Impartial Hearing Decision

FINAL ORDER - DOE DEFAULT & INQUEST - PARENT SUBMISSIONS

Case Number: 249738

NYS Identifier Number N/A Student’s Name: REDACTED Date of Birth: [“Confidential”]

District: REDACTED

Hearing Requested By: Parent

Dates(s) of Hearing: 08/28/23 & 10/23/23

Actual Record Close Date: 11/13/23

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] DOE Representative DOE 08/28/23 (V) 10/23/23 (V)

[CONFIDENTIAL] Attorney PARENT 08/28/23 (V) 10/23/23 (V)

[CONFIDENTIAL] Father PARENT 08/28/23 (V)

10/23/23 (V) [CONFIDENTIAL] Interpreter PARENT 08/28/23 (V)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

N/A N/A N/A DOE N/A

PARENT EXHIBITS

A. Impartial Hearing Request 6/30/2023 17 pages

B. Pendency Implementation Form 7/10/2023 2 pages

C. FOFD #234911 2/13/2023 27 pages

D. IEP 6/15/2020 28 pages

E. IEP 11/29/2021 26 pages

F. [NAME] Autism Research and Training Academy (“NAME”) Description of Services Undated 3 pages

G. [NAME] Progress Report 11/30/2022 12 pages

H. [NAME] Progress Report 6/10/2023 12 pages

I. [NAME] ABA Provider/ Parent Service Agreement 7/12/2023 1 page

J. Affidavit of [NAME], PhD, MS ED, 8/25/2023 12 pages

LBA,BCBA

N/A N/A N/A IHO N/A

On July 6, 2023, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a (15) year old student attending a private school and the New York City - Department of Education (“DOE”) - District: 25, regarding the student’s special education program. After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on August 28, 2023 and October 23, 2023. A list of the persons who appeared via affidavits and the documents entered into evidence is annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) filed by the student’s Parent’s attorney(s) on or about June 30, 2023 and carried under New York City (“NYC”) Case No. 249738. The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2023-2024 school year. (DPC) At the impartial hearing, the Parent request the following relief: (a) A declaration of rights in favor of the Parents, declaring the NYC-DOE’s conduct to be illegal as alleged herein; and (b) A declaratory judgment in favor of the Parents that the NYC-DOE: (i) has violated the laws as alleged; (ii) failed to provide the student with a FAPE during the 2023-2024 School Year, (iii) subjected the student to blanket policies and predetermination, and (iv) discriminated against the student based upon her disability; and (c) An order that the NYC-DOE must fund through direct/prospective payment the cost of the student’s private program on a 12-month basis for the entirety of the student’s 2023-2024 school year, at a rate not to exceed the reasonable and fair market rate for such a program and services in New York City consisting of (40) hours per week of (1:1) ABA instruction in a center-based ABA program, (20) hours per week of (1:1) after-school ABA services, (4) hours per month of BCBA supervision, transportation to and from the center-based program, 4x45 (1:1) speech language therapy, 1x45 (3:1) speech language therapy, 4x30 (1:1) occupational therapy; and (d) Compensatory education for the denial of FAPE, which should include any denial of implementation of pendency; and (e) An order that in the event that an LBA(s) are not secured to provide services to the student, the NYC-DOE must fund 1:1 instruction with positive behavioral support and/or 1:1 instruction using the principles of ABA, until such time as the NYC-DOE or parent locates an LBA and/or provider(s) that satisfy the state licensing requirements; and (f) An order that the NYC-DOE should also provide: (i) a Mandarin interpreter at all DOE meetings regarding the child’s educational services and/or needs, including, but not limited to, IEP meetings and meetings that are part of the evaluation process; (ii) translation into Mandarin of any and all notices, meeting invitations, evaluations, safeguards, parent guides, IEPs, progress notes, report cards, and other documents concerning the Student’s educational services on a going-forward basis; (iii) translation into Mandarin of all other DOE documents as otherwise required by law to ensure due process to the Parents; and (iv) funding for an agency to provide up to 12 hours per month of interpretation services to the Parents that can be used via phone with a person who can review scanned documents as well as meet in-person if necessary, to enable the Parents to communicate with the student’s compensatory education provider, teachers, administrators and other providers; (g) Any other costs related to the relief requested herein; and (h) Attorney’s costs and fees; and (i) All other relief that is appropriate as of the time that the IHO is ready to issue a final order, but which may not have been known to the Parents as of the time this hearing was filed.

On July 10, 2023 the parties executed a “pendency agreement” recognizing the Findings of Facts & Decision (“FOFD”) in NYC Case No. 234911 dated February 13, 2023, as the student’s “pendency” program and placement in this case. (P-B & P-C) The agreement is retroactive to the date the Parent filed the DPC on June 30, 2023 and requires the NYC-DOE to pay the costs of all of the student’ mandated services pursuant to the FOFD, including those missed for the NYC-DOE’s failure to timely implement “pendency.”

FINAL ORDER

The Parents’ DPC having been duly filed pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973; and Notice having been duly given to the DOE; and The matter having come on for a final “impartial hearing” before this IHO on October 23, 2023, and this decision being made on the basis of the submission of documentary evidence and testamentary evidence pursuant to 8 NYCRR 200.5[j][3][xii][f], (P-J), which the NYC-DOE did not oppose and declined to cross examine (T-19), and the Parent’s submission of documentary evidence which the DOE did not oppose (Id.); and Whereas the Parent appeared with her attorney(s), [CONFIDENTIAL] and the NYC-DOE by its representative [CONFIDENTIAL] assigned; and Whereas the parties thus to agreeing to an “inquest” on the Parent’s request for relief and a proposed “Final Order” being based upon the Parent’s uncontroverted testamentary and documentary submissions (Id.); and

DOE DEFAULT

Whereas under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016); and Whereas the DOE having failed to submit any testamentary evidence, or documentary evidence, or even make an opening or closing statement to meet it burden under the law (Id.); and

APPROPRIATENESS OF THE RELIEF SOUGHT

Whereas to demonstrate the appropriateness of the relief sought, the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit the student to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65); and Whereas in the absence of evidence demonstrating that the Parent has failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of the relief sought by the Parent, including but not limited to tuition reimbursement. (SRO No. 04-049); and Whereas there being nothing in the record that sustains a finding that the Parent has not cooperated with the CSE; and Whereas the Parent’s witnesses credibly testified on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f], (P-J), and the NYC-DOE having no objection to that testimony and declined to cross examine the affiant (T-19); and Whereas the Parent’s testamentary documentary evidence is completely uncontroverted and need not be repeated in its entirety herein as it is annexed hereto for the benefit of the reader; and Whereas the DOE has failed to meet its burden under the law and the Parent’s submission clearly reflects that the relief sought meets the unique needs of the student, supported by such services as are necessary that permits the student to benefit from that relief. (Gagliardo & Frank G., supra); and Whereas there is no evidence that the Parent has not cooperated with the DOE; and Whereas the parties’ oral arguments, discussions, concessions, testamentary and documentary evidence and this order having been recorded and annexed hereto; and Whereas in sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

9. I am the founder, president, and Chief Executive Clinical Director of [NAME] Services Inc. ("[NAME]"), an agency specializing in providing ABA consultations, evaluations, and behavior analytic support services to children with autism spectrum disorders ("ASD'') and other developmental disabilities. The agency also performs LBA/BCBA supervision and provides parent training services.

11. I am also the founder of [NAME]. [NAME] is a center-based ABA program that implements a one-to-one student -teacher model. The [NAME] model is a full-day program which begins in the student's home in the morning, teaching them to complete activities of daily living (ADL) before leaving the house for the center with their therapist. At the center, students complete their individualized programs and return home. Additionally, some students may receive additional hours at home that allow for a continuation of the program after school or on weekends to reinforce skills learned and work on evening/bedtime routines.

20. I have conducted numerous Functional Behavioral Assessments ("FBAs") and developed scores of Behavioral Intervention Plans ("BIPs"), many of which were funded by the DOE through hearings or settlements.

21. I have testified at impartial hearings in the past and have been deemed an expert witness in behavior analysis.

22. I am very familiar with [NAME] ("INITIALS"), D.O.B. [DATE].

23. I first met her in the September of 2019, before the onset of Covid-19.

31. I assessed her at home and observed her at school.

32. I understand my report is being submitted as evidence in this hearing.

33. [INITIALS] was severely delayed in many areas.

42. We started working with [INITIALS] in September 2021 after her parents won an impartial hearing against the DOE concerning prior school years.

44. [INITIALS]'s regression during COVID-19 was devastating.

57. During the school year, 2021-2022, [INITIALS] had 2 providers that provided services to her in the school setting due to the nature of her behaviors.

59. I testified for [INITIALS] at her prior hearing for the 2021-2022 school year that she required a 1:1 ABA program.

63. In July 2022, the hearing officer in the prior case issued a decision finding that [INITIALS] required a wrap around 1:1 ABA program for 40 hours at school and 20 hours after-school, as well as BCBA supervision, speech therapy, and occupational therapy.

64. Since September 2022, X. C. has been receiving this wrap around program.

67. Over the course of the last year, we were able to fade 2:1 services and now 2 providers provide 1:1 services to [INITIALS]. One provider within the [NAME]/home setting and one at the home setting on the weekends.

68. They are highly experienced RBTs with extensive experience working with students with autism.

72. One of her providers arrives at [INITIALS]'s home and begins the day with the morning activity schedule, teaching [INITIALS] how to get ready and do her morning routine independently. She is picked up at home by a [NAME] driver, then taken to [NAME], along with one of her providers. During the car ride, she works on skills such as wearing a seatbelt and not engaging in behaviors such as tapping, touching the driver, the provider, areas of the car.

73. She is then driven home from 5:00PM-6:00PM with one of her providers.

74. She receives home 1:1 ABA services on the weekends. This year, we have been providing 4 hours of 1:1 ABA services on the weekend. This school year, we will be increasing to 4-5 hours per day on the weekends.

75. [INITIALS] has made substantial progress since transitioning to [NAME].

84. We have just purchased an AAC device for [INITIALS] and the speech provider at [NAME] is programming an application for [INITIALS] to use for communication.

89. While significant progress has been made with many behaviors, various behaviors are still being addressed [INITIALS] has days where she engages in noncompliance, throws herself onto the floor, plays with her saliva, and has had a few instances of attempting to flip the table. Additionally, in instances where [INITIALS] is ''upset'' either due to an unknown trigger or because she is not gaining access to something that she wants there have been instances of aggression (e.g., scratching/biting) which are being addressed. Also, the main behavior that is being targeted now is decreasing the frequency of forcefully urinating on herself [INITIALS] will stop what she is doing so she can pee on herself numerous times throughout the day.

90. A more detailed report of her progress is being submitted as an exhibit in this hearing.

92. It is my recommendation that [INITIALS] should receive her current programming of 1:1 ABA program for 40 hours at school and 20 hours afterschool, as well as BCBA supervision, speech therapy, and occupational therapy. (P-J) ; and Whereas the NYC-DOE’s default constitutes a concession of a denial of FAPE and the completely uncontroverted testamentary and documentary evidence submitted by the Parent and annexed hereto supports the Parent’s request for relief; Now, therefore, it is hereby

ORDERED UPON THE NYC-DOE’S DEFAULT AND AFTER INQUEST that the

NYC-DOE denied the student a FAPE for the student’s 2023-2024 school year, that upon the DOE’s receipt of reasonably satisfactory proof of said services having been rendered, the NYC-DOE shall either reimburse the Parent and/or directly pay the cost of the continuation of the student’s program, placement and services previous as order in the FOFD issued on February 13, 2023 in NYC Case No. 234911, a copy of which shall accompany this decision and order (T-21 & P-C); and it is further

ORDERED UPON THE NYC-DOE’S DEFAULT AND AFTER INQUEST that the

NYC-DOE shall conduct evaluations of the student in all areas of her suspected disabilities, not identified above and not evaluated within the last two years, for her 2024-20225 school year; and it is further

ORDERED UPON THE NYC-DOE’S DEFAULT AND AFTER INQUEST that the

CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related information and produce a new IEP for the student’s 2024-2025 school year; and it is further

ORDERED UPON THE NYC-DOE’S DEFAULT AND AFTER INQUEST that any

of the other relief sought by the Parent not addressed by this “Final Order” is found to be either resolved by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: November 21, 2023

New York, New York Edgar De Leon - IHO

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. (Rev. 07/09/20)