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Special Education Law
DECISIONParent PrevailedIHO Case No. 228946

New York City Department of Education, Impartial Hearing Decision

November 3, 2022·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: 576240 - NYC: 228946

FINDINGS OF FACT AND DECISION

Case Number: 228946

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 8, 2022

September 12, 2022

September 22, 2022

Actual Record Closed Date: October 21, 2022

Date of Decision: November 3, 2022

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 8, 2022

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON September 12, 2022

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED REDACTED, Parent

REDACTED REDACTED, ABA Supervisor, REDACTED

For the Department of Education:

REDACTED REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON September 22, 2022

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Occupational Therapist, REDACTED

For the Department of Education:

REDACTED REDACTED, District Representative

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by the New York City Department of Education to hear this matter after the appointment of another hearing officer was rescinded. Parent seeks funding for a program of school and home-based Applied Behavior Analysis (“ABA”), related services, assistive technology and transportation. Ex. A.

I conducted a prehearing conference on August 8, 2022. Parent’s counsel appeared. The Department did not appear. I continued the case to September 12, 2022. Parent’s counsel appeared with REDACTED’s mother and a witness, and REDACTED REDACTED, District Representative, appeared on behalf of the Department, and the hearing on the merits commenced. The Department Representative stated that the Department did not plan to make an opening statement, to present the testimony of witnesses, or to offer documents in evidence and rested the Department’s case. Tr. 18. Parent’s Exhibits A through P were admitted in evidence.[2] Parent’s counsel presented an opening statement on REDACTED’s parents behalf, and REDACTED’s ABA program supervisor testified.

On September 28, 2022, Parent presented witnesses, I admitted Parent’s Exhibits Q and R in evidence, and the hearing concluded. The Department did not rebut the testimony of any of the witnesses who testified on behalf of the Parent. At the conclusion of the hearing, Parent’s counsel requested leave to file a written closing statement, permission was granted, and the written closing statement was submitted. IHO Ex. I. The Department waived its right to make a closing statement, either on the record or in writing. Tr. 116.

The parties requested extensions of the compliance date, and written Orders of Extension were issued on August 8 and September 22, 2022. The reasons for granting the extensions are set forth in the Orders.

The record was closed on October 21, 2022.

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.

ISSUES

Parent requests the provision of: (a) a full-time one-to-one ABA therapist for REDACTED at school; (b) 30 hours per week of home-based one-to-one ABA; (c) two hours per week of BCBA supervision; (d) two hours per week of parent training; (e) team meetings two times per month for one hour; (f) speech therapy, three 30-minute sessions per week, individually, and two 30-minute session per week in a group; (g) occupational therapy, five 60-minute sessions per week, individually; (h) physical therapy, two 30-minute sessions per week; (i) AT services; (j) a 12-month school year; and (k) special education transportation with limited time travel. Parent also seeks compensatory services for any services not provided under pendency and reimbursement for any transportation Parent provided. Ex. A at 17-18.

At the hearing, the Department did not defend its IEP or proposed placement, 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?
  • • Do equitable factors favor REDACTED’s mother?

FINDINGS OF FACT

  • • REDACTED is a now REDACTED year-old boy whose disability is classified, for the purposes of the IDEA, as autism. Ex. A at 1.
  • • For the 2022-2023 school year, REDACTED attends an 8:1:1 class at REDACTED, a REDACTED 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 and occupational therapy. Ex. R at ⁋⁋ 3-5.
  • • REDACTED has been diagnosed with an REDACTED and presents with expressive and receptive communication, social, cognitive, academic, and leisure skill deficits as well as sensory modulation challenges and difficulties with activities of daily living; he also demonstrates intensive and, at times, severe behaviors, including head banging, eloping, screaming, and aggression (including biting, kicking and hitting) and property destruction. Tr. 41, 57, 97, 100; Exs. F at 2, 5-8, 12-13, H at 5-7, Q at ⁋⁋ 22-27, 36.
  • • REDACTED’s behaviors interfere with and negatively impact his learning and ability to function in a group setting; he requires specific and intensive one-to-one behavioral interventions. Exs. I, M, N, O, Q, R.
  • • Until recently, REDACTED was nonverbal; he now is communicating through verbal approximations and continues to utilize an AAC device. Tr. 55.
  • • REDACTED was evaluated as a very young child, diagnosed with an autism spectrum disorder and received ABA and related services through the Early Intervention program. Ex F at 1-2.
  • • The Department’s CPSE placed REDACTED in a 6:1:2 class in a center-based preschool that provided ABA programming and related services. Tr. 42-43; Ex. F at 2.
  • • For first grade, the Department placed REDACTED in a 6:1:1 special education class in a REDACTED special education school. The Department did not provide any ABA services for REDACTED, and his behavior deteriorated. Tr. 43-44.
  • • REDACTED’s mother obtained one-to-one ABA therapy for REDACTED, for both in school and at home, through the impartial hearing process. Tr. 45.
  • • Once REDACTED started to receive one-to-one ABA in the school and home settings, his mother saw improvements in his behavior. Tr. 46.
  • • As REDACTED proceeded through the elementary school grades to the current 2022-2023 school year, school personnel at REDACTED’s public school settings have stated that the ABA therapists were “great” support for REDACTED and that REDACTED was making academic and behavioral progress; Department personnel have not, however, offered Department-provided ABA support for REDACTED. Tr. 48.
  • • REDACTED’s ABA is provided by an agency, REDACTED. The agency provides full-time one-to-one ABA support in school and 20 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 mother, two hours per week of ABA supervision, and two hours per month of family team meetings. Tr. 66-67, 75-76; Ex. Q at ⁋ 28.
  • • The ABA supervisor at REDACTED is New York State certified special and general education teacher and a Board Certified Behavior Analyst (“BCBA”) and New York State Licensed Behavior Analyst (“LBA”). Ex. Q at ⁋⁋ 3-5.
  • • ABA is a methodology that relates to understanding and analyzing behavior utilizing “research-based strategies to make social significant modifications in an individual’s behaviors” and is “widely used and prescribed for individuals diagnosed with Autism.” Ex. Q at ⁋⁋ 6-7; see also Ex. Q at ⁋⁋ 8-9.
  • • The ABA supervisor supervised the ABA therapists working with REDACTED, communicated with and provided parent training to REDACTED’s mother, set up the ABA goals and teaching programs, and updated those goals and programs, developed behavioral strategies and interventions, and communicated with his school. Ex. Q at ⁋⁋ 13-15, 55-57.
  • • The ABA supervisor also conducted an in-depth functional behavioral assessment (“FBA”) of REDACTED and developed a detailed behavior intervention plan (“BIP”) for him. Tr. 57; Exs. N, O, Q at ⁋⁋ 37-38.
  • • The ABA therapists who work with REDACTED implement the strategies set forth in the BIP to try to prevent his negative behaviors and then address them when they do occur. Tr. 57, 74.
  • • Such strategies include a predictable schedule, programmed breaks, sensory activities, positive reinforcement, differential reinforcement, planned ignoring, teaching alternative behaviors, and teaching REDACTED rule-governed behavior, such as “keep your hands to yourself.” Tr. 57-58.
  • • The ABA supervisor developed ABA goals for REDACTED in the areas of basic academics/cognitive functioning, communication, social/emotional functioning, motor skills, self-help skills and adaptive functioning, and community skills. Exs. I, J.
  • • REDACTED made steady progress on his 2021-2022 school year ABA goals. Exs. I at 2-20, Q at ⁋⁋.29-30.
  • • The ABA goals were updated and modified for the 2022-2023 school year. Exs. J, Q at ⁋⁋ 43-46.
  • • At school, the ABA therapists support REDACTED in the classroom, provide him with a predictable schedule, assist him in participating in classroom instruction, implement the BIP, and, during any “downtime,” keep him engaged by working with him on his goals. Tr. 57-59; Ex. Q at ⁋⁋ 31, 46.
  • • REDACTED has transitioned from a 6:1:1 class; this is his first year in an 8:1:1 class. In this setting, he has more opportunities to work on his social skills. This transition would not have been possible without the support of the ABA therapists. Tr. 49-50, 60-61.
  • • So far this school year, REDACTED has been making progress on his goals: he has started to use phrases such as “excuse me” and make spontaneous comments, and he is answering comprehension questions, sequencing, formulating sentences, using adjectives and adverbs, following instructions, and learning and speaking words clearly. His negative behaviors have decreased “in frequency and magnitude.” He is also making progress in math skills, including counting coins and doing double digit addition. Tr. 60; Exs. M, Q at ⁋⁋ 32-35, 61.
  • • REDACTED also uses an AAC device to communicate. The device is an iPad with Proloquo2Go speech software. Tr. 70-71; Ex. G at 1, 9 (list of AT supports).
  • • REDACTED’s home ABA program is in place because (a) there is not sufficient time in the school day to work with REDACTED on all his academic-related and communication-related goals and (b) to have the opportunity to work on goals that are not addressed in the classroom, such as certain motor skills goals, social skills play-related goals, and ADL goals such as following a recipe, toileting, brushing teeth and showering as well as community goals, such as crossing the street, going to and shopping and using money at a store, and understanding street and other signs. Tr. 62-63;. Ex. Q at ⁋⁋ 47-52, 66-67.
  • • Elopement and community safety remain issues for REDACTED, so practicing safe walking on a sidewalk is important and is worked on with the ABA therapists, REDACTED and his mother. Tr. 63; Ex. Q at ⁋ 61.
  • • Over the past school year, through home-based ABA, REDACTED has decreased his negative behaviors and improved his ADL skills, including showering, brushing his teeth, toileting, folding laundry, making purchases at stores, walking on the sidewalk, and following directions. Tr. 50-51; Exs. M, Ex. Q at ⁋ 61.
  • • The ABA supervisor and the ABA RBT recommended that REDACTED needed to continue with the ABA therapy hours, in school and at home, in order to continue to make necessary progress in academics, communication, social skills and behavior. Exs. M at 17, Q at ⁋ 68.
  • • The ABA supervisor opined that REDACTED “cannot make appropriate progress in his current classroom setting without the 1:1 ABA individualized instruction provided by” the ABA therapist, that REDACTED’s classroom teacher “would not be able to provide enough individualized support to REDACTED,” and that the ABA therapist’s individualized instruction of REDACTED allows him to “make meaningful progress across all domains while implementing his BIP to decrease frequency and magnitude of behaviors.” Ex. Q at ⁋⁋ 62-63, 65, see also ⁋⁋ 69-70.
  • • According to REDACTED’s mother, REDACTED “no longer bangs his head into the wall to the point where he leaves holes” and “does not frequently have instances where he engages in behaviors (e.g., crying, hitting, stomping, biting, scratching, pulling hair etc.) for extended periods of time before calming down (e.g., over half an hour).... Now, when REDACTED does engage in behavior, it takes a few minutes to redirect him with a strategy.” Ex. R at ⁋ 13.
  • • REDACTED’s mother needs the parent training that the ABA supervision provides in order to understand, and learn how to address at home, REDACTED’s interfering behaviors and work with him on communication and play skills. Exs. Q at ⁋ 57, R at ⁋ 8.
  • • REDACTED also provides REDACTED with speech therapy and occupational therapy. Tr. 64.
  • • The speech and occupational therapists, who collaborate with the ABA therapists by attending team meetings, phone calls, session visits and check-ins, including with respect to addressing his negative behaviors in related services sessions. Tr. 64-65.
  • • The occupational therapist is licensed, and she provides four hours per week of home-based one-to-one OT to REDACTED. Tr. 96-97, 101, 104. She planned to provide five hours per week as of October 2022. Tr. 105.
  • • REDACTED demonstrates sensory modulation difficulties which cause him to engage in maladaptive behaviors. Tr. 97. He also has low frustration tolerance, very limited attention, is impulsive and easily loses focus. Tr. 97. In addition, he has low muscle tone and poor fine motor and visual motor skills. Tr. 97-98.
  • • The occupational therapist developed OT goals for REDACTED based upon his above-described needs. Tr. 108-109; Exs. K, L.
  • • The occupational therapist addresses REDACTED’s above-described needs (and implements his OT goals) during her occupational therapy sessions. She addresses his sensory needs through movement and other sensory inputs. Tr. 98-100, 108-109, 111.
  • • The ABA supervisor has assisted the occupational therapist in addressing REDACTED’s interfering behaviors such that he is available to learn during the OT therapy sessions. Tr. 101-102.
  • • REDACTED has made progress on his OT this year: his outbursts and impulsive behaviors are less extreme, he is more receptive to following directions during OT sessions, and he made some improvements in muscle tone. Tr. 112-113; Ex. L.
  • • The occupational therapist opined that REDACTED needs five hours per week of sensory-based OT in order address his sensory and self-regulation needs. The OT that REDACTED receives in school (two 30-minute sessions per week) is insufficient to meet his needs because it involves mainly table-top activities that require him to sit and is not sensory-based and does not address his needs. Tr. 105-106, 114.
  • • The occupational therapist recommended that REDACTED continue to receive five hours per week of home-based OT. Tr. 113.
  • • The REDACTED speech therapist had provided REDACTED with speech therapy but has left the agency. The agency is looking for another speech therapist to work with REDACTED. Ex. Q at ⁋ 72.
  • • REDACTED charges the following hourly rates for the services it provides to REDACTED: school and home ABA, parent training and team meetings - $150.00; ABA supervision provided by a BCBA - $ 175.00; occupational therapy - $ 200.00; and speech therapy - $ 150.00.REDACTED’s mother is obligated to pay REDACTED for the services that it provides to REDACTED. Ex. P.

CONCLUSIONS OF LAW

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 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).

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 mother or her 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.

REDACTED’s mother bears the burden of proof concerning the appropriateness of the ABA services and related services that she 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 mother 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 services of parent training and occupational and speech therapies, 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 at home 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 occupational therapy of an intensity that is not offered in a school building and that, in any event, would remove him from too much from classroom instruction and social skill building opportunities if delivered in school. The occupational therapy provided by REDACTED after school meets REDACTED’s intensive sensory and motor needs. See paragraphs 15 – 19, 21 – 23, 26 – 27 and 32 - 39, above.

REDACTED has made progress, to date, during the 2022-2023 school year. See paragraphs 24, 28 – 31, and 40-41, above. With ABA (and its associated ABA supervision, team meetings and parent training) and occupational therapy, REDACTED has made progress across the range of his significant and varied autism-related challenges, clearly demonstrating that the total ABA school/home program with occupational therapy 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, 10 – 11, 22 – 24, 26, and 29 – 30, 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).

As to speech therapy, REDACTED needs speech therapy, especially now as he is learning to develop spoken language.

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 with occupational therapy and speech therapy is appropriate for REDACTED for the 2022-2023 12-month school year. As a result, REDACTED’s parent prevails with respect to the second Burlington/Carter criterion.

With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parent’s claims, the evidence establishes that REDACTED’s mother has cooperated with the Department by placing REDACTED in public schools and communicating with school personnel. The record does not indicate that REDACTED’s mother, in any way, impeded the Department’s provision of education and services to REDACTED—in fact, she 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).

REDACTED’s mother seeks an increase in home-based ABA hours. Since the record demonstrates that REDACTED is making meaningful and steady progress across all domains with his current level of services, there is no basis to increase the number of hours of home-based ABA hours.

Furthermore, REDACTED’s mother has an obligation to pay REDACTED for the services provided to REDACTED. See paragraph 44 above. 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 mother. As a result, REDACTED’s mother 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:

The Department of Education shall fund for REDACTED the following education and services for the 2022-2023 12-month school year:

  • • The following services provided by REDACTED, or a comparable provider chosen by REDACTED’s parent, at the current rates charged by REDACTED reflected in Exhibit P:
  • • a full-time one-to-one ABA therapist for REDACTED at school;
  • • 20 hours per week of home-based one-to-one ABA;
  • • two hours per week of BCBA supervision;
  • • two hours per week of parent training;
  • • team meetings two times per month for one hour per meeting;
  • • speech therapy, three 30-minute sessions per week; and
  • • occupational therapy, five 60-minute sessions per week;
  • • The Department shall also continue to provide REDACTED with:
  • • an iPad with Proloquo2Go speech software, associated accessories, and other software, applications and accounts; and
  • • special education transportation with limited time travel.

SO ORDERED.

DATED: November 3, 2022

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

PARENT’S EXHIBITS

Exhibit

Description

Date

Pages

A Impartial Hearing Request 07/06/2022 21

B FOFD in Case # 174364 02/11/2019 17

C FOFD in Case # 184627 04/16/2020 19

D FOFD in Case # 196193 05/07/2021 10

E FOFD in Case # 210147 05/04/2022 19

F Neuropsychological Evaluation by REDACTED, PsyD 02/15/2019 18

G Assistive Technology Evaluation by REDACTED, M.S., CCC-SLP 02/07/2019 11

H REDACTED Occupational Therapy Evaluation 03/11/2019 8

I REDACTED ABA Progress Report June 2022 06/30/2022 20

J REDACTED ABA Goals Undated 1

K REDACTED Occupational Therapy Goals Undated 1

L REDACTED Occupational Therapy Progress Report 08/15/2022 4

M REDACTED ABA Progress Report August 2022 08/15/2022 18

N Functional Behavior Assessment 10/01/2020 15

O Behavior Intervention Plan 10/1/2020 7

P REDACTED Parent Contract 9/6/2022 1

Q BCBA Affidavit 9/12/2022 15

R Parent Affidavit 9/12/2022 5 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.” For the purposes of understanding REDACTED’s educational history, Parent offered, and I admitted as background and historical information, prior Hearing Officers’ decisions pertaining to REDACTED. Tr. 23-24; Exs. B, C, D, E.