Impartial Hearing Decision

Findings of Fact and Decision Case No. 228795

FINDINGS OF FACT & DECISION

City/State: 228795

Student’s Name: [REDACTED] (Hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: Parent

School: [REDACTED] Academy (hereinafter “Academy”)

Actual Record Close: DECEMBER 5, 2023

Hearing Officer: ANN MARQUEZ, ESQ.

Date of Decision: DECEMBER 6, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED], ESQ., Parent Representative

[REDACTED], ESQ., Parent Representative

[REDACTED], Parent Student

[REDACTED], Principal, [REDACTED] Academy

[REDACTED], Executive Director, [REDACTED], LLC

[REDACTED], BCBA, Director, [REDACTED]

[REDACTED], PH.D., Pediatric Neuropsychologist

For the Department of Education:

[REDACTED], ESQ., District Representative

[REDACTED], Observing

x

[REDACTED] a minor, by and through the Parent

DECISION AND ORDER

Petitioner

-against-

NEW YORK CITY DEPARTMENT OF EDUCATION

Respondent. x

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on July 11, 2022. (Ex. A) ^[1]. The DPC alleged that the DOE failed provide the Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing the Student with a FAPE for the 2022/23 school year (school year at issue). The Parent is seeking an order for direct funding/tuition reimbursement at the Academy, compensatory education services, and several independent education evaluations (IEE) for the Student. (Ex. A).

On July 25, 2022, the undersigned Hearing Officer was appointed to the above referenced matter. The hearing went forward in this case on several dates. (See, Tr.).^[2] The Parent representative presented opening statements, documentary evidence, witnesses, and a closing brief. The District representative presented a closing brief.

Lists of the documentary evidence submitted are appended to this Order.

BACKGROUND

The Student was classified by the DOE, and requires special education support and services. (Ex. B, C, D). The Parents maintain the Student was denied a FAPE for the school year at issue and now seeks an order for direct funding/tuition reimbursement at the Academy, compensatory education services, and IEEs. (Ex. A). However, the Parent representative withdrew the claim for the compensatory program for related services. (Tr. May 26, 2023, 111).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded free appropriate public education (“FAPE”). See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).

In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the Individualized Education Plan (“IEP”) developed by its Committee on Special Education (“CSE”) through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student’s recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998). Two purposes of the 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 Parent of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

Under the FAPE analysis, the public school and/or Local Education Agency (“LEA”) has the burden of persuasion and the burden of production to demonstrate that the disabled child was provided a FAPE as set forth in the IDEA.

The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

Here, the District representative did not present any witnesses and/or documentary evidence to demonstrate a FAPE was provided for the school year at issue. (Ex. IHO I).

Based upon the foregoing, the District failed to demonstrate that the school district offered the Student a FAPE for the school years at issue. Therefore, the Student was denied a FAPE for the 2022/23 school year.

THE UNILATERAL PLACEMENT OF THE CHILD IN THE PRIVATE SCHOOL WAS

APPROPRIATE -TUITION REIMBURSEMENT

The IDEA specifically contemplates that "when a public school, Local Education Agency (“LEA”) fails to provide a FAPE and a child's Parent place the child in an appropriate private school without the school district's consent, a court may require the district to reimburse the Parent for the cost of the private education." Forest Grove, 129 S. Ct. at 2488; see 20 U.S.C. § 1412(a)(10)(C).

When a state receiving federal funding for special education fails to give a disabled child a FAPE under the IDEA, the child's Parent or guardians may unilaterally place the child in an appropriate private school and seek tuition reimbursement from the state. See Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12 (1993) ("Carter"); Sch. Comm. of Burlington, Mass. v. Dept. of Educ., 471 U.S. 359, 369-70 (1985) ("Burlington").

Under the Burlington-Carter test for tuition reimbursement, plaintiffs are entitled to reimbursement of private school tuition if (1) the IEP was not "reasonably calculated to enable the child to receive educational benefits," (2) "the private schooling obtained by the Parent is appropriate to the child's needs," and (3) equitable considerations support the plaintiffs' claim. T.Y., 584 F.3d at 417 (citation omitted);see also Forest Grove, 129 S. Ct. at 2496 ("Parent are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and the private school placement was proper under the Act. And even then, courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant. . .." (citation omitted)).

Under New York law, the burden of persuasion falls upon the Parent to show that their unilateral placement at a private school was appropriate.^[3] The Second Circuit cautioned that under a unilateral private placement a parent need only demonstrate that the placement provides educational instruction specifically 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. ^[4]

The standards for determining whether a private school placement is "appropriate" under the IDEA closely resemble, but does not mirror, the standards for assessing the adequacy and appropriateness provided by the State education for proposed public placement.^[5] "[T]he test for the Parent ' private placement is that it is appropriate, and not that it is perfect." Gagliardo, 489 F.3d at 115 (citation omitted). Ultimately, the standard to be applied is to determine whether "[the] unilateral private placement ... provides education instruction specifically designed to meet the unique needs of a handicapped child." Id. [10]

Here, the record demonstrates by the substantial submission of exhibits and the testimony of witnesses that the Academy is an appropriate placement for the Student’s 2022-2023 school year. (See generally, Tr. May 26, 2023, June 16, 2023, June 27, 2023, July 31, 2023, August 3, 2023, October 24, 2023; Ex. B, E through AA). The Student is classified by the DOE, and diagnosed with Autism Spectrum Disorder, Level 3, requiring substantial support with deficits in social communication and restricted behaviors; Attention Deficit Disorder, Combined type. (Ex. W-28). The Student’s ASD symptoms, pragmatic language deficits and emotional delay are all present obstacles to learning issues. Id.

The Student’s neuropsychological evaluation dated November 1, 2019, by [REDACTED] [REDACTED], Ph.D., noted that the Student’s 2019 IEP by the DOE classified him with Speech or Language Impairment (Ex. W-1). However, the Student’s medical diagnosis was consistently reported to be Autism, and he was non-verbal until age 4, with significant behavioral symptomatology. Id.

Dr. [REDACTED] further reported the Student clearly presents with ASD, level 3, consistent with prior reports. The Student presents with many atypical behaviors and clinical presentation consistent with ASD, with significant specific delay/disorders (in the language, and behavioral domain) which impact his intellectual functioning and, as such, negatively affect his potential. He presents significant issues in the learning environment including maladaptive behaviors, pragmatic language deficits, graphomotor deficits and delayed social development. (Ex. W-25). Further, the Student presents with many atypical behaviors including self-stimulation. He has a longstanding issue with sharing and group play. He has difficulty reading social cues and does not seem to learn by observing what others are doing (observational play or incidental learning). He seems indifferent to task, and could not be engaged without adult insistence or assistance. (Ex. W-25-26).

At the time of the 2019 neuropsychological evaluation, the Student is a 5.7-year-old, and presents with significant behavioral dysregulation consistent with ASD level 3, which prevents him from accessing his educational program. (Ex. W-28). Dr. [REDACTED] concluded that the Student requires a more restrictive environment and a higher level of care. The Student is verbal, presents with marked deficits in verbal and nonverbal social communication skills, and social impairments. He can get fixated on his own interests and presents with significant language deficits including deficits in communication for social purposes such as greeting and sharing information in a social context. The Student has significant difficulty following rules for conversation and storytelling such as taking turns in conversation, rephrasing when misunderstood, and knowing how to use verbal and nonverbal signals to regulate interaction. He has severe difficulty understanding what is not explicitly stated. Additionally, he presents with significant maladaptive behavior. Id.

Dr. [REDACTED] reported the Student requires inter-alia a small, structured contained class (6:1+1), and the grouping must be homogenous. (Ex. W-28). He requires a 1:1 intensive instruction implementing a research-based, structured program of Applied Behavioral Analysis (ABA), and requires a minimum of 30 hours per week, 12 months a year to treat significant symptoms of autism (poor eye contact, echolalia, poor imitation skills, poor incidental learning ). Id. Further, Dr. [REDACTED] recommended that the 30 hours of ABA should be provided as follows: 10 hours of home-based ABA; and at least 20 hours of ABA at school. The ABA program should be supervised by a Board-Certified Behavior Analyst (BCBA) to ensure that the program is specific to target his behaviors based on empirical data. (Ex. W-28-29).

Additionally, Dr. [REDACTED] reported the Student requires a Functional Behavioral Analysis (FBA) by a NYC Licensed Behavior Analyst/BCBA which should include addressing his needs at home and in the community to improve his social navigation skills and coping. Id. Further, he requires a Behavior Intervention Plan (BIP) to be implemented at school and in the home/community to decrease problematic behavior, promote pro-social behavior, and enable generalization across multiple learning environments to ensure safety. Id.

Further, the Student requires a highly skilled language pathologist in order to promote pragmatic language skills, including repairing miscommunications, clarifications, expressing feelings, emotions, perceptions, and intents. He also needs direct instruction in understanding the symbolic or abstract message in nonliteral language and in understanding figurative language. Id. He will require individual speech-language therapy 3x/week and group speech language therapy 1x/week. Also, the Student requires Occupational Therapy (2x/week for 30 minutes) and Physical Therapy (1x/week for 30 minutes). Id.

Dr. [REDACTED] further recommended that the Parent requires parent training and counseling (PCAT) for implementation in the home because the Student requires consistency in approach across all settings to ensure adherence in order to achieve desired goals. Id.

For the school year at issue, the Student is an eight-year-old, and in the 3rd grade. At the Academy, he was placed in a small, structured contained class, a 6:1:1 ration, with a lead teacher, teaching assistant, and an individual paraprofessional. (See generally, Tr. May 26, 2023, June 16, 2023, June 27, 2023, July 31, 2023, August 3, 2023, October 24, 2023; Ex. B, E through AA). The Academy provided the Student with a multisensory learning program with frequent redirection, hands on instruction, and positive reinforcement using ABA methodology by staff who have the expertise to provide support for a child with ASD, Developmental Coordination Disorder, Attention Deficit Hyperactivity Disorder, and multiple learning disabilities. (Tr. May 26, 2023, 132-135, 136-139, 142-145, 155, June 16, 2023, 208, 210-211, June 27, 2023, July 31, 2023, 280, August 3, 2023, 411, 419-421, October 24, 2023, 447; Ex. E-AA).

Based upon the testimony of witnesses and documentary evidence the record demonstrates the Student was able to make meaningful progress with a program that consisted of placement at the Academy that tailored his special education program that aligned with the recommendations of his neuropsychological evaluation. (See generally, Tr. May 26, 2023, June 16, 2023, June 27, 2023, July 31, 2023, August 3, 2023, October 24, 2023; Ex. B, E through AA).

Further, the record demonstrates the Student was provided through a pendency order to remain at the Academy retroactively to the filing of this DPC dated July 11, 2022 , based upon the unappealed Finding of Fact and Decision (FOFD) dated August 26, 2020 , which ordered placement at the Academy for the Student for the 12-month school year. (Ex. IHO III).

The DOE did not present any evidence to challenge the Parents’ contention that the Academy placement is an appropriate program and placement for the Student. The record amply establishes that the placement was appropriate and provided the Student with educational instruction that was specifically designed to meet the Student’s unique special education needs and he was supported by such services that are necessary to permit him to benefit from educational instruction.

Overall, the record demonstrates that at the Academy the Student was provided with an individually tailored program for aligned with the recommendations of her neuropsychological evaluation, and the Student made meaningful progress for the school year at issue. The Student was provided with placement in the Academy, special education incorporated with ABA instruction, oneon-one support, a small class size, opportunities for social-emotional growth, and the Student made progress for the school year at issue. (See generally, Tr. May 26, 2023, June 16, 2023, June 27, 2023, July 31, 2023, August 3, 2023, October 24, 2023; Ex. B, E through AA).

Based upon the foregoing, by the preponderance of the evidence, the Parent has met its burden of proving that the unilateral placement and services are appropriate, and the placement and services provide educational instruction specifically designed to meet the unique needs of this Student.

BALANCING THE EQUITIES

The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. The DOE did not raise any issues that would limit or preclude tuition reimbursement. In fact, it did not oppose tuition reimbursement on equitable grounds. Moreover, the testimony and documentary evidence make clear that the Parents cooperated with the CSE and provided the DOE with appropriate and timely written notice. (See generally, October 24, 2023; Ex. C).

Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in so doing. Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required."^[6] Carter, 510 U.S. at 16 (citation omitted).

The record is devoid of evidence establishing that the cost of the private education was unreasonable. The District has not “identified . . . particular services provided by [the School] that the district considered unnecessary to the provision of a FAPE (and for which reimbursement was therefore not required)or. . . otherwise shown that only a portion of [the student’s] tuition cost should be reimbursed” (M.H., 685 F.3d at 254-55 n.12).

The record demonstrates that the Parents fully cooperated with the DOE. (See generally, October 24, 2023; Ex. C). The Student’s tuition at the Academy for the 12-month school year at issue is $118,550.00 (10-month school year) plus $20,082.50 (summer session), for a total sum of $138,632.50, minus payments of $103,974.37, which leaves a balance of $34,658.13. (Ex. BB, CC, IHO III). Additionally, the Parent demonstrated a financial hardship. (Ex. DD). The Parent seeks an order for direct funding for the Student’s tuition at the Academy for the school year at issue. (Ex. BB, CC, DD). Direct payment under such circumstances may be ordered. The Parents now seek an order for direct funding/tuition reimbursement for the Student’s tuition for the school years at issue. Id. There are no equitable factors that disfavor funding the parents’ unilateral placement.

COMPENSATORY EDUCATION

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 N.D.N.Y.1997]). Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 [2d Cir. 2014] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that , in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would Student have accrued from special education services the school district should Student have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]).

Accordingly, an award of compensatory education should aim to place the student in the position he or she would Student have been in Student d the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address [] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that “[c]ompensatory awards should place children in the position they would Student have been in but for the violation of the Act.

The record clearly demonstrates that the Student required an in-school program with ABA services, along with home-based ABA services supervised by BCBA and PCAT services. Dr. [REDACTED] provided testimony based upon her review of the Student’s updated documents (Ex. A-W), and her own observation of the Student in his home in 2021, at school in April 2023, and by video in May 2023, since his last neuropsychological evaluation in 2019. (Tr. August 3, 2023, 389-390, 400, 410-411, 413-415; Ex. FF). Dr. [REDACTED] stated that she reviewed the Student’s progress reports from the Academy, his autism evaluation that was subsequently conducted after his 2019 neuropsychological evaluation, the Academy’s behavior intervention plans, his social-emotional goals and notes from the social worker, his overall academic assessments, and documents related to the school year at issue. Id. Based upon such review, Dr. [REDACTED] opined that the Student is a child with severe autism. He certainly needs a specialized program, a program of evidence-based behavioral management and instruction, such as ABA. (Tr. 392-393). He requires a specialty program so that his behaviors can be addressed and, therefore, neutralized as something that is interfering with his progress. Further, he requires this level of support at home and on the weekend because he demonstrates significant regression and severe behavioral dysregulation. Id. In her opinion, the Student is a child that might have to be referred for residential treatment if his behaviors cannot get under control. Id. Dr. [REDACTED] further explained that the Student demonstrates with the types of behaviors that children with severe autism demonstrate, such as very oppositional, defiant, obstructive behaviors for everything, except their preferred activities. (Tr. 393). As a child is demonstrating these behaviors and then succeeding in avoiding nonpreferred tasks, which carries over into the classroom, and the next day, and the following day. Id. Dr. [REDACTED] further testified that she was very disturbed when she observed him on video in that his behaviors are physically aggressive, self-harming and harmful to others. He refuses to do basic things like take a bath, take a shower, brush his teeth. Further, as he is engaging in these maladaptive behaviors, and strengthening task avoidance behaviors, it becomes a “behavioral chain” that will carry over into the classroom, and will interfere with the progress that he was making initially. (Tr. 393-394, 397). The goal is to promote positive behaviors and to extinguish the negative. Id

Dr. [REDACTED] further opined that a remediation program for the Student is an ABA, evidence-based intervention program that should continue at home as well, to prevent regression at school because he is so dysregulated, and to prevent residential treatment. (Tr. 401). Dr. [REDACTED] further explained that the Parent required parent training and counseling to adhere to the behavior intervention plan, following ABA principles, and having that behavioral consistency in the home, for consistency in methodology and approach across all settings. (Tr. 407-408).

The Student’s need for a home-based ABA program was further corroborated by the testimony of [REDACTED], MS, BCBA, LBA, the ABA provider for the Student. (See generally, Tr. June 16, 2023, July 31, 2023, Ex. EE). Ms. [REDACTED] testified that in 2000 school year, the Student was provided with compensatory home-based ABA services, compensatory BCBA supervision for the ABA services, and compensatory parent training and counseling, but his services ended late in August 2022 because all of his compensatory hours were utilized. (Tr. 237-238; Ex. V). Ms. [REDACTED] testified that the Student requires a home-based ABA up to fifteen hours a week of ABA, two hours a week of BCBA supervision, and one hour per week of PCAT, to prevent regression and to support his development, such as, increasing his communication skills, motivating positive behaviors, and reducing severe maladaptive behaviors. (Tr. June 16, 2023, 246, 248, July 31, 2023, 357; Ex. V).

Ms. [REDACTED] further testified that the Student requires a full-time wrap-around program that includes in-school ABA and home-based ABA services. (Tr. June 16, 2023, 248). Ms. [REDACTED] described that such services in the home are necessary to target the Student’s severe maladaptive behaviors, condition his ability to transition in the absence of interfering behaviors, and increase his functional communication skills where he can replace some of those behaviors with functional communication, social skills, and adaptive daily living skills. (Tr. 248-250).

Ms. [REDACTED] further explained that BCBA supervision of ABA services is a vital component because of the ongoing data collection that the BCBA reviews and assesses to develop the student’s behavioral program. (Tr. 250-251, 261). Such ongoing data collection is used to identify the student’s strengths and weaknesses, learning style, and develop a program that is tailored to target the skills needed to increase, and strategy to decrease maladaptive behaviors. (Tr. 283, 293). Further, the BCBA ensures that the home and school services are consistently implemented into the student’s overall program. It is a collaborative team approach that includes the parent as well. (Tr. 250-251).

Based upon the foregoing, the Student is entitled to an award for compensatory services to remediate his severe maladaptive behavior, such services will be provided as follows: 690 hours of compensatory ABA services (10 hours per week of home-based ABA), 92 hours of BCBA supervision (2 hours per week), and 46 hours of Parent Counseling and Training (PCAT) (1 hour per week).

INDEPENDENT EDUCATION EVALUATION

As per New York State Commissioner’s Regulations section 200.5(g)(1), if the parent disagrees with an evaluation obtained by the District, the parent has the right to obtain an independent educational evaluation at public expense. If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to requesting a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See, NYCRR 200.5(g)(1)(iv).

Here, the record is clear the Student was denied a FAPE for the school year at issue. The record further demonstrates the Parent requested an independent neuropsychological evaluation by Dr. [REDACTED] at the rate up to $7000.00; and independent evaluations for speech-language, occupational therapy, physical therapy at a rate up to $1450.00 for each, an assistive technology evaluation at a rate up to $1850.00, and an independent feeding therapy evaluation at a rate up to $2000.00. (Tr. August 3, 2023, 412; Ex. D). The DOE did not demonstrate by any evidence that the independent education evaluations are unreasonable and did not meet IDEA criteria.

Based upon the foregoing, the Parent is entitled to independent educational evaluations, an updated neuropsychological evaluation by Dr. [REDACTED], speech-language, occupational therapy, physical therapy, an assistive technology evaluation, a feeding therapy evaluation, all at rates referenced above. (Ex. D).

Based upon the foregoing findings of fact and conclusions of law herein, IT IS HEREBY ORDERED the following:

• The DOE failed to meet its burden of proof to demonstrate that the Student was provided a FAPE for the 2022-2023 school year. Thus, the Student was deprived a FAPE for the 2022-2023 school year;

• The Parent has met its burden and demonstrated that the unilateral placement of the Student in the Academy for the 2022-2023 school year was appropriate and provides an education instruction that is specifically designed to meet this Student’s unique needs;

• The equities favor the Parent. Upon the DOE’s receipt of the Academy’s invoice, supporting documents, and attendance records, the Student is entitled to the 12-month tuition at the Academy for the 2022-2023 school year, and the DOE is to directly fund the remaining balance for the Student’s tuition at the Academy for the sum of $34,658.13, minus any payments made through pendency (Ex. BB, CC, IHO III);

• As a compensatory award, the Student is entitled to an award for compensatory services to remediate his severe maladaptive behavior, such services will be provided as follows: 690 hours of compensatory ABA services (10 hours per week of home-based ABA), 92 hours of BCBA supervision (2 hours per week), and 46 hours of Parent Counseling and Training (PCAT) (1 hour per week).

• The Parent shall select such providers, upon the DOE’s receipt of such invoices for compensatory services, supporting documents, and the Student’s attendance records, the DOE will directly fund such services to be paid as follows: up to $150.00 per hour for ABA, up to $200 per hour for BCBA, and up to $200 per hour for PCAT (Tr. July 31, 2023, 308);

• Further, the Student is entitled to independent educational evaluations as follows: an updated neuropsychological evaluation by Dr. [REDACTED], and evaluations for speech-language, occupational therapy, physical therapy, an assistive technology evaluation, a feeding therapy evaluation; and

• Upon the DOE’s receipt of an invoice for each of the independent educational evaluations, with supporting documents of such evaluations, the DOE is to directly fund the updated neuropsychological evaluation by Dr. [REDACTED] at the rate up to $7000.00 (Ex. FF); and

• For the other independent evaluations by licensed providers selected by the Parent as follows: for speech-language, occupational therapy, and physical therapy at a rate up to $1450.00 for each; for an assistive technology evaluation at a rate up to $1850.00; and a feeding therapy evaluation at a rate up to $2000.00. (Tr. August 3, 2023, 412; Ex. D, EE).

DATED: DECEMBER 6, 2023

Impartial Hearing Officer-Ann Marquez

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.

District’s Exhibits: No exhibits

Parent’s Exhibits: P-A Demand for Due Process Hearing 07/11/22 16 P-B Findings of Facts & Decision – Case #185332 09/25/20 20 P-C Ten Day Notice 06/24/22 8 P-D Letter from Parent Disagreeing with Program and 06/07/22 5 and requesting several IEEs P-E Behavioral Intervention Plan 05/22/23 6 P-F Functional Behavioral Assessment 05/22/23 7 P-G Academic Annual Review Report 01/25/23 6 P-H Occupational Therapy Annual Review P-I Physical Therapy Annual Review 05/12/23 4 P-J Speech and Language Therapy Annual Review 05/14/23 3 P-K Progress Report 2022-2023 04/04/23 25 P-L Social/Emotional Annual Review 03/27/23 3 P-M Final Progress Report Towards Goals 2021-2022 August 2022 9 P-N Final Report Card 2021-2022 Undated 6 P-O Behavioral Intervention Plan 11/15/21 8 P-P Functional Behavioral Assessment 11/15/21 4 P-Q Social/Emotional Annual Review 11/15/21 2 P-R Academic Annual Review Report 11/03/21 6 P-S Occupational Therapy Annual Review 10/26/21 3 P-T Physical Therapy Annual Review 10/25/21 4 P-U Speech/Language Therapy Annual Review 10/21/21 3 P-V Autism Skills Assessment February 2020 7 P-W Neuropsychological Evaluation 11/01/19 30 P-X [REDACTED] Academy Brochure Undated 2 P-Y Class Schedule 2022-2023 Undated 1 P-Z Summer Class Schedule 2022 Undated 1 P-AA Attendance Record 04/26/23 1 P-BB Parental Guarantee of 2022-2023 Tuition 07/11/22 2 P-CC Affidavit of Finance 01/31/22 1 P-DD 1040 U.S. Income Tax Return 04/11/22 2 P-EE Resume of [REDACTED] Undated 3 P-FF Curriculum Vitae of Dr. [REDACTED] Undated 2 *Exh. H was withdrawn

IHO Exhibits I District’s Closing Brief November 30, 2023 8 II Parent’s Closing Brief November 30, 2023 32

III. Pendency Order October 12, 2022 4

Footnotes

[1] Exhibits shall be referred to as follows: “Alphabet Letters” for Parent Exhibit; “Numbers” for the District’s Exhibits; and “Roman Numerals” for the Impartial Hearing Officer’s exhibits.

[2] Reference to the Transcript shall be referred to as “Tr.”

[3] See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 58 (2005)

[4] Gagliardo, 489 F.3d at 115; C.B. v. Garden Grove Unified School Dist., 635 F. 3d 1155, 1159(9th Cir.).

[5] 34 C.F.R. 300.14 8©; See also Carter, 510 U.S. at 14.

[6] Bch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359-556; Forest Grove Sch. Dist. V. T.A. 557 U.S. 230; and A.C., 553 F.3d at 171 Therefore, the Parents have met the third of the three Burlington/Carter criteria for direct public funding and tuition reimbursement for the Student’s tuition for the school year at issue. Having met all three of the Burlington/Carter criteria, the Parents are entitled to tuition direct funding and tuition reimbursement for the Student’s 2022-2023 school year placement at the Academy.