New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 574736 - NYC: 227552

FINDINGS OF FACT AND DECISION

Student’s Name 1: [Redacted] (“Student”)

Date of Birth: [Redacted]

School District: [Redacted]

Hearing Requested by: [Redacted] (“Parents”)

Request Date/Date Complaint Filed: July ^[1], 2022

Dates of Hearing: September 22, 2022 and June 8, 2023

Actual Record Closed Date: June 28, 2023

Date of Decision: July 5, 2023

Date of Distribution if Different than Decision Date: July 5, 2023 Hearing Officer: Linda S. Agoston

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 22, 2022

For the Student:

[Redacted], ESQ., Attorney

[Redacted], Parent Student

[Redacted]. Head of [Redacted]

For the Department of Education:

[Redacted], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 8, 2023

For the Student:

[Redacted], ESQ., Attorney

[Redacted], Parent Student

[Redacted], BCBA, LBA, [Redacted]

[Redacted], Head of [Redacted]

For the Department of Education:

[Redacted], ESQ., Attorney

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents' Due Process Complaint (“DPC") filed on or about July 1, 2022. (P-Exh. A) 2 and amended on September 23, 2022(P-Exh. I).

On July 7, 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 Hearing on the merits was held on June 8, 2023. A pre-hearing conference was held on August 16, 2022. A hearing limited to the Parents' request for the issuance of an order concerning pendency entitlements was held on September 22, 2022. I issued an order (P-Exh. J), to direct that the DOE fund the unilateral placement of the Student in a 12-month program at the [Redacted] (hereinafter the private school or "[REDACTED]") and to fund the following: (i) 40 hours per week of 1:1 Applied Behavioral Analysis ("ABA") therapy at a rate of $ [Redacted] per hour; (ii)^[2] hours per week of 1:1 supervision by a from a board certified behavior analyst ("BCBA") at a rate of $150.00 per hour; (iii) 5 hours per week of 1:1 speech language therapy ("SLT") from a speech language pathologist ("SLP") at a rate of $ [Redacted] per session; and (iv) 5 hours per week of 1:1 occupational therapy ("OT") at the rate of $ of[Redacted] per unappealed Findings of Fact and Decision (P-Exh. C at 20-21).

The Parents alleged that in their initial DPC that the IEP meeting on May 13, 2022, was conducted without considering the recent reevaluation from [Redacted] ,(P-Exh. H) and was predetermined as the Parents were told that the meeting would be rescheduled and a new team would reconvene on May 25, 2022; however, on May 27, 2022, the Parents received the May 13, 2022 IEP (P-Exh. A at 2-3), developed without their participation. The Parents alleged that the IEP and the Prior Written Notice (“PWN”) dated May 13, 2022, that recommended a 12-month placement in a special education class with a 6:1+1 student to staff ratio and related services of individual OT 5 times per week for 30 minutes per session; individual SLT 5 times per week for 30 minutes per session and parent training and counseling ("PCAT") 4 times per year for an hour per session in a DOE Specialized District 75 School[Redacted] located at [Redacted] was made without parental participation (P-Exh. A at 3). Accordingly, the Parents enrolled the Student in [REDACTED], a private school which is not approved by the New York State Education Department for the 2022-2023 school year.

The Parents alleged in their amended DPC that they were told that [Redacted] reevaluation was missing certain academic data during the May 13, 2022 IEP meeting and they were told that the team would reconvene after the data was inserted to consider the reevaluation (P-Exh. I at 2). The Parents alleged that they submitted the reevaluation to the CSE on May 24, 2022, and a District representative e-mailed them to state that a new IEP meeting would be scheduled shortly; however, the May 13, 2022 IEP and PWN were sent to the Parents without considering the updated evaluation (Id.). The Parents alleged that the IEP team considered outdated evaluative material and did not consider [Redacted] reevaluation and so the CSE predetermined the program and they were denied meaningful participation(P-Exh. I at 3). The Parents alleged that they were denied any meaningful opportunity to participate in the development of the May 13, 2022 IEP and that the IEP did not contain any of the legally required evaluations including a functional behavior assessment ("FBA"), a social history reevaluation or SLT or OT evaluations (Id.) The Parents alleged that without updated assessments the team did not develop a behavior intervention plan ("BIP") and challenged the frequency of the related services and the lack of measurable behavior goals (Id.). They asserted that the May 13, 2022 IEP was not reasonably calculated to enable the Student to receive an educational benefit because it failed to recommend a full-time ABA program and that the recommended program at [Redacted] was inappropriate without any ABA programming and without a BCBA on staff (PExh. I at 4). The Parents seek reimbursement/direct funding of their daughter at her unilateral placement as well as funding for the 12-month extended school year ("ESY") home-based afterschool services of 10 hours per week of 1:1 ABA at the standard market rate at $ [Redacted] per hour (T.151;P-Exh. I at 3).

The parties moved to extend the compliance dates during the course of the hearing and I granted the requests for extensions of the compliance dates (T.157-158;IHO Exhs. 1-VII). The last compliance date was extended as a result of the request for post-hearing submissions. The Parents' representative submitted his post-hearing brief on June 28, 2023, and the District's Representative declined to submit a post-hearing statement. Accordingly, the current record close date is June 28, 2023. Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

The hearing was held on June 8, 2023. It was a closed hearing, and the Parents were represented by [Redacted] , ESQ., and DOE was represented by[Redacted] , ESQ., who presented no witness or evidence and did not contest any allegation contained in the Due Process Request (T.76) and did not object to correcting the DPC and the amended DPC to add 2 hours of BCBA at the rate of $[Redacted] per hour (T.156). The Parents withdrew the request for reimbursement and seek only direct funding and did not request funding for transportation and presented no testimony or evidence for the cost of the independent evaluation. Therefore, I deem the claim for the cost of the independent evaluation is abandoned (T. 149).

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 an [Redacted] year-old girl with a history of Autism Spectrum Disorder ("ASD") and a history of severe developmental delays (P-Exh.H at 6), who was enrolled at [REDACTED] for the 2022-2023 school year (P-Exh. G at 15).

On April 19, 2022 and May 11, 2022, a reevaluation was conducted by [Redacted], when the Student was [Redacted] years old. She provided the educational history of the Student and noted that for the past [Redacted] years the Student received a full-time home ABA program for 40 weeks and had received SLT for 5 hours per week and OT for 5 hours per week and had a diagnosis of ASD level 1 from a prior neuropsychological evaluation conducted in April 2019 (PExh. H at 1). She used the Beery Buktenica Development Test of Visual Motor Integration 6th Edition that indicated that the Student performed in the above average range in her visual and motor ability (P-Exh. H at 10). She assessed the Student's cognition and concluded that the Student's cognitive functioning on the abbreviated Stanford Binet was in the Low Average range; her non-verbal IQ score was Low Average, her verbal IQ score was Very Low and her IQ score was 78 (P-Exh. H at 8). She also assessed the Student's cognition scores on the subtests of the Lieter International Performance Scale 3rd Edition ("Leiter-3") and concluded that the Student functioned "in the high average range of ability, as measured by the purely nonverbal Leiter-3 (Nonverbal IQ= 112, 79th percentile). This score was well over a full standard deviation higher than [the Student's] achieved Nonverbal IQ on the Stanford Binet- 5th Edition" (P-Exh. H at 5). Based on the Student's progress from the at-home ABA program she concluded that the Student "[Redacted] " (P-Exh. H at 6). She found that while the Student continued to meet the criteria for ASD, she was ready for a school-based ABA program and had recommended "[Redacted] " (Id.). She further recommended ESY and SLT for 5 hours weekly and OT for 5 hours weekly, and a sensory diet (P-Exh.H at 6).

The Parent provided a Tuition Affidavit dated June 2, 2023, that indicated that the Student received in-person instruction 5 days per week and that the total tuition cost of [REDACTED] was $[Redacted] that included 8 related sessions per week and that the DOE had paid $[Redacted] and that the total amount due was $[Redacted] (P-Exh. M at 1).

The ABA Progress Report dated April 3, 2023, by [Redacted] , the BCBA, indicated that she had worked with the Student for the past 4 years and that the Student had been receiving 10 hours of special education teacher support services ("SETSS") and ABA instruction per week after attending a full time ABA-based non-public school at [REDACTED] (P-Exh. U at 1). She concluded that the Student made "[Redacted] " (P-Exh. U at 1). The BCBA indicated that the Student needed "[Redacted] " (Id.). She recommended that the Student " [Redacted] " (P-Exh.

U. at 3-4). For the 2022-2023 school year, the Program Description of [REDACTED] indicated that it was an independent private school for middle to high functioning school-age students on the autism spectrum (P-Exh. D at 1). [REDACTED] had student to staff class ratios of 6:1:2, 8:1:2, and 10:1:2, with a certified special education teacher and 2 teaching assistants in each classroom with 6 "therapy rooms, a sensory gym, indoor gym, and an outdoor playground" (Id.).

The class schedule for the Student listed morning meeting, OT, math, writing, fluency training, gross motor activity, SLT, spelling, leisure activity / community outing, ELA, APE, reading, art/music, and class meeting (P-Exh. K at 1).

ISSUES

Did the DOE fail to provide a FAPE for the 2022-2023 school year in that the CSE failed to consider the updated evaluation by [Redacted] and was the IEP was conducted without the Parents and without the required evaluations including but not limited to FBA, a social history update, SLT and OT evaluations and without full-time ABA instruction for the 2022-2023 school year (P-Exh. B at 2-3) and did the Parents establish that [REDACTED] and 10 hours of at-home ABA and 2 hours of BCBA were appropriate and did the equities favor the Parents?

FINDINGS OF FACT

The District's case was presented in the testimony of the CSE District [REDACTED] representative who stated that he was not presenting a case and conceded the First Prong of the test for tuition reimbursement (T.76.).

The Parent's attorney requested direct funding for the cost of [REDACTED] and direct funding for the home ABA services that were not paid under the pendency (T.153). The Head of School for [REDACTED], the home-based BCBA provider and the Parent testified in support of the Parents' claims.

I credit the testimony and evidence and find that the Head of [REDACTED] was a BCBA and a Doctor of Philosophy in Behavior Analysis and Behavioral Disorders and held a Master's degree in ABA and was employed to supervise other clinicians and to implement treatment programs for children with development disorders for the past 19 years and had worked as a special educator, and a school leader in NY and NJ public and private schools, and served as Head since [REDACTED] existed in [Redacted] and oversaw every aspect of [REDACTED]'s program to comply with DOE rules and regulations (T.99; P-Exh. T at 1-3). I credit the testimony and evidence and find that the students at [REDACTED] were diagnosed with Autism, developmental and language disabilities; however, a majority of the students were diagnosed with ASD and were aged [Redacted] with approximately [Redacted] students in 4 classrooms with SLT, OT, PT and counseling push-ins and that [REDACTED] provided a comprehensive ABA program that implemented a FBA and BIP for each student (T.100;P-Exh. T at 4). I credit the testimony and evidence and find that for the 2022-2023 school year, the classroom staff included a certified special education head teacher, 2 assistant teachers, licensed SLP, OT and PT providers and a social worker and registered nurse for 8 or 6 students so the staff to student ratio is 2:1 or 1:1 (T.101). I credit the testimony and evidence and find that PCAT was an integral part of [REDACTED] and that each student had a BIP and their own IEP goals to progress both academically and behaviorally and that the students' sensory needs were met to enable learning from all the senses: vision, auditory, olfactory, gustatory, tactile and movement (T.104;P-Exh. T at 6). I find that [REDACTED] provided sensory integration programs in collaboration with physical and occupational therapists and that each student had a sensory diet with sensory gyms equipped with padded mats, suspension equipment and trampolines to improve student's selfregulation, fine and gross motor (T.105;P-Exh. T at 7). I find that the credible testimony and evidence established that [REDACTED] used a positive rewards system of tokens, toys, music and gym to enable the students to refrain from off task behavior and that the staff used prompts and verbal direction and an individualized point/token reward system implemented throughout the day to decrease off-task behavior and improved academics with 2 BCBAs and 6 teachers in Master's level ABA program (T.106-107;P-Exh. T at 8).

I credit the testimony and evidence and find that that the Student had her own FBA and BIP to ensure that she did not elope and that data was collected, monitored and analyzed daily for the 2022-2023 school year and her targeted behavior decreased 67 % to 89 % and that the Student was in a class with [Redacted] children aged [Redacted] and that her Head teacher held a Master's degree in early childhood education and special education and was a NYS certified special education teacher and that the 2 assistant teachers were NYS certified and had worked with ASD students for 3 years (T.108;P-Exh. T at 12). I credit the testimony and find that [REDACTED] focused on teaching the Student to become an independent learner in order to transition to a less restrictive environment and that the Student received fluency training to relearn a skills after regression from a school break and that the Student was given multiple verbal prompts to master routines and that the Student received ABA embedded in every session and every interaction with peers and that the Student received weekly 4 hours of related services including 5 sessions of individual SLT for 30 minutes per session and 3 sessions of OT for 30 minutes per session (T.109-121). I further find that credible testimony established that the Student received ABA in her individual academic classes for ELA, reading, writing and math as well as physical education to attend and to learn (T.122) and that the Student benefited from ABA for home-based life skills and self-care skills (T.123).

I credit the Parent's testimony and find that the Student had attended [REDACTED] since July 5, 2022 and that before attending [REDACTED] that the Student had received home-based ABA for 40 hours per week as well as 5 hours of SLT, OT each per week (T.134). The credible testimony established that [Redacted] had recommended an ABA school for ASD kids with BCBA supervision as well as home-based ABA with BCBA supervision (T.135). I credit the testimony and find that the Parent provided [Redacted] recommendation to the IEP on May 12, 2022 and was told that the meeting would be tabled and that a new IEP meeting would be rescheduled (P-Exh. W at 2), and that he disagreed with the May 13, 2022 IEP team's recommendation of a 6:1:1 special class in a District 75 school and requested a new IEP meeting, but no new meeting was scheduled (P-Exh. W at 3). I find that the Parent disagreed with the District 6:1+1 program because his daughter required ABA 1:1 instruction and that the Student was successful with ABA. I credit the testimony and evidence and find the Parent's attorney wrote a Ten-day notice ("TDN") letter on June 17, 2022 (P-Exh. B) to alert the CSE that FAPE was not provided for the 2022-2023 school year and the DOE did not respond to the TDN. I credit the testimony and find that the Parent had observed the proposed placement at [Redacted] but rejected the placement because his daughter required ABA and BCBA support (T.139-140). I credit the evidence and find that the Parents had signed the enrollment contract (P-Exh. G at 15) on June 17, 2022. I find that the June 2, 2023, Tuition Affidavit that indicated that the tuition for the 2022-2023 school year was $[Redacted] and the balance due was $[Redacted] (P-Exh. M at 1) and I find that the Parents could not [Redacted] (P-Exh. X; T.147).

I credit the testimony and find that the Parent observed many positive changes in his daughter after she attended [REDACTED] in that her negative behavior decreased in frequency and severity and that his daughter was able to sit and attend for longer periods of time and was able to respond to questions from the teachers and that he observed progress in the home program of 10 hours per week of 1:1 ABA at the rate of $[Redacted] per hour and 2 hours of BCBA at the rate of $[Redacted] per hour (T.134-136; P-Exh. W at 3-4).

I credit the testimony and evidence and find that the BCBA was a NYS licensed behavior analyst with a NYS teaching certificate in special education and a Master's degree in behavior disorders and that she was the ABA supervisor for [Redacted] ("[Redacted] ") since January 2023, and that she supervised the [Redacted] behavior technician who provided ABA to the Student 10 hours per week (T.78; P-Exh. V at 1). I credit the testimony and evidence and find that for the 2022-2023 school year she provided supervision for the home ABA provider, a holder of a Master's degree in ABA and education (T.79) and that the Student received 10 hours of athome ABA from [Redacted] as the Student exhibited various [Redacted] behaviors in school and at home as well as communication problems so the Student required ABA to increase her attention, to act appropriately and to increase the length of her utterances (T.80;P.Exh. V at 2). I credit the evidence and find that the Student's ABA provider implemented behavior change procedures to reduce [Redacted] behaviors and focused on verbal behavior, academic speaking, social, activities of daily living and behavior skills per the ABA Progress Report (PExh. U at 1). I find that she supervised the Student's ABA provider to ensure that the Student made slow and steady progress (P-Exhs. U at 3;V at 2). I find that the BCBA communicated weekly with the Student's teacher at [REDACTED] to enable the Student to generalize the skills from school to home and to carry over academic skills, social skills and daily living skills and that the Student progressed for the 2022-2023 school year. I find that the Student required intense ABA at home and at school to and progressed with her use of phonics, and [Redacted] and to make eye contact and increased her ability to sit still in order to be available for learning and for leisure skills and that she worked with the Parent and the ABA therapist to ensure that the Student did not regress and that the [Redacted] rate for 1:1 ABA was $[Redacted] per hour and the [Redacted] rate for BCBA supervision was $[Redacted] per hour (T.84; P-Exh. V at 2).

CONCLUSIONS OF LAW

Under the Individuals with Disabilities Education Improvement Act ("IDEIA") (20 U.S.C. §§ 1400-1482) as well as New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. The Individuals with Disabilities Education Act ("IDEA") was amended in 2004 in the IDEIA. 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). "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances…." and "a student offered an educational program providing 'merely more than de minimis progress' from year to year can hardly be said to have been offered an education at all" (Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 [March 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]).

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

G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). 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 DOE representative did not defend the First Prong of the Burlington/Carter test for reimbursement and did not contest any of the allegations contained in the due process complaint that asserted that no FAPE was offered for the 2022-2023 school. I find that the DOE’s acknowledged failure to offer the Student an appropriate program and placement in a timely manner tips the equitable scales decidedly in the Parents’ favor. In fact, it "would be inequitable to reward the [District] for its admitted failure to comply with the IDEA" (see N.R. v. Dept. of Educ. of the City of New York, 2009 WL 874061 (S.D.N.Y. 2009) (citations omitted). I find the evidence presented sufficient to establish how the Student's unique needs were met at the 12-month program at [REDACTED] and the home program of the ABA provided for 10 hours per week and 2 hours of BCBA supervision per week for the ESY.

Therefore, I find the Parents established the First Prong for the failure to provide a FAPE for the 2022-2023 school year in that the CSE failed to consider the updated evaluation by Dr. [Redacted] and the IEP was conducted without the Parents and without the required evaluations including but not limited to FBA, a social history update, SLT and OT evaluations and without full-time ABA instruction for the 2022-2023 school year and failed to provide the Student with a procedural and substantive FAPE for the 2022-2023 school year.

The Parents must establish the Second Prong of the Burlington/Carter test for reimbursement in that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. The fact that the facility selected by the parent to provide special educational services to the child is not State-approved as a school for children with disabilities is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]). The Parents must prove that the Student will receive an appropriate educational benefit from [REDACTED] program, and the ABA home program. The Second Circuit framed the legal standard for the second prong in Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006) and Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007). Under Frank G. the Court held that "to qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction" (Id.). Parents' placement may not be held to certain requirements that Districts are held such as teacher licenses or least restrictive environment under Frank G. and Gagliardo and the unilateral placement is a not perfect placement. M.S. ex rel S.S. v Bd. Of Ed., 231 F.3d 96 (2d Cir. 2000).

I conclude that the Parents met their burden to establish that [REDACTED] and 10 hours of ABA per week and 2 hours per week of BCBA supervision for the 2022-2023 school provided instruction designed to meet the Student's unique needs and was reasonably calculated to enable the Student to make meaningful educational gains.

ANALYSIS

I find that the Student's special education needs were met at [REDACTED]. I credit the testimony of the Head and find [REDACTED] was a school for children with ASD that utilized the principles of 1:1 ABA as its primary teaching modality by highly trained and experienced ABA therapists supervised by a BCBA as recommended by [Redacted] (P-Exh. H at 5) and that it was a small therapeutic setting of [Redacted] student and that each class had a certified special education head teacher, 2 assistant teachers, licensed SLP, OT and PT providers and a social worker and registered nurse for 8 or 6 students so the staff to student ratio is 2:1 or 1:1 (T.101).

I find that each student's behavior needs were assessed by the BCBAs and each student had a FBA and BIC and in addition to the school-wide positive rewards behavior token system and I find that the Student's targeted behaviors decreased 89 % to date (T.106-108;P-Exh. T at 8). I find that the Quarterly Progress Report indicated that the Student increased her an [Redacted] and reduced an [Redacted] behaviors and responded to verbal greetings (P-Exh. O at 1-3). I credit the evidence and the testimony of the Head find that the Student received fluency training and was provided with verbal prompts to relearn skills and that the Student progressed in her ability to succeed academically and behaviorally with the multisensory instruction of the 5 senses and with her sensory diet (T.104;P-Exh. T at 6-7) and that [REDACTED] provided ABA embedded in each period and that the Student received OT and SLT and progressed in her related services goals (P-Exh. R-S). I find that the sensory diet was incorporated into the lessons to enable the Student to attend and learn.

The Parents' attorney asserted that the Student " [Redacted] " (IHO Exh. IX at 6). I agree and find the very small and structured 8:1+3 class that utilized ABA either on 1:1 basis or in small groups throughout the school day met the Student's attention and academic needs(T.102). I credit the testimony find that the Student's behavior improved by the school wide behavior intervention plan and her personal BIP using positive token reinforcement and verbal prompting and that [REDACTED] met the Student's unique academic and emotional needs (T.107;123). The Parents' attorney asserted that PCAT was " [Redacted] " (IHO-Exh. IX at 5). I agree as I credit the Head's testimony and find that PCAT was provided monthly to give the Parents specific behavior strategies that could be modified at home and in the community (T.127).

I credit the testimony of the Parent and find that [REDACTED] was a small school with small classes that provided ABA instruction and BCBA support and that his daughter was happy to go to school (T.135). I find that the ABA instruction embedded in each class as well as individual OT 3 times week and SLT 5 times weekly at [REDACTED] met the Student's academic, social/emotional and related service needs.

Accordingly, I conclude that the Parents have met their burden to establish that [REDACTED] was reasonably calculated to enable the Student to make meaningful educational gains in the least restrictive environment for the 2022-2023 school year.

It is well established that that a district is not required to provide all services necessary to maximize a student’s potential. Those considerations similarly constrain unilaterally selected parental programs. Gagliardo, 489 F.3d at 112; see Frank G. at 364-365. In this matter the Parent asserted that the Student required additional services at home to supplement the [REDACTED] program. I find that ASD students often have a program which includes "ABA therapy, whether at home or in school," to ensure that the student continues to progress in their education. P.K. ex rel. S.K. v. N.Y. City Dep't of Educ., 819 F. Supp. 2d 90, 114–15 (E.D.N.Y. 2011), aff'd, 526 F. App'x 135 (2d Cir . 2013); see C.B. v. N.Y. City Dep't of Educ., 2005 WL 1388964, at *23 (E.D.N.Y. June 10, 2005) (finding that the record demonstrated that home based therapy was an important component of the student's education).

I find that the home-based ABA program focused on programs and challenges unique to home life and did not simply duplicate what she already learned in school. I credit the BCBA's testimony and evidence and find that the BCBA monitored progress and made any necessary changes to the plan. I find that the evidence and testimony of the BCBA established that the home-based ABA sessions and her communication with the [REDACTED]'s special education teacher were necessary for the Student to enhance generalization and ensure consistency and mastery of skills (T.81). I find the testimony and evidence established that the 10 hours of athome ABA and 2 hours of BCBA supervision was necessary and appropriate. I credit the testimony of the BCBA and find that the at-home ABA therapists worked on academics and living skills and I find that the Student increased her independence. I find that the supervisor of the ABA program coordinated with the [REDACTED] staff 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. I credit the Parent's testimony and find that the Student improved her communication skills and [Redacted] (T.143). I find that the Student continued to require the ABA reinforcement to learn. The Parents' attorney asserted that the [Redacted] rate was "well below the market rate in the community. See Application of a Student with a Disability, Appeal No. 20-125 upholding the IHO’s decision directing the DOE to fund the costs of 10 hours of home-based ABA services per week at the rate of $250, along with the costs of 1 hour of BCBA supervision and 1 hour of parent counseling and training. See also Application of a Student with a Disability, Appeal No. 20-115 upholding the IHO decision directing the DOE to reimburse the parent for the cost of 1:1 SETSS provider at the rate of $175" (IHO-Exh. IX at 9). I agree.

Accordingly, I find that the Parent established the Second Prong.

The Third Prong of the test for tuition reimbursement is whether the equities favor the Parents' position. I find that the Parents established the Third Prong. Tuition reimbursement to be reduced or denied if the Parents (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to his “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the Parents informed the CSE that they intended to enroll their daughter at [REDACTED] for the 2022-2023 school year when no appropriate program/placement was offered (P-Exhs.A-B) after the most recent CSE meeting and complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the equitable considerations do support the Parents' claim for reimbursement/funding. In this case, the Parents fully cooperated with the district to the best of their ability. I credit the Parent's testimony that he provided the CSE with all private evaluations and made his daughter available for all evaluations and visited the offered proposed school. I find the Parent established that he was unable to pay to the tuition by his uncontested testimony (T.147). I find that parents who have satisfied each of the Burlington factors. have a right to retroactive direct tuition payment relief (A ex. rel D.A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-429 (S.D.N.Y. 2011). I credit the Parent's testimony and I find that the Parent lacked the financial resources to pay tuition for [REDACTED] for the 2022-2023 school year and it would be a hardship to pay the full tuition and wait for reimbursement. I find the Parents met the Connors criteria for prospective funding for the cost of the tuition for the 2022-2023 school year at [REDACTED] and I find that the Parent is entitled to direct retroactive payment. "Once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately" (Connor v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y)).

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered: that the DOE provide direct funding for the tuition on a 12-month basis for [REDACTED] for the 2022-2023 school year and fund 10 weekly hours of home-based ABA during the 2022-2023 school year at the rate of $ [Redacted] per hour and 2 hours weekly of home-based BCBA supervision during the 2022-2023 school year at the rate of $ [Redacted] per hour for the 12-month school year upon receipt of proof of services rendered.

SO ORDERED.

DATED: July 5, 2023

/s/ Linda Agoston

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

APPENDIX A – REDACTION IDENTIFICATION PAGE

Student’s Name: [Redacted]

Date of Birth: [Redacted]

School District: [Redacted]

Parents' Name: [Redacted]

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

TO THE NYSED.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due Process Complaint 7/1/22 6 pages

B. Ten-Day Notice 6/17/22 4 pages

C. FOFD case 184808 5/24/21 24 pages

D. [Redacted] Program undated 45 pages

E. Affidavit of [Redacted] undated 2 pages

F. Affidavit of [Redacted] undated 2 pages

G. [Redacted] Enrollment Contract 6/17/22 15 pages

H. Reevaluation Report by [Redacted] (omitted by mistake but referenced in transcript ) 05/11/22 10 pages

I. Amended Due Process Complaint 09/23/22 5 pages

J. Interim Order on Pendency 09/26/22 4 pages

K. [Redacted] Class Schedule 2022-2023 1 page

L. [Redacted] Attendance Report 05/31/23 1 page

M. [Redacted] Tuition Affidavit 06/02/23 1 page

N. [Redacted] Educational Annual Report 05/08/23 9 pages

O. [Redacted] Educational Progress Report 04/07/23 3 pages

P. [Redacted] Occupational Therapy Annual Report 04/07/23 3 pages

Q. [Redacted] Occupational Therapy Progress Report 04/02/23 1 page

R. [Redacted] Speech Therapy Annual Report 04/07/23 3 pages

S. [Redacted] Speech Therapy Progress Report 04/07/23 2 pages

T. Affidavit of[Redacted], PH.D., BCBA-D, LBA, SBL 06/05/23 24 pages

U. [Redacted] ABA Progress Report 04/03/23 4 pages

V. Affidavit of[Redacted], M.A., SBL, BCBA 06/05/23 3 pages

W. Affidavit of [Redacted] 06/05/23 4 pages

X. 1040 Parent’s Income Tax Return 2022 03/06/23 2 pages

IHO’S EXHIBITS

I. Decision on Extension 08/16/22 1 page

II. Decision on Extension 12/06/22 1 page

III. Decision on Extension 01/05/23 1 page

IV. Decision on Extension 02/08/23 1 page

V. Decision on Extension 03/08/23 1 page

VI. Decision on Extension 04/03/23 1 page

VII. Decision on Extension 05/09/23 1 page

VIII. Decision on Extension 06/08/23 1 page

XI. Parents' Post-Hearing Brief 06/28/23 10 pages

Footnotes

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

[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.