NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
FINAL ORDER - DOE DEFAULT & INQUEST - PARENT
SUBMISSIONS
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date
[[REDACTED]] Attorney PARENT 07/07/22 (V)
[[REDACTED]] Mother PARENT 07/07/22 (V)
[[REDACTED]] Attorney DISTRICT 07/07/22 (V)
[[REDACTED]] Attorney PARENT 08/16/22 (V)
[[REDACTED]] Attorney DISTRICT 08/16/22 (V)
[[REDACTED]] Attorney PARENT 09/23/23 (V)
[[REDACTED]] Attorney DISTRICT 09/23/23 (V)
[[REDACTED]] Attorney PARENT 11/10/22 (V)
[[REDACTED]] Mother PARENT 11/10/22 (V)
[[REDACTED]] Attorney DISTRICT 11/10/22 (V)
[[REDACTED]] Witness DISTRICT 11/10/22 (V)
[[REDACTED]] Attorney PARENT 12/15/22 (V)
[[REDACTED]] Mother PARENT 12/15/22 (V)
[[REDACTED]] Attorney DISTRICT 12/15/22 (V)
[[REDACTED]] Witness DISTRICT 12/15/22 (V)
[[REDACTED]] Attorney PARENT 01/27/23 (V)
[[REDACTED]] Mother PARENT 01/27/23 (V)
[[REDACTED]] Witness PARENT 01/27/23 (V)
[[REDACTED]] Attorney DISTRICT 01/27/23 (V)
[[REDACTED]] Witness DISTRICT 01/27/23 (V)
DOCUMENTATION ENTERED INTO RECORD
A. Number/Letter Title Dated For # of Pages Impartial Hearing 03/10/22 PARENT Request 23 pages
B. Ten-Day Notice N/A PARENT 18 pages
C. Pendency Agreement 04/01/22 PARENT 03 pages
G. D FOFD Case # 184036 08/10/20 PARENT 14 E FOFD Case # 174162 07/19/19 PARENT 16 F FOFD Case # 170927 05/15/19 PARENT 18 IEP February 2021 02/03/21 PARENT 39 pages
H. IEP February 2022 02/04/22 PARENT 34 pages
I. Prior Written Notice 06/18/20 PARENT 06 pages
J. School Location Letter 03/09/22 PARENT 03 pages
K. [REDACTED] ABA 01/2021 PARENT 11 Progress Report, '20/'21
L. [REDACTED] speech and 04/15/21 PARENT Language Evaluation 06 pages
M. [REDACTED] Progress 01/2022 PARENT Report 2022 11 pages
N [REDACTED] 05/06/21 PARENT
05
Center Behavior
Intervention Plan
O [REDACTED] 03/2021 PARENT
04
Center Functional Behavior
Assessment Elopement
P [REDACTED] 03/2021 PARENT
Center Functional Behavior
Assessment, Aggression
Q [REDACTED] 12/2021 PARENT
06
Center 2021 to 2022
Occupational Therapy
Progress Report
R [REDACTED] 12/2021 PARENT
04
Center 2021/2022 Physical
Therapy Progress Report
S [REDACTED] 12/2021 PARENT
06
Center 2021/2022 ABA
Progress Report
T [REDACTED] 12/2021 PARENT
08
Center 2021 to 2022 3
Speech-Language Therapy
Progress Report
U [REDACTED] 06/2022 PARENT
07
Center 2021 to 2022
Speech-Language Therapy
Progress Report
V [REDACTED] 06/10/22 PARENT
Center 2021/2022 ABA
Progress Report
W [REDACTED] 06/13/22 PARENT
X [REDACTED] 06/16/22 PARENT
Center 2021/2022
Occupational Therapy
Progress Report
Y [REDACTED] N/A PARENT
04
Center Clinical Services
Program Description Z Apple iPad Receipt 08/19/21 PARENT 01 AA ScreenProtector and 08/20/21 PARENT 01
Case Receipt BB LAMP Doftware Receipt 08/20/21 PARENT 01
CC FOFD Case #194718 11/08/21 PARENT 21
DD [REDACTED] Affidavit 11/09/22 PARENT 10 EE Affidavit of 11/09/22 PARENT 09
[REDACTED]
FF Parent Affidavit 11/09/22 PARENT 07 01 Individualized Education 02/03/21 DOE 46
Program 02 ABA Progress Report 12/2020 DOE 05 03 OT Progress Report 12/2020 DOE 06 04 PT Progress Report 12/2020 DOE 03 05 SLT Progress Report 12/2020 DOE 06 06 Notice of IEP Meeting 12/23/20 DOE 04 07 Prior Written Notice 02/05/21 DOE 06
On May 31, 2022, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973. After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on July 7, 2022, August 16, 2022, September 23, 2022, November 10, 2022, December 15, 2022, December 19, 2022, January 27, 2023 and February 1, 2023. A list of the documents entered into evidence is annexed hereto.
BACKGROUND
This case was initiated as the result of a written Due Process Complaint (“DPC”) filed by the student’s Parent’s counsel, on or March 10, 2022, and carried under New York City (“NYC”) Case No. 225056. The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) 2021-2022 school year in that the parent alleges that the DOE generally failed to assess the child in all areas of his suspected disability. An IEP meeting was held on February 03, 2021. The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for their educational planning.
The student is [REDACTED] years old and he has a rare genetic abnormality of the GNE gene called [REDACTED] which has a variable effect on development. The student has been attending and receiving services at the [REDACTED] since July 2019. (H-1) The student participates in a full-day 1:1 comprehensive ABA program and receives (a) Prospective payment to [REDACTED] for full-day program; (b) A bank of 1:1 ABA hours calculated at 35 hours/ week at 46 weeks (1610 hours) for the 2021-2022 school year (c) A bank of 10 hours per week (460 hours) of home-based to be provided by an ABA provider of the parent’s choice; (d) A bank of parent training calculated at two hours per week for the 2021-2022 school year to be provided by an ABA provider of the parent’s choice (a total of 92 hours); (e) A bank of ABA supervision by a BCBA at two hours per week for the 2021-2022 school year by an ABA/ BCBA provider of the parent’s choice (a total of 92 hours); (f) A bank of 1:1 SLT hours calculated at 5x45 for 46 school weeks by a provider of the parent’s choice; (g) A bank of 1:1 OT hours calculated at 5x60 for 46 school weeks by a provider of the parent’s choice; (h) A bank of 1:1 PT hours calculated at 4x45 for 46 school weeks by a provider of the parent’s choice; (i) A bank of 20 hours of AT training for the Parent and Student to ensure access to the AT devices, systems, and applications; (j) Compensatory service to be paid for by the DOE by direct payment to the providers and enhanced market rate defined by the rate necessary to secure the 27 services which has been paid by the NYC DOE’s impartial hearing implementation unit to (k) Assistance from the DOE in locating providers and implementing services, (l) The DOE to fund prospective car service for the parent or, if she chooses, a travel aide to and from any compensatory services and/or at her choice, reimburse the parent for those expenses.
(m) All services to be used in-person, remotely via tele-health where appropriate and feasible, during the school day, after-school, at home, during holidays and on weekends, for 52 weeks out of the school year.
(n) The compensatory bank of services shall not to expire until exhausted.
The Parents’ DPC having been duly filed pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973; and Notice having been duly given to the DOE; and The matter having come on for a final “impartial hearing” before this IHO on November 10, 2022, December 15, 2022 and January 27, 2023, and this decision being made not on the basis of the submission of testamentary and documentary evidence pursuant to 8 NYCRR 200.5[j][3][xii][f],and
THE DOE’S CASE
The DOE called one witness to testify on its behalf and submitted (7) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.
THE PARENT’S CASE
The Parent had (3) witnesses testify on their behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. On the hearing dates, the DOE crossed all of the affiants. The Parent also submitted (32) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.
FINDINGS OF FACTS & DECISION
Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE 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) to ensure that the rights of students with disabilities and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])
A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])
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. (See 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] and 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])
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 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)
The DOE 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. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) 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. (See Burlington, 471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "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. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)
The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)
A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)
The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07-120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)
The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition 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, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)
In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049) In sum, substance and relevant part, the testamentary and documentary evidence in this case is as follows:
DOE Witness The DOE’s witness testified on direct, [REDACTED], is the school psychologist for CSE 10. The witness testified as follows: “We recommended a 6:1:1 and 9 we recommended adaptive PE. And we recommended OT, PT, and speech, and parent counseling and training, and a health para, and (audio interference) technology device.” When the witness was asked what data was used to create the students IEP, she testified as follows “We used -- we used a bilingual psychological from 5/2/17 with Bayley Scales of Infant (sic) Development, Childhood Autism Rating Scale, and Vineland Adaptive Behavior Scales. We used a speech and language evaluation -- a speech and language progress report given to us by [REDACTED]. We used an ABA progress report from 1/20/21 with the ABLLS-R. And we used -- we used -- we used ABA goals from 12/19 and a physical examination and doctor's letter from -- from February '19 and OT reports -- OT progress report from 2020 given to us by [REDACTED], and a PT progress report from 12/20, given to us by [REDACTED]. And I asked the parent questions about their -- their strengths and their-- the physical needs that were of concern to them, physical, social, and academic.”(T-46-47)
When the witness was asked if the Team had sufficient data, she testified, “Well, we did, although the psychological was -- was old -- was old.” (T-47) The witness admitted that the psychological report was old but yet the District relied on it during their meting.
When the witness was asked if they had enough evaluative data, she stated “Well, we needed a psychological. We needed a social history. But outside of that, we had everything we needed. “Do you believe that the IEP recommendation for the student was appropriate? “It was appropriate.” Why do you believe that? “ Well, because he requires a small, self-contained class in District 75, 6:1:1 is the lowest class ratio that the Board of Ed has for autistic kids. And we believe that his feeding needs can be met, his toileting needs could be” (T-48)
On cross-examination the school psychologist testified as follows: When asked on cross examination about the possibilities of options for the student, the witness testified as follows, “We discussed citywide for him. He is very low functioning. And you know, his scores are - -- they're very low. And so we discussed a 6:1:1, an 8:1:1. We came up with a 6:1:1 with the -- you know, during the conference. “What do you mean citywide?” “You discussed the citywide. That's District 75. Okay. So and the 8:1:1 would have been in a D75 program as well, correct? Yes. “So it's fair to say you considered two programs in the D75 system, the 8:1 and the 6:1 (Interposing) Yes. is that correct? And those were the only two programs that you and [REDACTED] discussed, right? Yes. And when you said that his scores were low and that he was low functioning, what data were you looking at to make that determination? I was looking at the bilingual psychological from '17. And that's the one that you considered or you characterized as being old, right? Yes. And so in 2017 in May, when that was done, [REDACTED] would have been two and a half years old, right? Yes. And he was seven at the time of this meeting? Yes, he was. He was the 1st grade. Yes.” (T 83-84)
When asked about the reduction of related services, the witness testified as follows:
“Do you recall that you testified that you reduced his OT? Yes, I do. Okay. From what to what? I think from 45 minutes to 30 minutes. And is that because in the D75 programs, they only allow 30 minutes? It is. And the young children can take 30 minutes of service. They can't - -- they can't sustain 45 minutes. No young child can sustain 45 minutes; is that your testimony? I didn't say that. I said that younger children have an easier time with 30 minutes. And you're aware that [REDACTED] was getting 45 minutes of PT five times a 5 week at MBC for the past year and a half at that point? Yes. And in any of the D75 programs, do you ever award more than a 30-minute of any related services? Well, when children are of middle school age and of high school (Interposing) It's really a yes or a no question, We do. Yes. But not for [REDACTED]? No. And why is that? [REDACTED] is in elementary school. We give - -- we give minutes for kids from grade 6 through 8. And we give 45 minutes for children from 9 to -- grades 9 to 12. So I'll rephrase my question then. Initially, have you ever given an elementary school child or awarded one more than 30 minutes in any related service? No. And so why did you reduce [REDACTED]? Was that because he was going into the D75 program? We reduced it because 30 minutes is what's permitted in the District 75 program. That's what the counselors pull the kids to see them 30 minutes. (T 105-106)
And I just want to clarify, the reduction of OT was from 5x60 to 5x30; is that correct? Yes, it is. Okay. And the reduction of PT was 4x45 to 5x30, correct? Yes, yes. And SLT was 5x45 to 5x30? Yes, yes. Okay. And you had testified that because he was in elementary school, the 30 minutes is what DOE offers? Yes it is. And you had -- it's MBC that provides the related services, right? Yes. Okay. All of those? Yes. And you had reports from the OT, the PT, and the speech therapist? Yes. And it's safe to say you relied on those reports? We did rely on the reports, yes. We put them in the PLOP. Okay. But not what their recommendations were? No. And why was that? We went with our own recommendations. We went with 5x -- 5x30 instead of 4x35. And it's not a big difference, and -- because in -- in -- in elementary school, the children get 30 minutes of service. This -- we're not talking about private school, we're talking about elementary school. Public elementary Right. -- school. Yeah. All of the children? Yes. Okay. And their recommendations were to maintain the mandate as it was, correct? Yes They did not recommend to reduce services? No, they didn't. Do you recall what [REDACTED] recommendation was regarding programing? I don't now. Probably one- to-one. Why do you say that? Because I think most -- most of those -- most [REDACTED], they all recommend one-to-one. Because that's what they've been providing, correct? Yes, yes. We don't have one-to-one services at the DOE. And do you recall the basis for their recommendations? That the child learns best in a one-to-one setting. (T 128-130)
Parents Witness
The Parent’s witness [REDACTED], the students Parent testified via sworn affidavit on direct as follows:
“The meeting was a disaster because they didn’t let me properly express my concerns. Anytime any of us (me, [REDACTED]) made a comment they right away shot it down or ignored it by telling us they could only give him what “Normal “kids received in public school. My issue with this statement is that my son is not a normal kid. He has specific needs that are unique to him. He is not a one size fits all child. (FF)
The entire meeting felt preplanned as they barely let us express our opinions or concerns.
The DOE representatives kept stating that the services they were giving [REDACTED] were services a “normal” public school kid would get. (FF)
1. For the February 2022 meeting the DOE representatives present were, [REDACTED], DOE Special Education Teacher and [REDACTED] the DOE
Psychologist. I attended along with [REDACTED], [REDACTED] ABA Therapist, and [REDACTED], [REDACTED] IEP Coordinator from [REDACTED], who took notes, and [REDACTED], the Executive Director at [REDACTED]. Additionally, both [REDACTED], Director of Education, and [REDACTED] attended from [REDACTED].
2. During our meeting [REDACTED] afterschool ABA therapist spoke about their time with [REDACTED] and how important his at home services were because there was not enough time in the school day. But even at the very beginning of the meeting the DOE stated that “They’ll be focused primarily on the services that he’s getting at the educational setting”. It was never taken into account how his afterschool services contribute to his progress.
3. Having additional hours afterschool continues what he’s worked on during the day and new skills they do not address in school, like toileting at home and cleaning his ears. There are not enough hours in the school day to teach him all the skills he needs because he’s a slow learner and is so delayed.
4. Everyday all his therapists including his afterschool ABA get a detailed report of what was done during the day. His ABA therapist at home use this as tool to know what they can help him with at home and work on joint goals between school, afterschool and my personal goals for [REDACTED]. If there was something he really enjoyed during the day his afterschool therapist can use that as a tool to motivate him during their session. Communication between the entire team has tremendously contributed toward his progress because we are all on the same page as to what is working. This is what [REDACTED] needs to succeed – consistent, repetitive, reinforcing 1:1 services.
5. I asked how that made sense if he’s getting 5 hours of OT and you’re recommending 2.5 hours. If he’s progressing with 5 hours per week, what do you think is going to happen when you reduce it to 2.5 hours? The Special Education teacher from the DOE responded by saying ‘We are recommending what we think is appropriate for [REDACTED]. You of course can exercise your rights.’ I assume she meant by asking for a hearing.
6. The DOE heard of all [REDACTED] progress and current needs and still went on to recommend what they had previously recommended the year before. None of their recommendations had changed because that’s what public school could offer.
They did not take into consideration anything any of his current therapists or any of my concerns into consideration because even though he had made great progress with what he was currently getting it was not something they can recommend because it was not something they offered.
7. By the time of this meeting, I had already purchased the AT equipment [REDACTED] needed but I asked again about whether the DOE abides by the Orders from the IHO. The representatives again told me to speak with the Chair and went on saying they were not informed about any orders.
8. I received a school location letter dated March 9, 2022 indicating the recommendation was [REDACTED]. Exh. J. That school stated they did not have a seat available at the time.
9. I then reached out to the district to inform them, and they offered another school. [REDACTED], but I was told via email March 17, 2022, that they did not have a transportation para due to shortages. On April 12, 2022, I visited the school anyway.
It was like every other public school we visited in the past. They all had the same thing in common just different locations. They all offered a 6:1:2 class ratio and the para if needed.
10. They could provide the related services recommended by the DOE but not at the same rate. I even asked if more related services could be provided but, I was told by the assistant principal at the previous school, [REDACTED], that he’s never seen a child get more than 3x30 minutes per week of a related service.
11. That school and the other public school we visited do not provide any 1:1 ABA. Nor do the therapists work together with the classroom teachers like the transdisciplinary model at MBC where ABA therapists collaborate with Speech, OT, and PT therapists. Assisted Technology
12. I am requesting reimbursement in the amount of $695.55 for the iPad ($335.65), a screen protector and case for the iPad ($33.29) and LAMP software ($326.61).
13. I purchased the equipment in August 2021 because [REDACTED] needed it. Earlier in August MBC did a trial using several options for software and hardware and determined that he needed those items. During the AAC trial, [REDACTED] used two different types of communication software on a regular-sized iPad. [REDACTED] team members (i.e., [REDACTED] providers, outside providers, me) discussed [REDACTED] performance and determined the most appropriate language system to meet [REDACTED] communication needs was the LAMP
WFLTM.
14. Moreover, the AT equipment was previously ordered in part in the July 2019 FOFD and in full in the November 2021 FOFD. I asked about it at the IEP meetings and had several exchanges with the CSE Chair, [REDACTED] to whom I was directed, as to the implementation of the order and never received it. Parent Training
15. Parent training has helped me get feedback into what I can do to better support [REDACTED] learning and his behavior. During parent training we discuss goals
I’d like to work on with [REDACTED] such as cutting his hair, cleaning his ears, etc. It is very hands on and individualized to [REDACTED] and my needs.
16. As [REDACTED] grows and his skill set expands, his needs change so it’s important to continue with the parent training. I find it extremely useful.
17. I have used his bank of services ordered from [REDACTED] previous cases during times he has been hospitalized, during school breaks and in between the school years. “ (FF)
The Parent’s witness Director of Clinical Development, [REDACTED] testified via sworn affidavit on direct as follows:
1. “As the director of Clinical Development, I assist in overseeing the program supervisors and case managers. The information in this affidavit is presented with the input from [REDACTED] providers. [REDACTED] is a happy, easy-going boy who enjoys interacting with his therapists. [REDACTED] especially enjoys playing in the gym or on the playground, including games like chase or riding on a scooter.
He likes to play with figurines and look at pictures on the computer. [REDACTED] employs the use of a transdisciplinary model where ABA therapists collaborate with Speech, OT, and PT therapists.
2. In ABA therapy, [REDACTED] made progress in all domains. Significantly, in terms of learning readiness he is responding to safety instructions and waiting for up to a minute for reinforcers.
3. Verbal behavior: receptively and expressively identifying attributes and various pictures and objects, responding to “where”, “what”, and “who” questions, sorting pictures according to class, identifying special concepts, and identifying functions.
4. Academics: counting using 1:1 correspondence, completing addition problems with manipulatives, completing patterns, reading sight words, and matching sight words to pictures.
5. He has also progressed in his leisure and play skills. He is engaging in sustained play with another person, engaging in a turn-taking, and playing games on electronic devices.
6. Self-Management he is now tolerating using his inhaler and a hair cutting routine. Last year he refused to even look at his inhaler. Self care: completing dressing skills (buttoning and unbuttoning small buttons, snapping snaps, orienting, and donning clothing such as a tshirt, pants, socks, and shoes), increasing his tolerance to a toothbrush, and pouring liquid from a bottle.
7. In Speech therapy, [REDACTED] made progress in each domain. Receptive language: identifying attributes and special concepts.
Expressive language: responding to yes/no questions, expanding vocabulary with category labels, and identifying associations between items. Pragmatic language: rejecting undesired items and directing the actions of a communication partner using prepositions and actions.
Motor speech: producing letter sounds.
8. Currently, and during the 21-22 SY, [REDACTED] was receiving SLT 5x45 per his pendency order. Based on [REDACTED] rate of progress and significant deficits, he requires five 45-minute sessions of speech and language therapy per week in a 1:1 setting with transdisciplinary collaboration.
9. In August 2021, [REDACTED] completed an AAC trial. During the AAC trial period, he had access to a speech generating device (SGD) throughout his day, including at the center and at home. During the AAC trial, [REDACTED] used two different types of communication software on a regular-sized iPad®: Language Acquisition through Motor Planning (LAMP) Words for LifeTM (WFL) and TouchChatTM with WordPowerTM. Upon completion of the trial period, [REDACTED] team members (i.e., [REDACTED] providers, outside providers, mother) collaborated to discuss [REDACTED] performance and determine the most appropriate language system to meet [REDACTED] communication needs. LAMP WFLTM was found to be the most appropriate language system for [REDACTED].
10. [REDACTED] has [REDACTED] syndrome and [REDACTED], Broncho tracheomalacia. He was not eating solids until about the Summer of 2021. During feeding sessions, he is performing tongue retraction and performing five bites on a chewy tube
11. Currently, and during the 21-21SY [REDACTED] was receiving OT 5x60/week per his pendency order. In occupational therapy, [REDACTED] made progress in all domains. He has demonstrated improved hand strength evidenced by his ability to transfer 10 small manipulatives across the table using tongs. He can now copy his name as well as straight line letters with decreased therapist assistance.
12. [REDACTED] enjoys PT sessions; as shown from facial expressions (smiles). Currently and during the 21-22 SY [REDACTED] received PT 4x45/ week. [REDACTED] makes verbal requests and labels most of the equipment items used in the gym. He also uses an augmentative and alternative communication device during sessions to communicate. [REDACTED] enjoys the swing, tunnel, bike, scooter, and is motivated by most movement-based activities.
13. [REDACTED] presents with low muscle tone with underlying global muscle weakness. He has a notable strider. His feet/ankles are moderately pronated and he wears bilateral UCBL’s (orthotics). He displays increased hip and knee flexion, a wide base of support, and decreased heel strike during ambulation. His scapulae are elevated, and he has increased lumbar lordosis; his abdomen protrudes. He appears to have gravitational insecurities and is fearful of new movement experiences. He displays significant gross motor delays. He displays decreased proprioception and motor planning skills.
14. [REDACTED] receives an individualized program of 19 ABA hours and 11.75 1:1 related service hours, consisting of speech-language therapy (“SLT”) 5x45 minutes per week, Occupational Therapy (“OT”) 5x60 minutes per week, and Physical Therapy (“PT) at 4x45 minutes per week. He receives 1:1 ABA services comprised of individualized programs based on goals in between the related services provided.
15. Three ABA therapists are assigned to [REDACTED] in order to help generalize skills, so he does not get used to only responding to one therapist. The ABA therapists are all enrolled in master’s programs and pursuing certification as BCBAs. They are supervised by
16. [REDACTED] related services team is made up of: Two speech language pathologists: [REDACTED], Master of Arts, Communication Sciences and Disorders; BCBA; LBA; Licensed Speech-Language Pathologist, State of New York; American Speech-Language-Hearing Association (ASHA) Certificate of Clinical Competence in Speech-Language Pathology (CCC-SLP); Teacher of Students with Speech and Language Disabilities (TSSLD); [REDACTED], Master of Arts in Communication Sciences and Disorders; Licensed Speech-Language Pathologist, State of New York; American Speech-Language-Hearing Association (ASHA) Certificate of Clinical Competence in Speech-Language Pathology (CCC-SLP);
17. He has two licensed occupational therapists: [REDACTED], Master of Science in OT; Registered and Licensed in New York (OTRL) [REDACTED], Master of Science in OT; Registered and Licensed in New York (OTRL). Two licensed physical therapists: [REDACTED]; Bachelor of Science in Physical Therapy and Psychology; [REDACTED], Master of Science in Physical Therapy; Doctor of Physical Therapy; LPT.
18. [REDACTED] arrives via bus in the morning where a therapist greets him and brings him to his therapy room. He participates in a morning routine consisting of unpacking, toileting and eating breakfast. He then begins working on ABA programming.
19. Various social opportunities are embedded throughout the day, including games and activities within the larger therapy space, reinforcement breaks on the playground or in the gym, and community walks with peers. Additionally, [REDACTED] attends a morning meeting with 3-5 other peers. During these social opportunities, he is supported by a 1:1 therapist to prompt appropriate social interaction and monitor progress.
20. [REDACTED] displays significant deficits in attending, communication and language, and ability to easily generalize skills to novel settings.
His rate of learning is slow yet steady.
21. [REDACTED] receives approximately 10 hours/week of 1:1 ABA services from [REDACTED] (also known as [REDACTED]). [REDACTED] deficits are such that he requires more than what the school day offers. Home services allow for targeting skills specific to the home environment as well as acting as an extension of the school day.
Some goals are targeted in both environments to ensure carryover and highlights the need for the close collaboration between teams. [REDACTED] collaborate regularly on [REDACTED] case through email and team meetings.
22. During the 2021-2022 school year, the team collaborated on various significant aspects of the case including use of the AAC device, toileting, and feeding.
23. [REDACTED] mother, [REDACTED], is in frequent communication with [REDACTED] team and participates in regular team meetings.
Ms. [REDACTED] is extremely responsive, cooperative, and serves as an active participant on [REDACTED] team. This collaboration is crucial in her continued ability to consistently address interfering behaviors and generalize progress made in his ABA program as [REDACTED] needs and goals change. Ongoing caregiver training is provided to lend the support necessary for successful implementation of [REDACTED] device.
24. Upon review of the IEP dated February 2022, it seems the DOE adopted the goals that [REDACTED] drafted, however the services they recommended were limited and not what [REDACTED] and [REDACTED] recommended. Thus, his IEP his deficient. [REDACTED] will not be able to meet those goals unless he continues with the level of service he currently has.
25. Based on the assessments of [REDACTED], we recommend that [REDACTED] receive 1:1 ABA – full day in a center or school-based setting or alternatively 35 hours per week at home or center-based; 1:1 ABA home services of 10 hours/ week; OT 5x60; PT 4x45; SLT 5x45; Two hours of Parent training/ month; Two hours month BCBA Supervision; Team meetings between [REDACTED] 2hrs/ month; and Feeding therapy 1x/week.” (EE)
The Parent’s witness [REDACTED], Psychologist and Behavior Analyst testified via sworn affidavit on direct as follows:
1. “I am the owner and Executive Director of [REDACTED] also known as [REDACTED]. [REDACTED] is a provider of ABA services, as well as other services, in New York.
2. [REDACTED] is an [REDACTED]-year-old boy that is full of energy. He is always happy and playful and often motivated to engage with his therapists. He seeks social approval from them and shows an eagerness to learn. Despite many wonderful skills, [REDACTED] presents with many delays across all areas of functioning and does not learn or retain new skills unless taught in a very systematic and individualized way.
3. [REDACTED] continues to need 10 hours/week of home-based 1:1 ABA. Due to his significant delays and specialized way of learning, an extension of school day is necessary to learn new skills and maintain previously mastered skills. He requires significant repetition to learn and maintain skills.
4. [REDACTED] requires practice across settings, materials, and people. Often, when [REDACTED] is taught a specific skill at home or school, that skills does not naturally generalize to other settings or people.
5. Home services are also needed to ensure consistency with managing his challenging behaviors, consistent and individualized focus on activities of daily living (“ADL”), and a consistent approach with teaching and reinforcing [REDACTED] communication.
6. At [REDACTED], the focus is on academics as well as related services, whereas at home, [REDACTED] prioritizes leisure activities, play and ADLs. All providers in both environments focus heavily on communication and behavior management.
7. [REDACTED] employs a transdisciplinary model and collaborates with [REDACTED] regularly. [REDACTED] has worked seamlessly with [REDACTED] providers on [REDACTED] case for the past four years. This is one of the first cases in which team meetings were ordered across providers and the benefits have been enormous. These team meetings occur both with and without the parent so that we can address parent goals but can also discuss the more technical components of ABA, with a heavy focus on programming and teaching strategies. This has ensured consistency and [REDACTED] rate of learning has substantially increased as a result.
8. [REDACTED] increased rate of learning can be attributed to getting full-time services and consistent collaboration. All therapy teams are on same page and teaching the same way.
9. At the start of the 2021-2022 school year [REDACTED] was receiving in-person services after a lengthy period of remote services due to the pandemic. When services switched to remote in March 2020, [REDACTED] hours decreased. The [REDACTED] team observed regression directly in response to a decrease in hours. This is consistent with what has occurred any time he has a change in schedule or decrease in hours. For example, due to a hospitalization in the past, we saw an increase in interfering behaviors. Any change or decrease in ABA hours could result in an increase in behaviors and a decline in previously learned skills. Therefore, his current educational program needs to be maintained, or we will see regression and an increase in those interfering behaviors.
10. Home services also allow for parent training. The parent is often present during sessions and parent training allows us to provide her with specific techniques and strategies to utilize with [REDACTED] to ensure that he carries over vital skills when therapists are not present. Some examples of essential skills that have been worked on during parent training include feeding, toileting, showering, hair-cutting, ear-cleaning, and administering COVID tests.
11. I have attended several IEP meetings on behalf of [REDACTED], including the two meetings that addressed the 2021-2022 School Year. These took place on February 3, 2021, and February 4, 2022.
12. Prior to both meetings, the DOE was emailed four reports each from [REDACTED]; an ABA report as well as reports from his related service providers all dated December 2021 and
2022. They also received progress reports from [REDACTED] for each meeting, one dated January 2021 and the other for 2022.
13. Prior to both IEP meetings, [REDACTED] was assessed with the Assessment of Basic Language and Learning Skills-Revised (ABLLS-R) by [REDACTED]. The ABLLS is an assessment tool, curriculum guide, and skills-tracking system used to help guide the instruction of language and critical learner skills for children with ASD and other developmental disabilities. It provides a comprehensive review of 544 skills from 25 skill areas including language, social interaction, self-help, academic and motor skills that most typically developing children acquire prior to entering kindergarten. (DD)
COMPENSATORY SERVICES
There is request for compensatory educational services in this case and an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]) Pertinent findings to enable an IHO to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student’s current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]) The Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept. 13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt (“Nesbitt II”), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008])
Regarding the Parent’s request for compensatory services, here, the Parent need only show that the relief requested is "reasonably calculated to enable the child to receive educational benefits." (Frank G. & Gagliardo, supra -emphasis added) This standard of review is de minimus, and arguably below all of the other recognized standards of review in the law, such as “beyond a reasonable doubt”, “clear and convincing evidence”, “preponderance of the evidence”, “substantial evidence” or even “rational basis.”
Here, considering the student’s below grade performance and the failure of the DOE to timely provide the student with an IEP and further delayed the implementation of said IEP, combined with a finding of a three year “gross” violation of FAPE, compensatory services are certainly appropriate. Additionally, the need for the neuropsychological exam and the reliance of the exam to evaluate the student rn
The Parents evidence shows that the student has progressed at [REDACTED] & with his ABA Providers and that they provide individualized instruction and the student has progressed during his time with theme there as per the Parents witnesses and documentation submitted into evidence of the students’ progress reports.
(K,L,M,N,Q,R,S,T,U,V)
When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003]) (emphasis added) This standard is well below those other standards of review in the law such as “beyond a reasonable doubt”, “clear and convincing evidence”, “preponderance of the evidence”, “substantial evidence” or even perhaps “rational basis.” The record, as accurately summarized by the parties above and adopted in this decision and order, supports a finding that the decision to continue the services for the student at [REDACTED] & his ABA services was more than ” reasonable” and appropriate for this student who faces so many challenges and obstacles in his education for the 2021-2022 school year.
APPROPRIATENESS OF THE RELIEF SOUGHT
I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).
There is nothing in the record that support a finding that the Parent has not cooperated with the DOE.
Whereas, accordingly, I find that the Parent is entitled to all of the relief and requested services. I will also exercise my discretion under 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) and order the DOE to conduct its own evaluations regarding any areas of suspected disabilities that the student may have; and, which the Parent may subsequently agree or disagree with; and Whereas in the absence of evidence demonstrating that the Parent has failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of the relief sought by the Parent, including but not limited compensatory education at an enhanced rate. (SRO No. 04-049); and Whereas there being nothing in the record that sustains a finding that the Parent has not cooperated with the CSE; and Whereas the Parent’s testamentary and documentary evidence is completely uncontroverted and need not be repeated herein as they are annexed hereto for the benefit of the reader; and Whereas the DOE has failed to meet its burden under the law and the Parent’s submission clearly reflects that the relief sought meets the unique needs of the student, supported by such services as are necessary that permits the student to benefit from that relief. (Gagliardo & Frank G., supra); and Whereas the parties’ oral arguments, discussions, concessions, testamentary and documentary evidence and this order having been recorded and annexed hereto; and Whereas the DOE’s default constitutes a concession of a denial of FAPE and the completely uncontroverted testamentary and documentary evidence submitted by the Parent and annexed hereto supports the Parent’s request for relief; and Now, therefore, it is hereby
ORDERED upon the DOE’s default and its tacit concession of denial of FAPE, for the school years of 2021-2022 that upon the DOE’s receipt of reasonably satisfactory proof of said services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student’s attendance at [REDACTED] for the full day program for the 2021-2022 school year
ORDERED that at the CSE meeting the District shall modify said IEP to include the following unless said recommendation is specifically contraindicated by the evidence presented to the Committee: a) Full-day program with 1:1 instruction utilizing a research-based methodology including but not limited to ABA; or he should be provided with 35 hours per week of 1:1 home or center-based ABA with providers selected by Parents; and b) 10 hours per week of home-based 1:1 ABA with providers selected by Parents; c) Special education minibus transportation with air conditioning, a car seat, 1:1 para and limited travel time of 60 minutes with funding for prospective car service and/or prompt reimbursement if DOE busing is not arranged; d) Supervision of the home-based services by a BCBA or BCBA-D for at least 2 hours per week with providers selected by Parents; e) Parent training 2x60 minutes per week with providers selected by the Parents; f) Full-time trained 1:1 health paraprofessional; g) 60-minute meetings twice per month between the treatment-team members with providers; h) 12-month extended-school year; i) Speech-Language Therapy (5x45) on a 1:1 basis; j) Occupational Therapy (5x60) on a 1:1 basis; k) Physical Therapy (4x45) on a 1:1 basis; l) Toilet Training; m) 20 hours of AT Training for caregivers and providers n) Feeding therapy once per week; All services should be provided at enhanced market rates
ORDERED that the Parent is awarded a bank of 1:1 ABA hours calculated at 35 hours week for 46 weeks (1610 hours) for the 2021-2022 school year.
ORDERED that the Parent is awarded a bank of 10 hours per week (460 hours) of home-based to be provided by an ABA provider of the parent’s choice; ORDERED that the Parent is awarded a bank of parent training calculated at two hours per week for the 2021-2022 school year provided by an ABA provider of the parent’s choice (a total of 92 hours); ORDERED that the Parent is awarded ABA supervision by a BCBA at two hours per week for the 2021-2022 school year by an ABA/ BCBA provider of the parent’s choice (a total of 92 hours); ORDERED that the Parent is awarded a bank of 1:1 SLT hours calculated at 5x45 for 46 school weeks by a provider of the parent’s choice; ORDERED that the Parent is awarded a bank of 1:1 OT hours calculated at 5x60 for 46 school weeks by a provider of the parent’s choice; ORDERED that the Parent is awarded a bank of 1:1 PT hours calculated at 4x45 for 46 school weeks by a provider of the parent’s choice; ORDERED that the Parent is awarded a bank of 20 hours of AT training for the Parent and Student to ensure access to the AT devices, systems, and applications; ORDERED. All compensatory services awarded should be paid for by the DOE by direct payment to the providers at an enhanced market rate
ORDERED that the DOE fund prospective car service for the parent or, if they choose, a travel aide to and from any compensatory services and/or at their choice, reimburse the parent for those expenses.
ORDERED that all services may be used in-person, remotely via tele-health where appropriate and feasible, during the school day, after-school, at home, during holidays and on weekends, for 52 weeks out of the school year.
ORDERED that the compensatory bank of services shall not expire until exhausted.
ORDERED that the DOE shall reimburse the Parent $695.55 for her purchase of assisted technology within 20 days of the IHO’s Decision.
ORDERED that within 30 days the DOE shall conduct evaluations of the student in all areas of his suspected disabilities, not identified above and not evaluated within the last two years, for his 2022-2023 school year; and it is further
ORDERED that within 30 days the CSE shall forthwith reconvene to produce a new IEP for the student’s 2022-2023 school year; and it is further
ORDERED that any of the other relief sought by the Parent not addressed by this “Final Order” is found to be either resolved by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.
Sharifa Milena Nasser
DATED: May 11, 2023
Queens, New York Sharifa Milena Nasser- IHO
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. (Rev. 07/09/20)
Footnotes
[06] Center 2021/2022 12 Physical Therapy Progress Report related services of PT (4x45), OT (5x60) and SLT (5x45) at MBC. (H-1-2). Additionally, he receives 10 hours of ABA per week at home to ensure consistency and carryover from [REDACTED] (H-2) At the impartial hearing, the Parent seeks the following relief: the providers selected or comparable providers.