New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 576559 - NYC: 229241

FINDINGS OF FACT AND DECISION - CORRECTED ^[1]

Case Number: 229241

Student’s Name: REDACTED (“Student”) ^[2]

Date of Birth: REDACTED

School District: NYC DOE Serv. Dist. #REDACTED (“DOE”)

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: 7/7/2022

Date(s) of Hearing: 9/9/2022; 10/4/2022; 10/27/2022 Actual Record Closed Date: 7/12/2023

Date of Decision: 7/13/2023

Time Sensitive: YES

Hearing Officer: William Yukstas

NAMES AND TITLES OF PERSONS WHO APPEARED ON 9/9/2022

For the Student:

REDACTED, Esq. (“Parent’s Attorney”)

For the Parents:

For the Department of Education:

REDACTED (“DOE’s Representative”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/4/2022

For the Student:

Parent’s Attorney

For the Parents:

For the Department of Education:

DOE’s Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/27/2022

For the Student:

Parent’s Attorney

For the Parents:

For the Department of Education:

DOE’s Representative

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”), the New York Education Law, and Section 504 of the Rehabilitation Act of 1973.^[3] This case concerns Student, a REDACTED year-old third grader who attends Public School. P-A-2.^[4] In Parent’s Due Process Complaint (“DPC”), Parent alleged that the Department of Education (“DOE”) failed to provide Student a Free Appropriate Public Education (“FAPE”) for the 2019-2020; 2020-2021, 2021-2022, and 2022-2023 school years. P-A.

Parent requests the following relief: (1) A declaratory finding that the DOE denied Student a FAPE for the school years at issue; (2) An amendment of Student’s Individualized Education Program (“IEP”) to require Student to attend either a State-approved Non-Public School (“NPS”), or an independent school designed for students with disabilities, which offers intensive 1:1 Applied Behavior Analysis (“ABA”) therapy during the school day; (3) An amendment of Student’s IEP to require that Student receive ten hours per week of 1:1 ABA instruction in the home outside of the school (4) Prospective tuition funding associated with Student’s placement at an NPS or independent school; (5) Funding for ten hours per week of 1:1 ABA instruction provided in this home outside of the school day under the direct supervision of a Board Certified Behavior Analyst (“BCBA”) for three hours per week, both by qualified independent providers of Parent’s choosing; (6) Funding for one hour per week of Parent Counseling and Training (“PCAT”) provided by a qualified independent provider of Parent’s choosing; (7) Funding for a Functional Behavior Assessment (“FBA”) and a Behavior Improvement Plan (“BIP”) by an independent BCBA of Parent’s choosing; (8) Funding for special transportation; (9) Compensatory services: 7,360 hours of 1:1 ABA instruction; 1,472 hours of BCBA supervision of the 1:1 ABA instruction; and, 184 hours of 1:1 speech-language therapy (“SLT”) all by independent providers of Parent’s choosing at various rates to be described further below. P-A-15,16; IHO-II.

As discussed below, I find that the DOE denied the Student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years. I further find that the DOE did not carry its burden with respect to the relief, and that the Parent’s requested relief is appropriate with modification.

PROCEDURAL HISTORY

The Parent filed this case on 7/7/2022. P-A-18. A prior IHO was appointed on 7/25/2023. A Pre-Hearing Conference was held on 8/19/2022. At the prior IHO’s suggestion, the parties agreed to hold a limited hearing for the purpose of determining whether certain claims were barred by the statute of limitations on 9/9/2022. IHO-III. At the hearing on the statute of limitations, the DOE presented two exhibits (D-1 and D-2) and did not call any witnesses. (9/9)Tr.5.^[5] Parent presented two exhibits and testimony from Parent via affidavit. (9/9)Tr.5; P-A; P-B; P-C. On 9/27/2023, the prior IHO issued an interim order ruling that “none of the claims in the instant DPC are barred by IDEA’s statute of limitations.” IHO-IV-4. I am following this decision. IHO-IV. I informed both parties that I intended to follow this decision, and the DOE did not object. IHO-V. The first day of the due process hearing was held on 10/4/2023. The DOE did not present any evidence; DOE did not call any witnesses or proffer any exhibits. (10/4)Tr.4-6. DOE Representative agreed that DOE was “waiving” its right to present a case. (10/4)Tr.4. DOE Representative later clarified that the DOE would not be presenting any evidence but would not concede. (10/4)Tr.5-6. Parent submitted exhibits D-O, which were accepted into the record without objection. (10/4)Tr.6. On 10/27/2023, the due process hearing was completed. Parent submitted three affidavits, which were accepted into evidence without objection. (10/27)Tr.9-12. The affidavits were from Parent’s BCBA/LBA, Clinical Psychologist, and Parent. P-P; P-Q; P-R. DOE did not cross-examine any of the witnesses. Both parties made brief arguments in support of their respective positions. DOE Representative essentially stated that Student received a FAPE and refused to identify what relief would be appropriate if the prior IHO determined that a compensatory award should issue. (10/27)Tr.12-13.

I was appointed on 6/22/2023. I held a status conference with the parties on 7/7/2023. At the status conference, I asked the parties to clarify for the record which exhibits had been accepted into the record and to indicate what services Student had received during the 2022-2023 school year. IHO-V. Parent emailed an updated compensatory request after our conference. IHO-II.

FINDINGS OF FACT

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. NY Educ. Law § 4404(1)I. Despite this, the DOE submitted no evidence to support a finding that it offered Student a FAPE. Further, DOE submitted no evidence to rebut the allegations in the DPC. Accordingly, I will assume that the allegations in the DPC are true and, further, find they are supported by the undisputed documentary and testimonial evidence.

Student is a REDACTED year-old third grader attending public school. P-A-2. Student is eligible for special education and related services as a student with autism. P-D; P-E; P-J; P-L. As this is a multiyear claim, I will start with a general description of Student and then proceed to describe Student’s IEP and academic profile for each school year at issue.

Student presents with “significant cognitive deficits as well as deficits in all areas of communication, attention, executive functioning, fine and gross motor skills, and adaptive skills. These deficits have, apparently, not been adequately addressed through appropriate instruction in the past and, as a result, [Student] has stagnated in these areas; he has failed to make meaningful progress since preschool.” P-P-2. This testimony, from Parent’s BCBA/LBA, is entirely consistent with the other evidence introduced at the hearing. A review of Student’s IEPs establishes that Student’s cognitive, academic, and adaptive functioning has remained mostly unchanged during the school years at issue. PD; P-E, P-J, P-L. While Student presents with significant deficits in numerous areas, the most significant, at least based on my review of the evidence presented at the hearing, appears to be Student’s language and communication skills. While Clinical Psychologist’s neuropsychological evaluation was conducted on 10/19/2021 and 1/11/2022 (P-B-1) it is consistent with the description of Student’s performance during each school year at issue based on my review of Student’s IEPs. In the neuropsychological evaluation, the Clinical Psychologist assessed Student’s receptive and expressive language abilities to be at a low adaptive level (functionally like the performance of a child less than one-year old). P-B-5.

2019-2020

During the 2019-2020 school year, Student attended kindergarten at Public School. P-A-5. DOE generated an IEP for Student on 4/8/2019 (with an implementation date of 9/5/2019). P-D. The 4/8/2019 IEP recommended the following services for Student: full-time special education class in a special education school with a 6:1+1 student to teacher ratio; Counseling, in a group of three, two thirty-minute sessions per week; Occupational Therapy (“OT”), 1:1, two thirty-minute sessions per week; PCAT, group, four forty-five-minute sessions per year; Physical Therapy (“PT”), 1:1, two thirty-minute sessions per week; SLT 1:1, two thirty-minute sessions per week; SLT, group of two, one thirty-minute session per week. P-D-15,16.

The 4/8/2019 IEP notes that Student “is non-verbal and presents with significant global delays. [Student] has extremely delayed expressive and receptive language skills. He does not communicate his wants and needs appropriately. [Student] requires assistance throughout the day to stay on task.” P-D-1. Student’s teacher noted, in the 4/8/2019 IEP, that “Student is not verbal … [and] does not follow verbal instructions. He is unable to express his needs through gesturing or facial expressions. He presents with a short attention span and high distractibility. [Student] is active and self-directed and engages in stereotypical behaviors such as throwing himself on the floor.” P-D-1. During the 4/8/2019 IEP, Parent informed the DOE that Student had been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). P-D-2. The 4/8/2019 IEP contains a lengthy list of management needs for Student including “small group or 1:1 instruction.” P-D-4.

Parent alleged that the 4/8/2019 IEP was substantively and procedurally deficient via Parent’s DPC. P-A-5 (the DPC refers to this IEP by the wrong date, but I accept this as a scrivener’s error). To summarize, parent alleged: (1) The 4/8/2019 IEP notes that Student’s pre-school teacher stated that Student required a 1:1 paraprofessional but the IEP does not provide for that service; (2) The 4/8/2019 IEP does not mandate positive behavior interventions and fails to include an FBA or BIP; (3) The 4/8/2019 IEP contains inappropriate goals; (4) The 4/8/2019 IEP does not provide enough SLT; (5) The 4/8/2019 IEP placement recommendation was pre-determined; (6) The 4/8/2019 IEP was created without sufficient evaluative information and that Student should have been offered ABA services and at-home services based on Student’s needs at the time; (7) Student engaged in REDACTED from the beginning of the 2019-2020 school year and the IEP was not properly amended or modified to help Student receive appropriate support;

As the DOE provided no response to any of these allegations at hearing, I credit them as true.

On 10/24/2019, DOE reconvened the IEP team and generated an updated IEP for Student. P-E. The 10/24/2019 IEP recommended the following services for Student: full-time special education class in a special education school with a 6:1+1 student to teacher ratio; Counseling, 1:1, one time for thirty-minutes each week; Counseling, in a group of two, two thirty-minute sessions per week; OT, 1:1, two thirty-minute sessions per week; PCAT, group, three thirty-minute sessions per year; PT, 1:1, two thirty-minute sessions per week. P-E-12,13. The 10/24/2019 IEP adds only one service, a full-time paraprofessional for transportation for Student. Parent’s DPC alleges that SLT was provided in the 10/24/2019 IEP (P-A-6), but it is not listed on the IEP that was entered into evidence (however a report from the Speech Pathologist is included in the IEP).

Before the 10/24/2019 IEP was generated, the DOE evaluated Student using the Assessment of Basic Language and Learning Skills. P-E-1. In the 10/24/2019 IEP, it is noted that Student “is able to verbalize some words and phrases, [but] he does not presently use language in a functional manner.” PE-1. Student had begun to communicate wants and needs to some extent through gestures. P-E-1. The 10/24/2019 notes that Student had demonstrated some success with a classroom communication device (though this is not provided as a service in the 10/24/2019 IEP) and Student is most successful with “discrete trial methodologies and instructional techniques.” P-E-1. Overall, the 10/24/2019 IEP shows that Student was, at that time, essentially non-verbal, struggling to adapt to classroom routines and new activities, and demonstrated limited academic ability (such as being able to rote count, occasionally name classmates with prompting, and follow some classroom routines with visual cues). P-E-2. During the 10/24/2019 IEP meeting, Parent requested that Student be more thoroughly evaluated, that Student receive support in being able to express wants and needs, and that more assistive communication technology be considered for Student. P-E-2.

Parent alleged that the 10/24/2019 IEP was substantively and procedurally deficient via Parent’s DPC. P-A-6. To summarize, Parent alleged: (1) The 10/24/2019 IEP notes that Student learns best with discrete trial methodologies but the IEP itself failed to mandate such instruction or ABA instruction; (2) The 10/24/2019 IEP fails to mandate positive behavior interventions and does not include an FBA or BIP; (3) The 10/24/2019 IEP does not provide enough SLT; (4) The 10/24/2019 IEP does not include any behavior or adaptive goals despite these being clear areas of need for Student; (5) The 10/24/2019 IEP placement recommendation was pre-determined; (6) The 10/24/2019 IEP was created without sufficient evaluative information and that Student should have been offered ABA services and at-home services based on Student’s needs at the time; P-A-6,7. Parent also alleged that the IEPs in place during the 2019-2020 school year were not properly implemented and that Student made no meaningful academic progress. P-A-7.

As the DOE provided no response to any of these allegations at hearing, I credit them as true.

2020-2021

During the 2020-2021 school year, Student attended first grade at Public School. P-A-7. DOE generated an IEP for Student on 11/30/2020. P-A-8. This IEP was not introduced into evidence by either party. Based on Parent’s DPC (P-A-8), the 11/30/2020 IEP recommended the following services for Student: full-time special education class in a special education school with a 6:1+1 student to teacher ratio; Counseling, 1:1, one time for thirty-minutes each week; Counseling, in a group of two, two thirty-minute sessions per week; OT, 1:1, two thirty-minute sessions per week; PCAT, group, two thirty-minute sessions per year; PT, 1:1, two thirty-minute sessions per week; SLT, 1:1, two thirty-minute sessions per week; and, SLT, in a group of two, one thirty-minute session per week. These are the same services as the 10/24/2019 IEP.

Parent alleged that the 11/30/2020 IEP was substantively and procedurally deficient via Parent’s DPC. P-A-6. To summarize, parent alleged: (1) The 11/30/2020 placement recommendation was improper because Student had not made meaningful educational progress in the 6:1+1 setting previously; (2) The 11/30/2020 IEP fails to include an FBA or BIP; (3) The 11/30/2020 IEP placement recommendation was pre-determined and not specific to Student’s needs; (4) The 11/30/2020 IEP failed to include functional behavior goals for Student; (5) The 11/30/2020 IEP failed to include sufficient evaluative data; (6) The 11/30/2020 IEP failed to provide enough SLT; (7) The 11/30/2020 IEP failed to provide at-home services.

As the DOE provided no response to any of these allegations at hearing, I credit them as true.

On 2/5/2021, DOE reconvened Student’s IEP team after conducting a psychoeducational assessment. P-A-9. The 2/5/2021 IEP recommended the following services for Student: full-time special education class in a special education school with a 6:1+1 student to teacher ratio; Adapted Physical Education, three times a week; Counseling, 1:1, one time for thirty-minutes each week; Counseling, in a group of two, two thirty-minute sessions per week; OT, 1:1, two thirty-minute sessions per week; PCAT, group, two thirty-minute sessions per year; PT, 1:1, two thirty-minute sessions per week; SLT, 1:1, two thirty-minute sessions per week; SLT, in a group of two, one thirty-minute session per week; full-time behavior support paraprofessional; and daily use of a dynamic display speech generating device (“SGD”). The 2/5/2021 IEP also contains brief reference to an FBA and BIP.

In the testing conducted prior to the 2/5/2021 IEP, DOE attempted to evaluate Student’s cognitive performance using the Test of Non-Verbal Intelligence, 4th Edition. P-I-2. DOE estimated that Student’s performance fell in the Very Low range but had to discontinue the testing due to Student’s lack of cooperation. P-J-2. At that point, Student’s “communication skills are [still] limited, as [Student] is an emergent speaker whose language, at times, seems unintelligible.” P-J-2. It is noted that Student’s performance was relatively stronger when asked to complete puzzles, count, read the alphabet, and write letters. P-J-2. Despite this, the 2/5/2021 IEP notes that Student’s previous IEP goals in reading, writing, math, and communication were all not met. ^[6]

Parent alleged that the 2/5/2021 IEP was substantively and procedurally invalid. In large part, Parent reiterated the same concerns Parent had noted previously – the classroom recommendation was not supportive enough for Student to make academic progress; the 2/5/2021 IEP failed to mandate ABA or discrete trial methodologies; the FBA and BIP was insufficient; the 2/5/2021 IEP was pre-determined; the goals were inadequate; there was not sufficient evaluative information; and the 2/5/2021 IEP failed to provide for home-based instruction.

As the DOE provided no response to any of these allegations at hearing, I credit them as true.

2021-2022

DOE held an IEP meeting for Student on 2/7/2022. P-A-11. Neither party introduced this IEP into evidence. At the time of the IEP meeting, Clinical Psychologist had completed his evaluation of Student, but had not prepared a report. P-A-11. Still, Clinical Psychologist participated in the IEP meeting and recommended Student’s placement be deferred to the Central Based Support Team (“CBST”) for placement at an NPS that offers intensive ABA. P-A-11.

Based on Parent’s DPC, the 2/7/2022 IEP recommended the same placement and services as the 2/5/2021 IEP. P-A-11. Parent alleged that the 2/7/2022 IEP was insufficient for the same reasons as the 2/5/2021 IEP and for the additional reason that the IEP team failed to consider the recommendations of Clinical Psychologist. P-A-11.

On 4/28/2022, the DOE reconvened an IEP team to reconsider Student’s IEP based on the evaluation from Clinical Psychologist. P-A-12. The 4/28/2022 IEP recommended the following services for Student: full-time special education class in a special education school with a 6:1+1 student to teacher ratio; Adapted Physical Education, three times a week; Counseling, 1:1, one time for thirty-minutes each week; Counseling, in a group of two, two thirty-minute sessions per week; OT, 1:1, two thirty-minute sessions per week; PCAT, group, two thirty-minute sessions per year; PT, 1:1, two thirty-minute sessions per week; SLT, 1:1, two thirty-minute sessions per week; SLT, in a group of two, one thirty-minute session per week; full-time behavior support paraprofessional; and daily use of a dynamic display speech generating device (“SGD”). P-L-27-29.

A classroom observation was conducted on 4/25/2022. P-K-1. During the classroom observation, Student required frequent, seemingly almost constant, redirection to engage in tasks; hand-on-hand support to use his visual schedule; frequent reminders to work on assigned tasks; guidance to use the first/then board; regular breaks between requested tasks (after selecting the correct word from a group of two with prompting a few times Student took a break to engage in preferred activity); and the use of numerous interventions and manipulatives. P-K-1. Student’s teachers noted that Student’s performance during the observation was typical. P-K-2. Overall, it was noted that Student “consistently requires adult support to complete activities as he is easily distracted and loses focus.” P-K-2. Student becomes frequently upset when asked to engage in non-preferred tasks and does not engage with peers. P-K-2.

In the 4/28/2022 IEP it is observed that Student’s “language functioning appears to be globally compromised.” P-L-2. Clinical Psychologist was unable to complete cognitive testing of Student due to Student’s language delays, even using the non-verbal protocol for the evaluation. P-L-2. Overall, the IEP notes, “[Student’s] language abilities are substantially and quantifiably below those expected for his age, resulting in functional limitations in effective communications and academic performance.” P-L-2. The 4/28/2022 IEP notes that Student was diagnosed with a Language Disorder and ADHD. P-L-2. The Clinical Psychologist’s neuropsychological evaluation was largely summarized in the 4/28/2022 IEP – “Student meets qualifications for an Autism Spectrum Disorder with Language Impairment, Requiring Substantial Support.” P-L-3. The 4/28/2022 IEP goes on to note, in agreement with the Clinical Psychologist, that Student exhibits “persistent deficits in social communication,” deficits in all communicative areas, “inflexible adherence to routines and shows distress at the slightest change,” inattention, and poor academic skills. P-L-3. It is noted in the 4/28/2022 IEP that Student is, for the most part, still working to achieve the same goals as listed in the prior IEPs. P-L-7-10. The 4/28/2022 IEP notes that Student is most engaged in a small group or 1:1 setting. P-L-11.

Parent alleged that the 4/28/2022 IEP suffered from the same defects as the 2/7/2022 IEP. P-A-12.

As the DOE provided no response to any of these allegations at hearing, I credit them as true.

2022-2023

As noted in Parent’s DPC, no additional IEP was developed for Student so the 4/28/2022 IEP remained in place for Student during the 2022-2023 school year.

Summary

Parent has attended all IEP meetings and been highly involved in Student’s education. P-A-14. Parent has requested more support for Student throughout the past four school years. Indeed, numerous requests from Parent are noted in the various IEPs generated for Student over the years; however, nothing that Parent has requested (more adaptive living goals, more use of assistive communication – all requests I deem appropriate considering the record) has been fully provided for by DOE.

As noted above, on 10/19/2021 and 1/11/2022 Student underwent neuropsychological testing by Clinical Psychologist who diagnosed Student with Autism Spectrum Disorder with Language Impairment, Requiring Substantial Support, Language Disorder, and ADHD, Combined Type. P-B-11. Clinical Psychologist recommended that Student be placed in a State-approved NPS. Clinical Psychologist testified that Student was never provided with an appropriate program by the DOE. P-Q-3. Clinical Psychologist testified that Student requires placement in a full-day, intensive behavior analytic program that follows ABA principles in a 1:1 setting for the entire school day in addition to at-home services. P-Q-3. Clinical Psychologist also testified that “[Student] clearly requires compensatory services in the form of both ABA therapy and related services to address the DOE’s failure to offer an appropriate special education program since preschool. As this is a critical time in [Student’s] development and it will likely take more instructional time to address the deficits he has developed than it would have taken had he received appropriate instruction and services during the school years in question, I believe [Student] requires, at an absolute minimum, services in an amount equal to the time that he should have received during the school years at issue had the DOE offered him an appropriate program.” P-Q-5,6.

Parent’s BCBA/LBA testified that, based on her review of Student’s IEPs, Student appears to have “failed to make meaningful social, emotional, academic, or communicative progress.” P-P-2. Further, Parent’s BCBA/LBA testified, “[Student’s] functional communication skills … do not appear to have advanced meaningfully since preschool and he continues to speak in 1-2-word utterances. [Student] has also failed to develop play skills or other tools for communicating and interacting with his peers…. Although [Student’s] academic goals have changed during these school years, it is not clear to me that this is the result of him achieving previously set goals. Indeed, it appears as though his ability to identify letters and numbers continues to be highly dependent on a significant amount of prompting from his teacher. [Student] unequivocally requires a robust and 1:1 ABA-intensive program both during school and at home in order to make meaningful progress.” P-P-3.

Given that this is a multiple year case, I am mindful of the need to not conflate certain reports and evaluations that occurred at a discrete time and to analyze each school year separately. Still, Student’s performance appears to have been more or less stagnant over the school years at issue. Also, the Clinical Psychologist and Parent’s BCBA/LBA were able to fully review Student’s IEPs from past school years in making their determinations.

I fully credit the testimony of Parent, Parent’s BCBA/LBA, and Clinical Psychologist. This is especially given that DOE did not proffer any exhibits, call any witnesses, or ask any questions to any of the witnesses. It is further true because the testimony of each of Parent’s witnesses is entirely consistent with the other witnesses as well as the documentary evidence introduced, including the IEPs prepared by the DOE.

CONCLUSIONS OF LAW AND ANALYSIS

This case concerns the DOE’s alleged failure to provide the Student with a FAPE for four school years. Parent’s allegations are described above for each respective school year.

The IDEA states that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A). To provide a Student with a FAPE, a school district must develop an IEP that consists of specialized instruction and related services designed to meet a student’s unique needs and must then implement the services in the IEP. 34 C.F.R. § 300.13. A school district offers a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA’s procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. Of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). Furthermore, A 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 Supreme Court has indicated that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” Endrew F, 137 S. Ct. at 999.

In IDEA due process hearings in New York, school districts have the burden of proof – including the burden of production and burden of persuasion – except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. NY Educ. Law § 4404(1)I; M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

As to whether the DOE provided Student a FAPE for the 2019-2020, 2020-2021, 2021-2022, or 2022-2023 school year, DOE failed to meet its burden at the hearing. According to the Supreme Court, “a reviewing court may fairly expect [public] authorities 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 Cty. Sch. Dist. RE-1, 580 U.S. 386, 404 (2017). Here, the DOE did not call any witnesses or present any exhibits to support its decisions. While the Parent – not the DOE – submitted four IEPs into evidence, the IEPs alone, without supporting testimony could not rebut the Parent’s allegations.

For example, Student’s 10/24/2019 IEP notes that Student learns best “with discrete trial methodologies and instructional techniques.” P-E-1. Clinical Psychologist testified the DOE failed to provide such instruction and that, in fact, Student needed 1:1 ABA therapy (discrete trial methodologies can be a part of ABA therapy) to make academic progress. The DOE did not offer any evidence to defend its placement and instructional choices or explain why Student does not need 1:1 ABA therapy to make progress.

The DOE similarly failed to rebut Parent’s allegations in numerous other areas. For example, in every IEP (except the 10/24/2019 IEP) DOE provided Student with one and a half hours of SLT each week. Clinical Psychologist testified that Student needed at least two and a half hours of SLT each week. P-Q-6. The DOE did not offer any explanation as to why Student would still be receiving a FAPE with fewer sessions.

As such, I must find that the DOE failed to offer the Student a FAPE for each school year at question.

Prospective Program

In the DPC, the Parent made two requests regarding revision to the IEP. First, Parent requested that I order the DOE to revise the Student’s IEP to recommend an NPS program that offers intensive 1:1 ABA therapy during the school day. P-A-15. Second, Parent requested that I order the DOE to revise the Student’s IEP to recommend ten hours of 1:1 ABA instruction at home per week under the direct supervision of a BCBA for three hours a week. P-A-15,16.

Recently, in Application of a Student with a Disability, Appeal No. 23-059, the SRO noted an IHO should only authorize a prospective placement in narrow circumstances. SRO 23-059 *16. However, in Appeal No. 23-059, the SRO did order a prospective placement because the school district had failed to implement ABA services for a student despite such services being recommended by several sources and despite being ordered to implement such services in a prior unappealed FOFD. SRO 23-059 *17. While this case does not involve a prior unappealed FOFD, I find that the facts and circumstances are similar. Specifically, in this case, Student has failed to make academic progress for four school years and the DOE has known or should have known that Student requires ABA instruction. Also, as in Appeal No. 23-059, the doe presented no evidence, so it is not clear that the DOE can provide ABA programming as required for this Student without a specific order. SRO 23-059 *17.

Further, the DOE did not meet its burden of demonstrating that Student can receive a FAPE without this type of program. The DOE did not cite to any evidence in the record that an NPS would be too restrictive for Student or to support the placement that Student has been offered for each of the past four years.

By contrast, the Parent presented clear information that Student requires an NPS that can provide intensive 1:1 ABA to progress. Clinical Psychologist testified that Student requires a “full-time ABA program.” P-Q-5. Clinical Psychologist testified that Student “has a very limited attention span and requires 1:1 instruction throughout the day.” P-Q-2. Clinical Psychologist noted that DOE’s own classroom observation of Student supported Clinical Psychologist’s conclusion that Student needs intensive 1:1 support as “[Student] required near constant individual instruction by both adults in the room and even then did not appear to understand what was being asked of him.” P-Q-2.

With respect to other revisions to Student’s program, including the request for home-based 1:1 ABA services, the IEP team should add such services to Student’s IEP. However, I am not going to order a specific number of hours and will leave that up to the determination of the IEP team, in consultation with Parent, considering Student’s schedule for the 2023-2024 school year.

FBA / BIP

Parent requested funding for an FBA to be conducted, and a corresponding BIP created, by an independent BCBA of Parent’s choosing at a reasonable market rate. P-A-16. Almost no reference to this request was made in the hearing transcript or in the testimonial affidavits. Parent, in her affidavit, stated that the 2/5/2021 IEP mandates positive behavioral interventions and references a BIP, but that the BIP was never provided to Parent. P-R-3. The 2/5/2021 IEP includes a section titled “Behavior Improvement Plan.” P-J-7. The plan includes five levels of intervention. P-J-7. There is no data included and the proposed interventions are largely the same for each level. P-J-7. The 4/28/2022 IEP also includes the same brief description of a BIP as the 2/5/2021 IEP. There is reference to a “BIP progress monitoring cycle” from 2/28/2022 to 3/14/2022, which suggested that Student displayed the replacement behavior 77 times, the duration of the problem ranged from 1 to 4 minutes, and the behaviors had lasted up to 8 minutes during the baseline. P-L-12,13.

An independent educational evaluation (“IEE”) is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 NYCRR § 200.1(z). The IDEA and State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). When a parent disagrees with a school district’s evaluation and requests an IEE at public expense, the school district “must, without unnecessary delay,” either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv) (emphasis added). However, in Trumbull, the Second Circuit, specifically ruled that an FBA is not an “evaluation” for the purposes of the IDEA. D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152 at 162.

Regardless, DOE failed to show why the FBA and BIP in the 2/5/2021 IEP was appropriate. And, given Student’s significant behavior challenges and that the last data collected is from over a year ago, the IEP team should undertake a new FBA and BIP. I am ordering the IEP team to reconvene and to conduct a new FBA and BIP. If the DOE does not complete an updated FBA and BIP within thirty (30) days of the reconvene meeting, then I am ordering the DOE to fund an FBA and BIP prepared by a qualified provider of Parent’s choosing at a reasonable market rate.

Compensatory Services

Parent further requested compensatory services to compensate Student for the denial of FAPE over the course of the four school years at issue. Clinical Psychologist testified that Student would need services for at least the duration of time as there was a denial of FAPE to place Student in the same position as he would have been had the services been provided given Student’s significant deficits and because Student is at a “critical” point in his development. P-Q-5,6. Following this, Parent requested 7,360 hours of 1:1 ABA instruction, 1,472 BCBA supervision, and 184 hours of 1:1 SLT.

The request for 7,360 hours of 1:1 ABA instruction Is based on Clinical Psychologist’s testimony that Student was denied a FAPE for four school years, that there are forty-six weeks in a twelve-month school year, and that Student should have received 1:1 ABA instruction for thirty hours per week in school and ten hours per week at home. 7 The request for 1,472 hours of BCBA supervision is derived from Clinical Psychologist’s testimony that a BCBA should observe one out of every 5 hours of ABA instruction. 8 DOE’s Representative did not question these calculations by cross-examining the Clinical Psychologist or introduce any evidence to the contrary.

Parent’s BCBA/LBA testified that the normal market rate for 1:1 ABA services is $250 per hour and for BCBA supervision is $300 per hour. P-P-4. As DOE’s Representative did not question these proposed rates or introduce any evidence to the contrary, I see no reason to deviate from these rates. See Application of a Student with a Disability, Appeal No. 23-080 (SRO 23-080) (“In the absence of any documentary or testimonial evidence to counter the parent’s requested rates, there was no basis for the IHO to reduce the provider’s rates to an amount unsupported by the hearing record.”).

The request for 184 hours of 1:1 SLT is based on Clinical Psychologist’s testimony that Student should have received an additional hour of 1:1 SLT every week for the last four school years. 9 The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” See Sch. Comm. Of Town of Burlington, Mass. V. Dept. of Educ. Of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. “When a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16. In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme, 790 F.3d at 454.

7 30 hours of school-based 1:1 ABA + 10 hours of home-based 1:1 ABA = 40 hours. 40 hours x^[46] weeks = 1,840 hours per year. 1,840 hours per year x 4 = 7,360. 8 7,360 / 5 = 1,472. 1,472 / 4 = 368 (per year). 9

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child’s education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 fn.2 (2d Cir. 2008). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme, 790 F.3d at 454. Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more – they must compensate,” and “hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program.’” Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 522, 525 (D.C. Cir. 2005) (emphasis in original). “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.” Reid, 401 F.3d at 522 (citations omitted). Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” Reid, 401 F.3d at 518; 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 have been in but for the violation of the Act”).

There are generally two approaches to fashioning a compensatory education award, viz, the “quantitative” approach followed in the Third Circuit. See, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996) (holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation), and the “qualitative” approach relied on by the 6th and D.C. Circuits. See, e.g., Reid, 401 F.3d at 518, 524 (requiring a flexible, fact-specific approach in which the award relies “on individual assessments” and is “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.”).

The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion,” so long as “the relief is [] appropriate in light of the purpose of the Act.” Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 (2d Cir. 2016); see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008) (noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated”, and awarding compensatory relief equal to the amount of time the student was deprived of services). In calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP] or encompass analogous educational services appropriate to the Student’s current’s needs;” however, the ultimate award “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Doe. V. East Lyme, 790 F.3d at 457) (internal citations omitted).

Under New York law, the DOE has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA. Education Law § 4404(1)I. It is “incumbent on the district to develop the hearing record to establish the appropriate amount of relief needed to remediate the district’s failure.” Application of the New York City Department of Education, Appeal No. 14-014 (SRO NY 2014). “It is not persuasive for the district to simply fault the parent’s request for relief without also explaining its own view of what type of compensatory education relief would be appropriate to remediate the district’s failure to provide the student with a FAPE.” Application of the New York City Department of Education, Appeal No. 14-014 (SRO NY 2014).

However, the Parent also has a responsibility to identify the specific remedy she is seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE. JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), (noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”); Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017) (holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”) (internal quotes and citation omitted).

At hearing, the Parent introduced testimony from the Clinical Psychologist and Parent’s BCBA/LBA to support her request for compensatory services in each area. P-P; P-Q.

The DOE presented no evidence on this issue. Instead, DOE’s Representative briefly argued that Student had been offered a FAPE, that there was no evidence that ABA would assist Student, that the DOE had added a behavior paraprofessional to Student’s IEP, and that Student had access to a communication device. (10/27)Tr.13-14. As noted above, the DOE failed to offer any evidence to support its contention that Student was offered a FAPE. Indeed, DOE’s own IEPs establish that Student maintained substantially similar IEP goals for multiple school years and that Student failed to accomplish these goals. While the DOE did add additional services, such as the behavior paraprofessional and the communications device to Student’s IEP, the DOE failed to show why these additional services provided Student with a FAPE or how they might compensate for prior failures to provide a FAPE. Further, there is no evidence regarding how these services, while they may have benefitted Student, did in fact benefit Student or why the provision of them would diminish an appropriate compensatory award. Accordingly, I cannot credit these arguments from DOE’s Representative.

I find that Parent identified a specific remedy to place Student into the place where he should have been but for the denial of FAPE. I find that the DOE failed to suggest any relieve or to suggest why Parent’s proposed relief was improper.

ABA / BCBA

The Parent requested 7,360 hours of 1:1 ABA instruction as compensatory services. Parent requested 1,472 hours of BCBA supervision of the 1:1 ABA instruction based on Clinical Psychologist’s statement that one out of every five hours of 1:1 ABA instruction should be supervised by a BCBA. There was copious information in the record about Student’s current deficits and the need for remediation. The DOE did not present any information or elicit any testimony that Student could be returned to the position he would have occupied but for the denial of FAPE with fewer hours of 1:1 ABA instruction and BCBA supervision. NY Educ. Law § 4404(1)I. As such, I find the record supports this number of hours with the reduction noted below.

I am ordering that Student’s IEP be amended to place Student into an NPS offering intensive 1:1 ABA instruction with the understanding that Student will be in this placement during, at least, the 2023-2024 school year. Because of this, I am reducing the award by the amount of service that Student should receive during next school year at the NPS. In Application of a Student with a Disability, Appeal No. 23-059, the SRO “ordered that the student must be placed in a State approved nonpublic school that provides ABA for the remainder of the 2022-2023 school year as well as the entire 2023-2024 school year, and such a prospective placement is akin to, and may obviate the need for, compensatory education in the future,” which led to the SRO finding that additional compensatory education beyond the prospective placement was unnecessary. SRO 23-059 *22 (citing Demarcus L. v. Bd of Educ. Of the City of Chicago, 2014 WL 948883 at *8 [N.D. Ill, Mar. 11, 2014]). However, in Appeal 23-059, the student had received the bulk of services Parent was seeking through pendency and a compensatory pendency award. SRO 23-

059 *21. That is not the case here and because of that I am not further reducing the compensatory award.

Clinical Psychologist presented the only evidence regarding what an appropriate compensatory award would consist of for Student. Essentially, Clinical Psychologist suggested that under either a quantitative or qualitative analysis, Student requires the same number of compensatory services – hour for hour – as what Student should have received during the last four school years. Given the lack of evidence to the contrary, and that I fully credit Clinical Psychologist’s testimony, I will follow this recommendation.

I am ordering that DOE fund a bank of 5,520 hours of 1:1 ABA services for Student to be provided by a qualified independent provider of Parent’s choosing at a rate to not exceed $250 per hour. I am further ordering that DOE fund a bank of 1,104 hours of BCBA supervision for the 1:1 ABA services for Student to be provided by a qualified independent provider of Parent’s choosing at a rate not to exceed $300 per hour. These services may be provided as push-in services at school or at home.

Until such time as Student is enrolled in a NPS offering intensive 1:1 ABA instruction, DOE shall fund 1:1 push-in ABA services for thirty (30) hours per week to be provided by a qualified provider of Parent’s choosing at a rate not to exceed $250 per hour and ten (10) hours per week of at-home 1:1 ABA services to be provided by a qualified provider of Parent’s choosing at a rate not to exceed $250 per hour. Any services provided while Student is awaiting placement shall not count against the bank of 5,520 hours of ABA or 1,104 hours of BCBA supervision. I will order a cap of 1,840 hours of 1:1 ABA and 368 hours of BCBA supervision (the equivalent of one school year) for awaiting placement services.

SLT

The Parent requested 184 hours of compensatory speech-language therapy services. IHO-II. The record clearly indicated that Student needs SLT to access his education. According to Clinical Psychologist, Student should have received at least one additional hour of SLT every week for the past four years. Clinical Psychologist presented the only evidence regarding what an appropriate compensatory award would consist of for Student. Essentially, Clinical Psychologist suggested that under either a quantitative or qualitative analysis, Student requires the same number of compensatory services – hour for hour – as what Student should have received during the last four school years. Given the lack of evidence to the contrary, and that I fully credit Clinical Psychologist’s testimony, I will follow this recommendation. I order DOE to fund 184 hours of 1:1 SLT by a qualified provider of Parent’s choosing at a reasonable market rate.

Expiration of Bank of Services

Parent requested that the bank of compensatory services not have an expiration date. Given that I am ordering Student to receive a more supportive placement next year and many hours of compensatory services, I am not inclined to grant Parent’s request. In Application of a Student with a Disability, Appeal No. 23-080, the SRO recently ruled an award designed to make a student whole for a FAPE denial of one year should expire after two years and “should not exist into perpetuity.” SRO 23-080 *15(fn.10). With this guidance, I am ordering that the bank of services shall expire after six years.

For the reasons explained above, I find that the record supports the Parent’s request for the compensatory services, and I order the services as outlined below.

ORDER

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

1. Within 30 days of the date of this Order, the DOE shall reconvene an IEP meeting and revise the Student’s IEP to include the following:

a. A state-approved Non-Public School Day program or independent school which offers intensive 1:1 ABA therapy;

b. Transportation to and from the Non-Public School or independent school;

c. Home-based 1:1 ABA therapy with BCBA supervision, with the number of hours to be determined by the IEP team;

d. A new Functional Behavior Assessment and corresponding Behavior Improvement Plan;

e. Parent shall be authorized to obtain an independent FBA and BIP by a qualified provider at a reasonable market rate if the DOE does not complete the FBA and BIP within thirty (30) days of the IEP reconvene.

2. Until such time as Student is enrolled in a program described in 1(a) above, the DOE shall fund:

a. 1:1 push-in ABA services for thirty (30) hours per week to be provided by a qualified provider of Parent’s choosing at a rate not to exceed $250 per hour;

b. Six (6) hours per week of BCBA supervision of the 1:1 push-in ABA services to be provided by a qualified provider of Parent’s choosing at a rate not to exceed $300 per hour;

c. An additional ten (10) hours per week of 1:1 ABA services to be provided at home, or another location of Parent’s choosing, by a qualified provider of Parent’s choosing at a rate not to exceed $250 per hour;

d. An additional two (2) hours per week of BCBA supervision of the 1:1 ABA services at home, or another location of Parent’s choosing, by a qualified provider of Parent’s choosing at a rate not to exceed $300 per hour.

e. Student shall not receive more than 1,840 hours of 1:1 ABA services and 368 hours of BCBA supervision while awaiting placement under this section.

3. The DOE shall fund Student with a bank of 5,520 hours of 1:1 ABA services by a qualified provider of Parent’s choosing. The provider shall be paid up to $250 per hour. These services can take place at school, at home, or at a location of Parent’s choosing. The services shall expire on 8/1/2029.

4. The DOE shall fund Student with a bank of 1,104 hours of BCBA supervision of the 1:1 ABA services by a qualified provider of Parent’s choosing. The provider shall be paid up to $300 per hour. These services can take place at school, at home, or at a location of Parent’s choosing. The services shall expire on 8/1/2029

5. The DOE shall fund the Student with a bank of 184 hours of compensatory Speech-Language therapy to be provided by a licensed speech-language therapist of the Parent’s choosing. The provider shall be paid at a reasonable market rate. The services shall expire on 8/1/2029.

6. The DOE shall pay the provider(s) for the services in 2, 4-6, above, upon receipt of both:

a. Session notes for each session indicating the specific provider’s name, date of service, start and end time of each session, a paragraph describing the skills taught to Student during each session, and measurable data/information regarding Student’s progress during the session.

b. An invoice for the services provided and accompanying sworn affidavit attesting that the services billed for were provided.

7. If the Parent requests assistance finding a provider to provide the above services at any time, the DOE must locate 3 providers who are ready, willing, and able to begin providing the services to Student, according to the terms of this order. If the Parent presents a good faith basis for rejecting the 3 providers, the DOE must locate 2 additional providers from which the Parent may choose.

The DOE shall not be required to identify more than 5 providers in any given 6-month period.

Nothing stated here prevents the Parent from locating and utilizing a provider of the Parent’s own choosing.

SO ORDERED.

DATED: 7/13/2023

/s/ William Yukstas_____

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.

APPENDIX A – REDACTION IDENTIFICATION PAGE

REDACTED

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Processed Impartial Hearing Request with Cover Letter 7/7/2022 14 pages

B. Confidential Neuropsychological Assessment 1/11/2022 15 pages

C. Affidavit of Testimony of Parent (statute of limitations) Undated 2 pages

D. IEP 4/8/2019 22 pages

E. IEP 10/24/2019 18 pages

F. Progress Report 6/15/2020 7 pages

G. Psychosocial Evaluation 3/11/2020 3 pages

H. Psychological Evaluation 9/15/2020 5 pages

I. Classroom Observation 11/16/2020 1 page

J. IEP 2/5/2021 23 pages

K. Classroom Observation 11/16/2020 1 page

L. IEP 4/28/2022 38 pages

M. Progress Report 5/6/2022 2 pages

N. CV of Clinical Psychologist Undated 2 pages

O. CV of Parent’s BCBA/LBA Undated 2 pages

P. Affidavit of Testimony of Parent’s BCBA/LBA 2/20/2022 3 pages

Q. Affidavit of Testimony of Clinical Psychologist 10/19/2022 7 pages

DOE EXHIBITS

1. Final Notice of Recommendation 3/7/2018 1 page DOE

2. Letter from Attorney Requesting Evaluation 7/7/2020 2 pages DOE

IHO EXHIBITS

I. DOE Representative’s Email to IHO with DOE Exhibits 7/7/2023 1 page

PARENT

II. Attorney’s Email to IHO with Updated Request 7/10/2023 2 pages

III. PHC Transcript 8/19/2023 13 pages

IV. Interim Order on Statute of Limitations 9/27/2022 4 pages

V. Status Conference Transcript 7/7/2023 14 pages

Footnotes

[1] Corrections below are set off from original text in bold and italics.

[2] Generic titles will be used throughout this decision. All personally identifying information will be redacted prior to public distribution.

[3] Parent did not pursue claims under § 504 at the due process hearing. Accordingly, I am not considering those claims herein.

[4] Exhibits will be cited as follows: “P” for Parent, “D” for District, or “IHO” for IHO followed by the exhibit letter or number and page number. A complete list of exhibits is included as Appendix B.

[5] Citation to the transcript will be indicated as (Date)Tr. Page(lines) throughout. The transcript pagination starts over on each date.

[6] There is a discrepancy in the date of the prior IEP. The DPC refers to an IEP from November, while the 2/5/2021 IEP refers to a prior IEP from October. In any case, the goals alluded to are substantially like those in P-E, which is from October 2019.

[46] x 4 = 184.