New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 560147 - NYC: 216127

FINDINGS OF FACT AND DECISION

Case Number: 216127

Student’s Name: REDACTED (hereinafter referred to as “Student”)

Date of Birth: REDACTED

School District: New York City Department of Education Hearing Requested by: PARENT (hereinafter referred to as “Parent”)

Date(s) of Hearing: 4/14/22; 10/14/22

Actual Record Closed Date: March 3, 2023

Hearing Officer: Amy Lynne Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 14, 2022

For the Student:

REDACTED, Attorney

REDACTED, Parent

REDACTED, Interpreter

REDACTED, Neuropsychologist

REDACTED Clinical Director, AGENCY For the DOE:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 14, 2022

For the Student:

REDACTED, Attorney

REDACTED, Parent

REDACTED, Interpreter

REDACTED, Clinical Director, AGENCY For the DOE:

REDACTED, District Representative

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on the Parent’s Due Process Complaint (“DPC") filed on or about September 9, 2021 and amended on January 31, 2022. (Exhibits A and B) The undersigned IHO was appointed to this matter on January 31, 2022, by the New York City Department of Education (“DOE”).

A hearing was held on April 14, 2022, and October 14, 2022. It was a closed hearing, conducted by video/teleconference, with the presence of a court reporter to create a written transcript. The Parent was represented by Attorney. The DOE was represented by District Representative. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision. The record was closed on March 3, 2023.

In scheduling the hearing date, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

JURISDICTION

The due process hearing was held and the Findings of Fact and Decision in this matter is being issued pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

STUDENT was REDACTED at the beginning of the 2021-2022 school year. He has been classified by the Department of Education (“DOE”), through its Committee on Special Education (“CSE”), as a student with a disability, with the classification of Autism. The CSE convened on April 29, 2021, to develop an Individualized Education Program (“IEP”) for Student for the 2021-2022 school year. The CSE recommended the following twelve-month placement and program: A 6:1:1 class for math, ELA, Social Studies, and Science; individual occupational therapy twice a week for 30-minute sessions; individual physical therapy twice a week for 30-minute sessions; individual speech-language therapy three times per week for 30-minute sessions; speech-language therapy in a group once per week for a 30-minute session; and a full-time behavior paraprofessional. (Exhibit L)

The Parent had presented to the CSE the opinion she shared with those who worked with STUDENT regarding his needs. She expressed her disagreement with the CSE’s recommendation and STUDENT was unilaterally placed at the PRIVATE SCHOOL, where he had attended since 2015, for the 2021-2022 school year. September of 2021 marked STUDENT’s return to in-person learning at PRIVATE SCHOOL, following remote learning which had begun in March 2020. Due to his escalating maladaptive and dangerous behaviors, PRIVATE SCHOOL reduced STUDENT’s in-person schedule. In October 2021, PRIVATE SCHOOL reached the decision that the school could no longer serve STUDENT’s needs and recommended a more restrictive program. STUDENT has been attending PRIVATE SCHOOL remotely on or about November 1, 2021.

At the Parent’s request, the CSE convened on December 2, 2021. The Parent again presented the opinion of those who worked with STUDENT regarding his special education needs. She again expressed her disagreement with the CSE’s decision to continue the same recommendation from the April 29, 2021, IEP, in the December 2, 2021, IEP. (Exhibit C) The Parent maintains that STUDENT requires the support of a full-time 1:1 Applied Behavioral Analysis (“ABA”) program consisting of a school-based program as well as a home-based program.

On October 1, 2021, the DOE signed a pendency agreement in this matter indicating that it did not contest pendency at PRIVATE SCHOOL and agreeing to fund STUDENT’s tuition from September 9, 2021 “continuing until such time as a final decision is issued or settlement reached.” (Exhibit O) Despite the Parent’s repeated communications with the DOE following the pendency agreement, the DOE continued to fail to fund the pendency placement. (Exhibits P and Q)

On the first day of hearing, April 14, 2022, the Parent requested interim relief consisting of a neuropsychological evaluation funded by the DOE, DOE reimbursement for the cost of the development of a Functional Behavior Assessment, and home-based ABA services during the pendency of the impartial hearing process. The following Interim Order was issued on May 7, 2022:

INTERIM ORDER

1. The DOE shall fund a neuropsychological evaluation of STUDENT, to be conducted by NEUROPSYCHOLOGIST, at a cost of $6,500. The DOE shall directly pay NEUROSPYCHOLOGIST immediately upon the Parent’s submission of an invoice to the DOE.

2. The DOE shall reimburse the Parent for the cost of the FBA, conducted by AGENCY, in the amount of $1,200. Payment shall be made immediately upon the submission of proof of payment to the DOE.

3. The DOE shall fund 25 hours per week of home-based ABA services at a rate of $90 per hour and 4.5 hours per week of BCBA supervision/family training services at a rate of $150 per hour through the date this case is concluded either by a hearing officer’s decision or settlement agreement. The DOE shall directly pay for these services immediately upon submission of an invoice for the services performed.

POSITIONS OF THE PARTIES

THE DOE’S CASE The DOE did not offer an opening statement, documents, witness testimony, or a closing argument. When the DOE was presented with an opportunity to present an opening statement, the following exchange occurred:

HEARING OFFICER ITZLA: Thank you. And is the Department of Education ready to make an opening statement?

DISTRICT REPRESENTATIVE: The matter is still under investigation.

As such, we're simply resting our case. Thank you.

HEARING OFFICER ITZLA: And by resting your case, does that mean the Department of Education is not presenting a case?

DISTRICT REPRESENTATIVE: We're not presenting a case.

(T. 77-78)

At the conclusion of the hearing, the parties both expressed their mutual preference to submit written closing arguments in the form of post-hearing briefs. The Parent’s brief was submitted on November 9, 2022. On that same date, the DOE notified the undersigned and Parent’s counsel that the DOE was waiving its closing argument.

Therefore, the DOE conceded that it failed to offer a Free Appropriate Public Education (“FAPE”) to STUDENT for the 2021-2022 school year. The DOE did not challenge the Parent’s position or requested remedy in any way during the course of the impartial hearing.

THE PARENT’S CASE The Parent presented the testimony of three witnesses: NEUROPSYCHOLOGIST; Clinical Director, AGENCY; and STUDENT’s Parent.

NEUROPSYCHOLOGIST provided her direct testimony through sworn affidavits, which are fully considered part of this decision although not included in their entirety. (Exhibits F and I) The DOE did not object to the admission of the affidavits into evidence.

NEUROPSYCHOLOGIST testified regarding a neuropsychological evaluation she conducted on July 29, 2022, and August 2, 2022, which included interviews with Parent, questionnaires completed by Parent, and a review of all relevant medical, educational, and academic records. NEUROPSYCHOLOGIST also observed STUDENT’s behavior and conducted a battery of neuropsychological tests. Her evaluative process, findings, and recommendations were documented in her report. (Exhibit H). NEUROPSYCHOLOGIST confirmed STUDENT’s diagnosis of “Autism Spectrum Disorder (“ASD”) with accompanying intellectual impairment and with language impairment, requiring moderate support, and Attention-Deficit/Hyperactivity Disorder, Combined Type, Moderate (“ADHD”).” She explained the following with regard to STUDENT’s diagnoses:

In connection with STUDENT’s ASD, he exhibits repetitive behaviors, rigidity, and social communication difficulties. Socially, STUDENT does not show interest in engaging with peers or adults and struggles to initiate or have a back-and-forth conversation. STUDENT further shows difficulties with regulating his behaviors and significant struggles with expressive and receptive language. With respect to STUDENT’s ADHD, his attention and self-monitoring varied throughout the evaluation and often interfered with his ability to perform tasks.

NEUROPSYCHOLOGIST described the manner in which all aspects of STUDENT’s educational profile, academically, socially, and emotionally, are severely impacted. She made the following recommendations:

I recommend that he be placed in a 12-month self-contained, therapeutic, special education classroom with a very small student-teacher ratio in which he is provided with one-to-one applied behavior analysis (“ABA”). Due to STUDENT’s significant difficulties with attention and impulsivity, it is critical that he receive ABA in a 1:1 ratio. STUDENT’s program should be overseen by a Board Certified Behavior Analyst (“BCBA”).

At this stage in STUDENT’s development, he requires a full-time 1:1 ABA program 40 hours per week. Therefore, STUDENT will require a school-based or center-based 1:1 ABA program, supported by additional ABA services at home to provide him with consistent structure and routine.

To address STUDENT’s significant language needs, he also requires speech therapy services provided four times per week, individually. STUDENT should also continue to receive occupational therapy (“OT”) in school three times per week, individually. STUDENT’s related service providers should collaborate with his ABA therapists in order to consistently address his interfering behaviors.

She noted that, “As youngsters with ASD have significant difficulty with generalizing the skills they learn in one setting to other settings, it is imperative that STUDENT receives ABA services both in school and at home.” NEUROPSYCHOLOGIST added that, “[I]t is imperative that he receive the support of a full-time 1:1 ABA program as soon as possible. As the family searches for an appropriate school placement that can meet STUDENT’s needs, in the interim, he should be provided with 40 hours per week of 1:1 ABA services.”

Clinical Director at AGENCY provided his direct testimony through a sworn affidavit and during his testimony during the hearing. (Exhibit E) Clinical Director explained how ABA works and its effectiveness for students with autism. (T. 125-127) He testified that he completed a Functional Behavior Assessment (“FBA”) for STUDENT by observing him during remote learning and occupational therapy, and by conducting an interview with Parent (T. 128; Exhibit D)

Clinical Director testified that AGENCY has a schedule for STUDENT of 25 hours per week of direct ABA services, including 2.5 hours of supervision. Two hours per month of parent training is also provided. Clinical Director described STUDENT’s areas of need, struggles, and maladaptive behaviors. A treatment plan was devised for STUDENT when AGENCY began providing services. Clinical Director described the “extreme progress” made by STUDENT both academically and behaviorally. (T. 129-133) He testified that STUDENT requires ABA in order to make progress and that, if he were to be placed in an ABA school-based program, he would recommend that he continue to receive home-based ABA services as well. He recommended that, in addition to a school-based program, STUDENT receive 20 hours per week of ABA therapy, with 2 hours being supervision by a BCBA, as well as 1 hour of parent training per week. The recommendation would be for “approximately three hours a day, six days a week” of direct ABA services, plus the two hours of BCBA supervision a week, plus the one hour of parent training a week. (T. 133-135)

Parent described STUDENT as “very kind,” “very generous,” “very playful,” and “very smart.” She stated that he is “capable of being a fast learner,” “very strong,” and “very handsome.” Parent explained that prior to attending PRIVATE SCHOOL beginning in 2015, STUDENT was in a DOE District 75 program in a 6:1:1 classroom. She described all the difficulties he had in that setting. When he started attending PRIVATE SCHOOL and participating in a full-time ABA program, she saw improvement. Once at PRIVATE SCHOOL for a while, STUDENT started speaking with basic words, such as “mom.” He would use one-word sentences for food or things he needed. He then expanded to two-word sentences. He also started making visual contact, which he had not done before, and responding to his name. PRIVATE SCHOOL gave her “the tools necessary to continue all of the learning he was doing at school.” Parent described the difficulties and advantages when remote learning began. She had to be “his mother, his therapist, and teacher.” She noticed that, since there were no distractions, he was able to do well remotely. When STUDENT returned to the classroom in September 2021, there were a lot of issues. One problem was that there was no bus and she had to drive him to school each day and wait outside until his day was done. He did not transition well. “He ran out of the classroom a couple of times. He was not listening to instruction, to teachers, and was very disruptive to all of the staff at the school. He started again climbing on top of the desks in the classroom.” Administrators at PRIVATE SCHOOL told Parent that “they could no longer support STUDENT in the school due to safety concerns because they couldn’t control him.” She was told that he really needed a full-time ADA program with one-to-one attention. (T. 89-98) Parent requested a meeting with PRIVATE SCHOOL and the DOE, which was held on December 2, 2021. Parent requested a full-time one-to-one ABA program for STUDENT. One of the participants from PRIVATE SCHOOL, described all of STUDENT’s issues and the behaviors he displayed. She also requested a full-time one-to-one program for him. The CSE denied the request and, again, recommended the 6:1:1 class in a District 75 school. The DOE sent Parent a school recommendation for a District 75 school. Parent called the school, but the number was out of service. She also sent two emails to the DOE due to her inability to make contact with the school but got no response. She then worked with PRIVATE SCHOOL to provide remote learning to STUDENT, which STUDENT is still doing. He has also been receiving one-to-one ABA services at home through AGENCY. The services are helping a lot. Parent described the progress she has seen, including his ability to sit and pay attention for longer periods of time, not repeating words, identifying community signs, and working on longer sentences. AGENCY has provided training to Parent to learn how to help STUDENT with skills such as remaining focused and making transitions between topics. (T. 98-102)

Parent met with NEUROPSYCHOLOGIST to discuss her evaluation when the report was issued. Parent is in complete agreement with the evaluation, report, and recommendations; she believes it accurately describes STUDENT and his needs. After looking at schools for approximately a year, Parent identified the 2ND PRIVATE SCHOOL, which is a private school that can provide STUDENT with a one-to-one ABA program and satisfy the recommendations of NEUROPSYCHOLOGIST. STUDENT has been accepted to 2ND PRIVATE SCHOOL and can start at any time. However, Parent cannot afford the cost of tuition and STUDENT cannot attend unless the school knows that there is funding. Parent stated that her annual income is $INCOME and she lives with her husband and three children. (T. 103-107; 111)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The DOE has the burden of establishing that it offered a FAPE to STUDENT. (R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-185 [2d Cir. 2012]; Educ. Law § 4404[1][c]). 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; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E., 694 F.3d at 189-190; 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 IEP'" (Walczak v. Fla. 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]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). 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. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). 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 300.513[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 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 adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). 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 5 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 IEP 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]). 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 Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; 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 300.114[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).

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]), 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][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

The DOE did not even attempt to claim that it had met any of its obligations to STUDENT. The DOE barely participated in the impartial hearing process. There was no submission of documents and no witness testimony; the DOE chose not to present a case at all. When given the opportunity to present an opening statement, the DOE instead responded that, “The matter is still under investigation. As such, we're simply resting our case.” The CSE had been very familiar with STUDENT for several years and had even held two CSE meetings for STUDENT for the school year at issue. The initial due process complaint was filed by the Parent on September 9, 2021, more than one year prior to the substantive hearing on the merits; the amended complaint was filed by the Parent on January 31, 2022. Both the initial and amended complaints were clear presentations of the issues to the DOE and each triggered a resolution period, which is an opportunity to address the issues raised and resolve the matter without a hearing. A hearing was held on April 14, 2022, which was focused on the Parent’s request for interim relief and an Interim Order was issued. Another six months passed before the hearing on October 14, 2022, during which the Parent obtained the ordered Independent Educational Evaluation and shared it with the DOE. During this period of time, multiple events had occurred in connection with this case, and the DOE was well aware that the Parent was seeking an appropriate program for STUDENT. Appearing for the hearing on the merits of the due process complaint and stating that “The matter is still under investigation. As such, we're simply resting our case,” is confirmation of, and a concession to, a complete failure to provide a FAPE to STUDENT. In addition, the unrebutted testimony of Parent established that the program repeatedly recommended by the DOE, one in which STUDENT had previously attended, was highly inappropriate for him.

The Parent has the burden of establishing the appropriateness of the program they are requesting for STUDENT. (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 [2d Cir. 2007]) The standard used to measure the appropriateness of the parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 [2d Cir. 2000]) “The issue turns on whether a placement - public or private- is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112)

In this case, based on the Parent’s financial status, the Parent is requesting prospective funding for STUDENT’s program. As presented by the Parent:

Such a prospective remedy is well within the “broad discretion” of courts and impartial hearing offices to award appropriate relief under the IDEA, particularly where—as here—the student is unable to access an appropriate program due to its cost. See 20 U.S.C. §1415(i)(2)(C); Sch. Comm. of Town of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 370 (1985). The Supreme Court has recognized that, where the public school has denied a student a FAPE, families with “adequate means” are entitled to be reimbursed for tuition costs for an appropriate private school. Burlington, 471 U.S. at 370–71; Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 13–15 (1993). In Connors v. Mills, the court observed that a remedy for prospective direct funding to an appropriate program must also be encompassed under the IDEA, as to hold otherwise would undermine the statute’s guarantee of appropriate educational services to all students:

By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private non-approved school, without exception. Under Defendants' reading of the IDEA, therefore... a destitute child would be left in an inappropriate program because the parents would not be able to front the tuition of private placement. Given the fragile state of many disabled children, and their dire need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous educational, social, emotional, and psychological deterioration. Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant “all” disabled children access to needed services would undermine that very goal by making such access dependent upon a family's financial situation.

34 F. Supp. 2d 795, 804 (N.D.N.Y. 1998) (emphasis added). Therefore, “once the Burlington prerequisites are met, and the 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.” Id. at 805–06. The Connors court further noted that an IHO, as well as a court, possesses this “broad discretion” under the IDEA to award prospective placement, “given that the failure to do so would be contrary to Carter and would deny a child the right of access to needed services guaranteed by the IDEA.” Id. at 806 n. 7.

I find that the Parent has prevailed with respect to the appropriateness of the program requested for STUDENT. Those who are familiar with STUDENT, including Parent, NEUROPSYCHOLOGIST, and Clinical Director, strongly agree that a full-time one-to-one ABA program, along with home-based ABA services, supervised by a BCBA, and with parent training is appropriate for STUDENT. The witnesses provided persuasive and unrefuted testimony and supporting evidence to this effect. The witnesses strongly affirmed the appropriateness of the program to address STUDENT’s individual and complex needs. It was the consensus of the witnesses that the program is reasonably calculated to allow STUDENT to receive educational benefits and make meaningful progress. Parent described the significant progress STUDENT has already made with the 1:1 home-based ABA services he received as interim relief during this proceeding.

The IEP dated December 2, 2021, which is the most recently developed IEP in the record, includes relevant dates that are important to highlight. The CSE identified the “Projected Date IEP Is To Be Implemented” as December 17, 2021. The CSE also designated the “Projected Date Of Annual Review” as December 2, 2022. Therefore, the December 2, 2021, IEP was intended to continue in effect beyond the 2021-2022 school year and into the 2022-2023 school year.

In an in-depth discussion of the remedies of prospective relief, compensatory relief, and direct funding, the State Review Officer stated that, “To be sure however, the parties cannot simply avoid mentioning these issues to the IHO and then the SRO in their memoranda of law in cases where these issues remain in dispute. It is incumbent upon them to clearly make their positions known and bring the most up-to-date law available to the attention of the administrative hearing officers.” (Application of a Child with a Disability, Appeal No. 19-018) In the instant case, there was no dispute, since the DOE was clearly aware of the Parent’s requested relief and raised no objection whatsoever. The DOE completely acquiesced to the Parent’s clearly delineated proposed relief. Therefore, whether the mandates in the Order are considered prospective relief or direct funding for a program the Parent is unable to fund is inconsequential.

It must be emphasized that the DOE did not raise any challenge to the appropriateness of the program sought by the Parent. There has been no aspect of the Parent’s hearing request, the witness testimony, the documentary evidence, or the relief sought, with which the DOE disagreed. The entirety of the Parent’s case is undisputed. I find that the Parent has prevailed with respect to the placement, program, and services sought.

The final criterion for an award is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). An award may be impacted by a parent’s failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).  In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP, or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support an award in favor of the parent. (Application of a Child with a Disability, Appeal No. 04-049).

There were no assertions made by the DOE with regard to any equitable consideration that would preclude an order in favor of the Parent. The record clearly established the Parent’s continuous cooperation and communication with the DOE. There is absolutely no basis on which to reduce or modify the remedy for the Parent.

ORDER

1. The DOE failed to provide a FAPE to STUDENT for the 2021-2022 school year;

2. The DOE shall fund a full-time 1:1 ABA program for STUDENT consisting of the following:

a. A private school placement chosen by the Parent that provides a 1:1 ABA program, including but not limited to the 2ND PRIVATE SCHOOL, for the remainder of the 2022-2023 school year; b. Appropriate transportation to and from the private school placement identified by the Parent. c. Home-based 1:1 ABA services consisting of 20 hours per week of direct ABA services, 2 hours per week of BCBA supervision services, and 1 hour per week of parent training, at an enhanced rate, for the remainder of the 2022-2023 school year. These services are to be provided by AGENCY or another agency identified by the Parent should AGENCY become unavailable.

3. Until such time that STUDENT is enrolled in a school program as set forth in paragraph 2, above, the DOE shall fund a home-based program consisting of the following:

a. Home-based 1:1 ABA services consisting of 40 hours per week of direct ABA services, 4 hours per week of BCBA supervision services, and 1 hour per week of parent training, at an enhanced rate. These services are to be provided by AGENCY or another agency identified by the Parent should AGENCY become unavailable. b. Home-based related services, at an enhanced rate, of occupational therapy twice a week for 30-minute sessions, physical therapy twice a week for 30-minute sessions, and speech-language therapy four times a week for 30-minute sessions.

4. The DOE shall fund STUDENT’s tuition at PRIVATE SCHOOL, retroactive to the date of the Parent’s filing of the due process complaint, September 9, 2021, pursuant to the pendency agreement between the parties (Exhibit O).

SO ORDERED.

DATED: March 17, 2023 Amy Lynne Itzla, Esq.

Amy Lynne Itzla Esq.

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

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

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due Process Complaint and Transmittal Confirmation, 9/9/21, 10 pages

B. First Amended Complaint, 1/31/22, 12 pages

C. Individualized Education Program. 12/2/21, 43 pages

D. Functional Behavior Assessment, AGENCY, 2/2/22, 8 pages

E. Affidavit of Clinical Director, AGENCY, 4/12/22, 2 pages

F. Affidavit of NEUROPSYCHOLOGIST, 4/8/22, 4 pages

G. Curriculum Vitae of NEUROPSYCHOLOGIST, undated, 8 pages

H. Neuropsychological Evaluation, 8/2/22, 15 pages

I. Affidavit of NEUROPSYCHOLOGIST, 10/6/22, 6 pages

J. Academic Annual Review, PRIVATE SCHOOL, 11/7/21, 4 pages

K. Social History Update, DOE, 1/7/22, 13 pages

L. Individualized Education Program, 4/29/21, 20 pages

M. School Location Letter, DOE, 1/7/22, 13 pages

N. Email from Parent to DOE re: School Location Letter (Redacted), 1/27/22, 1 page

O. Pendency Order/Agreement, 216127, 10/1/21, 2 pages

P. Email Correspondence re: Pendency Implementation, 10/27/21, 1 page

Q. Email Correspondence re: Pendency Implementation, 5/23/22-10/4/22, 3 pages

R. Student Attendance, PRIVATE SCHOOL, 9/2021-10/2022, 2 pages

S. FOFD 159436, 2/27/18, 21 pages