make up for the denial of FAPE for several years which denied Student an appropriate education and an opportunity to progress.

Home ABA services are Order below to allow the Student to make up for several year denial of FAPE, lack of progress at , and allow opportunity to make up for lost educational opportunity over those years.

ORDER

l. Department of Education (DOE) failed to offer the Student a FAPE for the 2017-2018, 2018-2019 & 2019-2020 school years.

2. DOE shall fund Independent Educational Evaluation, of , , in the amount of $1,500.00.

3. DOE shall directly fund Student, 19-20, Tuition at in the amount of $107,000.00.

4. The DOE shall authorize and fund the following compensatory service for the Student.

Home-Based, individual, ABA instruction for ten hours weekly, at market rate, up to $125.00 per hourly session.

Student shall be entitled to this service from the date of this Order through 06/30/2022.

5. The DOE shall provide Parent with any documents or forms necessary to facilitate payment for evaluation, Tuition Payment, and compensatory services within ten days of the date of this Order.

6. This decision is subject to appeal and review by the State Review Officer.

DATED: July 11, 2020

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer

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 the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party not later than 25 10 days after the date of rthe 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 the 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://Awww.sro.nysed.gov.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

ENTERED 06/15/2020

Ex. DOCUMENT DATE PAGES A Due Process Complaint and Transmittal Confirmation December 13, 2019 13 B 2019-20 Individualized Education Program April 5, 2019 20 C 2018-19 Individualized Education Program April 25, 2018 16 D 2017-18 Individualized Education Program May 5, 2017 16 E Letter to November 17, 2016 F 2016-17 Individualized Education Program March 18, 2016 11 G 2015-16 Individualized Education Program February 25, 2015 13 H Initial Intervention Plan, July 9, 2019 I Letter from Dr. ; April 9, 2018 J Neuropsychological Report of Dr. ; February 12, 2018 K Social History Update November 21, 2016 L DOE Psychoeducational Evaluation Report October 25, 2016 nWMfOa4©wNTmHWI M Autism Evaluation, August 18, 2014 N Review of Mastery of IEP Goals , March 2019 O Quarterly Progress Report, June 8, 2018 P Quarterly Progress Report, June 2, 2017 Q Quarterly Progress Report, June 15, 2016 R Ten Day Notice August 16, 2019 Ss Enrollment Contract September 3, 2019 T Remote Learning Plan, March 2020 U Positive Behavior Support Plan, March 30, 2020 V Progress Report 2019-20, June 5, 2020 —_— Go W Affidavit of ; re: ABA Services January 7, 2020 X Affidavit of ; re: Initial Assessment & Behavior Intervention Plan May 19, 2020 Y [Student] Schedule, 2019 —2020

DEPARTMENT OF EDUCATION

NONE

IMPARTIAL HEARING OFFICER

ENTERED 06/15/2020

I Notice of Appointment, 05/29/2020, four pages

ENTERED 07/06/20/2020

II Parent Closing Brief, 07/06/2020, fifteen pages

II] DOE Closing Brief, 07/06/2020, two pages

Footnotes

[164] F. Supp. 3d at 553-54 (holding DOE’s predetermined refusal to consider more restrictive placement amounted to FAPE deprivation).” (IHO Ex 6) As indicated above, Parent correctly evidences lack of Student progress in the same program year after year: “Unsurprisingly, [Student] failed to make progress in the DOE’s program, and by the end of her time at , her skills were far below the expected level for her age and ability. See Tr. 86:14—87:14, 171:11-172:2; Tr. 101:11-19. Ms. opined that, based upon “the amount of behaviors and lack of academic skills” that [Student] possessed when she first entered , her prior 12:1:4 classroom at was an inappropriate placement. Tr. 101:2—19” (IHO Ex ) Parent concern was well placed in seeking out alternative methods and placement. (T 125, 134-136) Student not evidenced to have made any progress since 2016. Student is evidenced to be at the same instructional and functional level, falling further behind each year. Student is evidenced to continue to exhibit adverse behavior with no effective intervention. DOE also has not appropriately addressed Student toileting issue, which has persisted through the years. (Ex K) Witness credibly testified as to inappropriateness of Student’s program over the years.