New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 574708- NYC: 227523

FINDINGS OF FACT AND DECISION

Case Number: 227523

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

Date of Birth: [Redacted]

School District: 15

Hearing Requested by [Redacted] (Parent)

Request Date/Date Complaint Filed: July 1, 2022

Dates of Hearing: September 9, 2022

November 2, 2022

December 2, 2022

Actual Record Closed Date: December 15, 2022

Date of Decision: December 19, 2022

Date of Distribution if Different than Decision Date: December 19, 2022 Hearing Officer: Linda S. Agoston

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 9, 2022

For the Student:

[Redacted], ESQ., Attorney For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 3, 2022

For the Student:

[Redacted], ESQ., Attorney [Redacted], Parent

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2022

For the Student:

[Redacted], ESQ., Attorney [Redacted], Co-Executive Director, [Redacted]

For the Department of Education:

NONE

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (IHO) on Parent’s Due Process Complaint (DPC) filed on or about July 1, 2022 and amended DPC on July 11, 2022 (P-Exhs. A-B)^[2].

On July 11, 2022, I was designated by the New York City Department of Education (DOE) as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, (IDEA) 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York in the matter of [Redacted] (hereinafter the Student). A pre-hearing conference was held on August 30, 2022, and I scheduled a pendency hearing for September 9, 2022. On September 9, 2022, I ordered that the DOE provide the Student with an 8:1:1 classroom in an appropriate District 75 school with a 1:1 full-time behavior support paraprofessional in school and on the bus and the following related services in school: (i) counseling once a week in a group of 2 for 30 minutes; (ii) occupational therapy (OT) twice a week individually for 30 minutes per session; (iii) OT once a week in a group of 2 for 30 minutes; (iv) parent counseling and training (PCAT) once per month in a group for 60 minutes; (v) speech and language therapy (SLT) twice a week individually for 30 minutes per session; and (vi) SLT three times a week in a group for 30 minutes per session; 25 hours per week of applied behavioral analysis (ABA) services in school; 10 hours per week of ABA services at home; 2 hours per week of board certified behavior analyst (BCBA) program supervision; 2 hours per week of SLT at home; and 1 hour per week of OT at home per final Order of Findings of Fact and Decision (FOFD) dated July 3, 2022 (P-Exh.C). The Parent asserted that the Student had not received any SLT or OT at home because of the Parent has not been able to find a provider who is available and will provide in-person services (T.53-54).

The parent's attorney moved to extend the compliance dates during the course of the hearing and I granted the requests for extensions of the compliance dates (T. 7,15;60;154 Exhs. I-III). On December 15, 2022, the Parent's representative submitted her closing statement (P-Exh.S). The current record close date is December 15, 2022 and the decision due date is December 29, 2022. Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

Hearings were held on November 3, 2022, and December 2, 2022. It was a closed hearing, and the Parent was represented by [Redacted], ESQ., and DOE did not appear.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, IDEA), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

The Student is a [Redacted] year-old boy in the [Redacted] grade currently attending a public school in NYC at [Redacted] in a special 8:1+1 class for the 2022-2023 school year (sy) (T.82; P-B at 11). The Student has a history of Autism Spectrum Disorder (ASD) and a history of severe developmental delays and attention difficulties and has expressive, receptive, and pragmatic delays as his speech is often scripted and presented in the form of delayed echolalia. The Student struggles with safety awareness and elopement and requires assistance with activities of daily living (T.77-78; P-Exh. A at 2).

The Parent alleged in the DPC dated July 1, 2022, that the DOE failed to provide a free and appropriate public education (FAPE) for the 2022-2023 sy as the DOE failed to timely or adequately evaluate the Student, nor did the DOE develop a legally appropriate Individualized Education Program (IEP), nor did the DOE recommend a timely and appropriate placement (P-Exh. A at 2). The Parent further alleged that the DOE violated Section 504 and the IDEA by adopting and implementing systemic and blanket policies regarding special education service delivery that have affected the services offered (P-Exh. A at 12).

The Parent alleged in the amended DPC that the most recent IEP developed on December 20, 2021 denied the Student FAPE for the following deficits: a) inappropriate or insufficient behavior support services; b) not sufficient 1:1 instruction; c) no ABA services, d) no home-based related services including PCAT; e) no appropriate services to address the Student's elopement issues or maladaptive behaviors; f) insufficient services to address the Student's difficulty with social behavior and peer interaction; g) no appropriate functional behavior assessment (FBA) or behavior intervention plan (BIP) was recommended (P-Exh. B. at 10).

The Parent alleged that in the FOFD in Case # [Redacted] (P-Exh. D), the IHO ordered that the Student's ABA program and home-based related services be added to the IEP and the Parent asserted that these services were not included on the December 2021 IEP(Id.). The Parent alleged that the IHO in the FOFD Case # [Redacted] ordered that the DOE provide compensatory banks of 114.5 hours of SLT and 46 hours of OT and ordered reimbursement to the Parent for travel expenses due to the DOE’s failure to provide a bus route and/or bus paraprofessional during the 2021-2022 sy (P-Exh. B. at 11). The Parent further alleged that the placement at [Redacted] was inappropriate as the Student required intensive individual ABA services and asserted that the Student was "a qualified individual with a disability pursuant to Section 504 and has been subjected to discrimination by the DOE based on his disability" (P-Exh. B at 12).

The District was defaulted by its non-appearance (T.29;155).

The Parent seeks a Final Order for the following: an 8:1:1 class in an appropriate District 75 school with a 1:1 full-time behavior support paraprofessional in school and on the bus and the following related services in school: (i) counseling once a week in a group of 2 for 30 minutes; (ii) OT twice a week individually for 30 minutes per session; (iii) OT once a week in a group of 2 for 30 minutes; (iv) PCAT once per month in a group for 60 minutes; (v) SLT twice a week individually for 30 minutes per session; and (vi) SLT three times a week in a group for 30 minutes per session. The program and related services requested matched the mandate on the December 2021 IEP (P-Exh. S at 12). The Parent further seeks a Final Order for 25 hours per week of ABA services in school; 10 hours per week of ABA services at home; 2 hours per week of BCBA program supervision; 2 hours per week of SLT at home; and 1 hour per week of OT at home (P-Exh. B at 14) and an Order for compensatory services of 92 hours of SLT and 46 hours of OT for missed related services (P-Exh. S at 12).

A DOE FBA conducted on March 19, 2019, noted that the target behaviors were [Redacted] (P-Exh. E at 6).

A DOE BIP developed on April 13, 2018, indicated that the target behavior was getting out of his seat to leave the classroom and to run down the stairs (P-Exh. F at 2).

A SLT Progress Report dated January 25, 2022, noted that the Student progressed "towards his goals across domains; however, his reduced attention span and impulsive behaviors impact overall treatment progression and generalization of skills"(P-Exh. I at 5). The SLT evaluator recommended that SLT "be increased to two times a week for 60 minutes a session outside of school to facilitate generalization and further progress towards his expressive, receptive and social language goals" (Id.).

An OT Progress Report dated January 29,2020, recommended that the Student "[Redacted]" (P-Exh. J at 6).

The FBA and BIP developed by the BCBA on June 12, 2021, indicated that the Student's target behaviors were [Redacted] (P-Exh. K at 7). The BCBA found that the Student demonstrated a 20% decrease in the occurrence of the target problem behaviors of [Redacted] (P-Exh. K at 8).

On December 20, 2021, the CSE met and classified the Student with Autism and recommended that he be placed in special class with a student to staff ratio of 8:1+1 in core subjects of ELA, math, science and social studies within a District 75 program for 12 months (Exh. D-1 at 31-32). The IEP recommended related services of individual OT 2 times per week for 30 sessions per session; group OT once per week for 30 minutes; counseling in a group of 2 once per week for 30 minutes per session; PCAT 3 times per year for 60 minutes per session with monthly workshops; individual SLT 2 times per week for 30 minutes per session and group SLT 3 times per week for 30 minutes per session in a group of 3 (Exh. D-23-24. The IEP indicated that the Student had 1st grade reading and 3rd grade math skills (Exh. D-1 at 30).

The Counseling Progress Report dated December 21, 2021, indicated that the Student was enrolled in a District 75 school in an 8:1.1 program and that the Student had participated in the New York State Alternate Assessment. The evaluator noted that the BIP developed on April 13, 2018, targeted [Redacted]and that he received the support of a 1:1 full time behavior paraprofessional, 25 hours per week of a 1:1 ABA in school and an additional weekly ABA 10 hours at home (P-Exh. G at 2).

The BCBA measured the effectiveness of the BIP on September 22, 2022 and reported that the Student's "[Redacted]" (P-Exh. L at 22).

The Annual ABA Progress Report dated October 10, 2022, reviewed by the BCBA indicated that the Student "communicates using vocal speech in 5–7-word utterances. Most of his spoken language is in the form of delayed echolalia/scripting, as opposed to communicating in natural language" (P-Exh. M at 2). The BCBA concluded that the "ABA providers generate explicit rules regarding safe behavior during situations in which [the Student] is likely to encounter tight spaces and crowds, such as gym, lunch and, recess "(P-Exh. M at 9). The BCBA noted that the Student "[Redacted]" (P-Exh. M. at 26-27).

ISSUES

Did the DOE fail to provide a FAPE for the 2022-2023 sy and did the Parent establish that 25 hours per week of ABA in school; 10 hours per week of ABA at home and 2 hours per week of BCBA program supervision as well as 2 hours per week of SLT at home; and 1 hour per week of OT at home were appropriate? Was the Parent subject to disability-based discrimination under Section 504 as there was no appropriate IEP or placement and a blanket policy regarding special education? Did the equities favor the Parent and was the Parent entitled to compensatory services for related service missed at home?

FINDINGS OF FACT

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

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

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

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR ¶ 234 (App. Div. 2011).

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

The DOE has the burden of proof of both production and persuasion as to (a) whether FAPE was provided to the Student and (b) questions relating to relief, as the Parent was not seeking tuition for a unilateral placement in a private school. N.Y. Educ. Law § 4404; see also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 016); see also Application of a Student with a Disability, Appeal No. 11-032 Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

I find that the District defaulted by its non-appearance on the first date of the evidential hearing (T.29;155). Accordingly, I find that a FAPE was not offered for 2022-2023 sy.

The Parent's attorney asserted that while the Student attended "[Redacted], a District 75 middle school.... in an 8:1:1 class, his current classroom only has 4 students" (P-Exh. S at 3). I credit the testimony of the Co-Executive Director and find that she was an ABA Supervisor at [Redacted] and find that Student's teachers and paraprofessional relied on the ABA providers in school to demonstrate the techniques and strategies and that as a result of the presence of the ABA providers elopement was not an issue (T.91). I credit the testimony of Co-Executive Director, who stated that she was a NYS licensed behavior analyst (LBA) and a BCBA and I find that her agency provided ABA and special education services to students (T.71), and that she had worked as a BCBA for the past 4 years (T.73). I credit the testimony of the Co-Executive Director and find that she started working with the Student in April 2021 and that her agency provided ABA services, daily as he received 25 ABA hours per week in school and 10 ABA hours at home per week and 2 hours of BCBA supervision (T.75). I find as the Parent's attorney noted that she was one of the BCBA supervisors for the Student's ABA providers and she created and oversaw his program, and provided the BCBA program supervision (T.76,99,101,111; P-Exh. S at 5). I find that the ABA providers for the Student were BCBAs and LBAs (T.75-77). I find that the Co-Executive Director assessed the Student and observed that he [Redacted] (T.78). I find that the Student's [Redacted] significantly impacted his functioning and safety and his ability to learn was impeded (T. 97;93, P-Exhs. F at 2; G at 2; K at 8; M at 4,9). I credit the testimony and evidence and find that the ABA providers broke up information into smaller steps and used checklists, sentence stems, color codes and visual and textual prompts (T.81;84; P-Exh. O). I credit her testimony and find she developed a BIP to reduce the maladaptive behaviors by replacing them with more functional behaviors (T. 86), as the school's BIP was outdated from 2018 and did not include relevant behaviors or current reinforcers (T.85). I find that the Co-Executive Director targeted his [Redacted] with a textual prompt to use "Thinking voice" so that the Student used functional communication and I find that she targeted [Redacted]by a visual prompt and taught the Student to request [Redacted] (T.87; P-Exhs. N, R). I credit the testimony and evidence and find that the Student's [Redacted] occurred daily per the graph P-Exhs. K at 4; L at 3-24) and I find his [Redacted]decreased were addressed by the Co-Executive Director's BIP (P-Exh. L at 22; T.99;103; P-Exh. L at 22).

The Parent attorney asserted that the Student's targeted behaviors were "chosen because they were occurring 90% of the time during the day. Tr. 90-91, 102. These behaviors have since decreased 35-40% of the time, but the goal is to eliminate them entirely. Tr. 105"(P-Exh. S at 5-6). I agree and find that the ABA providers used textual prompts instead of vocal prompts to promote independency to remind him to engage in appropriate behavior (T.85). I find that the Co-Executive Director developed an appropriate behavior plan to reduce maladaptive behaviors by reinforcing the targeted correct response using praise or tokens that could be exchanged for preferred items (T. 87). The Parent's attorney argued that the "ABA team is also currently collecting data on new behaviors, [Redacted] to determine whether these behaviors need to be targeted in the behavior plan. Tr. 105-106" (P-Exh. S at 6).

I find that the Student made meaningful progress in academics, behavior, functional language and daily living skills (DLS) (P-Exh. M at 26). I credit the testimony and find that the Student's reading comprehension improved on the Fountas & Pinnell from Kindergarten to a 3rd to 4th grade level (T.114-115). I credit the testimony and find that the Student was able to learn new concepts only by the ABA techniques (T.116). I credit the testimony and evidence and find that the Student was able to expand his verbalization and was now able to speak in 5-to-7-word utterances and was able to answer "wh" questions with sentence starters (P-Exh. M at 13-16; T;119-122). I find ABA therapy improved his social emotional skills, by working on learning social cues, maintaining eye contact, and appropriately playing with and sharing with peers (T. 126-128, P-Exh. M-20, 22) and I find that he improved DLS as he was now able to use utensils and to expand his food tolerance and was able to request his [Redacted] (T.133-135). I further find that the Student was able to [Redacted] independently using the checklist (T.138).

I credit the testimony and find that the Student had many maladaptive behaviors with emotional outbursts and find that his behavior improved with differential reinforcement so that he was more heavily rewarded with appropriate behavior (T.126). I credit the testimony and find that the Student's writing improved with the writing check list (P-Exh. P). I find that the Student was able to write a sentence and a paragraph with a reminder and a check list (T.130). I credit the testimony and find that the student had poor spatial awareness and that with colorful circles the Student was reminded to stay in place (T.131). I credit the testimony and find that the Student had [Redacted] and I find that with physical and visual prompts his behavior and spatial and bodily awareness improved (T.132). I credit the testimony and evidence and find that the at-home ABA therapists worked on safety skills, and I find that the Student was now able to go into the community safely by holding hands and not running away from the ABA providers (P-Exh. M at 4, 9; T.139) and was able to go to the store to purchase an item and use his math skills to count his change (T.140).

I credit the testimony and find that the Co-Executive Director participated in the IEP meeting and discussed the progress the Student had made with ABA and that the team told her that they would recommend ABA in the IEP; however, the IEP did not recommend ABA (T.141). I credit the testimony and find that she recommended that the Student continue to receive 25 hours of ABA in school and 10 hours of ABA at home to pre-teach the units at home and at school (T.142-144). I find the testimony and evidence established that the 10 hours of home-based ABA and 25 hours of ABA in school was necessary and appropriate. I credit the testimony and evidence and find that the BCBA analyzed the data each week to monitor progress and made any necessary changes to his long-term goals and I find that 2 hours of BCBA supervision were necessary and appropriate (P-Exhs. L at 1; M at 1; T.77). I find that ABA at home and at school enhanced generalization and ensured consistency and mastery of skills (T.163).

I credit the testimony of the Parent and find that the home environment program complemented the school program and I find that the Student required the carry-over of skills from school and the ABA home program to interact in the community and to socialize and recognize danger [Redacted] (T.34;43;50). I find that the Student did elope when he was left alone without a paraprofessional and ended up in the street (T.33). I credit the testimony and find that safety was the Parent's most pressing concern (T.36), and that because his communication skills were limited [Redacted] (T. 39). I credit the testimony and find that the Student continued to require the reinforcement and the break-down of information into steps for his DLS and needed to look at the schedule to clean himself (T.41). I credit the testimony and find that the Student had sensory issues because [Redacted] (T.44), and I find that the ABA providers worked with the Student to tolerate [Redacted] and helped the student [Redacted] (T.53). I credit the Parent's testimony and find that the Student required OT and SLT at home, but that she was unable to find a provider who would come to the home (T.54). I credit the testimony and find that the BCBA recommended after school OT for 1 hour per week and after school SLT for 2 hours per week to address his deficits (T.145). I credit the Parent's testimony and find that she attended the December 2021 IEP meeting and that she requested ABA services and was told that ABA services could not be provided (T.56). I find the failure to mandate ABA services on the IEP significantly impeded the Parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student.

I find that Section 504 provides that '[n]o otherwise qualified individual with a disability... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.' 29 U.S.C. § 794(a). I find that the Student required ABA services in school and at home to deny ABA services rendered the placement and program inappropriate and was a violation of Section 504 as a blanket policy of special education.

CONCLUSIONS OF LAW

I conclude that the Parent met her burden to establish that 25 hours of ABA in school per week and 10 hours of ABA per week at home supervised by a BCBA for 2 hours per week for the 2022-22023 sy were part of the appropriate program and were designed to meet the Student's unique needs and were reasonably calculated to enable the student to make meaningful educational gains. I conclude that the ABA provided in school and at home ensured that the program was being generalized for the Student across all settings. I conclude that the home-based ABA therapy increased family participation instead of allocating all hours during the school day and prevented regression during the time he was out of school. In M.H. v. New York City Dep’t of Educ., 685 F.3d 217 (2d Cir. 2012), the Second Circuit unequivocally held that it is not necessary for a student’s related services to be provided “[d]uring the school day in order for [the student] to receive appropriate benefit from them.” M.H., 685 F.3d at 253-54. I further conclude that the Parent met her burden to establish that 2 hours per week of SLT at home; and 1 hour per week of OT at home were appropriate and designed to meet the Student's unique needs and were reasonably calculated to enable the student to make meaningful educational gains.

The Parent's attorney requested "compensatory services for the related services that [the Student] was entitled to receive under the pendency order during the SY at Issue but that he did not receive. Specifically, [the Student] did not receive any SLT or OT at home because of provider unavailability. Tr. 53-54" (P- Exh. S at 11).

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

The Parent's attorney asserted that the Student "[Redacted]. Tr. 83, Ex. M-1, 16. He also has difficulty [Redacted] Tr. 117-119. In order to address these delays, [the Student's] previous independent speech evaluation recommended 2 hours per week of SLT at home. Ex. I-6."(P-Exh. S at 10). I agree. The Parent's attorney further asserted that the Student "needs to learn how to do this himself so he can be more independent with his academic work. Ex. J-6. The recommendation from his original independent OT evaluator is 1 hour per week of OT at home. Ex. J-6” (P-Exh. S at 11). I agree. The Parent's attorney calculated the amount of missed SLT at home due to the Parent's inability to find a SLT provider was 92 hours of SLT at home or 2 hours per week x 46 weeks (Id.). I agree. The Parent's attorney calculated the amount of missed OT at home was 46 hours or 1 hour per week x 46 weeks (P-Exh. S at 12). I agree.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

(1) that the DOE has failed to provide the Student with a FAPE for the 2022-2023 sy and the Parent acted reasonably and the equities favor the Parent;

(2) that the DOE has failed to provide the Student with a FAPE for the 2022-2023 sy and violated Section 504 as the Student was subject to discrimination based upon his disability;

(3) that the following program constitutes FAPE in an 8:1:1 classroom in an appropriate District 75 school with a 1:1 full-time behavior support paraprofessional in school and on the bus and the following related services in school (i) counseling once a week in a group of 2 for 30 minutes; (ii) OT twice a week individually for 30 minutes per session; (iii) OT once a week in a group of 2 for 30 minutes; (iv) PCAT once per month in a group for 60 minutes; (v) SLT twice a week individually for 30 minutes per session; and (vi) SLT three times a week in a group for 30 minutes per session;

(4) that the following program constitutes FAPE for the 2022-2023 sy of 25 hours per week of ABA services in school; 10 hours per week of ABA services at home; 2 hours per week of BCBA program supervision; 2 hours per week of SLT at home and 1 hour per week of OT at home;

(5) that the DOE will fund the following compensatory related services for a bank of 92 hours of SLT; and 46 hours of OT;

(6) that the services shall not expire and shall be provided by licensed and/or certified providers, of the Parent’s choosing, and paid for at market rates within the range paid by the DOE’s Impartial Hearing Implementation Unit.

.

SO ORDERED.

DATED: December 19, 2022

/s/ Linda Agoston

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A – REDACTION IDENTIFICATION PAGE

Student’s Name:[Redacted]

Date of Birth: [Redacted]

School District: None

Parent’s Name: [Redacted]

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

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit

Document

Date

Pages

A Impartial Hearing Request 07/01/2022 15

B Amended Impartial Hearing Request 07/11/2022 16

C FOFD in Case # [Redacted] 07/03/2022 14

D Individualized Education Program 12/20/2021 4

E Functional Behavioral Assessment 03/19/2018 9

F Behavioral Intervention Plan 04/13/2018 7

G Counseling Progress Report 12/20/2021 2

H [Redacted] Results Progress Over Time Undated 2

I Speech Language Therapy Progress Report 01/25/2020 6

J Occupational Therapy Progress Report 01/29/2020 6

K ABA Functional Behavior Assessment and Behavioral Intervention Plan 06/18/2021 8

L ABA Report Measuring Effectiveness of BIP 09/22/2022 24

M ABA Progress Report 10/10/2022 27

N ABA Token Board Undated 1

O ABA Token Board Prompts Undated 1

P ABA Writing Checklist Undated 1

Q ABA Bathroom Checklist Undated 1

R ABA Provider Clipboard Undated 1

S Parent's Closing Brief 12/13/2022 12 IHO’S EXHIBITS Exhibit

Document

Date

Pages

I

Decision on Extension

9/9/2022

1

II

Decision on Extension

11/3/2022

1

III

Decision on Extension

12/3/202

1

Footnotes

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

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.