New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 567381- NYC: 222543

FINDINGS OF FACT AND DECISION

Student’s Name ^[1]: [Redacted], ("Student")

Date of Birth: [Redacted]

School District: [Redacted]

Hearing Requested by: [Redacted],("Parents")

Request Date/Date Complaint Filed: December 8, 2021

Date(s) of Hearing: January 24, 2023 and February 10, 2023

Actual Record Closed Date: March 10, 2023

Date of Decision: March 13, 2023

Date of Distribution if Different than Decision Date: March 13, 2023 Hearing Officer: Linda Agoston

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 24, 2022

For the Student:

[Redacted], ESQ., Attorney

[Redacted], Parent Student

[Redacted], Parent Student

[Redacted], Principal, [Redacted], Academy

[Redacted], Licensed Behavioral Analyst

For the Department of Education:

[Redacted], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 10 2022

For the Student:

[Redacted], ESQ., Attorney

[Redacted], Parent Student

For the Department of Education:

NONE

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (IHO) on Parents' Due Process Complaint (DPC) filed on or about December 8, 2021. (P-Exh. A)2. In their first DPC dated December 8, 2021, the Parents sought public funding for the cost of the student’s placement in appropriate New York State Educational Department Approved Non Public Day School (NPS) and in the event an approved NPS was not to be found, the Parents requested public funding for a non-approved private school (P-Exh. A at 5). The Parents further sought funding for the costs of an independent educational evaluation (IEE) (Id.).

On March 21, 2022, I was designated by the New York City Department of Education (NYC DOE) as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, (IDEA) 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York in the matter of [Redacted] (hereinafter "the Student"). A Pre-hearing Conference was held on March 28, 2022. I scheduled a hearing regarding the request for IEEs on April 7, 2022 and on April 7, 2022, I ordered the DOE to pay the cost of the Speech and Language Therapy (SLT) evaluation at the rate of $[Redacted] per the Resolution Agreement to Therapy Matters NY SLP PC (IHO-Exh. I). The DPC was amended on September 13 ,2022 (P-Exh. C) and accepted by the DOE.

Hearings on the merits were held on January 24, 2023 and February 10, 2023. It was a closed hearing, and Parents were represented by [Redacted]. The DOE was represented by [Redacted]. Parents entered into evidence exhibits (P-Exhs. A-S). The DOE did not enter any evidence into the record (T.73). The Parents alleged in their amended DPC that the DOE failed to provide a free and appropriate public education (FAPE) for the 2021-2022 school year as the Committee on Special Education (CSE) developed the Individualized Education Program (IEP) review without the required members. Further, the Parents asserted that the CSE did not conduct the legally required evaluations to support the recommended program of an integrated coteacher (ICT) classroom. The Parents alleged that the DOE did not conduct updated cognitive and academic assessments, a classroom observation and did not develop an appropriate Functional Behavior Assessment (FBA) and behavioral intervention plan (BIP) (P-Exh. C at 3). The Parents further alleged that the April 9, 2021 IEP was not reasonably calculated to enable the student to receive educational benefits because it failed to recommend a small and highly structured fulltime special education program and did not provide sufficient management supports to address the student’s severe behavioral needs (P-Exh. C at 4). The Parents challenged the goals and objectives, the methods of measurements and the amount of SLT and asserted that the IEP failed to recommend a full-year extended school year (ESY) program, despite the fact that a 12-month placement was recommended by the previous CPSE IEP based on the providers’ reports to prevent inevitable regression of learned skills (Id.).

The Parents alleged that the parties entered in a partial Resolution Agreement pursuant to which the DOE authorized funding for: a Neuropsychological Evaluation; a Speech and Language Assessment; and a FBA. The Parents asserted that after the evaluations, "the CSE reconvened on June 14, 2022, to provide the student with an appropriate educational program and placement for the upcoming 2022-2023 school year" (P-Exh. C at 5). The Parents asserted that the DOE failed to provide the Student with an IEP at the beginning of the 2022-2023 school

2 Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate. year in violation of federal and state regulations: 34 C.F.R. § 300.323[a]; 8 NYCRR 200.4[e][1][ii] (P-Exh.C at 5-6). Accordingly, the Parents enrolled the Student in the [Redacted] Academy, the private school (hereinafter "TPS"), a private school which is not approved by the New York State Education Department. The Parents seek direct tuition funding for the cost of the student’s appropriate unilateral placement at TPS for the 2022-2023 school year, compensatory education in the form of 10 hours per week of 1:1 ABA therapy to make up for a denial of FAPE for the 2020-2021 through 2022-2023 school years, and reimbursement for transportation expenses associated with the student’s unilateral placement at TPS for the 2022-2023 school (P-Exh. C at 6-7). The parties moved to extend the compliance dates during the course of the hearing and I granted the requests for extensions of the compliance dates (T.131;IHO-Exhs. II-X). Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.^[3] On March 10, 2023, the Parents' representative submitted his brief (IHO Exh. XI) and the District representative declined to submit a closing statement. The current record close date is March 10, 2023 and the decision due date is March 24, 2023.

The record was closed on March 10, 2023.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered 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

The Student is a [Redacted]-year-old boy of [Redacted] descent with a history of autism spectrum disorder (ASD) and Attention-Deficit/Hyperactivity Disorder (ADHD), Combined Type, and Language Disorder (P-Exh. N at 8), who was enrolled at TPS for the 2022-2023 school year for the 1st grade (P-Exh. E at 1).

On various dates in January and March 2022 a Neuropsychological Evaluation was conducted by [Redacted], Ph.D., a Board Certified Clinical Neuropsychologist, when the Student was [Redacted] years old and had attending a NYC public school in Kindergarten at [Redacted] in an ICT class. After an IEP conducted on October 2021, the Student was placed in a 12:1+1 classroom setting (P-Exh. N at 2). Dr. [Redacted] provided the history of the Student and noted that the Student received services through Early Intervention at 20 months and "received 20 hours of Applied Behavior Analysis (ABA) therapy, in addition to speech and language therapy, occupational therapy, and physical therapy from the age of 23 months until approximately age 3"(P-Exh. N at 2). In Preschool, the Student received had "[Redacted], " (Id).

Dr. [Redacted] assessed the Student's general cognitive ability on the Wechsler Intelligence Scale-5th Edition and reported his Verbal Comprehension was 46, in the <.1st percentile, in the extremely low range (P-Exh. N at 6). He found that the Student's intellectual functioning score was an under estimate due to "[Redacted]" (Id.). The Student's social and emotional functioning based on ratings from the Student's teacher and Parent on the Social Responsiveness Scale – 2nd Edition, indicated that the Student's social awareness, cognition, communication and motivation and his socialization and motor skills scores were in the low range. Dr. [Redacted] found that the Student's "[Redacted]" (P.Exh. N at 7). Dr. [Redacted] determined that the Student continued to meet the criteria for ASD, ADHD, Combined type and Language Disorder and recommended "[Redacted] " (P-Exh. N at 8). Dr. [Redacted] further recommended that given the Student's "[Redacted]" (P-Exh. N at 9).

The Speech and Language Evaluation was conducted on January 7, 2022, when the Student was [Redacted] and the evaluator noted that the Student received ABA instruction until the age of [Redacted] and the Student was diagnosed with ASD and had limited expressive vocabulary (P-Exh. B at 1) and that the Student was hyperactive and impulsive (P-Exh. B at 2).

For the 2022-2023 school year, the Program Description of TPS indicated that their program serves ASD students and provided ABA and discrete trial teacher DTT and sensory integration as well as real-time functional therapy (RTFT) and each program focuses on academics, social skills and life skills (Exh. D at 1- 7).

The Transportation Contract from [Redacted] Inc., dated October 23, 2022, indicated that the driver would pick-up the Student and the Parent from home and drive them to TPS twice per day for $[Redacted] per each round trip (P-Exh. P at 1) and the Affidavit Letter indicated that the Parents paid [Redacted] Inc., $[Redacted] by 10 checks (P-Exh. Q) and the Parents submitted 10 checks that totaled $9,000 (P-Exh. R at 1-10).

The Parents submitted 2 Uber receipts in the amount of $129.91 and $110.34 (P-Exh. S at 1-2).

The Enrollment Contract was dated October 24, 2022 (P-Exh. E at 2).

The Student's schedule for the 2022-2023 school year consisted of ADL, Class Meeting, SLT, Art, Social Thinking, ELA, Science/SS and math (P-Exh. F at 1).

The Parent submitted TPS's Tuition Affidavit that indicated a balance due of $[Redacted] (P-Exh. H at 1).

TPS's Academic Progress Report for the 2022-2023 school year dated January 10, 2023, indicated that the Student was placed in the BASE Elementary program at TPS in Queens on October 24, 2022 and that the Student received related services of OT and SLT and to reduce maladaptive behaviors the Student received "[Redacted]" (P-Exh. M at 1). DTT and ABA methodologies were used for educational readiness, reading, writing, math and DLS (P-Exh. M at 2-3).

TPS's SLT Progress report dated January 12, 2023, indicated that the Student communicated "[Redacted]" (P-Exh. L at 1). The speech pathologist indicated that the Student required "[Redacted]" (Id.). The speech pathologist noted that the Student benefited "[Redacted]" (Id.). The speech pathologist recommended individual SLT 3 times per week for 30 minutes per session individually and once in a group setting session (P-Exh. L at 2).

TPS's OT Progress report dated January 12, 2023, indicated that the Student received individual OT twice per week for 30 minutes per session (P-Exh. K at 1) and that the Student benefitted "from verbal and visual prompts to redirect to a therapist-directed task" (Id.).

The Student's BIP dated December 13, 2022, indicated that the Student's targeted behaviors were [Redacted] and inappropriate social behavior and that the proactive strategies were [Redacted] (P-Exh. I at 1-2).

The Student's FBA indicated the description, frequency, duration and intensity of behavior and the reinforcers of writing, preferred staff and interests (P-Exh. J at 1-2).

ISSUES

Did the DOE fail to provide a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years and did the Parents establish that TPS was appropriate and did the Parents establish that 10 hours of at-home ABA were appropriate and did the equities favor the Parents and are the Parents entitled to reimbursement for transportation for the 2022-2023 school year?

FINDINGS OF FACT

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student's unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is "reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances"(Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 [U.S. Mar 22, 2017]).

To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy" or "guarantee any particular level of education" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted). FAPE is delivered by a school through the implementation of an appropriate IEP. See Endrew F. v. Douglas Cnty. Sch. Dist., 137 S.Ct. 988, 994 (2017).

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; 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]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR ¶ 234 (App. Div. 2011).

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne

G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]).

The burden of both production and persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

I credit the testimony of the District representative who did not contest any allegations contained in the DPCs including, inter alia, that there were no evaluations to support IEP including the FBA and BIP and no ESY services for the 2022-2023 school year. I find that the District representative stated that she was not presenting a case and was not presenting any evidence regarding the Parent's claims and conceded that there was a denial of FAPE, (Prong 1) both to the lack of appropriate program and placement for the contested years (T.73). I credit the testimony of the Principal of TSP find that TPS was designed for students with ASD and that she was employed as the Assistant Principal at TPS for 6 years and was in her current position since July, 2022 (T.76). I find that for the 2022-2023 school year TPS had 65 students aged 5 to 10 with 11 classrooms for students who require ABA and DTT and that the Student attended the Base Elementary Program and that the Student enrolled in October 2022 (T.77). I credit the testimony and find that TPS matched recommendations from the Neuropsychological Evaluation (P-Exh. N at 8) because the Student was placed in a very small structured class with the student to staff ratio of 6:1:1 and TPS provided ABA and DTT on a 1:1 basis (T.78;84). I credit the testimony and find that the Student's interfering behaviors of [Redacted] and [Redacted] social behaviors were addressed by the BIP (P-Exh. I) and that the entire staff was trained to use positive reinforcement and a token system and that sensory movement breaks addressed his negative behavior and ADHD and made the Student more available for learning (T.81). I credit the testimony and find that the Student received related services of SLT and OT twice per week for 30 minutes per session to work on graphomotor skills from NYS licensed providers (T.83) and that the SLT provider worked on expressive and pragmatic skills and his ability to follow directions (T.84). I credit evidence and find that the Student was placed in class with 6 students and his teacher possessed a Master's degree in special education and was trained to provide ABA and that the entire staff at TPS was trained in ABA (T.86).

I credit the testimony of the NYS Licensed Behavior Analyst (LBA) and Board Certified Behavior Analyst (BCBA) who testified that she was the Clinical Operations Director of [Redacted] and provided ABA supervision of the ABA providers for the home program, and that her ABA providers were NYS certified special education teachers who provided ABA services in the homes of ASD children (T.91;93). I credit the testimony and find that the rate for 1:1 ABA at home was $[Redacted] and that the ABA providers for the Student would be supervised by a NYS certified BCBA and LBA and the ABA providers would be taught ABA and would be NYS certified special education teachers (T.96-97).

I credit the testimony and evidence and find that the Parent provided the evaluations (PExhs. B,N) to the IEP and had participated in the IEP meeting on June 14, 2022 and had recalled that the CSE team stated that they would defer the Student's placement for a NPS and that the DOE did not provide a placement for a NPS from June 14, 2022 to October 24, 2022. I credit the testimony and find that without a NPS placement the Parent placed her son at TPS (T.105). I credit the testimony and evidence and find that the Parent signed the enrollment contract (PExh. E) for the tuition from October 24, 2022 to June 24, 2023 was $[Redacted](T.106;P-Exh. H). I credit the testimony and I find that the Parents could not afford to pay any part of the tuition based on their income (P-Exh. O) and I credit the testimony and find that the Parent requested

10 hours of ABA at home at the rate of $[Redacted] as recommended by the Neuropsychological Evaluation (T.107). I credit the testimony and find that Parents called the Transportation Bureau of the DOE and that on January 10, 2023, the DOE authorized payment to the Uber driver and the DOE started to pay Uber directly on January 22, 2023 and that prior to January 22, 2023, the Parents paid out-of-pocket for the Uber driver (T.119). The Parents submitted an Affidavit (P-Exh. Q) that indicated that from October 24, 2022 to January 10, 2023. The Parents submitted the checks for the Uber driver that indicated that a round trip from the Student's home to the school was $[Redacted] for the ride in the morning and $[Redacted] for the round trip for the afternoon (T.121). I credit the testimony and find that the Parents entered into a contract (PExh. P) to bring the Student and the Parent to TPS twice per day because there was no bus transportation (T.125). I credit the testimony and find that the Parents paid $[Redacted] from October 24, 2022 to January 10, 2023 as evidenced by the checks (P-Exh. R) and that the receipt from the DOE to Uber USA, LLC dated January 11, 2023, was the authorization from the DOE to pay Uber directly (T.127).

CONCLUSIONS OF LAW

Having found that the District representative conceded that a FAPE was not offered for the 2020-2021, 2021-2022 and 2022-2023 school years, I further conclude that the deprivation of a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years impeded the Parent's substantive and procedural rights under the IDEA, and significantly impeded the Parents' opportunity to participate in the provision of a FAPE to their son. Accordingly, I find that the Parents established the First Prong.

The Parents must establish the Second Prong (Prong 2) of the Burlington/Carter test for prospective payment/ reimbursement in that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. The fact that the facility selected by the parent to provide special educational services to the child is not State-approved as a school for children with disabilities is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]). The Parents must prove that the Student will receive an appropriate educational benefit from TPS program. The Second Circuit framed the legal standard for the second prong in Frank G. v. Board of Education, 459 F.3d 356 (2d Cir.

2006) and Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007). Under Frank G. the Court held that "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" (Id.). Parents' placement may not be held to certain requirements that Districts are held such as teacher licenses or least restrictive environment under Frank G. and Gagliardo and the unilateral placement is a not perfect placement (M.S. ex rel S.S. v Bd. Of Ed., 231 F.3d 96 [2d Cir. 2000]).

I conclude that the testimony and evidence established how TPS met the Student's unique special education ASD, ADHD and social skills deficits as well as expressive language deficits as outlined in the private evaluations (P-Exhs. N at 8;B at1 ).

I further conclude that TPS was reasonably calibrated to confer an educational benefit upon the Student and that he was able to make academic progress through the small student to staff ratio of 6:1:1 class, the ABA was implemented each day on a 1:1 basis (T.78;84).

Therefore, the Parents met their burden to establish that TPS for the 2022-2023 school year provided instruction designed to meet the Student's unique needs and was reasonably calculated to enable the Student to make meaningful educational gains. The testimony and evidence adduced at the hearing demonstrated that the Student's placement at TPS in very small, highly therapeutic setting was recommended by the Neuropsychological Evaluation (PExh. N at 8), and that the Student was placed in a "[Redacted] " (P-Exh. N at 8). The credible and uncontested evidence established that TPS enabled the Student to progress academically, behaviorally and socially/emotionally by ABA, DTT, [Redacted] and [Redacted] (P-Exhs. K-M). The evidence established that TPS addressed the Student's behavior needs with the BIP (PExh. I) and I find that his negative behavior of [Redacted] were reduced by the token board, proactive strategies and sensory and movement breaks (P-Exh. M at 1). The Student was placed in a small classes with a student to staff ratio of 6:1:1 as recommended by the Student's Neuropsychological Evaluation (P-Exh. N at 8). Credible evidence established that TPS provided the Student with highly individualized program to increase his reading skills by expressively identifying [Redacted] and could count to [Redacted] and add double digits addition and single digit subtraction and was able [Redacted] (P-Exh. M at 1). Credible evidence established that the Student received SLT to improve his receptive and expressive skills during the 2022-2023 school year by FCT (P-Exh.L at 1) and that he received counseling sessions once per week for 30 minute(P.Exh. J at 3), and he received OT to assist in self-regulation to sustain attention and hand writing (P-Exh. K at 1). I find that the small student population of [Redacted] students aged [Redacted] decreased the Student's anxiety, ADHD and negative behavior. The NYS licensed related service providers for counseling, SLT and OT throughout the 2022-2023 school year met the Student's related service needs as the Student received weekly and individual sessions for his related services.

Accordingly, I find that the staff at TPS addressed his unique special education needs and I find that his attention needs were addressed by the 1:1 instruction and small academic classes of 6 students and I find that the Student progressed in academics, behavior and social/emotional skills and his ability to attend improved. I find that TPS was a small school with small classes that would not overwhelm him and I find that TPS addressed his distraction issues and I find that the Student was grouped appropriately for his academic needs and his behavior needs and his social and emotional development at TPS (T. at 142).

Therefore, I find that the Parents met their burden regarding the unilateral placement of the Student at TPS for the 2022-2023 school year and I find that the program at TPS met the Student's unique special education needs and the Parent established the Second Prong (Prong 2) of the Burlington/Carter test. The Parents' attorney asserted that that Student was entitled to "compensatory education in the form of 10 hours of after-school ABA instruction for the undisputed denial of a FAPE for the past two years"(IHO-Exh. XI at 9).

It is well established that that a district is not required to provide all services necessary to maximize a student’s potential. Those considerations similarly constrain unilaterally selected parental programs. Gagliardo, 489 F.3d at 112; see Frank G. at 364-365. In this matter the Parents asserted that the Student required additional services at home to supplement the TPS program. I find that ASD students often have a program which includes "ABA therapy, whether at home or in school," to ensure that the student continues to progress in their education. P.K. ex rel. S.K. v. N.Y. City Dep't of Educ., 819 F. Supp. 2d 90, 114–15 (E.D.N.Y. 2011), aff'd, 526

F. App'x 135 (2d Cir . 2013); see C.B. v. N.Y. City Dep't of Educ., 2005 WL 1388964, at *23 (E.D.N.Y. June 10, 2005) (finding that the record demonstrated that home based therapy was an important component of the student's education).

The Parents' attorney asserted that in "a recent decision, United States District Court Judge, Analisa Torres, found that compensatory education and tuition reimbursement are not mutually exclusive and can be ordered as an appropriate relief for a single school year. See V.W. v. New York City Dep’t of Educ., 2022 U.S. Dist. LEXIS 147630, 2022 WL 3448096, at *13-14 (S.D. N.Y. August 17, 2022) citing DOE v. E. Lyme Bd. of Educ., 790 F.3d 440, 445 (2d Cir.

2015) ('appropriate equitable relief' can include 'reimbursement or compensatory education (or both) for the full value of services that the educational agency was required to fund[.])'"(IHOExh. XI at 7).

Based on the credible testimony of the Parent I conclude that the Student required a 12-month program of in school ABA and an after-school program that consisted of 10 hours of 1:1 ABA (T.104).

It is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir. 2008) Further, [i]f the student has become ineligible for special education by reason of age or graduation, compensatory education has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]).'Appeal No. 11-027"…[C]ompensatory 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])."Appeal No. 11-027.

Compensatory education is an appropriate remedy when, as here, a student does not receive a FAPE. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008); Streck v. Board of Educ. of the East Greenbush Central School Dist., 408 Fed. Appx. 411 (2nd Cir. 2010) (citing Burr v. 11 Ambach, 863 F.2d 1071, 1078 (2d Cir.1988)); parent of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir.1994); Reid ex rel. Reid v. District of Columbia, 401 F.3d 516 (C.A.D.C. 2005); Application of the Dep't of Educ., Appeal No. 12-135; Application of the Dep't of Educ., Appeal No. 11-132. Further, students denied pendency are entitled to make-up services. Student X. v. New York City Dep't of Educ., 2008 WL 4890440 (E.D.N.Y. October 30, 2008).

I find that the DOE did not present any evidence demonstrating an equitable bar to relief the Parents is seeking.

I find that the Neuropsychological Evaluation recommended a home-based program consisting of 10 hours per week of ABA intervention to address the Student's low social and communication skills (P-Exh. N at 9). Moreover, the credible BCBA's testimony established that her agency provided home-based 1:1 ABA sessions to generalize skills learned in school and I find that the home-based ABA sessions were necessary and that the ABA providers at home were NYS certified special education teachers who provided ABA services in the homes of ASD children (T.91;93). Based on her credible testimony I find that the rate for 1:1 ABA at home was $150 and I find that the rate of $[Redacted] was the prevailing rate and I find that the ABA providers for the Student would be supervised by a NYS certified BCBA and LBA and the ABA providers would be taught ABA and would be a NYS certified special education teacher(T.92;96-97). I find the testimony and evidence established that the 10 hours of at-home ABA was necessary and appropriate.

The Third Prong of the test for tuition reimbursement is whether the equities favor the Parents' position. I find that the Parents established the Third Prong. Tuition reimbursement to be reduced or denied if the Parents (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to his “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the Parents informed the CSE that they intended to enroll their son at TPS for the 2022-2023 school year when no appropriate program/placement was offered (P-Exh. C) after the most recent CSE meeting and complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the equitable considerations do support the Parents' claim for reimbursement/funding. In this case, the Parents fully cooperated with the district to the best of their ability. I credit the Parent's testimony that she provided the CSE with all private evaluations (P-Exhs. B, N;T.105).

I conclude that Parents established that they were unable to pay to the tuition by their uncontested testimony. Parents who have satisfied each of the Burlington factors. have a right to retroactive direct tuition payment relief (A ex. rel D.A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-429 (S.D.N.Y. 2011). I credit the Parent's testimony and I find that the Parents lacked the financial resources to pay tuition for TPS for the 2022-2023 school year and it would be a hardship to pay the full tuition and wait for reimbursement(T.106). I find the Parents met the Connors criteria for prospective funding for the cost of the tuition for the 2022-2023 school year at TPS and I find that the Parents are entitled to direct retroactive payment. "Once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately" (Connor v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y)).

Transportation is a related service when it is necessary in order for a student to benefit from special education. I conclude that the DOE has not disputed the Parents' entitlement to transportation reimbursement if, as here, entitlement to tuition reimbursement/prospective funding has been established. Nor has the DOE raised claims concerning the amount of each trip. The DOE will be ordered to reimburse the Parents for payments made for actual trips to and from TPS.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered: (1) that the DOE has failed to provide the Student with a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years and that the Parents acted reasonably and the equities favor the Parents; (2) that the DOE provide prospective payment of $[Redacted] for the tuition at TPS for the 2022-2023 school year within 30 days of the submission of proof of attendance; (3) that the DOE will fund the following compensatory education: 10 hours of 1:1 ABA services at per week for 52 weeks for 2 years for the lack of FAPE for the 2021-2022 and 2022-2023 school years at the rate of $[Redacted] per hour upon receipt of proof of services rendered; and (4) that the DOE will reimburse the Parents in the amount of $[Redacted] for transportation to and from TPS from October 24, 2022 to January 10, 2023.

SO ORDERED.

DATED: March 13, 2023

/s/ Linda Agoston

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 A – REDACTION IDENTIFICATION PAGE

Student’s Name:[Redacted]

Date of Birth:[Redacted]

School District:[Redacted] Parents' Name[Redacted]

SUBMIT THIS PAGE TO THE PARENT AND SCHOOL DISTRICT ONLY. DO NOT SUBMIT

TO THE NYSED.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due Process Complaint 12/08/21 7 pages

B. Speech and Language Evaluation [Redacted], M.A., CCC-SLP/ TSSLD 01/24/22 5 pages

C. Amended Due Process Complaint 09/13/22 7 pages

D. [Redacted] Academy Program Brochure undated 8 pages

E. Enrollment Contract with Addendum 10/24/22 1 page

F. [Redacted] Academy Class Schedule 2022-2023 1 page

G. [Redacted] Academy Attendance Report 12/07/22 1 page

H. [Redacted] Academy Tuition Affidavit 12/08/22 1 page

I. [Redacted] Academy Behavior Intervention Plan 12/13/22 3 pages

J. [Redacted] Academy Functional Behavioral Assessment 12/09/22 6 pages

K. [Redacted] Academy Occupation Therapy Progress Report 01/10/23 2 pages

L. [Redacted] Academy Speech and Language Progress Report 01/12/23 2 pages

M. [Redacted] Academy Academic Progress Report 01/10/23 3 pages

N. Neuropsychological Evaluation by[Redacted], Ph.D 06/13/22 9 pages

O. 1040 Parent’s Income Tax 2021 06/13/22 2 pages

P. Transportation Contract 10/23/22 1 page

Q. Affidavit of [Redacted] 02/09/23 1 page

R. Proof of Payments for Transportation various 10 pages

S. Copies of Receipts for Uber Rides 01/11/23 2 pages

IHO’S EXHIBITS

I. Interim Order for IEE 04/07/23 1 page

II. Decision on Extension 04/07/2022 1 page

III. Decision on Extension 06/03/2022 1 page

IV. Decision on Extension 06/282022 1 page

V. Decision on Extension 8/02/2022 1 page

VI. Decision on Extension 09/02/2022 1 page

VII. Decision on Extension 10/03/2022 1 page

VIII. Decision on Extension 12/21/2022 1 page

IX. Decision on Extension 01/24/2023 1 page

X. Decision on Extension 02/10/2023 1 page

XI. Closing Brief for the Parents 03/10/2022 12 pages

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.