New York City Department of Education, Impartial Hearing Decision

NYSED # 566635 / NYC # 221905

FINDINGS OF FACT AND DECISION

Case Number: 221905

NYS Case Identifier Number: N/A

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: REDACTED

Hearing Requested by: Parent

Date of Hearing: 5/4/22

6/2/22

6/14/22

Record Close: 7/14/22

Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 4, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent

[REDACTED], Parent

For the Department of Education:

[REDACTED], ESQ., Attorney

[REDACTED ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 2, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent

[REDACTED, Interpreter

[REDACTED], Parent

[REDACTED], Program Director, [REDACTED]

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 14, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent

For the Department of Education:

[REDACTED], ESQ., Attorney

* All appearances in this hearing were via telephone/videoconference.

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1). The complaint notice was filed on July 7, 2020, but due to the unavailability of impartial hearings officers, I was not appointed until December 30, 2020. [REDACTED] ([REDACTED]) is a [REDACTED]-year-old student, whose parents [REDACTED] and [REDACTED], ([REDACTED, [REDACTED, parents or parent) have brought the instant hearing, arguing that the DOE had failed to provide [REDACTED a free appropriate public education (FAPE) for the 2021-2022 school year. Ex. A. The hearing convened on May 4, June 2, and June 14, 2022. Extensions were granted in accordance with regulations, resulting in a final compliance date of August 20, 2022.

DISTRICT AND PARENT POSITIONS ^[1]

The due process complaint notice (DPCN) in this case included multiple separate claims to support its argument that the district had failed to offer [REDACTED a free appropriate public education for the 2021-200 school year, noting a variety of violations concerning the development of the IEP, specifying failures concerning evaluations, goals, and parent participation, as well as recommending an inappropriate program, lacking behavioral support, ABA therapy, 1:1 aide, and parent training, and inappropriate placement for the child. Ex. A.

As relief, the parent requested funding for the child’s placement at the [REDACTED] ([REDACTED]) for the 2021-2022 school year, transportation with support to and from the school for 2021-2022, 100 hours of compensatory parent training, an ABA assessment and ABA therapy at home for 2021-2022 to supplement his attendance at the [REDACTED], a number of additional assessments followed by independent evaluations conducted upon the parent’s disagreement with district evaluations, 300 hours of compensatory ABA therapy, and related services (speech, physical therapy, and occupational therapy) in coordination with the [REDACTED] placement, and an order directing the CSE to convene an IEP team and develop an IEP with many of the enumerated demands incorporated in its plan. Ex. A.

At hearing on May 4, 2022, the district’s attorney stated that the district would not be offering witness testimony, and conceded that the district had not provided a FAPE for the child. Referencing the other elements of the three-part Burlington-Carter analysis applicable to cases involving unilateral placement, he noted the parent’s burden to establish the appropriateness of the placement, asking that relief be denied on those grounds. Similarly on the question of equities, he reserved position based on what the evidence would show. He also noted as confusing the various relief being requested, compensatory education being requested for the same school year as the placement, asking that compensatory relief be denied. He also stated the DOE’s position regarding the demand for evaluations, stating that the parent was not is entitled to any evaluations, as they had not indicated that they had been denied or disagreed with any district evaluations. In regard to the request for transportation, the parent attorney stated that [REDACTED] was currently getting transportation based on a prior settlement with the DOE, and that it was important to include in any order.

At hearing on June 2, 2022, the parent attorney confirmed that there had been previous due process complaints concerning the school years 2019-2020 and 2020-2021. He also stated that at-home ABA had been provided in the past, conceding that this was partially addressed in previous hearings, and that there was no documentation other than parent testimony. The district’s attorney confirmed that the parent rejected IEPs developed for those two school years, unilaterally enrolling the student at the [REDACTED].

Also at hearing on June 2, 2022, the parent attorney stated that the DOE was in the process of conducting some evaluations, without identifying the evaluations, and confirmed the request for what he termed “specific and full evaluations” including an ABA evaluation. He also said that speech and occupational therapy services were changed to three days a week on [REDACTED’s IEP, and the child was getting more at the [REDACTED], which he said was possibly a moot point, but confirmed the request for physical therapy, which he said was not on the IEP, as well as additional speech language and occupational therapy.

FINDINGS OF FACT

[REDACTED is a [REDACTED -year-old child classified as having autism, presently enrolled at the [REDACTED]. [REDACTED, [REDACTED s mother, testified that developmental issues were first noticed when he was about a year and a half old. He stopped saying words that he had said, began to have repetitive behaviors with his hands, and began to make different turns. The parents were living in the [REDACTED at the time, and his teacher recommended a first evaluation, which showed that he had autistic signs. He received ABA services at the [REDACTED in the [REDACTED, which showed results in areas that he needed help. Tr. 110-145.

The family moved to [REDACTED in the summer of 2018, where he was given an IEP. [REDACTED said that she initially looked for an ABA school for [REDACTED, and the [REDACTED] was the best school and closest to meeting his unique needs, and there was space available for him. She said that the [REDACTED] had behavioral components [REDACTED could use while giving him occupational therapy and speech services. Tr. 110-145.

IEP meeting, May 2021. [REDACTED testified that she asked for evaluations during the May 2021 IEP meeting, but none were done during the 2021-2022 school year.^[2] She testified that she also asked for increased speech therapy, bilingual speech therapy, a sensory gym, and ABA therapy. She explained the request for ABA that it was requested because “if he can have the service here at home besides in school.” She also explained her request for physical therapy was because [REDACTED walks on his tippy toes, which he used to do very often. She confirmed that at the meeting, she wanted her son to continue with [REDACTED]. Tr. 110-145.

[REDACTED, [REDACTED’s father, also attended all the IEP meetings and consented to all evaluations for the DOE. He confirmed a psychological evaluation was requested at the meeting. He described his subsequent visit to [REDACTED, the recommended school. He said that they had a normal gym with a couple of sensory items, and could not guarantee a bilingual speech therapist. He noted the importance of improvements after he gets regulated, so having the gym, and other items in the classroom allows him to get regulated, and he pays more attention. He said he was open-minded during the walk-through the school, but after having a session about what services they provide, he sat down with his wife, and they decide it was not going to meet his needs. Tr. 148-172. According to [REDACTED, after [REDACTED’s father visited the school, they spoke about and they both decided that it wasn’t the best recommendation. Tr. 110-145.

[REDACTED]. [REDACTED confirmed that she knew when she enrolled the child at the [REDACTED] for the 2021-2022 school year that the school did not offer ABA nor provide the child with physical therapy, both of which were requested at the IEP meeting in May 2021, Noting the school did not have an ABA program, she stated that they chose the [REDACTED] because the program offered is similar to the ABA program. Tr. 110-145.

[REDACTED], program director at the [REDACTED], appeared via affidavit and oral testimony. She explained that [REDACTED had begun at the [REDACTED] in September 2019. She described [REDACTED as having very significant sensory processing challenges, and very sensory seeking, putting things in his mouth, always on the move, and unable to take information from his environment and use an integrated way. Tr. 57-104.

She described the [REDACTED] as serving children age 3 to 21 years old with neurodevelopmental delays in relating and communicating, including children with autism spectrum diagnoses who have a core deficit in those areas. About 85 percent of the students have an autism spectrum diagnosis. The school serves 152 students, typically with eight students in a classroom, headed by one head teacher and three assistant teachers. All head teachers have or are enrolled in a program for a master’s degree in special education. The school uses the developmental individual differences relationship based methodology (DIR Floortime) individualized for the students. In addition, the academic curriculum follows common core standards and adapting standard curriculum. Also offered at the school are related services of occupational therapy, speech and language therapy, physical therapy, and counseling, by providers licensed and certified in their fields. Tr. 57-104.

She described a classroom with a 2:1 ratio, stating that in the 2021-2022 school year, [REDACTED was in a classroom with nine students, one head teacher, three teaching assistants, and a paraprofessional not assigned to the child. He often needs one-on-one attention to be able to participate and engage in the activities, as well as working on peer development. He is working at a [REDACTED level in reading, math, science, and social studies, with a curriculum centered about the child and how he fits into the environment. Therapist may push into the classroom, or pull him out depending on the goals, with the basic plan to make sure everyone pays attention to his sensory processing incorporated into the activities. Tr. 57-104.

Academic work addresses him being able to join the group, and he is beginning to be able to use pictures in a group of two, answering some “wh” questions. In math, he is working on one to one correspondence, up to about 10, but on foundation concepts beginning to understand the day’s schedule. She noted improvement in his behavior, finishing one activity before moving onto the next one. In social studies work on diversity and identity, she noted his understanding about himself through pointing at his body parts and seeing the difference between him and his peers. In science, he is beginning to use Play-Doh, and beginning to understand predicted and outcomes. Tr. 57-104.

The basis of his plan at [REDACTED] is his sensory processing, making sure that he receives his sensory diet, activities set up by the occupational therapy at least three times a day, plus sensory breaks and other sensory supports. She described these supports as important for him to be calm, regulated, and available to learn. According to [REDACTED], his sensory processing issues are the basis of his dysregulation, affecting his comprehension, and they have seen improvements in attention, engagement, and communication after he receives his sensory diet. He has also begun to request other methods of communication, and understanding more novel directions, and motor plan, being much more successful with seeing something new and understanding what needs to be done, and following through. Tr. 57-104.

[REDACTED began with and continues with speech and language therapy and occupational therapy at [REDACTED], receiving both services three times a week on an individual basis. He also received bilingual speech therapy, with the speech therapist who speaks [REDACTED, has he hears English and [REDACTED at home and understands both language, and sometimes when he gets upset, using Spanish is helpful to increase his comprehension.

In regard to language, he uses multiple ways to communicate, including gestures, facial expressions, some vocalizations and one word approximations, as well as pictures. In November, his speech therapist began using an augmentative alternative communication (AAC) device, and he has become more comfortable and will seek it out. She noted improvement in comprehension as well as expressive language across multiple different domains. [REDACTED] described the assistive technology application Proloquo2go designed for him by his speech therapist that has pictures on an iPad that can be voice activated if [REDACTED] pushes picture, so it pairs the verbal language with the augmentative language. When given questions, he is usually shown just pictures to choose from so he doesn’t have to scroll through the app’s pages. Tr. 57-104.

In terms of his verbal ability, he has approximations, not a lot of true words, and his overall goal is to improve his verbal communication, with the hope that he will become a verbal communicator. The assistive technology supports are always paired with the verbal language. Asked whether assistive technology might act against motivation for verbal speech, [REDACTED] she stated her experience that if a child can be a verbal communicator, they’re going to become a verbal communicator.

He also has an oral motor protocol, to satiate his need to put things in his mouth, and is in a food group to expose him to other foods. She also noted that he was being toilet trained, and now requested to go to the bathroom, by standing by the door and pointing to his pants. In the bathroom he is independent, although sometimes needing reminders to wash his hands. She described him as pretty independent as far as his ADL skills are.

[REDACTED] agreed that the [REDACTED] does not provide ABA therapy, stating that she believed the school was meeting the child’s needs. She stated that the speech and language therapy and occupational therapy are sufficient to meet the student’s needs during the school day with the program provided. There were five physical therapists in school, but [REDACTED does not receive physical therapy. Asked about physical therapy, [REDACTED] stated that they feel that the program which includes obstacle course groups, and movement groups, addresses, physical therapy needs during the school day. Tr. 57-104.

[REDACTED] noted progress in the current school year, stating that [REDACTED’s dysregulation, which still consists of some screaming, crying, and hitting his hands, happens much less frequently than before, no longer multiple times a day and sometimes only once or not at all. She described techniques used to give him a calm affect, including talk, breaks and sensory techniques, such as deep pressure or jumping on a trampoline, all of which work more quickly than before with the child. She stated that the dysregulation was attributed to his frustration, and not having a successful form of communication, so regulation and communication have improved in tandem. He continues to struggle with attention and engagement, but able to remain in circles of communication has shown some improvement. With peers, she noted him being able to be near other peers, being able to stay in a group without become dysregulated. While the dynamics of the group had dysregulated him in the past, he is able to attend much more in groups, holding onto the attention. In sum, he still presents with challenges in sensory processing, learning, communication, but she has seen progress across all areas while continuing to need the same level of support. Tr. 57-104.

[REDACTED also testified about progress during the 2021-2022 school year, noting improvement in communication, and stating that he is more fluent through the device to tell his parents what he needs. There’s also been a change in his behavior, which she attributed to the sensory gym and therapy he receives there. Before he would feel frustrated, but regulation is much better now compared to before, when he was unable to communicate with her and the child’s father. She stated that he began to have an easier transition from one activity to another, began to use the restroom more independently, and has a better speed at chewing and swallowing when eating. He follows better instructions, which don’t have to be repeated so many times. She also noticed that he is been engaging better in socializing better with other kids. Tr. 110-145. [REDACTED also stated that they had seen improvements in [REDACTED’s behavior and eating “regulation-wise,” in communication, and improvements with the new AAC device. He noted progress made with bilingual speech therapy, as well as the sensory gym. He testified that the DIR approach [REDACTED] has been helpful so far. He noted again that the AAC device has been helpful in allowing him to point to what he wants went when he wants to play with his training. [REDACTED’s tantrums have come down a bit, and although he still gets a bit stressed, stated that he is definitely making progress on that side. Tr. 148-172.

Parent training is provided to the parents in DIR Floortime, as well as providing parent support education groups, and a social worker assigned to families for any specific training they may need as well. She stated that he and his parents participate in training. She stated that DIR Floortime training is held at the school, but if there are things that need to be done at home or support needed home, the school would do that as well. It does not provide in-home therapy on an ongoing basis. Support group and education groups are weekly, and counseling can happen whenever the family needs, which is part of the social workers job. Tr. 57-104.

[REDACTED] didn’t know how often the parents participated in training, but stated that she knew they participated, both in the DIR Floortime training. Tr. 57-104. [REDACTED confirmed training from the [REDACTED] in the 2021-2022 school year, training them to continue to work with the child at home with the progress that he was doing. She said she participated in parent counseling and training in the school year every two weeks. Tr. 110-145. [REDACTED also described training he received from the [REDACTED], noting a focus on pressure points, having a couple items in the house to help. He stated trainings with the occupational therapist has helped them out, and they had one-on-one trainings every two weeks with the teachers. He also stated that the [REDACTED]’s trainings helped the parents, stating that “it’ll be good if we all have some type of therapy at home, too, ABA therapy, just to complement that.” He stated that the techniques from [REDACTED] helped them out, but he and his wife personally think that if there was some type of ABA therapy, which is similar, also at home, it would complement the school’s methodology, as they are similar, and would be beneficial for [REDACTED to have them both. Tr. 148-172.

Contract. The parents signed a contract with the [REDACTED] in July 2021 for tuition for a 10-month program at a cost of $124,417. MR had paid $5,000 on June 16, 2021 to secure the spot for the school year, and agreed that he was obligated to pay the full amount. He stated that his annual income before taxes was $125,000 a year and he was not able to afford the tuition. Tr. 148-172; Ex. BB.

CONCLUSIONS OF LAW

There are a number of issues in this case requiring legal analysis, from the parent’s claim concerning the unilateral placement of the child to the various demands for relief, inclduding evaluations, and additional and compensatory services. These are discussed separately below.

Unilateral placement The decision about the unilateral placement in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s 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. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

ISSUE 1 - Appropriateness of School District Program

A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Bd. of Educ. v. Rowley, 458 U.S.176 (1982); 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student's recommended program must also be provided in the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In this case I find that the DOE has failed to sustain its burden and failed to offer [REDACTED a free appropriate public education for the 2021-2022 school years.

As noted above, the district’s attorney conceded that the district had not provided the child with a FAPE in the 2021-2022 school year. The concession compels the finding that the district failed to provide FAPE to [REDACTED.

ISSUE 2 - Appropriateness of Parent Placement

Under the second prong of Burlington, the parents bear the burden of proving the appropriateness of the services sought for [REDACTED]. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that [REDACTED] offered an educational program designed to meet [REDACTED’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

I find that the parents have sustained their burden of demonstrating the appropriateness of the program at [REDACTED] for the 2021-2022 school year.

I credit [REDACTED]’s testimony concerning the use of the school’s DIR Floortime methodology for [REDACTED as well as her description of [REDACTED]’s classroom, noting a staff ratio that allows the one-on-one attention he needed to participate and engage in the activities. In regard to academics, I note a curriculum following common core standards with adaptation, and work on the child being able to join the group, use pictures in answering some “wh” questions, and on foundation concepts and one to one correspondence in math. I credit the description of the sensory diet set up by the occupational therapist, and the benefit of bilingual speech therapy and implementation of the AAC device by the speech therapist, as described by both [REDACTED] and [REDACTED]’s parents.

I credit [REDACTED]’s overall conclusion that [REDACTED was showing improvement in self-regulation, with decreased dysregulation, improved attention, and improve skills in closing the circle of communication. She also described improvement in his behavior and growth in understanding about his body and difference between him and peers. Also noted was progress in all academic subjects, as well as with respect to his related services. As [REDACTED] described it, despite challenges in sensory processing, learning, and communication, she has seen progress across all areas, while continuing to require the same level of support. Undisputed were the child’s improvements in attention, engagement, and communication, which was attributed to the sensory diet set up for him, allowing him to maintain regulation enabling his availability to learn. The parents also stressed progress in regulation and communication. Despite continued struggles with attention and engagement, [REDACTED saw better transitions, improvement in following instructions, and socializing better with other children, able to stay in a group without become dysregulated. Both parents noted improvement in communication and behavior, as well as socialization with peers, which they attributed to the sensory gym and bilingual speech therapy and AAC device therapy at [REDACTED].

For all the above, I find that the parents have sustained their burden of demonstrating the appropriateness of the program at [REDACTED] for [REDACTED] for the 2021-2022 school year.

ISSUE 3 - Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. 1412(a)(10)(C)(iii).

In this case, there was no evidence that the parent did anything but cooperate with the DOE, attending IEP meetings, visiting the recommended school, and notifying the district of the intent to make a unilateral placement. I also note [REDACTED’s undisputed testimony that he could not afford tuition payment. An impartial hearing officer can order prospective tuition funding, where in circumstances to hold otherwise would be to deny a child the right to access to services under the IDEA. Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY).

Under the circumstances, there is no evidence to warrant any denial or reduction of an award for tuition for the child’s attendance at the [REDACTED] in the 2021-2022 school year.

Additional Demands for Relief The question remains about the multiple demands for additional relief requested by the parent. The ruling holds that the district failed to provide the child with a FAPE and the [REDACTED] met [REDACTED]’s special education needs. Despite these rulings, they did not eliminate the need for a decision concerning for other claims and relief demanded for the child.

While a unilateral placement commonly eliminates any demand for additional services form a school district, it is true that under certain circumstances a child might be entitled to receive additional services than provided in a unilateral placement in order to make educational progress. Demands for additional services require evidence of their support being required for the special education needs of the child.

To begin, the demand for an order directing the CSE to convene and develop an IEP for the child to be provided with services at the [REDACTED], in more detail, is beyond my authority as an IHO. Various other items included in the overall demand for an IEP are addressed in the following sections..

As a general rule, as explained in more detail below, the many requests for compensatory relief is this case it utterly baseless. In the first place, there was no evidence that the child did not receive the various services, such as speech and occupational therapy. As noted above, there was no evidence to suggest the need for other services, such as ABA or physical therapy, thus no compensatory would apply to those either. Even more, it was undisputed that the child’s attendance at the [REDACTED] had been the subject of claims over the past two years prior to the instant case, in the 2019-2020 and 2020-2021 school years, with some kind of resolution. Certainly, there could be not relief offered for anything missed during those years.

Request for ABA at-home services, compensatory services, and assessment. In regard to ABA, the parent also requested the program to have additional at-home ABA therapy. Specifically, the DPCN demanded an ABA assessment, 300 hours of compensatory ABA therapy, and 20 hours per week of at-home therapy to supplement his attendance at the [REDACTED].

The combination of these claims and demands reveals a confused and contradictory argument devoid of substance. There was no evidence in this case to suggest that the ABA services asked for were needed. School districts are not required to generalize skills learned in school to the home. There was no credible evidence in this case to demonstrate that the child required at-home ABA services to make educational progress.

Certainly ABA was not needed at the [REDACTED]. As discussed in the previous description of the [REDACTED] program and as [REDACTED] testified, the program was sufficient to meet the child’s instructional needs and for the child to make progress. In fact, all the parents were requesting was at-home services, and without any claim that services were needed for the child’s education. The child’s mother did not even offer a reason for her request; the child’s father stated it would be beneficial for the support at home as it would complement the methodology at [REDACTED], which he noted was similar. It was also stated by the parent attorney that at-home ABA had been provided in the past, conceding that this was partially addressed in previous hearings, The same reasoning applies to the request for 300 hours of compensatory services, a claim without any other reason described in the record other than the general statement in the DPCN that it was based on the denial of FAPE for the school year, and without any attempt to provide the basis for the amount demanded. Again, as the unilateral placement was appropriate, and it was further undisputed that it provided a similar program to one based on ABA (in fact, according to the mother, the school was chosen precisely because the program similar to the ABA program), there was no basis for a compensatory award for ABA services.

As for the request for an assessment, the request again was specifically for assessment for home services only. The child was attending appropriate school selected by the parent and getting instruction similar to ABA, and the parent had not indicated a need for at-home services for the child’s education.

For the above reasons, the demands for at-home ABA services, compensatory at-home ABA services, and an ABA assessment are denied.

Speech language, physical therapy, and occupational therapy, and evaluations in speech, physical therapy, and occupational therapy, and assistive technology. Similarly, the parent also requested the program to have additional speech, physical therapy, and occupational therapy, as well as evacuations in those respective field.

In regard to speech and occupational therapy, there was absolutely no evidence to suggest that additional services, were needed. The child received assistive technology and occupational therapy at the school, and I credit [REDACTED]’s testimony that the speech and language therapy and occupational therapy are sufficient to meet the student’s needs during the school day with the program provided. The parents as well as [REDACTED] were clear that the sensory diet which the occupational therapist created, and the bilingual speech therapy and AAC device were working well for the child’s educational needs, attributing to his progress. Evaluations were not needed. Given the school’s adoption of AT and continued progress the child was showing, an AT evaluation was also not needed.

In regard to physical therapy, there was no evidence to suggest that the physical therapy asked for was needed. The parent’s sole concern was the child sometimes walking on tippy toes. In fact, there were five physical therapists at [REDACTED], but there was no evidence that there had been any request to the school to provide physical therapy or assess the child for physical therapy. In that regard, I credit [REDACTED]’s explanation that [REDACTED] did not receive physical therapy as the school believed the obstacle course groups, and movement groups addressed his physical therapy needs during the school day. Evaluations were not needed.

For the above reasons, the demands for speech language, occupational therapy, and physical therapy services and for speech language, occupational therapy, physical therapy, and assistive technology evaluations are denied.

Additional evaluations. The DPCN also included demands for numerous other evaluations including a psychological evaluation, functional behavioral assessment, and neuropsychological evaluations. For each of these, there was not a single reason offered nor any evidence to suggest a reason an evaluation had been requested. In regard to the FBA, I note the parent’s testimony that the [REDACTED] had behavioral components [REDACTED] could use. Moreover, I am not willing to order evaluations when there was a statement from the parent attorney that there had been some evaluations conducted, without any information as to which evaluations they were. Exs. Y, Z.

For the above reasons, the demands for psychological evaluation, functional behavioral assessment, and neuropsychological are denied.

Independent educational evaluations. The DPCN further included a demand that should the parent disagree with any of the various evaluations conducted by the district pursuant to the parent’s demands, the district should fund IEEs in those areas. State regulations clearly require parents to assert disagreement with an evaluation obtained by the district. 8 NYCRR §200.5(g). Asking for a remedy when there has been no claim of damage is a preposterous demand. This is not just speculative, but completely conflicting with and outside the bounds of any legitimate process for obtaining independent evaluations. For the above reasons, the demands for independent educational evaluations are denied.

Compensatory parent training. The demand for 100 hours of compensatory parent training is equally baseless. It was undisputed in testimony from [REDACTED] and the parents that the [REDACTED] supplied a comprehensive parent training program for the parents, which they attended was helpful to them..

For the above reasons, the demand or compensatory parent training is denied.

Transportation. The award in this case shall not include an award for transportation. The DPCN asked for special transportation during the 2021-2022 school year. The IEP requires special transportation due to his delays, and there was no evidence that the DOE was not providing it. It was undisputed that the parent attorney stated that [REDACTED] was currently getting transportation based on a prior settlement with the DOE, saying that it was important to include in any order. Given the possibility that this had been addressed and resolved in a prior case, the fact that the school year is over, and there was no evidence that the child did not received transportation, there will be no order for special transportation for the child.

For the above reasons, the demand for special transportation for the 2021-2022 school year is denied.

ORDER

• • The DOE shall reimburse the parent for $5,000, upon submission of proof of payment.
• • The DOE shall fund the program for [REDACTED]at the [REDACTED], and provide payment for the balance due for tuition in the 2021-2022 school year, for a total no greater than $119,417.
• • The parents’ multiple requests for IEP revisions, additional services, compensatory services, evaluations, independent evaluations, and transportation for [REDACTED] for the 2021-2022 school year are denied:
• • The demand for an order directing the CSE to convene and develop an IEP for the child to be provided with services at the [REDACTED] is denied.
• • The demands for ABA at-home services, compensatory ABA services, and ABA assessment are denied.
• • The demands for speech language, physical therapy, and occupational therapy, and evaluations in speech, physical therapy, and occupational therapy, and assistive technology are denied.
• • The demands for psychological evaluation, functional behavioral assessment, and neuropsychological are denied.
• • The demand for independent educational evaluations is denied.
• • The demand for compensatory parent training is denied.
• • The demand for special transportation is denied.

IT IS SO ORDERED.

Dated: July 18, 2022

_____________________________

NANCY M. LEDERMAN

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 proceedings 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.

EXHIBITS *

DEPARTMENT OF EDUCATION EXHIBITS

1 IEP, 5/19/21, 27 pages

2 Attendance page from IEP meeting, 5/19/21, 1 page

3 Social history update, 5/25/19, 4 pages

4 Classroom observation, 5/1/19, 1 page

5 Bilingual psychological evaluation, 7/6/18, 6 pages

6 Prior written notice and school location letter, 6/28/21, 6 pages

PARENT EXHIBITS

A Due process complaint, 11/22/21, 15 pages

C Bilingual psychological evaluation social history, 7/6/18, 9 pages

D Occupational therapy evaluation, 7/13/18, 4 pages

E Neurological evaluation, [REDACTED], 7/19/18, 3 pages

F Bilingual speech language evaluation, 7/26/18, 6 pages

G Bilingual educational evaluation, 7/31/18, 6 pages

H Behavioral observation, 7/31/18, 2 pages

K Turning-5 speech and language notes, 12/21/18, 2 pages

L Consent for testing, 1/16/19, 1 page

M Social history update, 2/25/19, 4 pages

O Progress report, [REDACTED], December 2019, 9 pages

P Progress report, [REDACTED], June 2020, 9 pages

Q IEP, 6/19/20, 18 pages

R Multidisciplinary progress report, [REDACTED], December 2020, 10 pages

S Remote learning plan update, [REDACTED], January 2021, 2 pages

T Ten-day notice letter, 5/17/21, 3 pages

U IEP, 5/19/21, 27 pages

V Prior written notice, 6/28/21, 4 pages

W Multidisciplinary progress report, June 2021, 12 pages

X Multidisciplinary progress report, January 2022, 8 pages

Y Signed consent for testing, 3/11/22, 1 page

Z Reevaluation request, 3/11/22, 3 pages

AA Brochure, [REDACTED], undated, 8 pages

BB School contract, 7/12/21, and tuition affidavit, 4/25/22, 7 pages

CC Affidavit, [REDACTED], 6/1/22, 5 pages

* There were no exhibits 7, B I, J, or N entered into evidence.

Footnotes

[1] This section does not constitute anything more than a description of the parties’ positions on the DPCN and clarification offered by the attorneys during the hearing, not including closing arguments. They should not be interpreted as providing any evidentiary basis in the record.

[2] Consents for evaluations were completed in March 2022, after the DPCN was filed. As noted, the parent attorney confirmed that the DOE was in the process of conducting some evaluations, without identifying the evaluations. Exs. Y, Z.