New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 594190- NYC: 244312

FINDINGS OF FACT AND DECISION

Student’s Name 1:[Redacted] (“Student”)

Date of Birth: [Redacted]

School District: [Redacted], Esq. Attorney

Hearing Requested by: [Redacted] (“Parent”)

Request Date/Date Complaint Filed: December 27, 2022

Date of Hearing: May 8, 2023

Actual Record Closed Date: May 26, 2023

Date of Decision: June 6, 2023

Date of Distribution if Different than Decision Date: June 6, 2023 Hearing Officer: Linda S. Agoston

1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

NAMES AND TITLES OF PERSONS WHO APPEARED

May 8, 2022

For the Student:

[Redacted], ESQ., Attorney

[Redacted], Assistant Head of School, [Redacted]

For the Department of Education:

[Redacted], ESQ., Attorney

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about December 27, 2022. (P-Exh. B) ^[2].

On January 27, 2023, I was designated by the New York City Department of Education ("DOE") as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York in the matter of [Redacted] (hereinafter "the Student"). A hearing on the merits was held on May 8 2023. The Parent alleged that the DOE failed to provide a free and appropriate public education ("FAPE") for the 2022-2023 school year as the Committee on Special Education ("CSE") had failed to consider the evaluative information available to it and failed to recognize that the Student required ABA in order to learn and the DOE was "unable to implement the recommended program due to systemic policies and procedures that limit the number of instructional periods per week" (P-Exh. A at 2). The DOE failed to conduct a Functional Behavior Assessment ("FBA") and failed to develop a Behavior Intervention Plan ("BIP"). The DOE failed to conduct sufficient evaluations to determine the Student's present levels of performance and this failure impeded the Parent's ability to participate in the decision making process (P-Exh. A at 3). The Parent challenged the goals as vague and challenged the management needs and alleged that the CSE failed to provide the Parent with a copy of the Individualized Education Program ("IEP") for the 2022-2023 school year (Id.). The Parent alleged that the recommended 6:1:1 special class program for 35 periods per week was not adequate to meet the Student's needs and asserted that the related services of Adapted Physical Education for 3 periods per week; Occupational Therapy ("OT") for 5 periods per week, Physical Therapy ("PT") for 3 periods per week, and Speech Language Therapy ("SLT") for 5 periods per week for a total program of 51 periods per week was insufficient (Id.). The Parent asserted that she had voiced her concern for the Student's need for 1:1 applied behavior analysis ("ABA") and alleged that the IEP team failed to review the goals, the management needs and transition needs with the Parent (Id.). The Parent alleged that the IEP team merely copied from goals from the 2021-2022 developed by [Redacted] ("[Redacted]") and alleged that the placement notice at [Redacted] for the 2022-2023 school year was not received until June 16, 2022 and after visiting the proposed program the Parent was told that the proposed school was unable to implement a program of 51 periods per week and was not the least restrictive environment and did not include adequate support (PExh. A at 4). The Parent asserted that the DOE denied the Student a FAPE in violation of the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, and Article 89 of the New York Education Law(P-Exh. A at 4).

Accordingly, the Parent re-enrolled the Student in [Redacted]for the months of July and August 2022 seeks direct funding for the summer months. The Parent's attorney stated that [Redacted] dissolved after August 2022 (T.42). The Parent then enrolled the Student at [Redacted], (hereinafter "The Private School" or "REDACTED") , a private school which is not approved by the New York State Education from September 2022 to June 2023 for the 2022-2023 school year and seeks direct funding for the tuition for the Student's placement at the REDACTED and seeks funding for the 1:1 ABA services at home and in the community provided by 2 ABA providers: [Redacted], both certified as Board Certified Behavior Analysts ("BCBA") and NYS licensed behavior analysts ("LBA"), who were employed by [Redacted], where the Student received 24 hours of 1:1 ABA from July 2022 and August 2022 prior to the dissolution of [Redacted]and continued to work with the Student from September 2022 to date (P-Exhs. A at 5; E at 1;F at 1; T.32; 42-46).

The Parent's attorney asserted that as the Parent was the prevailing party in the Findings of Fact and Decision ("FOFD") for Case 226469, dated August 19, 2022 (P- Exh. L), and that prior hearing officer found that the DOE had failed to offer a FAPE for the 2021-2022 school year and that [Redacted] was an appropriate placement for the Student for the 2021-2022 school year and ordered the DOE to directly fund, inter alia, 24 hours per week at the rate of $[Redacted] per session from the 2 ABA providers: [Redacted] (P-Exh. L at 15) for July 2022 and August 2022 (T.45) and the Parent was seeking payment for home-based ABA providers from September 2022 to June 2023, after submitted invoices of the 1:1 home-based services (P-Exh. JJ).

The Parent's attorney withdrew the request for transportation (T.48). The parties moved to extend the compliance dates during the course of the hearing and I granted the requests for extensions of the compliance dates (T. 39-40; IHO-Exhs. I-III). The current record close date is May 26, 2023. Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence. On May 26 2023, the Parent's representative submitted his brief (IHO Exh. IV) and the District representative submitted her closing statement on May 26, 2023 (IHO Ex. V). The current record close date is May 26, 2023 and the decision due date is June 9, 2023.

The record was closed on May 26, 2023.

The Hearing was held on May 8, 2023. It was a closed hearing, and the Parent was represented by [Redacted], Esq., and DOE was represented by [Redacted], Esq.

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.

BACKGROUND

The Student is a of [Redacted] year-old girl who is attending REDACTED and who was diagnosed with an Autistic Spectrum Disorder (ASD") since 2015 (P-Exh. V at 1), " [Redacted] "(P- Exh. C at 8).

On various June 8, 2022, a Neuro-Psychological Evaluation Update was conducted by[Redacted], Ph.D., Licensed Psychologist, when the Student was 6 years and 8 months old and attending[Redacted]. [Redacted]provided the history of the Student and noted that she had a diagnosis of ASD from a prior neuropsychological evaluation conducted between March 2020 and March 2021. She described [Redacted] and the services provided to the Student as follows: "[Redacted]" (P-Exh. C at 1). She concluded that the Student "[Redacted]"(P-Exh. C at 8). [Redacted] diagnosed the Student with ASD "with an associated severe Expressive / Receptive / Pragmatic Communication Disorder and executive function challenges affecting her abilities to process language, express herself, formulate socially appropriate language and to negotiate social interactions "(Id.). [Redacted]recommended a "[Redacted]" (P-Exh. C at 9). [Redacted] further recommended intensive SLT to address expressive, receptive and pragmatic language as well as intensive OT, 1:1 ABA intervention at home for 10 hours per week (P-Exh. C at 9). [Redacted] assessed the Student's general cognitive ability on the Wechsler Intelligence Scale - 5th ("WISC-5") on various dates in March 2020 and March 2021, when the Student was 7 years old. She reported the following scores: high average Verbal Comprehension Index was 86, in low average range; Visual Spatial Index was 118 in the average range; Fluid Reasoning Index was 109, in the average range; Working Memory Index was 76, in the borderline range and the low average Processing Speed Index was 98 score in the average range (P-Exh. D at 1). She assessed the Students language on the Clinical Evaluation of Language Fundamentals 5 and found scaled scores in the exceptional low range for sentence comprehension, word classes, following directions, understanding paragraphs, word structures, recalling sentences, formulating sentences and concluded that the Student's spoken language was less than 3 years old (P-Exh. D at 1). [Redacted] attempted to assess the Student's auditory attention, but the task was abandoned (P-Exh. D at 4). [Redacted] assessed the Student's academic abilities on the Wechsler Individual Achievement Tests IV ("WIAT-IV" and found her word reading score of

87 was at a 1-7 grade level; her reading comprehension score of 67 was at a K-6 grade level and her pseudoword decoding score of 87 was at a 1-4 grade level. Her math problem solving score of 66 was at a K-0 grade level and her numerical operations score of 75 at a K-7 grade level (P-Exh. D at 5). [Redacted] concluded that based on the WISC-5 the Student's intelligence was the "Average range, at the 27th percentile in comparison to her same age peers. Due to the considerable discrepancy between her sophisticated reasoning abilities as compared to her slow processing speed and limited working memory" (P-Exh. D at 14). She concluded that the Student was unable to speak in sentences and that her WIAT-IV score revealed that she was delayed 2 years in reading comprehension, spelling, math and recommended that the Student " [Redacted] "(P-Exh. D at 27) as well as intensive SLT and OT, also a full time 1:1 ABA program (40 hours) level (P-Exh. D at 28).

The [Redacted] ABA Progress Report by [Redacted], BCBA, LBA dated June 2022, indicated that for the 2021-2022 school year the Student received a full day of 1:1 center-based ABA as well as SLT, OT and PT and received supervision from a behavior analyst in order to make progress towards her goals and age-appropriate skills (P-Exh. N at 1).

The CSE developed an IEP on June 13, 2022 and classified the Student with Autism and recommended that she be placed in a Special Class with a student to staff ratio of 6:1+1 in a NYC DOE Specialized School in District 75 (D-Exhs. 1 at 1;2 at 1) at [Redacted] per the School Location Letter (D-Exh. 1 at 5). The IEP recommended related services of individual OT 5 times per week for 30 minutes per session; Parent Counseling and Training once a month for 60 minutes; individual PT 3 times per week for 30 minutes per session; individual SLT 5 times per week for 30 minutes per session (D-Exh. 2 at 41).

The Speech and Language Evaluation dated October 31, 2022, at REDACTED indicated that the Student had attended REDACTED since September 2022 in the third-grade classroom with one head teacher, an assistant teacher, and a speech-language pathologist ("SLP") (P-Exh. X at 1), and that the Student presented " [Redacted] "(P-Exh. X at 11). The Student's receptive vocabulary ability was assessed on the Receptive One-Word Picture Vocabulary Test and her score of 79 was at an age equivalent of 5 years, 9 months and her expressive vocabulary ability was assessed on the Expressive One-Word Picture Vocabulary Test and her score of 69 was at an age equivalent of 5 years, 5 months (P-Exh. X at 3).

The OT Evaluation dated November 30, 2022, at REDACTED indicated that the Student had received individual OT twice per week for 45 minutes per session and OT in a group twice per week for 45 minutes per session (P-Exh. V at 25). The OT Evaluation further recommended " of [Redacted]" (Id.). The OT Evaluation indicated that the Student gravitated "towards movement activities, especially those that provide intense vestibular input, such as swinging on a variety of swing (P-Exh. V at 4). The OT Evaluation indicated that the Student's motor function was well below average as the Bruininks-Oseretsky Test of Motor Proficiency, 2nd Edition score was 20 (P-Exh. V at 10) and that the Student had "challenges with fine motor and gross motor skills as well as sensory regulation and executive functioning skills, which impact her ability to participate efficiently throughout her school day" (P-Exh V at 16).

The 2022-2023 [Redacted] ABA Goals report dated July 2022, indicated that the Student received "a full day of 1:1 comprehensive ABA therapy in a center-based setting. She also receives one hour of supervision from a BCBA ... a week" (P-Exh. U at 1). The report indicated that the Student demonstrated " [Redacted] " (Id.).

For the 2022-2023 school year the Student's schedule at REDACTED included Morning Meeting, Handwriting, Literacy, Music, Math, Language Skills, ELA, Lunch, OT, SLT, Social Studies, Science, Leisure and Centers (P-Exh. FF).

The Enrollment Contract dated August 2, 2022 indicated that REDACTED's tuition was $ [Redacted] for the 2022-2023 school year and that payment was made in full (P-Exh. EE at 2).

REDACTED's Midyear Academic Report and Assessment summary for the 2022-2023 school year dated December 23, 2022, indicated that the Student had attended REDACTED since September 2022, in a small class with a certified special education head teacher, an assistance teacher and a speech-language pathologist ("SLP") and received related services of SLT twice per week for 45 minutes per session and OT twice per week for 45 minutes per session on an individual and group basis (P-Exh. DD at 1) and concluded that the Student made consistent gains due to "[Redacted]" (P-Exh. DD at 7).

The ABA progress report by[Redacted], BCBA, dated March 2023, indicated that the Student was "[Redacted]" (P-Exh. HH at 1). The BCBA indicated that the Student required verbal, model or visual prompts to understand expectations (P-Exh. HH at 2). The BCBA further indicated that the Student "[Redacted]" (Id.). The BCBA indicated that the Student progressed "[Redacted]" (P-HH at 5).

The Parent submitted Post Hearing Vendor Monthly Invoice Forms (P-Exh. JJ). The October 22, 2022 invoice that indicated that [Redacted] hours of 1:1 home-based ABA from[Redacted], BCBA were provided to the Student @ $[Redacted] per hour during various dates in September 2022 for a total of $[Redacted](P-Exh. JJ at 1). The October invoice indicated that [Redacted] provided [Redacted] hours of 1:1 home-based ABA services @ $[Redacted] hour during various dates in October 2022 for a total of $[Redacted] (P-Exh. JJ at 2). The November invoice indicated that [Redacted] provided [Redacted] hours of 1:1 home-based ABA services @ $[Redacted] per hour during various dates in November 2022 for a total of $[Redacted] (P-Exh. JJ at 3). The December invoice indicated that [Redacted] provided [Redacted] hours of 1:1 home-based ABA services @ $[Redacted] per hour during various dates in December 2022 for a total of $[Redacted] (P-Exh. JJ at 5). The January invoice indicated that [Redacted], BCBA provided [Redacted] hours of 1:1 home-based ABA services @ $[Redacted] per hour on January 9,2023 for a total of $[Redacted] (P-Exh. JJ at 9). The January invoice indicated that [Redacted] provided [Redacted] hour of 1:1 home-based ABA services @ $[Redacted] per hour during various dates in January 2023 for a total of $[Redacted](P-Exh. JJ at 7). The February invoice indicated that Ms. Davila provided [Redacted] hours of 1:1 home-based ABA services @ $[Redacted] per hour during various dates in January 2023 for a total of $[Redacted] (P-Exh. JJ at 11). The February invoice indicated that [Redacted], provided [Redacted] hours of 1:1 home-based ABA services @ $[Redacted] per hour during various dates in February 2023 for a total of $[Redacted](P-Exh. JJ at 13). The March invoice indicated that [Redacted] provided [Redacted] hours of 1:1 home-based ABA services @ $[Redacted] per hour in March 2023 for a total of $[Redacted](P-Exh. JJ at 15). The March invoice indicated that [Redacted] provided [Redacted] hours of 1:1 home-based ABA services @ $[Redacted] per hour in March 2023 for a total of $[Redacted](P-Exh. JJ at 16). The April invoice indicated that [Redacted] provided [Redacted] hours of 1:1 home-based ABA services @ $[Redacted] per hour in April, 2023 for a total of $[Redacted](P-Exh. JJ at 17). The April invoice indicated that [Redacted] provided [Redacted] hours of 1:1 home-based ABA services @ $[Redacted] per hour in April 2023 for a total of $[Redacted](P-Exh. JJ at 18).

ISSUES

Did the DOE fail to provide a FAPE for the 2022-2023 school year in that the CSE failed to consider the evaluative information available to it and failed to recommend ABA and failed to conduct a FBA and resultant BIP and failed to develop appropriate goals and management needs and did the Parent establish that REDACTED and that 10 hours of at-home ABA were appropriate and did the equities favor the Parent?

FINDINGS OF FACT

The District's case was presented in the testimony of the CSE District 2 representative who did not contest any allegations contained in the DPC that she was not presenting a case for the First Prong of the test for tuition reimbursement and rested on the evidence (T.24).

The Parent's attorney requested funding for the cost for the 10-month program at REDACTED for the 2022-2023 school year. The Parent's attorney requested direct funding for the 2 months of the 2022 summer in July 2022 and August 2022 until [Redacted]dissolved at the end of August 2022, and requested direct funding for the home ABA services from the 2 BCBAs[Redacted], who were not paid under the pendency agreement as there was a gap that was not covered from the pendency agreement of direct funding from August 19, 2022, when the FOFD was issued, until December 27, 2022 (T.49). The Parent's attorney asserted that there was a gap that was not covered by a pendency agreement or order for those ABA services provided by the BCBA (T.41-44). The Assistant Head of REDACTED and Director of Admissions of REDACTED testified in support of the Parent's claims.

I credit the testimony and find that the Assistant Head was a NYS licensed clinical social worker and a special education teacher for children with Autism at another New York City private school, and a holder of a certificate in ABA and was employed his current position for 5 years. I further credit his testimony and find that the students were admitted into REDACTED benefitted from intensive SLT as the students in REDACTED were classified with a speech and language impairment and so there was a SLP in every class at REDACTED (T.56;67;P-Exh. II at 2) and that the students at REDACTED received OT and counseling as well as 2 learning specialists to perform the formal assessments(T.56). I credit the testimony and find that the student population in grades Kindergarten through 12th grade was [Redacted]for the 2022-2023 school year and the staff included SLPs and occupational therapists and special education head teachers and teaching assistants who supported the students in the classroom and small classes so the student to staff ratio of 6:2:1 or 6 children and a SLP, a head special education teacher and an assistant teacher (T.60). I credit the evidence and find that REDACTED was "[Redacted]" (PExh. II at 2). I credit the evidence and find that the SLP and OT services were "[Redacted]" (Id.). I credit the testimony and find that in the Student's academic classes and therapies there had small groups of 3 to 5 students and that the Student was grouped with developmentally appropriate peers for the 3rd grade (T.61). I credit the testimony and find that for the 2022-2023 school year there were 40 students grades Kindergarten through 7th grade and that each head teacher held a master's degree in special education and the teaching assistants either held a master's degree in special education or were currently in their master's program. (T.63). I credit the evidence and find that "[Redacted]" (P-Exh. II at 3). I credit the evidence and find that the "[Redacted]" P-Exh. II at 4).

I credit the testimony and evidence and find that the Student received weekly individual SLT for 90 minutes and^[30] minutes daily of language comprehension group led by the SLP and

CONCLUSIONS OF LAW

Under the Individuals with Disabilities Education Improvement Act ("IDEIA") (20 U.S.C. §§ 1400-1482) as well as New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. The Individuals with Disabilities Education Act ("IDEA") was amended in 2004 in the IDEIA. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances…." and "a student offered an educational program providing 'merely more than de minimis progress' from year to year can hardly be said to have been offered an education at all" (Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 [March 22, 2017]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne

G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). Under the IDEA, if a procedural violation is 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 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; 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]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR ¶ 234 (App. Div. 2011).

The DOE representative did not defend the First Prong of the Burlington/Carter test for reimbursement and did not contest any of the allegations contained in the due process complaint that asserted that no FAPE was offered for the 2022-2023 school year as there was no IEP and placement notice provided to the parents. Therefore, I find the Parent established the First Prong.

The Parent must establish the Second Prong of the Burlington/Carter test for reimbursement in that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. The fact that the facility selected by the parent to provide special educational services to the child is not State-approved as a school for children with disabilities is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]). The Parent must prove that the Student will receive an appropriate educational benefit from REDACTED program, and the ABA home program. The Second Circuit framed the legal standard for the second prong in Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006) and Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007). Under Frank G. the Court held that "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" (Id.). Parents' placement may not be held to certain requirements that Districts are held such as teacher licenses or least restrictive environment under Frank G. and Gagliardo and the unilateral placement is a not perfect placement. M.S. ex rel S.S. v Bd. Of Ed., 231 F.3d 96 (2d Cir. 2000).

I conclude that the Parent met her burden to establish that REDACTED and 10 hours of ABA per week for the 2022-2023 school provided instruction designed to meet the Student's unique needs and was reasonably calculated to enable the Student to make meaningful educational gains.

ANALYSIS

The Parent's attorney argued that the prior FOFD "confirms the opinions of the educators and evaluators that [the Student] requires 1:1 Applied Behavior Analysis (“ABA”) in order to learn. See Ex. L at 7-8, Ex. L at 9, Ex. L at 10, Ex. L at 11, Ex. L at 12, Ex. L at 13, Ex. L at 15, Ex. L at 21, Ex. L at 22, Ex. L at 26" (IHO-Exh. IV at 1). I agree. I find that the Student required 1:1 ABA to learn and I find as the Parent's attorney asserted "that the DOE failed to present any testimony or evidence to even suggest this, the Parents maintain that they have met their burden of establishing the appropriateness of continued ABA for [the Student] under the law. See Application of a Student with a Disability, Appeal No. 19-119" (IHO-Exh. IV at 2). I agree.

The DOE attorney "moved to dismiss the case for failure to prosecute. Unlike in SRO 20-1371 , where the SRO reversed an IHO’s dismissal because “most of the documentary and testimonial evidence in the case” was previously entered into the record, the hearing record contains only documents – no testimony whatsoever from the Parent, the party who initiated this impartial hearing. As such, the DOE requests that the case be dismissed for failure to prosecute this claim"(IHO-Exh. V at 4).

The motion to dismiss for failure to prosecute is denied. I find that the DOE’s acknowledged failure to offer the Student an appropriate program and placement in a timely manner tips the equitable scales decidedly in the Parents’ favor. In fact, it "would be inequitable to reward the [District] for its admitted failure to comply with the IDEA" (see N.R. v. Dept. of Educ. of the City of New York, 2009 WL 874061 (S.D.N.Y. 2009) (citations omitted). I find the evidence presented sufficient to establish how the Student's unique needs were met by the 2022 summer program of ABA provided by the 2 BCBS, the 10-month program at REDACTED and the home program of the ABA providers for 10 hours per week.

The Parent's attorney argued that the "June 2022 ABA Progress Report describes [the Student's] needs, abilities, and progress in her ABA program, and recommends a continued ABA program for her. The record contains goals and objectives for [the Student] in the area of ABA which are based on her needs and abilities at that time. See Ex. U. The record contains a Progress Report that describes [the Student's] progress in ABA throughout the 2022-2023 school year. See Ex. HH. The record demonstrates the credentials of the providers of the ABA instruction, and the Parents have offered the invoices demonstrating the cost of the services for [the Student]. See e.g., Ex. E, Ex. F" (IHO-Exh IV at 2-3). I agree.

The DOE attorney argued that the Parent failed to establish a legal and financial obligation to pay [Redacted] as there was no evidence of a contract of service and asserted that there was no evidence that the Parent was resident of New York City and was entitled to sue the DOE under IDEA (IHO-Exh. V at 4). I disagree.

I credit the DPC and Vendor Monthly Service Invoice Forms and find that the Parent and the Student reside in NYC (P-Exhs. A;JJ). I credit the testimony and find that [Redacted] dissolved after August 2022(T.44-45). I find that the Parent was the prevailing party in the FOFD for Case 226469, dated August 19, 2022 (P- Exh. L) and that the prior hearing officer found that the DOE failed to offer a FAPE for the 2021-2022 school year and that [Redacted] was an appropriate placement for the Student for the 2021-2022 school year and ordered the DOE to directly fund any unpaid amounts for 12-months for the 2021-2022 school year for tuition and related costs for REDACTED (P-Exh. L at 26). The DOE did not appeal the prior FOFD. I find that the Parent continued the Student's program and placement at [Redacted] until [Redacted]dissolved.

The Parent's attorney asserted that there was a gap that was not covered by a pendency agreement or order from the prior FOFD for those ABA services provided by the BCBAs (T.41-44). The evidence submitted sufficient to establish the Student required the ABA services provided by the BCBA during July 2022 and August 2022 at [Redacted] until [Redacted] dissolved and thereafter that the Student required the ABA services from qualified and credentialed BCBS (P-Exh. E-F) at home and in the community from September 2022 until June 2023. I find that the ABA progress report indicated that the Student was "[Redacted]" (P-Exh. HH at 1). I further find that the Parent provided the invoices demonstrating the cost of the ABA services (P-Exh. JJ) and the progress the Student made with the ABA home-based service in communication and academics and independent (P-Exh. HH at 5).

The DOE attorney argued that the Parent failed to present sufficient credible evidence that the instruction offered at REDACTED was specifically designed to meet the Student's unique needs (IHO-Exh. V at 6-11) and failed to present any evidence to establish that the home-based ABA was specifically designed to meet the Student's unique needs without testimony from the ABA providers (IHO-Exh. V at 12). I disagree.

Testimony adduced at the hearing established that the Student's special education needs were met by the REDACTED. The uncontested testimony of the Assistant Head established that REDACTED provided small classes of 6 students, a head NYS certified special teacher and an assistant teacher and a NYS certified SLP in every classroom (T.59) and established that REDACTED was a highly structured, supportive therapeutic classroom with intensive SLT and OT as recommended (P-Exh. D at 28). I conclude that each student had an individualized schedule and was assessed by a learning specialist who had a master's degree in special education and that the Student received 1:1 instruction from the SLP and that the Student was grouped with 3 to 5 other students in the Student's academic classes and the related services therapies and that the Student was grouped with developmentally appropriate peers for the 3rd grade in a small student population of (T.61). I credit the testimony of the Assistant Head who worked with the Student to provide her with individualized visual tools to help her with her regulations (T. 68). I find that REDACTED provided intensive SLT to the Student by a SLP in every class and I find REDACTED provided intensive OT to the Student that matched the recommendations and I find that moving benefited the Student in the learning environment "[Redacted]" (P-Exh. C at 8). I find that REDACTED was, as recommended, "a placement in a therapeutic program with age-appropriate curriculum, in a specialized school in a classroom low student-to-teacher ratio (6:2:1)" (P-Exh. C at 9). Further, the evidence established that the Student benefitted from the SLP was part of REDACTED's classroom’s multi-disciplinary teaching in her academic classes (Id.). The evidence also established that the ABA that the Student received outside of the school was integrated with the program at REDACTED "to support her needs and carryover her skills (P-Exh. HH at 1). I credit the evidence of REDACTED's Progress report and conclude that the Student made consistent gains and developed confidence, as well as her "social-emotional and academic growth" (P-Exh. DD at 7). Moreover, the credible evidence established that the Student progressed with the multi-sensory approaches and the scaffolding instruction (P-Exh. II at 3).

Testimony adduced at the hearing established that the Student received intensive SLT and OT at REDACTED as the SLP worked on the Student's social pragmatic language and worked on increasing the Student's ability to express her feelings and to connect with her peers. I credit the testimony and find that in addition to 90 minutes of individual SLT per week the Student received 30 minutes daily of language comprehension group led by a SLP; and 30 minutes daily of social pragmatic language group led by a SLP that the Student received in addition to 90 minutes of individual OT she received 20 minutes of handwriting skills in a group from the OT daily and gross motor OT group for 30 minutes in the yoga class or by an obstacle course and that movement met the Student regulation needs (T.68-69). The uncontested evidence established that the Student's swings and "movement activities, especially those that provide intense vestibular input... met her vestibular input" (P-Exh. V at 4). The credible evidence established that the Assistant Head worked with the Student to provide her with individualized visual tools to help her with her regulations (P-Exh. II at 6).

I conclude that the special education services such as scaffolding and visual tools and 1:1 instruction from the SLP met the Student's unique needs in language, attention and regulation as well as comprehension and I find that staff at the REDACTED used multisensory instruction that met the Student attention needs. The testimony established that the Student received instruction in a class of 3-5 for math, ELA, Literacy, Science and Social Students (T.78-79). I find the small population of 40 and the small class size for academic classes met her attention needs. The evidence established that the Student classroom teacher provided visual and verbal reminders to enable the Student to learn the classroom routine and to engage in structured activities (P-Exh. AA at 1). The Student was given verbal and visual support to indentify her feelings (Id.). The direct services that the Student received met her unique academic, social and emotional needs (T.81). I credit the evidence and find that the Student had social-emotional, attention, regulation, and language development challenges.

Accordingly, I conclude that the parents have met their burden to establish that REDACTED was reasonably calculated to enable the Student to make meaningful educational gains.

It is well established that that a district is not required to provide all services necessary to maximize a student’s potential. Those considerations similarly constrain unilaterally selected parental programs. Gagliardo, 489 F.3d at 112; see Frank G. at 364-365. In this matter the Parent asserted that Student required additional services at home to supplement the REDACTED program. I find that ASD students often have a program which includes "ABA therapy, whether at home or in school," to ensure that the student continues to progress in their education. P.K. ex rel. S.K. v. N.Y. City Dep't of Educ., 819 F. Supp. 2d 90, 114–15 (E.D.N.Y. 2011), aff'd, 526 F. App'x 135 (2d Cir . 2013); see C.B. v. N.Y. City Dep't of Educ., 2005 WL 1388964, at *23 (E.D.N.Y. June 10, 2005) (finding that the record demonstrated that home based therapy was an important component of the student's education).

I find that the home-based ABA program focused on programs and challenges unique to home life and did not simply duplicate what she already learned in school. I credit the ABA progress report from the BCBA who indicated that the Student required verbal, model or visual prompts to understand expectations(P-Exh. HH at 2) and I credit the evidence and find that the Student "requires 1:1 instruction to acquire skills in the domains targeted during her home-based and community-based sessions" (P-Exh. K at 1). I credit the ABA progress report and find that the Student progressed in her verbal behavior and was able to use a phrase to request an item progressed in her academic goals in her independent living and community goals and improved her independence in showering (P-HH at 5).

I find that the evidence established that the 10 hours of at-home ABA was necessary and appropriate and I find that the Student increased her independence in learning the steps for her daily care by the 10 hours per week of ABA for the 2022-2023 school year (Id.). I find that that daily living skills and academic skills were part of the home program and I find that the Student improved to become more independent in her self-care skills (Id.).

The Third Prong of the test for tuition reimbursement is whether the equities favor the Parent's position. I find that the Parent established the Third Prong. Tuition reimbursement to be reduced or denied if the Parent (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to her “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the Parent informed the CSE that she intended to enroll her daughter at REDACTED for the 2022-2023 school year when no appropriate program/placement was offered (P-Exh. B) after the most recent CSE meeting and complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the equitable considerations do support the Parent's claim for reimbursement/funding. In this case, the Parent fully cooperated with the DOE to the best of her ability.

The Parent's attorney requested the cost of the Student's "program includes her tuition at [REDACTED], which is $[Redacted]for the 10-month school year, as well as the cost of her ABA instruction for up to 10 hours per week at a rate of $[Redacted] per hour. The Department of Education paid for the ABA instruction through August 19. 2022, under a pendency order on a prior Finding of Fact and Decision, and the Parent seeks an order directing the DOE to reimburse her and/or directly pay $[Redacted]towards tuition and up to $[Redacted]for up to 10 hours of ABA per week at the rate of $[Redacted] per hour for 40 weeks in accordance with the invoices provided and upon the provision of any other documentation required by the DOE’s Implementation Office. See Invoices of ABA Providers, submitted with Post Hearing Brief on May 26, 2023" (IHO-Exh. IV at 4).

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered: that the DOE reimburse the Parent in the amount of $[Redacted] or directly fund for the 10-month school year at REDACTED in the amount of $[Redacted]for the 2022-2023 school year, as well as directly fund the cost of the ABA instruction for up to 10 hours per week at a rate of $[Redacted] per hour for a total of $[Redacted] for 40 weeks in accordance with the invoices provided and upon the provision of any other documentation required by the DOE’s Implementation Office. .

SO ORDERED.

DATED: June 6, 2022

/s/ Linda Agoston

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A – REDACTION IDENTIFICATION PAGE

Student’s Name:[Redacted]

Date of Birth:[Redacted]

School District:[Redacted], Esq Parent’s Name: [Redacted]

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Impartial Hearing Request December 27, 2022 10 pages

B. Notice of Intention to Unilaterally Place June 17 2022 4 pages

C. Neuropsychological Evaluation Update June 8 2022 17 pages

D. Neuropsychological Evaluation March 24 2021 34 pages

E. Resume of [Redacted] undated 5 pages

F. Resume of [Redacted] undated 17 pages

G. Speech-Language Progress Report December 2021 6 pages

H. Physical Therapy Progress Report December 2021 3 pages

I. Occupational Therapy Progress Report December 2021 7 pages

J. ABA Progress Report December 2021 2 pages

K. ABA Therapy Goals & Report January 31, 2022 6 pages

M. L Findings of Fact and Decision – Case 226469 August 31 19, 2022 Physical Therapy Progress Report June 2022 5 pages

N. ABA Progress Report June 2022 7 pages

O. Occupational Therapy Progress Report June 2022 15 pages

P. Speech-Language Therapy Progress Report June 2022 10 pages

R. Q Occupational Therapy Goals June 8 2022 Speech and Language Therapy Goals June 2022 4 pages

S. Physical Therapy Goals T -omitted July 2022 2 pages

U. ABA Goals July 2022 4 pages

V. Occupational Therapy Evaluation Report November 30, 2022 26 pages

W. Occupational Therapy Goals 2022-2023 undated 2 pages

X. Comprehensive Speech and Language Evaluation October 31, 2022 13 pages

Y. Speech Language Pathology Goals 2022-2023 Z Literacy Goals 2022-2023 January 2 January 2023 AA Classroom Routines Academic Goals December 3 2023 2022 3 pages

DD. BB Writing Goals December 2 2022 CC English Language Arts Goals December 2 2022 Mid-Year Academic Report December 23, 2022 7 pages

EE. Enrollment Agreement May 23 2022 3 pages

FF. [Redacted] Schedule 2022-2023 GG omitted undated 2 pages

HH. ABA Progress Report March 2023 5 pages

II. Affidavit of [Redacted]in Lieu of Live Direct Testimony May 8 2023 7 pages

JJ. Vendor Monthly Service Invoice Forms Various 18 pages

DOE’S EXHIBITS

1. Prior Written Notice June 13 2022 13 pages DOE

2. IEP February 15, 2022 50 pages DOE

IHO’S EXHIBITS

I Decision on Extension February 1

14, 2023

II Decision on Extension March 27, 1

2023

III Decision on Extension May 1

8,2023

IV Parent's Closing Brief May 26, 4

2023

V District's Closing Brief May 26, 14

2023

Footnotes

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[30] minutes daily of social pragmatic language group led by the SLP (T.66; P-Exh. II at 5). I credit the testimony and find that the Student, who had a language-based learning disability, the act of reading was completely different from the ability to comprehend (T.68). I credit the testimony and find that in addition to 90 minutes of individual OT that the Student received 20 minutes of handwriting skills in a group from the OT daily and received daily gross motor group for 30 minutes in the yoga class or by an obstacle course (T.68-69). I credit the evidence and find that the Student had social-emotional, attention, regulation, and language development challenges and I find that the Assistant Head worked with the Student to provide her with individualized visual tools to help her with her regulations (P-Exh. II at 6). I credit the evidence and find that the Student progressed in her reading at the Fountas and Pinnell level K (early 2nd grade). As of January 2023 she had progressed to level K (late 2nd grade)"(P-Exh. II at 5). I credit the evidence and find that the Student progressed in her ability to decode and in her ability to sustain attention (P-Exh. II at 6). I credit the testimony and find that the Student was significant below 2nd grade in her ability to comprehend (T. 73). I credit the testimony and evidence and I find that the Student placed with student's with scattered skills so there was peer modeling and peer teaching and I find that the "[Redacted]" (P-Exh. II at 6). I credit the testimony and find that Literacy was taught by a certified special education teacher, and a SLP in a group of 3 to 5 students (T.76) and that ELA, math, social studies and science were also taught by a certified special education teacher, and a SLP in a group of 3 to 5 students (T.78-79). I credit the testimony and find that the Student was working on sentence and paragraph writing and that the OT provider pushed into the Leisure class to assist the student with their independent work (T.80). I credit the testimony and find that for the 2022-2023 school year the Student was not receiving ABA in school and find that she progressed with her social relationships with the small classes of 3 to 5 students using a multisensory approach taught by a SLP and a special education head teacher in the least restrictive environment (T.82).