New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 248830 Student’s Name: [REDACTED] (“Student”) School District: [REDACTED] Impartial Hearing Officer: Ashley Grant Date of Filing: 6/8/2023 Hearing Requested by: [REDACTED] (“Parent”) Dates of Hearing: 7/5/2023, 7/24/2023, 8/7/2023 Record Close Date: 9/11/2023 Time Sensitive: YES Date of Decision: 9/15/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/5/2023:

[REDACTED] (“Parent”) — Parents

[REDACTED], Esq. (hereinafter, “DOE Representative”) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/24/2023:

Parent — Parents

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/24/2023:

Parent — Parents

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 8/7/2023:

Parent — Parents

[REDACTED], Team Lead at [REDACTED] (“Agency”) — Parents

[REDACTED], ABA Provider at Agency — Parents

[REDACTED], SETSS Provider at Agency — Parents

DOE Representative — DOE

INTRODUCTION

This matter concerns the Student, a student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”).

PROCEDURAL HISTORY AND BACKGROUND

This matter comes before me on the Parent’s due process complaint (“DPC), filed pro se on or about 6/8/2023. The Parent alleges that the DOE failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2023-24 school year by failing to “use reasonable calculation when developing his IEP.” Ex. A. Parent also alleges that the DOE did not provide Student with IEP-mandated counseling during the 2022-23 school year (Ex. A-18) and that due to “lack of appropriate instruction” in prior school years, Student did not “learn the foundational skills necessary to read” (Ex. A-14). As relief, Parent seeks the following relief: 1. Eight (8) hours per week of home-based SETSS by an ABA-trained provider (7 hours of direct, at-home services and 1 hour of indirect service), by a provider of the Parent’s choosing at a rate of $200.00 per hour; 2. Seven (7) hours per week of home-based ABA therapy by a BCBA/LBA (5 hours direct, 2 hours indirect), by a provider of Parent’s choosing at a rate of $200.00 per hour; 3. One (1) hour per week of parent counseling and training (“PCAT”) by a BCBA/LBA by a provider of Parent’s choosing at a rate of $200.00 per hour; 4. Three hundred (300) hours of reading specialist services at market rate; 5. Forty-six (46) hours of counseling services at market rate; 6. Thirty (30)-minute limited travel time; and 7. An order that the DOE revise Student’s IEP to reflect the services ordered above. Ex. A-18

I was appointed to this matter on 6/12/2023. At the request of the Parent, I scheduled a pendency hearing for 7/5/2023. Ex. ii. After the DOE indicated that Pendency was not in dispute, I issued a pendency order on 7/5/2023. Ex. iii.

During the pendency hearing, Parent reported that the DOE had not attempted to schedule a resolution session within 15 days of the DPC and had not held a resolution session but had sent a resolution agreement, via email, which Parent rejected. Tr. 12-13. At Parent’s request, I began the due process timeline on 7/5/2023 and scheduled the matter for a merits hearing on 7/24/2023 (for the DOE’s case) and 8/7/2023 (for the Parent’s case). Tr. 15-19. The parties agreed that the DOE would disclose its exhibits on 7/17/2023 and Parent would disclose her exhibits on 7/31/2023. Tr. 19-20.

On 7/24/2023, the DOE declined to introduce documentary evidence or witnesses and made an opening statement indicated that it was “rest[ing] on the documentary evidence” and that the DOE “ha[s] some concerns about the requested relief” which the DOE planned to address via cross-examination of Parent’s witnesses. Tr. 27 The DOE Representative then confirmed that the only issue in dispute is the appropriateness of Parent’s requested relief. Tr. 27.

On 8/7/2023, Parent made an opening statement and proposed Exhibits A through Z. Tr. 38-51. I admitted without objection Exhibits A and E through Z. Tr. 41-47. I admitted Exhibits B, C and D over the DOE’s objection. Id. Parent’s exhibits included the sworn testimony of Parent, [REDACTED] (“Team Lead”), [REDACTED] (“ABA Provider”) and [REDACTED] (“SETSS Provider”). Ex. A, X, Y, Z. DOE cross-examined all four witnesses. Tr. 58-71, 81-94, 100-114, 119-130. Both parties made oral closing statements. Tr. 152-158. In response to my questions, the DOE Representative clarified that the DOE did not dispute the substance of the Parent’s requested relief – only the hourly rates of Parent’s identified providers. Tr. 156-157.

A detailed list of exhibits is appended to this decision.

JURISDICTION

The due process hearing was held, and this decision is rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ Law Art 89 § 4404 et seq., and its implementing regulations, 8 NYCRR Part 200.

FINDINGS OF FACT

After considering all the evidence, as well as the closing arguments of both parties, my findings of fact are as follows:

The Parent’s DPC includes a detailed factual history which the DOE did not dispute. Ex. A, Tr. 27. As the Parent swore to the truth of the facts alleged in her DPC, and the DOE does not dispute them, I credit as true each of the statements in the DPC and refer the reader there for a full history of this case. Id.

Since 2016-17, Parent has filed DPCs to resolve disputes regarding the DOE’s provision of FAPE to Student. Ex. A-1. Prior IHOs issued decisions regarding the 2021-22 school year (Ex. B) and the 2022-23 school year (Ex. C). Both were appealed to the SRO. Ex. D, H.

Since the 2021-22 school year, Student has attended [REDACTED] Charter School, located in New York City District [REDACTED] (“NYC District”). Ex. A-6. The Charter School is an integrated charter school geared toward students on the autism spectrum that features classes with a maximum of 18 students, teachers and teaching assistants in each room. Id.

Student is diagnosed with autism and presents with significant academic and behavioral challenges. Ex. A, E, N, O, X, Y, Z. Since 2019, Student has received home-based special education teacher support services (“SETSS”) from a provider trained in applied behavioral analysis (“ABA”). Ex A-7. Since 2021, Student has also received home-based supports from a Board Certified Behavioral Analyst (“BCBA”). Ex A-7. Since 2021, [REDACTED] (“Team Lead”), a BCBA and SETSS provider, has provided Parent with weekly parent training and counseling and communicates with Student’s providers and the school. Ex. A-7. Each of these individuals testified credibly at hearing.

In October 2022, Student underwent a Neuropsychological Assessment which included interviews with ABA Provider, SETSS Provider, and Team Lead, as well as standardized assessments measuring Student’s intellectual and academic functioning. Ex E. As a result of this assessment, the evaluator reported in November 2022 that “in order for him to continue being successful, [Student] will require ongoing behavioral support, including provision of an individual paraprofessional who is specifically trained to implement consistent behavioral interventions, as well as related services of ABA, SETSS, speech therapy, occupational therapy, counseling and assistive technology.” Ex. E-12.

At the end of Student’s seventh-grade year at Charter School, on 5/10/2023, the DOE created an IEP for Student (“2023 IEP”). Ex. A-1, U. During the IEP meeting, Parent requested that the 2023 IEP include a “SETSS program by an ABA trained provider for 8 hours a week, 6 hours of ABA therapy by a BCBA, parent counseling and training (“PCAT”) with a BCBA, and 3 hours a week of a reading specialist service.” Ex. A-3. Fifteen of the eighteen members of the IEP team agreed that Student required continuation of his SETSS and ABA programs. Ex A-15. The IEP recommends “ABA SETSS” for 8 hours per week for the remainder of the 2022-23 school year and “SETSS” (without reference to ABA) beginning 9/7/2023. Ex. A-3, U-56 to U57. The IEP includes PCAT three times per year, but does not include the weekly PCAT parent requests with a BCBA. Ex. K-33.

At the meeting, Parent also requested that the CSE include in the IEP reading specialist supports as recommended by the reading specialist who evaluated Student on 5/3/2023. Ex. S, A14. The DOE referenced the report in the 2023 IEP but did not recommend reading specialist supports. Ex. A-14, Ex. U.

The 2023 IEP also recommends counseling, OT, and speech-language therapy. Ex. U-57, A-13. However, Student did not receive counseling services for the entire 2022-23 school year. Ex. A-13. The DOE provided Parent with a related services authorization (“RSA”) and the number for one provider who was only available at a time that was not feasible given the time Student arrives home from school. Ex. A-13. Parent requested that the RSA provider come to Student’s school but the provider was unavailable during that time. Id. As such, Student did not receive IEP-mandated counseling services for the 2022-23 school year.

The 2023 IEP provides Student with transportation limited to 45 minutes. Ex. U-64. Parent advised the CSE that Student requires travel time under 30 minutes. Ex. A-14. Student has “medically documented motion sickness” and once Student starts feeling sick, he becomes agitated, triggering maladaptive behaviors. Ex. A-14. On one occasion when Student’s bus driver changed the route and Student’s ride exceeded 30-minutes, he became sick and dysregulated.

LEGAL FRAMEWORK

The IDEA establishes a “substantive right to a ‘free appropriate public education’” for children with disabilities. Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017) (quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)). A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; Cerra, 427 F.3d at 192.

The IDEA requires 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). School districts are not required to "maximize" the potential of students with disabilities. Rowley, 458 U.S. at 189, 199. Nonetheless, the district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'." Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.; The IEP must be "reasonably calculated to provide some 'meaningful' benefit." Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Endrew F., 580 U.S. at 403 (holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"). The recommended program must also be provided in the least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1).

In general, an impartial hearing officer’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). 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. N.Y. Educ. Law § 4404(1)(c).

When school districts do not provide a FAPE, IHOs have broad authority regarding relief, “restrained only by the Supreme Court’s directive that ‘the relief is to be appropriate’ in light of the purpose of the Act.” L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 125 (2d Cir.

2016) (citing Burlington, 471 U.S. at 369). Although the IDEA “does not address the specific remedies an impartial hearing officer may order upon a finding that a child has been denied FAPE, [the United States Department of Education’s Office of Special Education Program’s] position is that, based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary…to ensure that a child receives the FAPE to which he/she is entitled.” Letter to Kohn, 17 IDELR 522, OSEP 1991.

Compensatory Education

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child’s education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008) (citations omitted). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). An award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid, 401 F.3d at 518, 524.

ANALYSIS

In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017).

The Parent alleges that the DOE failed to provide the Student with a FAPE for the 2023-24 school year by failing to “use reasonable calculation when developing his IEP.” Ex. A. Specifically, she claims that the CSE failed to recommend appropriate transportation accommodations in the form of limited travel time, that the IEP fails to address Student’s literacy needs, and that the IEP does not include SETSS with an ABA provider, ABA services, and parent training, all of which she alleges he requires “so he can be educated in the [least restrictive environment] alongside his non-disabled peers” and without which, she alleges Student “would not be able to handle the academic, social, behavioral and academic (sic) demands of middle school.” Ex. A-11 to A-15. Parent also alleges that the DOE did not provide Student with IEPmandated counseling during the 2022-23 school year. Finally, Parent alleges that due to “lack of appropriate instruction” in prior school years, Student did not “learn the foundational skills necessary to read” and now requires literacy services which were not included in the 2023 IEP. Ex. A-14.

The DOE did not put on a case, present any witness testimony, or place any documents in evidence at the hearing regarding the DOE’s provision of a FAPE to the Student during for the 2023-24 school year. Additionally, the DOE Representative confirmed that the only issue in dispute is the appropriateness of Parent’s requested relief. Tr. 27. Given that the DOE bore the burden to establish that it provided the student with a FAPE, the DOE submitted no evidence or testimony in support of its position, and the DOE did not dispute any of the Parent’s claims, I find that the DOE has not met its burden and that the 2023 IEP was not reasonably calculated to allow Student to make progress that was appropriate in light of his circumstances, denying him a FAPE for the 2023-24 school year. I also find that the DOE did not implement IEP-mandated counseling services during the 2023-23 school year.

REQUESTED RELIEF

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme, 790 F.3d at 454. In this case, the relief requested by the Parent is equitable in nature, as she is asking me to devise an appropriate remedy to address the DOE’s failure to offer the Student a FAPE for the 2023-24 school year.

DOE had the burden of production and was obligated to describe its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that could most reasonably and efficiently place the Student in the position he would have been in but for the denial of a FAPE. See SRO Appeal No. 16-033 at 11, citing Doe v. Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015). As noted above, the DOE declined to introduce any evidence in this case and conceded that the only issue in dispute was the appropriateness of the Parent’s requested relief. Tr. 27. Then, after closing statements, the DOE Representative clarified that the DOE did not dispute the substance of the Parent’s requested relief – only the hourly rates of Parent’s identified providers. Tr. 156-157. As none of the substance of Parent’s requested relief is in dispute, and is supported by the record, I find that her requested relief is appropriate. I will discuss the substance of each request below.

Transportation

Parent alleges that Student requires travel time limited to 30 minutes and the DOE does not dispute this claim or the Parent’s request that it be ordered as relief. Tr. 156-157. As such, I will order Parent’s requested relief. Additionally, substantive evidence demonstrates that travel time limited to 30 minutes is appropriate in light of Student’s significant behavioral needs and his documented travel sickness. Ex. A, U, X, Y. Therefore, I will order the DOE to limit Student’s travel time to 30 minutes.

SETSS, ABA and PCAT services

The Parent requests the following relief for the entire 2023-24 school year, by providers of her choosing, at rate of $200 per hour: 1. Eight (8) hours per week of home-based SETSS by an ABA-trained provider (7 hours of direct, at-home services and 1 hour of indirect service); 2. Seven (7) hours per week of home-based ABA therapy by a BCBA/LBA (5 hours direct, 2 hours indirect); and 3. One (1) hour per week of PCAT by a BCBA/LBA.

Aside from the rate, the DOE does not dispute any of these requests. I further find that these requests are appropriate as they are supported by substantive evidence. Testimony from Student’s providers and from Parent demonstrate that Student has a history of severe behavioral and academic delays and that home- and school-based ABA therapy, and SETSS services from an ABA-trained provider are necessary for him to make progress. Ex. A, E, N, O, X, Y, Z. A neuropsychological evaluation conducted in advance of the 2023 IEP recommended ABA with a BCBA in school (10x60), a BCBA outside of school (5x60 direct and 1x60 indirect), SETSS with an ABA provider (7x60 direct and 1x60 direct). Ex. E-12. The evaluator recommended the indirect SETSS and BCBA to collaborate with Student’s teachers on effective learning and behavioral strategies and called such collaborations “essential in order to generalize across settings and maintain progress.” Id. The 2023 IEP references the results of the neuropsychological evaluation and SETSS with an ABA provider through June 2023, but offers no explanation as to why an ABA provider was no longer required beginning July 1, 2023. Ex. U-8, U-56 to U-57.

The unrebutted recommendations of Student’s evaluating neuropsychologist and Student’s current providers is that Student should continue to receive 7 hours of direct and 1 hour of indirect SETSS by an ABA-trained provider. Ex. E, X-3, Y-12, Z-8 to Z-9. As such, I find that these services are appropriate. Similarly, the unrebutted recommendations of the evaluating neuropsychologist and Student’s current providers is that Student requires ABA with a BCBA for 10 hours in school and 6 hours out of school. Ex. E-12, X-3, Y-12, Z-8 and Z-9. Therefore, I find that Parent’s request for fewer hours -- 7 hours per week of ABA services, including 2 hours per week of indirect services-- is appropriate and necessary for Student to make progress. Finally, Parent requests one hour per week of parent counseling by a BCBA/LBA. Tr. 138, Ex. A-17. Substantive evidence demonstrates that this request is also appropriate. Tr. 138, 141, Ex. E-12. As the DOE does not dispute the substance of Parent’s requested relief, and the record supports these requests, I find that they are appropriate and will order them at the durations and frequencies requested by Parent.

Reading Specialist Services

Parent also requests three hundred (300) hours of reading specialist services at market rate, equivalent to 3 hours per week during the 12-month school year and 5 hours per week for ESY “for the past 2 school years.” Ex. A-18. I decline to award compensatory relief for services that Parent alleges should have been included in the 2021-22 and 2022-23 IEPs because prior IHOs have already crafted compensatory remedies for the DOE’s failure to create appropriate IEPs during the 2021-22 and 2022-23 school years (cases 208714 and 226934, respectively). Ex. B, D. In case number 226934, a prior IHO ordered compensatory SETSS services for the 202223 school year. One of the factors in this determination was the SETSS teacher’s testimony that Student was “performing at a 4th grade level in ELA [and] would recommend a continuation of the SETSS program for 8 hours per week, ABA therapy for 6 hours per week, and a full-time behavior paraprofessional for at least an additional school year to see if the growth can be continued and accelerated.” Ex. C-16. In case number 208714, the IHO did not specifically address ELA or reading concerns, but also awarded compensatory relief for the DOE’s failure to provide a FAPE during the 2021-22 school year. Ex. B. As claims related to the appropriateness of these IEPs appear to have already been litigated, I decline to award additional compensatory relief for prior school years.

However, Parent alleges, and the DOE does not dispute, that Student’s IEP for the 202324 school year is substantively inappropriate as it fails to address Student’s reading needs. Ex. A14. What is more, substantive evidence demonstrates that literacy specialist supports are appropriate for Student. In advance of the 2023 IEP meeting, Parent provided DOE with the results of an evaluation conducted by a reading specialist. Ex. A-14. The evaluation included tests of phonological development, language and literacy development, reading mastery, phonological processing and vocabulary. Ex. S. As a result of the assessment, the evaluator found that Student was decoding at a 2.2 grade level, or approximately five grade levels below grade-level peers. Ex. S-7. Moreover, the evaluation found that although Student can read fifthgrade sight words, he was unable to provide meaning for some of these words, including render, timely and foraging. Ex. S-7. The evaluator recommended 15 hours per week of literacy instruction using the Orton-Gillingham approach. Ex. S-13. Team Lead also testified credibly that Student requires the assistance of a reading specialist because he is not prepared with the prerequisite reading comprehension skills needed to take Regents exams in 2024, exams required for high school graduation. Ex. X-3. She also testified that Student demonstrates “frustration behaviors” related to reading across subject areas. Tr. 62, 65. Student’s SETSS provider also recommended that Student receive reading specialist supports to make progress. Ex. Z-9. As these witnesses all testified credibly that Student requires the support of a reading specialist, and the DOE did not provide any evidence or arguments to rebut these recommendations, I find that reading specialist support is appropriate for Student and is necessary for him to make progress during the 2023-24 school year. I further find that a compensatory award that includes reading specialist supports is necessary to put the Student back in the position he would have been in had the DOE offered him a FAPE for the 2023-24 school year. However, Parent testified that she estimates Student can only tolerate three to five hours per week of work with a literacy specialist, given his other therapies and services. Tr. 146-147. As such, I find that five hours per week of reading specialist supports for the 12-month 2023-24 school year, for a total of 230 hours (5 hours x 46 weeks = 230 hours) is appropriate and equitable relief for the DOE’s failure to create an IEP for the 2023-24 school year that addresses Student’s literacy needs.

Counseling services

Finally, I will order the DOE to fund or provide forty-six (46) hours of counseling for its failure to provide 2x30 of IEP-mandated counseling during the 2022-23 school year because the DOE does not dispute the requested relief and because substantive evidence shows the appropriateness of this relief. Student’s 12/19/2022 IEP mandated 2x30 of counseling and Parent alleges that he is owed 46 hours of counseling. Ex. A-18, K-35. Parent testified credibly that the 2023 IEP team discussed Student’s need for counseling and that these services were not provided all year. Ex. A-13. The DOE did not dispute this claim and the prior FOFD (226934) does not address implementation of this IEP-mandated services. Ex. C. As I have found that the DOE failed to implement Student’s IEP-mandated counseling, I find that the same number of sessions is appropriate equitable relief to put Student in the position he would have been in if the DOE had complied with its obligation to provide Student with counseling services consistent with his IEPs. Therefore, I will order 46 hours of counseling services, equivalent to 1 hour per week for 46 weeks, the length of a 12-month school year.

Rate

I turn now to the only issue in dispute-- the hourly rates for the Parent’s requested services. For the reasons detailed below, I find that the Parent’s requested rates are appropriate and supported by the hearing record. Parent does not request any specific hourly rate for compensatory counseling and reading specialist services, but rather requests that I order these services at market rate. Ex. A-18, Tr. 144-146. Parent has selected Service Agency to provide SETSS, ABA and PCAT services and presented evidence that Service Agency charges $200.00 for these services. Ex. W-3, Tr. 121-122. The DOE argues correctly that “there is no really explanation or breakdown of what makes this $200 per hour.” Tr. 155. However, Parent testified credibly that “I just know what’s charged from my end. So if I want to seek services from this agency, the rate for the 23/24 school year is $200 per hour.” Tr. 122, 158. I find that in the absence of any documentary or testimonial evidence to counter the Parent's requested rates, there is simply no basis for me to reduce the hourly rates to an amount also unsupported by the hearing record.

If the DOE wished to argue that any particular rates should apply to the compensatory award, it was incumbent on the DOE to develop the hearing record as to those rates. The DOE had ample opportunity to present alternative arguments on these points. See Tr. 153-158. However, the DOE failed to address its burdens, as required under the due process procedures set forth in New York State law, by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that he would have been but for the denial of a FAPE. Id, See E. Lyme, 790 F.3d at 457; Reid, 401 F.3d at 524. If the DOE disagreed with the rates charged by the Parent's proposed providers, it was incumbent on the DOE to come forward with evidence of a different appropriate provider or with evidence demonstrating that the Parent’s proposed rates were not reasonable. Given the DOE’s failure to meet its burden of production or persuasion on the issue of the providers' rates, the evidence introduced by the Parent is credible and unrebutted. Therefore, I will order that the DOE provide the requested relief at the specific hourly rates Parent requests or at market rate.

In sum, I find that each of the services Parent requests is appropriate and supported by the record. Finally, as the DOE did not dispute the Parent’s request that the DOE be ordered to revise Student’s IEP to reflect the services I have determined are appropriate, I will also order this relief.

I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based upon the above findings of fact, it is hereby: 1. ORDERED, that the DOE shall fund the following compensatory services for the DOE’s failure to offer Student a FAPE for the 2023-24 school year, to be provided by providers of the Parent’s choosing within three (3) years of the date of this order: a. Eight (8) hours per week of home-based SETSS by an ABA-trained provider (7 hours of direct, at-home services and 1 hour of indirect service), by a provider of the Parent’s choosing at a rate of $200.00 per hour; b. Seven (7) hours per week of home-based ABA therapy by a BCBA/LBA (5 hours direct, 2 hours indirect), by a provider of Parent’s choosing at a rate of $200.00 per hour; c. One (1) hour per week of PCAT by a BCBA/LBA by a provider of Parent’s choosing at a rate of $200.00 per hour; d. Two hundred thirty (230) hours of reading specialist services at market rate; e. Forty-six (46) hours of counseling services at market rate; 2. ORDERED that the DOE’s Implementation Unit shall authorize all compensatory services hereby ordered within fourteen (14) days; it is further

3. ORDERED that the DOE shall provide Student with round-trip transportation with travel time limited to thirty (30)-minutes each way; 4. ORDERED that the DOE shall revise Student’s IEP to reflect the services ordered above.

SO ORDERED.

DATED: September 15, 2023

Ashley Grant (signed electronically)

Impartial Hearing Officer

Ashley Grant

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.

DISTRICT EVIDENCE

Exhibit Title Date Pages

NONE

PARENT EVIDENCE

Exhibit Title Date Pages A Request for Impartial Hearing June 8, 2023 18 B FOFD Case No. 208714 June 28, 2022 19 C FOFD Case No. 226934 August 28, 2022 21 D State Review Officer Decision No. 22-099 October 11, 2022 13 E Neuropsychological Assessment November 4, 2022 14 F Written Decision of State Complaint, [Parent] v. November 23, 2022 16

NYC DOE CSE [] Received on September 29, 2022 G Written Decision of State Complaint, [Parent] v. November 23, 2022 5

NYC DOE Implementation Unit Received on September 29, 2022 H State Review Officer Decision No. 22-132 December 9, 2022 19 I Email to CSE December 15, 2022 1 J State Math & ELA Assessment Scores Undated 2 K Individualized Education Program December 19, 2022 43 L Prior Written Notice December 23, 2022 3 M Email Correspondence with CSE December 23, 2022 & 3

January 2, 2023 N BCBA & SETSS Progress Report March 2023 18 O MAP Growth Family Report April 25, 2023 2 P School Progress Report April 25, 2023 18 Q Written Decision of State Complaint, [Parent] v. April 28, 2023 21

NYC DOE CSE [] Received on February 1, 2023 R Written Decision of State Complaint, [Parent] v. April 28, 2023 6

NYC DOE Implementation Unit Received on February 1, 2023 S Reading Specialist Evaluation May 3, 2023 13 T Email Correspondence with CSE May 10,11 & 12, 2023 3 U Individualized Education Program May 10, 2023 68 V Email Correspondence with CSE May 17, 2023 2 W [Agency] Applied Behavior Analysis Services and July 1, 2023 5

Pricing Information X Witness Affidavit- [Team Lead] July 29, 2023 3 Y Witness Affidavit- [ABA Provider] July 30, 2023 12 Z Witness Affidavit- [SETSS Provider] July 31, 2023 9

IHO EVIDENCE

Exhibit Title Date Pages i Due Process Complaint 6/8/2023 18 ii Emails requesting pendency hearing 6/26/2023- 7

6/27/2023 iii Pendency order 7/5/2023 2 iv Extension order 8/7/2023 1