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FINDINGS OF FACT AND DECISION
Case Number: 248493
NYS Case ID Number: 599991
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested by: Parent
Date of Request: May 23, 2023
Date of Hearing: July 18, 2023
Record Close: August 7, 2023
Date of Decision: August 7, 2023
Hearing Officer: Blueth Bromfield, Esq.
NEW YORK STATE EDUCATION DEPARTMENT
IMPARTIAL DUE PROCESS HEARING
x [REDACTED], by and through his/her Parent(s), Petitioners, FINDINGS OF FACT
AND DECISION
- against Case No. 248493 THE NYC SCHOOL DISTRICT, BLUETH BROMFIELD, ESQ.
Respondent. Impartial Hearing Officer x
JURISDICTION
This case was appointed, the due process hearing was held, and a decision is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq.; the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200; and/or Section 504 of the Rehabilitation Act.
PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (hereinafter, “IHO”) on Petitioners’ due process complaint (DPC), filed on or around March 23, 2023. (P - A).[1] The resolution period expired without the parties reaching an agreement. This IHO was appointed on March 24, 2023. A pre-hearing conference in this matter was held on, June 27, 2023. A closed hearing was held on July 18, 2023. The initial compliance date was July 22, 2023. One extension was granted extending the compliance date to August 21, 2023. The record closed on August 7, 2023.
BACKGROUND
What follows below are the facts as per the DPC and parent’s disclosures. [REDACTED] (the student), born on [REDACTED], is a child with a disability in need of special education and related services. The student has a disability classification of Pre-school Student with a Disability. He is diagnosed with autism, is nonverbal, has a short attention span, plays by himself instead of with peers, engages in aggressive and self-injurious behaviors, becomes dysregulated when frustrated and is not making much progress in school. He requires constant verbal and physical redirection, as well as hand-over-hand assistance for virtually all physical tasks. The school years (SYs) at issue in the DPC are the 2022-23 and 2023-24 SYs, during which the student was attending [REDACTED] School (the pre-school).
On November 28, 2022, the Committee Special Education (“CSE”) convened for the first Individualized Education Program (“IEP”) meeting for the student. The resultant IEP recommended a 6:1+3 special class for the 12-month SY to be provided at an approved special education program, with special transportation and the following related services: Speech and Language Therapy (SLT), Individual, 2 x 30 minutes per week; Occupational Therapy (OT), Individual, 2 x 30 minutes per week; Physical Therapy (PT), Individual, 2 x 30 minutes per week; Parent Counseling and Training (PCT), Group, 4 x 60 minutes per year; and Paraprofessional, Individual, Full Day, at school and on the bus. (P – C).
The parents disagreed with the CSE’s recommendations and felt, for the following reasons, that the recommendation was not appropriate: the IEP was based on progress reports (educational, SLT, OT, and PT), but no evaluations were done; DOE failed to provide a program uniquely tailored to meet the student’s needs; DOE denied the parent the right to meaningfully participate in the development of the student’s program; DOE failed to develop meaningful and measurable annual goals that address all areas of the student’s needs; DOE could not develop appropriate levels of performance as it did not have proper evaluative data; parent felt that student needed more related services but DOE refused to increase any of the services; DOE failed to implement the IEP; DOE failed to recommend a program with ABA therapy; DOE failed to conduct any Functional Behavior Assessment (FBA) despite knowing that the student engaged in aggressive and maladaptive behaviors; parent expressed an interest in the student being considered for an alternative communication system, yet DOE never conducted an assistive technology (AT) evaluation; and DOE failed, for months, to provide the 1:1 behavior paraprofessional to accompany the student at all times during school and on the bus, resulting in the student missing several months of school.
In April 2023, parent had an independent Applied Behavior Analysis (ABA) skills assessment conducted on the student. The assessment recommend that the student receive 50 hours per week of 1:1 ABA services, four hours per month of Board-Certified Behavior Analyst (BCBA) supervision, two hours per month of PCT, that a formal FBA, Behavior Intervention Plan (BIP), and an AT evaluation be conducted of the student.
The parents thereafter filed the DPC which is the basis for the instant case. The parents maintain that the DOE has failed to provide the student a FAPE for the 2022-23 and 2023-24
SYs. The DPC states that parents are seeking the relief of: a finding that DOE denied the student a FAPE for the 2022-23 and 2023-24 SYs; an order that DOE fund the cost of independent educational evaluation (IEEs) in the following areas – neuropsychological ($6,000), SLT ($2,500), AT ($3,000), OT ($2,500) and PT ($2,500); and order that DOE fund, until such a time as an appropriate placement is located, 30 hours of push-in ABA therapy into the student’s current setting to be provided by an independent provider of parent’s choosing; an order that DOE fund 20 hours per week of home-based ABA therapy to be provided by an independent provider of parent’s choosing; an order the DOE fund four hours per month of BCBA supervision; an order that DOE fund two hours per month of PCT; an order that DOE fund, outside of school hours, compensatory education and services to remedy DOE’s failure to provide an appropriate educational program, to be provided by an independent provider of parent’s choosing; an order the DOE fund transportation costs to and from such compensatory education and services; and an order that DOE fund the cost of an appropriate AT device for the student.
On June 5, 2023, DOE filed a due process response (DPR) denying every allegation in the DPC, except to admit that: on May 26, 2023, the IEP team met and held a review for a 12-month program for the student; the student was classified as a student with autism, after an initial evaluation; the CSE team recommended a 6:1+1 specialized class in a specialized D75 school with adaptive physical education (APE), related services and a paraprofessional; upon information and belief, the CSE team relied on a social history update in making its decision; the CSE team considered and rejected the following programs as not being supportive enough or being too restrictive: a general education program with related services, a 12:1+1 special class in a community school, a 8:1+1 special class in a specialized D75 school, and a 12:1+(3:1) special class in a specialized school; and on or about June 2, 2023, a prior written notice (PWN) and/or school location letter (SLL) was issued to the parent. DOE reserved the right to amend and/or supplement the DPR [2]. (P – B).
THE HEARING
The following persons appeared at the hearing:
For the Department of Education: [REDACTED], DOE Representative For the Student: [REDACTED], Parent Representative [REDACTED], Mother, (Witness #1) [REDACTED], Psychologist and BCBA-D [3], (Witness #2)
The DOE representative waived making an opening statement and provided no disclosures or witnesses.
The parents’ representative argued that the student did not receive a FAPE for the 2022-23 and 2023-24 SYs. The student’s IEP was based on zero evaluations or testing, only progress reports. Additionally, the student did not receive any of the services mandated under the IEP. The parent was savvy enough to get her own private ABA skills assessment, which determined that the student requires 50 hours per week of one-to-one ABA services, four hours per month of BCBA supervision and two hours per month of PCT. As the District did not submit any evidence or present any witnesses and because they have the burden in all matters today, it must be determined automatically, as a matter of law, that the District failed to provide an appropriate education for the 2022-23 SY. In its DPR, the District admits that it relied on nothing but a social history update in determining what kind of placement and services the student needed for the 2023-24 SY. Accordingly, with the District having failed to meet its burden and the FAPE denial here being a significant one, the Parent respectfully requests for an order for the following: an order for the independent evaluations requested by the Parent in the DPC, an order that the District must fund 50 hours per week of ABA services by an independent provider of the parents choosing which can be utilized either at school or at home (the DPC requested 30 hours for at school and 20 hours for at home), an order that the District must fund a bank of the following compensatory hours for related services that the student did not receive during the 46-week SY - 46 hours each of SLT, OT, and PT. Additionally, given the fact that the student should have been receiving ABA therapy, as well as the fact that he missed a significant amount of school due to the failure to provide a paraprofessional, based on 50 hours a week of ABA by a 46-week school year, parent also seeks compensatory education of 2,300 hours of ABA services.
DOE countered that the recommended 50 hours of ABA should be provided as requested in the DPC - 30 hours per week in school and 20 hours per week outside of school, and not 50 hours to be used as needed at school or at home. The representative argued further that the student cannot logistically use all the hours being requested. Also, compensatory services should not be awarded as witness #2 testified that the student only needs the recommendations in the ABA assessment to get him to where he should be. But, if the IHO finds that compensatory services should be awarded, then it should be a more reasonable number than 2,300 hours.
Parent responded that, as to the 50 hours of ABA, there's no reason that the hours be split 30 and 20, but rather the ABA provider should have the option of splitting the ABA hour as they determine. As to compensatory services, the question should be whether the student is entitled to the hours, not whether the student will utilize every single hour available to them. If the student doesn't use any of the hours awarded to him, the District is not responsible to pay for those hours. Therefore, any unused hours are irrelevant to the question of what the student is entitled to. There's no reason why the ongoing mandate or the compensatory mandate should be reduced. Further, witness #2 has provided his opinion on what is the appropriate program for the student going forward, but there's no indication that the witness understands the legal question of compensatory services or when a District might be required to fund compensatory services. The question of how much compensatory services is appropriate, is a legal question for the IHO to determine.
Relevant portions of the witnesses’ testimonies are as follows.
Witness #1 - Affidavit & Live Testimony
She is the student’s mother. She was disappointed when DOE failed to recommend ABA therapy. Then the district failed to provide any of the student’s related services. She’s been asking the District to increase the student’s services because she does not see progress in the student, but the District refuses to increase the services. The student was also entitled to a 1:1 paraprofessional, but it was never provided for months, and the student could not go to school. She is scared to send the student to school because the school is not able to ensure his safety or provide him with the services he needs. The IHO should order ABA therapy for the student to ensure that the student has a chance to make progress. He requires a home-based ABA program with the option of going into the center in order to begin working on socialization. She does not think that the student can function in the classroom that he is currently mandated for. She wants all the relief she is requesting in the DPC.[4] If all that she is asking for is awarded, she anticipates that the student will have three to five hours of services per day after he gets home from school, in addition to his related services of SLT, OT and PT, and he will also receive services on the weekend. Between school and out-of-school services, it is possible that the student would receive instruction and services for 12 hours on weekdays and eight hours on weekends. The student needs as much help as he can get. Witness #2 – Affidavit & Live Testimony
He is a psychologist, BCBA and founder, President and Chief Executive Clinical Director of [REDACTED] (the agency). He is also a parent advocate. [The witness provided credible and relevant testimony as to his educational background, state licensing, certifications, and professional experience]. His duties and responsibilities include conducting classroom and home-based observations, formally assessing students, providing direct 1:1 ABA services at home to students with ASD, developing recommendations and educational plans for students receiving services, conducting FBAs and developing BIPs, and supervising and coordinating all the clinical services delivered by the agency’s providers. ABA is the scientific study of human behavior and is based on the laws and principles of learning. One of the major goals of ABA is to change "socially significant behavior" to improve the quality of life of the student and the student's family. He has reviewed parent’s ABA assessment and he concurs with [REDACTED] (the author) evaluation of and recommendations for the student. (P – D). The recommendations are necessary to allow the student the opportunity to make academic progress but also to learn the skills necessary to have a safe life. The student's maladaptive behavior is impacting his learning and performance at home, in school, and in the community and therefore, a significant ABA mandate is necessary and should be implemented as soon as possible. He has observed the student remotely. His advocacy services are being offered on a pro bono basis. The recommended 50 ABA hours should be delineated as stated in the assessment – 30 hours in school and 20 hours at home, and not as 50 hours to be used either in school or at home. The 30 hours is commiserated with a 30-hour school week and can be achieved as a push-in to a D75 school or in the alternative, as a full-day one-to-one center-based ABA program, if the parent chooses to go to a private school. The ABA-certified therapist would have two roles – errorless learning correction and ensuring that the student engages in the curriculum using ABA techniques. The ABA therapist would also attend in-school related services to help the providers, could attend out-of-school related services, and would help with toilet training through a formal toilet training program. The ABA therapist would be in place of, and not in addition to, the in-school paraprofessional recommended in the student’s IEP. The student needs the recommended ABA hours because he's not toilet trained, doesn’t communicate with anyone, has no communication device, has not learned to imitate simple actions with objects, hasn't learned to mimic, he's toe walking, he's completely nonverbal and he's on the severe side of the spectrum. He recommends that the student receives the recommendations in the assessment – evaluations, 30 hours, 20 hours, BCBA supervision and PCT - to get him to where he needs to be.
ISSUE
The issues are whether the district failed to provide the student a FAPE? And, if applicable, what relief is appropriate to remedy that denial of FAPE?
RULE OF LAW
Free and Appropriate Education - FAPE
The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). States receiving public funds under the IDEA are required to provide FAPE to “all children with disabilities.” 20 U.S.C. § 1412(a)(1)(A); see Bd. of Educ. v. Rowley, 458 U.S. 176, 179 (1982). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). 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). The IDEA directs that a determination as to whether a student received a FAPE must be based on substantive grounds and/or procedural inadequacies. 20 U.S.C. §1415(f)(3)(E).
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. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress must be meaningful; i.e., more than mere trivial advancement. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. Walczak v. Florida Union Free Sch. Dt.,142 F.3rd 119 (2nd Cir. 1998). An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. Id.
If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000). Specifically, a procedural FAPE violation has occurred if the district’s alleged procedural inadequacies: (a) impeded the student’s right to a FAPE, (b) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student, or (c) caused a deprivation of his educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007).
Independent Educational Evaluations
An 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.” 8 NYCRR § 200.1(z). “If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense, 8 NYCRR § 200.5(g)(1). An IEE may be requested by parents, 8 NYCRR § 200.5(g)(1), or by an impartial hearing officer, 8 NYCRR § 200.5(g)(2). If an IEE at public expense is requested by parents, “the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria” 8 NYCRR § 200.5(g)(1)(iv). The regulations do not provide limitations or guidance about hearing officer requests or directives for IEEs.
Compensatory Services
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE (see P. v. Newington
Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. Compensatory education may be awarded to students under the age of twenty-one (see Student X. v. New York City Dep't of Educ., 2008 WL 4890440, [E.D.N.Y. Oct. 30, 2008]). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. (P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008)). Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster v. Bd. Of Educ. of the City of Chicago, 611 Fed. App’x 874, 878-79 (7th Cir. 2015)
A compensatory education award can be 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).
Transportation
The IDEA specifically includes transportation, as well as any such developmental, corrective, and other supportive services necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]). Transportation as a related service can include: travel to and from school and between schools; travel in and around school buildings; and specialized equipment, such as special or adapted buses, lifts, and ramps (34 CFR 300.34[c][16]). Special transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 03-053; see Questions and Answers on Serving Children with Disabilities Eligible for Transportation, 53 IDELR 268 [OSERS 2009]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (8 NYCRR 200.1(ww)).
Burden of Proof
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]). Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.
APPLICATION AND CONCLUSIONS OF LAW
After considering all the evidence, the arguments of counsel, as well as the legal research, I find as follows. The DOE has failed to meet its burden that it provided the student with a FAPE. DOE was represented at the hearing but did not provide any witnesses or disclosures and did not put on a case. There is nothing to show that the DOE’s recommended education program was reasonably calculated to enable the child to make progress. Further, the IEP was based only on progress reports or social history updates and no evaluations, DOE did not develop an appropriate IEP as it did not have proper evaluative data, the IEP was not implemented, an FBA was not conducted despite DOE knowing that the student engaged in aggressive and maladaptive behaviors, DOE never conducted an AT evaluation while knowing that the student was completely nonverbal, and DOE failed to provide a 1:1 behavior paraprofessional to accompany the student during school and on the bus. I credit the parent’s testimony and evidence. DOE’s recommended programs were not appropriate. The student was denied a FAPE for the 2022-23 and 2023-24 SYs.
I also find that the services recommended in the ABA assessment are appropriate. The student is diagnosed with autism, is nonverbal, has a short attention span, plays by himself, engages in aggressive and self-injurious behaviors, becomes dysregulated when frustrated, requires constant verbal and physical redirection, is not toilet trained, has no communication device, toe walks, and is on the severe side of the spectrum. The ABA-certified therapist would ensure errorless learning correction, ensure that the student engages in the curriculum, would attend in-school related services to help the providers, could attend out-of-school related services, and would help the student with toilet training. Also, the ABA therapist would be in place of, and not in addition to, the in-school paraprofessional recommended in the student’s IEP. The ABA assessment recommendations would benefit the student.
I find that the student is entitled to relief as follows. DOE did not conduct a complete initial evaluation of the student in all areas of suspected disability. Parent’s evidence establishes that the recommendations for the student’s IEPs were based on progress reports and social history updates only. The student is entitled to the IEEs requested by parent. DOE must fund the cost of IEEs in the following areas – neuropsychological, SLT, AT, OT and PT.
Parent, in their DPC, requests that the services recommended in the ABA assessment be awarded - 30 hours for at school and 20 hours for at home. However, at the hearing, parent argues that 50 hours per week of ABA services should be awarded so that the ABA provided can determine how to use the hours at school or at home. DOE argues that such services are to be awarded exactly as stated in the ABA assessment and within the four corners of the DPC, and not as parent states at the hearing. I agree with the DOE. I find that parents are entitled to the services recommended in the ABA assessment.
As per New York Education Law §4402(4)(d), the student is entitled to special education transportation to and from school, as provided in the IEPs and the IDEA specifically includes transportation in its definition of related services. Therefore, the student is entitled to transportation to and from school and to all compensatory education and related services. DOE did not provide any related services to the student for the entire 2022-23 SY. The IEP recommended one hour of SLT, OT and PT each per week for the 12-month SY. The student is entitled to services that were not provided.
The student is entitled to compensatory education ABA services. The additional services are needed to place the student in a position in which he would have been had the district complied with its obligations under the IDEA. Parents argue that the compensatory education should be calculated using a quantitative method of compensation totaling 2,300 hours. DOE argues that the student is only in preschool and logistically the student would not be able to use 2,300 hours, in addition to the other compensatory education and related services which the student will be receiving. I agree with DOE, and I do not see the point in awarding hours that would not be used by the student. Also, I feel a qualitative method is more appropriate in calculating compensatory education. Given that the student was only in pre-school, where he would have been learning school readiness skills in preparation for entering elementary school and would have been in a 6:1+3 class, had DOE complied with its obligation of providing the paraprofessional, an hour for hour match of 1:1 ABA service would put the student beyond where he would have been had DOE complied with its obligation. The student would be getting direct personalized instruction, as opposed to a 6:1+3 class where he would have to share the attention of the adults in the room.
I find that qualitatively, the compensatory education award should be 1,150 hours of ABA services, half of the amount requested by parents (15 hours per week at school and 10 hours per week at home). These services should be used within one year, as going beyond a year would call into question whether the student would derive any educational benefit from services designed to address the student’s immediate needs, but which are provided years down the line and whether services beyond a year would timely place the student in the grade position he should have been in, but for the denial of FAPE.
Lastly, the student is completely non-verbal and is found to be entitled to an AT evaluation. If such evaluation finds that an alternative augmentative communication device (AAC) is appropriate for and beneficial to the student, then DOE must fund the cost for such a device.
Accordingly …
ORDER
Based upon the foregoing, it is hereby:
1. ORDERED that the New York City Department of Education failed to provide the student a FAPE for the 2022-23 and 2023-24 SYs.
2. ORDERED that DOE must fund the cost of IEEs in the following areas – neuropsychological not to exceed $6,000, SLT not to exceed $2,500, AT not to exceed
$3,000, OT not to exceed $2,500 and PT not to exceed $2,500. DOE must issue payment directly to the provider within thirty (30) days of the submission of a copy of the evaluation and the invoice. Said evaluations are to be conducted by providers licensed in their respective field and chosen by the parent. The evaluations must be conducted as soon as possible, but no more than within six months of this decision.
3. ORDERED that DOE conduct an FBA, and BIP if appropriate, upon parent’s request.
4. ORDERED that the CSE is directed to convene a review meeting within 14 days of all evaluations and/or assessments being conducted to review and consider the results of the evaluations and modify the student’s IEP as appropriate.
5. ORDERED that DOE fund the following: 50 hours per week of 1:1 ABA services provided both at school and in the home/community to be utilized (1) at least 30 hours per week of push-in 1:1 ABA in the classroom and 20 hours per week of 1:1 ABA in the home/community or, (2) a full-time 1:1 center-based or school-based program that utilizes ABA instructional procedures for the entire school day and at least 10 hours of 1:1 ABA per week at home/community; 4 hours per month of NYS LBA/BCBA supervision at both the home/community and at school; and 2 hours per month of parent training by a NYS LBA/BCBA in the school/home/community. Such services shall be provided at reasonable market rate; however, such rate shall be no higher than the lowest rate charged by the same provider to the district for substantially similar work during the preceding six months.
6. ORDERED that DOE shall continue to provide the student with appropriate special education transportation to and from school for the entirety of the 2022-23 and 2023-24
SYs, inclusive of a bus paraprofessional for behavior support.
7. ORDERED that DOE is directed to implement/fund, at a reasonable market rate, the following compensatory services: 46 hours of SLT, 46 hours of OT and 46 hours of PT for the entirety of the 2022-23 SY.
8. ORDERED that DOE is directed to fund at a reasonable market rate, for the 2022-23 SY, compensatory education ABA services of 1,150 hours to be provided by an independent provider of parent’s choosing, and to be utilized within one year.
9. ORDERED that the DOE is directed to fund reasonable transportation costs (by way of MetroCard, or upon a showing of hardship with public transportation, reasonable gas reimbursement or taxi costs) for the student to get to and from all sessions of compensatory education and services.
10. ORDERED that DOE must fund the reasonable cost of an AAC device for the student, if applicable.
IT IS SO ORDERED.
Dated: August 7, 2023
BLUETH BROMFIELD
_______________________________
BLUETH BROMFIELD, Esq.
Impartial Hearing Officer
EXHIBITS
DEPARTMENT OF EDUCATION EXHIBITS
None
PARENT EXHIBITS
A. Parent’s Impartial Hearing Request, 05/23/23, 5 pgs.
B. DOE’s Due Process Response, 06/05/23, 4 pgs.
C. Individualized Education Program, 11/28/22, 20 pgs.
D. Independent ABA Assessment, 04/15/23, 6 pgs.
E. Photos of Injuries, UNDATED, 5 pgs.
F. Affidavit of the Parent, UNDATED, 2 pgs.
G. Affidavit of Dr. [REDACTED], 07/10/23, 4 pgs.
H. Resolution Agreement, 07/12/23, 3 pgs.
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
[1] The Hearing Officer Exhibits, if any, will be referred to as “(IHO- (followed by a roman numeral))”; Petitioners Exhibits, if any, will be referred to as “(P-(followed by a letter))”; and, Respondent Exhibits, if any, will be referred to as “(R-(followed by a number))”. References to the hearing transcript, if any, are denoted as (TR, (followed by a page number)).
[2] DOE’s DPR was not timely but is being included herein to complete the record and to establish the recommended program for the student for the 2023-24 SY.
[3] Board Certified Behavior Analyst-Doctoral
[4] In addition to the requested relief, she signed a resolution agreement with the DOE on July 12th, 2023 which states that the student would receive ten hours of special education itinerant teacher (SEIT) services per week for July and August of the 2023-24 SY.