Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 248308

Student’s Name: [REDACTED]

School District: [REDACTED]

Impartial Hearing Officer: RAMY LOUIS

Date of Filing: 05/16/2023

Hearing Requested by: PARENT

Dates of Hearing: 11/16/2023, 11/27/2023

Record Close Date: 12/13/2023

Date of Decision: 12/13/2023

NAMES OF PERSONS WHO APPEARED ON 11/16/2023

For the Student and Parent:

[REDACTED]

[REDACTED] (Parent)

For the Department of Education:

[REDACTED]

Witnesses for the Department of Education: None

Witnesses for the Parent: [REDACTED], Psychologist

NAMES OF PERSONS WHO APPEARED ON 11/27/2023

For the Student and Parent:

[REDACTED]

[REDACTED] (Parent)

For the Department of Education:

[REDACTED]

Witnesses for the Department of Education: None

Witnesses for the Parent: None

BACKGROUND

The Parent, through counsel, filed a Due Process Complaint (“DPC”) on or about May 16, 2023. Ex. A. In the DPC, Parent alleges that the New York City Department of Education (“DOE” or “District”) failed to offer Student with a free appropriate public education (“FAPE”) for the 2021-2022, and 2022-2023 school years. Id.

Parent alleges, inter alia, that the DOE failed to: (i) recommend an appropriate program and placement, (ii) appropriately evaluate Student, (iii) provide appropriate related services, (iv) adequately assess and address Student’s functional communication needs, and (v) develop meaningful and measurable goals. Id.

By way of relief, Parent seeks: (i) reconvening of the DOE to hold an IEP meeting in order to develop an appropriate IEP, consistent with recent independent evaluations, and to recommend placement in a New York State approved Non-Public School (“NPS”) that utilizes the principals of Applied Behavior Analysis (“ABA”); (ii) until such placement is located, DOE to fund 30 hours per week of push-in ABA therapy into Student’s current setting, to be provided by an independent provider of Parent’s choosing, at market rate; (iii) funding for 10 hours per week of home-based ABA therapy services, to be provided by an independent provider of Parent’s choosing, at market rate; (iv) funding for an Assistive Technology (“AT”) device; (v) funding for an independent Feeding Evaluation, to be conducted an independent provider of Parent’s choosing; and (vi) a compensatory bank of 46 hours of Speech and Language Therapy (“SLT”), 75 hours of Assistive Technology (“AT”) training, 138 hours of Occupational Therapy (“OT), 2,760 hours of school-based ABA therapy (30 hours per week x 46 weeks x two 12-month school years), 920 hours of home-based ABA therapy (10 hours per week x 46 weeks x two 12-month school years),^[184] hours of Social Skills Training (“SST”) (2 hours per week x 46 weeks x two 12-month school years),

7 exhibits into the record. All of the DOE’s proposed exhibits were admitted into evidence. The Parent offered the testimony of Psychologist and sought to admit 11 exhibits into the record. All of the Parent’s proposed exhibits were admitted into evidence. The parties made oral opening and closing statements. A list of the documentary evidence in this proceeding is appended to this Decision. The Compliance date is December 13, 2023.

LEGAL STANDARDS AND FRAMEWORK

The Individuals with Disabilities Education Act (“IDEA”) and the New York Education Law provide that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive IEP. 20 U.S.C. §§ 1401(9), (29). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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.” Endrew F. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381-82 (2d Cir. 2003); W.G. v. Bd. of Trustees of Target Range School Dist. No. 23, 960 F. 2d 1479, 1484 (9th Cir. 1992); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); 8 NYCRR § 200.5(4)(ii). School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d).

IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free School Dist., 142 F.3d 119, 130 (2d Cir. 1998); Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of students with disabilities. Rowley, 458 U.S. at 189; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.” Cerra v. Pawling Central School Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130.

While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 190-91 (2d Cir. 2012)), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 245 (2d Cir. 2012); A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003)).

When a school district fails to offer a FAPE, compensatory educational services may be awarded as an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE. See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 2014); P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008); see also Doe v. E. Lyme, 790 F.3d 440, 456-57 (2d Cir. 2015); Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994).

Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See Newington, 546 F.3d at 123; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008); Bd. of Educ. of Fayette County, Ky. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007); Reid, 401 F.3d at 518.

A compensatory education award is a flexible equitable remedy that is often crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits). However, the Second Circuit has affirmed the flexible approach adopted by Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) and declined to specify any particular approach: “[T]he Second Circuit has not articulated a test for determining how such awards are calculated. See, e.g., P. v. Newington, 2008 WL 4509089 (affirming compensatory education as appropriate without discussion of how award was calculated)”. Student X v. New York City Dep’t of Educ., 51 IDELR 122 (E.D.N.Y. 2008).

New York State law has placed the burden of production and persuasion at an impartial hearing on the District. Additionally, while allocating an evidentiary burden to the District, a parent nevertheless has a responsibility to identify the compensatory education remedy sought in the same fact-specific manner, and it is insufficient to assert general statements that a student is entitled to an unspecified amount of unidentified compensatory educational services.

FINDINGS OF FACT AND DECISION

FAPE

The DOE did not present a case with regards to the provision of a FAPE and a review of the operative IEPs (Exhibits B and C) offers no explanation as to how the Committee on Special Education (“CSE”) made its recommendations, how the IEPs appropriately describe Student, or whether the IEPs are meaningfully calculated to confer educational benefit. In short, the DOE did not to “offer a cogent and responsive explanation for their decisions” in creating the IEPs, 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.” Endrew F., 137 S. Ct. at 1002. Therefore, I find that the DOE failed met its burden at hearing in proving that it provided Student with a FAPE for the 2021-2022 and 2022-2023 school years. Relief Requested

A. Compensatory Services for ABA, OT, SLT, SST, PCAT, and BCBA Supervision The hearing record establishes that Student is diagnosed with Autism Spectrum Disorder (“ASD”), Social Communication, Level 3, Requiring Very Substantial Support, Restricted, Repetitive Behavior, Level 3, Requiring Very Substantial Support, with accompanying Intellectual and Language Impairments, Intellectual Disability, Profound, and Attention Deficit Hyperactivity Disorder (“ADHD”), Combined Presentation. Ex. H. Student is a nonverbal communicator. Ex. D.

For the 2021-2022 school year, an IEP meeting was convened on or about April 27, 2021, to develop an IEP for implementation on May 3, 2021, and classified Student as a Preschool Student with a Disability. See Ex. B. The May 2021 IEP indicated that Student exhibited cognitive, communication, social-emotional, and motor development delays, sensory processing issues, feeding concerns, and a manifestation of ASD that prevent him from participating in general education appropriately. Id. It noted that he was easily distracted and displayed poor attention to tasks when completing adult activities and required repeated prompting to ensure task completion.

Id. It also indicated that he required hand over hand assistance to hold the handrail when walking up and down a flight of stairs and had difficulty manipulating objects and worked on grasping and releasing objects voluntarily. Id. The May 2021 IEP recommended an 8:1:2 Special Class for 5 hours a day, 5 days per week, as well as related services of SLT 3x30, OT 3x30, Physical Therapy (“PT”) 3x30, and PCAT 1x60. Id.

For the 2022-2023 school year, an IEP meeting was convened on or about May 3, 2022, to develop an IEP for implementation on May 17, 2022, and classified Student as a Student with Autism. Ex. C. The May 2022 IEP noted that Student had difficulty attending to tasks and staying focused on activities and lessons, was unable to socialize positively or share toys or objects with fellow classmates, and had trouble verbalizing emotions and feelings during transitions or frustrating situations, and had periods of oppositional behavior and prolonged crying and whining when unable to get a desired item. Id. The May 2022 IEP recommended a 6:1+1 Special Class in Math, ELA, Social Studies, and Sciences, Adapted Physical Education, as well as related services of SLT 4x30, OT 3x30, PT 3x30, and PCAT 4x60. Id.

For the two school years at issue, the Student’s IEPs did not include any ABA services. See Ex. B; Ex. C.

Psychologist testified that he believes that ABA therapy is appropriate in this matter and that Student should have received ABA therapy during the school years at issue. Ex. K; see also Ex. H. He concurred with the recommendations and findings in Student’s September 2023 Independent Neuropsychological Evaluation, which also found ABA therapy to be appropriate in this matter. See Ex. H.

The September 2023 Independent Neuropsychological Evaluation provides an in-depth assessment into Student’s present levels of performance and needs. For example, the Kaufman Test of Educational Achievement, Third Edition, Standard Report was attempted to be used to assess Student’s Academic Skills Battery (“ASB”) composite, which comprised three domains including Reading, Math, and Written Language. Student’s overall ASB composite fell in the Very Low range. Regarding Student’s Reading skills, Student was asked to identify letters and read grade-appropriate words but was unable to attend to this task and did not provide the examiner with any answers. Then, he was asked to read symbols, words, sentences, and passages appropriate to his grade level, and then respond to comprehension questions. Student did not appear to understand what the examiner was asking him to do and did not produce any answers. See id. On Math Concepts and Application, Student was asked to solve math problems that relate to real life situations and assess skills such as number concepts, arithmetic, time and money, and measurement. When he was asked to solve written math calculation problems, he did not look at the examination booklet to answer the questions and had difficulty sitting still. It was apparent that Student’s performance on the math concepts and applications was deficient as he struggled to sit still and provide any answers. Id. Regarding the Written Language composite, on the first task, Student heard a story presented with pictures in a booklet and was asked to complete the story by writing letters, words, sentences, and an essay. While the examiner read the story, Student jumped on the couch and would not sit down. When asked to complete the story, he would not hold the pencil. Then, Student was asked to write single letters and spell words. Again, Student would not hold the pencil to provide the examiner with an answer. Overall, Ryan did not produce written language. Id.

Additionally, Student’s overall language abilities were attempted to be assessed with several evidence-based measures, parent and teacher reports, and clinical observations. The Peabody Picture Vocabulary Test, Fifth Edition and the Expressive Vocabulary Test, Third Edition, which are receptive and expressive measures of language, were administered to Student on an iPad. On the receptive measure of speech, Student’s performance was deficient when he was asked to point to a picture of what the examiner was saying. He began to point to every picture without picking one that best described what the examiner had asked for. Student’s performance was also deficient on measures of expressive language, and the examiners were unable to obtain any scores. Since Student is non-verbal, his receptive language proved to be stronger than his expressive language; however, both were well below age-expectations. Id.

As a result, the Neuropsychology Evaluator indicated that, due to what he believes was an absence of appropriate education services while attending a DOE program, Student requires the following compensatory services: i) 1,380 hours per year of school-based ABA therapy (30 hours x 46 weeks), ii) 460 hours per year of home-based ABA therapy (10 hours x 46 weeks), iii) 92 hours per year of OT (2 hours x 46 weeks), iv) 184 hours per year of SLT (4 hours x 46 weeks),

v) 92 hours per year of SST (2 hours x 46 weeks), vi) 92 hours per year of PCAT (2 hours x 46 weeks), and vii) 92 hours of per year BCBA Supervision (2 hours x 46 weeks). Id. Parent has therefore asked the undersigned to follow the Evaluator’s recommendations and award Student the compensatory services outlined in the September 2023 Independent Neuropsychological Evaluation for the two 12-month school years at issue. See Tr. 11/16/23.

It is noted that the DOE did not offer any witness testimony or documentary evidence to explain why it made the program recommendations contained in the IEPs it developed for each of Student’s 2021-2022 and 2022-2023 school years and did not present any evidence to challenge or rebut the Neuropsychology Evaluator’s recommendations or Psychologist’s concurrence with those recommendations.

I find the September 2023 Independent Neuropsychological Evaluation to be thorough, the Neuropsychology Evaluator’s recommendations to be appropriate, and Psychologist’s testimony to be credible. However, a 12-month school year generally consists of 42 weeks, not 46 weeks. This is based on the 180 instructional days in a 10-month school year, plus an additional 30 days during the 12-month portion of the school that occurs over a summer, typically during a six-week program. See Educ. Law § 3604(7); 8 NYCRR 200.1(eee); see e.g., Application of a Student with

168 hours of BCBA Supervision (2 hours x 42 weeks x two 12-month school years).

B. Parent’s Request for Development of a New IEP and Prospective ABA Services. The Parent also requested an Order directing the DOE to i) reconvene and development an appropriate IEP, consistent with recent independent evaluations, and recommend placement in a New York State approved NPS that utilizes the principals of ABA, ii) fund 30 hours per week of push-in ABA therapy into Student’s current setting until such time that Student is placed at a school that utilizes ABA, and iii) fund 10 hours per week of home-based ABA therapy services into Student’s current educational program. See Tr. 11/16/23.

Indeed, the Neuropsychology Evaluator also recommended, inter alia, that Student be placed in a special education program that utilizes ABA methodology throughout the day, and in a class of no more than 6 students, and receive the following services prospectively: i) home-based ABA for 10 hours per week, and ii) school-based ABA for 30 hours per week. See Ex. H.

While I find merit in the Neuropsychology Evaluator’s recommendations, the 2022-2023 school year has concluded, and thus Parent’s requests for prospective services are for the Student’s education planning during school years of which I do not have jurisdiction. See Ex. A. Moreover, these requests are speculative in nature because they rest upon contingent future events. In theory, the DOE could reconvene and develop a new IEP for the Student, and fund/provide school-based and/or home-based ABA services, which could cure the prospective injury to the Student in whole or in part.

Accordingly, I am denying Parent’s requests that the DOE reconvene to develop a new IEP and to recommend placement in a New York State approved NPS that utilizes the principals of ABA, and fund prospective ABA services. If during future school year(s), the Parent feels it is appropriate to develop a new IEP and/or add services to Student’s IEP, and the District does not do so, Parent can move for Due Process seeking appropriate relief at that time.

C. Funding for a Feeding Evaluation

Parent alleged in the DPC and at hearing that the DOE failed to conduct appropriate evaluations in all areas of need. See Ex. A; Tr. 11/16/23. As previously indicated, Parent requested IEEs and a limited hearing regarding that request was held on June 27, 2023. Id. I granted and ordered the IEEs on June 27, 2023. Parent now requests funding for an additional evaluation: a Feeding Evaluation. See Tr. 11/16/23.

Student’s September 2023 Independent Speech Language (“SL”) Evaluation recommended that a Feeding Evaluation be conducted indicating that Student is a very picky eater, is very selective according to texture, and is only capable of drinking out of one type of straw cup, from which he drinks Pediasure. See Ex. D. Additionally, Student’s food must be cut up very small, as there is a risk of choking. Id. The SL Evaluator therefore recommended a Feeding Evaluation to assess oral motor, sensory, and behavior related difficulties. Id. It is also noted that Student’s September 2023 Independent OT Evaluation reported that Student had difficulty feeding himself with a spoon and drinking with a straw as well as swallowing pureed/blended foods. See Ex. G. Additionally, Student’s September 2023 Independent Neuropsychological Evaluation indicated that Parent reported that Student has difficulty feeding himself without spilling. See Ex. H.

A reevaluation of a child with a disability must occur when conditions warrant or if the parent or teacher requests a reevaluation. 34 C.F.R. § 300.303(a); 8 NYCRR § 200.4(b)(4). At hearing, the District did not contest the Parent’s request for an independent Feeding Evaluation and there is no evidence that DOE filed a Due Process Complaint in support of its evaluation. Moreover, I find that the evidence supports that a Feeding Evaluation is appropriate to assess and address Student’s feeding challenges. Accordingly, I am ordering the DOE to fund an independent Feeding Evaluation.

D. Funding for an AT Device and Compensatory Services Parent has also requested funding for an AT Device as well as 75 hours of AT Training. See Ex. A; Tr. 11/16/23. Student’s September 2023 Independent AT Evaluation provides insight into Student’s present levels of performance and needs for assistive technology to augment language and academic needs. See Ex. E. It indicates that Student presents as an emergent, nonverbal communicator and with many impediments in the ability to access and create written materials and regarding literacy. Id. Student is not currently writing, refuses to use writing utensils, and does not enjoy reading books or having books read to him. Id. Furthermore, Student had intermittent difficulty attending to the evaluator, required multiple repetitions of directions, frequent redirection back to the task at hand, and consistent verbal cues to stay on task. During the evaluation, a variety of voice output devices were considered, and the evaluator determined that Student should use an iPad with the TouchChat communication system and stated that Student appeared motivated to use the application and engaged with it appropriately, quickly flipped through the pages and pressed the desired keys. Id. It was the evaluator’s opinion that for Student to become a successful communicator, exposure to the system would need to be consistent and device use would need to be combined with comprehensive training. Id. Therefore, the evaluator recommended that Student be provided with an iPad 8-9th generation with TouchChat speech application as a portable touchscreen device to be used as a supplemental communication system, a ZenRich iPad 9th Generation Case with Kickstand, Hand Strap, and Shoulder Strap, and 75 hours of AT training to ensure confident access to these tools. The training hours recommended are inclusive of parent and support staff training and should largely be provided with Student present. Id.

It is noted that the DOE did not offer any witness testimony or documentary evidence to challenge or rebut the Assistive Technology Evaluator’s recommendations.

I find the Assistive Technology Evaluator’s recommendations to be reasonable and appropriate given Student’s substantial AT needs and are necessary to make up for the absence of appropriate education services during the school years at issue. Therefore, I find that Student is entitled to: i) funding for an AT device consistent with Assistive Technology Evaluator’s recommendations, and ii) funding for 75 hours of AT training to be provided by an independent provider of the Parents’ choosing, at market rate.

E. Equitable Considerations No equitable considerations against the Parent were presented by the DOE or considered by this tribunal.

ORDER

IT IS HEREBY, ORDERED: 1) The District shall fund an independent Feeding Evaluation, by an independent provider of the Parent's choosing, at market rate.

2) The following bank of compensatory educational relief by an independent provider of the Parent’s choosing, at market rate:

a. 2,520 hours of school-based ABA therapy

b. 840 hours of home-based ABA therapy c. 168 hours of Board-Certified Behavior Analyst (“BCBA”) Supervision d. 168 hours of Occupational Therapy (“OT”) e. 336 hours of Speech and Language Therapy (“SLT”) f. 168 hours of Social Skills Training (“SST”) g. 168 hours of Parent Counseling and Training (“PCAT”) h. 75 hours of Assistive Technology (“AT”) Training.

3) The District shall fund an AT device, as well as the hardware for such device, consistent with AT Evaluator’s recommendations.

4) The DOE shall authorize any services or payments within thirty (30) days of the final order, and issue authorized payments within fifteen (15) days of invoice submission to the DOE.

5) The bank of compensatory hours for ABA, BCBA Supervision, OT, SLT, SST PCAT, and AT shall expire within five years of this Order.

SO ORDERED. /s/Ramy Louis

Dated: 12/13/2023 Ramy Louis, Esq.

Impartial Hearing Officer

DISTRICT EVIDENCE

1. Due Process Complaint 05/16/2023 06 pages DOE

2. Individual Education Program 05/17/2022 36 pages DOE

3. Prior Written Notice 06/28/2022 04 pages DOE

4. Individual Education Program 07/01/2021 33 pages DOE

5. Prior Written Notice 05/18/2021 04 pages DOE

6. Educational Reports 02/10/2021 29 pages DOE

7. Social History 02/23/2021 04 pages DOE

PARENT EVIDENCE

A. Parent’s Impartial Hearing Request 05/16/2023 06 pages

B. Individualized Education Program 05/17/2021 21 pages

C. Individualized Education Program 05/03/2022 35 pages

D. Independent Speech Language Evaluation 09/21/2023 12 pages

E. Independent Assistive Technology Evaluation 09/21/2023 12 pages

F. Independent Physical Therapy Evaluation 09/28/2023 13 pages

G. Independent Occupational Therapy Evaluation 09/28/2023 18 pages

H. Independent Neuropsychological Evaluation 09/26/2023 25 pages

I. Independent ABA Skills Assessment 04/06/2023 06 pages

J. Incident Report and Image 10/04/2023 02 pages

K. Affidavit of [REDACTED] 11/08/2023 03 pages

IHO EXHIBITS

None

NOTICE OF RIGHT TO APPEAL

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

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

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

Footnotes

[184] hours of Parent Counseling and Training (“PCAT”) (2 hours per week x 46 weeks x two 12- month school years), and 184 hours of Board Certified Behavior Analyst (“BCBA”) Supervision (2 hours per week x 46 weeks x two 12-month school years), each at market. Id; Tr. 11/16/23. PROCEDURAL HISTORY I was appointed as the Impartial Hearing Officer on May 17, 2023. The parties appeared for a virtual Pre-Hearing Conference on June 16, 2023, a Limited Hearing regarding Parent’s request for Independent Educational Evaluations (“IEEs”) on June 27, 2023, which was granted and ordered on the same day, and a Due Process Hearing on November 16, 2023 and November 27, 2023. At the Due Process Hearing, DOE did not offer any witness testimony and sought to admit a Disability, SRO No. 23-019; Application of a Student with a Disability, SRO No. 21-213. Accordingly, to make up for the absence of appropriate education services during the two 12- month school years at issue, I find that Student is entitled to a compensatory bank of: i) 2,520 hours of school-based ABA therapy (30 hours x 42 weeks x two 12-month school years), ii) 840 hours of home-based ABA therapy (10 hours x 42 weeks x two 12-month school years), iii) 168 hours of OT (2 hours x 42 weeks x two 12-month school years), iv) 336 hours of SLT (4 hours x 42 weeks x two 12-month school years), v) 168 hours of SST (2 hours x 42 weeks x two 12-month school years), vi) 168 hours of PCAT (2 hours x 42 weeks x two 12-month school years), and vii)