New York City Department of Education, Impartial Hearing Decision

Case Number: 589927 – NYC: 240936

FINDINGS OF FACT AND DECISION

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 12/28/2022

12/29/2022

02/06/2023 Status Conference

03/03/2023

03/24/2023 Status Conference

04/10/2023

Actual Record Close Date: 04/21/2023

Decision Date: 04/29/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/28/2022

Parties appeared via phone and/or teleconference

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/29/2022

Parties appeared via phone and/or teleconference

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/06/2023

Parties appeared via phone and/or teleconference

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/03/2023

Parties appeared via phone and/or teleconference

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

[REDACTED], [REDACTED] Interpreter

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/24/2023

Parties appeared via phone and/or teleconference

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/10/2023

Parties appeared via phone and/or teleconference

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., Attorney

DOCUMENTATION ENTERED INTO THE RECORD PARENT

A. Exhibit Document Date Page(s) Entered 12/28/2022 Parent’s Impartial Hearing Request / Due Process Complaint (DPC) 10/24/22 8 pages

B. Individualized Education Program (IEP) 07/08/20 18 pages

C. Individualized Education Program 07/27/21 20 pages

D. Individualized Education Program 03/31/22 35 pages

E. Bilingual Psychological Evaluation 05/14/20 4 pages

F. Home Observation 05/14/20 1 page

G. Social History 05/14/20 2 pages

H. Physical Therapy Evaluation 05/18/20 5 pages

I. Bilingual Speech-Language Evaluation 05/23/20 6 pages

J. Occupational Therapy Evaluation 05/25/20 4 pages

K. Parent’s Ten-Day Notice Letter (TDN) 06/17/22 4 pages

L. [REDACTED] ([REDACTED]) Enrollment Contract 06/17/22 8 pages

M. [REDACTED] Tuition Affidavit 10/07/22 1 page

N. Student 2022-2023 Class Schedule Undated 1 page

O. [REDACTED] Program Description 2022-2023 Undated 7 pages

P. Rate Sheets Entered 03/03/2023 Undated 3 pages

Q. [REDACTED] tuition affidavit 10 2/9/23 1 page

R. Affidavit of [REDACTED] 2/23/23 5 pages

S. Affidavit of [REDACTED] Entered 04/10/2023 3/1/23 2 pages

T. [REDACTED] Progress Report Jan. 2023 19 pages

U. Independent Neuropsychological Evaluation 03/19/23 20 pages

V. Independent Bilingual Speech-Language Evaluation 03/21/23 12 pages

W. Independent Occupational Therapy Evaluation 03/14/23 16 pages

X. Independent Physical Therapy Evaluation 02/27/23 13 pages

Y. Independent Assistive Technology Evaluation 02/23/23 12 pages

Z. Independent ABA Skills Assessment 03/01/23 20 pages

AA. Independent Functional Behavior Assessment and Behavior Intervention Plan 03/24/23 31 pages

DEPARTMENT OF EDUCATION (DOE)

Entered 03/03/2023

1 through 4 Excluded Duplicates 5 Prior written notice, 4/5/22, 16 pages

6 T-5 school location document, 5/20/22, nine pages

7 Psychological evaluation, 3/9/22, two pages

IMPARTIAL HEARING OFFICER

Entered 12/28/2022 I Notice of Appointment, 12/16/2022, 4 pages Entered 02/06/2023 II Interim Order Evaluations, 12/29/2022, 15 pages

INTRODUCTION

On 12/16/2022 I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).

Hearing commenced, on 12/28/2022, to allow the DOE an opportunity to defend against the allegations contained in the DPC. (Ex A) The DOE did not appear.

Hearing continued, on 12/29/2022, to address Parent request for Independent Educational Evaluations (IEEs).

Status Conference was held, on 02/06/2023, at which time the Parent’s Attorney advised that the IEEs, as Ordered, were underway.

Hearing continued, on 03/03/2023.

Status Conference was held, on 03/24/2023, where Parent Attorney advised that al the Ordered Evaluations had been completed. (T 77, IHO Ex II).

Hearing then continued, and concluded, on 04/10/2023.

A hearing was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Due Process Complaint (DPC):

- Alleges a failure of the DOE to provide a Free Appropriate Public Education (FAPE) to the Student for the 2020- 2021, 2021-2022 and 2022-2023 school years (Ex A); - A review of the Student educational history (Ex A 2-3); - Alleges the DOE failed to properly evaluate the Student (Ex A 3-4); Failed to develop meaningful goals (Ex A 4); failed to provide appropriate program for the Student; failed to provide appropriate related services (Ex A 4-5); failed to provide Parent Counseling and Training (PCAT); and failed to provide appropriate Technology (Ex A 5).

Parent seeks a variety of forms of relief to remedy the alleged failure, including:

- Interim Order for IEEs (Ex A 6), which has been issued (IHO Ex II); - District funding of Student 22-23 Tuition, for attendance at the UP, including assistive technology and transportation (Ex A 6); and - Compensatory Education and Services in areas that include, but are not limited to, “speech-language therapy, occupational therapy, physical therapy, and ABA therapy, and any additional services to remedy the District’s failure to provide an appropriate educational program and methodologies that could allow for meaningful educational progress. These compensatory services are to be provided outside of school hours so as to not interfere with the delivery of the Student’s regular school day and shall be provided by independent providers of the Parents’ choosing at their normal and customary rates. The IHO shall order that the District fund transportation costs to and from all sessions…” (Ex A 7)

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

THE POSITION OF EACH PARTY

Regarding the Parent request for IEEs, the Parent DPC contains allegations relating to the 16-17, 17-18, 18-19, 19-20, 20-21, 21-22 & 22- 23 school years. The basic contention is that: the DOE denied the Student a Free Appropriate Public Education (FAPE), over the course of past school years; this, in part is due to a lack of proper evaluation of the Student; and compensatory services are sought relative to the alleged denial of FAPE, hinging upon the evaluative date that can be collected via a variety of requested evaluations. (Ex A)

An Order was issued, on 12/29/2022, which included:

The DOE shall authorize and fund the following Independent Educational Evaluations (IEEs). Each evaluation to be conducted by private evaluators of the Parent’s choosing at market rates, such as those indicated below, including:

a. A bilingual neuropsychological evaluation, to be conducted by a New York State licensed psychologist, at a rate not to exceed $6,500.00; b. A bilingual speech-language evaluation, to be conducted by a New York State licensed speech-language pathologist, at a rate of up to $2,400.00;

c. An occupational therapy evaluation, to be conducted by a New York State licensed occupational therapist, at a rate of up to $2,300.00; d. A physical therapy evaluation, to be conducted by a New York State licensed physical therapist, at a rate of up to $2,300.00; e. An assistive technology evaluation, to be conducted by a New York State licensed speech-language pathologist, at a rate of up to $2,800.00; f. A bilingual ABA skills assessment, to be conducted by a New York State Licensed Behavior Analyst or Board Certified Behavior Analyst, at a rate of up to $3,525.00; and g. A bilingual Functional Behavior Assessment, to be conducted by a New York State Licensed Behavior Analyst or Board Certified Behavior Analyst, at a rate of up to $3,525.00.

(IHO Ex II 14)

The DOE did not defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the school years at issue.

At Hearing, of 04/01/2023, Parent Attorney outlined the Parent’s position, and sought after relief:

- “…this case covers three school years, 2020/2021, '21/'22, and '22/'23. For that last school year, '22/'23, we already had the hearing for the unilateral placement, and that's the relief we're seeking for that school year, tuition funding to [UP].” (T 87 & 89); - For the 20-21 and 21-22 school years, Parent seeks compensatory service “necessary to remedy that denial of FAPE.” (T 87); o 184 hours of compensatory speech-language therapy (Ex V); o 138 hours of compensatory occupational therapy (Ex W); o 46 hours of compensatory physical therapy (Ex X); o 40 hours of compensatory assistive technology training (Ex Y); o 92 hours of compensatory parent counseling and training (Ex U & Z) (T 88); o 1,840 hours of compensatory ABA therapy (Ex U & Z) (T 88); and o Feeding Evaluation, at a rate not to exceed $3,000.00 (T 88-89, Ex U 14); o Relief sought to be provided via Parent chosen providers at market rate. (T 88)

Parent Attorney states that: the UP does not provide one-to-one ABA throughout the day, though they do use ABA in their teaching methodology. (T 90)

The DOE offered no comment regarding the requested relief, referring the Parent to the CSE regarding the sought after Feeding Evaluation. (T 92)

Parent Attorney supported its position via Documentary Evidence and Oral Testimony. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below: [REDACTED], Student’s 22-23 [REDACTED] Teacher

Witness provided Testimony that included:

- She is one of the Student’s primary teachers (T 54); - Each class has two assistant teachers (TAs) (T 55); - Student class has eight students, ages five to seven (T 59-60); - Progress is tracked via observation, data collection, Student work, and teacher assessment (T 56); - Progress Reports are issued (T 56); - [REDACTED] has and individualized education plan, for the Student (T 58); - Student class composition allows the Student to make progress: “We differentiate their educational work, you know, their academic work. We have different groups and levels of the cognitive level of the students. We give each child their work…if all of them are different, we accommodate to their level cognitively and to their needs. So we individualize their academic work.” (T 60); - Student has maladaptive and self-injurious behaviors: ”...the maladaptive behavior is like as I stated in my affidavit that [Student] is a self-directed child. And he had difficulties when he's interrupted from…his self-play. And when we interrupt -- or when he has preferred activity…that is supposed to stop or we put a demand other than what he's playing with, then he demonstrates his aggressive behaviors like hitting adults, spitting, throwing everything from his desk, throwing…his iPad, which we call a talker…Self-injurious behaviors is like he hits head with three fingers, his forehead with three fingers and he bangs…on his desk and screaming and crying. Those are his -- some of his behaviors.” (T 61); - These behaviors have diminished since the beginning of the year (T 62); - Student does not have a Behavior Intervention Plan (BIP), or an individual paraprofessional. Student does have an “floater” that spends most of the time with him for breaktimes and movement breaks, and use of sensory toys (T 63); - Daily behavior strategies are implemented daily, with the Student (T 66); - The class has implemented some of the “…ABA protocol in the classroom. We use talking boards, for example. We use timer, a visual schedule, wait time in order to make him and…his transitions from activity to activity easy. And he has -- help him with transitions and participation and engagement in activities.” (T 64); and - Student has mad progress with play skills. (T 64-65)

[REDACTED]Student’s mother provided Testimony that included:

- Student was enrolled, at UP, on 07/18/22 (T 69); - Since attending the UP the Student has been using more words (T 70); and - Student still has adverse behaviors. (T 70-71) A Parent’s Impartial Hearing Request / Due Process Complaint (DPC) 10/24/22 Details Parent allegations and sought after relief.

B Individualized Education Program (IEP) 07/08/20

Confirms Student entitlement to special education services, recommending a Special Class, and Related Services of Speech Language Therapy, Occupational Therapy, and Physical Therapy. (Ex B 1)

Notes areas of Student delay and “Moderate Symptoms of Autism Spectrum Disorder.” (Ex B 4-5)

Student is recommended to 12 month services (Ex B 16); and Special Transportation (Ex B 17).

C Individualized Education Program 07/27/21

Confirms Student entitlement to special education services, recommending a Special Class, and Related Services of Speech Language Therapy, Occupational Therapy, and Physical Therapy. (Ex C 1 & 17)

Notes areas of Student delay, including “predominantly a non-verbal child”. (Ex C 3)

IEP note Parent concern that the Student is “unable to speak”. (Ex C 5)

Despite Parent concerns, and IEP notations regarding inability to communicate, the IEP fails to include any particular device or service to address communication needs. (Ex C 6)

For some reason this IEP fails to mention the previous Autism references in the previous IEP, as revealed via testing. (Ex B 4-5)

Student is recommended to 12 month services (Ex C 18); and Special Transportation (Ex C 20). 7 Psychological evaluation, 3/9/22, two pages

Report reflects an unsuccessful attempt to complete Student testing.

“A psychoeducational was attempted however, [Student] did not respond to any of the verbal prompts. He was very self-directed and avoided the tasks presented to him Instead, he drew on a piece of paper. A psychoeducational was conducted on 05/14/20 indicates that [Student]'s cognitive abilities were difficult to determine due to limited responses. The HELP Strands, was used as an alternative to determining his cognitive abilities which indicated that [Student] exhibits skills within the age range of 12-18 months. His adaptive skills overall fell in the Low range.” (Ex 7-2) No recommendations are made.

D Individualized Education Program 03/31/22

Confirms Student entitlement to special education services, with a Classification of Autism. (Ex D 1)

Recommendation is made of a Special Class, and Related Services of Speech Language Therapy, Occupational Therapy, and Physical Therapy. (Ex D 26-27)

Notes lack of success in Student testing. (Ex D 1)

Notes communication concerns, such as “cannot point to familiar pictures” and does not use “at least five words”. (Ex D 2 & D 6)

Notes Social and Emotional delays (Ex D 3-4 & 6), and Adaptive Behavior delays. (Ex D 3-4)

Notes previous Student diagnosis of Autism,. (Ex D 5)

Includes Parent provided information that she is looking into an ABA program, since in the past, when the Student received ABA, he showed the most improvements. (Ex D 8)

Includes that the Parent was referred to an agency for outside Student services; to discuss AT (Assistive Technology) evaluation results; and was assured that any school the Student attends will offer ABA therapy. (Ex D 11-12)

The IEP, though noting the need to review AT results, and the potential need for ABA therapy, fails to address these areas of potential Student need.

Despite Parent concerns, and IEP notations regarding AT evaluation, and communication delays, the IEP fails to include any particular device or service to address communication needs. (Ex D 15)

Student is recommended to 12 month services (Ex D 27-28); and Special Transportation (Ex D 31-32).

E Bilingual Psychological Evaluation 05/14/20

Confirms Student delays and need for special education services.

Notes Autism Diagnosis. (Ex E 4)

F Home Observation 05/14/20

Confirms Student delays in language and social skills.

G Social History 05/14/20

Confirms Student history of delay and previous receipt of AA Therapy. (Ex G 1-2)

H Physical Therapy Evaluation 05/18/20

Confirms Student delay and need for intervention.

I Bilingual Speech-Language Evaluation 05/23/20

Confirms Student delay and need for intervention.

J Occupational Therapy Evaluation 05/25/20

Confirms Student delay and need for intervention.

K Parent’s Ten-Day Notice Letter (TDN) 06/17/22

Parent provides TDN, which includes: objection to the recent IEP (03/31/2022 Ex D); lack of receipt of a School Location Letter; and intent to seek DOE funding for Student placement, at the UP.

L [REDACTED] ([REDACTED]) Enrollment Contract 06/17/22

Student 22-23 Tuition is set forth as $[REDACTED].00, inclusive of related services. (Ex L 1)

Parent is obligated to payment, under the Contract, via Signature. (Ex L 7)

M [REDACTED] Tuition Affidavit 10/07/22

Parent has thus far paid $[REDACTED].00, of the UP Student Tuition, leaving a balance of $[REDACTED].00.

N Student 2022-2023 Class Schedule Undated

Student Academic and Related Therapy Schedule.

O [REDACTED] Program Description 2022-2023 Undated

Details general characteristics of the UP, which include:

- an academic and therapeutic school that provides specialized instruction, related services, and enrichment activities to students aged 3-21 with a variety of learning and language differences including but not limited to autism spectrum disorder, developmental delays, genetic anomalies and syndromes, global delays, language or learning disorders, and neurodevelopmental differences; - Classrooms have high teacher-to-student ratios, ensuring individualized attention and differentiated instruction for every learner - The related services team is composed of licensed creative arts therapists, hearing therapists, occupational therapists, physical therapists, social workers, speech and language pathologists, and vision therapists - staff work collaboratively with one another and with students’ outside teams in order to provide a well-rounded, comprehensive approach to supporting students in reaching their full potential and - a 12-month school year calendar and offers all services during its 5.5-hour school day (Ex O 2).

Q [REDACTED] tuition affidavit 10 2/9/23

Parent has thus far paid $[REDACTED].00, of the UP Student Tuition, leaving a balance of $[REDACTED].00.

R Affidavit of [REDACTED] 2/23/23

UP Special Education Teacher provides Testimony that includes:

- Her qualifications and duties, at the UP(Ex R 1); - UP staff characteristics; curriculum; and related services; - Familiarity with the Student (Ex R 2); - Student: o Class consists of eight students, Witness is the Head Teacher, there are two Teacher Assistants (Ex R 2); o is appropriately grouped academically, socially ad behaviorally; o receives Speech Language Therapy, Occupational Therapy, and physical Therapy; o areas of academic delay are detailed for Reading, Writing, and Math (Ex R 3-4); o supports are detailed, such as lined and some boxed pages to assist with proper letter sizing; o communication supports include an AAC device; o Social Emotional and play skill supports; o progress is noted for ADL skills; o adverse behaviors and supports are detailed (Ex R 4); and o supports include a visual schedule, token board, and verbal prompts (Ex R 5); - Witness has seen Student progress academically, socially and behaviorally, during the 22-023 school year; - The UP is able to provide Student with appropriate supports to meet his unique needs. (Ex R 5)

S Affidavit of [REDACTED] 3/1/23

Student’s mother provides Testimony that includes:

- Student educational history, related to IEPs; - Objection to the 03/31/2022 IEP (Ex D) (Ex S 1); - Enrollment of the Student at the UP; - Notes success while attending the UP in areas of communication and academics (Ex S 2); - Cooperation with the DOE throughout the IEP process; and - Being employed part time and unable to afford to pay the Student’s UP Tuition (Ex S 2).

T [REDACTED] Progress Report Jan. 2023

Includes:

- Details of the Student’s 22-23, UP, Educational Plan: CLASSROOM RATIO

8:1:2; PARAPROFESSIONAL; SPEECH THERAPY 3x30; AAC SERVICES

1x30; OCCUPATIONAL THERAPY 2x30; and PHYSICAL THERAPY 2x30

(Ex T 1); - Details Student’s challenges and supports to address special education needs:

o [REDACTED] boy with a diagnosis of autism spectrum disorder o presents with speech and language delays o receives occupational therapy, physical therapy and speech therapy o exposed to a total communication approach that includes, reaching, pointing, gestures, vocalizations, word approximations, and an augmentative and alternative communication device, (AAC device), an iPad programmed with the app TouchChat with WordPower), to facilitate functional communication o Emphasis in the classroom is placed on the development of cognitive skills including attention span, activities of daily living, socialization, independence, problem solving, frustration tolerance, and functional communication o benefits from a highly structured environment to perform well on tasks when being taught in a1 1:1 or small group educational setting o requires constant 1:1 support through multiple verbal and physical prompts to remain in his seat or at his desk during both academic and unstructured play time o made progress but requires maximum amount of support to attend and engage in academic tasks and remain seated for 10 -15 minutes, paired with highly preferred reinforcers and sensory breaks o continues to require moderate verbal modeling, and physical prompts to participate in academic activities, provided by a teacher/staff, and paired with a highly preferred reinforcers, (cars, police car, fire truck, helicopter, crayons and paper, verbal praises: “good job”, tickles and hugs.) o requires constant adult supervision, verbal, and physical prompts to stay on his seat, and to keep his shoes on o communicates his wants and needs by reaching, pointing, grabbing and adult to desired object and by accessing his AAC communication device o presents as a student that enjoys academic activities when working his own way, he prefers activities that involve the alphabet or numbers o self-directed child who demonstrates difficulties to follow directions during structured and unstructured activities or when an activity is interrupted o can easily transition from activities when provided with his visual schedule, where he is prompted to remove the picture of the activity that just ended and redirected to point to the next activity o demonstrates increased difficulty following directions, as he often prefers to do the activity his way o requires modeling, verbal and physical prompts to engage in activities, paired with highly preferred reinforcers o with manipulatives, Student demonstrates difficulties to follow directions, as he will want to work his way and will often starts to engage in maladaptive behaviors but can be redirected once he observes his teacher modeling what he is being asked do o engages in aggressive behaviors towards others such as hitting adults working with him, spitting, screaming, and whining, throwing materials, throwing his talker, walking away from his desk and throwing objects o engages in self-injurious behaviors like hitting his forehead with his fingers and scratching his face o Once Student calms down and the activity is modeled for him, he will allow the teacher/adult to continue presenting demands o continues to benefit from initial models verbal and physical prompts to follow directions throughout structured and unstructured tasks - Details educational support and progress in areas of: o Reading (Ex T 3-4) o Writing (Ex T 4) o Math (Ex T 4) o Daily Living Skills (Ex T 4-5) o Social Emotional (Ex T 5-6) o Speech Language Therapy (Ex T 6-0) o Occupational Therapy (Ex T 9-12) o Physical Therapy (Ex T 12-13)

U Independent Neuropsychological Evaluation 03/19/23

Confirms Student’s need for special education services.

Diagnoses include:

299.00 (F84.00) Autism Spectrum Disorder - Social Communication, Level 3, Requiring Very Substantial Support - Repetitive Behavior, Level 3, Requiring Very Substantial Support - With accompanying Intellectual and Language Impairment 315.32 (F80.2) Language Disorder 318.1 (F72) Intellectual Disability, Severe 314.01 (F90.2) Attention Deficit Hyperactivity Disorder, Combined Type ( (Ex U 13) Recommendations include: - Feeding Evaluation; - Placement in a special education program that utilizes ABA methodology throughout the day. Daily instruction that is infused with ABA principles is needed, as ABA has a robust research foundation that supports its use in children with autism. a. Given the combination of social, attentional, behavioral, and cognitive challenges, Student needs a small classroom size of no more than 6 students; - A one-to-one (1:1) paraprofessional in class is required to help manage Student’s inattentive, hyperactive, and repetitive behaviors; - A variety of program modifications and accommodations (Ex U 14); and - A variety of Related Services. (Ex U 15-16)

Evaluation also recommends Compensatory Services: “Due to the absence of appropriate educational and therapeutic services during the 2020- 2021, and 2021-22 academic years…” (Ex U 15):

a. 1:1 Applied Behavior Analysis (ABA) - 40 hours per week (30 hours school-based and 10 hours home-based) - 1380 hours school-based and 460 hours home-based per year b. Occupational Therapy (OT) - 2 hours per week - 92 hours per year c. Speech Language Therapy (SLT) - 5 hours per week - 230 hours per year d. Counseling - 5 hours per week - 230 hours per year e. Parent Counseling and Training (PCAT) - 2 hours per week - 92 hours per year f. BCBA Supervision- 2 hours per week - 92 hours per year. (Ex U 16)

V Independent Bilingual Speech-Language Evaluation 03/21/23

Confirms areas of Student delay and recommends support moving forward:

- individual speech and language therapy two times per week for 30 minutes, in addition to the speech and language therapy twice a week in a group of two, by a bilingual provider who is fluent in both [REDACTED] and [REDACTED] to treat his severe receptive, expressive, and pragmatic language deficits. It is recommended that the bilingual provider be familiar with second language acquisition and [REDACTED]-influenced [REDACTED]. If a bilingual provider is unavailable, a monolingual [REDACTED] provider who is familiar with second language acquisition is recommended. (Ex V 10)

It is also recommended that Student receive a feeding evaluation to determine if feeding therapy is warranted. (Ex V 10)

Report includes Parent reported regression, which developed through the Covid 19 Pandemic. (Ex V 2 & 9)

Evaluation also recommends Compensatory Services:

- a bank of 184 speech and language therapy hours (providing approximately 2 individual sessions a week for 46 weeks, for approximately 2 years). This amount of services is based on a qualitative approach, which considers the hours required to make Student whole. This amount takes into consideration the regression Student has experienced since the onset of the COVID-19 pandemic, due to not having access to quality, intensive therapy. This amount of services reflects the individualized therapy that Student requires. This amount of services is separate and additional to services already rendered or currently being received. The hours will give Student consistent access to therapeutic intervention that will address his specific language deficits. Providing these services will allow him to have the opportunity to address his specific needs in a consistent manner. Student requires intensive therapy to establish the foundational language skills he is lacking. It is recommended that these hours shall not have an expiration date, to allow access to them over time. (Ex V 10-11)

W Independent Occupational Therapy Evaluation 03/14/23

Confirms areas of Student delay and recommends support moving forward:

- 3 OT sessions per week at 30 minutes per session. Two sessions should take place on an individual basis and 1 session should take place in a group setting; - exposure to equipment available in a sensory gym to address sensory processing concerns; - frequent 1:1 assistance during tasks as well as transitions, Student should have a 1:1 paraprofessional throughout the day; - A sensory Diet; - 12 month services. (Ex W 14)

Compensatory Services are recommended:

- 138 occupational therapy hours (approximately 1.5 hours per week for 2 years at 46 weeks per year), based on a qualitative approach. His previous clinical program did not adequately address his needs consistently, leaving Student at a loss for gaining the skills needed and causing significant delays. Providing these services will allow Student to have the opportunity to address his needs in a more consistent manner. It is recommended that these hours shall not expire, to allow access to them over time. (Ex W 14-15) X Independent Physical Therapy Evaluation 02/27/23

Confirms areas of Student delay and recommends support moving forward:

- Physical Therapy sessions 2 times per week for 30 minutes per session. a. Sessions should be provided on an individual basis to address core muscle strengthening, balance, coordination, bilateral integration, endurance, running and ball skills. b. Sessions should be provided over a 12 month period, in order to avoid extended breaks that could lead to regression. c. Self regulating techniques should be emphasized to improve muscle strength, postural control, bilateral coordination, and visual perception along with improving body and safety awareness. d. Should the school be unable to accommodate this provision of service, Student should receive these services after school at home or in an outpatient or sensory gym setting. (Ex X 11) Compensatory Services are recommended: - Physical Therapy services in the form of a bank of 46 physical therapy hours (providing 60 minutes a week for 46 weeks, for approximately 1 year). These hours will ensure that Student has consistent access to therapeutic intervention to address his significant gross motor deficits and to make up for the year that he did not receive physical therapy services. Providing these services will allow Student to address his specific needs in a consistent manner without a break in service.

This recommended amount was derived from a qualitative clinical approach, recognizing Student’s current needs and the time he will need to make up for a lack of appropriate intervention in the previous school year, making him whole and minimizing the gaps that are present. It is recommended that these hours not have an expiry date, to allow access over time if needed. a. Sessions should be provided on an individual basis and address core muscle strengthening, balance, coordination, bilateral integration, endurance, running and ball skills. b. Should the school be unable to accommodate this provision of service, Student should receive these services after school at home or in a sensory gym setting. (Ex X 11)

Y Independent Assistive Technology Evaluation 02/23/23

Confirms areas of Student communication delay and recommends an array of supports to address this area of Student need. (Ex Y 10-11)

Recommendations include:

- AAC Equipment (Ex Y 10); - Training of Student and all Team Members, including his grandmother, and academic support staff of 40 hours, via 2 thirty minute sessions weekly for 40 weeks (Ex Y 10-11); and - Use of AT and devices on a 12 month basis, across the curriculum. (Ex Y 11-12)

An AT Evaluation was alluded to back at the IEP meeting, of 03/31/22. (Ex D 11)

A previous AT Evaluation has not been evidenced. Z Independent ABA Skills Assessment 03/01/23

Confirms areas of Student delay and recommends support moving forward, focusing on the Student needs related to Autism.

Assessment details the Student supports delivered via previous evaluations and IEPs; and considers the recommended services in light of the recently completed Student evaluations. (Ex Z 3-9)

ABA Assessment results are set forth, detailing areas of Student weakness. (Ex Z 10-16)

Evaluator provides interpretation of the Assessment:

- Student “is an active boy who presents with various strengths and a potential to develop new skills given the appropriate resources and environment.” (Ex Z 16); - Reviews Student strengths and weaknesses; - Significant delays included: Tact, Imitation, Reading, Writing, Group and Social Skills, Linguistics, and Math; - Student score indicates a need for immediate intervention; - Student’s emission of maladaptive behaviors impedes with instructional tasks and daily living skills (moderate to high level); - Based on the assessment results, the evaluator is of the opinion that Student “does not have the necessary prerequisite skills to successfully meet criteria for crucial milestones; a key component in this lack of prerequisite skills is the emission of disruptive and maladaptive behaviors which limit [Student’s] ability to contact effective educational instruction….[Student’s] quality of life and daily living skills are negatively impacted by the Barrier’s noted above.” (Ex Z 17); - Based on the current examiner’s findings regarding [Student’s] skill profile, the Barrier’s Assessment, as well as a full understanding of effective intervention for young learners diagnosed with autism, the evaluator recommends the following:

o Continued full-time enrollment in a data-driven program that adheres to all the dimensions of ABA. Student should be exposed to a minimum of 30 weekly hours of data-driven instruction in a school setting. o Additionally, it is recommended that [Student] receive additional 20 hours per week in her home. The home-based hours should be distributed in a way that at least 5 hours out of 20 occur during weekends. During implementation, only evidence-based, established treatment interventions for individuals with autism will be used. o Predominantly one-to-one instructional format in combination with a dyad instructional format. (Ex Z 17) o Ongoing program oversight by a team of trained and experienced behavior analysts. o Educational programming by a team of trained and supervised instructors. o Ongoing parent training. Mrs. [REDACTED] should be continuously involved in [Student]’s educational program. Parent training should emphasize skills development and support so that caregivers become competent in implementing treatment protocols across critical environments. Parent training should be intensive and continuous to be shown effective. Parent trainer should be responsible for ensuring coordination of care by maintaining regular communication with school staff and providers of other related services. The evaluator is of the opinion that the parents should receive a minimum of 5 hours per week of parent training. and o Revisions in [Student]’s IEP.

Compensatory Services are also recommended:

- Award of compensatory 1:1 ABA services. [Student] should receive 25 hours per week of 1:1 ABA within a home-setting for the total 46 weeks per each year (92 weeks total for the two-year period), which is the total of 2,300 hours of 1:1 ABA. Of the 25 hours per week, 5 hours a week should be allotted to parent training. (Ex Z 19)

AA Independent Functional Behavior Assessment & Behavior Intervention Plan

3/24/23

Confirms areas of Student delay and recommends support moving forward.

Noncompliant and Inappropriate Behaviors are detailed, both at home and at school. (Ex AA 17-22)

Behavior Intervention Plan (BIP) is set forth. (Ex AA 24-26)

Applied Behavioral interventions are recommended. (Ex AA 27)

An appropriate Student program is outlined, which includes ABA, and related components, such as supervision and training. (Ex AA 28-29)

Compensatory Services are recommended, as an essential part of the Student’s program:

- Award of compensatory 1:1 ABA services. [Student] should receive 25 hours per week of 1:1 ABA within a home-setting for the total 46 weeks per each year (92 weeks total for the two-year period), which is the total of 2,300 hours of 1:1 ABA. Of the 25 hours per week, 5 hours a week should be allotted to parent training.

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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 (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "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; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; 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). 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 (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; 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. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2020-2021 and 2021-2022 School Years The district has presented no witnesses in this matter. Although the district submitted various documents, it is well established that an IEP does not on its own, without testimony to explain its appropriateness, establish that a FAPE has been provided. See e.g. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016)

Accordingly, I conclude that the district has not met its burden to establish that it provided a FAPE, for the school years at issue.

The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for any of the contested school years.

I find the DOE failed to offer the Student a FAPE for the 20-21, 21-22 and 22-23 school years.

UP Placement for the 22-23 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 22-23 school year.

The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex D, N, O, R, S & T and T 55, 59-60, 61-63, 64-65, 70-71)

I find that the UP provides special education services specifically tailored to meet the needs of the Student.

I find UP provides an appropriate education and program for the Student for the 22-^[23] school year.

TUITION FUNDING 2022-2023 School Year

I find the Parent is entitled to Student’s UP Tuition funding, via the DOE, for the UP, 22Parent is obligated to payment, under the Contract, via Signature. (Ex L 7)

Parent has, thus far, paid $300.00, of the UP Student Tuition, leaving a balance of $111,700.00. (Ex Q)

Parent Testimony is uncontradicted, that she is unable to afford directly paying the Student’s, UP Tuition. (Ex S 2).

With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here . . . parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769 F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

In this matter the Parents choose to continue Student placement at UP, without any appropriate DOE alternative.

I find the Parent Testimony meets the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of a unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12- 132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 22-23 school year.

I find the Parent is entitled to direct UP funding as Ordered below.

COMPENSATORY SERVICES

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).

The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).

In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought.10 Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology supports.); Woods v. Northport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) (upholding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”).

If Student is found to be entitled to compensatory education under applicable law; compensatory education is an equitable remedy that arises out of the jurisdiction of 20 U.S.C. § 1415; equitable factors do not bar relief here and no inequitable conduct was established on the part of the parents. N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Dist. of City, No. 07 Cv. 9648 (BSJ), 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) (Reversing the SRO and upholding the award; Court found that it is well established that, in the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim for tuition.); Wolfe v. Taconic Hills Cent. Sch. Dist., 167 21 F.Supp.2d 530 (N.D.N.Y. 2001)( the equities—requires a balancing of both parties’ conduct and interest—not merely the actions of the parent). There are no facts established here that show that the parent failed to cooperate or acted inequitably to interfere with the DOE’s ability provide FAPE.

FAPE has already been found to have been denied the Student for the 20-21, 21-22 and 22-23 school years

The IEPs related to the school years at issue are not defended by the DOE.

Considering the IEPs in evidence brings forth several deficiencies, and areas of concern, where the Student’s special education needs were not properly considered. For example:

- The IEP, of 07/08/2020, notes areas of Student delay and “Moderate Symptoms of Autism Spectrum Disorder.” (Ex B 4-5) However, no services are detailed to address these concerns. - The following IEP, of 07/27/2021, does not even mention Autism. It does include information confirming the Student is non-verbal, yet does not indicate any consideration of AAC. (Ex C 5) - The IEP, of 03/31/2022, includes a lack of successful Student testing (Ex D 1); includes Student behavior challenges (Ex D 3-4); continues to include concerns with Student communication (Ex D 2 & D 6); and does include Student Autism diagnoses. (Ex D 5) However, the IEP fails to address the areas of Student delay, and fails to indicate consideration of the Student’s previous success with ABA Therapy. (Ex D 8) The IEP also fails to address the assurance that the Parent was given that the Student would be placed in a program with AT and ABA. (Ex D 11-12) The IEP does refer to an AT evaluation, but offers neither results nor services to address this potential Student need. (Ex D 15)

The Student, at the time of the filing of the DPC, was [REDACTED] years of age. (Ex A )

No evidence is brought forth that the Student has benefitted in any way from the Services recommended via the evidenced IEPs.

To address the DOE failure to properly evaluate, and offer the Student a FAPE, for the past several years, the Parent engaged several evaluators who made recommendations regarding the Student’s appropriate program moving forward, and what each believed would be appropriate Compensatory Services, in light of the DOE failure. Each is considered above, and set forth below.

The DOE presents no evidence that any of the evaluations are inaccurate.

The DOE sets forth no evidence that the recommendations included therein are inappropriate.

Parent contends a reasonable basis for award of compensatory services, in light of the DOE failure, as detailed below. The DOE offers no objection to the calculations.

o 184 hours of compensatory speech-language therapy (Ex V 10-11); o 138 hours of compensatory occupational therapy (Ex W 14-15); o 46 hours of compensatory physical therapy (Ex X 11); o 40 hours of compensatory assistive technology training (AT), via two 30 minute weekly sessions (Ex Y 11-12); o 92 hours of compensatory parent counseling and training (Ex U 16 & Z 18-19) (T 88); o ABA Therapy

1,840 hours of compensatory ABA Therapy:

1:1 Applied Behavior Analysis (ABA) (1380 hours school-based and 460 hours home-based), with

92 Hours of ABA Supervision (2 hours weekly)

(Ex U 16 & Z) (T 88)

Parent also seeks Feeding Evaluation, at a rate not to exceed $3,000.00, in light of the DO failure to evaluate the Student in this area of potential need, and the recommendations received.

(T 88-89, Ex V 10, U 14)

TRANSPORTATION

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

In this case the Student is entitled to Compensatory Services, as Ordered below.

Most recent IEP includes a recommendation for Special Transportation. (Ex D 31-32)

I find evidence supports the provision of a special education transportation for the Student, to allow unfettered access to the Compensatory Services awarded below.

The DOE can facilitate this via Metro Cards for Parent and Student.

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 21020-2021, 2021-2022, and 2022-2023 school years

2. The [REDACTED] (UP) serves as an appropriate Student placement, for the 22-23 school year.

3. The DOE shall fund Student, 22-23 Tuition, for attendance at The [REDACTED] (UP) in the amount of $[REDACTED].00:

- $[REDACTED].00 to be funded via reimbursement to Parent; and - $[REDACTED].00 to be paid directly, by the DOE, to The [REDACTED] (UP).

4. The DOE shall fund the following compensatory services for the Student, to be utilized by 08/31/2025. Rate(s) to be paid at reasonable market rate, for each service obtained, via Parent chosen provider(s):

o 184 hours of compensatory speech-language therapy; o 138 hours of compensatory occupational therapy; o 46 hours of compensatory physical therapy; o 40 hours of compensatory assistive technology training (AT), via two 30 minute weekly sessions; o^[92] hours of compensatory parent counseling and training; o ABA Therapy:

1,840 hours of compensatory ABA Therapy 1:1 Applied Behavior Analysis (ABA) (1380 hours school-based and 460 hours home-based), with an additional 5. The DOE shall authorize an Independent Educational Evaluation, Feeding Evaluation, of the Student, at a rate not to exceed $3,000.00, via Parent chosen Evaluator.

6. The DOE shall provide the Student, and Parent, with Metro Cards to facilitate access to the Compensatory Services, Ordered above.

7. The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.

7. This decision is subject to appeal and review by the State Review Officer.

DATED: April 29, 2023

DANIEL AJELLO

DANIEL AJELLO

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.

Footnotes

[23] school year. Parent provided appropriate TDN, to the District. (Ex K) Student 22-23 Tuition is set forth as $[REDACTED].00, inclusive of related services. (Ex L 1)

[92] Hours of ABA Supervision