Impartial Hearing Decision

CASE NUMBER: 602012 - NYC: 249876

FINDINGS OF FACT AND DECISION

Student’s Name ^[1]: [REDACTED] (“Student”)

0F

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED] (“Parents”)

Request Date/Date Complaint Filed: July 3, 2022

Date(s) of Hearing: August 10, 2023, September 20, 2023, October 4, 2023 and October 16, 2023

Actual Record Closed Date: November 8, 2023

Date of Decision: November 21, 2023

Date of Distribution if Different than Decision Date:

Hearing Officer: Lisa S. Rusk, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 10, 2023

For the Student:

[REDACTED] Attorney

For the Department of Education:

[REDACTED] District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 20, 2023

For the Student:

[REDACTED] Attorney

For the Department of Education:

[REDACTED] District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 4, 2023

For the Student:

[REDACTED] Attorney

[REDACTED] Parent

[REDACTED] Neuropsychologist

[REDACTED] BCBA

For the Department of Education:

[REDACTED] Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 16, 2023

For the Student:

[REDACTED] Attorney

[REDACTED] Parent

[REDACTED] Registered Behavior Technician

For the Department of Education:

[REDACTED] Attorney

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC") filed on July 3, 2023. (Ex. P-A) 2. This IHO received notice of 1F appointment on July 6, 2023. A prehearing conference was held on August 3, 2023. An amended DPC, dated August ^[2], 2023 was accepted on August 8, 2023 (Ex. P-B). The record does not contain any evidence of a response by [REDACTED] (hereinafter referred to as “the District”) to either DPC. A pendency hearing was held at the request of the Parents on August 10, 2023, and a pendency order was issued. A prehearing conference on the amended DPC was held on September 8, 2023. Hearing dates were held on September 20, 2023, October 4, 2023, and October 16, 2024. All appearances were via video/telephone conference.

On August 10, 2023, the Parents entered into evidence exhibits A-C.^[3] The IHO entered 2F

Exhibits I and II into evidence. On September 20, 2023, the Parents entered Exhibits D-K into evidence. On October 4, 2023, the IHO corrected the lettering of Parent Exhibits C and F (T:61-62). The Parents presented five witnesses, including the Parent. The District did not present any evidence or testimony (T:42).^[4] Both parties submitted post-hearing closing briefs on 3F

November 8, 2023, after a one-day extension requested by the Parents. The record was closed on November 8, 2023.

JURISDICTION

The due process hearing was held, and a decision in this matter 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., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq. The Parents also raised claims under Section 504 of the Rehabilitation Act of 1973 and 42 USC Section 1983.^[5] 4F

BACKGROUND

The Student is a [REDACTED] year old boy classified as a student with Autism by the District’s Committee on Special Education (“CSE”). The IEP team met on or about April 28, 2023 and developed an IEP for the 2023-24 school year (Ex. P-B-15). The Parent and the Student’s Board Certified Behavior Analyst (“BCBA”) attended the meeting. The team rejected the Parents’ request for 1:1 applied behavior analysis (“ABA”) therapy and recommended a special class in a District specialized school (Ex. P-B-16).

ISSUES

The Parents allege that the District failed to offer the Student a FAPE for the 2023-24 school year by failing to recommend continuation of the Student’s 1:1 ABA therapy both during and after school. The District did not present a case in defense of its recommendations (T:42) The District made a brief opening statement that “the Parent may not be able to maintain their burden under Prong II of the unilateral placement… to be determined based on what’s revealed on cross-examination through the evidence.” (T:45). The Parents argue that the Student requires the continuation of the individualized instruction he is receiving in his current pendency program which provides 1:1 ABA services to teach him the prerequisite skills he needs to succeed in a less restrictive environment (T:49-50). The Parents seek the following relief:

30 hours per week of BCBA supervised 1:1 ABA services provided by a RBT at school or a center-based setting with services over breaks and vacation by a licensed provider of Parent’s choosing at market rates.

Extended School year with services to continue over breaks and vacations.

15 hours per week of 1:1 ABA services after school.

2 hours per week of BCBA supervision, 1 hour outside and 1 hour inside school.

1 hour per week of parent counseling and training (“PCT”).

Two hours per week of a family team meeting.^[6] 5F

BCBA program development for one hour weekly

Occupational Therapy (“OT”) – 4 times per week for 45 minutes individually.

Physical Therapy (“PT”) – 2 times per week for 30 minutes individually.

Speech Language Therapy – 5 times per week for 45 minutes individually.

Speech Language Therapy – 2 times per week for 45 minutes in a group.

Transportation from closest safe curb location and 1:1 Paraprofessional and reimbursement or direct payment for any transportation expenses incurred by the Parents.

Assistive technology hardware and software.

Compensatory pendency services.^[7] 6F

The District argues in its closing brief that the matter is not ripe for a compensatory relief award for the 2023-24 school year in that there is no evidence that the Student has missed any services and such request is not supported by the record. The District argues further that the IHO does not have the authority to order IEP changes for the 2023-24 school year and that the evidence does not support the Student’s need for the particular recommendations.

The Parents argue in their closing brief that the Student continues to require1:1 ABA inschool and after school. The Parents also argue that the District violated Section 504. They argue finally that there is no equitable bar to the requested relief.

FINDINGS OF FACT

The Student currently attends [REDACTED] in a 6:1:1 classroom (T:111). His father described him as a happy child, delayed in a lot of things, but smart (T:208). In addition to his 1:1 ABA programming, he receives OT, PT, speech and counseling at school (T:224).

The Student was evaluated at [REDACTED] in January of 2019. Per the evaluation report, the Student attended preschool in a small classroom setting with speech language therapy, PT, OT, ABA services, counseling and special education itinerant teacher (SEIT) services. He attended kindergarten, first and second grades at [REDACTED] . He began in a 12:1:1 classroom with a full-time paraprofessional, OT, PT, counseling and speech. He made minimal progress and was transitioned to a 6:1:1 classroom during first grade. He transitioned to [REDACTED] classroom during second grade and a 1:1 paraprofessional was recommended. He also began working with an in-home ABA therapist. Behavioral concerns increased in third, fourth and fifth grades. He began sixth grade in a[REDACTED] 8:1:2 classroom and continued to receive 10 hours of in-home ABA therapy (Ex. P-F-2-3).

The evaluation team conducted a record review, clinical interview, behavior rating scales and checklists and selected cognitive, speech and motor testing (Ex. P-F-4). The team diagnosed him with Autism Spectrum Disorder (“ASD”), Intellectual Disability, Severe and Attention-Deficit/Hyperactivity Disorder, Combined Presentation (Ex. P-F-11). The report recommended that he be educated in a specialized school setting designed specifically to educate students with ASD and intellectual disabilities. He required a highly structured program based on ABA. They also recommended home-based ABA supports to address behavior, safety, social difficulties and daily living skills (Ex. P-F-12-13). The report also recommended he receive speech, an ACC device and OT (Ex. P-F-13-14).

The Student underwent a speech and language evaluation in April of 2021. The evaluator found he had significant delays in receptive language skills, expressive language skills, pragmatic language and reading and writing skills (Ex. P-D-9). The evaluator recommended speech-language therapy five times per week for 60 minutes per session on a 12 month basis (Ex. P-D-10).

In November of 2021, the Student’s assistive technology needs were evaluated. The evaluator recommended a TalkPad 8, equipped with a carry case, keyguard and shoulder strap and well as Grid as a portable touchscreen device to be available to him on a full-time 12-month basis. She also recommended training for the Student and his team (Ex. P-E-13).

His most recent ABA progress report from September of 2023, reflects that the Student when provided with baseline assessments was not able to independently complete simple academic tasks, consistently verbalize what he wants, utilize coping skills or reduce incidents of aggression, destruction and self-injurious behaviors (Ex. P-K-11). As of September 2023, however, he continued to make significant progress in regard to how he responds to his daily school routine and functional skills at home. He continues to work on independently working on completing or responding to tasks, and his behaviors have improved. He is able to get through his school day with close monitoring and faded prompting to support his focus and awareness of his environment (Ex. P-K-12).

[REDACTED] , a BCBA, New York State licenses behavior analyst and New York State certified teacher (hereinafter referred to as “the BCBA”) testified that she is an assistant supervisor and direct ABA therapist at [REDACTED] (hereinafter referred to as “the Agency”) (T:102-103). She testified that she manages the Student’s case and supervises his registered behavior technician (“the RBT”) (T:103). Academically, the Student is currently working on sight words, high frequency words and functional words, developing his reading skills at a prekindergarten level, counting and one-to-one correspondence and matching (T:104-05).

The BCBA described his communication as severely delayed, and he is very difficult to understand, even to those familiar with him (T:105). The Student has displayed a lot of maladaptive behaviors, including aggression and throwing himself on the floor and crying (T:106). His behaviors require a lot of monitoring and redirection (T:107). A lot of this has significantly decreased but is still present (T:107-08). He needs a lot of prompts to get dressed, put his things away and clean up after eating (T:108). At home he still has some difficulty going to the bathroom on his own, recently he has started squatting in corners of the house. He needs reminders regarding toileting and close monitoring (T:109).

The BCBA testified that the Student is currently receiving full day ABA at school and 15 hours per week of ABA at home from the Agency, as well as parent training one time per week for one hour, BCBA supervision two hours per week and family team meetings (T:110-11). The BCBA communicates with the classroom teacher regarding behavior targets and goals (T:111-12). She testified that she drafted the Student’s behavior strategies and shared with the RBT, parents and teacher (Ex. P-I, T:112, 115). She stated that aggression occurs more at home on the weekends or evenings (T:114-15). The BCBA also testified to a functional analysis screening tool (“FAST”) to assess the function of behaviors (Ex. P-J, T:116).

The BCBA testified that the RBT works on the goals in the progress reports during the school day. His attending is his main goal (T:117). The goals are developed based upon the Agency’s own assessment and are set forth in the progress report (T:118, Ex. P-K). Data is collected to measure progress. The BCBA testified that she has reviewed the data and is able to see where he has made progress (T:120).

She testified that the 1:1 ABA at home focuses on his afterschool routine and engagement, such as reviewing pre-academic skills, daily living skills, interacting with family members and implementing his activity schedule (T:121). His home progress is measured through observation and data collection (T:123). His home goals are separate goals that cannot be done at school. He follows a very specific routine at school. In addition, his behaviors at home look different and are more intense (T:124). She clarified on cross-examination that there is some overlap between home and school goals (T:138, 140).

The BCBA testified that based upon her experience and observations, he has made significant progress with his ABA program, but he continues to require heavy monitoring and implementation (T:125). The Parent confirmed that he has made progress (T:220-23). The Parent testified that without his ABA therapy, he would probably be in an institution (T:213). The BCBA highly recommended that he continue with his 1:1 ABA therapist full day at school or that he attend a full-day ABA center-based program, as well as receive ABA services at home so that the Parents can continue to work on the strategies at home. He should also continue to receive related services and parent training and supervision (T:126).

She recommended that his ABA program continue on a 12-month 52-week period^[8] due 7F to the intensity of the aggression he exhibits, to make sure that he is safe, to make sure that he is learning to adapt to his environment, to reduce some of the intense behaviors and prevent any regression that seems to occur when ABA therapy is not implemented (T:127). She testified that if school is not in session, he should be receiving his school-based ABA at home, in addition to the 15 hours per week he already receives at home (T:130). The BCBA testified that he may have behavioral issues after a weekend or even after an incident of aggression in the evening on any day of the week. On some Mondays, he is easy to redirect and on others he might be upset the whole day (T:151-52). Regression is not documented in the reports in evidence (T:153, Ex. P-J). The Parent has reported behaviors at home (T:154). He may require more prompting after a weekend (T:199). His behaviors, however, may be a week-long issue even with the home program or behaviors may be evident on a Friday, as opposed to a Monday (T:200,201).

[REDACTED] (hereinafter referred to as “the RBT”) testified that he is certified as an RBT and is currently in a master’s program to receive his BCBA. He is employed by the Agency providing one-to-one ABA services to the Student (T:171-73). He provides 30 hours per week during the school day and 15 hours per week at home (T:173). He described the Student as quite intelligent, but presenting with deficits socially, emotionally and academically (T:174). His school day entails following the schedule provided by his teacher. He arrives in the morning, comes off the bus with his paraprofessional. He eats his breakfast, clears up his area and then completes tasks his teachers design for him, which usually includes morning meeting (T:174-75). He is able to do scheduling and follows the instructions and transitions himself from one classroom to another (T:175).

As the Student navigates his schedule, the RBT steps in or refocuses him when behaviors arise or to keep him on track or to give him a necessary break. He also assists him in communicating to his school staff (T:175-76). He implements the programs outlined by the BCBA, including various cognitive functional skills, speech-language and communication skills, social-emotional functioning and motor skills. These programs are shared with the school staff so they understand what the RBT is attempting to accomplish so everyone can better assist the Student (T:176). He collects data through an online program and through notes shared with the BCBA (T:177).

The RBT testified that the home program is essentially a continuation of the skills that he needs to be successful both at his home and his school. He is provided a structured schedule and structured steps to be able to transition from the bus to home as independently as possible, communicate with his family members and engage in tasks, some of which mirror what he is doing at school (T:177-78). His home goals include requesting required items, completing sentences to describe an image and working in a group setting without maladaptive behaviors (T:178). They also include following instructions from the RBT or school staff, without significant prompting or without too much delay (T:179).

The RBT testified that on days that school is not in session, the Student received three to five hours of home service to ensure continuity (T:181). When the Student does not receive continuity of ABA therapy or there is a significant break in therapy, he observes regression in his skills and a reemergence of some of the prior maladaptive behaviors (T:182). He testified that the Student is making progress during the course of the school day (T:182). His feces smearing has been extinguished, his dropping to the floor and throwing food has reduced significantly ^[9], 8F and he has become a more effective communicator (T:183, 186-87). He does continue to engage in excessive silliness, may spit his food on his plate or display mild aggression (T:190-91).At home, he is making progress in these same areas, and he is able to function more independently and communicate at home (T:183-84). He testified that if the home program is not continued, the Student would likely regress in his skills and maladaptive behaviors would reemerge (T:184). His behaviors are still so extreme and his deficits are still so significant for a 16 year old that he needs continued support that cannot be addressed in just the six hour school day (T:185). The home program is not merely for generalization of skills, but to actually continue teaching him skills independently without significant prompts (T:193). He testified that he believed that the Student would not be able to make progress or maintain skills without the home program (T:194). Without the home program, his maladaptive behaviors may become more intense, and his needs would not be adequately addressed (T:195).

[REDACTED] (hereinafter referred to as “the neuropsychologist”) testified that he is a New York State licensed psychologist and New York State certified school psychologist and holds post-doctoral certificates in clinical neuropsychology and ABA. He has been in private practice since 2002 (T:66-67). He testified that he has reviewed the Student’s reports, but has not met him personally. Based upon his review of the 2019 neuropsychological report he described the Student as having profound needs. In addition to autism, he has significant cognitive impairments, a high level of self-stimulatory and self-directed behavior (including feces smearing), verbal and behavioral aggression, lacks a lot of independent skills and has difficulty with impulse control and management of his own arousal. He also has severe delays in communication and language processing (T:69, see Ex. P-F).

He testified that based upon current reports, the Student is still demonstrating severe behaviors and challenges with impulse control that can lead to aggressive behaviors (T:73, referring to Ex. P-K). Based upon his review of reports, he recommended continuation of intensive 1:1 ABA therapy while remaining in a [REDACTED] school to provide peer socialization. He testified that he is still showing a lot of signs of throwing food on the floor, smearing his feces and severe difficulties with impulse control. His behaviors are dangerous and limit him socially (T:73-74).

The neuropsychologist testified on cross-examination that based upon his review of the reports, the Student is still showing very significant target behaviors, such as throwing food on the floor 10, smearing his feces ^[11], not being able to urinate or defecate independently and not

9F 10F being able to dress independently, including not being able to put his shoes on^[12] (T:78-79). He 11F admitted that he did not speak to any of the Student’s ABA providers or the neuropsychologist who evaluated the Student in 2019 prior to testifying (T:79). He clarified that he was recommending full-time ABA support throughout the school day (T:80). He testified that he should continue with the same number of hours in school and after-school, but was confused as to what the actual number of hours is, but later stated 30 hours in school and^[10] hours at home or maybe increasing to 15 hours (T:82,83).

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a 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 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 (2017). 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).

In New York State, 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 or payment for services 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)). (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). It is well settled that an appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).(Application of a Child with a Disability, SRO Appeal No. 22-154).

As to home-based services, the SRO has held citing to federal court decisions that a school district is not required to provide a home-based program to generalize skills outside of school when a student is making progress in the classroom (See Application of the New York City Dept. of Educ., SRO Appeal No. 22-176).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]; (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). The purpose of an award of compensatory education is to “make up for” a denial of a FAPE and place the student in the position he or she would have been had the IDEA not been violated (see E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 & n.12 [2d Cir. 2014]; P. v. Newington Board of Educ., 546 F.3d 111,123 [2nd Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123).

ANALYSIS

As stated above, the District failed to present any evidence or testimony that it recommended a FAPE for this Student for the 2023-24 school year. There is not even an IEP in evidence to review. There is no reason, therefore, to consider all of the allegations set forth in the amended DPC regarding alleged procedural and substantive violations related to the 2023-24 IEP. It is uncontroverted that the District has denied the Student a FAPE for the 2023-

24 school year.

The Parents urge the continuation of the ABA program the Student has been receiving during pendency and for at least the last school year. IHOs have been ordering a 1:1 ABA school and home program since at least 2019 (Ex. P-B-8). The District argues that a change to his IEP would be a prospective placement and circumvent the CSE process. However, this due process hearing relates to the appropriateness of the 2023-24 school year. By failing to defend the current school year’s program and placement in any way, shape or form, the District has failed in its obligation to develop and implement an appropriate program for this Student. Prospective placement is not an appropriate remedy when the IEP for the school year has not yet been developed (see Eley v. Dist. Of Columbia, 2012 WL 3656471 *11 [D.DD.C. August 24, 2012]). That is not the case here. The 2023-24 recommendations are in actual dispute.

Every witness who testified and the only comprehensive evaluation in evidence supported a 1:1 ABA program as a necessity for the Student, both in school and at home. All witnesses testified that his current ABA program remains appropriate for the 2023-24 school year. I see no basis to disrupt the current ABA program and number of hours recommended both inside and outside of school. His home program is coordinated with his school program and provides more than just generalization of skills. I will note that I seriously considered a recommendation to a center-based ABA program, however, there was no testimony regarding the availability of such a program, and the Student has made noted progress in his current placement and ABA program.

With regard to the length of the 12-month program, however, there is no credible evidence in the record that the Student requires a “52-week” school year or that the Student experienced actual regression during periods when school was not in session to the degree that he requires special education 52 weeks per year. His school program is 42 weeks (36-week school year and 6 week summer program). The BCBA recommended a 52-week program in part because of the intensity of the aggression he exhibits and to reduce some of the intense behaviors (T:127). However, witnesses testified that he has improved significantly regarding aggressive behaviors. He only has one goal related to maladaptive behaviors, and he currently has mastered/is on maintenance with that goal. There is no mention of aggressive behaviors or regression in the report (Ex. P-K-7). The testimony indicated that he may have some behavioral issues after a weekend, but he also may have behavioral issues on any day during the week, regardless of a break in service. In addition, the Student does not receive his related services on a 52-week basis, and there is no allegation that he regresses in any related services area after a break. He, therefore, is entitled to a 42-week school year for both ABA and related services. 13

12F

There is no evidence in the record of any missed services during the 2023-24 school year, and no basis for an award of compensatory education or services. There is also no evidence that the Parents have expended any sums for transportation, and an award of reimbursement or direct payment is not warranted.

The Parents assert that the District has discriminated against the Student based upon his disability. The Parents argue that the District violated Section 504 of the Rehabilitation Act by by subjecting him to blanket policies thereby failing to ensure that he has equal access to his education. With regard to illegal policies, the record does not contain any evidence of illegal policies of the District. The Parents have failed to meet their burden that the District has either acted in “bad faith or with gross misjudgment.” (Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp2d 282 (SDNY 2010). I find that the record does not support a finding that the District discriminated against the Student based upon his disability.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby: ORDERED that the District within 14 days of the date of this decision shall convene the CSE to develop an IEP that recommends the following services during the balance of the 2023-24 12-month 42 week school year:

1. 30 hours per week of BCBA supervised 1:1 ABA services provided by an RBT at the Student’s District 75 school by a licensed provider of Parents’ choosing at market rates.

2. 15 hours per week of 1:1 ABA services after school.

3. 2 hours per week of BCBA supervision, 1 hour afterschool and 1 hour inside school.

4. 1 hour per week of parent counseling and training (“PCT”).

5. BCBA program development for one hour weekly.

6. Occupational Therapy (“OT”) – 4 times per week for 45 minutes individually.

7. Physical Therapy (“PT”) – 2 times per week for 30 minutes individually.

8. Speech Language Therapy – 5 times per week for 45 minutes individually.

9. Speech Language Therapy – 2 times per week for 45 minutes in a group.

10. Transportation from closest safe curb location with a 1:1 paraprofessional.

11. A TalkPad 8 by ThinkSmartBox equipped with a carry case, keyguard and shoulder strap and Grid as a portable touchscreen device.

SO ORDERED.

DATED: November 21, 2023

Lisa S. Rusk

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.

APPENDIX A – REDACTION IDENTIFICATION PAGE

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

IHO EXHIBITS

I. Emails from IHO 8/3 and 8/10/23 2 pages

II. Email from IHO 8/9/23 1 page

PARENT’S EXHIBITS

A. Exhibit Description Date Pages Due Process Complaint 7/2/2023 24 pages

B. Amended Due Process Complaint 8/2/2023 23 pages

C. FOFD # 228740 2/1/2023 23 pages

D. Speech and Language Evaluation 4/13/2021 12 pages

E. Assistive Technology Evaluation 11/2/2021 15 pages

F. [REDACTED] Autism and Neuropsychological Evaluation 1/10/2019 1/8/2019 19 pages

G. [REDACTED] SETSS-ABA Progress Report 6//15/2023 12 pages

H. Order on Pendency 8/20/2023 8 pages

I. [REDACTED] SETSS-ABA Behavior Strategies 5/1/2023 6 pages

J. Functional Analysis Screening Tool 5/26/2023 1 page

K. [REDACTED] SETSS-ABA Progress Report 9/11/2023 13 pages

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

[4] The District did not present any evidence or testimony to defend its program for the 2022-23 school year either (Ex. P-C-12).

[5] This IHO has no jurisdiction under Section 1983.

[6] Parent’s counsel made this request during the opening statement, but it was not requested in the amended DPC or the Parent’s closing brief (T:50). In addition, there was no testimony regarding the purpose, length or duration of family team meetings, separate and apart from PCT.

[7] Parent’s counsel stated that the Student was receiving his 1:1 ABA services, and that the Parent would testify regarding the Student’s receipt of related services (T:52, 136-37).

[8] He does not receive his related services on a 52 week basis.

[9] Over the course of the last school year, these behaviors have been reduced to zero or close to zero (T:189).

[10] Ex. P-K states that he is “able to eat appropriately to his best physical abilities…” There is no mention of throwing food on the floor (Ex. P-K-10; T:85).

[11] Ex. P-K states that the Student “has not engaged in attention-seeking behaviors or urinating on himself or playing with feces.” (Ex. P-K-11; T:113).

[12] He admitted on questioning by the IHO that the Student was showing some mastery of dressing independently, including putting his shoes on (T:85-86).