New York City Department of Education, Impartial Hearing Decision

Case Number: 575923 – NYC: 228635

FINDINGS OF FACT AND DECISION

Student's Name: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Record Closed Date: June 5, 2023

Hearing Officer: Dora M. Lassinger

On July 6, 2022, the parents filed a due process request challenging an IEP developed on February 15, 2022; alleging a denial of a Free Appropriate Public Education (“FAPE”) for the 2022/2023 school year, and requesting funding for tuition and related services, for their unilateral placement of the student at [REDACTED] (hereinafter “the private school”), including an order directing funding during the pendency of due process, and special transportation including door-to-door and limited travel time (60 minutes) and a one-to-one paraprofessional. Home-based services were also requested. (Par. Ex. A). ^[1]

I was designated to hear this matter on December 16, 2022. A pre-hearing telephone conference was held on December 18, 2022, and the parties reported that the pendency issue had been resolved. (Tr. p. 20).^[2] A hearing on the merits commenced on February 13, 2022 and concluded on May 3, 2023. The compliance date was extended to June 29, 2023, due to the extensive testimony and issues. (IHO Ex. III).

The Department of Education (“DOE”) did not present any evidence to defend its recommendation for the school year in question. It presented documentary evidence consisting of documents subpoenaed from the private school.

Parents’ Position

The parents argued that the DOE failed to meet its burden of proving that it provided the student with a FAPE, that the parental placement is appropriate and that the equities support their request for direct tuition funding, transportation and reimbursement for out-of-pocket transportation expenses. The parents argue that the rates charged for the student’s education have not been effectively challenged, as no evidence has been presented as to what the rate should be. (Tr. pp. 30-31; IHO Ex. V).

DOE Position

The DOE argues that the parents have not demonstrated the appropriateness of the placement, as there was little evidence about the student’s academic instruction. It further argues that the parents have not incurred a contractual obligation for the educational services provided to the student, and that the contract the parents signed is not enforceable, because it does not set forth any rates. Finally, the DOE argues that the rates charged are exorbitant and should be an equitable bar to the parents’ recovery; and that relief should be denied in its entirety. (IHO Ex. IV).

Evidence at Hearing

The student is a [REDACTED]-year-old boy with a classification of Autism. (Par. Ex. E). He communicates with a Speech Generating Device (“SGD”). He has asthma and many food allergies. (Par. Ex. E). The student has attended the private school since he was five years old. He is very delayed in all areas of his development. (Tr. pp. 60-61).

A CSE review was held on February 15, 2022. The student was classified with Autism and recommended for placement in a Special Class (6:1:1) with a full-time health paraprofessional, Assistive Technology, and related services of Speech/Language Therapy (“SLT”) , 5 x 30 individually, Occupational Therapy (“OT”) 5 x 30, individually and parent Counseling and Training (“PCAT”), four hours per year, in a group. (Par. Ex. E).

The parent attended the February 15, 2022 IEP meeting and discussed the student’s need for one-to-one Applied Behavior Analysis (“ABA”) methodology. (Tr. p. 312). The parent disagreed with the recommended program because it did not include ABA, one-to-one programming, or a behavioral plan. The parent received a school location letter in June, and tried to contact the recommended site, but did not receive a response. (Tr. pp. 312-313, 348).

On June 21, 2022, the parents, through their attorney, wrote to the CSE expressing their disagreement with the recommended program, and stating that they would enroll the student at the private school, and seek public funding for the cost of his attendance. They also requested specialized transportation. (Par. Ex. B).

The parent feels that the student is progressing at the private school. At the start of the current school year, her greatest concern was that he was touching himself inappropriately. She testified that the school stated it would work with him on this issue; and that he has learned that touching himself must occur only in private . (Tr. pp. 346-347). She also noted progress in his ability to spell his name and use his communication device. (Tr. p. 318).

On September 9, 2022, the parent signed a contract with [REDACTED] , (hereinafter “the billing entity”) agreeing to pay for services rendered to the student, during the 2022-2023 school year, in accordance with his services plan (attached as Appendix A). Although the contract refers to a rate sheet, no such rate sheet was attached to the contract. (Par. Ex. F). The student’s services plan provided that he would be provided the following services, on a daily basis , for the duration of the 12- month 2022-2023 school year:

Special Education Services- Applied Behavioral Analysis (“ABA”), up to 25 hours per week ^[3]; ABA Supervision up to 10 hours per week; Related Service Supervision, up to 2.25 hours per week; OT, 3.75 hours per week; SLT, 3.75 hours per week. ^[4] The contract was countersigned on September 12, 2022). (Par. Ex. F).

The parent did not know what the cost of the student’s attendance at the private school would be, when she signed the contract. (Tr. p. 328). For the month of July 2022, the private school billed $23,652.50 for services rendered to the student.^[5] For the month of August 2022, the school billed $20,005 (including billings for 64.25 hours of ABA, with no ABA supervision). For the month of September 2022, the school billed $25,497.50. For the month of October 2022, the school billed $22,447.50. For the month of November 2022, the school billed $36,775. For the month of December 2022, the private school billed $26,410.80. In total, the billing entity billed $154,788.30 for 85 days in attendance, during the period between July 2022 and December 2022. During the same time period, a total of 51.25 hours of ABA supervision was billed., with no ABA supervision provided during the month of August 2022. (Par. Ex. G). None of these invoices were sent to the parent, as there is a case pending. (Tr. pp. 279, 329) . Nor has the parent made any payment toward these invoices. (Par. Ex. G; Tr. p. 320) The parent presented evidence that she is unable to pay the cost of the program and seek reimbursement. (Tr. p. 320; Par. Ex. U). Invoices have been sent to the DOE, but have not been paid. (Tr. p. 280).

The student’s mother testified that while the DOE has provided the student with bus transportation, and special accommodations; there have been instances when she has had to provide transportation, when the bus paraprofessional was not provided. (Tr. pp. 321-322). On one or two occasions, she had to take an Uber to the school, when the bus did not show up. There were also one or two occasions when she had to drive him to school (two round trips). (Tr. pp. 345-346). No evidence was submitted regarding the cost of the transportation she provided.

The private school describes itself as a not-for-profit school dedicated to the education of children with autism spectrum disorders, which uses an integrated model of best available teaching techniques including ABA, occupational therapy, sensory integration training, music therapy and play therapy; with therapies provided on an intensive one-to-one basis. (Par. Ex. H).

An employee of the billing entity testified that the private school has a school building, hires and trains staff; and the billing entity funds the program and bills for the services, using a “fee for services model”. (Tr. pp. 246-247). He testified that rates for services are “market rates”, and in consideration of the cost of the program. (Tr. p. 249). He testified that he was not familiar with the credentials of the providers whose services are billed. (Tr. p. 251). He testified that the student’s services can vary month to month, due to the absence of the student or a provider. (Tr p. 254). This is the second year that the private school is billing on a fee for services model. (Tr. pp. 259-260). During the 2020-2021 school year, the school charged tuition in the approximate amount of $128,000. (Tr. p. 289). No evidence was presented that the type of education provided by the school changed, when it changed its billing model.

The student received “ABA” from teachers who were paid an annual salary of $45,000. as full-time employees. (DOE Ex. 4; Par. Ex. I; Tr. pp. 123, 281). ABA supervision can be provided by teachers who are working toward certification as a Board-Certified Behavior Analyst (“BCBA”). (Tr. p. 286). Later in the hearing, the administrator overseeing the operations and finances of the billing entity testified that the rates charged are based upon what other agencies are charging; and what the DOE has been ordered to pay for similar services; as well as consideration of administrative components of the program. (Tr. pp. 379, 382). He cited as the source of his knowledge decisions from the State Review Office regarding rates charged by [REDACTED]. (Tr. pp. 393-394).

He testified that ABA providers, whose services are billed at the rate of $260.00 per hour, must be trained in and have experience in ABA. He believed they need to have a license or certification; but he was not certain. (Tr. p. 429).^[6] He testified that his research into the rates charged by other agencies for similar services, did not include information about the licenses or certifications of the providers. (Tr. pp. 430-431). He believes that providers of ABA supervision (for which the agency charges $350.00 per hour) must be certified as BCBA’s however the record indicates this is not the case. (Tr. pp. 82, 101-102, 110, 286, 431).

The student is scheduled to receive between 3.5 and 4.25 hours of ABA per day. His schedule does not reflect co-treats provided by his ABA providers, together with supervisors or related services providers. (Par. Ex. I; Tr. pp. 83-84).). According to the director, the supervisor reviews the data, to determines what intervention is required, and schedules a “co-treat”, to review the performance of the ABA provider. (Tr. pp. 91-92). ^[7] The Educational Director of the private school testified that she has a Master’s Degree in Special Educational Leadership and Administration and has certification as a special education teacher. She is taking classes toward certification as a Board-Certified Behavior Analyst (“BCBA”) and as a licensed behavior analyst. (Tr. p. 51). In her role, she is involved with hiring, training, creating educational plans for students, and class placements. She also oversees implementation of behavior plans and provides supervision to staff. (Tr. pp. 52-53, 69-70).

She testified that the school serves students on the autism spectrum and uses ABA to teach students and modify their behavior. This involves data collection and analysis. There are six classes with no more than six students in each class. Assessments are performed and plans, with goals, are created for each student. The staff collaborate among disciplines to target students’ goals. The school provides a 12- month school year. There are 29 students in the school. (Tr. pp. 53-55). Each classroom has a lead teacher who has a degree in education or psychology and is pursuing a Master’s Degree in ABA or psychology; or is pursuing a BCBA.^[8] Each class also has one additional teacher for each student, so that there is a ratio of six teachers to five students. Providers of SLT and OT are also assigned to the class. (Tr. pp. 56-57).

Upon hiring, all staff are trained in implementing behavior plans and other protocols used at the school. Staff also train with related services providers, such as training in use of speech generating devices. Staff development is provided on Fridays, from 1:30 PM to 3 PM. (Tr. pp. 57-58). Data is collected manually and entered into an online data system. (Tr. p. 59). According to the director, if there is a need for an intervention, necessitating an update, this is reported to the supervisor. (Tr. p. 60).

An Individualized Educational Plan (“IEP”) was developed, by the private school, for the student for the 2022-2023 school year. The date it was developed is not indicated. The IEP encompasses various domains (language, reading, math, social play and leisure skills, activities of daily living, health and wellness, vocational skills, community and safety and behavior skills). Long term objectives are broken down into specific skills; with grades assigned on a quarterly basis; and a narrative reporting on his mid-year progress (after two quarters). (Par. Ex. K). At the start of the current school year, the student was non-verbal, prompt dependent and behavioral. He exhibited many behaviors including eloping, screaming, crying, pushing, throwing objects and required one-to-one support at all times. He also exhibited self-stimulatory behaviors, including placing his hands in his pants. He hoards objects, which can result in severe aggression. Within the community, he needs to be supported by more than one person, due to the risk of elopement. He struggles being with peers, and has a hard time generalizing skills with different people or environments. (Tr. pp. 61-64).

The student requires a behavior plan, using ABA methodology, including prompting and high rates of reinforcement; to increase his ability to sit and work in a group and perform ADL skills. (Tr. pp. 64-65).

An ACE skills assessment was performed including a review of data from the prior school year. This information was used to create goals and a plan for the 2022-2023 school year. (Tr. p. 66). The student receives SLT and OT , 45 minutes each day, with certified and licensed providers. Goals were developed by the SLT and OT providers, and progress reported. (Par. Ex. P, Q; Tr. p. 71).

The student’s last Behavior Intervention Plan (“BIP”) was updated on May 11, 2022, by a BCBA. (Tr. pp. 92, 95). The targeted behaviors were aggression, throwing objects and eloping. Reinforcers were identified, and a plan developed, including a proactive plan to gain instructional control, and reactive strategies when the student engaged in behaviors which were targeted. (Par. Ex. L). Despite the fact that the school billed for 51.25 hours of ABA supervision, between July and December 2022, the BIP was not updated. (Par. Ex. G, L). The director testified that “if a plan works, you’re not going to change it”. (Tr. p. 93). She acknowledged that the student began manifesting a new behavior, “hands in the pants”, and that staff is working to reduce the behavior. Nevertheless, that behavior was not made part of the BIP; and the director did not know if it was being addressed by a separate plan. (Tr. pp. 95-96).

The director testified that the school employs two BCBA’s. The lead teacher/supervisor in his classroom is not a BCBA. She has done most of her coursework toward a BCBA. The student’s program and ABA sessions are overseen by a BCBA. (Tr. pp. 101-102). The lead teacher is currently in a Master’s Program, and has been working at the private school for about three years. One of the ABA providers in the class is also in the process of completing his coursework, and is under the supervision of one of the BCBA’s. The two other teacher/ABA providers in the classroom have Bachelor’s Degree with experience in ABA. (Tr pp. 104-105). She testified that ABA supervision is provided by the director, the lead teacher (who is a BAC), a BCBA, and another individual. (Tr. pp. 112, 123). From July until the second week of December, the student’s class had four students. The class size was then reduced to three students. His class now has one head teacher (who is a BAC) , and three additional teachers. (Tr. p. 70). The head teacher supervises the other teachers (ABA providers). The student has a schedule which reflects the duration of and provider of ABA therapy, each day; but does not reflect all of the co-treats which he receives. (Tr. p. 85). She testified that students are not offered make-up sessions for services missed when they are absent, because the program runs as a school day (8:30 AM to 3 PM on Monday through Thursday; and 8:30 to 1:30 on Fridays). (Par. Ex. I; Tr. p. 86).

The director testified that over the course of the year, the student progressed in his behaviors; specifically, in putting his things away, and remaining with the instructor in the street. He has also improved in his communication skills, using his AAC device to make requests and label and answer questions. (Tr. pp. 71-72). His learning has also improved; however, his progress in ADL skills has been slower. (Tr. p. 73).

The private school’s BCBA supervisor testified that she holds a Master’s Degree in Special Education and is certified as a Board-Certified Behavioral Analyst (“BCBA”). She is not familiar with the related billing entity. Contrary to the testimony of the director, she testified that she is the only BCBA employed at the private school. She testified that she conducts behavioral assessments and develops behavioral plans, in collaboration with classroom BAC’s. She supervises all staff, and monitors data collected by them to ensure behaviors are changing in the targeted direction. If behaviors are occurring at very low or zero rates, plans are kept in place. (Tr. pp. 149-154, 172).

She testified that she conducts the student’s ABA supervision, although other staff also help. (Tr. pp. 232-233). As to academics, she testified that supervision is performed by his BAC/lead teacher, in collaboration with the BCBA supervisor, and that the student’s program is updated more frequently. (Tr. pp. 237-238).

The BCBA supervisor testified that she is very familiar with the student and developed his most recent behavior plan. (Tr. p. 157). She testified that all of his behaviors (aggression, self-biting, hitting, crying and loud vocalizations) arise from his being possessive of his belongings, and his attempts to access foods he cannot have, due to allergies. (Tr. pp. 161-162). She described how the behaviors were modified. She testified that his last behavior plan was developed in May 2022, and was not changed, due to the low rates of his behaviors. (Tr. pp. 164, 211).

She testified that one of the goals for the student is to increase his work productivity, by increasing the consecutive duration of his completion of tasks. She did not describe any formal plan which was developed to achieve this goal. (Tr. pp. 164-165). She testified that since July 2022, the student has made significant progress in his communications, through use of one or two-word phrases, which has also resulted in a reduction of behaviors. (Tr. pp. 165-166).

The student’s academic program focuses on daily life skills, including identifying his name and other sight words, and shopping in a simulated supermarket , using a list and pictures. (Tr. pp. 167-168). She testified that during the year and one-half that she has worked with the student, she has seen significant growth behaviorally; and that now there can be more of a focus on building his independence and communication skills. (Tr. pp. 169-170).

She testified that she developed the daily data sheets used by the behavioral therapist, and that they are filled out immediately after the session. (Tr. pp. 173, 181). When data cannot be immediately entered, it can be reported on the same day, or the following date if there were zero rates of behavior. The BCBA supervisor testified that the BAC in the classroom assures that data is collected. (Tr. pp. 175-176, 181). Data on more novel behaviors, which are not reflected on the data sheets are collected separately, on ABC (antecedent, behavior and consequence) sheets, so that a plan can be developed. (Tr. p. 177). Gaps in data collection can occur when the student is out in the community for a trip. (Tr. p. 186, 200). Reviewing data sheets which were subpoenaed, she acknowledged that there were significant gaps, with no explanation. (Tr. pp. 204, 206-208).

She testified that while the student has made significant growth behaviorally; his rate of acquisition is slow; and he continues to require one-to-one ABA programming in order to progress. (Tr. pp. 169-170).

Findings of Fact, Conclusions of Law and Order

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The IEP must be reasonably calculated to enable the child to make progress appropriate in light of his circumstances. Id. at 1002.

A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Forest Grove School District v. T.A., 557 U.S. 230 (2009); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities does not preclude an award of reimbursement. Florence School District Four et al. v. Carter, 510 U.S. 7(1993).

In these proceedings, the DOE presented no evidence to support its recommendations. The parent presented evidence that the student requires intensive behavioral support, in order to progress. The testimony that the program recommended by the DOE would not provide sufficient support for the student was not challenged or rebutted by the DOE. Therefore, the DOE failed to meet its burden of proving the appropriateness of its recommendations.

Appropriateness of Parental Placement

To qualify for funding under the IDEA, the parents must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

The private school met the student’s unique needs, by providing a program which included a small class with a high teacher to student ratio, and a program which included intensive behavioral support, one-to-one instruction; and related services of OT, and SLT. The student’s behaviors were reduced, and he was able to progress in his communication skills, including his use of the SGD.

For all of the foregoing reasons, I find that the parents met their burden of proving the appropriateness of the parental placement.

Independent of these findings, however; the DOE was required to fund the student’s tuition at the private school, during the pendency of due process, which in this case extended from the date of filing (July 6, 2022, five days before the student began attending) until the date of this decision; or practically the entire school year.

Whether the DOE is obligated to pay the billing entity at the rate charged is a separate issue which is discussed below.

Equitable Considerations

In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 49 IDELR 39 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including whether the parent participated in the IEP meeting, visited the proposed placement and provided timely notice of her intent to place the student in a private school. See M.H. and E.K. v. New York City Dept of Education, 685 F 3d 217 (2d Cir. 2012). In making a reimbursement award, a court may consider whether the amount of private school tuition was reasonable. M.P. v. New York City Dept of Educ, 81 IDELR 216 (S.D.N.Y. 2022). In these proceedings, the parents provided notice of their disagreement with the CSE’s recommendations and their intention to unilaterally place the student and seek funding, and were generally cooperative.

I find that the billing entity never intended to enforce the Enrollment Agreement against the parents. If billed at the maximum rate, the parents, whose yearly income is $18,000. could incur charges of $12,662.50 per week, or $531,825.00 per year. The parent was not provided with the rate schedule at the time she signed the contract. As the contract, read as a whole, is vague and indefinite, it is doubtful that is enforceable. See E.M. v. New York City Dept. of Educ., 758 F. 3d 442 (2d Cir. 2014) (citing Best Brands Beverage, Inc. v. Falstaff Brewing Corp 842 F. 2d 578 (2d Cir 1987).

In Application of a Student with a Disability, , Appeal No. 21-245 ( cited in the DOE’s brief as Appeal No. 21-145), the State Review Officer denied funding for services entirely, where there was no evidence that the parents had expended any funds for the services or was legally obligated to do so.

In the instant case, I find, however, that the DOE is obligated to fund the student’s attendance at the school, at a reasonable amount, due to the existence of a pendency agreement which now extends for practically the whole school year. I also find that the student’s attendance should be funded, at a reasonable rate, on the merits of the case.

As support for the rates charged by the billing entity, the parents cite various State Review Officer Decisions (Appeal No. 20-145; Appeal No. 13-078 and Appeal No. 17-032). (IHO Ex. V).

While the State Review Officer, in Application of a student with a Disability, Appeal No 20-145, approved the rate of $300.00 per hour for ABA therapy; it did so based upon testimony that the service would be provided by a Licensed Behavior Analyst or Board-Certified Behavior Analyst, as compensatory education. ^[9]

In the instant case, “ABA therapy” is being provided by teachers with only a Bachelor’s Degree and some unspecified experience with ABA; and supervision is being provided by BAC’s, who are neither licensed or certified. Furthermore, the record indicates that while the school utilizes ABA methodology, it also uses other methodologies. Data is not consistently kept, and appears to be not kept at all during community outings. Although the billing entity billed for 51.25 hours of ABA supervision, during the period from July to December 2022; the student’s Behavior Plan was not updated for the entire period, even though a significant new behavior had emerged, and had been informally addressed. During the entire month of August 2022, ABA therapy was billed , without any billing for supervision. The limited data that is kept, appears to be for behaviors only. The record indicates that for academics and other skills, data is reviewed quarterly and recorded in the student’s IEP.

The parents cite Application of a student with a Disability Appeal No. 17-032 as support for the principal that a school is not required to charge a flat tuition rate; and that it can provide ABA and related services, based upon services rendered. In that case, the State Review Officer found that the IHO improperly determined sua sponte to reduce rates which were not challenged by the school district. In contrast, in the instant case, the school district has challenged the rates charged here as being excessive. It should also be noted that the ABA provider in Appeal No. 17-032 billed for two hours per week of BCBA supervision (for 25 hours of ABA therapy). In the instant case, up to 10 hours per week of ABA supervision (by an uncertified provider), is being requested.

I find that the fee for services model which the billing entity is attempting to apply here is not credible, and not reasonable. While I find that the student consistently receives one-to-one support, I do not find that he is consistently receiving ABA therapy. Nor do I find that the unlicensed and uncertified “ABA therapists”, are consistently supervised by licensed providers, or that programs are being updated and modified, based upon data collection. Finally, there is no justification in the record for billing separately for related services supervision; when the related services providers are licensed providers.

The private school previously charged tuition; but changed its billing model, with no apparent change to the manner in which services were delivered. Under all of the circumstances, I find that funding for the student’s attendance at the private school, for the 2022-2023 school year, should be based upon the tuition charged in the 2020-2021 school year ($128,000), with a cost- of- living adjustment of 14.6% ($18,688) for a total of $146,688. ^[10]

Transportation

The student’s most recent IEP includes transportation from the closest safe curb location to school; 1:1 paraprofessional, air-conditioning, limited travel time, route with fewer students, and the DOE did not oppose an order continuing these accommodations. Therefore, I will order that the DOE continue to provide those transportation accommodations.

I also find that the parent is entitled to be reimbursed for her out of pocket expenses in driving the student to school, or transporting him by Uber, when the bus or bus paraprofessional was not provided; and will order that her expenses be reimbursed, upon presentation of proof of payment thereof.

ORDER

For all of the foregoing reasons, it is hereby ordered as follows: (1) The DOE shall pay the private school $146,688.00, on account of the cost of the student’s attendance at the private school, for the 2022/2023 school year, by June 20, 2023; (2) The DOE shall continue to provide the student special transportation from the closest safe curb location to school; 1:1 paraprofessional, air-conditioning, limited travel time, and route with fewer students, for the remainder of the 2022-2023 school year; (3) The DOE shall reimburse the parents for tolls and mileage, at the IRS rate, and for the costs of Uber or other car services, upon submission of an affidavit setting forth the dates when she was required to provide transportation for her son, due to the DOE’s failure to do so; and the cost of such transportation, including receipts, or such other proof as may be reasonably required.

Dated: June 6, 2023 Dora M. Lassinger

DORA M. LASSINGER, ESQ.

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 Office (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.

DOCUMENTATION ENTERED INTO THE RECORD

IMPARTIAL HEARING OFFICER EXHIBIT

I. Subpoena, 2-14-23, 3 pp. II. Subpoena, 2-13-23, 3 pp. III. Orders of Extension, various dates, 5 pp. IV. DOE Brief, 6-5-23, 13 pp. V. Parents’ Brief, 6-2-23, 9 pp.

Department of Education

2. Daily data sheets, various dates, 46 pp. 3. Lesson Audit, undated, 11 pp. 4. Salary Information, undated, 1 p.

DOE

PARENT’S EXHIBITS [REDACTED]

Footnotes

[1] The student’s most recent IEP in evidence, dated February 15, 2022 provides the following special education accommodations: Transportation from the closest safe curb location to school; 1:1 paraprofessional, Air-conditioning, limited travel time, route with fewer students. (Par. Ex. E). At the hearing, the DOE did not oppose an order continuing these accommodations. (Tr. p. 48). The parents are seeking reimbursement for transportation they provided. The request for home-based services was withdrawn at hearing. (Tr. p. 46).

[2] The parties agreed that, based upon an unappealed Findings of Fact and Decision dated April 21 2020, the student’s pendency placement (effective July 7, 2022) was the private school, including special education transportation. The details of special education transportation were not specified in the pendency agreement. (Par. Ex. D).

[3] The services were billed as follows: ABA- $260.00 per hour; ABA supervision- $350.00 per hour; Related Services (OT and PT) $250.00 per hour; Related Services Supervision- $350.00 per hour). (Par. Ex. G).

[4] These services, if actually provided, would result in maximum charges to the parent of $12,662.50 per week, or $531,825.00 per year.

[5] The student began attending on July 11, 2022, and was present for 14 school days in July and 11 days in August. 13 days in September; 14 days in October; 17 in November; and 16 in December.

[6] The record indicates however that ABA providers are only required to have a Bachelor’s Degree with experience in ABA. (Tr. pp. 104-105).

[7] There is also collaboration with and supervision by the one Board Certified Behavior Analyst (“BCBA”) employed by the school. (Tr. pp. 232-233).

[8] She later testified that the student’s class is supervised by a BAC (behavior analyst candidate), who has completed her coursework and getting ready to sit for her exam. (Tr. pp. 82, 110).

[9] In Appeal No 13-078, cited by the parents, the rate awarded for ABA services, including ABA supervision, was $160.00 per hour, although $160 to $200 per hour was invoiced. The request for 10 hours per week of ABA therapy and two hours per week of supervision was reduced to 8.5 hour of ABA therapy and one hour per week of supervision.

[10] This is based upon combined cost of living adjustments determined by the Social Security Administration for 2021 (5.9) and 2022 (8.7).www.ssa.gov/cola.