NY IHO #225001: Impartial Hearing...

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NYSED # 570808 / NYC # 225001

FINDINGS OF FACT AND DECISION

Case Number: 225001

Student’s Name: REDACTED REDACTED

Hearing Requested By: Parent

Dates of Hearing: June 8, 2022

June 30, 2022

July 6, 2022

July 7, 2022

Actual Record Close Date: July 25, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

June 8, 2022

For the Parent:

REDACTED REDACTED, Esq.

For the Department:

REDACTED REDACTED, District Representative

June 30, 2022

For the Parent:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent

For the Department:

REDACTED REDACTED, District Representative

July 6, 2022

For the Parent:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent

REDACTED REDACTED, BCBA

REDACTED REDACTED, REDACTED

For the Department:

REDACTED REDACTED, District Representative

July 7, 2022

For the Parent:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent

For the Department:

REDACTED REDACTED, District Representative

On May 27, 2022, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of REDACTED REDACTED. REDACTED’s parent (“Parent”) requested the hearing on March 8, 2022, challenging the Department of Education’s failure to offer REDACTED a free appropriate public education for the 2019-2020 and 2020-2021 school years and seeking compensatory education in the form of speech therapy, occupational therapy, physical therapy, Applied Behavior Analysis (“ABA”), ABA supervision by a Board Certified Behavior Analyst (“BCBA”), and parent counseling and training. Ex. A.

A pre-hearing conference was conducted on June 8, 2022, and counsel for REDACTED’s Parent clarified claims and the relief requested. Tr. 2-4. The hearing continued on June 30, July 6 and July 7, 2022. The Department did not offer documents in evidence or present the testimony of witnesses.

The parties made a joint application on the record for an extension of the compliance date. The application was granted by written Order of Extension issued on July 7, 2022. The record closed on July 25, 2022, upon the hearing officer’s review of the transcript of the hearing, and the Actual Record Close Date is July 25, 2022.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

Findings of Fact

REDACTED is a now REDACTED-year-old boy whose disability, for the purposes of the IDEA, is currently classified as autism. Ex. L.
REDACTED has been diagnosed with REDACTED, REDACTED, REDACTED, REDACTED and REDACTED. Tr. 96; Ex. B at 1, 28; Ex. J at 1; Ex. K; Ex. U. He also experiences delays in communication, social skills and academics. Tr. 99-102; Ex. B; Ex. U.
REDACTED has no sense of danger and does not listen to instructions or directions; he runs away from his parent when he is out in the community and tries to get out of the family’s apartment. Tr. 97-98.
REDACTED currently attends a REDACTED-grade, 12-month 8:1:2 program at REDACTED REDACTED (“REDACTED”) in Queens. REDACTED is a New York State-approved non-public school. Ex. A at 2.
A preschool evaluation of REDACTED was conducted in February 2018. Ex. B. REDACTED’s level of cognitive functioning and socialization skills were found to be in the low range, and he met the criteria for a diagnosis of REDACTED. Ex. B at 1-2, 10-14, His receptive and expressive language skills were severely delayed, and his ADL skills were in the low range, and he was not yet toilet trained. Ex. B at 2, 19-21.
REDACTED attended a 12-month special education preschool program at REDACTED, where he made progress in communication, behavior, interacting with other children, ADL skills, basic academics such as letters, colors and shapes, and in engaging in the routines of school. Tr. 102-103; Exs. C, D. He received related services: speech therapy (two 30-minute sessions per week), occupational therapy (two 30-minute sessions per week), and physical therapy (two 30-minute sessions per week). Exs. C, D.
When the COVID-19 pandemic began, REDACTED closed and remained closed through August 2020. Tr. 103.
REDACTED provided remote instruction, but REDACTED could not participate “not even half” in the remote instruction because he did not have the appropriate device, such as a Department-issued iPad. REDACTED’s mother would use her iPhone to call in to the remote instruction, but REDACTED was unable to attend to instruction over the iPhone. Tr. 104.
From March to August 2020, REDACTED did not receive related services. Tr. 104-105.
From March to August 2020, REDACTED regressed: he stopped speaking, would not stay seated, would not participate or be engaged, and he “lost” his “ABCs,” counting skills, colors, sight words. Tr. 105-106.
On March 13, 2020, the CSE convened a meeting to develop REDACTED’s REDACTED IEP. Ex. E at 1.
REDACTED’s mother did not attend this meeting because she did not receive a meeting notice or otherwise learn that the meeting would be held. Tr. 107.
REDACTED’s mother did not receive a copy of the IEP after the meeting. Tr. 108.
REDACTED’s mother received a School Location Letter informing her of REDACTED’s placement at REDACTED in a 12:1 class. Tr. 109; Ex. E.
REDACTED’s mother called the school, and school personnel informed her that that the school did not have a seat for REDACTED because there was no room and no open slots at the school. Tr. 109.
REDACTED did not have a place to attend school and to receive special education and related services in September 2020. Tr. 110.
REDACTED continued to regress. Tr. 110-111.
In mid-October 2020, REDACTED was offered a placement at another school, REDACTED. Tr. 111-112; Ex. F.
On REDACTED’s very first day of his attendance at REDACTED, school personnel telephoned his mother and told her to come to school to get REDACTED and take him out of school because his behaviors were “all over the place” and he was taking the teachers’ masks off and throwing things. Tr. 112-113.
Almost every day of REDACTED’s attendance at REDACTED, school staff called his mother told her to come to school and pick him up—often shortly after she had dropped him off in the morning.. Tr. 113-114.
The Department did not provide REDACTED with bus transportation to REDACTED, and REDACTED could not travel by public transportation because he was overwhelmed and overstimulated by the crowds. REDACTED’s mother purchased a wagon from Walmart and walked to and from school with REDACTED in the wagon. Tr.
REDACTED’s mother requested a reevaluation of REDACTED and a more supportive educational environment for him. As a result, the Department conducted a reevaluation in November and December 2020. Exs. H, I, J.
The Department’s Psychoeducational Evaluation Report states that REDACTED’s teacher estimated that REDACTED’s reading, writing and math skills were at a pre-REDACTED level, that REDACTED presented with cognitive, expressive and receptive language skills that were “significantly” lower than his peers and that REDACTED demonstrated a high level of inattention and struggled with remaining in his seat without adult support. Ex. J at 1. Without adult support, REDACTED spent his time running around the classroom, climbing over or under furniture, and throwing things. Ex. J at 1.
On the BASC- 3 (utilizing the parent and teacher forms) and the CARS, REDACTED demonstrated a disconnection from his surroundings, had difficulties interacting with others, was unwilling to join group activities, did not always respond to his name, communicated with one-to-two word utterances, and had difficulties maintaining attention. Ex. J at 2-3.
During a classroom observation (with instruction and the observation conducted remotely), REDACTED sat on his mother’s lap while she redirected him to look at the iPad screen. REDACTED required prompting, redirecting and leading before responding to the teacher’s introductory question. During the lesson on sight words, REDACTED fidgeted, looked around, ripped up paper, played with money that was on the table, made sounds, repeated what the teacher said as if he did not understand what was asked of him, spoke unintelligibly, jumped up and ran around the room, and made faces. He remained distracted throughout the entire lesson and did not understand directions. After the observation, REDACTED’s teacher reported that REDACTED’s behavior during the lesson was typical both behaviorally and academically and that REDACTED needed 1:1 support to remain in his seat. Ex. I at 1.
The CSE reconvened in December 2020, and recommended a 12-month 8:1:1 District 75 program for REDACTED. REDACTED’s mother attended this meeting. Tr. 116-117; Ex. L.
REDACTED’s case worker from Mount Sinai, Redacted Redacted, participated in this meeting and requested a paraprofessional for REDACTED because he needed assistance and support throughout the school day. Tr. 117; Ex. K. REDACTED’s mother agreed with this request because REDACTED needed to be safe at school. Tr. 118-119.
The IEP notes that REDACTED “requires individual adult support to assist with sitting, attending and safety” and lists “1-1 adult support” under management needs. Ex. L at 4, 6.
At the meeting, REDACTED’s mother stated that REDACTED had “done well” when he received ABA therapy as a preschool student. She asked if he could receive ABA after school. The CSE determined that REDACTED would benefit from a Functional Behavioral Assessment. Ex. L at 4.
The CSE also recommended related services for REDACTED: occupational therapy, three 30-minute sessions per week, individually; physical therapy, three 30-minute sessions per week, individually; and speech therapy, three 30-minute sessions per week, individually.
A Department social worker completed a document labelled “FBA Parent/Guardian Interview.” Ex. M. It identifies REDACTED’s “Problem Behavior” as “Difficulty remaining in Seat and completing assignments.” Ex. M at 1.
REDACTED remained at REDACTED while he awaited placement in an 8:1:1 District 75 class. Tr. 120.
REDACTED was not provided with a paraprofessional while awaiting the District 75 placement. Tr. 120.
REDACTED’s mother continued to receive calls from the school to pick REDACTED up early. Tr. 120.
The Department did not offer a District 75 placement for REDACTED. Ex. O.
On April 19, 2021, a place opened for REDACTED at REDACTED, a New York State-approved nonpublic school located in Queens, and was enrolled pursuant to a Nickerson letter. His attendance was delayed to June because the Department did not institute bus transportation for him. Tr. 121-123; Exs. O, P, Q.
REDACTED’s Parent seeks the following compensatory services for REDACTED: 25 hours per week of ABA, 2.5 hours per week of BCBA supervision, two hours per month of parent counseling and training, all for a period of two years. Tr. 43-44.
REDACTED REDACTED, a BCBA and the founder and CEO of REDACTED, has worked with people with autism for 20 years. Tr. 50; Ex. V.
He described ABA a research-based methodology “that focuses on what happens before the behavior and after the behavior, governs the behavior” and involves taking data about behaviors and skills in order to determine whether interventions are effective. Tr. 52-53. He described the components of an ABA program: assessment, including of maladaptive behaviors through a functional behavioral assessment (“FBA”), formulating goals and a behavior intervention plan (“BIP”), implementing goals and the BIP, taking data to determine if interventions are working, and make modifications as necessary. Tr. 54-55.
Mr. REDACTED opined that home-based ABA services work on decreasing a child’s maladaptive behaviors that interfere with learning and improving the child’s receptive language skills so that these skills can be transitioned to the school setting to promote learning in school. Tr. 57.
ABA programs include supervision to ensure implementation of goals and the BIP, to monitor progress, to update programming, and to work with the child’s parent through parent counseling and training to apply BIP strategies when the therapists are not present. Tr. 59.
Mr. REDACTED conducted an FBA of REDACTED in March 2022. Tr. 59-63; Ex. T.
The FBA reports that REDACTED demonstrates “numerous maladaptive behaviors such as elopement and a very high rate of non-compliance with a high intensity level.” Ex. T at 1. REDACTED’s non-compliance: (a) included protesting, defying or refusing to engage in a task when instructed to do so and (b) “seemed to be a combination of insubordination and a lack of receptive language making it dually problematic and difficult to address” by his mother. Ex. T at 1-2.
Mr. REDACTED assessed REDACTED’s elopement and non-compliance because “they seemed to be the behaviors that were most dangerous and interfered with his ability to learn and conduct himself in public/home-based settings.” Ex. T at 2.
Based upon his assessment, Mr. REDACTED recommended that the above behaviors be addressed through increasing REDACTED’s positive replacement behaviors, increasing his functional language, and reducing his sensory behaviors. Ex. T at 4-5.
The ABA program would address REDACTED’s behaviors through, for example, differential reinforcement, teaching replacement behaviors, teaching REDACTED’s parent how to address the negative behaviors, blocking elopement and escape behaviors, and proactive strategies to encourage REDACTED to remain on task. Tr. 66-68.
Mr. REDACTED concluded that REDACTED would benefit from intensive ABA “during these crucial years in his development.” Ex. T at 6.
Mr. REDACTED recommended 25 hours per week of ABA for a period of two years for REDACTED “to get him from where he’s at now to where” he is performing “at his appropriate level at school.” Tr. 64, 69. Without such services, REDACTED’s behaviors would continue to interfere with his learning in a school setting. Tr. 69-70.
Mr. REDACTED also recommended 2.5 hours per week of supervision and two hours per month of parent training. Tr. 64.
Mr. REDACTED based his recommendations upon his assessment of REDACTED and upon the research on the efficacy of ABA. Ex. T at 6.
REDACTED charges $100.00 per hour for ABA therapy and $175.00 per hour for ABA supervision. Tr. 71. These rates are within or below market rates in New York City. Tr. 71-72.
The ABA therapy provider would be a special education teacher and a registered behavioral therapist (“RBT”), and the supervisor would be a BCBA. Tr. 72, 75-76.
REDACTED’s Parent also seeks compensatory speech, occupational and physical therapy to make up for services which he did not receive. Tr. 44. From March 2020 through December 2020, REDACTED should have received two 30-minute sessions per week of speech, occupational and physical therapies. From January 2021 through May 2021, REDACTED should have received three 30-minute sessions per week of speech, occupational and physical therapies. Tr. 44-45.
For the period from September 16, 2020 (when REDACTED closed due to COVID) through May 26, 2021 (when REDACTED enrolled in REDACTED), REDACTED missed 65 hours each of speech, occupational and physical therapies. Exs. C, D, L, X.^[1]
An occupational therapist from REDACTED evaluated REDACTED in January 2022. Ex. R. On the Beery VMI subtest, REDACTED performed in the “very low” skills range of ˂2:4 age equivalence. In addition, REDACTED’s had not developed an age-appropriate grasp for using writing tools. REDACTED also demonstrated sensory modulation difficulties, self-regulation difficulties, executive functioning weaknesses, difficulties sustaining attention and following directions, and difficulties controlling impulses and emotions. Ex. R at 3-5. The evaluator recommended detailed OT goals for REDACTED. Ex. R at 6-7.
A speech therapist from REDACTED evaluated REDACTED in January 2022. Ex. S. Due to REDACTED’s inattention and negative behaviors (such as running around the room), the evaluator was unable to administer formal testing; on informal testing, the Pragmatics Profile of the CELF-5, REDACTED attained a score of 1, which is in the “very low” range. He attained this score because he had difficulties with following conversational rules, participating in activities, asking for attention and/or help, and understanding nonverbal cues. On other informal testing, he was unable to follow the instructions of the evaluator and answer basic questions about a narrative. Ex. S at 1-5.
The speech therapist concluded that REDACTED’s receptive, expressive and pragmatic language skills were severely delayed. Ex. S at 5.
REDACTED charges $210.00 per hour for related services (occupational, physical and speech therapies) provided by appropriately licensed individuals; and this is the rate that the Department has paid the agency in the past. Tr. 86-87; Ex. W.
REDACTED was evaluated by a neuropsychologist in March 2022. Ex. U. On the RIAS-2, REDACTED’s intellectual capacity tested in the “exceptionally low” range. Ex. U at 8-9.
The neuropsychologist utilized a number of measures to assess REDACTED’s language development. REDACTED demonstrated profound delays in language development, with age equivalent scores in the two to four year-old range. Ex. U at 9-11.
On academic testing, the WIAT-4, REDACTED scored in the pre-REDACTED equivalent range. Ex. U at 11-13.
The neuropsychologist diagnosed REDACTED with REDACTED; REDACTED; REDACTED, REDACTED, and REDACTED. Ex. U at 19.
The neuropsychologist recommended that REDACTED receive ABA to encourage prosocial behaviors, improve communication, and improve on-task learning behaviors. Ex. U at 19.
The neuropsychologist also recommended parent training for REDACTED’s mother so she could support REDACTED at home, related services, and compensatory related services for the related services that were not provided to him. Ex. U at 21.

Decision

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).

A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. REDACTED F. v. Douglas Cty. Sch. Dist. RE-1,137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). 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.

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe,484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v). The school district must then implement the IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3).

A hearing officer may determine that a school district denied a student a FAPE based upon the district’s procedural errors in the development of the IEP, deficiencies in the substance of the educational program set forth in the IEP, or both. See L.O. v. New York City Dep’t of Educ., 822 F.3d, 95, 109 (2d Cir. 2016); see also 20 U.S.C. § 1415(f)(3)(E)(i); 8 N.Y.C.R.R. § 200.5(j)(5)(v). In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

In this case, the DOE did not present testimony or documentary evidence with respect to its provision of FAPE to REDACTED for the 2019-2020 and 2020-2021 school years. Since the Department failed to avail itself of its opportunities to (a) offer testimony and documentary evidence to explain how its offered programs for REDACTED were “reasonably calculated” to permit him to make progress given his unique circumstances, (b) contest the allegations that it failed to implement its IEPs for REDACTED, and (c) dispute REDACTED’s Parent’s requests for compensatory education, I find that the Department failed to offer and provide REDACTED with a FAPE for the time period from March 2020 through May 2021. As a result, REDACTED is entitled to compensatory education and services.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); Application of the New York City Department of Education, Appeal No. 11-004. Compensatory educational relief may be awarded to a student with a disability who remains eligible for services under the IDEA. Application of the New York City Department of Education, Appeal No. 11-132. Here in the Second Circuit, compensatory educational relief in the form of supplemental special education or related services has been awarded to such students if they have been denied a free appropriate public education. P. v. Newington Board of Education, 546 F. 3d 111, 123 (2d Cir. 2008) (IDEA “allows a hearing officer to fashion an appropriate remedy” and “compensatory education is an available option . . . to make up for” a denial of a free appropriate public education”); see also Application of a Student with a Disability, Appeal No. 19-026 at pp. 18-19. Compensatory “additional services” have been awarded to students who remain eligible to attend school and have been denied appropriate services, “if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation.” Application of the New York City Department of Education, Appeal No. 11-132 at p. 19.

In determining the proper award of compensatory education, courts generally seek to craft an award of educational services that would serve to bring the child to the place he would have been but for the school district’s failure to provide her with a FAPE. Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). Equitable factors are relevant in determining an award of compensatory education. See, e.g., J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d, 606, 643 (S.D.N.Y. 2011)(denying compensatory education in part because parents failed to respond adequately to the District’s offer of services).

ABA Services

The preponderance of the evidence presented by REDACTED’s mother establishes that a proper award to compensate REDACTED for the lack of educational services he experienced from March 2020 through May 2021 consists of the ABA services requested by REDACTED’s mother.^[2] Mr. REDACTED’s recommendation of 25 hours per week of ABA for a period of two years was based upon his assessment of REDACTED, his experience in the field of education, and the research he referenced in his testimony and FBA report. I find his testimony credible and his recommendation supported by his assessment, experience and the referenced research. In addition, Mr. REDACTED’s testimony was uncontroverted by the Department.

Furthermore, for many years, federal courts have recognized ABA as an appropriate and effective teaching methodology for children with autism. See, e.g., A.M. v. New York City Dep’t of Educ., 845 F.3d 523, 545 (2d Cir. 2017); R.E., 694 F.2d at 194; M.H. v. New York City Dep’t of Educ., 712 F. Supp. 2d 125 (S.D.N.Y. 2010), aff’d 685 F.3d at 252; see also34 C.F.R. § 300.39(b)(3) (“[s]pecially designed instruction means adapting, as appropriate to the needs of [the child], the content, methodology, or delivery on instruction”) (emphasis added).

It is also important to be cognizant of the difficulties experienced by students and educators during the COVID-19 pandemic and to note that compensatory educational services are appropriate when the COVID-19 pandemic was a factor in a student experiencing a deprivation of educational services. See New York State Education Department, Guidance: Addressing the Impact of Lost instructional Time Using COVID-19 Response Funding (November 2021). Here, COVID-19, and its concomitant deprivation of education services, was but one factor contributing to REDACTED’s deprivation of educational services; other factors include the Department’s failures to place him in an appropriate program, invite his mother to the meeting to develop REDACTED’s REDACTED IEP, implement IEPs, and secure a District 75 placement.

Collectively, the Department’s failures and the COVID-19 pandemic deprived REDACTED of the opportunity to make meaningful progress such that a compensatory educational services award, as recommended by Mr. REDACTED, consisting of 25 hours per week of 1:1 ABA direct services, 2.5 hours per week of BCBA supervision and two hours per month of parent counseling and training (all for a period of two years) is appropriate for REDACTED, particularly in light of the fact that he was deprived of educational services during a crucial stage of educational development, as noted by Mr. REDACTED. As a result, I will award 25 hours per week of 1:1 ABA direct services to REDACTED, 2.5 hours per week of BCBA supervision, and two hours per month of parent training and counseling, each to be provided for a period of two years, expiring no later than August 31, 2024. No more that 25 hours of 1:1 ABA direct services may be provided in any week, and the total number of hours of 1:1 ABA direct services shall not exceed 2,100 hours (42 weeks in a 12-month school year x two years x 25 hours per week).

Related Services

The record demonstrates that REDACTED was deprived of 65 hours of each of the related services of speech, occupational and physical therapies. The purpose of a compensatory educational services award is to remedy a denial of a free appropriate public education, such an award “should aim to place the student in the position she would have been in had the district complied with its obligations.” Application of the New York City Department of Education, Appeal No. 11-132 at p. 19 (internal citations omitted). While a one-to-one correspondence of hours missed to hours compensated is not required in formulating a compensatory services remedy, here one-to-one correspondence of hours of missed related services is supported by the neuropsychologist’s report and represents a reasonable means of remedying REDACTED’s missed related services.

Equitable Factors

Equitable factors support REDACTED’s mother’s request for compensatory education and services for REDACTED. REDACTED’s mother communicated the Department about her concerns, tried to make remote instruction work for REDACTED, and accepted Department placements. There is nothing that she did to impede the Department in offering or providing a FAPE to REDACTED; in fact, the very opposite is true.

Therefore, for all the above reasons, it is hereby ORDERED that:

The Department of Education shall fund for REDACTED as compensatory education: 25 hours per week of 1:1 ABA direct services, 2.5 hours per week of BCBA supervision, and two hours per month of parent training and counseling, each to be provided for a period of two years, expiring no later than August 31, 2024. No more than 25 hours of 1:1 ABA direct services may be provided in any week, and the total number of hours of 1:1 ABA direct services shall not exceed 2,100 hours (42 weeks in a 12-month school year x two years x 25 hours per week). These services shall be provided by REDACTED, or if this agency becomes unavailable, another comparable agency, at the rates of $100.00 per hour for ABA therapists and $175.00 per hour for ABA supervision and parent training performed by a BCBA.
The Department shall fund for REDACTED as compensatory services: 65 hours of speech therapy, 65 hours of occupational therapy and 65 hours of physical therapy to be provided by REDACTED, or if this agency becomes unavailable, another comparable agency, at an enhanced rate. Such related services shall be provided before August 31, 2024; any hours remaining after August 31, 2024 shall expire.

Dated: August 6, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EXHIBITS

EX.	DATE	DOCUMENT	PAGES
A	March 8, 2022	Due Process Complaint No. 225001	8
B	February 2018	DOE Committee on Preschool Special Education Initial Evaluation	29
C	September 10, 2019	Individualized Education Program	21
D	March 18, 2020	Individualized Education Program	15
E	May 20, 2020	DOE School Location Letter	1
F	September and October 2020	Email Correspondence with the DOE Family Welcome Center, attaching Ex. G	6
G	October 13, 2020	DOE Enrollment Assignment Letter	1
H	November 17, 2020	DOE Social History	2
I	December 17, 2020	DOE Classroom Observation	2
J	December 17, 2020	DOE Psychoeducational Evaluation	5
K	December 18, 2020	Medical Letter in Support of Paraprofessional	1
L	December 21, 2020	Individualized Education Program	26
M	January 28, 2021	DOE FBA Parent Interview	3
N	March 23, 2021	DOE P-1 Form (“Nickerson Letter”)	3
O	March 23, 2021	DOE P-2 Form	4
P	April 7, 2021	Email from REDACTED, attaching Ex. Q	4
Q	March 24, 2021	Completed DOE P-2 Form	3
R	January 22, 2022	Independent Occupational Therapy Evaluation	7
S	January 23, 2022	Independent Speech and Language Evaluation	7
T	March 10, 2022	Independent Functional Behavioral Assessment	7
U	May 14, 2022	Independent Neuropsychological Evaluation	21
V	June 2022	Curriculum Vitae of REDACTED REDACTED	3
W	June 6, 2022	Affidavit of REDACTED REDACTED	1
X	July 7, 2022	Table of Related Services	1

IHO Exhibit

I Email re: Parent’s Exhibit X 2 pages

Footnotes

[1] Parent’s Exhibit X was submitted on July 7 and admitted in evidence upon no objection from the Department. See IHO Ex. I.

[2] This analysis does not shift the burden of proof to REDACTED’s Parent. Rather, the analysis considers the evidence in the record, which was provided by REDACTED’s Parent.

Impartial Hearing Decision

Findings of Fact