New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 583183 - NYC: 234911

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST - “PENDENCY” & MERITS

Case Number: 234911

NYS Identifier Number N/A

Student’s Name: REDACTED

Date of Birth: [“Confidential”]

District: REDACTED

Hearing Requested By: Parent

Dates(s) of Hearing: 01/23/23

Actual Record Close Date: 02/13/23

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] DOE Representative DOE 01/23/23 (V)

[CONFIDENTIAL] Attorney PARENT 01/23/23 (V)

[CONFIDENTIAL] BCBA PARENT 01/23/23 (V)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

N/A N/A N/A DOE N/A

PARENT’S EXHIBITS

A Impartial Hearing Request 09/07/2022 17

B Individualized Education Program June 2020 06/15/2020 28

C Individualized Education Program November 2021 11/29/2021 26

D [NAME] Description of Services Undated 3

E [NAME] ABA Provider/Parent Service Agreement 09/01/2022 1

F [NAME] ABA Goals 11/30/2022 12

G Affidavit of [NAME], Ph.D., MS Ed., LBA/BCBA-D 01/23/2023 10

H FOFD in Case # 209258 07/17/2022 18 I Closing Statement 02/07-23 PARENT 02

N/A N/A N/A IHO N/A

On October 13, 2022, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 and of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parents of a (15) year old student attending a private school and the New York City - Department of Education (“DOE”) - District: 25, regarding the student’s special education program. After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on January 23, 2023. A list of the persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) filed by the student’s Parent through her attorney(s), [CONFIDENTIAL] and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about September 7, 2022. The DPC is carried under New York City (“NYC”) Case No. 234911. Therein, the Parent alleges that the DOE has failed to provide the student with a “free and appropriate public education” (“FAPE”) for the 2022-2023 school year. At the impartial hearing, the Parent seeks the following relief:

(a) A declaration of rights in favor of the Parents, declaring the DOE’s conduct to be illegal as alleged herein; and

(b) A declaratory judgment in favor of the Parents that the DOE: (i) has violated the laws as alleged herein; (ii) failed to provide the student with a FAPE during the 2022-2023 School Year, (iii) subjected the student to blanket policies and predetermination, and (iv) discriminated against the student based upon her disability; and

(c) The DOE must fund through direct/prospective payment: twelve-month school year program and services: forty (40) hours per week (full day) 1:1 ABA services in a center-based ABA program such as the private school or a similar program if the private school becomes unavailable, twenty (20) hours per week of after-school 1:1 ABA services, four (4) hours per month of BCBA supervision, funding for private transportation to and from the center-based program, four 45-minute sessions per week of 1:1 speech-language therapy, one 45-minute session per week of 3:1 speech-language therapy, and two 30-minute sessions per week of 1:1 occupational therapy; and

(d) Compensatory education for the denial of FAPE, which should include, at minimum a bank of 1:1 ABA instruction to be used in school, at home and in the community, prospective funding for a center-based 1:1 ABA program, AT, AT training, toileting, recreation, behavioral support services, OT, PT, SLT, feeding services, as well as any other services recommended as a result of independent evaluations; and

(e) Any ABA, afterschool, home based services, or compensatory services should be delivered by providers of the Parents’ choice for “enhanced rates” as necessary to ensure that the student works with appropriate providers; and

(f) In the event that an LBA(s) are not secured to provide services to the student, the DOE must fund 1:1 instruction with positive behavioral support and/or 1:1 instruction using the principles of ABA, until such time as the DOE or Parent locates an LBA and/or provider(s) that satisfy the state licensing requirements; and

(g) The DOE should also provide: (i) a Mandarin interpreter at all DOE meetings regarding the child’s educational services and/or needs, including, but not limited to, IEP meetings and meetings that are part of the evaluation process; (ii) translation into Mandarin of any and all notices, meeting invitations, evaluations, safeguards, parent guides, IEPs, progress notes, report cards, and other documents concerning the student’s educational services on a going-forward basis; (iii) translation into Mandarin of all other DOE documents as otherwise required by law to ensure due process to the Parents; and (iv) funding for an agency to provide up to 12 hours per month of interpretation services to the Parents that can be used via phone with a person who can review scanned documents as well as meet in-person if necessary, to enable the Parents to communicate with the student’s compensatory education provider, teachers, administrators and other providers; and

(h) Any other costs related to the relief requested herein; and

(i) Attorney’s costs and fees; and

(j) All other relief that is appropriate as of the time that the IHO is ready to issue a final order, but which may not have been known to the Parents as of the time this hearing was filed.

PENDENCY

There is a request for an “Order on Pendency” in the DPC based upon the “Findings of Facts & Decision” (“FOFD”) in New York City Case No. 209258, dated July 17, 2022, for the student’s 2021-2022 school year. (P-H) The DOE did not oppose the Parent’s request for an “Order on Pendency.” (T-16-20)

THE DOE’S CASE The DOE did not call any witnesses to testify on its behalf and did not submit any documents in evidence. (T-16-20) In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE The Parent called (1) witnesses to testify on her behalf, one who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-G) The DOE did not cross examine the witness. (T-18) The Parent also submitted (9) documents in evidence. The DOE did not object to the Parent’s documents being received in evidence. (T-16-20) In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - STANDARD OF REVIEW

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2nd Cir. 2005])

The first step is to determine whether the DOE offered to provide the student with a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2nd Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA. (Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

DOES’ DEFAULT The DOE failed to call any witnesses to testify on its behalf, did not submit any documents in evidence, failed to file and serve an answer and did not serve a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e) & T-16-20) “Prior Written Notice” means written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student.

It is noted that silence in a responsive pleading is an admission, and a counterclaim in federal practice is compulsory in the answer or deemed waived. (See New York Practice, 4th Edition §§223 & 224, citing Federal Rules of Civil Procedure, Rule 13(a) & Cummings v. Dresher, 18 N.Y.2d 105, 108, 271 N.Y.S.2d 976, 218 N.E.2d 688, 690 [1966])

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c]) Here, the DOE did not proffer any testamentary evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE. As previously noted, the DOE did not serve and file an answer in the case and did not serve the Parent with “Prior Written Notice”, which would provide either a denial of the Parent’s allegation, or some explanation for the agency’s failure to provide a FAPE. (See 20 U.S.C. 1415(f)(3)[e])

It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing, Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative l[2nd PRIVATE SCHOOL INITIALS] judge (‘ALJ”) properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179)

However, here the DOE did not present a case-in-chief and did not controvert the testamentary or documentary evidence submitted by the Parent. (Supra) The credibility of the testamentary and documentary evidence was not rebutted by the DOE and the evidence is clearly relevant and material to the issues to be determined. I find the testamentary and documentary evidence submitted by the Parent in this case to be credible and uncontroverted in this case.

As noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE and that if the Parent meets her burden under Schaffer v. Weast, the Parent is entitled to the proven relief she seeks. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033) It is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "'ultimate award [of compensatory education] 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'"]) When, as here, the DOE does not present any case at the hearing, the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief.

The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005]. It is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE. The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2022-2023 school year and that the Parent may be entitled to the proven relief she has requested.

APPROPRIATENESS OF THE RELIEF SOUGHT

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

Where sought as relief, a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"])

There is a request for compensatory (make-up) educational services in this case and in either case, an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]) Pertinent findings to enable an IHO to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student’s current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]) The Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept. 13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt (“Nesbitt II”), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008])

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5[j][5][v])

Shaffer decision of the Supreme Court of the United States issued on November 14, 2005, held as follows:

“We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, III, ¶2) (See Schaffer v. Weast, 546 U.S. 49, 58-62 [2005] (emphasis added)

The party who defaults in concedes only liability and not the amount of “damages.” (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930) The DOE’s default constitutes an admission of liability, but not of damages, which remains the Parent’s burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011])

In sum, substance and relevant part, the testamentary and documentary evidence in this case indicates the following. The Parent’s BCBA testified on direct via affidavit as follows:

1. I have a Master's Degree in Forensic Psychology from John Jay College of Criminal Justice of the City University of New York (CUNY). I also have a Master's degree from Touro College in Early Childhood General and Special Education, Birth to Grade 2.

2. For 3 years, I was a Ph.D. student in the Learning Processes and Behavior Analysis Program at the CUNY Graduate Center. I transferred to another doctoral program and completed my Ph.D. in Clinical Psychology (Licensure Track) in 2016 from Walden University.

3. I hold an advanced graduate certificate in Applied Behavior Analysis ("ABA") from Queens College CUNY and have been a Board-Certified Behavior Analyst ("BCBA") since 2004.

4. To obtain the BCBA certification, I completed 22 credits of graduate coursework and 1500 supervised hours of ABA under the purview of a clinician who had already obtained a BCBA certificate and passed a credentialing exam.

5. I also hold New York State (NYS) teaching certifications in Early Childhood General Education and Special Education, Birth to Grade 2.

6. I am certified as a Board-Certified Behavior Analyst-Doctoral ("BCBA-D"). I am also a NYS Licensed Behavior Analyst (LBA).

11. I am also the founder of [NAME]. [NAME] is a center-based ABA program that implements a one-to-one student-teacher model. The [NAME] model is a full-day program which begins in the student's home in the morning, teaching them to complete activities of daily living (ADL) before leaving the house for the center with their therapist. At the center, students complete their individualized programs and return home. Additionally, some students may receive additional hours at home that allow for a continuation of the program after school or on weekends to reinforce skills learned and work on evening/bedtime routines.

22. I am very familiar with [STUDENT NAME] (“INITIALS”), D.O.B. [DATE OF BIRTH]

23. I first met her in September 2019, before the onset of Covid-19.

24. At that time, she was REDACTED.

25. [INITIAL]’s parents contacted me because they were concerned about her learning as well as her toileting skills and problematic behaviors.

26. At that time, she was displaying skin picking, mild aggressions, high rates of self-stimulatory behavior like playing with her saliva and mouthing object.

27. She also engaged in behaviors like eloping, grabbing things in her view, smearing feces, and eating plastic and paper.

28. Unfortunately, things got even worse after Covid-19, as will be set forth below.

29. Between September 2019 and January 2020, I assessed [INITIALS] over three separate dates.

31. I assessed her at home and observed her at school.

33. [INITIALS] was severely delayed in many areas.

34. [INITIALS] REDACTED.

35. She was engaging in behaviors like spitting on her hands and rubbing the spit on her mouth, smearing feces, eating pieces of tissue from the table, spitting out food then putting it back in her mouth.

36. [INITIALS] would also run into the street if her hand was not held.

37. She also had a history of running away from the school bus.

38. [INITIALS]'s self-help skills were very delayed. She had been toilet trained prior to 2017, then regressed after attending summer school where the school required her to wear a diaper because she was having accidents.

39. She ate with her hands instead of utensils.

40. [INITIALS] could not fully dress herself and could not bathe herself or independently brush her teeth.

41. [INITIALS] required at least three adults to go on outings in public such as a restaurant.

46. In September 2021, we started working with [INITIALS], we pushed into the classroom full-time.

49. Four RBT (Registered Behavior Technicians) provide the services under [NAME]'s supervision.

50. They are highly experienced RBTs with extensive experience working with students with autism.

67. I am the director of [NAME], which, as described more fully above, is a 1:1 ABA center-based program with a full-day wrap around program beginning when the student wakes up and all the way to after school and I advocated for [INITIALS] to transfer to this program.

68. A transfer to [NAME] was not recommended for any financial gain to my business.

69. It was because she needed a 1:1 ABA program in a program able to meet her needs.

72. She receives 2:1 services for 6 hours, from 9:00AM-3:00PM, due to her extensive need.

73. One of her providers arrives at [INITIALS] home and begins the day with the morning activity schedule, teaching [INITIALS] how to get ready and do her morning routine independently. She is picked up at home by a [NAME] driver, then taken to [NAME], along with one of her providers. During the car ride, she works on skills such as wearing a seatbelt and not engaging in behaviors such as tapping, touching the driver, the provider, areas of the car.

74. She is then driven home from 3:00PM-4:00PM with one of her providers.

75. [INITIALS] has made substantial progress since transitioning to [NAME].

76. Her most significant areas of progress include decrease in urine drinking since starting [NAME]. [INITIALS] no longer drinks her urine during the day or in school. Additionally, many behaviors decreased such as: doing sequential behaviors by the sink/door, throwing materials out of the window, flipping furniture, climbing furniture, compulsive behaviors with stimuli during work tasks/activity schedule/trials, drinking from toilet, putting items in her mouth, crawling through people's legs, etc. Additionally, there has been an increase in receptive associations (e.g., identifying animals, objects, people, body parts). Before, there was difficulty in working with [INITIALS] on programs that involved the use of stimuli ( e.g., pictures) due to her excessive OCD behaviors (e.g., tapping, touching, manipulating the item in a specific way). Now, she is able to engage in discrete trials without engaging in these behaviors. Last quarter, she mastered her imitation goals. Another major area of progress is increases m communication (through digital choice board, verbal approximations) as well as vocal imitation. [INITIALS] imitates many novel sounds and makes an effort to do so. [INITIALS] has learned to follow a digital activity schedule almost entirely independently. [INITIALS] can eat with a food or spoon during mealtimes now.

78. A more detailed report of her progress is being submitted as an exhibit in this hearing.

79. It is my recommendation that [INITIALS] should receive her current programming of 1:1 ABA program for 40 hours at school and 20 hours after-school, as well as BCBA supervision, speech therapy, and occupational therapy.

80. Due to her extensive sensory needs, the O.T. that treats [INITIALS] at [NAME] has requested an increase in O.T. to 4x30.

81. I have not been compensated for my evaluation or for my testimony.

82. There is no obligation on the part of the Parents to continue to use my services should they be awarded 1:1 ABA hours. (P-G)

The witness’s testimony and accompanying goals and report (P-F), is completely uncontroverted by the DOE. (T-16-20)

The DOE’s default herein supports a judgment in favor of the Parent and a finding that the student was denied a FAPE for the 2022-2023 school year.

The private school program does not have to be perfect or maximize the student’s potential. (Supra) It just has to provide the student with an educational benefit. (Id.) The standard the Parent has to meet to evidence the “appropriateness” of the private school is not beyond a reasonable doubt, or by a “preponderance of the evidence”, or even by “substantial evidence.” The Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from instruction. (See Gagliardo & Frank G., supra) The uncontroverted record here supports such a finding that the private program was an appropriate placement for the student’s 2022-2023 school year.

There is nothing in the record that support a finding that the Parent has not cooperated with the DOE.

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE denied the student a FAPE for the 2022-2023 school year and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent, and/or directly pay for the cost of the student’s private program on a 12-month basis for the entirety of the student’s 2022-2023 school year, at a rate not to exceed the reasonable and fair market rate for such a program and services in New York City consisting of (40) hours per week of (1:1) ABA instruction in a center-based ABA program, (20) hours per week of (1:1) after-school ABA services, (4) hours per month of BCBA supervision, transportation to and from the center-based program, 4x45 (1:1) speech language therapy, 1x45 (3:1) speech language therapy, 4x30 (1:1) occupational therapy, as well as the identical amount of services identified herein which were not provided to the student since the date of the filing of the DPC, September 7, 2022 to the date of this order below, as “make-up/compensatory” services the student is entitled to under “pendency”; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall also conduct a re-evaluation of the student in all areas of her suspected disabilities not evaluated within the last two years, for the 2023-2024 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student’s evaluations and any other relevant information and produce a new IEP for the student’s 2023-2024 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: February 11, 2023 _____________________________

New York, New York Edgar De Leon - I.H.O.

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 L[2nd PRIVATE SCHOOL INITIALS] 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. (Rev. 07/09/20)