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CORRECTED FINDINGS OF FACT AND DECISION
Case Number: 249241
Student’s Name: REDACTED
School District: REDACTED
Impartial Hearing Officer: Joshua Pal, Esq.
Date of Filing: 06/23/2023
Hearing Requested by: Parent
Date of Hearing: 09/29/2023
Record Close Date: 10/20/2023
Date of Decision: 10/20/2023
BACKGROUND
The Parent,[1] through counsel, filed a Due Process Complaint (“DPC”) on or about June 23, 2023. In the Request, the Parent alleges that the Department of Education (“DOE”) failed to offer Student with a free appropriate public education (“FAPE”) for the 2023-2024 school year. (Ex. A). The DPC was later amended on or about August 9, 2023. (Ex. C).
Parent alleges that the Committee on Special Education (“CSE”) failed to develop a program for Student that incorporated Applied Behavior Analysis (“ABA”) into the curriculum, as recommended by the neuropsychologist who evaluated Student in 2022. (Ex. A). Parent also alleged that the CSE failed to conduct evaluations of Student prior to developing their Individualized Education Program (“IEP”). (Id.). Parent also alleged that the CSE recommended a placement that was inappropriate for Student in that it was too large and would not provide the support that Student requires. (Id.). By way of relief, Parent seeks an award of tuition reimbursement for Student’s attendance during the summer months (July and August) of the twelve (12)-month extended 2023-2024 school year at Private School #1, a private program not approved by the Commissioner of Education for the education of students with disabilities. (Id.). Parent also seeks an award of tuition reimbursement for Student’s attendance for the ten (10)-month 2023-2024 school year (September 2023 through June 2024) at Private School #2, another private program not approved by the Commissioner of Education for the education of students with disabilities, plus transportation to and from school with limited travel time. (Id.). Additionally, Parent seeks twenty-five (25) hours per week of at-home ABA services plus two (2) hours of BCBA supervision of said services. (Id.). Lastly, Parent seeks an Assistive Technology (“AT”) evaluation from a provider of their choosing. (Id.). Furthermore, Parent alleges that the equities support their claim for tuition reimbursement and direct tuition funding for the school years at issue. (Id.). In light of the foregoing and as more fully discussed below, I find that: a) the DOE failed to meet its burden that it offered Student FAPE for the twelve (12)month 2023-2024 school year as well as demonstrate that the CSE properly considered the student’s extended school year ("ESY”) needs; b) Private School #1 offered and Private School #2 offers Student specially designed instruction sufficient to meet Student’s needs, and c) the equities partially support the Parent’s requested relief. I find that Parent is entitled to an AT evaluation. I find that Parent has not met their burden with respect to the at-home ABA services.
PROCEDURAL HISTORY
I was appointed on July 5, 2023. On July 24, 2023, the parties appeared for an eScribers pre-hearing conference. The parties stated that they had not yet reached a settlement agreement on the claims, but Parent’s Counsel indicated that they were possibly going to amend the DPC, as there was a potential change in school Student was to attend. A status conference was scheduled for August 9, 2023. On August 7, 2023, Parent filed an amended DPC. At the August 9, 2023 status conference, District Representative #1 informed me and Parent’s Counsel that they were not going to continue representing the District on this matter moving forward, though they were able to approve the amendment on behalf of the District. They stated that the matter would be reassigned for the Due Process Hearing (“DPH”). Following the new resolution period after the amendment, a new pre-hearing conference was scheduled for September 11, 2023. There was no appearance by the District at that conference, at which time the matter was scheduled for a September 29, 2023 DPH.
At 11:43am on September 28, 2023, Parent’s Counsel sent an email asking whether Parent’s witnesses needed to appear at the hearing, as there had been no request for cross-examination made, as per my Pre-Hearing Conference Summary and Order, which requires advanced notice of a Party’s intent to cross-examine a witness testifying via affidavit. I confirmed that there had been no contact from the District and informed Parent’s Counsel that the witnesses need not appear. At 4:14pm that day (the afternoon before the DPH), I received an email from District Representative #2 advising that they had just been assigned to the matter and requesting to crossexamine the witnesses and asked that they either appear or that the DPH be adjourned to accommodate their request. After objection by Parent’s Counsel, I denied the request. While I was sympathetic to District Representative #2, having been assigned the matter on the eve of the hearing, I noted that the District had notice of the hearing date several weeks earlier and was aware that District Representative #1 would not be remaining on the case since at least August 9, 2023. I found that Parent and Student would be prejudiced by the District’s failure to prepare for the hearing on this matter, which was originally filed approximately three (3) months earlier.
On September 29, 2023, both parties appeared for a virtual hearing. The DOE did not seek to introduce witness testimony nor any other evidence. While the DOE did not explicitly concede that it had failed to offer the Student an appropriate education for the school year at issue, they acknowledged that they were not defending Prong I[2] and rested their case. Parent submitted 33 exhibits into the record without objection by the DOE. Included in Parent’s evidence were three (3) affidavits from: Director, ABA Provider, and Parent. The DOE again renewed their request to cross-examine the ABA Provider,[3] which was denied once again on the same grounds as the request from the day before. Parent rested and Parent’s counsel made an oral closing (See September 29, 2023 Transcript).[4][5] Though the below decision only references the exhibits in the record in part, I have reviewed everything entered into evidence. Unless otherwise noted below, I found all witnesses to be credible.
FINDINGS OF FACT AND DECISION
After a full review of the record generated at hearing, I make the following findings of fact and determinations.
Student is a REDACTED year old child classified as a student with Autism. (Ex. N). Student has a long history of learning difficulties as well as linguistic challenges. (Id.). Student is below grade level academically. (Id.). Aside from academics, Student has attentive issues and requires a great deal of prompting and repetition. (Id.). Student has also demonstrated maladaptive and self-stimulatory behaviors, such as hand-flapping and poking themself in the eye. (Ex. T).
On or about May 9, 2023, the CSE convened to develop an IEP for Student.[6] (Ex. CC). The CSE did not conduct evaluations of their own and recommended an 8:1+1 classroom setting for Student, despite Parent’s neuropsychological evaluation that recommended a smaller setting as well as ABA therapy. (Id.). On or about June 23, 2023, Parent sent the CSE a letter (Ten Day Notice 1) informing them of their disagreement with the recommended placement as well as their intention to place Student at Private School #1 and seeking funding from the District for tuition. (Ex. A). On or about August 7, 2023, Parent sent a new letter (Ten Day Notice 2) to the District, raising the same disagreement as the initial letter but informing them of their intention to enroll Student at Private School #2 starting in September 2023. (Ex. C).
Private School #1 primarily educates students with Autism and utilizes ABA with its students to facilitate skill development. (Ex. R, S, T, U, V, W). Private School #1 assesses its students, identifies goals and areas of concern and develops an individualized curriculum to address these areas. (Id.). Private School offers various therapies and services in addition to classroom instruction where needed to reach established goals. (Id.).
Private School #2 is geared towards educating students diagnosed with Autism Spectrum Disorder and uses a teaching model rooted in ABA. (Ex. L). A curriculum is developed for each student based on assessments, interviews, and data collected by staff. (Id.). All students receive 1:1 instruction throughout the school day. (Id.). Lead teachers have Master’s degrees in special education or ABA and are certified as either special educators or behavioral analysts. (Id.). Related services, such as speech and language therapy (“SLT”) and occupational therapy (“OT”) are available to students. (Id.).
Burden
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 (NYS Educ. Law § 4404(1)(c)).
Prong I
The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 (d)(1)(A). 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). In order 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, 137 S.Ct. 988, 999 (2017).
As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden, at the hearing in that they presented no witnesses or other evidence to support its position. (Tr. at 39). Therefore, I am constrained to find that the DOE failed to offer the Student FAPE for the 2023-2024 school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer FAPE for the 2023-2024 school year.
Prong II
A private school placement must be "proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112)" Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)
Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
Private School #1[7] identified areas of concern for Student and established academic goals intended to address these needs. (Ex. T). Private School #1 emphasized Student’s need for redirection and prompting, noting that Student was able to make academic progress in their program, albeit at Student’s own pace. (Id.). Private School #1 also established goals and tracked Student’s progress in SLT, OT, and Physical Therapy (“PT”). (Ex. U, V, W). Private School #1 also performed a Functional Behavior Assessment (“FBA”) and developed a Behavior Intervention Plan (“BIP”) to address Student’s maladaptive behaviors, such as off-task behavior and self stimulatory behavior. (Ex. R, S).
The threshold question when considering whether an Extended School Year (“ESY”) of twelve (12) months is appropriate is whether such a program is necessary to prevent substantial regression. 8 N.Y.C.R.R. §200.6(k); 200.1(eee). "Substantial regression" is defined as "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year." 8 NYCRR 200.1[aaa]. In order to constitute “substantial regression,” the student’s educational loss during the summer must be so severe that is requires an inordinate period of re-teaching at the beginning of the next school year (8 weeks or more) to recoup the previous level of skill or knowledge. See VESID, “Extended School Year Programs and Services Questions and Answers,” (2006) (available at http://www.vesid.nysed.gov/specialed/publications/policy/esy/qa2006.htm); "Questions and Answers Extended School Year 2017," Office of Special Educ. [Feb. 2017], available at http://www.p12.nysed.gov/specialed/applications/ESY/esy-2017/ documents/questions-andanswers-extended-school-year-2017.pdf; Application of a Student with a Disability, Appeal No. 05-114 (a review period of eight weeks or more would likely indicate that substantial aggression has occurred).
Here, several individuals working with Student identified their risk of regression, noting that Student has experienced regression following breaks in service, and recommended that the program be implemented over the Summer months. (Ex. Q, R, T, U, V, W). I find that the record before me establishes that Private School #1 was an appropriate placement for the Summer months of the 2023 school year.
Private School #2 similarly made efforts to identify Student’s present levels of performance before the start of the school year by conducting remote observations and reviewed videos of Student’s home-based ABA sessions. (Ex. BB). They also reviewed Student’s previous Functional Behavior Assessment (“FBA”), Behavior Intervention Plan (“BIP”), psychoeducational assessment, as well as speech and language and occupational therapy evaluations. (Id.). They also spoke with Parent to gain a better understanding of Student. (Id.). Goals were developed concerning Student’s communication deficits, academic deficits, as well as safety awareness. (Id.). Daily notes are sent home and Progress Reports are generated twice per year. (Id.).
I find that Parent has met their burden in proving that the program at Private School #2 offers an educational program which meets Student’s needs under Prong II of the Burlington/Carter standard. A student’s progress at the private placement is a relevant factor in assessing the appropriateness of the placement but is not in itself sufficient to determine that the placement is appropriate. Likewise, lack of progress itself does not mean that the parents’ placement was inappropriate. Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011). While no progress reports have been generated for Student yet (Student has only attended for less than a month as of the DPH), it is clear that Private School #2 has gone to great lengths to understand Student’s needs academically and otherwise and develop a program to address these needs.
In reviewing the record before me, the weight of the evidence establishes that Student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. I note that the DOE offered no arguments concerning the appropriateness of Parent’s unilateral placement.
Transportation
Parent seeks provision of transportation and related services. Expenses for such services may be reimbursed or directly funded under the IDEA, which specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. See 20 U.S.C. § 1401[26]; 34 CFR 300.34[a], [c][16]. Similarly, New York 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) (emphasis added); 8 NYCRR § 200.1(ww). While the IEP, which would presumably have addressed Student’s transportation needs, was not offered into evidence, I find that the record – while sparse on this issue – support’s Parent’s request. I find that Student is entitled to transportation as requested.
Home ABA
Parent also seeks twenty-five (25) hours of home-based ABA services as compensatory education. For the reasons described below, I find that the record does not support this remedy.
While it is likely that there would be a benefit to Student’s receipt of a home-based 1:1 ABA program, services that are intended to generalize skills outside the classroom are not required by the IDEA. See F.L. and M.L. ex rel. F.L. v. New York City Dept. of Educ., 2016 WL 3211969, at *11 (S.D.N.Y. 2016); P.S. v. New York City Dept. of Educ., 2014 WL 3673603, at *13-14 (S.D.N.Y. 2014); C.M. and S.M. ex rel. L.M. v. Mount Vernon City Sch. Dist., 2020 WL 3833426, at *26 (S.D.N.Y. 2020); L.K. v. New York City Dept. of Educ., 2016 WL 899321, at *8-10 (S.D.N.Y. 2016), aff’d in part, L.K. v. New York City Dept. of Educ., 674 Fed. App’x 100 (2d Cir. 2017).
2022 Psychologist, in their Psychoeducational Assessment, recommended “home-based ABA after school and on weekends to generalize skill development across settings.” (Ex. N-10). The testimony of Director at Private School #2 references the Psychoeducational Assessment and its recommendation for home-based ABA to generalize skills and goes on to say that the program Student receives at Private School #2 is consistent with these recommendations. (Ex. BB-7). Further. the report from the ABA Provider and ABA Supervisor also describe the need for the ABA services “in order to acquire skills and use them appropriately across environments.” (Ex. Q-5). However, in their testimony, ABA Supervisor includes their assertion that the after-school services are necessary “to make meaningful progress” before going on to say that “[i]n addition, [Student] needs to generalize” what was learned in school. (Ex. DD-4). I do not find ABA Supervisor’s testimony persuasive. First, they spent two paragraphs of their testimony discussing prior DPHs for Student and lamented the fact that they had not yet been paid for their services, which was both an irrelevant and inappropriate use of their testimony before me. (Id. at 3-4). Second, they referenced the incorrect client in their affidavit (the sibling of Student), suggesting that this was originally written for a different client, bringing into question which portion of the affidavit was applicable to which sibling. (Id. at 5, paragraph 18). Finally, I am concerned by the shift in their description of the need for home-based ABA services between their ABA Progress Report and testimonial affidavit. (Ex. Q, DD). ABA Supervisor clearly has a direct financial interest in the outcome of this DPH, which is why I am affording their testimony little weight. Similarly, Parent used identical language in their affidavit, stating that Student requires the ABA services at home “in order to make meaningful progress.” (Ex. CC-1). This language has mirrored ABA Provider’s affidavit as well as the DPC itself. (Ex. A, C, DD). While I understand Parent’s interest in procuring these services for their child, the record has no established that Parent is qualified to determine what methodology is necessary to make meaningful progress.
The main purposes of the home-based ABA program recommended for Student is to generalize skills outside the classroom. The DOE was under no obligation during the school year at issue to recommend or provide any home-based ABA services to generalize Student’s skills outside the classroom. Further, there is nothing in the record (considering the annual reports from Private School #1) to suggest that without the home-based ABA services, Student would not have made the progress that was made last year. (Ex. T, U, V, W). Accordingly, the reasoning for home-based ABA instruction recommended for Student and requested by Parent is unavailing and that service will not be included in my order below. [8]
Equities
Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009) In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
Here, Parent provided the necessary Ten-Days’ Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2023-2024 school year. Therein, Parent detailed specific concerns. (Ex. A). Parent furthermore gave the DOE notice of their intention to unilaterally place the Student at each Private School. (Id. And Ex. C). No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Letter other than a general acknowledgement of receipt, which informed the Parent that a DPH would be needed. (Ex. B, D).
By way of relief, Parent seeks to have the balance of unpaid tuition sent directly to Private School #1 and Private School #2. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011)(parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”). Having reviewed Parent’s tax return, affidavit, and the contracts for each school, I find that the unilateral tuition costs far exceed the Parent’ income. (Ex. F, I, AA, CC). Equity demands that the DOE fund Student’s Private School tuition in this instance.
I find no issue with the reasonableness of the costs, including tuition, associated with the Private Schools. See (Ex. F, I). Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2023-2024 school year. (Ex. CC). Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition with the following modification:
The enrollment contract for Private School #2 states that the “Student shall be enrolled for all of the 2023-2024 academic year, which begins in July of 2023 and ends in June of 2024 (the ‘Academic Year’).” (Ex. I-2, paragraph 1). The contract goes on to say that “Parent acknowledges and agrees that Student is being enrolled for the entire Academic Year.” ((Id. at paragraph 4). While the testimonial evidence has been clear that Student will attend Private School #2 for the ten (10)-month portion of the school year (September 2023 through June 2024), the contract is unambiguous in that the enrollment (and therefore the tuition) is for the entire year. As the tuition for the summer months is already being awarded with respect to Private School #1, the equities would require a reduction in the amount requested for Private School #2, as the District should not be required to pay for the summer months’ tuition at two (2) separate schools. The tuition requested for Private School #2 is $151,900. Taking that total and dividing it by twelve (12), the tuition comes to 12,658.33 per month. For the ten (10)-month portion of the school year that is being awarded to Student, the amount to be directly paid to Private School #2 is $126,583.33.
Parent also requests an assistive technology evaluation for Student. (Ex. CC). Per Parent’s testimony they have requested the evaluation on at least two (2) occasions in 2023 (May and August) and have provided the consent form for said evaluation each time. (Id., Ex. FF, GG). Based on the limited email communications offered into evidence, it is unclear what further communications, if any, occurred between Parent and District regarding this request. Per Parent, an Assistive Technology evaluation has not been completed to date. (Ex. CC). Given the evidence before with regarding this request, I find that Parent is entitled to an evaluation and will order the District to conduct one.
I have reviewed Parents’ 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
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) Parent’s claim for direct tuition funding for the Student’s unilateral placement at Private School #1 is GRANTED for the 2023-2024 school year as follows:
(a) The District shall directly fund the balance of the Student’s tuition at Private School #1 in an amount not to exceed $25,777.50; and
(b) The District shall pay to Private School #1 the remainder of any tuition funds, less any amounts already paid under pendency, totaling $25,777.50 within 35 days of submission of a signed, notarized bill encompassing tuition costs owed by the Parent to the Private School for the Student’s attendance at Private School #1 for the 2023-2024 school year; and
(2) Parent’s claim for direct tuition funding for the Student’s unilateral placement at Private School #2 is GRANTED for the 2023-2024 school year as follows:
(a) The District shall directly fund the balance of the Student’s tuition at Private School #2 in an amount not to exceed $126,583.33; and
(b) The District shall pay to Private School #2 the remainder of any tuition funds, totaling $126,583.33 within 35 days of submission of a signed, notarized bill encompassing tuition costs owed by the Parent to the Private School for the Student’s attendance at Private School #2 for the 2023-2024 school year; and
(3) The District shall provide curb-to-curb transportation with limited travel time between Student’s home and Private School #2 on instructional days when Student attends Private School #2; and
(4) The District shall conduct an Assistive Technology evaluation within forty-five (45) days of the date of this Order; and
(a) Within 30 days of conducting said evaluation, the CSE shall reconvene to consider the recommendations, if any, contained therein.
Dated: October 20, 2023
_____________________
Joshua Pal, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DISTRICT EVIDENCE
Exhibit Title Date Pages
none
PARENT EVIDENCE
Exhibit Title Date Pages
A Ten Day Notice and Due Process Hearing Request 6/23/2023 8
B Ten Day Notice Determination Letter 7/1/2023 1
C Amended Ten Day Notice and Due Process Hearing Request 8/7/2023 11
D Email Receipt of Amended Ten Day Notice 8/7/2023 1
E Pendency Order 8/10/2023 9
F Parental Guarantee of 2022-2023 Tuition 7/10/2023 2
G REDACTED Tuition Affidavit 9/21/2023 1
H REDACTED Summer Attendance Record 9/20/2023 1
I REDACTED Tuition Agreement 7/24/2023 5
J REDACTED Tuition Affidavit 9/19/2023 1
K REDACTED Attendance Record 2023-2024 1
L REDACTED Program Description 2023-2024 8
M REDACTED Weekly Schedule 2023-2024 1
N Neuropsychological Evaluation 11/13/2022 14
O Speech and Language Evaluation 4/7/2023 15
P Occupational Therapy Evaluation 4/4/2023 25
Q ABA Progress Report 4/25/2023 5
R Functional Behavior Assessment 4/26/2023 7
S Behavior Intervention Plan 4/26/2023 4
T REDACTED Academic Annual Review 3/22/2023 3
U REDACTED Speech and Language Annual Report 4/5/2023 3
V REDACTED Occupational Therapy Annual Report 4/1/2023 1
W REDACTED Physical Therapy Annual Report 3/15/2023 5
X Doctor Letter for Medical Accommodations 7/25/2023 2
Y 2023-2024 Medical Accommodations Forms 8/25/2023 4
Z Email Requesting Consent to Evaluate 8/29/2023 2
AA Parents’ 2021 Tax Return 2021 9
BB Affidavit of REDACTED 09/21/2023 8
CC Affidavit of REDACTED 9/22/2023 5
DD Affidavit of REDACTED 9/22/2023 7
EE Findings of Fact and Decision – Case REDACTED 3/30/2023 23
FF Email Requesting Assistive Technology Evaluation 5/17/2023 2
GG Email Requesting Consent to Evaluate 6/20/2023 1
IHO EXHIBITS
Exhibit Title Date Pages
none
APPENDIX
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED Parents/Guardians
REDACTED Parent Attorney/Representative
REDACTED District Attorney/Representative #1
REDACTED District Attorney/Representative #2
REDACTED Initial District Attorney/Representative
REDACTED Private School #1
REDACTED Private School #2
REDACTED ABA Supervisor
REDACTED ABA Provider
REDACTED Private School #1 Teacher
REDACTED Director (for the Manhattan Children’s Center)
REDACTED 2022 Psychologist
REDACTED Occupational Therapist
REDACTED Speech-Language Pathologist
Footnotes
[1] No personal identifying information is contained within the body of this Findings of Fact and Decision (“FOFD”). For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary. The pronoun “they” is used as needed.
[2] Prong I in the analysis of these matters is whether the District offered Student a Free Appropriate Public Education (FAPE).
[3] In renewing their request and explaining the District’s purpose for cross-examining this witness, District Representative made a factual representation concerning this witness’ certification or licensure status. Upon Parent’s Counsel’s objection to this statement, I informed the Parties that I would not accept what amounts to “testimony” from Counsel, or even argument when no evidence, documentary or testimonial, was being offered into the record to support this assertion.
[4] All references to the transcript moving forward will be denoted as “Tr.”.
[5] DOE Representative did not make any closing arguments.
[6] The IEP was not offered into evidence by either Party.
[7] While I find that Private School #1 was an appropriate placement for Student, I should note that any award I order with respect to Private School #1 is moot, as Parent is entitled to the relief being sought with respect to that school (July and August 2023 tuition) as a matter of pendency. (Ex. E).
[8] Even if I were to order the DOE to provide at-home, ABA services, it would not be for the amount requested. ABA Supervisor testified that Student needs at least forty (40) hours of ABA services weekly. (Ex. DD-2). However, Student already receives five (5) hours of 1:1 ABA services in school. (Ex. BB-5). Based on a five (5) day school week, Student would receive twenty-five (25) hours in school (not counting the services received in a group of two (2), leaving fifteen (15) hours to be obtained outside of school, if the goal were forty (40) hours, as opposed to the twenty-five (25) being sought here.