NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINAL ORDER - DOE DEFAULT & INQUEST - PARENT SUBMISSIONS
| Case Number | 249900 |
|---|---|
| NYS Identifier Number | N/A |
| Student’s Name | [REDACTED] |
| Date of Birth | [REDACTED] |
| District | [REDACTED] |
| Hearing Requested By | Parent |
| Dates(s) of Hearing | 10/30/23 |
| Actual Record Close Date | 11/01/23 |
| Hearing Officer | Edgar De Leon |
NAMES AND TITLES OF PERSONS WHO APPEARED
| Name | Title | For | Date |
|---|---|---|---|
| [REDACTED] | Attorney | DOE | 10/30/23 (V) |
| [REDACTED] | Attorney | PARENT | 10/30/23 (V) |
DOCUMENTATION ENTERED INTO RECORD
DOE EVIDENCE
| Number/Letter | Title | Dated | For | # of Pages |
|---|---|---|---|---|
| N/A | N/A | N/A | DOE | N/A |
PARENT EXHIBITS
| Exhibit | Title | Dated | # of Pages |
|---|---|---|---|
| A | Impartial Hearing Request | 07/01/2023 | 27 |
| B | Ten Day Notice | 06/19/2023 | 25 |
| C | Proof of Service of Ten-Day Notice | 06/19/2023 | 1 |
| D | FOFD in Case # 166370 | 04/14/2023 | 31 |
| E | [REDACTED] New York ABA Progress Report | 03/2023 | 10 |
| F | [REDACTED] New York Services Agreement | 06/28/2023 | 1 |
| G | [REDACTED] New York IEP Meeting Notes | 07/27/2023 | 9 |
| H | [REDACTED] 2022-2023 Occupational Therapy Progress Report June 2023 | 06/2023 | 5 |
| I | [REDACTED] 2022-2023 Physical Therapy Goals and Progress Report June 2023 | 06/2023 | 5 |
| J | [REDACTED] 2022-2023 ABA Progress Report June 2023 | 06/2023 | 7 |
| K | [REDACTED] June 2022-2023 Speech and Language Therapy Progress Report | 06/2023 | 4 |
| L | Amended Due Process Complaint | 08/21/2023 | 28 |
| M | Acceptance of Amended Due Process Complaint | 08/22/2023 | 2 |
| N | [REDACTED] Clinical Services Program Description 2023-2024 | 2023-2024 | 6 |
| O | [REDACTED] Student Schedule 2022-2023 | 07/2023 | 1 |
| P | [REDACTED] 2023-2024 Physical Therapy Goals | 06/2023 | 2 |
| Q | [REDACTED] 2023-2024 Occupational Therapy Goals | 06/2023 | 3 |
| R | [REDACTED] Speech and Language Therapy Goals 2023-2024 | 07/2023 | 4 |
| S | [REDACTED] 2023-2024 ABA Goals | 07/2023 | 4 |
| T | Resume and License of [REDACTED], PT | Undated, 2018 | 4 |
| U | Resume and License of [REDACTED], OT | Undated, 2022 | 3 |
| V | Resume and License of [REDACTED], Ph.D., BCBA-D | Undated, 2023 | 5 |
| W | Resume and License of [REDACTED], TSSLD | Undated, 2022 | 3 |
| X | Resume of [REDACTED], MA, BCBA, LBA | Undated | 1 |
| Y | [REDACTED] Services Agreement 2023 | 05/16/2023 | 1 |
| Z | [REDACTED] Staff Resumes | Undated | 7 |
| AA | Affidavit of [REDACTED], PsyD, BCBA, LBA | 10/23/2023 | 16 |
| BB | Affidavit of [REDACTED], M.S. BCBA LBA- NY | 10/26/2023 | 16 |
| CC | Affidavit of [REDACTED] | 10/25/2023 | 9 |
| DD | Pendency Implementation Form | 10/25/2023 | 4 |
IHO EVIDENCE
| Number/Letter | Title | Dated | For | # of Pages |
|---|---|---|---|---|
| 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 [REDACTED] year old student attending a private school and the New York City - Department of Education (“DOE”) - District: [REDACTED], 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 October 30, 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), [REDACTED] on or about July 1, 2023, and carried under New York City (“NYC”) Case No. 249900. The DPC was amended on August 21, 2023. The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2022-2023 and 2023-2024 school years. At the impartial hearing, the Parent request the following relief:
(a) A finding that the NYC-DOE denied the student a FAPE for the school years at issue; and
(b) An order that the NYC-DOE provide and fund the student’s pendency services; and
(c) An order that the NYC-DOE should reimburse the Parent for the iPad she purchased up to $1500 and provide a new iPad for the student to use in school for communication; and
(d) An order that the NYC-DOE fund all of the services that the IHO just ordered were appropriate for the 2022-2023 school year, for the 2023-2024 school year; and
(e) An order that all of the student’s services except for busing be delivered by private providers selected by the Parents at enhanced rates, to be paid for by the NYC-DOE; and
(f) An order that the NYC-DOE reimburse the Parent for any out-of-pocket costs she has expended over the school years at issue; and
(g) An order that the student receive compensatory ABA, parent training, SLT, OT, and PT make-up services to be paid for by the NYC-DOE for its failure to implement pendency for the student and denial of FAPE; and
(h) An order that the NYC-DOE provide direct funding to an appropriate agency of the Parent’s choice that has in-person and phone translators who speak Cantonese to enable the Parent to communicate with the NYC-DOE, the program, any of the child’s teachers or DOE-funded related service providers and receive correspondences in the Parent’s native language.
On October 25, 2023 the parties executed a “Pendency Agreement” that recognized and implemented the student’s “pendency” program and placement based upon the “Findings of Facts & Decision” (“FOFD”) in New York City Case No. 166370, April 14, 2023.
The parties requested that a decision in this case be made based upon the Parent’s testamentary and documentary submissions. (T-14-5)
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 30, 2023, and this decision being made on the basis of the submission of testamentary evidence pursuant to 8 NYCRR 200.5[j][3][xii][f] (P-AA, P-BB & P-CC), which the DOE did cross examine but did not oppose that Parent’s documentary evidence (T-8-15); and
Whereas the Parent appeared via her attorney(s), [REDACTED], attorney [REDACTED] assigned and the DOE by its representative, [REDACTED]; and
DOE DEFAULT
Whereas the DOE defaulted on its statutory obligations at the hearing and an “inquest” on the Parent’s request for relief was held and a proposed “Final Order” being based upon the Parent’s testamentary and documentary submissions (Id.); and
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 or documentary evidence to meet it burden under the law (Id.); and
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 has submitted the testimony of (3) witnesses on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f], (P-AA, P-BB & P-CC), which the NYC-DOE declined to oppose or cross examine (T-Id.); and
Whereas the Parent’s testamentary and documentary submissions are uncontroverted and need not be repeated in their entirety herein as they are 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
GROSS VIOLATION OF FAPE
Whereas the Parent has submitted in evidence, completely uncontroverted evaluative evidence and uncontroverted testamentary and documentary evidence which supports the Parent’s request for compensatory services in this case (Supra); and
Whereas the DOE defaulted on its statutory obligations, and said default constitutes a tacit concession that the student was denied a FAPE for the 2022-2023 and 2023-2024 school years (Supra); and
Whereas a gross violation of the IDEA may result from the denial of, or exclusion from, educational services for a substantial period of time. (See SRO No. 04-074, citing Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988) and SRO No. 02-047); and
Whereas in Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” (See SRO No. 02-033 citing Burr “…after a severely disabled student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years.”; and
Whereas in the instant case, the denial of FAPE consist of the 2022-2023 and 2023-2024 school years; and
Whereas I find that the DOE’s default constitutes a concession of a “gross violation of FAPE and the uncontroverted documentary evidence submitted by the Parent and annexed hereto supports the Parent’s request for relief as detailed below; and
COMPENSATORY SERVICES
Whereas there is a request for compensatory educational services in this case and an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]); and
Whereas pertinent findings to enable an IHO to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student’s current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]); and
Whereas the Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept. 13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt (“Nesbitt II”), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008]); and
Whereas the record in this case is completely uncontroverted by the DOE and supports a finding that the Parent is entitled to the relief sought as indicated below (supra) and it is unfortunate that the agency forced the Parent in this case to bring the matter to a hearing, when it offered no evidence that it provided the student with a FAPE and then did not challenge the Parents’ assertion regarding the appropriateness of the relief sought; and
Whereas the DOE did not initiate this impartial hearing (DPC); and
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 consisting solely of the Parent’s uncontroverted testamentary and documentary submissions that sustains a finding that the Parents have not cooperated with the CSE; and
Whereas the DOE having exercised its right to contest the Parent’s testamentary and documentary evidence (Supra); and
Whereas the Parent’s testamentary and documentary submissions are completely and unequivocally uncontroverted and need not be repeated herein in their entirety as they are annexed hereto for the benefit of the reader; and
Whereas the DOE’s default constitutes a denial of FAPE for the student’s 2022-2023 and 2023-2024 school years; and
Whereas in sum, substance and relevant part, the testimony and documentary evidence on behalf of the Parent is as follows:
The first witness for the Parent is a psychologist who gave her testimony of direct via affidavit. (P-AA) The DOE did not object to her testimony and declined to cross examine her. (T-14-5)
6. I have worked with autistic children for over 20 years. As a BCBA, I perform assessments, write programs to teach new skills, create behavior plans, perform ongoing observations, provide support and training for staff, and provide direct provision and supervision of ABA therapy.
8. [REDACTED] is a provider of ABA services, as well as other services, in New York.
14. I first met [REDACTED] toward the end of the 2014-2015 school year, when I began providing BCBA Supervision as a private provider. [REDACTED] later became a client of [REDACTED] (formerly, [REDACTED] of New York) in February 2016.
17. I currently supervise the two providers who provide approximately 8.5 hours per week of 1:1 ABA services to [REDACTED] at his home. During most of the 20-21, 21-22 and 22-23 School Year, [REDACTED] had two therapists at any given time that provided his home ABA therapy, either in person or remotely. [REDACTED] also provided, and currently provides, 2 hours a week of BCBA supervision, parent training and translation services. The resumes of the staff that are assigned to [REDACTED]’s case are also included in Exhibit AA.
19. [REDACTED] has a diagnosis of Autism Spectrum Disorder and a seizure disorder.
20. [REDACTED] presents with delays in all areas, including overall communication, academics, socialization, play and leisure, community navigation and functional independent living skills. He has significantly impaired cognitive skills and a history of behavioral difficulties.
21. [REDACTED] is non-verbal but communicates using a Speech Generating Device (“SGD”) in the form of an iPad. [REDACTED] also has a history of utilizing signs and physical gestures to communicate.
22. [REDACTED] requires a separate device devoted solely for his communication needs. He utilizes a second device for necessary leisure skills that are being taught during ABA sessions.
23. [REDACTED] is of large physical stature and has a history of elopement and aggressive behaviors (e.g., grabbing, pushing). Over the past 6 years, however, he has exhibited significant improvement and is relatively calm during ABA sessions with the various behavioral procedures put in place that are necessary to keep his behaviors at safe levels.
25. In the home, [REDACTED] received approximately 10 hours a week of ABA services, as well as 2 hours a week of ABA supervision by a BCBA/LBA.
26. Five of the 10 ABA hours were provided through pendency and the remaining hours were compensatory hours awarded from a prior impartial hearing order.
27. [REDACTED] also provided both parent training and translation services through an ABA therapist fluent in Chinese for approximately 1 hour per week each under pendency.
28. Additionally, [REDACTED] received 1.5 hours a week of Speech and Language Therapy in the home by a licensed speech therapist trained in ABA.
29. At home, [REDACTED] also received additional services through the Office of People with Developmental Disabilities (OPWDD).
40. [REDACTED] continues to need 10 hours/week of home-based 1:1 ABA. Due to his significant delays and specialized way of learning, an extension of his school day is necessary to learn new skills and maintain previously mastered skills. He requires significant repetition to learn and maintain skills.
41. [REDACTED] requires practice across settings, materials and people. When [REDACTED] is taught a specific skill at home or school, that skill does not naturally generalize to other settings, people, or situations.
42. Home services are also needed to ensure consistency with managing his challenging behaviors, consistent and individualized focus on activities of daily living (“ADL”), and a consistent approach with teaching and reinforcing [REDACTED]’s communication.
43. [REDACTED] employs a transdisciplinary model and collaborates with [REDACTE] regularly. [REDACTED] has worked seamlessly with [REDACTED]providers on [REDACTED]’s case for the past four years. This has been necessary to ensure consistency across teams.
45. During the 2022-2023 and the start of the 2023-2024 school year, [REDACTED] has made progress across all domains as a result of his ABA educational program provided by [REDACTED] and my agency.
46. In the area of communication, [REDACTED] has mastered many skills on his new SGD program/device. Specifically, since July 2022, [REDACTED] has mastered answering 10 personal information questions (e.g., name, age, address, phone number), labeling 17 common objects in his environment, labeling 12 actions, labeling 13 household associations (e.g., responds “Kitchen” when asked, “Where do you find the microwave?”), and labeling 15 body parts. [REDACTED] has also mastered the ability to request for items using short sentences (e.g., “I want to eat Oreos.”) while also significantly expanding his independent use of core words (e.g., yes, no, help, go, want, finish, get) across communicative intents. [REDACTED]’s progress with these SGD goals is a result of this intensive 1:1 ABA services, along with continuous collaboration amongst the home team with both the ABA and speech and language therapists at [REDACTED}.
47. [REDACTED]has also mastered many important home living skills and ADLs. He has mastered the entire program that taught him to receptively identify different items in his apartment in both pictures and the actual objects. [REDACTED]has also mastered completing most steps to fold his pants independently, as well as sorting his clothing into piles by clothing type (e.g., pants, shorts, underwear) when handed a stack of clothing items to sort. [REDACTED]also recently mastered the program that taught him to identify various weather conditions. He is now working on choosing correct clothing for the weather.
50. The [REDACTED]team has also focused therapy time recently on teaching [REDACTED]vital community skills to assist with his independence and overall safety when navigating in the community. He has mastered identifying 6 community helpers in picture scenes and is working on transferring that skill to the natural environment. [REDACTED]is also working on identifying various identification (“ID”) cards in his wallet so that he can provide the correct ID if ever requested by a police officer when in the community. Additionally, when [REDACTED]and [REDACTED]therapists began to work on navigating in the community, significant unsafe behaviors were observed, including elopement and forcefully grabbing at the therapist or items. As a result, the [REDACTED]team implemented a community plan to teach [REDACTED]to travel to various places safely. The implementation of this plan has been very successful. Baseline data indicated instances of elopement as high as 14 times per commute and grabbing as high as 23 times per commute. Current data indicates 1 instance of elopement and 0 instances of grabbing. This plan requires consistent and continuous implementation by an ABA therapist until supports are gradually faded and caregiver training is provided.
68. Ms. [REDACTED] is an active participant in [REDACTED}’s program. She needs continued parent training in her native language because [REDACTED}’s needs and goals continually change. She needs to be able to consistently address [REDACTED}’s interfering behaviors and keep him safe and focused, in addition to assuring consistency in expectations regarding communication and listener skills.
85. Based on the observations, data and assessments of [REDACTED}, I (and his therapists at [REDACTED}) recommend that [REDACTED]continue to receive his current educational program and memorialize the increase in home-based hours that we have been providing for several years, as follows. (i) 1:1 ABA - full day in a center or school-based setting or alternatively 25 hours per week at home or center-based with related services as currently mandated; (ii) 1:1 ABA home services for 10 hours/week; (iii) BCBA Supervision at home for 2 hours/week; (iv) Parent training for 1 hour/week; (v) Translation services by an ABA provider for 1 hour/week; and (vi) Team meetings between [REDACTED]and KABA for 1 hour/month. (P-AA)
The Parent’s second witness is also a BCBA who testified on direct examination via affidavit. (P-BB) The DOE did not object to witness’ testimony and declined to cross examine him. In sum, substance and relevant part, the witness testified as follows:
4. I have been working in an educational setting with children on the autism spectrum for approximately 16 years, since February 2007. I provided Applied Behavior Analysis ("ABA") instruction at the [REDACTED] Program in New Jersey for two years and then started at the [REDACTED] ("[REDACTED]") in September 2009.
8. [REDACTED] is a 1:1 comprehensive services program -not a school -that utilizes the principles of Applied Behavior Analysis ("ABA") to drive the educational components. Embedded within the day are related service sessions that are implemented in a transdisciplinary approach to ensure effective collaboration and consistency across a child's day. [REDACTED] provides ABA therapy, Speech/Language Therapy (SLT), Occupational Therapy (OT) and Physical Therapy (PT) in a 1:1 setting. Collaboration between ABA, SL T, OT and PT occurs on a regular basis through co-treatment sessions team meetings, and constant communication through email. [REDACTED] offers center-based services, as well as home and community-based services.
9. A copy of the [REDACTED] Clinical Program Description is marked as Exhibit N.
12. [REDACTED]'s ABA therapists are all masters' level providers. The majority are also pursuing advanced certification in ABA and are at or close to eligibility for the BCBA/LBA-NY examinations.
13. [REDACTED]'s related service providers are all certified and licensed in their related disciplines.
24. The business office staff have advised me that [REDACTED]is charging the following rates for the 2023-2024 school year: ABA - $230 per hour, BCBA Supervision- $275 per hour, Speech- $225 per 45 min session, OT - $225 per 45 min session, PT - $235 per 45 min session, Family Training- $275 per hour.
25. I do not have details about how the rates are set and my job does not involve any finances. However, I do know that our in-center ABA and supervision rates are consistent with and still lower than the rates that some private providers in the field charge for ABA services. Rates can go as high as $350 per hour for a licensed ABA provider, given the shortages of licensed staff in New York.
26. [REDACTED] began attending [REDACTED] in the summer of 2017 and I met him shortly thereafter when I started at [REDACTED].
27. I have seen him on a weekly to monthly basis ever since (excluding periods during the Pandemic).
30. When [REDACTED] first came to [REDACTE]}, he had extremely delayed skills and did not possess the ability to use any communication device.
32. [REDACTED] has made progress since coming to [REDACTED], mainly in the areas of expressive and receptive communication, activities of daily living and being able to attend to activities. However, if he had not had gaps in his services due to the Pandemic, he would have made more progress.
42. During the 2022-2023 school year, [REDACTED] was providing ABA to [REDACTED]at his home as well as in [REDACTED}. Last year, [REDACTED] was receiving 21.75 hours of ABA, SLT, OT, and PT at 2x30 minutes per week and 2 hours of BCBA supervision per week through [REDACTED], as well as an additional I 0 hours per week of ABA, one hour per week off parent training and translation and interpretation from [REDACTED}.
43. For the 2023-2024 school year, so far, [REDACTED] is being provided a mix of ABA hours at home and in the center, as well as related services, pursuant to the schedule marked as Exhibit 0. Three days per week, Monday, Tuesday and Wednesdays, [REDACTED] provides 12 hours and 45 minutes of home-based ABA services to [REDACTED] On Thursday and Friday, [REDACTED] receives 9 hours of ABA in [REDACTED], and OT, SLT and PT, each twice per week for 30 minutes. B.L. also receives 2 hours of BCBA supervision per week.
47. [REDACTED]continues to display significant deficits in attending, communication and language, and ability to learn skills such that he can display them consistently in situations that are not rehearsed. His rate of learning and retention remains slow.
48. On the days [REDACTED]attends [REDACTED}, he usually arrives via bus in the morning where a therapist greets him and brings him to his therapy room. He participates in a morning routine consisting of following simple directions including unpacking and getting ready for his day. He then begins working on ABA programming.
55. Last year, [REDACTED]recommended an increase of SLT to 3x45, as we believed he needed longer sessions because he had recently just switched his communication program. We wanted to use these additional hours to expand his communication repertoire, as he has extremely limited communication skills, and is aging out in two years. As of the end of the 2022-2023 school year, he would initiate some basic requests independently, but he needed to be prompted to use it consistently.
58. [REDACTED]receives approximately 10 hours/week of 1:1 ABA services from [REDACTED] Applied Behavior Analysis ([REDACTED]) (also known as [REDACTED] of New York). [REDACTED]'s deficits are such that he requires more than what the standard day offers.
72. To address [REDACTE]'s deficits, his current program utilizes an individualized schedule and programming catered to his learning style. He requires 1:1 instruction with systematic prompting and fading of prompts, a dense schedule of reinforcement, and daily monitoring of skill development.
73. Additionally, a high level of consistency and collaboration across providers is required to ensure meaningful progress towards functional goals. His clinical team continues to evaluate and monitor [REDACTED]'s needs and learning style to work towards a less restrictive setting.
74. Based on the observations, data and assessments of [REDACTED], as well as the feedback from the [REDACTED] team, we recommend that [REDACTED] continue to receive a mandate for the following services during the 2023-2024 school year: (a) 1:1 ABA- full day in a center and home-based/community-based setting (25 hours per week) and continue to receive those services through [REDACTED] if available or another center if [REDACTED] is not available; (b) OT 3x30; (c) PT2x30; (d) SLT 3x45; (e) One hour of parent training/ week with a bilingual provider; (f) 1:1 ABA home services of 10 hours/ week with KABA (or if [REDACTED] is not available another provider); (g) Two hours month BCBA supervision at [REDACTED]; and (h) Team meetings between [REDACTED] and [REDACTED] one hour/ month. (P-BB)
The Parent’s third and final witness is the student’s mother. She also testified on direct examination via affidavit. (P-CC) The DOE did not object to her testimony and declined to cross examine her. (T-14-5) In sum, substance and relevant part, the witness’ testimony is as follows:
e. I have lived in New York for many years, but I have never fully learned to speak, write and read English as well as I speak Cantonese and Mandarin. I can understand and speak enough to do my job and go shopping but I do not understand complicated information in English. I cannot express myself as well in English as I can in my first language.
g. I am currently working as a home-care attendant. I make seventeen dollars per hour.
c. We recently changed devices and programs. His old iPad could not be updated. This year, the providers also changed the screen to add more options for him to press to communicate. They want to try to teach him to expand his vocabulary. According to the [REDACTD] team, he is learning the new system very quickly.
l. However, for the past few years, [REDACTED] provides [REDACTED] ABA at home Monday, Tuesday and Wednesday, 5 hours per day. On Thursday and Friday, he goes to [REDACTED]between 8:30 to 2:45. [REDACTED] of New York (“[REDACTED]”), which [REDACTED]’s agency, provides 8.5 hours of ABA per week at home on Monday, Tuesday, Wednesday and Friday.
4. [REDACTED] takes the bus to [REDACTED}.
h. I want the hearing officer to order the DOE to continue my son’s services that he currently has and keep them in place. (P-CC)
To evidence the appropriateness of the proposed relief, 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 him or her to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).
The law does not require that the Parents’ placement be perfect, it only requires that the Parents’ placement be appropriate. (See Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir.1999) (holding that “the test for the parents' private placement is that it is appropriate, and not that it is perfect”)
When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003]) (emphasis added) The often-cited language from the Endrew F. case, citing the 10th Circuit’s long standing case law that an IEP is adequate as long as it is intended to provide “merely more than de minimis” benefits, replaced by the United States Supreme Court with a tougher standard that requires schools to provide a program that is ”appropriately ambitious in light of the child’s circumstances”, applies to school district’s, not to Parents and does not require public schools themselves to give children with disabilities an opportunity to (among other things) “achieve academic success” and “attain self-sufficiency. (See Endrew F. v. Douglas County Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 998-1001 [2017]) Certainly, a higher standard is not required to adjudge the appropriateness of the Parents’ unilateral placement.
The “reasonableness” standard to adjudge the appropriateness of the Parent’s unilateral placement is well below the other established standards of review in the law such as “beyond a reasonable doubt”, “clear and convincing evidence”, “preponderance of the evidence” and “substantial evidence.” It is perhaps equivalent to the “rational basis” standard of review. The record, as summarized above is completely uncontroverted and was not even challenged by the NYC-DOE. It supports a finding that the relief sought by the Parent meets the ”reasonable” standard for a finding that constitutes appropriate relief for the denial of FAPE for the student’s 2022-2023 and 2023-2024 school years.
TRANSPORTATION
Whereas the IDEA 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], see also 34 CFR 300.34[a], [c][16]); and
Whereas in addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” (See Educ. Law §§ 4401[1], 4402[4][a], see also Educ. Law § 4401[2] and 8 NYCRR 200.1[ww]); and
Whereas specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. (SRO No. 03-053); and
Whereas if a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. (See Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]); and
Whereas the State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate.” (See “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005]); and
Whereas other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. (See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997] and Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997]); and
Whereas when reviewing the transportation provisions made for a student by a district, the relevant question is whether the transportation arrangements are appropriate to meet the student's needs. (SRO No. 03-054); and
Whereas in this case, the record indicates that the student requires transportation services and that he indeed travels by bus to and from school, the student’s need for “special transportation” services is warranted (P-CC); and
Whereas additionally, there is evidence in the hearing record as to how the student was transported to and from the private school each day during the relevant school years; and
Whereas accordingly, the hearing record does support a finding that the district denied the student a FAPE due to the lack of provision for special transportation; and
Whereas this does not constitute or preclude a determination regarding the student's additional entitlement to transportation as available to regular education students or suitable transportation as available to students attending nonpublic schools “for the purpose of receiving services or programs similar to special education programs recommended” by the CSE. (See Educ. Law 3635; 4402[4][[d]); and
Whereas if the DOE has not done so already, it must provide “special transportation” of the student to his private services in accordance with the above; and
Whereas the DOE’s default constitutes a concession of a denial of FAPE and the 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 ON THE NYC-DOE’S DEFAULT AND AFTER INQUEST that the NYC-DOE denied the student a FAPE for the 2022-2023 and 2023-2024 school years and that upon the NYC-DOE’s receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student’s previously purchased iPad and a new iPad, the cost of which the new iPad shall not exceed $1,500, and that the NYC-DOE shall pay the cost and expenses for all of the services ordered for the student in the Findings of Facts & Decision issued on April 14, 2023 in New York City Case No. 166370 (P-D), a copy of which shall accompany this decision and order, for the entirety of the student’s 2023-2024 school year, including the cost and expenses of transportation services and compensatory ABA, parent training, SLT, OT, and PT make-up services, on a one-to-one basis, for those services the student missed due to the NYC-DOE’s failure to implement pendency for the student from the date the Parent filed her instant DPC on July 1, 2023 to the date of the decision and order, and that the NYC-DOE shall pay the cost and expenses of translation/interpreting services in Cantonese to enable the Parent to communicate with the NYC-DOE, the student’s teachers and related service providers and receive correspondences in the Parent’s native language, and that the cost and expenses for all of these services shall not exceed the reasonable and fair market rate cost for such services in New York City; and it is further
ORDERED ON THE NYC-DOES’ DEFAULT AND AFTER INQUEST that the DOE shall conduct evaluations of the student in all areas of his suspected disabilities, not evaluated within the last two years, for his 2024-2025 school year; and it is further
ORDERED ON THE NYC-DOES’ 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 ON THE NYC-DOES’ 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 13, 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)