New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 596248 - NYC: 245834

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: February 10, 2023

Date(s) of Hearing: September 13, 2023

Actual Record Closed Date: October 9, 2023

Date of Decision: October 23, 2023

Time Sensitive Yes

Hearing Officer: Robin Levin, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 13, 2023

For the Student:

REDACTED

For the Department of Education:

REDACTED

INTRODUCTION

This is a decision rendered after a due process hearing (“DPH” or “hearing”) pursuant to the Individuals with Disabilities Education Act (“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 Article 89 §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.^[1] This case concerns Student, a REDACTED -year-old, who is classified by the New York City Department of Education (“DOE” or “District”) as a student with Autism.^[2] For the 2022-2023 school year, the Student attended two private schools (“Private School 1” and “Private School 2”) and received at-home Applied Behavior Analysis (“ABA”) by the ABA Provider. ^[3]

On February 10, 2023, the Parent, through her attorney, filed a Due Process Complaint (“DPC”) against the DOE.^[4] In the DPC, the Parent alleged that the DOE failed to offer the Student a Free Appropriate Public Education (“FAPE”) for the 2022-2023 school year.^[5] The Parent alleged that two Individualized Education Programs (“IEPs”) were created for the 2022-2023 school year. ^[6] The first IEP meeting was held on March 15, 2022, which was the operative program until the second IEP meeting occurred half-way through the 2022-2023 school year, on January 9, 2023. ^[7] The Parent alleged numerous procedural and substantive violations including that: 1) the DOE failed to evaluate the Student in all areas of suspected disability, and failed to respond to a request for an independent assistive technology evaluation; 2) the DOE predetermined both IEPs and did not consider the full continuum of special education programs for the Student; 3) the DOE failed to provide evaluative data prior to the IEP meetings; 4) the IEPs failed to contain meaningful, measurable goals for the Student or accurately describe the Student’s present levels of performance; 5) the DOE failed to recommend and provide individualized parent counseling and training; 6) the DOE failed to mandate and implement appropriate programs that use necessary research-based methodology for the Student to access a meaningful education; 7) the DOE failed to timely recommend a school placement for the 2022-2023 school year; and 8) the DOE retaliated against the Parent and the ABA Provider, violating the Student’s rights under the Americans with Disabilities Act (“ADA”). ^[8]

By way of relief, the Parent seeks tuition funding for two unilateral placements, special education transportation services, funding for at-home ABA services provided by the ABA Provider, an independent assistive technology evaluation funded by the DOE, an order for the DOE to conduct new speech-language and occupational therapy evaluations, changes to the language in the Student’s IEP, and a determination regarding what extent, if any, the IDEA provides a remedy for the Parent’s retaliation claims.^[9] The Parent alleged that the two unilateral placements with at-home ABA services provided by the ABA Provider were appropriate for the Student, and that the equities support her claim for direct tuition funding and payment for services for the entire 12-month 2022-2023 school year. ^[10]

As discussed below, I find that the DOE denied the Student a FAPE for the 2022-2023 school year. I find that Private School 1, Private School 2, and the at-home ABA services with the ABA Provider offered the Student specially designed instruction sufficient to meet the Student’s needs, and the equities support the Parent’s request for direct funding of the tuition and direct payment of the ABA services during the 2022-2023 school year. In addition, I find that the Student is entitled to an independent assistive technology evaluation. Moreover, I find that the DOE must conduct updated speech-language and occupational therapy evaluations. The DOE shall reconvene the Student’s IEP team to consider the evaluations once completed and determine whether any changes to the Student’s IEP are appropriate. Lastly, I find that there is no available relief under the IDEA for the Parent’s retaliation claims made under the ADA.

PROCEDURAL HISTORY

On February 14, 2023, I was appointed as the Impartial Hearing Officer (“IHO”). On March 14, 2023, the parties appeared virtually for a pre-hearing conference (“PHC”). At the PHC, the DOE Attorney indicated that the matter was recommended for settlement and the parties made a joint request to extend the compliance date for settlement purposes, which I granted. 11 Status conferences were held on April ^[11], 2023, May 17, 2023, June 14, 2023, and two additional joint requests to extend the compliance date for settlement purposes were granted.^[12] On July 5, 2023, the parties appeared for a status conference and the DOE Attorney indicated that the DOE was unable to get approval for settlement. 13 Therefore, we discussed scheduling a Due Process Hearing (“DPH” or “hearing”), and the parties made a joint request to extend the compliance date due to witness availability, which I granted.^[14] On August 3, 2023, we reconvened for a final status conference after the parties confirmed the availability of their witnesses, and the parties moved for an extension of the compliance date, which I granted. ^[15]

A virtual DPH was held on September ^[13], 2023.^[16] It was a closed hearing. The Parent was present and represented by the Parent’s Attorney. The DOE Attorney was also present. The DOE Attorney sought to admit 8 exhibits into the hearing record, which were admitted without objection from the Parent’s Attorney.^[17] The Parent’s Attorney sought the entry of 43 exhibits into the hearing record, including affidavit testimony from 5 witnesses.^[18] I admitted all 43 exhibits into the hearing record over the objection of the DOE Attorney.^[19] The DOE Attorney gave an opening statement indicating that the DOE would not be calling any witnesses at the hearing “in its Prong I case and will rest on the documentary evidence it has submitted.”^[20] The Parent’s Attorney gave an opening statement and called the ABA Provider, the Educational Program Coordinator at Private School 1, the Executive Director of Education at Private School 2, the Parent, and the Clinical Psychologist to testify via affidavit.^[21] The DOE Attorney cross-examined the Parent, the Executive Director of Education at Private School 2, the Educational Program Coordinator at Private School 1, and the ABA Provider, and the Parent’s Attorney conducted brief re-direct of the Parent and the ABA Provider.^[22] The Parent rested, the parties agreed to submit written closing briefs in this matter, and I granted a joint request to extend the compliance date.^[23] The record was closed on October 9, 2023, after receipt and review of the parties’ closing briefs. ^[24]

In the closing brief, the DOE took the position that the IHO lacks jurisdiction to rule on the Parent’s retaliation claims, and the IHO lacks the authority to order the CSE to remove certain language from the IEP.^[25] In addition, the DOE argued that the Parent failed to meet her burden in showing the appropriateness of the unilateral placements at Private School 1 and Private School 2.^[26] The DOE also argued that the at-home ABA services were unwarranted since both unilateral placements provided ABA services in school.^[27] Moreover, the DOE argued that the Student is not entitled to any independent educational evaluations (“IEEs”) because the Parent did not show that she disagreed with the DOE’s evaluations, which would trigger IEEs at public expense. ^[28]

In the Parent’s closing brief, the Parent took the position that the DOE denied the Student a FAPE for the 2022-2023 school year.^[29] The Parent argued that the unilateral placements at both Private School 1 and Private School 2 were appropriate for the Student, and the at-home ABA services were also appropriate for the Student.^[30] Moreover, the Parent argued that the equities support an award of direct tuition funding and funding for the ABA services.^[31] In addition, the Parent argued that an independent assistive technology evaluation should be ordered, and the DOE should be ordered to conduct updated occupational therapy and speech-language therapy evaluations.^[32] Next, the Parent argued that the IHO has the authority and should order the CSE to change the language in the Student’s IEP including the Student’s present levels of performance. ^[33] Lastly, the Parent requested that the IHO determine what, if any, relief is available and should be awarded under the IDEA for the Parent’s claims of retaliation asserted under the ADA ^[34]

FINDINGS OF FACT

After a full review of the hearing record, I make the following findings of fact and determinations. Overall, I find all exhibits admitted into the hearing record to be relevant and representative of the facts for which they were offered.^[35] As for the witnesses, I find no reason to doubt the veracity of their testimonies and therefore, I find all the witnesses credible. I base the following on the record generated at the hearing.

The Student’s Educational History

The Student is currently REDACTED years old and has been diagnosed with Autism Spectrum Disorder (Level 3, requiring significant support without intellectual impairment), Social Pragmatic Language Disorder, severe Specific Learning Disorder with impairments in reading (deficits noted in comprehension), written expression, and mathematics, and Attention Deficit Hyperactivity Disorder (combined presentation).^[36] The Student is classified by the DOE as a student with Autism. ^[37]

The Student has been known to the DOE due to his disabilities for several years.^[38] In October of 2014, the Student was evaluated for early intervention services and was diagnosed with Autism.^[39] From 2014-2016, the Student received early intervention services including ABA, speech-language therapy, occupational therapy, and physical therapy was added for the 2015-2016 school year.^[40] Throughout preschool, from 2016 to 2018, the Student was not provided with ABA, his development regressed, and unsafe and eloping behaviors increased. ^[41]

In December of 2017, the Student began working with the ABA Provider, and he struggled to recover from the regression he had experienced.^[42] During the times the Student did not have a 1:1 provider trained in ABA or another research-based methodology, he could not focus his attention and maintain appropriate behaviors needed to access his education.^[43] In 2018, the Student underwent a neuropsychological, occupational therapy, and speech-language evaluations.^[44] In July of 2018, the CSE convened an IEP meeting and mandated a 12-month program consisting of a 6:1+1 special class, related services such as speech-language and occupational therapy, counseling, and parent counseling and training, a toileting paraprofessional, and door-to-door specialized transportation services.^[45] The following year, in 2019, the Student underwent an assistive technology, psychiatric, and neuropsychological evaluations.^[46] In September of 2019, the CSE reconvened an IEP meeting and ultimately recommended the same program as the July 2018 IEP except that it did not include a toileting paraprofessional and added adaptive physical education and physical therapy.^[47] During the 2019-20 school year, the Student’s behavior and attention regressed and new unwanted behaviors increased.^[48] During remote learning due to the COVID-19 pandemic, the Student did not receive any educational ABA as part of the DOE’s program, and “he was less successful at maintaining his levels of performance academically and in activities of daily living.”^[49] This led to continued regression, and an increase in “selfstimulatory, obsessive-compulsive, inattentive, and hyperactive behaviors.”^[50] The CSE reconvened in June of 2020, June of 2021, and November of 2021 as the Parent initiated multiple impartial hearing requests and sought court intervention to address disputes regarding the Student’s programs and pendency services. ^[51]

From September 16, 2021 to November 26, 2021, the ABA Provider conducted a Functional Behavior Assessment (“FBA”) of the Student and created a Behavioral Intervention Plan.^[52] The Student’s behaviors of elopement/bolting, hitting others, pushing/shoving others, throwing objects, biting himself, climbing on furniture, and vocal stereotypy were found to be severe, while his behaviors of overturning/displacing furniture, hitting objects/banging, yelling, grabbing objects, and noncompliance were found to be moderate.^[53] The Student’s behaviors were affecting him academically and also interfering with his daily living activities and routines. ^[54]

While the ABA Provider strived to implement the Student’s BIP in the Public School, there were numerous disruptions to the Student’s education during the 2021-2022 school year, including the lack of appropriate instruction in the classroom with constantly changing teachers, the absence of the assigned paraprofessional for multiple periods throughout the day, and failure of the paraprofessional and other school personnel from properly supervising the Student, who would elope or engage in maladaptive behaviors.^[55] The Students maladaptive behaviors remained throughout the 2021-2022 school year while he was at the Public School, but he exhibited less severe and less frequent problem behaviors during ABA sessions since his ABA services provided him with the structure and programmed reinforcers he needed to comply and complete tasks and activities.^[56] On March 3, 2022, the Clinical Psychologist conducted a neuropsychological evaluation of the Student.^[57] The Clinical Psychologist determined that that the Student required a non-public school program for children with Autism Spectrum Disorder.^[58] In addition, the Clinical Psychologist’s recommendations included the use of 1:1 intensive instruction using ABA both at school and at home. ^[59]

The March 15, 2022 IEP

There were two IEPs in place for the 2022-2023 school year.^[60] First, the CSE convened on March 15, 2022.^[61] This IEP was the operative IEP for half of the 12-month 2022-2023 school year from July 2022 until the CSE reconvened on January 9, 2023.^[62] The Parent attended the IEP meeting on March 15, 2022.^[63] Prior to the IEP meeting, the Parent provided the DOE with the Student’s recent neuropsychological evaluation that was conducted by the Clinical Psychologist.^[64] The Parent was not provided with any evaluative data from the DOE prior to this meeting.^[65] Ultimately, the CSE agreed that the Public School was not appropriate for the Student and the Student needed a state-approved nonpublic school (“NPS”) with a 6:1:1 class setting with related services on a 12-month basis.^[66] The CSE told the Parent that the Student would be deferred to the Central Based Support Team (“CBST”) for an expedited placement in a NPS.^[67] However, the Student’s March 15, 2022 was never implemented by the DOE as a NPS was not located for the Student, and the Student remained in the Public School.^[68] Prior to the beginning of the 12-month 2022-2023 school year, the DOE did not send the Parent any NPSs to consider for the Student and did not discuss with the Parent any interim placements for the Student. ^[69]

Private School 1 with At-Home ABA Services

Since the DOE failed to secure a NPS for the Student, the Parent applied to Private School 1 and arranged with the ABA Provider to provide ABA services at-home after-school.^[70] On June 24, 2022, the Parent sent a letter (“Ten-Day Notice 1”) to the CSE, informing the District that as of July 11, 2022, the Student would be unilaterally placed at Private School 1 with 15 hours per week of private at-home ABA services provided by the ABA provider at public expense if the DOE did not provide the Student with an appropriate program and placement for the 12-month 2022-2023 school year and address the Parent’s concerns with the March 15, 2022 IEP. ^[71]

On July 6, 2022, the Parent signed an Enrollment Contract with Private School 1. ^[72] According to the Enrollment Contract, the Parent was liable for the cost of the Student’s tuition even if she did not prevail at obtaining tuition funding from the District.^[73] The cost of the 6-week summer program at Private School 1 was $19,500.^[74] On July 8, 2022, the Parent made a $50 payment towards the cost of the Student’s tuition.^[75] The Student attended Private School 1 from July 11, 2022 to August 19, 2022, although his attendance record shows there were days the DOE did not provide a bus to transport the Student to Private School 1.^[76] During 2022, the Parent’s adjusted gross income was $45,010. ^[77]

The Educational Program Coordinator at Private School 1 testified credibly about the program provided to the Student during the 6-week 2022 summer session.^[78] Private School 1 “is a non-public school specializing in the education of students with Autism Spectrum Disorder, who mostly have the disability classification of Autism.”^[79] In addition, Private School 1 is accredited by the Middle States Association of Colleges and Schools and “is authorized by the New York State Education Department to administer statewide assessments and examinations, including Regents examinations, and to issue Regents diplomas. [Private School 1] is a New York State Education Department-approved provider for ‘Training in the Needs of Autism.’”^[80] At Private School 1, instruction is individualized to each student’s needs, level, style of learning, and the school provides ABA programming by highly trained staff.^[81] Private School 1’s program consists of “a small class structure consisting of six students, one teacher, one assistant teacher or paraprofessional (6:1:1) setting that allows for the provision of both one-to-one (1:1) and small group instruction, a verbal behavior component, social skills training, self-care instruction, and appropriate levels of speech-language services, occupational therapy, and physical therapy.” ^[82]

At Private School 1, the staff members are all certified and/or licensed in their fields or are pending certification.^[83] Private School 1 requires the staff members to participate in weekly training sessions and receive intensive ABA training and training on autism spectrum disorder.^[84] Private School 1 has two programs, and in this case, the Student was enrolled in a blended version of the two programs which allowed him to learn “functional academics through the use of ABA methodologies and social skills training while also following New York State standards and preparing for a regent’s diploma.^[85] The Student was grouped into a class with 5 other students who presented with similar skills and needs.^[86] The Student’s schedule consisted of Activities of Daily Living (“ADL”), Social Thinking, English-Language Arts (“ELA”), Math, Art, Music, Science Social Studies, Gym, and related services including physical therapy, occupational therapy, and speech-language therapy. ^[87]

The Educational Program Coordinator at Private School 1 testified that the Student required “ABA with discrete trial teaching and frequent prompting and reinforcement to make progress.”^[88] The Educational Program Coordinator worked closely with the Student’s teachers and related service providers to develop and monitor the Student’s program and ensure that the Student’s program consistently addressed his academic, language/communication, social and emotional needs.^[89] The Student also had a 1:1 paraprofessional at school and a paraprofessional on the bus.^[90] While the Student showed greater engagement by the end of the summer, the Parent could not continue his placement at Private School 1 because the DOE’s transportation services were unreliable. ^[91]

On August 26, 2022, the Parent sent a letter to Private School 1 indicating that due to the transportation issues, the Student would be transferring to Private School 2.^[92] On the same date, the Parent sent a second letter (“Ten-Day Notice 2”) to the CSE notifying the District that the Student will be unilateral placed at Private School 2 commencing September 8, 2022 with 15 hours per week of ABA services provided at-home by the ABA Provider.^[93] Ten-Day Notice 2 reiterated the Parent’s concerns with the March 15, 2022 IEP, the lack of an appropriate placement for the Student by the CBST in a NPS, the need for the Student’s program to contain ABA both in school and at home, the need for physical therapy to be added to his IEP, and the letter detailed the issues with the DOE’s transportation services preventing continuation of the Student at Private School 1.^[94] On September 1, 2022, Private School 1 sent a discharge letter which indicated that the Student was discharged from Private School 1 as of September 1, 2022 because of “unreliable bus service from the Office of Pupil Transportation that jeopardized the parent’s ability to work.”^[95] The remaining balance for the Student’s attendance at Private School 1 is $19,450. ^[96]

Private School 2 with At-Home ABA Services

On August 30, 2022, the Parent signed a contract with the ABA Provider for ABA sessions to occur at-home at a rate of $140 per hour.^[97] The ABA Provider provided at-home ABA services for the Student from Monday to Friday after-school from 4:30 PM to 7:30 PM.^[98] Shortly thereafter, on September 1, 2022, the Parent signed an Enrollment Contract with Private School 2 for the 2022-2023 school year commencing September 8, 2022 through June 29, 2023.^[99] The Parent is liable for the cost of the tuition, which totals $140,700.^[100] The entire amount remains owed to Private School 2.^[101] The Executive Director of Education at Private School 2 testified credibly about the program created for the Student.^[102] Private School 2 “is an independent special education school focused largely on the needs of students with autism and related disabilities in need of a highly individualized program.”^[103] The program at Private School 2 consisted of ABA by highly trained staff members, small class sizes with 1:1 instruction, “a verbal behavior component, social skills training, self-management instruction, appropriate levels of speech/language services incorporated throughout the day, occupational therapy at appropriate levels, co-treatment sessions so related services goals are included in classroom activities and objectives, sensory gym, inclusion opportunities with non-disabled peers, opportunities to participate in activities in the community, transdisciplinary group instruction, participation in music therapy, parent training and education, and support for other family members.” ^[104]

The Executive Director of Education at Private School 2 took part in developing the Student’s program and co-supervised his classroom with the Director of Lower School.^[105] The Student required 1:1 instruction in order to acquire new skills and the teachers also used “a variety of tactics such as response and stimulus prompts that needed to be systematically faded and a structured schedule of reinforcement.”^[106] For the 2022-2023 school year, Private School 2 placed the Student in a class with a total of 7 students, one head teacher, and 6 ABA instructors, where the Student received 5 hours per day of 1:1 instruction.^[107] The Student’s head teacher holds a master’s degree in special education and the 6 ABA instructors all have either master’s degrees or bachelor’s degrees and are trained in ABA.^[108] The staff members at Private School 2 receive “initial training in the principles of behavior analysis, behavior management, data collection and analysis, as well as other pertinent topics relevant to the education and safety of students at [Private School 2].”^[109] Staff Members continued to receive ongoing training throughout the school year including bi-weekly trainings and observations. ^[110]

Private School 2 assessed the Student using the Assessment of Basic Language and Learning Skills (“ABLLS-R”) and created a program tailored to the Student’s individualized need, using annual goals and short-term objectives.^[111] Goals were also created for the Student’s related services of speech-language therapy and occupational therapy.^[112] The Student’s class schedule consisted of mainly individualized 1:1 instruction, and the Student worked closely with the head teacher and ABA instructors to meet various goals in mathematics, reading, language arts, writing and typing skills, independence, verbal behavior, self-management, leisure skills, and social skills.^[113] The Student received speech-language therapy by a certified speech pathologist 3 times per week 1:1 for 30-minute sessions, once per week in a group for 30 minutes, and once per week during lunch with 1:1 support from an ABA instructor.^[114] During speech-language therapy, the Student’s speech pathologist worked on addressing his receptive, expressive, and pragmatic language needs.^[115] In addition, the Student received occupational therapy by a licensed occupational therapist twice per week 1:1 for 30-minute sessions, once per week in a group for 30 minutes, and a lunchtime session once per week to work on activities of daily living with 1:1 support for an ABA instructor.^[116] The occupational therapy sessions addressed the Student’s sensory processing needs, gross motor coordination, fine motor precision, and self-care skills. ^[117] In addition, Private School 2 provides training to the Parent and stays in daily communication with her. ^[118]

The Executive Director of Education at Private School 2 testified that the Student’s behaviors have made progress since Private School 2 implemented a BIP after conducting a FBA.^[119] The teachers and ABA instructors worked with the Student to address his aggression, self-injurious behavior, eloping, screaming, and noncompliance, all of which have decreased throughout the 2022-2023 school year.^[120] In addition, Private School 2 implemented a vocal tradeoff procedure to ensure the Student is safe and supervised at all times since the Student has a history of eloping in the Public School. ^[121]

The Student has also made progress academically.^[122] With the use of token boards, redirection, response and stimulus prompts, the teachers have worked with the Student to increase his early literacy skills.^[123] The Student demonstrated “strong decoding skills and is able to decode/read words up to a 4th grade level.”^[124] However, he still struggles with reading comprehension and therefore, Private School 2 tailored his programming and goals to focus on increasing his understanding of the text he is reading “by using key vocabulary words to fill in missing information after reading text from a leveled reader series.[The Student] required text prompts in the form of pictures with key word labels to complete this task. Additional comprehension programming has included [the Student] learning to match sentences and corresponding pictures to text from fiction and non-fiction books. He has mastered three leveled readers at the first-grade level.”^[125] Private School 2 also focused on increasing the Student’s written expression skills, using vocal and physical prompting to help the Student appropriately space out the words he is writing with appropriate sizing of the letters. ^[126]

In math, the Student worked on two-digit addition and regrouping.^[127] While he needed vocal prompting at first, the Student has become more independent using the carry over method and also learned how to apply his addition and subtraction skills to word problems.^[128] The Student has mastered writing out and solving single digit addition and subtraction word problems, and additional programming in math has focused on the Student’s ability to add the value of money. ^[129]

The Student has also made progress in his related services.^[130] The Student “is able to communicate utilizing full sentences but requires prompting to do so. Verbal behavior goals have focused on increasing [the Student’s] independence.”^[131] The Student uses a speech generating device with software to assist him and augment his verbal language. ^[132]

Moreover, the Student’s social skills, self-management skills, and activities of daily living have all improved since enrolling in Private School 2.^[133] While he requires prompts to remain focused on a specific task, the use of visual checklists implemented by Private School 2 has proven helpful in getting the Student to successfully complete routines such as unpacking his belongings in the morning and then repacking them at the end of the day.^[134] The continued use of ABA methodologies with 1:1 support and instruction has helped the Student make “notable behavioral progress” during the 2022-2023 school year.^[135] In addition, the Clinical Psychologist also recommended that the Student have an at-home ABA service component to his program in conjunction with the program provided by Private School 2. ^[136]

The January 9, 2023 IEP

On December 20, 2022, the Student was reevaluated by the DOE.^[137] The ABA Provider was present and witnessed the Student attempt to elope from the evaluator, but the evaluation was able to be completed.^[138] However, the DOE has not conducted speech-language or occupational therapy evaluations for the Student since 2018 and has not conducted an assistive technology evaluation since 2019.^[139] On January 9, 2023, the CSE reconvened an IEP meeting.^[140] The Parent, the ABA Provider, and teachers from Private School 2 attended the Student’s IEP meeting.^[141] The Parent testified credibly that the IEP meeting was rushed and the present levels of performance section was copied and pasted from the March 15, 2022 IEP.^[142] The DOE representative told the Parent a new public school placement would be provided and that the Student would be deferred again to CBST for placement in a NPS.^[143] The CSE recommended a 12-month program at a state-approved NPS (with interim D75 public school placement) in a 6:1:1 special education class with related services, a full-time behavior paraprofessional, assistive technology, and parent counseling and training. ^[144]

On March 30, 2023, the Parent received an interim public school placement, and she visited the school in May of 2023.^[145] During the tour of the school, the Parent was informed that all of the students in the Student’s classroom would be below the Student’s functioning level, there would not be any ABA services, and police intervention has been used at the school previously when there was an issue with a special education student.^[146] The Parent became very concerned about this interim public school placement, and the DOE did not provide the Parent with any information about how the Student would transition from Private School 2 to the interim public school placement for the remainder of the 2022-2023 school year.^[147] The Student remained at Public School 2 and the Parent sent another letter (“Ten-Day Notice 3”) to the CSE expressing her concerns with the January 9, 2023 IEP, the interim public school placement, and her intent to keep the Student in Public School 2 for the remainder of the 2022-2023 school year. ^[148]

CONCLUSIONS OF LAW AND ANALYSIS

This case concerns the DOE’s alleged failure to provide the Student with a FAPE the 2022-2023 school year.^[149] Specifically, the Parent alleged that: 1) the DOE failed to evaluate the Student in all areas of suspected disability, and failed to respond to a request for an independent assistive technology evaluation; 2) the DOE predetermined both IEPs and did not consider the full continuum of special education programs for the Student; 3) the DOE failed to provide evaluative data prior to the IEP meetings; 4) the IEPs failed to contain meaningful, measurable goals for the Student or accurately describe the Student’s present levels of performance; 5) the DOE failed to recommend and provide individualized parent counseling and training; 6) the DOE failed to mandate and implement appropriate programs that use necessary research-based methodology for the Student to access a meaningful education; 7) the DOE failed to timely recommend a school placement for the 2022-2023 school year; and 8) the DOE retaliated against the Parent and the ABA Provider, violating the Student’s rights under the ADA. ^[150]

FAPE

The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.^[151] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.^[152] A school district has offered a student a FAPE when it complies with the procedural requirements set forth in the IDEA, and the IEP is reasonably calculated to enable the student to receive educational benefits.^[153] Under the IDEA, students with disabilities are entitled to be educated in the least restrictive environment that meets their unique needs. ^[154]

Parents may allege procedural and/or substantive FAPE violations. For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.”^[155] To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”^[156] The District must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’”^[157] A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.^[158] The IEP must be reviewed at least annually, and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year.^[159] The IEP should: (1) accurately reflect the results of evaluations to identify the student’s needs, 160 (2) provide for the utilization of sufficient special education programs or services,^[161] and then (3) the IEP must be properly and timely implemented.^[162] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. ^[163]

In due process hearings under the IDEA in New York, school districts have the burden of proof, including the burden of production and burden of persuasion. However, there is an exception in that a parent seeking tuition reimbursement or funding for a unilateral parental placement has 34 C.F.R. § 300.320(a)(1); 8 N.Y.C.R.R. 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008). the burden of persuasion and burden of production regarding the appropriateness of such placement.^[164] In this case, the Parent is seeking tuition funding for two unilateral placements and funding for at-home ABA services provided by ABA Provider along with additional relief.^[165] As this case does involve a parental unilateral placement, the burden regarding whether the unilateral placements are appropriate is on the Parent, and the burden regarding all other elements of the case is on the DOE. ^[166]

Here, the DOE failed to meet its burden of showing the Student was provided a FAPE for the 2022-2023 school year. While the DOE Attorney admitted some documentary evidence into the hearing record, the DOE did not call any witnesses at the hearing.^[167] Therefore, there is no evidence in the record as to how the CSE made its recommendations, how the IEPs appropriately describe the Student, or whether the IEPs are meaningfully calculated to confer educational benefit. In short, the DOE failed to “offer a cogent and responsive explanation for their decisions” in creating both the March 15, 2022 IEP and the January 9, 2023 IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.”^[168] The DOE did not rebut any of the Parent’s allegations at the hearing.

Moreover, regardless of whether the DOE called any witnesses to testify at the hearing, a review of the evidence admitted into the hearing record supports a finding that the DOE failed to provide the Student with a FAPE for the 2022-2023 school year. The evidence shows that prior to the IEPs meetings, the DOE did not comprehensively evaluate the Student in all areas of suspected disability. The Parent testified credibly that the DOE has not conducted speech-language or occupational therapy evaluations for the Student since 2018 and has not conducted an assistive technology evaluation since 2019. ^[169]

Furthermore, the DOE failed to implement the March 15, 2022 IEP because a NPS was never secured for the Student.^[170] It is undisputed that the Student’s March 15, 2022 IEP mandates a 12-month program in a state-approved NPS.^[171] The DOE did not present any evidence at the hearing that the CBST attempted to locate a NPS for the Student, and I credit the Parent’s testimony that no NPS placements were recommended to her for the 2022-2023 school year. ^[172]

Moreover, for the 2022-2023 school year, I find that the IEPs developed for the Student were inappropriate for the Student and could not meet the Student’s unique needs. The evidence in the hearing record shows that the Student needed 1:1 tailored instruction using ABA methodologies to allow the Student to access a meaningful education during the 2022-2023 school year.^[173] However, the DOE has repeatedly failed to include any provision for ABA services in the Student’s IEPs even though the Student’s evaluations have consistently indicated that the Student’s requires ABA to be part of his special education program.^[174] The Second Circuit has held that a school district cannot merely refuse ABA when the evaluative data suggests that it is necessary to meet the Student’s unique needs. ^[175]

Overall, I find that the DOE failed to offer the Student a FAPE for the 2022-2023 school year. The DOE did not meet its burden at the hearing to show that the Student was provided with a FAPE, and a review of the documentary evidence admitted into the hearing record does not support the conclusion that a FAPE was provided. Instead, the evidence overwhelmingly supports the conclusion that the DOE failed to provide the Student with a FAPE for the entire 12-month 2022-2023 school year.

Tuition Funding for the Unilateral Placements

The Parent seeks tuition funding for the unilateral placements at Private School 1 and Private School 2 and direct payment of the ABA services provided to the Student for the 2022-2023 school year.^[176] When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint.^[177] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” ^[178]

A district must pay for the cost of a student’s tuition at a private school if the three “prongs” of the Burlington/Carter test are met: (1) the district denied the student a FAPE; (2) the private school unilateral placement is appropriate; and (3) the equities favor an order of tuition reimbursement or funding. ^[179]

Prong 1

As discussed in detail above, the DOE failed to meet its burden at the hearing to show that the Student was provided a FAPE for the entire 12-month 2022-2023 school year.

Prong 2

Therefore, I now must consider whether Private School 1, Private School 2, and the athome ABA services provided by the ABA Provider were appropriate unilateral placements for the Student. A unilateral private school placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.”^[180] Parents need not show that the unilateral placement is perfect or that it meets all state educational standards.^[181] Instead, parents must “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.”^[182] In addition, parents seeking reimbursement or tuition funding “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”^[183] While there are some exceptions, “’the same considerations and criteria that apply in determining whether the [DOE’s] placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” ^[184]

A unilateral placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.^[185] The determination of whether the unilateral placement serves a student’s individual needs and is reasonable calculated to enable a student to receive educational benefits does not depend only on one factor. Instead, courts assessing the appropriateness of a unilateral placement must consider the totality of the circumstances, including but not only, academic progress demonstrated through grades, test scores, progress reports, and regular advancement.^[186] A private school placement must be “proper under the Act.”^[187] This means that the private school must offer an educational program which meets the student’s special education needs. ^[188]

The DOE Attorney argued in his closing brief that the Parent did not meet her burden to show that the unilateral placements at Private School 1 and Private School 2 were appropriate for the Student.^[189] The DOE Attorney argued that the Parent “presented no evidence in any manner or form regarding the unique specifics of the instructions provided to the Student by [Private School 2] and [Private School 1].”^[190] I disagree. I find that Private School 1 and Private School 2 meet the Frank G. standard and provided the Student educational instruction that was designed to meet the Student’s unique needs and enable the Student to make progress during the 12-month 2022-2023 school year.

Primarily, Private School 1 and Private School 2 were appropriate because they provided the Student with individualized attention and instruction with similarly functioning peers. This “comes within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’”^[191] The hearing record shows that for the Summer 2022 session, Private School 1 grouped the Student into a class with 5 other students who presented with similar skills and needs.^[192] The classroom setting allowed for the provision of both 1:1 and small group instruction.^[193] Similarly, Private School 2 placed the Student in a class with a total of 7 students, one head teacher, and 6 ABA instructors, where the Student received 5 hours per day of 1:1 instruction. ^[194]

Furthermore, the record demonstrates that both Private School 1 and Private School 2 adapted instruction, providing a high degree of individualized attention to the Student and his educational needs. Private School 1 created a program for the Student that utilized “ABA with discrete trial teaching and frequent prompting and reinforcement to [allow the Student to] make progress.”^[195] The Educational Program Coordinator at Private School 1 worked closely with the Student’s teachers and related service providers to develop and monitor the Student’s program and ensure that the Student’s program consistently addressed his academic, language/communication, social and emotional needs.^[196] Similarly, Private School 2 assessed the Student using the Assessment of Basic Language and Learning Skills (“ABLLS-R”) and created a program tailored to the Student’s individualized needs, using annual goals and short-term objectives.^[197] Goals were also created for the Student’s related services of speech-language therapy and occupational therapy.^[198] The Student’s class schedule consisted of mainly individualized 1:1 instruction, and the Student worked closely with the head teacher and ABA instructors to meet various goals in mathematics, reading, language arts, writing and typing skills, independence, verbal behavior, selfmanagement, leisure skills, and social skills.^[199] For example, the Student’s teachers noticed that the Student was struggling with meeting his reading comprehension goals and therefore, Private School 2 adapted instruction to focus on increasing the Student’s understanding of the text he is reading “by using key vocabulary words to fill in missing information after reading text from a leveled reader series.” ^[200]

Additionally, Private School 1 and Private School 2 were appropriate because they provided the Student with instruction from trained teachers. The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but in this case, Private School 1 and Private School 2 nevertheless ensured that their teachers have the training and specialization necessary to teach the Student based on his needs.^[201] The evidence shows that all of the staff at Private School 1 are certified and/or licensed in their fields or are pending certification.^[202] Private School 1 requires the staff members to participate in weekly training sessions and receive intensive ABA training and training on autism spectrum disorder.^[203] Likewise, at Private School 2, the Student’s head teacher holds a master’s degree in special education and the 6 ABA instructors all have either master’s degrees or bachelor’s degrees and are trained in ABA.^[204] The staff members at Private School 2 receive “initial training in the principles of behavior analysis, behavior management, data collection and analysis, as well as other pertinent topics relevant to the education and safety of students at [Private School 2].”^[205] Staff Members continued to receive ongoing training throughout the school year including bi-weekly trainings and observations.^[206] Therefore, the teachers at both Private School 1 and Private School 2 have sufficient training, degrees, and/or certifications to teach the Student based on his unique needs and learning profile.

In addition, Private School 1 and Private School 2 were appropriate because the Student made progress at both schools, academically, behaviorally, and in his related services. A student’s progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement.^[207] While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement.^[208] At Private School 1, the Student showed greater engagement by the end of the Summer 2022 session.^[209] At Private School 2, the Student made progress behaviorally since the Private School implemented a BIP after conducting a FBA.^[210] The teachers and ABA instructors worked with the Student to address his aggression, eloping, self-injurious behavior, screaming, and noncompliance, all of which have decreased throughout the 2022-2023 school year.^[211] With the use of token boards, redirection, response and stimulus prompts, the teachers at Private School 2 have worked with the Student to increase his early literacy skills.^[212] In math, the Student worked on two-digit addition and regrouping.^[213] While he needed vocal prompting at first, the Student has become more independent using the carry over method and also learned how to apply his addition and subtraction skills to word problems.^[214] The Student has mastered writing out and solving single digit addition and subtraction word problems, and additional programming in math has focused on the Student’s ability to add the value of money. ^[215] The Student has also made progress in his related services at Private School 2.^[216] For example, the Student “is able to communicate utilizing full sentences but requires prompting to do so. Verbal behavior goals have focused on increasing [the Student’s] independence.” ^[217]

Overall, the hearing record establishes that the Student’s unique special education needs have been met by both Private School 1 and Private School 2. The instruction offered at both schools was “reasonably calculated to enable the child to receive educational benefits.”^[218] I find the DOE’s arguments concerning the appropriateness of the Parent’s unilateral placements without merit, and I find that the Parent has met her burden in proving that Private School 1 and Private School 2 offered an educational program which met the Student’s needs under Prong 2 of the Burlington/Carter standard.

Next, I must determine whether the Parent met her burden in showing the appropriateness of the at-home ABA services provided by the ABA Provider after-school during the 2022-2023 school year. The DOE Attorney argued in his closing brief that the at-home ABA is unwarranted because the Student receives ABA instruction at school.^[219] I disagree. The entire hearing record supports a finding that the Student requires 40 hours per week of ABA allowing him to access a meaningful education in light of his unique circumstances, and the continued use of ABA methodologies with 1:1 support and instruction both in school and at home has helped the Student make “notable behavioral progress” during the 2022-2023 school year.^[220] In addition, the Clinical Psychologist also recommended that the Student have an at-home ABA service component to his program in conjunction with the program provided by Private School 2.^[221] Therefore, I find that the at-home ABA services provided by the ABA Provider were a necessary and appropriate component of the Student’s program for the 2022-2023 school year.

Prong 3

Under Burlington/Carter, if the parents are financially obligated to pay for the contracted tuition costs and have met their prong 2 burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced.^[222] The courts have “broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”^[223] Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."^[224] “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.”^[225] Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the District. ^[226]

In addition, a hearing officer may consider many additional factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent should have sought need-based scholarships or other financial aid from the private school, whether there was any fraud or collusion in generating, or inflating, the tuition to be charged to the school district, and whether the arrangement with the school was fraudulent or collusive in any other respect. ^[227]

I find that the equities favor the Parent’s claims. Here, not only did the Parent fully cooperate with the CSE, but the evidence also shows that the Parent fully participated in the IEP process. The Parent has consistently remained in contact with the DOE. She participated in both the March 15, 2022 and January 9, 2023 IEP meetings, and expressed her concerns with the recommended programs and placements or lack thereof.^[228] The Parent’s cooperation and participation weighs in favor of the Parent’s request for direct tuition funding under Prong 3 of the Burlington/Carter standard. ^[229]

Furthermore, on June 24, 2022, August 26, 2022, and June 6, 2023, the Parent provided the necessary Ten-Day Notices of her concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year and her intent to unilaterally place the Student in Private School 1 and Private School 2 in conjunction with the at-home ABA services.^[230] In the notice letters, the Parent lists her concerns regarding the Student’s IEPs. ^[231]

As discussed previously, the Parent signed three contracts: one for Private School 1 signed on July 6, 2022, the second contract on August 30, 2022 for the at-home ABA services by the ABA Provider, and third, on September 1, 2022, the Parent signed a contract enrolling the Student at Private School 2.^[232] The total cost of the tuition for the 6 week Summer 2022 session at Private School 1 was $19,500.00.^[233] As of March 28, 2023, one payment of $50.00 has been made to Private School 1 and the current outstanding balance due is $19,450.00.^[234] I find no issue with the reasonableness of the cost of tuition for Private School 1. The Student’s attendance record shows that the Student attended Private School 1 regularly with absences attributed to the lack of bus transportation. ^[235]

Next, the total cost of tuition for Private School 2 for the 2022-2023 school year was $140,700.00.^[236] As of March 15, 2023, no payments have been made and the current outstanding balance is $140,700.00.^[237] I find no issue with the reasonableness of the cost of tuition for Private School 2. The Student’s attendance record shows that the Student attended Private School 2 regularly throughout the 2022-2023 school year. ^[238]

Lastly, the cost of the at-home ABA services provided by the ABA Provider for 15 hours per week was $140 per hour for the services rendered during the 2022-2023 school year.^[239] I find no issue with the reasonableness of the cost of the ABA services. Overall and after considering the hearing record, I find that the equities support the Parents’ claim for direct tuition funding and direct payment of the ABA services.

Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA.^[240] Pursuant to the contracts, the Parent is liable for the cost of the tuition at both Private School 1 and Private School 2, and the Parent is liable for the payment of the ABA services, including if the Parent is denied tuition funding through a final decision.^[241] Under the law, “once the Burlington prerequisites are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately.”^[242] Having reviewed the Parent’s tax returns for 2022, I find that the Parent cannot afford to pay the tuition and ABA services and seek reimbursement.^[243] Equity demands that the DOE fund the Student’s tuition at Private School 1 and Private School 2 and pay the ABA Provider directly in this instance.

Transportation Services

The IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.”^[244] Transportation may be deemed necessary “if in its absence a disabled child in private school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools.’” ^[245]

In addition, New York State Education 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.”^[246] The requested transportation must also be “reasonable when all of the facts are considered.”^[247] In a guidance document, the State Education Department has indicated that the CSE should consider and document a student’s mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, that the IEP “must include specific transportation recommendations to address each of the student’s needs, as appropriate,” and that when determining a student’s special transportation needs, such as the need for door-to-door transportation, it must document them.^[248] Other relevant considerations may include the student’s age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. ^[249]

In the DPC, at hearing, and in the Parent’s closing brief, the Parent requested an Order directing the DOE to provide door-to-door special education transportation services for the Student to and from Private School 2.^[250] I find that considering the Student’s unique needs, door-to-door transportation services are appropriate and that the Student is entitled to such. I find that Student is entitled to specialized transportation to access and benefit from his special education program. Although the 2022-2023 school year has ended, I am ordering the DOE to provide appropriate door-to-door transportation for the Student with a transportation paraprofessional as a declaration of his entitlement to such.

Independent Assistive Technology Evaluation and DOE-Conducted Evaluations

In the DPC, at hearing, and in the Parent’s closing brief, the Parent made a request for an independent assistive technology evaluation and for the DOE to conduct updated speech-language and occupational therapy evaluations.^[251] The Parent argued that she was entitled to an assistive technology evaluation as an IEE, and that the DOE has not conducted speech-language and occupational therapy evaluations since 2018.^[252] The DOE Attorney argued in his closing brief that the Parent is not entitled to the evaluations because the Parent did not disagree with evaluations conducted by the DOE. ^[253]

An Independent Educational Evaluation (IEE) is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.”^[254] The IDEA and state and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation.^[255] In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” ^[256]

If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE.^[257] A school district can set criteria regarding the IEE, including the qualifications of the examiner, but the district’s criteria must be the same as the criteria it uses for its own evaluations, and the district cannot impose additional conditions or timelines related to the IEE.^[258] For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE,^[259] nor can it deny an IEE at public expense based solely on financial cost.^[260] A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE.^[261] Finally, while the school district may “ask for the parent’s reason why he or she objects to the public evaluation,” the district cannot require an explanation or delay providing the IEE until the parent provides an explanation.^[262] When a parent disagrees with a school district’s evaluation and requests an IEE at public expense, the school district “must, without unnecessary delay,” either (1) ensure that an IEE is provided at public expense, or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. ^[263]

In this case, I disagree with the DOE’s argument that the Parent did not properly disagree with the DOE’s evaluations. I find that the Parent properly expressed her disagreement with the DOE’s decision to not include an assistive technology evaluation when the District reevaluated the Student in December of 2022.^[264] Although the Parent is not required to provide an explanation, the Parent thoroughly explained her concerns regarding the DOE’s evaluation not being sufficiently comprehensive in all areas of suspected disability.^[265] The last time the Student was evaluated for assistive technology was on March 12, 2019.^[266] At hearing, the DOE did not provide any witness testimony or any documentary evidence to explain why the District chose not to include an assistive technology evaluation in its evaluations of the Student in 2022, when the law requires the Student to be evaluated at least every three years. ^[267]

Moreover, a parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need.^[268] In D.S., the court stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.”^[269] The U.S. Department of Education’s Office of Special Education Programs (“OSEP”), has similarly stated that when a parent disagrees with an evaluation because a child was not assessed in a particular area, “the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs.” ^[270]

Here, I find that the Parent properly expressed her concerns regarding the lack of a comprehensive reevaluation of the Student in all areas of suspected disability.^[271] Here, the DOE did not conduct an updated assistive technology evaluation for the Student. The DOE should have conducted a more thorough evaluation that assessed the Student in all areas of suspected or known disability as required by law. The Parent is therefore entitled to have the requested evaluation conducted at public expense by a duly qualified evaluator selected by Parent.

Furthermore, regarding the cost of publicly funded evaluations, while a school district may establish criteria to ensure that the cost of an IEE at public expense is reasonable, the U.S. Department of Education has stated the following: [i]n order to avoid unreasonable charges for IEEs, a district may establish maximum allowable charges for specific tests. If a district does establish maximum allowable charges for specific tests, the maximum cannot simply be an average of the fees customarily charged in the area by professionals who are qualified to conduct the specific test. Rather, the maximum must be established so that it allows parents to choose from among the qualified professionals in the area and only eliminates unreasonably excessive fees. When enforcing reasonable cost containment criteria, the district must allow parents the opportunity to demonstrate that unique circumstances justify an IEE that does not fall within the district’s criteria. If an IEE that falls outside the district’s criteria is justified by the child’s unique circumstances, that IEE must be publicly funded. ^[272]

The DOE failed to offer any evidence at the hearing regarding the Parent’s request for an independent assistive technology evaluation. In addition, the DOE has already been provided the opportunity to conduct its own assistive technology evaluation. Therefore, I have no basis to find the rate requested by the Parent to be unreasonable, and I order the DOE to fund the cost of an independent assistive technology evaluation by a provider of the Parent’s choosing at a rate not to exceed $2500.00.

Furthermore, I find that the DOE has not reevaluated the Student in speech-language and occupational therapy since 2018.^[273] The Student should be reevaluated at least every three years in all areas of suspected or known disability unless the parties agree otherwise.^[274] Therefore, I am ordering the DOE to conduct updated evaluations of the Student in the areas of speech-language and occupational therapy. If the DOE fails to commence the evaluations within 30 days of the date of this Order, then the DOE must fund the cost of independent speech-language and occupational therapy evaluations by a provider of the Parent’s choosing at a rate not to exceed $2500.00 for each evaluation.

IEP Language

Moreover, the Parent alleges that the language in the Student’s IEPs contains incorrect and misleading statements regarding the Student’s present levels of performance.^[275] While the DOE Attorney argued in his closing brief that an IHO lacks the authority to mandate specific language in an IEP,^[276] the DOE presented no evidence at the hearing to show that either the March 15, 2022 or the January 9, 2023 IEP appropriately describes the Student and his present levels of performance. The Parent has testified credibly that the language in the Student’s IEP does not reflect the Student’s present levels of performance and was incorrectly copied and pasted from previous IEPs.^[277] In addition, the Parent testified that the section was copied and pasted between portions extracted from the Clinical Psychologist’s evaluation of the Student.^[278] While I decline to order any specific language to be removed or added to the Student’s IEP, I am ordering the DOE to reconvene the Student’s IEP team within 15 days after receiving the completed assistive technology, speech-language, and occupational therapy evaluation reports to consider the evaluations and determine whether any changes to the Student’s IEP are appropriate. The IEP team shall, at a minimum, consider revisions to the Student’s present levels of performance and revisions to the Student’s goals.

Retaliation Claims

Lastly, I find that there is no available relief under the IDEA for the Parent’s retaliation claims, and I do not have jurisdiction to hear claims asserted under the ADA.

ORDER

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

1. ORDERED that Parent’s claim for direct tuition funding for the student's unilateral placement at Private School 1 is GRANTED for the Summer 2022 session. The New York City Department of Education shall directly pay Private School 1 in the amount of $19,450.00 within 15 days of the date of this Order. The DOE shall also reimburse the Parent in the amount of $50.00.

2. ORDERED that Parent’s claim for direct tuition funding for the student's unilateral placement at Private School 2 is GRANTED for the 2022-2023 school year. The New York City Department of Education shall directly pay Private School 2 in the amount of $140,700.00 within 15 days of the date of this Order.

3. ORDERED that the New York City Department of Education shall provide to the Student, throughout the 2022-2023 school year, appropriate round-trip special education transportation between the Student’s residence and Private School 2 with door-to-door pickup and drop off including a transportation paraprofessional. The DOE shall fund appropriate transportation consistent with this Order for any time the DOE fails to provide such transportation.

4. ORDERED that the New York City Department of Education shall directly pay the ABA Provider for at-home ABA services provided to the Student during the 2022-2023 school year within 15 days of receipt of invoices for services rendered. If the Parent has made any payments to the ABA Provider for services rendered during the 2022-2023 school year, the DOE shall reimburse the Parent within 15 days upon submission of proof of payment.

5. ORDERED that the New York City Department of Education is directed to fund the cost of an independent Assistive Technology Evaluation to be conducted by the Language and Learning Lab of NY or another licensed provider at a rate not to exceed $2500.00.

6. ORDERED that the New York City Department of Education shall conduct an updated Speech-Language Evaluation of the Student within 30 days of the date of this Order. If the DOE fails to commence the evaluation within 30 days of the date of this Order, the DOE shall directly fund the cost of an independent Speech-Language Evaluation by a licensed provider of the Parent’s choosing at a rate not to exceed $2500.00.

7. ORDERED that the New York City Department of Education shall conduct an updated Occupational Therapy Evaluation of the Student within 30 days of the date of this Order. If the DOE fails to commence the evaluation within 30 days of the date of this Order, the DOE shall directly fund the cost of an independent Occupational Therapy Evaluation by a licensed provider of the Parent’s choosing at a rate not to exceed $2500.00.

8. ORDERED that within 15 days of receiving the last of the evaluations above, the DOE shall reconvene the Student’s IEP team to consider the evaluations and determine whether any changes to the Student’s IEP are appropriate. The IEP team shall, at a minimum, consider revisions to the Student’s present levels of performance and revisions to the Student’s goals.

SO ORDERED.

DATED: October 23, 2023

Robin Levin, Esq.

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 – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due Process Complaint 2/9/23 25 pages

B. SRO Decision No. 22-114 (from IH No. 211163) 10/12/22 16 pages

C. IHO No. 211163 Decision 8/3/22 29 pages

D. IHO No. 197120 Decision 7/16/21 13 pages

E. IHO No. 176049 Decision 2/4/19 27 pages

F. IEP 1/9/23 41 pages

G. IEP Attendance Form 1/9/23 2 pages

H. IEP 3/15/22 54 pages

I. IEP 11/17/21 48 pages

J. IEP 6/10/21 31 pages

L. K Functional Behavior Assessment & Behavior Intervention Plan 1/--/23 16 Physical Therapy Evaluation 1/14/23 8 pages

M. Neuropsychological Evaluation 3/3/22 36 pages

N. Functional Behavior Assessment & Behavior Intervention Plan 11/26/21 21 pages

O. Psychiatric Evaluation 5/28/19 5 pages

P. Assistive Technology Evaluation 3/12/19 4 pages

Q. Speech-Language Evaluation 7/13/18 3 pages

R. Occupational Therapy Evaluation 5/2/18 8 pages

S. Ten Day Notice (Letter and Delivery Emails to DOE) 06/06/23 5 pages

T. Attendance (REDACTED – Summer 2022) 03/27/23 1 page

U. Attendance (REDACTED – Fall 2022 / Spring 2023) 03/10/23 1 page

V. Enrollment Contract REDACTED 09/01/22 5 pages

W. REDACTED Discharge Letter REDACTED 09/01/22 1 page

X. Service Contract (At-home ABA) 08/30/22 2 pages

Y. REDACTED Exit Letter (from Parent) 08/26/22 1 page

Z. Ten Day Notice (Letter and Delivery Emails to DOE) 08/26/22 5 pages

AA. Enrollment Contract REDACTED 07/06/22 2 pages

BB. Ten Day Notice (Letter and Delivery Emails to DOE) 06/24/22 4 pages

DD. CC REDACTED Brochure REDACTED -- 2 Class Schedule REDACTED -- Summer 2022 1 page

EE. Program Features REDACTED -- 2022-2023 9 pages

FF. Class Schedule REDACTED -- 2022-2023 1 page

GG. Classroom Goals -- 2022-2023 5 pages

HH. Speech-Language Goals -- 2022-2023 2 pages

II. Occupational Therapy Goals -- 2022-2023 3 pages

JJ. Individual Tax Return – U.S. Form 1040 02-05-23 2 pages

KK. Affidavit of REDACTED, Ph.D., BCBA-D 09/06/23 18 pages

LL. Affidavit of REDACTED 09/06/23 9 pages

MM. Affidavit of REDACTED, PhD, BCBA-D, LBA-NY 09/05/23 23 pages

NN. Affidavit of the Parent 09/01/23 12 pages

OO. Affidavit of REDACTED, Ph.D. 08/29/23 11 pages

PP. Tuition Affidavit REDACTED 03/28/23 1 page

QQ. Tuition Affidavit REDACTED 03/15/23 1 page

DOE EXHIBITS

1. Exhibits Document Date Pages Individualized Education Program (IEP) 3/15/2022 55 pages DOE

2. Assessment Planning Undated 2 pages DOE

3. Assessment Authorizations Various 15 pages DOE

4. Functional Behavior Assessment Undated 21 pages DOE

5. Behavior Intervention Plan 11/16/2021 7 pages DOE

6. Social History Update 1/11/2022 4 pages DOE

7. Progress Monitoring Various 6 pages DOE

8. Assessment Planning Undated 2 pages DOE

IHO EXHIBITS

DEPARTMENT OF EDUCATION

I. – Closing Brief 10/06/2023 10 pages

II. Parent- Closing Brief 10/06/2023 33 pages

Footnotes

[1] Exhibits will be referred to as “Ex.” followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and uppercase roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1). Transcripts will be referred to as “Tr.” followed by the page number(s) within the transcript and the type of conference or hearing and/or dates as needed.

[2] Ex. A.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Ex. A-14-23.

[9] Ex. A-23-24. The DPC also seeks payment of attorney’s fees, but since I do not have the authority to grant payment of attorney’s fees, this requested relief will not be discussed herein.

[10] IHO Ex. II-16-27.

[11] PHC Tr. 4-6; See Order of Extension 1.

[12] SC 5/16/2023 Tr. 5-6; SC 6/14/2023 Tr. 5-6; See Order of Extension 2; See Order of Extension 3.

[13] SC 7/5/2023 Tr. 3.

[14] SC 7/5/2023 Tr. 15-16; See Order of Extension 4.

[15] SC 8/3/2023 Tr. 26; See Order of Extension 5.

[16] DPH Tr. 34-130.

[17] DPH Tr. 46-47. A detailed list of the admitted exhibits is attached as Appendix A, “Documentation Entered Into the Record,” to this decision.

[18] DPH Tr. 47.

[19] DPH Tr. 52-56. The DOE Attorney objected to Exhibits B, C, D, E, F, G, I, J, Q, and R based on relevance, but I overruled the objection and admitted the documents into the hearing record. The parties have an extensive history, which I found relevant to provide context and educational history of the Student.

[20] DPH Tr. 58.

[21] DPH Tr. 58-68; Ex. KK; Ex. LL; Ex. MM; Ex. NN; Ex. OO.

[22] DPH Tr. 76-120.

[23] DPH Tr. 124-125.

[24] The DOE’s closing brief is admitted into the hearing record as IHO Ex. I, and the Parent’s closing brief is admitted into the hearing record as IHO Ex. II.

[25] IHO Ex. I-2-3.

[26] IHO Ex. I-3-5.

[27] IHO Ex. I-5-6.

[28] IHO Ex. I- 7-10.

[29] IHO Ex. II-3-16.

[30] IHO Ex. II-16-22.

[31] IHO Ex. II-23-24.

[32] IHO Ex. II-28-29.

[33] IHO Ex. II-29-30.

[34] IHO Ex. II-30.

[35] I note that the record contains multiple duplicate exhibits. DOE’s Exhibits 2 and 8 are the same, Exhibits 1 and H are the same, and Exhibits 4 and N are the same.

[36] Ex. M-32. Ex. NN-1; Ex. OO-7.

[37] Ex. H; Ex. F.

[38] Ex. NN-1.

[39] Id.

[40] Ex. NN-1-2.

[41] Ex. NN-2.

[42] Ex. KK-1-3; Ex. NN-2. The ABA Provider has a Ph.D. in Psychology and is a Board-Certified Behavior Analyst Doctoral Level and a New York State Licensed Behavior Analyst (Ex. KK-1; Ex. KK-11).

[43] Ex. KK-3.

[44] Ex. NN-2; Ex. R; Ex. Q.

[45] Ex. NN-2.

[46] Ex. NN-2-3; Ex. P; Ex. O.

[47] Ex. NN-3.

[48] Id.

[49] Ex. NN-3; Ex. KK-3.

[50] Id.

[51] Ex. NN-3-4; Ex. D; Ex. E; Ex. I; Ex. J.

[52] Ex. N; Ex. NN-4; Ex. KK-5.

[53] Ex. N-5-6.

[54] Ex. KK-5.

[55] Ex. KK-4-6; Ex. NN-4.

[56] Ex. KK-7.

[57] Ex. M-33.

[58] Id.

[59] Id.

[60] Ex. H; Ex. F.

[61] Ex. H; Ex. NN-5.

[62] Ex. F.

[63] Ex. H-54; Ex. NN-5.

[64] Ex. NN-5.

[65] Id.

[66] Ex. NN-5-7.

[67] Id.

[68] Ex. NN-7; Ex. KK-8. The March 15, 2022 IEP has an incorrect implementation date of November 18, 2021 (See Ex. H-1; Ex. 1-1).

[69] Ex. NN-7.

[70] Ex. NN-8; Ex. KK-9.

[71] Ex. NN-8; Ex. BB.

[72] Ex. AA.

[73] Id.

[74] Id.

[75] Ex. PP-1.

[76] Ex. T-1.

[77] Ex. JJ.

[78] Ex. LL. The Education Program Coordinator has been working at Private School 1 for over 12 years. She has a master’s degree in special education and is certified by the State of New York in elementary (nursery to 6th grade) and special education (nursery to 12th grade) (See Ex. LL-2).

[79] Ex. LL-1.

[80] Id.

[81] Ex. LL-3.

[82] Id.

[83] Ex. LL-5.

[84] Id.

[85] Ex, LL-5-6; Ex. CC.

[86] Ex. LL-7.

[87] Ex. DD-1.

[88] Ex. LL-7.

[89] Id.

[90] Ex. LL-8.

[91] Ex. LL-8; Ex. NN-8-9.

[92] Ex. Y-1.

[93] Ex. Z; Ex. NN-9.

[94] Id.

[95] Ex. W-1.

[96] Ex. PP-1.

[97] Ex. X.

[98] Ex. KK-9.

[99] Ex. V; Ex. QQ-1; Ex. U.

[100] Id.

[101] Ex. QQ-1.

[102] Ex. MM. The Executive Director of Education has worked at Private School 2 since 2009. She has a doctoral degree in Special Education and Behavior Disorders and Applied Behavior Analysis. She is certified by the State of New York as a School Administrator Supervisor and a School District Administrator. In addition, she is a Board Certified Behavior Analyst and a licensed behavior analyst (See Ex. MM-1-2).

[103] Ex. MM-2.

[104] Id.

[105] Ex. MM-3-4; The Director of Lower School at Private School 2 holds a master’s in education with a focus on autism and is a Board Certified Behavior Analyst and licensed behavior analyst (See Ex. MM-4).

[106] Ex. MM-3.

[107] Ex. MM-3-4.

[108] Ex. MM-4; Ex. EE-4.

[109] Ex. MM-4.

[110] Id.

[111] Ex. MM-4-5; Ex. GG; Ex. EE-2.

[112] Ex. HH; Ex. II.

[113] Ex. FF; Ex. GG; Ex. MM-5-6.

[114] Ex. MM-6.

[115] Id.

[116] Id.

[117] Id.

[118] Ex. MM-6-7.

[119] Ex. MM-7; Ex. K.

[120] Ex. MM-8-11.

[121] Ex. MM-8.

[122] Ex. MM-11-12.

[123] Ex. MM-11.

[124] Id.

[125] Id.

[126] Ex. MM-12.

[127] Id.

[128] Id.

[129] Id.

[130] Ex. MM-13.

[131] Id.

[132] Ex. MM-16.

[133] Ex. MM-14-16.

[134] Ex. MM-16.

[135] Ex. MM-23; Ex. KK-10.

[136] Ex. OO-11.

[137] Ex. NN-10-11.

[138] Ex. KK-9.

[139] Ex. NN-10.

[140] Ex. F; Ex. G.

[141] Ex. G.

[142] Ex. NN-10-11.

[143] Ex. NN-11.

[144] Ex. NN-10; Ex. F.

[145] Ex. NN-11.

[146] Id.

[147] Id.

[148] Ex. S.

[149] Ex. A; IHO Ex. II.

[150] Id.

[151] 20 U.S.C. § 1412 (a)(1)(A); 34 C.F.R. §104.33(a); Education Law §§ 4402(2)(a), (b)(2).

[152] 34 C.F.R. §300.13.

[153] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

[154] Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993).

[155] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).

[156] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

[157] Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).

[158] Endrew F.,137 S.Ct. 988, 999.

[159] 34 C.F.R. §300.324(b)(1)(i); 8 N.Y.C.R.R. §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).

[161] 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v).

[162] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.

[163] J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).

[164] NY Educ. Law § 4404(1)(c); M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

[165] Ex. A; IHO Ex. II.

[166] NY Educ. Law § 4404(1)(c).

[167] DPH Tr. 58.

[168] Endrew F., 137 S.Ct. at 1002.

[169] Ex. NN-10.

[170] Ex. H-50-51; Ex. NN-7.

[171] Id.

[172] Ex. NN-7.

[173] Ex. M; Ex. KK; Ex. LL; Ex. MM; Ex. NN; Ex. OO.

[174] Id.

[175] A.M. v. New York City Dept. of Educ., 845 F.3d 523 (2d Cir. 2017).

[176] Ex. A; IHO Ex. II.

[177] Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014)).

[178] 20 U.S.C. § 1415(b)(6)(A).

[179] Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993).

[180] Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).

[181] Frank G., 459 F.3d at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).

[182] Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 112.

[183] Gagliardo, 489 F.3d at 112.

[184] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364.

[185] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R 300.39(a)(1); 8 N.Y.C.R.R. 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

[186] Frank G., 459 F.3d at 364; See Gagliardo, 489 F.3d at 112.

[187] Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370.

[188] Gagliardo, 489 F.3d 105, 112,115; Walczak142 F.3d 119.

[189] IHO Ex. I-5.

[190] Id.

[191] Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401(29)).

[192] Ex. LL-7.

[193] Ex. LL-3.

[194] Ex. MM-3-4.

[195] Ex. LL-7.

[196] Id.

[197] Ex. MM-4-5; Ex. GG; Ex. EE-2.

[198] Ex. HH; Ex. II.

[199] Ex. FF; Ex. GG; Ex. MM-5-6.

[200] Ex. MM-11.

[201] Frank G., 459 F.3d at 364.

[202] Ex. LL-5.

[203] Id.

[204] Ex. MM-4; Ex. EE-4.

[205] Ex. MM-4.

[206] Id.

[207] Frank G., 459 F.3d at 365 (citing Knable, 238 F.3d at 768).

[208] Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011).

[209] Ex. LL-8; Ex. NN-8-9.

[210] Ex. MM-7; Ex. K.

[211] Ex. MM-8-11.

[212] Ex. MM-11.

[213] Ex. MM-12.

[214] Id.

[215] Id.

[216] Ex. MM-13.

[217] Id.

[218] Frank G., 459 F.3d at 364.

[219] IHO Ex I-5-6.

[220] Ex. MM-23; Ex. KK-10.

[221] Ex. OO-11.

[222] See Carter, 510 U.S. at 16.

[223] J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011).

[224] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009).

[225] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007).

[226] D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).

[227] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

[228] Ex. F; Ex. G; Ex H.

[229] M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 (2d Cir. 2012).

[230] 34 C.F.R. § 300.148(d)(1)(ii); Ex. BB; Ex. Z; Ex. S.

[231] Ex. BB; Ex. Z; Ex. S.

[232] Ex. AA; Ex. X; Ex. V.

[233] Ex. AA; Ex. PP.

[234] Ex. PP.

[235] Ex. T.

[236] Ex. V; Ex. QQ.

[237] Ex. QQ.

[238] Ex. U.

[239] Ex. X.

[240] See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (Parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”).

[241] Ex. AA; Ex. X; Ex. V.

[242] Connors v. Mills, 34 F.Supp.2d 795, 799, 805-06 (N.D.N.Y. 1998); See Mr. & Mrs. A. v. New York City Dep’t. of Educ., 769 F. Supp. 2d at 427 (Stating that where the Burlington factors are met, the court may award retroactive direct payment of private school tuition.)

[243] Ex. JJ.

[244] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted).

[245] Id. at 1375 (internal citations omitted).

[246] NYS Educ. Law §§ 4401(1); 4402(4)(a); See also NYS Educ. Law § 4401(2); 8 NYCRR § 200.1(ww).

[247] Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 (5th Cir. 1986).

[248] “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf).

[249] See Donald B., 117 F.3d at 1375.

[250] Ex. A; IHO Ex. II.

[251] Id.

[252] Id; Ex. NN.

[253] IHO Ex. I-7-8.

[254] 8 NYCRR § 200.1(z).

[255] 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted).

[256] Shaffer v. Weast, 546 U.S. 49, 60-61 (2005).

[257] 8 NYCRR § 200.5(g)(1)(i).

[258] 34 C.F.R. § 300.502(e)(1); 8 NYCRR § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989).

[259] Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011).

[260] Letter of OSERS, 2002.

[261] Letter to Carroll, 68 IDELR 279 (OSEP 2016).

[262] 8 NYCRR § 200.5(g)(1)(iii).

[263] 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv).

[264] Ex. NN-11.

[265] Id.

[266] Id; Ex. P.

[267] NYS Educ. Law §§ 4402.

[268] D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020).

[269] Id.

[270] Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016).

[271] Ex. NN-11.

[272] Letter to Kirby, 213 IDELR 233 (OSERS 1989).

[273] Ex. R; Ex. Q.

[274] NYS Educ. Law §§ 4402.

[275] IHO Ex. II-29-30.

[276] IHO Ex. I-2-3.

[277] Ex. NN-7, 10-11.

[278] Id.