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Special Education Law
DECISIONParent PrevailedIHO Case No. 228740

New York City Department of Education, Impartial Hearing Decision

February 1, 2023·Jean Marie Brescia·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 228740

FINDINGS OF FACT AND DECISION

Case Number: 228740

Student’s Name: REDACTED REDACTED

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: July 7, 2022

Date(s) of Hearing: August 10, 2022

August 18, 2022

September 7, 2022

November 4, 2022

December 16, 2022

December 21, 2022

Actual Record Closed Date: February 1, 2023

Date of Decision: February 1, 2023

Date of Distribution if Different than Decision Date: N/A

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON August 10, 2022

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON August 18, 2022

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON September 7, 2022

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON November 4, 2022

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON December 16, 2022

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent

REDACTED REDACTED, BCBA

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON December 21, 2022

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED, RBT

For the Department of Education:

None

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about July 7, 2022. Ex. A.[1] On July 22, 2022, I was appointed by the New York City Department of Education to hear this matter after the appointment of another hearing officer was rescinded. REDACTED’s parent challenges the Department’s failure to provide REDACTED with a free appropriate public education (“FAPE”) for the 2022-2023 12-month school year and, as relief, seeks funding for a program of school-based and home-based Applied Behavior Analysis (“ABA”) with ABA supervision and team meetings and parent training and counseling, related services, assistive technology and transportation. Ex. A. On October 2, REDACTED’s parent filed an amended DPC alleging events occurring after the filing of the initial DPC and relating to the Department’s issuance of Related Services Authorizations (RSAs) and failure to provide specialized bus transportation and accommodations. Ex. P.

I conducted a prehearing conference on August 10, 2022. Parent’s counsel appeared. The Department did not appear. Parent’s counsel clarified the relief sought by REDACTED’s parent and requested a pendency hearing. Tr. 3, 5. I scheduled a pendency hearing for August 18 and a merits hearing for September 7. On August 18, Parent’s counsel appeared. The Department did not appear. Parent’s counsel reported that Department personnel had informed her that morning that the Department had approved Parent’s pendency application; as a result, Parent’s counsel withdrew the request for a pendency hearing. Tr.12-13.

On September 7, Parent’s counsel appeared. The Department did not appear. On October 2, REDACTED’s parent filed the amended DPC, and I scheduled a status conference for November 4, a date after the conclusion of the new resolution period.

On November 4, Parent’s counsel appeared. The Department did not appear. The hearing was scheduled for December 16 for the Department and REDACTED’s parent to present their cases. Tr. 22.

On December 16, Parent’s counsel appeared with REDACTED’s father and a witness. No one appeared on behalf of the Department (tr. 29-30), and the hearing on the merits commenced. Parent’s Exhibits A, B and F through P were admitted in evidence.[2] Parent’s counsel presented an opening statement on REDACTED’s parents behalf, and REDACTED’s father and ABA program supervisor testified. The hearing was continued to December 21 for a final witness to testify.

On December 21, an ABA provider testified, Parent’s counsel made a closing statement, and the hearing concluded.

Parent requested extensions of the compliance date, and written Orders of Extension were issued on August 10, November 4 and December 21, 2022. The reasons for granting the extensions are set forth in the Orders.

The record was closed on February 1, 2023 upon the Hearing Officer’s receipt of Parent’s Closing Brief (IHO Ex. I).

JURISDICTION

The due process hearing was held, and a decision in this matter is now 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.

REDACTED’s father consented to the hearing being conducted via videoconference and for the distribution of an electronic version of this decision and order.

ISSUES

Parent requests, for the 2022-2023 school year, the provision of: (a) a full-time (30 hours per week) one-to-one ABA therapist for REDACTED at school; (b) 15 hours per week of home-based one-to-one ABA; (c) two hours per week of BCBA supervision; (d) one hour per week of parent training; (e) team meetings two times per month for one hour; (f) speech therapy, both individually and in a group for a total of six 45-minute sessions per week; (g) occupational therapy, four 45-minute sessions per week, individually; (h) physical therapy, two 30-minute sessions per week; (i) AT hardware and software; and (j) special education transportation with limited time travel and a 1:1 transportation paraprofessional. Parent seeks the provision of the above services for the extended school year, including during school breaks and vacations. In addition, Parent seeks compensatory services for any services not provided under pendency and reimbursement for any transportation Parent provided. Ex. P at 20-21.

At the hearing, the Department did not avail itself of its opportunity to appear in this proceeding and, as a result, did not defend its IEP for REDACTED, or seek to rebut the testimony or evidence presented by REDACTED’s parent. The issues to be resolved are:

  • • Are the supports and services outlined above specially designed to meet REDACTED’s unique needs?
  • • Does REDACTED require services during school breaks and vacations (a “52-week school year”)?
  • • Do equitable factors favor REDACTED’s parent?

FINDINGS OF FACT

  • • REDACTED is a REDACTED year-old boy whose disability is classified, for the purposes of the IDEA, as autism. Exs. A at 1, N.
  • • For the 2022-2023 school year, REDACTED attends a 6:1:1 self-contained special education class at the Department’s REDACTED, a District 75 special education school. REDACTED has one-to-one ABA support, under the supervision of a BCBA and LBA, at school during the school day and after-school, home-based ABA services. Tr. 49-50, 53; Ex. N.
  • • REDACTED has been diagnosed with REDACTED, REDACTED, and REDACTED. Ex. F at 1, 11, 16-19.
  • • REDACTED demonstrates challenging behaviors, including physical aggression, escape and avoidance behaviors (dropping to the floor, attempting to run away, running away, swiping things off tables, and REDACTED), and perseveration on phrases, actions and thoughts. Exs. F, at 2, I, O at ⁋ 14, G at 6, N.
  • • In school, REDACTED needs close, full-time adult supervision and support to prevent him from hitting or attacking other students. Ex. O at ⁋⁋ 15, 17, 18.
  • • He has difficulty with expressive language; his speech is difficult to understand by non-family members. Exs. F, O at ⁋ 16, G at 7.
  • • REDACTED received Early Intervention services and received ABA and related services; ABA and related services continued through preschool. REDACTED has attended Department schools since kindergarten. Tr. 70-71; Ex. F at 1.
  • • REDACTED’s ABA is provided by an agency, REDACTED. The agency provides 30 hours per week of one-to-one ABA support and programming in school (in order to enable REDACTED to learn in the classroom setting) and 15 hours per week of one-to-one home-based ABA from Registered Behavior Technicians (“RBTs”), as well as two hours per week of parent training for REDACTED’s parents, two hours per week of ABA supervision, and two hours per month of family team meetings. Tr. 76-80, 103; Exs. H, O at ⁋⁋ 19-21, 24, 26.
  • • The ABA supervisor at REDACTED has a dual Master’s degree in special and general education and is a Board-Certified Behavior Analyst (“BCBA”) and New York State Licensed Behavior Analyst (“LBA”) with a limited permit (who is currently completing practice hours under the supervision of an LBA). Tr. 74-75, 90-91; Ex. O at ⁋⁋ 1-3.
  • • REDACTED’s father entered into a contract with REDACTED for the provision of ABA services described in paragraph 8, above. Ex. M.
  • • ABA is a “scientific approach that uses evidence-based research to understand human behavior. ABA refers to a set of principles that focus on how behaviors change, or are affected by the environment, as well as how learning takes place,” to address challenging behaviors, and to teach social, motor, communication and daily living skills. Ex. O at ⁋⁋ 9-11.
  • • REDACTED has created detailed goals for REDACTED and measures progress through video data, detailed session notes and observations of sessions. The data is reviewed by the REDACTED team, and goals are modified and updated, as appropriate for REDACTED. Exs. I, J, O at ⁋⁋ 47-50.
  • • During school hours, an RBT supports REDACTED during academic instruction and related services and teaches REDACTED coping strategies (including functional communication training) so as not to resort to maladaptive behaviors. The RBT works with REDACTED on his academic and therapeutic goals and on ABA programming focusing on engaging in positive behaviors. The goals and programming were developed by REDACTED BCBAs, and the RBT is supervised by the BCBA, and he takes data for use in assessing and modifying the goals. Exs. J, O at ⁋⁋ 23, 29, 41; Tr. 75-81, 84-86.
  • • During after school hours, the RBT and the BCBA address goals relating to REDACTED’s “overall independence,” such as gross motor skills, community activities, leisure skills, daily living skills, functional communication skills, and receptive and expressive language. Ex. O at ⁋⁋ 30-32, 41.
  • • REDACTED needs home-based services in order to work on the above specific skills; such home based programming in an integral component of his educational program and necessary for him to make progress. Ex. O at ⁋⁋ 32-33; see also Ex. F at 13.
  • • REDACTED provides the 15 hours per week of home-based therapy to REDACTED during school vacations and other weekdays (three hours per day on such days) when school is closed. Tr. 104-105.
  • • During such school closures, the RBT implements REDACTED’s behavior plan and works with REDACTED on his goals in the areas of social-emotional needs and other skills to ensure that his skills are maintained (and not lost) when school is not in session and to ensure that he will be able to “transition back into school” successfully. Tr. 91-92, 106.
  • • REDACTED needs home-based services during school vacation and other weekdays when school is closed in order to maintain his appropriate behaviors, maintain the skills he has learned and be able to transition successfully back into school. Tr. 88-89, 109.
  • • REDACTED’s parents utilize the parent training and counseling provided by REDACTED to learn to support REDACTED’s positive behaviors. Ex. O at ⁋⁋ 43-44; Tr. 82-84.
  • • REDACTED has made progress to date during the 2022-2023 12-month school year, as demonstrated by the data taken by the RBT and BCBA (tr. 81-82, 86-88, 107-108; Exs. J, O at ⁋⁋ 38- 41, 55-57):
  • • He has made “significant improvement in socialization skills,” reducing the time he spent perseverating and increasing the time he spent communicating with family members, participating in family community outings, and playing board games with his family.
  • • He made “significant improvements” in reducing his maladaptive behaviors and using functional communication skills as an alternative to engaging in such maladaptive behaviors.
  • • He can attend to a task for up to 30 minutes without engaging in maladaptive behaviors.
  • • He has made “significant progress” with his communication skills and learned to communicate using full sentences to make requests at home without engaging in maladaptive behaviors (such as screaming and/or self-injurious and aggression towards others).
  • • He has learned to wait for responses to his requests.
  • • He has made progress in daily living skills by reducing maladaptive behaviors, particularly during toileting, following classroom routines, and completing certain classroom routines, such as the classroom morning routine, mainly independently with minimal prompting.
  • • He can better tolerate transitions between programs and activities without engaging in aggressive behaviors.
  • • The BCBA opined that REDACTED would not have made the above progress without the individualized 1:1 ABA instruction tailored to his specific needs and that REDACTED needed to continue with ABA programming in order to continue to make progress.[3] Tr. 89; Ex. O at ⁋⁋ 53, 58, 60-61, 64; see also Exs. J at 10, F at 12-13.

Related Services

  • • At the beginning of the school year, the Department did not have related services (speech, occupational and physical therapies) in place for REDACTED. Tr. 62-63, 65, 67.
  • • Rather than providing related services to REDACTED at school, the Department issued Related Services Authorizations (“RSAs”) to REDACTED’s father. Tr. 64, 66-67.
  • • The RSAs provided for: speech-language therapy (five 60-minute sessions per week individually and two 45-minute sessions per week in a group), occupational therapy (four 45-minute sessions per week individually), and physical therapy (two 30-minute sessions per week individually). Ex. K.
  • • REDACTED’s father was unable to locate related services providers who would accept the RSAs to provide services to REDACTED. Tr. 65-67.
  • • The Department began to provide related services to REDACTED in school by the time of REDACTED’s father’s testimony in December. Tr. 66-68.
  • • REDACTED needs speech and language therapy and occupational therapy. Exs. F at 13-14, G at 10. A speech evaluation recommended that he receive five, 60-minute individual speech therapy sessions per week. Ex. G at 10.

Assistive Technology

  • • REDACTED has not received a Talk Pad 8 from the Department, nor does he utilize such a device at school. Tr. 68.
  • • REDACTED needs an assistive technology device to access appropriate communication supports. Exs. F at 13, G at 8, 13.

Transportation

  • • REDACTED’s IEP mandates the following special transportation accommodations: door-to-door transportation from the closest safe curb location and a 1:1 paraprofessional. Ex. N at 36.
  • • REDACTED needs a bus paraprofessional in order to ride the bus to school. Tr. 56.
  • • The Department had a bus paraprofessional in place for REDACTED at the start of the school year. Tr. 57.
  • • The bus paraprofessional arrived on the bus to pick up REDACTED on the first day of school. The bus paraprofessional did not show up on the second day of school. Despite REDACTED’s parents repeatedly informing the Department of the problem, the Department did not provide a replacement bus paraprofessional until November. Tr. 57-58, 61.
  • • REDACTED’s father took REDACTED back and forth to school from July through November. Tr. 56-57, 59.

CONCLUSIONS OF LAW

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982).

A board of education may be required to pay for education services obtained for a child by the child's 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. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school or the educational and related services selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. 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 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition or services reimbursement for a unilateral placement, or services selected by the parent, has the burden of proof regarding the appropriateness of such placement, programming or services. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

In this case, the DOE did not present testimony or documentary evidence with respect to its provision of FAPE to REDACTED for the 2022-2023 school year or to rebut the testimony of REDACTED’s father or his witnesses. Since the Department did not offer any testimony or documentary evidence to explain how its program for REDACTED was “reasonably calculated” to permit him to make progress given his unique circumstances, the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test.

ABA Program

REDACTED’s father bears the burden of proof concerning the appropriateness of the ABA services that he has obtained for REDACTED. See, e.g., Frank G. v. Board of Education of the Hyde Park Central Sch. Dist., 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, REDACTED’s father must show that the educational services provided by REDACTED address REDACTED’s identified special education needs. See C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014); C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free Sch. Dist., 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.... 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.

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order).

Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.

The preponderance of the evidence establishes that the in-school ABA support and the at-home ABA therapy (and the associated supervision and team meetings), with the related service of parent training, provided REDACTED with an educational program in which his complex constellation of identified and significant special education needs were addressed. In particular, the record is clear that REDACTED needs the behavioral and other supports that ABA personnel provide to him in the classroom. At this time, he would not be able to function and learn in a classroom without ABA support. He also needs additional home-based ABA therapy because his severe needs are such that the school day is not long enough to address his needs and he has needs that cannot be met in the context of a school day. Similarly, he needs ABA services at home when school is closed due to vacations and/or holidays. REDACTED cannot afford to lose gains he has achieved through ABA. See paragraphs 8 and 12 through 19, above.

REDACTED has made progress, to date, during the 2022-2023 school year. See paragraph 20, above. With ABA (and its associated ABA supervision, team meetings and parent training), REDACTED has made progress across the range of his significant and varied autism-related challenges, clearly demonstrating that the total ABA school/home program is an appropriate special education program for him. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress).

Furthermore, the record demonstrates that REDACTED needs ABA in order to learn. See paragraphs 8 through 19, above. For many years, federal courts have recognized ABA as an appropriate and effective teaching methodology for children with autism. See, e.g., A.M. v. New York City Dep’t of Educ., 845 F.3d 523, 545 (2d Cir. 2017) (where reports “specifically recommended the continued need for ABA therapy,” IEP is substantively inadequate because it did not recommend any ABA); R.E., 694 F.2d at 194; M.H. v. New York City Dep’t of Educ., 712 F. Supp. 2d 125 (S.D.N.Y. 2010), aff’d 685 F.3d at 252; see also 34 C.F.R. § 300.39(b)(3) (“[s]pecially designed instruction means adapting, as appropriate to the needs of [the child], the content, methodology, or delivery on instruction”) (emphasis added).

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the total ABA school/home program is appropriate for REDACTED for the 2022-2023 12-month, 52-week school year. As a result, REDACTED’s parent prevails with respect to the second Burlington/Carter criterion.

Related Services The Department provided RSAs to REDACTED’s father speech-language therapy (five 60-minute sessions per week individually and two 45-minute sessions per week in a group), occupational therapy (four 45-minute sessions per week individually), and physical therapy (two 30-minute sessions per week individually). See paragraph 24, above. As a result, there is no dispute between the parties that these are the related services to which REDACTED is entitled.

The Department should conduct an accounting of the related services sessions missed by REDACTED during the 2022-2023 12-month school year and provide a bank of compensatory related services for REDACTED. Such a bank of services will provide REDACTED with the related services that the Department failed to provide to REDACTED during the current school year.

Assistive Technology The record is clear that REDACTED needs an assistive technology device. The preponderance of the evidence in the record supports a finding that a Talk Pad 8 is an appropriate device for REDACTED. See paragraphs 28 and 29, above.

Transportation

REDACTED’s IEP mandates the following special transportation accommodations: door-to-door transportation from the closest safe curb location and a 1:1 paraprofessional. See paragraph 30, above. There is no dispute that the Department must provide these special transportation accommodations, nor is there a dispute that REDACTED simply cannot ride the bus without 1:1 supervision. As a result, the Department of Education should reimburse REDACTED’s father for round-trip transportation on the days that the Department failed to provide the 1:1 paraprofessional necessary for REDACTED to ride the bus.

Equities

With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parent’s claims, the evidence establishes that REDACTED’s father has cooperated with the Department by placing REDACTED in public schools and communicating with school personnel. The record does not indicate that REDACTED’s father, in any way, impeded the Department’s provision of education and services to REDACTED—in fact, he has fostered the Department’s education of REDACTED. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013).

Furthermore, REDACTED’s father has an obligation under the contract to pay REDACTED for the services provided to REDACTED. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment to a school or provider (rather than reimbursement to a parent) because: (1) such payment is permitted by Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); and (2) it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled children whose parents happen to have the financial wherewithal to “front” the entire amount of the private school tuition or costs of specialized instruction and related services, as in the instant case, and subsequently seek repayment from the school district.

Equitable considerations thus favor the award of relief to REDACTED’s father. As a result, REDACTED’s father prevails with respect to the third Burlington/Carter criterion.

Claims for relief not specified below have been considered, denied due to lack of support in the record, and are dismissed.

ORDER

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

1. The Department of Education shall fund for REDACTED the following ABA services for the 2022-2023 12-month school year to be provided by REDACTED, or a comparable provider chosen by REDACTED’s parent, at the current rates charged by REDACTED reflected in Exhibit M:

(a) 30 hours per week of one-to-one ABA services for REDACTED at school provided by an RBT;

(b) 15 hours per week of home-based one-to-one ABA (inclusive of school vacations and holidays for a 52-week school year);

(c) two hours per week of BCBA supervision;

(d) one hour per week of parent training and counseling; and

(e) two hours per month of family team meetings for one hour per meeting.

2. The Department of Education shall continue to provide REDACTED, for the 2022-2023 12-month school year, the following related services:

(a) speech-language therapy (five 60-minute sessions per week individually and two 45-minute sessions per week in a group);

(b) occupational therapy (four 45-minute sessions per week individually); and

(c) physical therapy (two 30-minute sessions per week individually).

3. The Department of Education shall conduct an accounting of the related services sessions missed by REDACTED during the 2022-2023 12-month school year and provide a bank of compensatory related services for REDACTED. Such a bank of services shall provide REDACTED with the related services that the Department failed to provide to REDACTED during the current school year. Such compensatory services must be utilized within two years of the date of this decision.

4. The Department of Education shall provide REDACTED with a Talk Pad 8 device forthwith.

5. The Department shall also continue to provide REDACTED, for the 2022-2023 12-month school year, transportation from the closest safe curb location and a 1:1 paraprofessional.

6. The Department of Education shall reimburse REDACTED’s father for round-trip transportation (two one-way trips for REDACTED and four one-way trips for REDACTED’s father, per day) for the days that the Department failed to provide the 1:1 paraprofessional necessary for REDACTED to ride the bus. Payment shall be made upon presentation of proofs of payment for such transportation.

SO ORDERED.

DATED: February 1, 2023

Jean Marie Brescia, 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 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.

DOCUMENTATION ENTERED INTO THE RECORD

LIST OF PARENT’S EXHIBITS

Exhibit

Description

Date

Pages

A Impartial Hearing Request 07/06/2022 22

B FOFD in Case # 210335 05/04/2022 23

C

OMITTED

D

OMITTED

E

OMITTED

F REDACTED Autism And Neuropsychological Evaluation 01/10/2019 19

G REDACTED Speech Services Speech and Language Evaluation 04/13/2021 12

H REDACTED Speech Services Assistive Technology Evaluation 11/02/2021 15

I REDACTED SETSS-ABA Progress Report June 2022 06/30/2022 9

J REDACTED SETSS-ABA Progress Report August 2022 08/29/2022 10

K RSA’s 09/06/2022 20

L DOE Letter Regarding RSA Undated 4

M REDACTED ABA Parent Service Agreement 09/21/2022 2

N Individualized Education Program 03/31/2022 39

O Affidavit of REDACTED REDACTED, MS, ED, BCBA LBA-LP 12/14/2022 19

P Amended Due Process Complaint 9/28/2022 22 IHO Exhibit I Parent’s Closing Brief 2/1/2023 12 pages

Footnotes

[1] 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.

[2] A more detailed list of the admitted exhibits is attached to this Decision as “Documentation Entered Into the Record.”

[3] The BCBA recommended that REDACTED also receive speech therapy (four 45-minute sessions per week individually and two 40-minute sessions per week in a group), occupational therapy (three 40-minute sessions per week individually) and physical therapy (two 40 minute session per week individually). There is no support in her testimony or affidavit for these recommendations, nor is she licensed in these areas.