New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 569063 - NYC: 223870

FINDINGS OF FACT AND DECISION

Case Number: 223870

Student’s Name: REDACTED

Date of Birth: REDACTED

Hearing Requested By: Parent

Dates of Hearing: March 25, 2022, December 16, 2022, and January 4, 2023 Record Closed Date: January 4, 2023

Hearing Officer: Audrey Daniel, Esq.

Names and Titles of Persons who appeared at the March 25, 2022 Hearing For the REDACTED REDACTED, Hearing Representative For the Parent REDACTED, Esq., Attorney for Parent Names and Titles of Persons who appeared at the December 16, 2022 Hearing For the REDACTED REDACTED, Esq., Agency Attorney For the Parent REDACTED, Esq., Attorney for Parent Names and Titles of Persons who appeared at the January 4, 2023 Hearing For the REDACTED REDACTED, Esq., Agency Attorney For the Parent REDACTED, Esq., Attorney for Parent REDACTED, Parent REDACTED, Director, REDACTED

I. Introduction and Procedural History

On January 26, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by his parents (“Parent” or “Parents”). A pre-hearing conference was held on March 2, 2022, status conferences were held on July 5, 2022, August 15, 2022, September 14, 2022, October 28, 2022 and November 28, 2022 and hearings were held on March 25, 2022, December 16, 2022, and January 4, 2023. The REDACTED (“REDACTED”) was represented by REDACTED, Esq. and Parent was represented by REDACTED, Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective January 4, 2023.

II. Background

Parent filed a due process complaint on May 21, 2021, alleging a denial of a Free and Appropriate Public Education (“FAPE”) for the 2021-2022 school year, requesting Independent Educational Evaluations, a change of placement and compensatory services. (Exh. A). The IEE’s were funded by the REDACTED. On July 5, 2022, Parent filed a second due process complaint, alleging a denial of FAPE for the 2022-2023 school year, requesting tuition at the REDACTED, transportation, and compensatory services. (Exh. B). At the request of Parent, the two cases were consolidated. There were three days of hearing, including one day of hearing regarding Independent Educational Evaluations (“IEEs”). The REDACTED did not put on a case or submit evidence. Parent provided direct testimony of four witnesses by affidavit. The REDACTED declined the opportunity to cross examine the witnesses.

III. Discussion

FINDINGS OF FACT AND DECISION

FINDINGS OF FACT

There were three Individualized Education Program (“IEP”) meetings held during the relevant time period. (Exh. D, Exh. E and Exh. F). As the REDACTED did not defend its IEP’s, no further analysis of the recommended program is necessary.

An Applied Behavioral Analysis (“ABA”) assessment was conducted in August of 2022 and the evaluator recommended a home-based program to address his self-harming and dangerous behaviors as well as the behaviors that interfere with learning. (Exh. H and Exh. Z, page 9). The evaluator recommended ten hours per week of home-based ABA, as well as one hour per week of supervision. (Exh. H and Exh. Z, page 9). An Assistive Technology Evaluation was conducted on March 19, 2022. (Exh. I). The evaluator found that Student needed increased support with two iPads with the most current operating system as well as ongoing parental training and someone at school to work with him to help him use language appropriately. (Exh. I). An Occupational Therapy Sensori-Motor Evaluation was conducted on February 4, 2022 and recommended, to address his sensory modulation dysfunction, more support, and a smaller setting to access his education. She recommended individual occupational therapy four times per week for thirty minutes using a sensory gym. (Exh. J). An Occupational Therapy Evaluation was conducted on November 15, 2021. (Exh. K). The evaluator found that Student’s sensory deficits were prohibiting him from accessing his education and recommended individual occupational therapy three times per week for thirty minutes to address Student’s significant sensory and Activities of Daily Living needs. (Exh. K). A Neuropsychological Evaluation was conducted on August 20, 2021. (Exh. L). The evaluator diagnosed Student with autism spectrum disorder, level 3, requiring very substantial support for deficits in social communication and restricted behaviors with intellectual impairment, at a level of severe impairment, as well as Attention Deficit/Hyperactivity Disorder. (Exh. BB, page 2). The evaluator testified that Student’s biggest barrier to learning is his maladaptive behaviors. (Exh. BB, page 2). The evaluator recommended a very specialized extended year educational setting for children with autism, including a very low student to teacher ratio to learn. (Exh. BB, page 3). She also recommended home-based ABA services, to address ADL skills, receptive and expressive language, and to decrease aggressive and interfering behaviors, as well a more comprehensive assistive technology evaluation, adaptive physical education, social skills and compensatory ABA therapy. (Exh. BB, pages 4-5). A Speech and Language Evaluation was conducted on August 3, 2021. (Exh. M). The evaluator found that Student had intensive receptive and expressive language needs and recommended individual speech and language therapy three times per week for thirty minutes and group speech and language therapy two times per week for thirty minutes. (Exh. M).

Student has been attending the REDACTED since July of 2022. The REDACTED is a twelve-month private special education school, that enrolls 151 students from ages 3 to 21 year who have neurodevelopmental delays in relating communicating, including children with autism spectrum diagnoses. (Exh. AA, pages 1, 2 and Exh. P). The school utilizes DIR Floortime. (Exh. G, page 2). Classrooms typically have eight students, one head teacher and three assistant teachers and are grouped primarily be developmental levels, focusing on a 2:1 classroom environment. (Exh. AA, pages 2,4). Students are assessed over the first two weeks, including classroom observations, and the individual related service mandates on created. (Exh. AA, page 5). There are two sensory gyms, a regular gym, and a rooftop playground. (Exh. AA, page 2). Related services included occupational therapy, speech and language therapy, physical therapy and counseling are provided; providers are licensed and/or certified. (Exh. AA, page 2). Teachers and assigned social workers communicate with families weekly, and related service providers communicate with families every two weeks. (Exh. AA, pages 2-3). Common Core Standards are used, as well as standard curriculum which is adapted as needed. (Exh. AA, page 3). Programs are individualized for students and our reviewed weekly. (Exh. AA, page 3). Teachers are assigned an educational supervisor, who work directly with the teacher to create goals and a learning plan for the student’s individual academic needs, which are modified and added to as needed. (Exh. AA, page 4). Goals are tracked or six months, and a full progress report is written, followed by a parent team meeting to discuss the report and a new treatment plan is developed. (Exh. AA, page 4).

Student is in a classroom with seven other students, one head teacher, three teaching assistants and one paraprofessional. (Exh. G, page 1 and Exh. AA, page 5). Student’s schedule for the 2022-2023 school year includes DIR Floortime sessions, morning meeting, reading, math, science, and sensory activities, as well as Speech and Language Therapy, Occupational Therapy, group music, led by a music therapist, art group and adaptive physical education. (Exh. Q, Exh. R and Exh. AA, page 5). Student receives occupational therapy twice per week for thirty minutes individually, and once a week for thirty minutes in a group, and focus on sensory/emotional regulation, motor planning, praxis and visual spatial needs. (Exh. AA, page 6). Student receives three thirty-minute sessions per week of speech therapy, twice individually and once in a group. (Exh. AA, page 6). Student’s individualized reading program focuses on comprehension, word recognition, and increasing his ability to sustain shared attention and engagement. (Exh. AA, page 5). In math, he is focusing on core concepts of math, number sense and 1:1 correspondence. (Exh. AA, page 6).

Student is making progress at the REDACTED. An Interdisciplinary Developmental Summary was conducted in December of 2022. (Exh. G). Student is making progress in his ability to share attention and engagement in reading groups, and in his ability to identify an increased number of sight words and visuals. (Exh. AA, page 5). In math, Student has demonstrated progress in his ability to correctly identify numbers with visual support. (Exh. AA, page 5). He has made progress in his ability to maintain regulation, engage in social interaction and open/close circles of communication. (Exh. AA, page 6). Student has shown progress in speech therapy in terms of his use of spontaneous language. (Exh. AA, page 6). He is more engaged and attending and participating for longer periods of time. (Exh. Z, page 9).

Parent signed an enrollment contract for the 2022-2023 school year on May 20, 2022. (Exh. U). Parent provided an affidavit of finance and proof of payment. (Exh. V, Exh. W and Exh. Z, page 8). Parent paid $250 towards the total twelve-month tuition of $156,000. (Exh. AA, page 7). The contract provided for withdrawal if an appropriate placement was located before September 12, 2022. (Exh. Z, page 8).

A Ten-Day Notice was sent to the REDACTED on or about June 17, 2022. (Exh. C and Exh. Z, page 8). There is nothing in the record to indicate a response.

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C.

§ 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an 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); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir.

1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(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).

BURDEN OF PROOF

The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

The REDACTED did not put on a case. Therefore, the REDACTED did not meet its burden of proof and Parent is entitled to relief.

RELIEF REQUESTED

FUNDING FOR STUDENT’S UNILATERAL PLACEMENT

APPROPRIATENESS OF THE PRIVATE SCHOOL

Once it is determined that the student has not been provided a FAPE, under New York law, the burden of proof shifts to the parents to show that their unilateral private placement was appropriate. A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Schaffer, 546 U.S. at 58; N.Y. Educ. L. § 4404(1)(c)). Under the IDEA, parents who unilaterally place their child in a private school do so at their financial risk. Individuals with Disabilities Education Act, §§612(a)(1)(A), 614(d).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch.

Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The appropriateness of the parents’ choice turns on whether the chosen school “is reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Central School District, 489 F.3d 105, 112. A private placement meeting this standard is “one that is ‘likely to produce progress, not regression.’” Id. (quoting Walczak, 142 F.3d at 130). The parents’ choice must be “appropriate,” “not... perfect.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). An appropriate private placement “need not meet state education standards or requirements.” Id. (citing Carter, 510 U.S. at 14). Ultimately, the standard to be applied is to determine whether “[the] unilateral private placement... provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo, 489 F.3d at 115. The Second Circuit in Frank G, 459 F.3d at 364-5 held: “No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” the private school must provide an educational program which meets the student's special education needs (see Hardison v. Bd. of Educ., 773 F.3d 372, 386 [2d Cir. 2014]; Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp. 2d at 419).

Parent has shown, through testimony, and documentation, that the REDACTED understands Student’s unique educational needs and designed a program to address these needs. Therefore, Parent has met her burden of proof to show the appropriateness of the unilateral placement and is entitled to funding and/or reimbursement for her unilateral placement.

BALANCING OF THE EQUITIES

The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]).  The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

There is nothing in the record indicating a need to change the balancing of the equities. Parent contacted the Committee on Special Education to voice concerns regarding the IEP and proposed placement and sent the required Ten-Day Letter. (Exh. C and Exh. Z, page 8). The uncontroverted evidence is that Parent was cooperative. (Exh. Z). Parent showed her inability to pay tuition and seek reimbursement under the Carter Analysis. (Exh. V and Exh. W). There are no allegations of obstruction or that Parent was uncooperative. Therefore, Parent is entitled to the entirety of tuition at the REDACTED for the twelve-month 2022-2023 school year.

ADDITIONAL SERVICES AND RECONVENE

Relying on the uncontroverted testimony of REDACTED, Parent requests ten hours per week of home-based ABA therapy. (Exh. CC, page 6). Parent also requests four hours per month of individual Parent Counseling and Training and four hours per month of BCBA supervision. (Exh. CC, page 6). The REDACTED did not challenge these requests or cross-examine the witnesses regarding the need for these additional services, and Parent provided compelling evidence and testimony regarding the need for these services, so they will be ordered as requested. Additionally, the REDACTED did not dispute Parent’s request for round trip transportation, and it will be so ordered. Finally, Parent requests a reconvene of the Committee on Special Education to develop an appropriate program including the services recommended by the independent evaluations. The REDACTED did not object to this request, and it will be ordered.

COMPENSATORY EDUCATION SERVICES

The Supreme Court has held that “equitable considerations are relevant in fashioning relief in any IDEA action. See Burlington, 471 U.S. at 374; see also, Doe, 790 F.3d at 454. Further, although “[a]n award of damages in available… a court may award various forms of retroactive and prospective relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive relief. Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 454(2d

Cir. 2015) (citing Burlington, 471 U.S. at 369; Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002) Compensatory education is an equitable remedy that provides in-kind special education and other related services for denials of a free and appropriate public education (FAPE). Compensatory education is generally defined as educational services above and beyond that normally due a student under his state's education law. Wenger v. Canastota, 979 F. Supp 147, 151 (NDNY 1997); C.G. v. Five Towns Community School District, 513 F.3rd 279 (290) (1st Cir. 2008). Such services are compensation for the education a student would have received “during the periods when his IEP was so inappropriate that he was effectually denied a FAPE.” Reid v. District of Columbia, 401 F.3d 516, 525 (DC Cir. 2005). “[T]he ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid ex rel. Reid v. D.C., 401 F.3d516, 524 (D.C.Cir.2005), cited in E. Lyme Bd. of Educ., 790 F.3d at 457. The Second Circuit concluded, “Whatever its precise form, the remedy must be ‘appropriate in light of the purpose of the Act.’ E. Lyme Bd. of Educ., 790 F.3d at 457 (quoting Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass.,471 U.S. 359, 369 (1985)); see also, Burr by Burr v. Ambach,863 F.2d 1071, 1078(2d Cir.1988) (“if, in this case, we do not allow an award of compensatory education, then [the student’s] right to an education between the ages of three and twenty-one is illusory.”) Where a school system fails to provide special education or related services to a disabled Student, the Student is entitled to compensatory education, "i.e., replacement of educational services the child should have received in the first place." Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996). Under the qualitative approach, the examination should focus on the child’s needs; “some Students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Reid, supra at 526.

Parent requests considerable compensatory services as relief for the REDACTED’s failure to provide FAPE for the 2021-2022 school year. An ABA skills assessment was conducted in the spring and summer of 2022. (Exh. H and Exh. Z, page 10). In addition to the recommendations of home-based services, the evaluator recommended 460 hours of compensatory ABA services, 46 hours of supervision, and 46 hours of compensatory parent counseling and training. (Exh. H, Exh. Z, page 10 and Exh. CC, page 6). This recommendation was calculated based on the failure of the REDACTED to provide services for a twelve-month school year, 46 weeks, 10 hours per week. (Exh. Z, pages 10-11). The need for compensatory ABA therapy was also recommended by the independent neuropsychological evaluation. (Exh. M). The requests for compensatory Parent Counseling and Training and BCBA supervision were calculated as an hour per week for both services for the forty-six week 2021-2022 school year, equaling forty six hours per week of each service. The REDACTED did not challenge Parent’s request for compensatory services, and it will be ordered as requested.

IV. Order

IT IS THEREFORE ORDERED THAT:

• • The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2021-2022 and 2022-2023 school years.
• • The REDACTED shall reconvene the Committee on Special Education within thirty days of receipt of this Findings of Fact and Decision to develop an appropriate program based on the recommendations contained in the independent educational evaluations.
• • The REDACTED shall fund/reimburse Parent for the cost of tuition at the REDACTED for the twelve-month 2022-2023 school year.
• • The REDACTED shall provide round trip transportation to the REDACTED for the twelve-month 2022-2023 school year.
• • The REDACTED shall fund ten hours per week of home-based Applied Behavior Analysis for the twelve-month 2022-2023 school year to be provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate.
• • The REDACTED shall provide four hours per month of BCBA supervision to be provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate.
• • The REDACTED shall provide four hours per month of Individual Parent Counseling and Training to be provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate.
• • The REDACTED shall provide a bank of compensatory Applied Behavior Analysis services, including 460 hours of Applied Behavior Analysis, to be provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate
• • The REDACTED shall provide a bank of forty-six hours of compensatory Parent Counseling and Training to be provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate.
• • The REDACTED shall provide a bank of compensatory of forty-six hours of BCBA supervision to be provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate.
• • Parent’s remaining requests for relief were provided outside the hearing process, or withdrawn.

Dated: January 13, 2023

AUDREY DANIEL, 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.

EXHIBITS ADMITTED AT HEARING

REDACTED

None

Parent

Exhibit Number

Number Exhibit Date of Pages

A Demand for Due Process Hearing 01/19/22 15

B Demand for Due Process and Request for Consolidation 07/05/22 15

C Ten Day Notice 06/17/22 8

INDIVIDUALIZED EDUCATION PROGRAM

D IEP 12/07/21 32

E IEP 03/19/21 26

F IEP 04/28/20 18

EVALUATIONS

G Interdisciplinary Developmental Summary December 2022 11

H ABA Skills Assessment August 2022 15

I Assistive Technology Evaluation 03/19/22 13

J Occupational Therapy Sensori-Motor Evaluation 02/04/22 24

K Occupational Therapy Evaluation 11/15/21 9

L Neuropsychological Evaluation 08/20/21 30

M Speech and Language Evaluation 08/03/21 7

N Up Wee Grow Psychological Evaluation 02/19/19 7

ADDITIONAL DOCUMENTS

O REDACTED Prior Written Notice 12/17/21 4

P REDACTED Brochure Undated 8

Q 2022-2023 Individual Schedule Undated 1

R Summer 2022 Individual Schedule Undated 1

S Attendance Record 10/12/22 to 10/20/22 Undated 1

T Summer Attendance Record Undated 1

U Enrollment Contract 2022-23 School Year 05/20/22 6

V Affidavit of Finance 06/24/22 1

W Proof of Parental Payment 06/06/22 1

X Curriculum Vitae of REDACTED Undated 2

Y Resume of REDACTED Undated 1

Z Affidavit of Parent 12/23/22 11

AA Affidavit of REDACTED Undated 7

BB Affidavit of REDACTED 12/27/22 9

CC Affidavit of REDACTED 12/27/22 7

Impartial Hearing Officer

• • None.