New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 591101 – NYC: 241983

FINDINGS OF FACT AND DECISION

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: 12/29/2022 Pre-Hearing Conference

01/06/2023

02/14/2023

03/20/2023 Status Conference

04/19/2023

04/21/2023

Actual Record Close Date: 05/12/2023

Decision Date: 05/20/2023

Hearing Officer: Daniel Ajello Esq.

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

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/06/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/14/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/20/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/19/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], Physical Therapist

[REDACTED], M.S., CCC-SLP

Speech-Language Pathologist

For the Department of Education:

[REDACTED], ESQ., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/21/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], Occupational Therapist

[REDACTED], BCBA, LBA

For the Department of Education:

[REDACTED], Impartial Hearing Representative

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Entered 12/29/2022 Ex. Document Date Page(s) A Parent’s Impartial Hearing Request/Due Process Complaint (DPC) 11/10/22 9 Due Process Complaint (DPC) B Individualized Education Program (IEP) 07/07/21 18 C Individualized Education Program 06/03/22 20 D Preschool Student Evaluation Summary Report 05/11/21 2 E Social History 05/11/21 2 F Psychological Report 05/11/21 9 G Naturalistic Observation 05/11/21 1 H Speech and Language Evaluation 05/28/21 7 I Occupational Therapy Evaluation 05/24/21 4 J Physical Therapy Evaluation 05/24/21 5 K Quarterly Report 01/03/22 1 L Letter to Department Requesting 03/21/22 16

Independent Educational Evaluation (IEE) With Confirmations M Parent email to Department re: Placement 12/08/21-01/14/2022 3 N Email chain with Parent and Department re: Placement 12/27/21 3 O Final Notice of Recommendation/Modification of IEP 07/01/22 1 P Letter to Department regarding Paraprofessional 12/20/22 1 Q Rationale for Increased Services 11/05/21 1

Entered 02/14/2023

R Amended Due Process Complaint (ADPC) 01/03/2023 8

S Affidavit of [REDACTED] 01/3/23 3

T [REDACTED] 01/1/23 2

U [REDACTED] Speech Services rate sheet 1 Hearing Officer ‘s Finding of Fact & Decision

Entered 03/20/2023 V Transportation Reimbursement Forms and Receipts 07/27/11- 08/26/22 13 W Email chain with Parent and Department

Re: transportation reimbursement 08/15/22-09/12/22 3 X Email from Student’s school to Department Re: Services 01/23/23 1 Y Independent Functional Behavior 01/26/23 25

Assessment and Behavior Intervention Plan Z Independent Applied Behavior Analysis 02/06/23 26

Skills Assessment AA Feeding and Swallowing Evaluation 02/23/23 9 BB Speech and Language Evaluation 02/23/23 9 CC Assistive Technology Evaluation 02/23/23 8 DD Occupational Therapy Evaluation 02/28/23 18 EE Physical Therapy Evaluation 03/13/23 13 Entered 04/19/2023 FF Neuropsychological Evaluation 03/16/23 20 GG Affidavit and Resume of [REDACTED] 02/21/23 7 HH Affidavit and Resume of [REDACTED] 03/22/23 6 II Affidavit and Resume of [REDACTED] 03/15/23 4 JJ Affidavit and Resume of [REDACTED] 03/10/23 5 KK Affidavit and Resume of Dr. [REDACTED] 04/10/23 11 LL Credit Card Statement for ABA Services from [REDACTED] 2022-2023 30 MM [REDACTED] Paraprofessional Expenses 2022-2023 1 Hearing Officer ‘s Finding of Fact & Decision

DEPARTMENT OF EDUCATION

Entered 04/21/2023

1 IRRELEVANT

2 IRRELEVANT

3 Withdrawn

4 Withdrawn

5 Quarterly report, 2/9/22, one page

6 Quarterly report, 1/3/22, one page

7 Quarterly report, 01/03/2022, one page

8 Approval of preschool services, 9/9/21, one page

9 Parental consent, 5/5/21, one page

10 DUPLICATE

11 Meeting notice, 6/25/21, one page

12 Consent, 5/11/21, one page

13 Withdrawn

15 OT, PT prescription, 9/29/20, one page

16 Withdrawn

17 Withdrawn

18 Withdrawn

19 Withdrawn

20 Withdrawn

21 Withdrawn

22 Withdrawn

23 Final notice of recommendation, 9/9/21, 18 one page

24 Consent electronic, 7/8/21, one page

25 Notice of meeting, 5/19/22, one page

26 Withdrawn

27 Recommendation, 11/22/22, one page

28 IEP change notice/letter, 7/1/22, two pages Hearing Officer ‘s Finding of Fact & Decision

IMPARTIAL HEARING OFFICER

Entered 12/29/2022 I Notice of IHO Appointment, 12/12/2022, 4 pages

II Notice of Appearance, 12/27/2022, 1 page

III Motion for Independent Educational Evaluations (IEEs), 12/23/2022, 35 pages Entered 02/14/2023 IV Interim Order Evaluations, 01/08/2023, 14 pages

V Subpoena, 02/14/2023, 1 page

VI DOE Motion for IHO Recusal (Withdrawn

at Hearing, 02/14/2023), 02/14/2023, 5 pages Hearing Officer ‘s Finding of Fact & Decision

INTRODUCTION

On 12/23/2022 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).

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

Hearing commenced via the filing of the DPC, dated 11/10/2022. (Ex A)

Pre-Hearing conference was held on 12/29/2022, and Hearing set to commence on 01/06/2023.

Hearing was set to address Parent request for IEEs, as requested via DPC, and Motion. (Ex A & IHO Ex III)

Order was issued, which included:

1. The Department of Education (DOE) failed to evaluate the Student in all areas of suspected disability.

2. The DOE failed to respond to the Parent request for Independent Educational Evaluations, in a timely manner.

3. The DOE shall immediately authorize, and fund, Independent Educational Evaluations as detailed below, via currently located provider(s) or similarly qualified provider(s) chosen by the Parent:

• A neuropsychological evaluation, to be conducted by Dr. [REDACTED], a New York State licensed neuropsychologist, at a rate not to exceed [REDACTED]; • A speech-language evaluation, to be conducted by a New York State licensed speech pathologist at [REDACTED] Speech Services, P.C., at a rate not to exceed $[REDACTED]; • An occupational therapy evaluation, to be conducted by a New York State licensed occupational therapist at [REDACTED] Speech Services, P.C., at a rate not to exceed $[REDACTED]; • A physical therapy evaluation, to be conducted by a New York State licensed physical therapist at [REDACTED] Speech Services, P.C., at a rate not to exceed $[REDACTED]; • An assistive technology evaluation, to be conducted by a New York State licensed speech pathologist at [REDACTED] Speech Services, at a rate not to exceed $[REDACTED]; Hearing Officer ‘s Finding of Fact & Decision

• A feeding evaluation, to be conducted by a New York State licensed speech pathologist at [REDACTED] Speech Services, P.C., at a rate not to exceed $[REDACTED];

• An applied behavior analysis skills assessment, to be conducted by a board certified behavior analyst or licensed behavior analyst at [REDACTED], PC, at a rate not to exceed

$[REDACTED]; and

• A functional behavioral assessment, at a rate not to exceed $[REDACTED] and a subsequent behavior intervention plan at a rate not to exceed $[REDACTED], to be conducted by a board certified behavior analyst or licensed behavior analyst at [REDACTED], PC.

(IHO Ex IV 13-14)

Hearing continued, on 02/14/2023. This day was set to allow the DOE an opportunity to defend against the allegations contained in the ADPC. (Ex R)

The DOE sought to enter documents into the record, which the IHO was unable to completely access. The Proposed Document List was reviewed and duplicates noted. The DOE was directed to resend the proposed Exhibits with the duplicates removed. (T 41-44, 78-79)

Parent Attorney advised the IHO that the Ordered Evaluations were underway. (T 74, IHO Ex IV)

The DOE sought IHO Recusal and adjournment of the Hearing date. (IHO Ex IV)

Lengthy discussions took place which ultimately resulted in the Hearing being rescheduled, as a Status Conference, in part due to the inability of the IHO to access the proposed DOE documents as well as the DOE preference to have the Ordered Evaluations on hand for consideration; and the DOE withdrawing its motion for the IHO to recuse, in part due to the Hearing being reset, in light of the inability of the IHO to access the DOE’s proposed exhibits. (T 80-81, 84, 87, 90-91)

Status Conference, of 03/20/2023, was held.

Additional Parent Documents were entered into evidence.

The DOE was still in the process of reorganizing the Documents it intended to submit into evidence. (T 101-102)

Parent Attorney updated the IHO regarding pending evaluations. (T 104-105)

Parent Attorney gave a brief status of the case, from their perspective: Hearing Officer ‘s Finding of Fact & Decision

“So as previously discussed, the parent is paying out-of-pocket for push-in services to the school, a one-on-one support for the student, as well as ABA at home. So we would be seeking reimbursement for that as well as that to continue ongoing as part of the student's program. Obviously, we would need a new IEP meeting to review these evaluations in terms of the service mandates. But the evaluation reports do provide clarification as well as to the compensatory service numbers we would be seeking and the type of program the student needs, going forward.” (T 106) Hearing was set to continue, on 04/19/21023, to allow the DEO an opportunity to defend against the allegations contained in the ADPC (Ex R); and 04/21/2023, for the Parent’s case. Appended to the record are lists of persons in attendance and the documents received in evidence. Due Process Complaint (DPC) (Ex A), as amended via APDC (Ex R), alleges a failure of the DOE to provide an appropriate IEP and placement for the 21-22 and 22-23 school years. (Ex R 1)

Parent reviews Students educational history (Ex R 2-4), alleging a failure: to properly evaluate the Student (Ex R 4); a failure to make appropriate related service, program and placement recommendations (Ex R 5); a failure to implement IEP recommendations; and a failure to recommend AT services and PCAT (Ex R 5-6).

Parent seeks a variety of forms of relief to remedy the alleged failure, including, funding for IEEs (Ex R 6, addressed via Interim Order IHO Ex IV); Compensatory Educational Services with transportation costs; Assistive Technology (AT) Services; an appropriate placement; reimbursement for Parent expenditures related to Student engaged services (Ex R 7); reimbursement to Parents for the privately paid ABA and [REDACTED] services and privately paid paraprofessional services upon the Parents’ submission of proof of payment (Ex R 8); a finding that the DOE’s failure to immediately appoint an IHO impeded the Parents’ access to their due process rights, and caused unreasonable delays to the resolution of this matter; and an Order that the DOE’s Implementation Unit authorize any services within 14 days and that payment must be made within 30 days of receipt of invoices. (Ex R 8)

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

At Hearing, of 04/19/2023, the DOE, sought adjournment of the matter, which was denied. (T 126, 137-139)

The DOE Attorney advised that the DOE was not conceding a denial of FAPE, but was not presenting Witnesses. The DOE relied upon Documentary Evidence. (T 136 & 147)

The DOE argues:

- Parent's requested relief concerning placement at an appropriate school is “premature and can only be addressed at the Parent's next annual IEP meeting or an interim IEP meeting, as the hearing officer has already stated at the last hearing.”; - “For the same reasons, the Parent's requested relief for assistive technology services cannot be awarded by the hearing officer and must be addressed by the CSE at an IEP meeting.”; - “Thus, the only requested relief for the hearing officer to consider is the compensatory services. And the evidence will show…that the Parent will be unable to present sufficient evidence to support the requested relief…In the alternative, the evidence will show that, overall, the Parents have not demonstrated that the compensatory services are necessary to put the student in the position he would have been in had the District complied with its obligations under the IDEA...In addition, the evidence will show that the recommended compensatory services in the aggregate are not workable or practical for a…[REDACTED] student. The evidence will also show the Parent's requested reimbursement for ABA therapy and [REDACTED] services should be denied.” (T 147-148) Hearing Officer ‘s Finding of Fact & Decision

At Hearing, the Parent Attorney outlined the Parent’s position, and supported its position via Documentary Evidence and Oral Testimony. (T 141-146)

Parent Attorney summarized the Parent’s argument via closing statement, at Hearing, of 04/21/2023:

- DOE has continued to fail to offer the Student a FAPE; - Despite parent's extensive efforts to work with the Department and to even locate providers on their own, the Department continues to fail to take steps to ensure [Student] receives a FAPE; - The DOE has failed to comprehensively evaluate the Student, which led to IEEs (IHO Ex IV, T 230); - The DOE continuously recommended inadequate services, despite the parent's request for additional services for the Student; - The DOE failed to provide the services it mandated for the Student, leaving him to receive little to no services for the school years at issue; - Student's parents informed the DOE about Student's placement closing in December of 2021, and requested assistance; - Student made gains in Early Intervention when he was receiving applied behavior analysis (ABA), but despite this, the Department failed to recommend this service for the Student on his IEP; - It also failed to recommend PCAT or assistive technology, both of which could have assisted [Student] in accessing his education (T 231); - Student was evaluated per Interim Order providing a clear picture of Student’s needs (IHO Ex IV); - Parent seeks an Order which includes the following: o a finding of a denial of a FAPE for the 21-22 and 22-23 school year; • the DOE to fund compensatory services by independent providers of the parent's choosing at their normal and customary rates as follows: o 920 hours of ABA (Ex Y 18 & Ex 18 Z 24-25); o 184 hours of PCAT (Ex Y 18 & Z 24-25; Hearing Officer ‘s Finding of Fact & Decision o 207 hours of speech language therapy (Ex BB 8); o 46 hours of feeding therapy (Ex AA 8); o 92 hours of occupational therapy (Ex DD 16) (T 232); o 104 hours of Physical Therapy (Ex EE 12); o 46 hours of social skills training based off the one-hour week for a 12-month school year (Ex FF 14); o hours be put in a bank so the Parent and Student can use them as they wish to make up for the DOE’s failure to provide Student with appropriate services (T 233); o Order DOE to locate an appropriate placement in compliance with the recommendations of the independent evaluator, and if the DOE cannot identify an appropriate placement within 15 days of an IEP meeting, the DOE to defer Student to the Central Based Support Team (CBST) for a nonpublic school placement, and should the DOE fail to locate an appropriate nonpublic school placement within 30 days of the IEP meeting, then the DOE to fund a private school of the Parent's choosing (T 233); o The DOE to hold an IEP meeting within 14 days of an Order to review and consider the recommendations of the independent evaluators and implement Student's January 2023 independent behavior intervention plan; o The DOE to reimburse the parent: • for privately paid services, including ABA services, through [REDACTED] in the amount of [REDACTED] a week for the 2021/2022 school year starting December 2021 and 2022/2023 school year (Ex LL) • for privately paid paraprofessional services in the amount of [REDACTED] a week from November of 2022 until the end of the 2022/2023 school year (Ex MM) • for ten hours a week of at-home ABA services for the remainder of the 2022/2023 school year (Ex Y 18) Hearing Officer ‘s Finding of Fact & Decision

• a reevaluation in 12 months to assess if Student's assistive technology needs have changed (Ex CC 8)

• for transportation to and from Student’s related services (Ex V) (T 234) o The DOE's failure to immediately appoint a hearing officer impeded the parent's access to their due process rights and caused unreasonable delays to the resolution of this matter; and o The DOE's Implementation Unit to authorize any services within 14 days and that payment be made within 30 days of receipt of invoices. (T 235)

Parent Attorney adds that she believes an IEP meeting is set for 4-28-2023. Parent Attorney still seeks Order requiring an IEP meeting to review the recently completed evaluations. (T 237)

The DOE Attorney argues:

- Documentary evidence has been submitted to show that it provided a FAPE; - The DOE asserts that the evidence showed that the recommended program of new and compensatory ABA therapy and related services, in the aggregate, will not be manageable and, in fact, will be counterproductive to the student; and evidence shows that the number of hours recommended for new and compensatory services is not appropriate for a [REDACTED] student, even if it puts the student in the same place as he would have been if DOE had provided a FAPE (T 235); - The total number of hours of therapy will exceed 34 per week, or about five hours a day; Student will not have enough free time for that extensive amount of therapy; - The evidence shows that there is a very real question of whether the student will have the stamina, patience, attention, and focus, given his attention deficits, to be able to effectively participate in that extensive of a program for the therapy to be effective either individually or in the aggregate; Hearing Officer ‘s Finding of Fact & Decision

- There is a very real question whether the therapy program will actually be counterproductive and therefore not as effective as if, or as it would have been, or would be, if the lower amount of hours for the various types of therapy was recommended and approved. (T 236)

Regarding the DOE arguments, there has been no evidence submitted to indicate the Student could not effectively utilize the total amount of compensatory services sought. Nor has any evidence been submitted to indicated the hours would be unmanageable.

The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below:

[REDACTED], Parent

Student’s Parent provided Testimony via Affidavit (Ex S), and at Hearing, that included:

- Parent’s insurance company referred her to the ABA service agency ([REDACTED]) (T 151); - Payment of [REDACTED] daily, are still being made for the ABA services (T 152); - Student receives ABA services at home, of four hours weekly, which at times is ten hours weekly (T 152); - Student is receiving paraprofessional services via [REDACTED], via a former ABA therapist (T 152-153); - Paraprofessional is currently paid [REDACTED] an hour, or roughly, [REDACTED] a week (T 153); - Student has about five hours time between arriving home, from school, and bedtime (T 217); - Witness believes the Student time would be used for therapy, addressing things which include eating and dressing (T 207); - Student will be able to handle a full school day and five hours of therapy on a daily basis (T 220); and - Referring to Exhibit LL, Witness states that credit card was utilized to pay for Hearing Officer ‘s Finding of Fact & Decision

ABA services, of [REDACTED] daily (T 224).

[REDACTED], Physical Therapist

Witness provided Testimony via Affidavit (Ex HH), and at Hearing, that included:

- Witness was asked how she calculated the recommended 104 hours of compensatory physical therapy services: “I used a quantitative and qualitative approach based on [REDACTED]'s current abilities as well as the fact that he did not receive physical therapy services for over a year…and that was after COVID, the year of COVID, where he was receiving physical therapy services only through telehealth… He was mandated physical therapy 2x45 minutes weekly, which -- I'd have to add that up in my calculator for 46 weeks.” (T 161-162); - Witness recommends the compensatory services be provided over the next 18 months, so they can be spread out (T 162); and - Witness is not aware of other recommended Student services (T 163).

[REDACTED], M.S., CCC-SLP, Speech-Language Pathologist

Witness provided Testimony via Affidavit (Ex JJ), performed several Student evaluations (AA, BB & CC) and provided Testimony at Hearing, which included:

- Recommendation for individual and group therapy: “I recommended individual therapy…that [REDACTED] could work on all of his goals with individual attention. I recommended group therapy so that [REDACTED] would be able to work on his goals and specifically his pragmatic social skills in a social setting of the group.” (T 168-169); - Recommendation: “…is based on many different things, so including and mostly my evaluation of [REDACTED] as well as speaking to his current speech therapist and what his current skill level is.” (T 169); - Recommendation is based upon 46 week school year (T 170); - Witness continued that: “My recommendation for these hours is based on looking at his IEP, speaking to the parent, speaking to the school, and his current skill level and recommending these services to allow him to catch up to Hearing Officer ‘s Finding of Fact & Decision where he would be.” (T 170); - Witness is not aware of the totality of other recommended Student services (T 170); - Student is recommended to 30 minutes of additional therapy weekly: “The student currently has a significantly limited diet, sensory difficulties with food as well as oral-motor difficulties, leading to significant food selectivity.

Therefore, I recommended individual feeding therapy. Due to my clinical expertise and my experience as well as the way that the student presented, I feel that once a week for 30 minutes would be sufficient, a sufficient mandate for the student to work on their feeding needs.” (T 171-172); - Recommendation for compensatory services is based upon the lack of delivery of services (T 172); - Witness believes the Student requires 46 hours of feeding therapy due to missing this needed service in the past, due to lack of a feeding evaluation (T 172-173); and - Recommendation of Compensatory hours are intended to be individual. (T 173)

[REDACTED], Occupational Therapist

Witness provided Testimony via Affidavit (Ex II), and at Hearing, that included:

- Inability to complete testing revealed that Student: “…just requires an intense level of support, visuals, redirection, lots of breaks, extra time for transitions, which the MFUN, if you use it as a standardized assessment, it doesn't allow for that level of support. For this reason, I did evaluate his skills using, you know, a number of other informal and play-based assessments, which I think gave us a more accurate description of who [Student] is.” (T 192-193); and - Witness was asked how specifically two additional hours of OT will help the Student any more than the three 45-minute sessions on a weekly basis? Witness responded: “I think these compensatory hours are crucial for [Student], given a number of factors. Where he is now is presenting with significant delays across several OT domains.

There was also a period of time of about one year where he was getting no OT Hearing Officer ‘s Finding of Fact & Decision services that he desperately needed in order to participate in daily routines at home, at school, and in the community. And [Student] is really a child right now who needs a lot of time to build those foundational skills that are going to prepare him to work at the table at school, or to focus for longer periods of time, or to even stay seated for the duration of a lesson. So I would say this compensatory services, they're essential.” (T 193-194)

[REDACTED], BCBA, LBA

Witness provided Testimony via Affidavit (Ex GG), and at Hearing, that included:

- Regarding completing the Student’s assessment: “…it was difficult to run the assessment due to [Student]…engaging in certain behaviors, some, like, noncompliance or stereotypic behaviors which are reinforcing to him…but with help with the mother, we were able to get through assessment portions. But it was very difficult to assess…his true strengths due to he was just engaging in in activities that he wanted to do as opposed to…completing tasks that were presented during the assessment.” (T 203); - Results of the assessment were not compromised (T 203); - Witness observed the Student in the classroom (T 204); - Witness recommends a full time ABA program: “it's my professional…suggestion that he receive a full-time academic structure which specializes in ABA. I do not think he will benefit from half-time program unless he was able to receive a push-in service with the special -- with a BCBA working with him…when he's not receiving…the full-time ABA program. (T 204-205); - Without the full time ABA program the Student would regress (T 205-206); - Witness recommends 20 additional weekly hours of home-based ABA therapy (T 206); - Recommendation for Parent Counseling and Training (PCAT) is for two hours weekly, as compensatory services (T 210); and - ABA services are tailored to fit a child’s schedule (T 212-213). Hearing Officer ‘s Finding of Fact & Decision

A Parent’s Impartial Hearing Request/Due Process Complaint (DPC) 11/10/22 9

Due Process Complaint (DPC)

Details Parent allegations relating to Student and denial of a FAPE, for the 21-22 and 22-23 school years. (Ex A 1-6)

Demands various forms of relief to address alleged failure. (Ex A 6-8)

Later Amended, via Amended DPC. (Ex R)

B Individualized Education Program (IEP) 07/07/21 18

Confirms Student need for special education services:

- Classification of Preschool Student with a Disability (Ex B 1); - Includes a variety of Student challenges, including, Student diagnosed with Autism and Asthma (Ex B 3) - Recommends: o Special Education Itinerant Teacher Services (SEIT), Individual, Direct, for 10 hours weekly o Speech Language Therapy (SLP), Individual/Direct, Twice weekly, for 30 minute sessions o Physical Therapy (PT), Individual/Direct, Twice weekly, for 30 minute sessions o Occupational Therapy (OT), Individual/Direct, Twice weekly, for 30 minute sessions (Ex B 14)

- Ten month school year (Ex B 15); and - No Special Transportation Services (Ex B 16). C Individualized Education Program 06/03/22 20

Confirms Student need for special education services:

- Classification of Preschool Student with a Disability (Ex C 1 & 3); - Includes a variety of Student challenges (Ex C 4), including Student diagnosed with Autism and Asthma (Ex C 5) - Refers to an ABA Report regarding transition in the classroom and interactions with peers (Ex C 5); Hearing Officer ‘s Finding of Fact & Decision

- Recommends:

o Special Education Itinerant Teacher Services (SEIT), Individual, Direct, for 12 hours weekly o Speech Language Therapy (SLP), Individual/Direct, Twice weekly, for 45 minute sessions o Physical Therapy (PT), Individual/Direct, Twice weekly, for 45 minute sessions o Occupational Therapy (OT), Individual/Direct, Twice weekly, for 45 minute sessions (Ex C 1 & 16)

- Twelve month school year (Ex C 17); and - No Special Transportation Services (Ex C 19. D Preschool Student Evaluation Summary Report 05/11/21 2 Student developmental challenges are outlined in areas of: Cognitive Development, Social Emotional Development, Physical Development, Communication Development, and Adaptive Behavior. (Ex D 1-2) E Social History 05/11/21 2

Identifies Student as one with Autism Spectrum Disorder, with eligibility to be determined at Committee on Preschool Special education (CPSE) meeting. F Psychological Report 05/11/21 9

Confirms Student communication and physical challenges. (Ex F 8-9)

Recommends additional evaluations. (Ex F 9) G Naturalistic Observation 05/11/21 1

Observation of Student behaviors, including “walked on his toes and flapped his hands.” (Ex G 1) H Speech and Language Evaluation 05/28/21 7

Confirms Student delay and need for SLT services. Hearing Officer ‘s Finding of Fact & Decision

I Occupational Therapy Evaluation 05/24/21 4

Confirms Student delay and need for OT services.

J Physical Therapy Evaluation 05/24/21 5

Confirms Student delay and need for PT services.

K Quarterly Report 01/03/22 1

Details Student challenges and recommends increase SEIT services.

L Letter to Department Requesting 03/21/22 16

Independent Educational Evaluation (IEE) With Confirmations

Parent objects to DOE evaluations and demands evaluations as awarded in Interim Order, of 01/08/2023. (IHO Ex IV)

M Parent email to Department re: Placement 12/08/21-01/14/2022 3 Parent communicates with the DOE with concerns relating to the sudden closing of Student’s school: “I am following up regarding an email I sent on December 8th stating that [Student’s] preschool unexpectedly closed down and he is in need of a placement for the remainder of this school year.” (Ex M 2)

The DOE response: “Please understand that you can place [REDACTED] in the school of your choosing.” (Ex M 1)

The lackluster response of the DOE appears to ignore its obligation to identify, locate, and evaluate all children with disabilities from birth, even if they do not provide the children educational services. 20 U.S.C. § 1412(a)(3), 34 C.F.R. § 300.111.

This obligation is triggered when the school district has a reason to suspect a need for evaluation. Board of Educ. of Wappingers Cent. Sch. Dist. v. M.N., No. 16-CV-09448(TPG), 2017 WL 4641219, 71 IDELR 9 (S.D.N.Y. Oct. 13, 2017), appeal filed, No. 17-3707 (2d Cir. Nov. 14, 2017) In this case the Student is already identified as one in need of special education services, and the Parent advises the DOE that the services recommended to the Student are Hearing Officer ‘s Finding of Fact & Decision jeopardized by the upcoming school closing. (Ex B)

N Email chain with Parent and Department re: Placement 12/27/21 3 Parent communicates with the DOE seeking information and guidance regarding the upcoming school year, to which the DOE representative responds by referring the Parent to a website via a link.

O Final Notice of Recommendation/Modification of IEP 07/01/22 1 Parent receives summary of Student recommended program and placement, and returns noting desire to receive the recommended services, and objection to the sufficiency of the IEP.

P Letter to Department regarding Paraprofessional 12/20/22 1 Parent notifies the DOE that Student requires additional support in the classroom and as a result, “we are requesting the Department provide [Student] with a paraprofessional in the classroom immediately. Should the Department not provide [Student] with a paraprofessional within ten (10) days, we have a private paraprofessional available to provide [Student] with this service. Please be advised that we will be reserving our right to seek reimbursement for the private paraprofessional’s services.” (Ex P 1)

Q Rationale for Increased Services 11/05/21 1

Details Student current services: SEIT services (10 x 60); and Related Services of Occupational Therapy (2x30), Physical Therapy (2x30) and Speech services (2x30) per week, noting the related services are not being provided.

Student teachers report that he has required constant 1:1 adult supervision throughout the school day. “When given individualized support through this SEIT, he is learning to follow the classroom routine, transitions and follow simple directions. When the SEIT is not in the classroom, one of the classroom teachers are needed to remain with [Student] to assist with his impulsive behaviors, poor attending skills and distractions to classroom activities. [Student] has had great difficulty navigating the classroom independently. Due to his severe sensory integration difficulties, he often struggles to maintain attention during all classroom activities, whether in whole group or small group. [Student] requires individualized support including Hearing Officer ‘s Finding of Fact & Decision visual schedules, sequencing of activities, and/or directed verbal instructions to help him attend throughout the school day. These sensory challenges and student’s high level of impulsivity impede his ability to understand classroom language; therefore, he requires constant adult direction for meeting time, small group activities, peer play and transitions throughout the school day.” (Ex Q 1)

“According to his previous teachers', he has shown regression since the summer session in school. He is often not productive in the classroom setting unless provided 1:1 adult support and constant redirection.” (Ex Q 1) Student would: “…greatly benefit from an increase in SEIT hours per week to support him in his daily classroom routine and activities. Without additional support, he is in jeopardy of regressing even more so during the days where this is no 1:1 adult support.” (Ex Q 1)

R Amended Due Process Complaint (ADPC) 01/03/2023 8

Includes allegations contained in the ADPC (Ex A)

Additional information, allegations and sought after relief includes:

“Initially, the Parents were paying out of pocket for private, push-in ABA services at [REDACTED] placement. After discussion with [REDACTED] current placement, it was determined that a paraprofessional would provide the support that [REDACTED]required. On December 22, 2022, the Parents sent a letter to the Department requesting it provide [REDACTED]with a paraprofessional in his current placement. The Department failed to respond. The Parent has been paying for a private paraprofessional out of pocket.” (Ex R 4) Amended sought after relief includes: - If the Department fails to locate an appropriate non-public school (NPS) placement through the CBST within 30 days of the IEP meeting, then the Department shall fund a private school of the Parent’s choosing; - The IHO shall order the Department to reimburse the Parents for the privately paid ABA and [REDACTED] services and privately paid paraprofessional services upon the Parents’ submission of proof of payments. (Ex R 7-8) Hearing Officer ‘s Finding of Fact & Decision

S Affidavit of [REDACTED] 01/3/23 3

Student’s mother provides Testimony that includes:

- Student educational history, including, being unable to engage Student mandated related services for the 21-22 school year (Ex S 1-2); - Student preschool closed which prevented him from receiving services for three weeks, during which time he regressed (Ex S 2); - IEP meeting of 06/03/2022 resulted in recommendation of Student services, including

12 hours of SEIT, which Parent was told was the maximum (Ex S 2); - Beginning July of 2022 Student attended a new school through the end of summer, when Parent was told a seat was not available for September (Ex S 3); - Parent received a Public School placement to which Parent objected believing it was not appropriate (Ex S 3); - Parent placed the Student at [REDACTED] School in September of 2022, where he receives OT and SLT, but has not received SEIT or PT services (Ex S 3); - Parent had engaged push in school ABA services through mid-November, then switched to home ABA services, simultaneously engaging the services of a paraprofessional for the school day; - From September through November ABA services were provided at [REDACTED] daily; - Beginning in November 2022, the paraprofessional has been paid [REDACTED].00 hourly, for 6.5 hours each school day, at a cost of [REDACTED] weekly; - Student continued to receiver home ABA services at a cost of [REDACTED] daily; - PCAT has never been provided by the DOE, nor was it mentioned at any IEP meeting; and - A letter was sent to the DOE requesting a paraprofessional, and a response has not been received. (Ex S 3, Ex P) T [REDACTED] 01/1/23 2

Details Rates charged for various agency services. U [REDACTED] Speech Services rate sheet 1 Hearing Officer ‘s Finding of Fact & Decision

Details Rates charged for various services.

V Transportation Reimbursement Forms and Receipts 07/27/11- 08/26/22 13

Costs incurred in providing transportation to access Student’s related services.

W Email chain with Parent and Department

Re: transportation reimbursement 08/15/22-09/12/22 3 Parent communication, with the DOE, regarding transportation reimbursement.

X Email from Student’s school to Department Re: Services 01/23/23 1 [REDACTED] School Childhood Division Director communicates with the DOE regarding the need to engage Student’s SEIT services.

Y Independent Functional Behavior Assessment (FBA) and Behavior Intervention Plan

(BIP 01/26/23 25

Reviews Student records, including IEPs and evaluations, along with Data Collected for the Assessment. (Ex Y 1-15)

Recommendations made include:

- Student ENROLLMENT IN A SPECIALIZED SCHOOL WITH A BCBA ON

STAFF AND A ONE-TO-ONE INSTRUCTIONAL FORMAT (Ex Y 15-16); - Use of a BIP, as provided (Ex Y 17, 19-25);

- 10 HOURS A WEEK OF HOME-BASED ABA THERAPY PROVIDED BY A

BOARD-CERTIFIED BEHAVIOR ANALYST (BCBA) OR A LICENSED

BEHAVIOR ANALYST (LBA) (Ex Y 17-18); and

- ONGOING PARENT/CAREGIVER TRAINING (Ex Y 18); Recommendation is also made specifically for Compensatory Education Services:

- “I recommend a bank of compensatory hours of ABA to put [Student] in the position he would have been in had the DOE provided appropriate special education services. Given [Student’s] needs, he should have been receiving 10 hours a week of ABA therapy during the time FAPE was denied to him. 10 hours of ABA therapy per week multiplied by 46 weeks in the school year, over 2 years is a total of 920 hours of ABA Hearing Officer ‘s Finding of Fact & Decision therapy.” (Ex Y 18); - “I also recommend a bank of compensatory hours of Parent Training to enable the Parent to reinforce the behavior plan in place at school and collaborate effectively with [Student’s] team of educators. [Student] and his family should have been receiving these services for the last 2 years. In my professional opinion, [Student] should be entitled to a bank of compensatory hours to enable him to reach the positions he would have been in had the DOE provided appropriate services. Two hours of parent training per week across 46 weeks in 2 years is a total of 184 hours of Parent Training.” (Ex Y 18)

Z Independent Applied Behavior Analysis Skills Assessment 02/06/23 26

Assessment reviews Student’s educational history and records. (Ex Z 1-8)

Testing results include delays in aeras of: Cooperation and Effectiveness, Visual Performance (Ex Z 9), Receptive Skills, Motor Imitation (Ex Z 10), Vocal Imitation, Requests, Labeling (Ex Z 10-11), Dressing Skills, Social Interactions (Ex Z 12-13), and Group Instruction. (Ex Z 14)

Assessment details Barriers to Treatment Observed, such as Negative Behaviors and being Prompt Dependent. (Ex Z 14-16)

Assessment System utilized is detailed with Student results. (Ex Z 19-21)

Recommendations made include:

- Enrollment in a specialized school with a BCBA on staff and a one-to-one instructional format (Ex Z 22-23); - Utilization of the Behavior Intervention Plan provided (Ex Z 23); - A Predictable and Quiet Environment (Ex Z 23-24); - 10 hours a week of home-based ABA therapy provided by a Board-Certified Behavior Analyst (BCBA) or a Licensed Behavior Analyst (LBA) (Ex Z 24); and - Ongoing Parent/Caregiver Training. (Ex Z 24) Recommendation is also made specifically for Compensatory Education Services: - “Compensatory ABA and Parent Training Hours I recommend a bank of compensatory hours of ABA to put [Student] in the position he would have been in had the DOE provided appropriate special education services. Given [Student’s] Hearing Officer ‘s Finding of Fact & Decision needs, he should have been receiving 10 hours a week of ABA therapy during the time FAPE was denied to him. 10 hours of ABA therapy per week multiplied by 46 weeks in the school year, over 2 years is a total of 920 hours of ABA therapy. (Ex Z 24); and - “I also recommend a bank of compensatory hours of Parent Training (PCAT) to enable the Parent to reinforce the behavior plan in place at school and collaborate effectively with [Student’s] team of educators. [Student] and his family should have been receiving these services for the last 2 years. In my professional opinion, [Student] should be entitled to a bank of compensatory hours to enable him to reach the positions he would have been in had the DOE provided appropriate services. Two hours of parent training per week across 46 weeks in 2 years is a total of 184 hours of Parent Training.” (Ex Z 25)

AA Feeding and Swallowing Evaluation 02/23/23 9 Evaluation sets forth areas of Student challenge and delay, concluding with recommendations that include:

- Individual feeding therapy – provided 1x/week individually for 30 minutes per session, to target sensory-based strategies for advancing feeding skills, and mealtime behaviors and structure. The treating therapist should have formalized training in both oral motor treatment methods (e.g. Beckman Oral Motor Protocol, Talk Tools) and sensory based strategies (e.g. Sequential Oral Sensory (SOS) Approach). It is important to note that while behavioral strategies may be used within treatment, a purely behavioral approach will not have any positive results, due to [[REDACTED]’s] sensory-based feeding difficulties; and - Compensatory services in the form of a bank of 46 feeding therapy hours (providing approximately .5 hours 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 [REDACTED] whole. This amount of services is separate and additional to services already rendered or currently being received. The hours would give [REDACTED] consistent access to therapeutic intervention that will address his specific feeding deficits. Providing these services will allow [Student] to have the Hearing Officer ‘s Finding of Fact & Decision opportunity to address his specific needs in a consistent manner. [Student] needs therapy to establish the foundational feeding skills he needs. It is recommended that these hours shall not have an expiration date, to allow access to them over time.

Additionally, these hours should be delivered both in [Student’s] academic, and home environments, to allow for consistent carryover and training of all adults that support [Student].

BB Speech and Language Evaluation 02/23/23 9

Details Student SLT challenges and areas of delay, concluding with recommendations that include:

- Individual speech-language therapy- provided 2x/week individually for 45 minutes; - Speech-language therapy in a group of 2 1x/week for 45 minutes to target social/pragmatic skills; and - Compensatory Services in the form of a bank of 207 speech and language hours (providing approximately 2.25 hours a week for 46 weeks, for approximately 2 years). The hours would give [Student] consistent access to therapeutic intervention that will address his significant deficits. Providing these services will allow [Student] to have the opportunity to address his specific needs in a consistent manner. [Student] intensive therapy to establish the foundational language skills he is lacking. This recommended amount was derived from a qualitative clinical approach, considering [Student] current needs and the time he will need to "catch up" to make him whole. These hours are recommended in addition to his provision of service to help expedite minimizing the gaps that are present. Unfortunately, without a robust clinical program, the gaps will continue to widen. It is recommended that these hours shall not have an expiration date, to allow access to them over time. (Ex BB 8)

CC Assistive Technology Evaluation 02/23/23 8

Evaluation concludes that Student is not recommended to Assistive Technology services at this time. Hearing Officer ‘s Finding of Fact & Decision

DD Occupational Therapy Evaluation 02/28/23 18

Details Student OT challenges and areas of delay, concluding with recommendations that include:

- It is recommended that [Student] should receive 3 OT sessions at 45 minutes per session, individually, at school. If these services are not able to be provided in their entirety in the school setting, they should be provided in an outpatient clinic environment (sensory gym). (Ex DD 15); - . Compensatory occupational therapy services are recommended in the form of a bank of 92 hours (approximately 2 hours per week, for 46 weeks, for 1 year). These hours will give [Student] consistent access to therapeutic intervention to address his significant areas of need. This includes sensory processing, emotional regulation, attention, following 1-2 step directions, transitioning from one activity to another, play, fine motor skills, gross motor skills, whole body coordination, grasping skills, ADL skills, and more. a. This recommended amount was derived from considering [Student’s] current needs, insufficient occupational therapy mandates in the past, and a gap in services between ages 3 and 4 that contributed to further widening of existing developmental delays. b. This is a critical developmental time for [Student] and he requires occupational therapy intervention in order to develop the foundational skills that are essential for success as academic, cognitive, and classroom demands increase. Without these foundational skills, [Student] will have difficulty participating in and accessing his school curriculum and daily routines. Providing [Student] with the appropriate support now will allow him to access his curriculum moving forward. c. These hours are recommended in addition to the recommended provision of service to help minimize the gaps that are present. Unfortunately, without a robust clinical program, the gaps will continue to widen. i. It is recommended that these hours shall not have an expiration date, to allow access to them over time. ii. It is recommended that these hours be provided in an outpatient clinic environment. Given [Student’s] significant sensory and self-regulation Hearing Officer ‘s Finding of Fact & Decision needs, it is essential for him to have access to specialized sensory equipment. iii. These makeup services will allow [Student] to consistently make improvements in the above mentioned skills for greater independence and safety in school, at home, and within his community. (Ex DD 15-16)

EE Physical Therapy Evaluation 03/13/23 13

Details Student PT challenges and areas of delay, concluding with recommendations that include:

- Student should receive 2 Physical Therapy sessions per week for 45 minutes per session (Ex EE 11); and - Compensatory physical therapy services in the form of a bank of 104 physical therapy hours (providing 90 minutes a week for 46 weeks, for approximately 1.5 years). 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 interruptions in services between 2020 to the present as well as to make up for the time 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 past years, 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. (Ex EE 12)

FF Neuropsychological Evaluation 03/16/23 20

Reviews Student educational and clinical history, noting areas of challenge and delay.

Diagnosis include: Autism Spectrum Disorder, Mixed Expressive Receptive Language Delay, and Attention Deficit/ Hyperactivity Disorder – Primarily Hyperactive Type. (Ex FF 11)

Recommendations moving forward include an array of services and supports, including:

- SLT, three times weekly Hearing Officer ‘s Finding of Fact & Decision

- Social Skills Group, three times weekly

- OT

- PCAT (Ex FF 12)

- Supports for transitions (Ex FF 12)

- Support for Student’s language skills (Ex FF 13)

- Social Skill supports (Ex FF 14)

- BIP

- OT (Ex FF 15)

GG Affidavit and Resume of [REDACTED] 02/21/23 7

Board Certified Behavior Analyst (BCBA, employed by [REDACTED], who conducted Assessment (Ex Z), provided Testimony that included:

- A review of her qualifications (Ex GG 1); - A review of Assessment procedures, and results (Ex GG 1-2); - Recommendations include: o Enrollment in a specialized school o Use of a BIP o 10 hours weekly of home ABA therapy, in addition to his school program o 2 weekly hours of PCAT (Ex GG 3) o Compensatory Services of: • 920 hours of ABA • 184 hours of PCAT (Ex GG 3)

HH Affidavit and Resume of [REDACTED] 03/22/23 6

Physical therapist who completed evaluation provided Testimony that included (Ex EE); - A review of his qualifications (Ex HH 1); - Review of evaluation, and results, of the Student’s evaluation (Ex HH 1-3, Ex EE); - Recommendations included:

o PT services twice weekly for 45 minute sessions o Compensatory services of 104 hours of PT to make up for necessary Hearing Officer ‘s Finding of Fact & Decision intervention he did not receive (Ex HH 3)

II Affidavit and Resume of [REDACTED] 03/15/23 4

Occupation Therapist who completed Student evaluation (Ex DD), provided Testimony that included:

- A review of qualifications (Ex II 1); - A review of Student evaluation procedures and results (Ex II 1-3); - Recommendations of: o OT services three times weekly, for 45 minute sessions o A sensory diet; o 92 hours of Compensatory service due to a lack of receipt of needed services (Ex II 3)

JJ Affidavit and Resume of [REDACTED] 03/10/23 5

Speech Language Pathologist Therapist who completed Student evaluation (Ex BB), provided Testimony that included:

- A review of qualifications (Ex JJ 1); - A review of Student evaluation procedures and results (Ex JJ 1-2, 3); - Recommendations of: o Individual SLT, twice weekly, for 45 minute sessions o Group SLT, once weekly, for a 45 minute session o 207 hours of compensatory services to address significant deficits due to DOE failure to provide needed intervention over the last two years (Ex JJ 2) o Individual Feeding Therapy, once weekly for a 30 minute session o 46 hours of Compensatory service to make up for not receiving this service in the past (Ex JJ 3) o Assistive Technology supports (Ex JJ 4) Hearing Officer ‘s Finding of Fact & Decision

KK Affidavit and Resume of Dr. [REDACTED] 04/10/23 11

Psychologist who completed Student evaluation (Ex FF), provided Testimony that included:

- A review of qualifications (Ex KK 1); - A review of Student evaluation procedures and results (Ex KK 1-2); - Recommendations of: o Small class, full time special education program (Ex KK 2-3) o Social Skills instruction three times weekly o SLT o OT

o PCAT

(Ex KK 3)

LL Credit Card Statement for ABA Services from [REDACTED] 2022-2023 30

Proof of financial obligation for privately engaged ABA services.

MM [REDACTED] Paraprofessional Expenses 2022-2023 1

Invoice for paraprofessional services engaged by the Parent, for the Student, in the amount of $[REDACTED].

The DOE submitted Evidence is considered below:

5 Quarterly report, 2/9/22, one page

Confirms Student need for special education services, detailing recommended services, and the fact that Related Services are not being delivered, and the need for 1:1 support:

Student “…is a [REDACTED]-old boy who is currently receiving the following services: SEIT services (10 x 60), but related services: Occupational Therapy (2x30), Physical Therapy (2x30) and Speech services (2x30) have not located providers yet. [REDACTED] has required constant 1:1 adult supervision throughout the classroom routine each school day. When given individualized support, he is slowly learning to follow the classroom routine, transitions and follow simple directions. When the SEIT is not in the classroom, one of the classroom teachers Hearing Officer ‘s Finding of Fact & Decision are needed to remain with [REDACTED] to assist with his impulsive behaviors, poor attending skills and distractions to classroom activities. He is able to make eye contact at times when prompted several times, but cannot maintain with his peers or adults in the classroom.” (Ex 5-1)

6 Quarterly report, 1/3/22, 1 page

Confirms Student need for special education services, detailing recommended services, and the fact that Related Services are not being delivered, and the need for 1:1 support:

Student: “…is a [REDACTED] boy who is currently receiving the following services: SEIT services (10 x 60), but related services: Occupational Therapy (2x30), Physical Therapy (2x30) and Speech services (2x30) have not located providers yet. [REDACTED] has required constant 1:1 adult supervision throughout the classroom routine each school day. When given individualized support, he is slowly learning to follow the classroom routine, transitions and follow simple directions. When the SEIT is not in the classroom, one of the classroom teachers are needed to remain with [REDACTED] to assist with his impulsive behaviors, poor attending skills and distractions to classroom activities. He is able to make eye contact at times when prompted several times, but cannot maintain with his peers or adults in the classroom.” (Ex 6-1)

7 Quarterly report, 01/03/2022, one page

Confirms the fact that Student’s school, at the time would be closing, and Parent was questioning the appropriateness of the SEIT services; considering other potential programs; and the Student was not receiving Related Services.

Report also includes that the agency cannot provide services to the Student, without a school enrollment.

8 Approval of preschool services, 9/9/21, one page

Confirms Student’s mandated services: SEIT services (10 x 60), and related services: Occupational Therapy (2x30), Physical Therapy (2x30) and Speech services (2x30).

9 Parental consent, 5/5/21, one page

Parent consents to having Student evaluated remotely. Hearing Officer ‘s Finding of Fact & Decision

11 Meeting notice, 6/25/21, one page

Notice of upcoming IEP meeting.

12 Consent, 5/11/21, one page

Parent provides consent for Student evaluation.

15 OT, PT prescription, 9/29/20, one page

Doctor prescription for OT and PT services.

23 Final notice of recommendation, 9/9/21, 18 one page

Confirms DOE recommended services for the Student.

24 Consent electronic, 7/8/21, one page

Consent for Student to receive special education services.

25 Notice of meeting, 5/19/22, one page

Notice of upcoming IEP meeting.

27 Recommendation, 11/22/22, one page

Confirms Student’s recommended services: SEIT services (10 x 60), and related services: Occupational Therapy (2x30), Physical Therapy (2x30) and Speech services (2x30).

28 IEP change notice/letter, 7/1/22, two pages

Confirms Student’s recommended services, with increased SEIT, and 12 month services: SEIT services (12 x 60), and related services: Occupational Therapy (2x30), Physical Therapy (2x30) and Speech services (2x30).

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 Hearing Officer ‘s Finding of Fact & Decision 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 Hearing Officer ‘s Finding of Fact & Decision [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 Hearing Officer ‘s Finding of Fact & Decision

*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 Hearing Officer ‘s Finding of Fact & Decision 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). Hearing Officer ‘s Finding of Fact & Decision

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 Hearing Officer ‘s Finding of Fact & Decision 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 21-22 and 22-23 School Years The DOE defense to the allegations contained in the DPC, as amended by the ADPC, consisted of the submission of Evidentiary Documents, and arguments throughout the Hearing. (Ex A & R, Ex 4, 5, 6, 7, 8, 9, 11, 12, 15, 23, 24, 25, 27 & 28)

The DOE has not evidenced development of an appropriate IEP for either school year at issue.

Evidence does include a failure to facilitate mandated Student services, and a failure to include services argued were necessary for the Student to progress. This includes failing to facilitate related services, and failure to provide PCAT and ABA services. (Ex S 2-3, M 1-2, N, Y 18, Z 24-25, BB 8, DD 15-16, EE 12 & FF 15)

The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 21-22, or 22-23 school years. (Ex I find the DOE failed to offer the Student a FAPE for the 21-22 and 22-23 school years. Hearing Officer ‘s Finding of Fact & Decision

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] Hearing Officer ‘s Finding of Fact & Decision 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.

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

Parent evidences Student delays have been impacted by the denial of FAPE, and presents a basis for award of compensatory services,. Compensatory services are awarded, in light of the DOE failure, as indicated below, to be delivered via independent providers of the parent's choosing at reasonable market rate(s) as follows: o 920 hours of ABA (Ex Y 18 & Ex 18 Z 24-25, GG 3) o 184 hours of PCAT (Ex Y 18 & Z 24-25, Ex GG 3) o 207 hours of speech language therapy (Ex BB 8, Ex JJ 2) o 92 hours of occupational therapy (Ex DD 15-16, Ex II 3, T 232) o 104 hours of Physical Therapy (Ex EE 12, HH 3)

The following services are not awarded: 46 hours of feeding therapy (Ex AA 8, JJ 3, T 172-173)

This Student need is not evidenced to have existed to throughout the denial of FAPE. Newly acquired evaluation must be presented to the IEP team and services considered, at that

46 hours of social skills training for a 12-month school year (Ex FF 14)

Student area of need is identified and Social Skill supports are recommended. (Ex FF) However, this recommendation is not tied to any failure of the DOE to identify this area of need and deliver appropriate supports. It does serve as a point of discussion and consideration at the next Student IEP meeting.

PROGRAM AND PLACEMENT

When determining an appropriate placement on the educational continuum, a CSE should first determine the extent to which the student can be educated with nondisabled peers in a public school setting before considering a more restrictive nonpublic school option (see E.F. v New York City Dept. of Educ., 2013 WL 4495676, at *15 [E.D.N.Y. Aug. 19, 2013] [explaining that "under the law, once [the district] determined that [the public school setting] was the least restrictive environment in which [the student] could be educated, it was not obligated to consider a more restrictive environment, such as [the nonpublic school]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *8 [finding that "[o]nce the CSE determined that [public school setting] would be appropriate for the [s]tudent, it had identified the least restrictive environment that could meet the [s]tudent's needs and did not need to inquire into more restrictive options such as nonpublic programs"]). An IHO Order that the CSE refer the student to the CBST for placement in a nonpublic school, particularly when read in conjunction with his order that the CSE reconvene to consider the results of the various ordered evaluations of the student, would violate the CSE's duty to first determine if the student can be educated in a public school setting, and, as such, is premature (see Cooke Center for Learning and Dev. v. Mills, 19 A.D.3d 834, 836 [3rd Dep't 2005] ["The federal law prefers a 'public' education, where a 'child is educated in the school that he or she would attend if nondisabled,' if possible"]; Matter of Pelose, 66 A.D.3d 1342, 1344 [4th Dep't 2009] ["Indeed, the central purpose of the IDEA …and article 89 of the Education Law is to afford a 'public' education for children with disabilities"]).

Relief in the form of IEP amendments and prospective placement of the student in a nonpublic school is not appropriate in this instance as it would tend to circumvent the statutory process, under which the CSE is the entity tasked with reviewing information about the student's Hearing Officer ‘s Finding of Fact & Decision progress under current educational programming and periodically assessing a student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]).

Parent seeks an Order directing the DOE to locate an appropriate placement in compliance with the recommendations of the independent evaluator, and if the DOE cannot identify an appropriate placement within 15 days of an IEP meeting, the DOE to defer Student to the Central Based Support Team (CBST) for a nonpublic school placement, and should the DOE fail to locate an appropriate nonpublic school placement within 30 days of the IEP meeting, then the DOE to fund a private school of the Parent's choosing (T 233); and for the DOE to conduct an IEP meeting within 14 days of an Order to review and consider the recommendations of the independent evaluators and implement Student's January 2023 independent behavior intervention plan. (T 234, Ex R 7-8)

At this point, the 2022-2023 school year is almost at an end.

At Hearing, of 04/21/2023, the Parent Attorney stated that she believes an IEP meeting is set for 4-28-2023. (T 237)

An array of newly acquired evaluations and reports are now available which must be considered first by an IEP team, allowing the CSE to act under its obligation to offer the Student

a FAPE. (Ex Y, Z, AA, BB, CC, DD, EE & FF)

In accordance with its obligation to review a student's IEP at least annually, the CSE should convene to revise the student's program and develop a new IEP for the student, by 06/03/2023 [The last IEP developed is evidenced as 06/03/2022, Ex C]. (see 20 U.S.C. § 1414[d][4][A]; Educ. Law § 4402[2]; 34 CFR 300.324[b][1]; 8 NYCRR 200.4[f]).

This form of relief is denied.

REIMBURSEMENT RELIEF for STUDENT SERVICES

In light of the DOE failure to offer the Student a FAPE, for the 21-22 and 22-23 school years, the Parent engaged a variety of services, to address the Student’s needs. Part of the Hearing Officer ‘s Finding of Fact & Decision necessity to engage these services arises from the failure of the DOE to facilitate Related Services. (Ex Q 1, Ex S 1-2 & Ex 5-1)

Parent basically assembled services to address Student needs and now seeks funding.

The substantive standard for assessing the services that are unilaterally obtained by a parent, 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. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]). 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; 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).

In this case the DOE has been found to have failed to offer the Student a FAPE for the 21-22 and 22-23 school years.

Parent engaged reasonable and appropriate Student services, and seeks funding as follows:

o The DOE to reimburse the parent: • for privately paid services, including ABA services, through [REDACTED] in the amount of [REDACTED] a week for the 2021/2022 school year starting December 2021 and the 2022/2023 school year (Ex LL) • for privately paid paraprofessional services in the amount of [REDACTED] a week from November of 2022 until the end of the 2022/2023 school year (Ex MM) • for ten hours a week of at-home ABA services for the remainder of the 2022/2023 school year (Ex Y 18) Hearing Officer ‘s Finding of Fact & Decision

• The DOE's Implementation Unit to authorize any services within 14 days and that payment be made within 30 days of receipt of invoices. (Ex R 7-8, T 235)

The evidence shows the Student had received ABA services, as mentioned in the IEP, of 06/03/2022. (Ex C 5)

Parent engaged ABA services, via an agency, at a cost of [REDACTED] daily (T 152, Ex LL); and paraprofessional services, at a rate of [REDACTED].00 per hour, or [REDACTED] weekly. (T 153, Ex MM)

Student ABA service, at home, ranged from four to ten hours weekly. (T 152)

No argument is made to dispute the need for the services engaged by the Parent.

Evidence supports the necessity of the services engaged by the Parent. (Ex Y 15-16, 17-18, Z 24, GG 3, T 206)

Parent communicated with the DOE regarding objection to the recommended DOE Student program, and difficulties engaging providers, including seeking a paraprofessional. (Ex M, N & P) The Parent has not received a response. (Ex S 3)

Evidence shows the Student in need of 1:1 adult supervision throughout the school day. This need is properly met via the paraprofessional. (Ex Q 1, Ex 5 & Ex 6)

Since September, of 2022, the Student has not received the 12 weekly hours of mandated SEIT services. (Ex S 3)

Parent engaged ABA services, to which there has been no specific objection.

I find the Student ABA and Paraprofessional services paid for by the Parent to be properly reimbursed, by the DOE. This includes the past services as well as the services which may be utilized moving forward awarded as compensatory services.

Regarding the specific request of ten hours a week of at-home ABA services for the remainder of the 2022/2023 school year, that relief is considered a part of the reimbursement

Ordered above for services being currently delivered. (Ex Y 18)

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 Hearing Officer ‘s Finding of Fact & Decision 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]).

Parent seeks funding for transportation costs related to receipt of Student’s related services (Ex R 7, Ex V, T 234)

Parent communicated its demand for transportation, as evidenced via email chain, where Parent has been submitting transportation reimbursement forms, with receipts. (Ex V & W)

The DOE raises no objection to the reimbursement demand, as being implemented via the current process and forms. Hearing Officer ‘s Finding of Fact & Decision

The Parent should not bear the cost of travel to and from necessary Student services, which should have been provided by the DOE, or those services necessitated by the DOE failure to offer the Student a FAPE.

I find the Parent is entitled to an award of reimbursement for travel necessary to engage the Student’s related services.

OTHER RELIEF

Parent seeks an Order calling for a reevaluation in 12 months to assess if Student's assistive technology needs have changed. (Ex CC 8)

In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]). A CSE must consider independent educational evaluations whether obtained at public or private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]).

If a year from now, or at any time, the Parent believes the Student should be evaluated in a potential are of special need, the Parent can request such an evaluation from the DOE. This information presumably would be considered at an IEP meeting to determine if there is a need, and if the need should be address via special education supports and/or services.

This specific relief is denied.

Parent seeks an Order addressing the DOE's failure to immediately appoint a hearing officer via a finding that such delay impeded the Parent's access to their due process rights and caused unreasonable delays to the resolution of this matter. (T 235)

This relief would not result in any additional award to the Student beyond what is granted herein.

Systemic issues such as this are not properly awarded specific relief.

Specific relief related to the DOE failure to timely appoint an IHO is not granted herein. Hearing Officer ‘s Finding of Fact & Decision

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 21-22 and 22-23 school years.

2. The DOE shall fund compensatory services, for the Student, to be utilized by 08/31/2025. Rate to be paid at reasonable market rate, via Parent chosen provider(s): o 920 hours of individual Applied Behavior Analysis (ABA) therapy:

o 184 hours of Parent Counseling and Training (PCAT) o 207 hours of speech language therapy o 92 hours of occupational therapy o 104 hours of Physical Therapy

3. The DOE shall reimburse Parent for ABA and Paraprofessional services obtained by the Parent, for the Student, during the 21-22 and 22-23 School Years, as follows: o ABA services, through [REDACTED] in the amount of [REDACTED] a week for the 2021/2022 school year starting December 2021 and the 2022/2023 school year; and o Paraprofessional services, via [REDACTED], in the amount of [REDACTED] a week from November of 2022 until the end of the 2022/2023 school year.

4. The DOE shall reimburse Parent for travel costs necessary to engage the Student’s related services. Hearing Officer ‘s Finding of Fact & Decision

5. 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.

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

DATED: May 20, 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

[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 Hearing Officer ‘s Finding of Fact & Decision time. (Ex AA)