New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 227665

NYS Identifier Number: 574855

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Dates(s) of Hearing: 09/14/22, 10/13/22, 11/30/22

01/11/23, 02/28/23, 05/25/23

& 06/07/2023

Actual Record Close Date: August 01, 2023

Hearing Officer: Sharifa Milena Nasser

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Attorney PARENT 09/14/23 (V)

[REDACTED] Attorney PARENT 10/13/23 (V)

[REDACTED] Attorney PARENT 01/11/23 (V)

[REDACTED] DOE Representative DOE 01/11/23 (V)

[REDACTED] Attorney PARENT 02/28/23 (V)

[REDACTED] DOE Representative DOE 02/28/23 (V)

[REDACTED] Attorney PARENT 05/25/23 (V)

[REDACTED] Parent PARENT 05/25/23 (V)

[REDACTED] DOE Representative DOE 05/25/23 (V)

[REDACTED] Attorney PARENT 06/07/23 (V)

[REDACTED] DOE Representative DOE 06/07/23(V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Impartial Hearing Request 07/01/22 PARENT B Assistive Technology 09/18/22 PARENT 13 Evaluation 12 pages

C. Occupational Therapy 09/30/22 PARENT 13 Evaluation D Physical Therapy 08/03/22 PARENT 12 Evaluation

E. Speech-Language 09/18/22 PARENT Evaluation 16 pages

F [REDACTED] 05/31/22 PARENT

08

Contract for 2022-2023

G [REDACTED] N/A PARENT

01

2022/2023 Calendar

H [REDACTED] N/A PARENT

07

Program Description

2022-2023

I [REDACTED] 07/31/22 PARENT

01

July Attendance Record

J [REDACTED] 08/31/22 PARENT

^[01]

August Attendance Record

K [REDACTED] 09/31/22 PARENT

L [REDACTED] 10/07/22 PARENT

Tuition Affidavit

M [REDACTED] 08/05/22 PARENT

Progress Report

N Ten-Day Notice 06/15/22 PARENT 11

O Budget Letter Request 05/23/23 PARENT 03

P [REDACTED] 11/02/22 PARENT 15

Comprehensive 12/08/22

Neuropsychological 12/15/22

Evaluation

Q Affidavit of [REDACTED] 06/01/23 PARENT 07

R Affidavit of [REDACTED] 05/31/23 PARENT 04

S [REDACTED] 11/02/22 PARENT 07

Instructional and therapeutic

Focus 2022/2023 school year

T [REDACTED] N/A PARENT 21

Progress Report 2022/2023

School Year

U [REDACTED] 08/05/22 PARENT 20

Quarterly Report of Progress 2022/2023

V Breakthrough 05/2023 PARENT 12

Foundation's Assessment

Report

W Affidavit of [REDACTED] 05/25/23 PARENT 11

Psyd

X Affidavit of [REDACTED] 06/01/23 PARENT 04

1 Individualized Education 06/10/22 DOE 38

Plan

On July 11, 2022, was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), concerning a dispute involving the special education program of an [REDACTED] year old student attending a private school and the New York City Department of Education (“DOE”) District 03. The Parents alleged a denial of FAPE for the 2022-2023 school year The Parent filed a Due Process Complaint (“DPC”) on or about July 01, 2023. The parent alleges that the DOE generally failed to assess the child in all areas of his suspected disability. The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for their educational planning and that the student’s IEP was procedurally and substantively flawed and denied the student a FAPE for the 2022-2023 school year.

At the impartial hearing, the Parent seeks the following relief:

• A finding that the student was denied a FAPE for the 2022-2023 school year.

• A finding that the private school was an appropriate placement for the student for the 2022-2023 school year and that the student is in need of a 12-month school year.

• Tuition funding and or reimbursement for the 2022-2023 school year.

• Related services in the form of speech and language therapy on an individual basis, 4x30.

• Individual occupational therapy, 3x30 weekly.

• Special education round-trip transportation,

• 15 hours of one-to-one applied behavior analysis at home with two hours of BCBA supervision weekly

• One and one and a half hours of Parent training and counseling.

DOES’ DEFAULT

The DOE failed to call any witnesses to testify on its behalf and did not submit any documents in evidence. The DOE also failed to cross examine any of the Parent’s witnesses. (T-22)

The DOE did not submit any evidence to show that they had replied to the Parents 10-day notice letter on June 15, 2022 informing the District that they wished to enroll the student for the 2022-2023 school year. (Parent’s-“N”)

The Parent’s neuropsychological report submitted was completely uncontroverted by the District.

The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005} The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2022-2023 school year and that the Parent may be entitled to the proven relief she has requested.

THE PARENT’S CASE

The Parent had (4) witnesses testify on their behalf, who testified on direct and some were also cross examined by the District. The Parent also submitted (24) 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.

DOE DEFAULT

Whereas under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016); and As noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE for the 2022-2023 school year and that if the Parent meets her burden under Schaffer v. Weast, the Parent is entitled to the proven relief she seeks. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033)

It is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "'ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'"]) When, as here, the DOE does not present any case at the hearing, the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief.

The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005]. It is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE. The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2022-2023 school years and that the Parent may be entitled to the relief she has requested.

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: The Parent’s witness, [REDACTED] whom conducted the students neuropsychological report testified on direct via affidavit as follows.

1. At this time, [REDACTED] is demonstrating behaviors consistent with an autism spectrum disorder. He presents with familiar executive function, organizational and attention weaknesses that affect his focus and memory, in addition to challenges with processing language and understanding the nuances of social interactions. Social pragmatic skills and eye contact were also notable areas of weaknesses. He was unable to recognize and match emotional faces. He also could not interpret the emotional reactions of others.

2. As a result of the evaluation conducted, [REDACTED] is diagnosed with Autism Spectrum Disorder- Level 2, with-cognitive impairments, language delays and social-pragmatic weaknesses and Intellectual. Disability­ Moderate.

3. [REDACTED] demonstrates considerable cognitive and language delays with significant weaknesses in sustained attention and language processing. These deficits affect his ability to complete tasks and acquire information. As such, it is strongly recommended that [REDACTED] remain in a small, structured, private special education program that incorporates multi-sensory learning supports and interventions integrated throughout the entire school day.

4. In addition, in order to increase his independent skills, [REDACTED] requires individual (one-to-one) intervention that utilizes a systematic behavioral methodology (i.e., Applied Behavior Analysis) that will identify the functions of his frustrated behavior and develop intensive, supportive behavior-intervention programs that will address and reduce these actions. It is imperative that [REDACTED] receive at minimum 15 hours per week of ABA within the home environment by a provider trained and supervised by a Board­ Certified Behavior

Analyst/Licensed Behavior Analyst (BCBA/LBA). Given the limitations of his frustration tolerance, these services should be provided for the full year (i.e., 12-month services).

5. It is also imperative that [REDACTED] parents receive training in the use of these alternative communication methods on an ongoing basis. (Parent’s Exhibit –“W”)

6. The remainder of my recommended interventions is listed on pages 9-11 of my evaluative report. (Parent’s Exhibit-“P”)

The Parent’s witness, [REDACTED], who conducted the students Assessment of Functional Living skills and she testified via affidavit on direct.

“I conducted The Assessment of Functional Living Skills (AFLS). The Assessment of Functional Living Skills (AFLS) is an assessment, skills tracking system, and curriculum guide, for the development of essential skills for achieving independence. By understanding abilities within these domains, it will provide an opportunity to develop a comprehensive and wellrounded ABA program that would include important functional skills that will be needed later on in life. An ABA program with this focus will be important to foster independence for the client. The AFLS is designed to assess functional, practical, and essential skills of everyday life. This assessment battery is designed to develop goals for maximizing [REDACTED] independence and opportunities in life. The major components assessed for [REDACTED] include; selfmanagement, dressing, toileting, grooming, bathing, health, safety and first aid.

1. Several deficits were noted, specifically:

• Self-Management: [REDACTED] engages in some disruptive behaviors. He has some difficulty with loud noises and sudden or unexpected events. [REDACTED] has difficulty understanding some norms and rules that vary by settings, complying with unfamiliar authority figures, and reporting wrongdoings to others.

• Toileting: [REDACTED] is toilet trained during the day and night. He does not use toilet paper to wipe himself after a bowel movement nor will he check for toilet paper prior to using the restroom.

• Grooming: [REDACTED] needs assistance with brushing his teeth, washing his face, regulating his own water temperature in the shower, clipping his finger and toenails, and blowing his nose. He also needs assistance to apply lotion, ChapStick, and deodorant.

• Bathing: [REDACTED] needs assistance with all components of the showering routine. He requires help to wash his body, wash his hair, and brush his hair.

• Health, Safety, and First Aid: [REDACTED] is not aware of poisonous or household dangers, stranger danger, or how to treat an injury. He requires assistance appropriately responding to emergencies or injuries.

2. I also conducted the ABLLS-R. The ABLLS-R system 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 autism or other developmental disabilities. This practical and parent-friendly tool can be used to facilitate the identification of skills needed by the child to communicate effectively and learn from everyday experiences.

3. [REDACTED] presents with social, communication, daily living, and other behavioral difficulties which inhibit his ability to function at an age-appropriate level in all settings. He needs to be taught appropriate skills so that he can interact socially with others, communicate appropriately, and decrease his maladaptive behaviors of non-compliance.

4. It has been proven that ABA methodology is effective in remediation of children with behaviors and deficits to this effect. Data will be taken to measure relevant skills and it will help determine what the client needs to learn in order to achieve mastery. This will enable each step to be taught until mastery criterion has been met.

5. Establishing an intensive home/community program using the principles of ABA will aid in addressing the problem behaviors and teach age-appropriate skills to enable [REDACTED] to function in his environment appropriately. Among the specific deficits that [REDACTED] exhibits, ABA services are required for the following domains:

• Language/communication: He has difficulty with expressive language in the areas of two component (adjective—noun) labels, features, class, and prepositions.

• Writing: [REDACTED] writing is not always legible or appropriately spaced making it difficult for others to read.

• Maladaptive behavior: [REDACTED] engages in non-compliance when presented with non-preferred activities or tasks.

• Self-help/daily living: [REDACTED] requires adult assistance to complete all activities of daily living and self-help routines. He does not report internal events and does not seek out help for pain or injuries.

6. As a result of my clinical observations, interviews and assessments conducted I was able to identify behaviors targeted for increase in programming that would be created specifically for [REDACTED].

7. A Behavior intervention Plan would also be created to address target behaviors and implementation of proactive strategies such as Functional Communication Training, Priming and Timers.

8. The programming that I have described in my assessment and subsequently in the recommendations cannot occur during the course of the school day at [REDACTED]. [REDACTED] requires a broken down task analysis to learn these steps in his natural environment. These skills should be practiced in his home to ensure use and implementation across settings and people. Additionally, his aunt will be trained on how to implement these skills in the home with [REDACTED] in a manner that is appropriate to his learning style. Furthermore, instructional control will be transferred from the therapist to his Aunt.

9. Additional instruction after the school day is necessary as [REDACTED] has not yet been able to perform the aforementioned goals in his home environment per evaluator observations and/or caregiver report. Having services at home would allow for additional practice of skill acquisition and tasks would be broken down in a way that are conducive to [REDACTED] learning style. Additionally, these skills will be practiced in the setting in which they are more likely to naturally occur (i.e. in his home). BCBA will provide training to his aunt on a variety of strategies to support [REDACTED] with skills outside of sessions (i.e. visual schedules, reinforcement, task analysis, etc.)

10. As a result of the assessment conducted, in my professional opinion [REDACTED] requires the following:

• 15 hours per week of direct ABA services • 2 hours per week of supervision provided by a BCBA/LBA • 1.5 hours per week of parent training by a BCBA/LBA

The Parent’s witness, [REDACTED] who was the lead teacher at the student’s private school. The witness testified via affidavit on direct.

1. I communicate with [REDACTED] assistant teachers and therapists in re the implementation of [REDACTED] program and his progress.

2. We have Enrichment meetings twice a month to discuss [REDACTED] progress and concerns. Daily communication via emails, texts, or conversations in the hallway. It is in1portant that we are all in constant communication to make same that [REDACTED] is doing his best work across the entire day regardless of who the provider is because sometimes [REDACTED] will try to act silly and get out of doing the work.

3. I communicate with [REDACTED] aunt daily through parent communication forms, which include information about [REDACTED] day. Parent teacher conferences are held twice a year to discuss [REDACTED] progress or any concerns we have. [REDACTED] aunt prefers to communicate via text or call, so she has my cell phone number if she needs to discuss anything with me or vice versa.

4. [REDACTED] provides parent counseling and training once a month.

5. For the 2022-2023 school year [REDACTED] attends [REDACTED] on a consistent and regular basis.

6. Progress reports are issued twice per year by [REDACTED]; winter and spring reports.

7. Based on my professional opinion, experience, and work with [REDACTED], I believe that [REDACTED] is an appropriate placement for [REDACTED]. [REDACTED] confidence has increased in the warm and nurturing environment that we provide. In addition to supporting his emotional needs, we have also supported [REDACTED] learning.

8. [REDACTED] provides [REDACTED] the individualized instruction he requires, including a small student to teacher ratio, evidence-based methodologies, and supports including speech therapy, occupational therapy, physical therapy and counseling that are tailored to meet his needs. At [REDACTED], [REDACTED] is well matched academically with students in his class and benefits from our ability to individualize the curriculum and differentiate activities for him to meet his academic needs.

The District failed to cross examine any of the Parent’s witnesses. (T-22) The Parents evidence shows that the student has made academic progress while enrolled in the private school for the 2022-2023 school year. The students’ educational records and progress reports are submitted into evidence. (Parent’s -M,T&U)

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)

The Parents evidence shows that the student has made academic progress while enrolled in the private school for the 2022-2023 school years. The students’ educational records, progress reports and behavioral records are submitted into evidence. (Parent’s- M,T,U)

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 place the student at the private school was” reasonable” as an appropriate placement for the student’s 2022-2023 school year.

There is nothing in the record that supports a finding that the Parent has not cooperated with the DOE.

NOW therefore, it is hereby

ORDERED that the DOE denied the student a FAPE for the student’s 2022-2023 school year and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall pay/fund directly for the cost of the student’s tuition and related services, including roundtrip transportation at the private school for the time the student attended the private school during the 2022-2023 school year for a 12 month school year; and it is further

ORDERED that upon the DOE’s default and its tacit concession of denial of FAPE, for the school years of 2022-2023, the student is awarded related services in the form of Individual occupational therapy, 3x30 weekly at fair market rate.

ORDERED that upon the DOE’s default and its tacit concession of denial of FAPE, for the school years of 2022-2023, the student is awarded related services in the form of Individual physical therapy, 2x30 weekly at fair market rate.

ORDERED that upon the DOE’s default and its tacit concession of denial of FAPE, for the school years of 2022-2023, the student is awarded related services in the form of 15 hours of one-to-one applied behavior analysis at home with two hours of BCBA supervision weekly at fair market rate.

ORDERED that upon the DOE’s default and its tacit concession of denial of FAPE, for the school years of 2022-2023, the student is awarded related services in the form of one and one and a half hours of Parent training and counseling at fair market rate.

ORDERED that within 30 days the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related information and produce a new IEP for the student’s 2023-2024 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: September 14, 2023

Queens, New York Sharifa Milena Nasser - I.H.O.

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 L[2nd PRIVATE SCHOOL INITIALS] 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

[01] September Attendance Record • Individual physical therapy, 2x30 weekly.