New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 249958

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 08/07/2023 Pre-Hearing Conference

08/24/2023

Actual Record Close Date: 08/28/2023

Decision Date: 08/29/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/07/2023

(All Parties Appeared Via Teleconference)

[REDACTED], ESQ., Attorney — Student

[REDACTED], Law Clerk — Student

NONE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/24/2023

(All present by video or telephone)

[REDACTED], ESQ., Attorney — Student

[REDACTED], Law Clerk — Student

[REDACTED], Consultant Impartial Hearing — DOE

Representative — DOE

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Ex Document Name Date Page(s) Entered 08/07/2023 A Impartial Hearing Request/Due Process Complaint (DPC) 07/3/23 15 Entered 08/24/2023 B Individualized Education Program (IEP) 05/15/20 25 C Final Order, Case 229270 09/15/22 15 D Pendency Agreement 07/18/23 2 E Email to Department re: Broken Assistive Technology 03/23/23 2 F Parent Letter to Department re: Assistive Technology 03/30/23 1 G Email to Department re: Assistive Technology 04/07/23 1 H Department Prior Written Notice for Evaluations 06/06/23 2 I Signed Consent for Additional Assessments 06/18/23 1 J Ten Day Notice Letter (TDN) and Responses 06/16/23 4 K Independent Neuropsychological Evaluation 08/03/19 19 L Independent Functional Behavior Assessment (FBA) and 11/07/19 24

Behavior Intervention Plan (BIP) M Independent Speech-Language Evaluation 11/01/19 8 N Independent Assistive Technology Evaluation 11/01/19 9 O Independent Vocational Assessment Evaluation 11/01/19 9 P Independent Physical Therapy Evaluation 11/18/19 12 Q Rate Sheet for [REDACTED] 01/01/23 2 R Rate Sheet for [REDACTED] Speech Services 01/01/23 1 S [REDACTED] Program Description 2023 3 T [REDACTED] Daily Schedule 2023 2 U Special Education Teacher Support Services (SETSS)/ 06/30/23 25

Applied Behavior Analysis (ABA) Assessment Progress Report V [REDACTED] 2023-2024 Enrollment Agreement 06/29/23 4 W Resume of [REDACTED] Undated 2 X Affidavit of [REDACTED] 08/16/23 9 Y Affidavit of [REDACTED], Parent 08/18/23

DEPARTMENT OF EDUCATION (DOE)

None

IMPARTIAL HEARING OFFICER

Entered 08/07/2023 I Notice of Appointment, 09/02/2022, 4 pages II Teleconference Notice, 08/08/2023, 1 page III Pendency Agreement, 07/18/2023, 2 pages IV Notice of Appearance, Ryan Neal, 08/04/2023, 1 page

INTRODUCTION

On 07/06/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Pre-Hearing Conference was held on 08/07/2023, and Hearing commenced, on 08/24/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC.

Ultimately, the DOE did not avail itself of the opportunity to defend against the allegations contained in the DPC, and Hearing concluded, on 08/24/2023.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Due Process Complaint (DPC) relates to the 23/24 School Year, and allegations include:

- Student educational history, including evaluations, which led to Student requiring special education services, since 2010 (Ex A 4-7);

- Damage to Student’s Assistive Technology Device, back in February of 2023, and the need for a protective case;

- The DOE has failed to hold an IEP meeting for the 23-24 school year (Ex A 7);

- The DOE has denied the Student a Free Appropriate Public Education (FAPE), for the 23-24 school year;

- The DOE has failed to implement the Student’s related services (Ex A 8);

- The DOE has failed to conduct the Student’s triennial evaluations (Ex A 10);

- Student Unilateral Placement at [REDACTED] ([REDACTED]) is appropriate (Ex

A 10); and

- Equities favor the Parent (Ex A10-11).

Parent seeks relief to remedy the alleged failure, including:

- Direct DOE funding of Student’s 23-24 unilateral placement (UP), at

[REDACTED] (UP)

- DOE funding of Student at-home ABA program, which includes weekly: 20 hours of ABA and 4 hours of Board Certified Behavior Analyst (BCBA) supervision (Ex

A 11);

- Six monthly hours of Parent Counseling and Training (PCAT), with two monthly hours of BCBA supervision;

- Specialized door-to-door transportation to and from the UP, via private van (Ex A

11);

- Triennial evaluations of the Student, within 30 days of any Order, which include areas of:

• Neuropsychology

• Speech-Language Therapy

• Assistive technology

• Occupational therapy

• Physical therapy

• Vocational

• ABA Skills Assessment

• Functional Behavior Assessment (FBA)

• Behavior Intervention Plan (BIP)

In the event the DOE does not complete the above evaluations then the Parent’s seek authorization to obtain Independent Educational Evaluations (IEEs); and

- A protective case for Student Assistive Technology (AT) device/iPad.

(Ex A 12)

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 POSITION OF EACH PARTY

The DOE opted not to defend an offer of a Free Appropriate Public Education (FAPE), for the Student, for the 23-24 school year.

At Hearing, of 08/24/2023, the Parent Attorney recounted the Parent’s position, as set forth in the DPC. (Ex A)

Parent Attorney details Student challenges, special education needs, allegations of a denial of FAPE for the 23-24 school year, and presents list of sought after forms of relief:

- Student attends [REDACTED] and has been diagnosed and classified by the DOE as a student with autism;

- Student is a nonverbal and relies on a communication device to assist her with communicating with others;

- Student exhibits severe delays in her cognitive functioning (T 23), social-emotional functioning, motor abilities, and self-help skills; and presents with significant maladaptive behaviors, including self-injurious behaviors, aggression, and self-stimulatory behaviors;

- Student requires intensive special education and related services to ensure that she can make progress;

- Evidence shows the DOE failed to provide Student with a program and placement recommendation for this 2023/2024 school year;

- Parent evidences a timely sent a TDN, dated June 16th, 2023 (Ex J, T 24);

- The DOE failed to hold an IEP meeting for Student since the 2020/2021 school year;

- The DOE failed to recommend any Student placement, for the 23-24 school year;

- The DOE failed to provide an appropriate case for Student’s communication device, which the DOE was notified and made aware of;

- Parent has requested an appropriate and protective case for the speech communication device, and the DOE has not responded;

- The DOE has failed to timely evaluate the Student, for over three years (T 25);

- Parent signed the DOE’s consent form for re-evaluations in June of 2023, and there has been no information provided regarding when evaluations will commence (Ex H & I);

- As a result of the DOE failure the Parent presently seeks a variety of IEEs;

- Student is appropriately placed at [REDACTED], for the 2023/2024 school year, and provides one-to-one individualized learning opportunity and intensive ABA services throughout the school day;

- Student requires ABA support to help her with her activities of daily living or

ADL skills, her behaviors, and her communication needs;

- Student receives the related services such as SLT, OT and PT;

- Student receives a 12-month school year (T 26);

- Testimony will evidence that the Student has been making progress, since attending the UP program;

- Testimony will also show the Student’s need for additional services such as home-based ABA, and the PCAT (T 27);

- Parent seeks relief that includes:

• A finding of a denial of FAPE for the 23-24 school year;

• A finding that [REDACTED] serves as an appropriate Student placement, for the 23-24 school year;

• The equities weigh in favor of the Parent;

• Student is entitled to funding of her at-home program, and 12 month UP program, which consists of 20 hours per week of at-home ABA services, four hours per week of BCBA supervision, six hours per month of PCAT, and two hours per month with the supervision of a BCBA;

- Parent seeks DOE funding of Student’s specialized transportation services to and from [REDACTED] in the form of a private van provided by

[REDACTED];

- Parent seeks that any Order include that the DOE's Implementation Unit to authorize any tuition payments and services within 14 days so that timely payment can be made;

- Parent seeks an Order directing the DOE to fund independent evaluations for Student in the following areas: a neuropsychological evaluation (T 28-29), a speech and language therapy evaluation, an assistive technology evaluation, an occupational therapy evaluation, a physical therapy evaluation, a vocational evaluation, an ABA skills assessment, and an FBA and corresponding BIP (Ex T

29);

- Parent also seeks an Order directing the DOE to provide the student with an appropriate protective case for her communication device within 30 days of the order's date, and if the Department fails to provide the parent with an appropriate protective case, that the DOE be ordered to reimburse the parent for the cost of the case;

- and any other relief that the IHO finds appropriate to ensure Student receives a FAPE for the 2023/2024 school year. (T 29)

The Parent supported its position via Documentary Evidence and Testimonial Evidence. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below:

A Impartial Hearing Request/Due Process Complaint (DPC) 07/3/23

Details student educational history, allegations of a denial of FAPE for the 23-24 school year, and sought after relief.

B Individualized Education Program (IEP) 05/15/20

Confirms Student entitlement to special education services, including a Classification of Autism (Ex B 1); contain evaluative Student date from 2019 (Ex B 1); need for an FBA and BIP (Ex B 6); recommends a Special Class, Deferral to a Non Public School Day, Full time ABA program, OT, PCAT, SLT, Paraprofessional, iPad with applications, weekly home/community Special Education Teach Support Services (SETSS-ABA, 20x60. 1:1, BCBA supervision 4x60, home/community BCBA or New York State Licensed Behavior Analyst PCAT 2x60/month (Ex B 16-17), 12 month school year (Ex B 17), and special education transportation from the closest safest curb location to school with air conditioning (Ex B 20).

C Final Order, Case 229270 09/15/22

Order addressed the 22-23 school year, finding the DOE failed to offer the Student a FAPE and awarding Student funding, via the DOE, of a full time ABA program with a home ABA program. (Ex C 7)

D Pendency Agreement 07/18/23

Pendency Implementation Form applicable to the current case, based upon the Findings of Fact and Decision, of 09/15/2022. (Ex C)

E Email to Department re: Broken Assistive Technology 03/23/23

Parent, and Parent Attorney communicate with the DOE regarding continuously damaged AT device.

F Parent Letter to Department re: Assistive Technology 03/30/23

Parent details concerns with Student AT device, seeking resolution.

G Email to Department re: Assistive Technology 04/07/23

Parent details concerns with Student AT device, seeking resolution.

H Department Prior Written Notice for Evaluations 06/06/23

The DOE communicated with the Parent, advising of intended Student evaluations.

I Signed Consent for Additional Assessments 06/18/23

Parent consents to DOE commencing Student evaluations.

J Ten Day Notice Letter (TDN) and Responses 06/16/23

Parent notifies the DOE of: a failure to develop a Student IEP since May 15, 2020. ; lack of a Student IEP for the 2023-2024 school year; lack of a Student placement for the 2023-2024 school year; given DOE’s failure to recommend an appropriate placement for Student , Parent intents to place Student a [REDACTED], at the public expense for the 2023-2024 school year and will be looking to the DOE for payment of all tuition costs, any and all related services, and transportation and/or reimbursement for the same; and funding for Student required ABA services, received through [REDACTED].

K Independent Neuropsychological Evaluation 08/03/19

Student evaluation confirms areas of delay, and the need for special education services.

Diagnoses include:

• Autism Spectrum Disorder with accompanying intellectual and language impairment – Requiring very substantial support

• Intellectual Disability – Severe

• Developmental Coordination Disorder

• Unspecified Disruptive, Impulse-Control, and Conduct Disorder (Ex K 15)

Recommendation notes that: Student has made little to no meaningful progress, and the then current program needed to be supplemented in order to be an appropriate placement. (Ex K 16)

Recommendations made include:

• ABA service

• Speech Language Therapy

• Assistive Technology (Ex K 16)

• Occupational Therapy

• PCAT (Ex K 17)

L Independent Functional Behavior Assessment (FBA) and 11/07/19

Behavior Intervention Plan (BIP)

Student is observed and details regarding behaviors which impact Student education, are set forth. (L 6-16)

Behaviors, and Baseline Measures of Problem Behaviors are detailed. (Ex L 1719)

Target behaviors are set forth, along with Proactive Strategies. (L 21-22)

Specific Student recommendation is made to include a full day program of intervention in an intensive ABA program,. (Ex L 23-24)

M Independent Speech-Language Evaluation 11/01/19

Confirms Student need for therapeutic intervention.

N Independent Assistive Technology Evaluation (AT) 11/01/19

Confirms Student need for AT interventions, and supports, including a communication device. (Ex N 6-7 & 8-9)

O Independent Vocational Assessment Evaluation 11/01/19

Sets forth Student vocational goals, noting that for the Student “to be able to accomplish these goals it is imperative that she receives the support of related services for communication (speech pathologist with expertise in Assistive Technology) and functional abilities development (occupational therapist)…Furthermore, functional academics should be the focus of [Student’s] education. She should be taught within the curriculum, functional math (money and time orientation skills) develop functional literacy skills to be able to use devices, communicate notes, send emails, navigate the internet for information about her interests, be able to read and understand signs for transportation. A comprehensive functional literacy and math curriculum needs to be developed by the school team and an OT to be able to help accomplish her prevocational goals.” (Ex O 9)

P Independent Physical Therapy Evaluation 11/18/19

Confirms Student need for therapeutic intervention.

Q Rate Sheet for [REDACTED] 01/01/23

Agency’s rates for various therapeutic services, and evaluations.

R Rate Sheet for [REDACTED] Speech Services 01/01/23

Agency’s rates for various services, and evaluations.

S [REDACTED] Program Description 2023

General characteristics of the UP include:

- aims to conduct treatment/research in home- and center-based settings as well as parent training through the implementation of innovative empirically supported procedures in Applied Behavior Analysis (ABA) to address the needs of children diagnosed with Autism Spectrum Disorders (ASD) and/or other severe developmental disabilities;

- provides and specializes in Applied Behavior Analytic (ABA) interventions delivered to nonverbal children diagnosed with severe ASD by skilled licensed therapists and certified teachers;

- Our center- and home-based one to one (1:1) behavioral interventions include:

• generalized imitation training

• echoic/vocal mand training

• discrete-trial teaching (DTT)

• incidental teaching/Early Start Denver Model (ESDM)

• natural environment teaching (NET) and

• digital motivational systems (e.g., visual choice board, token economy, photographic/written activity schedule);

- the [REDACTED] program aims to offer 1:1 ABA instruction across all times of the day. (Ex S 1)

The UP provides: Assessments; Advocacy/Consultations; and Parent/Family Training (Ex S 1)

[REDACTED] provides ABA Instructional Methods, including:

(1) Echoic/Vocal Mand Training:

(2) Discrete-Trial Teaching (DTT):

(3) Incidental Teaching

(4) Natural Environment Teaching (NET)

(5) Motivational systems (Ex S 2-3)

T [REDACTED] Daily Schedule 2023

Student center and home-based ABA program is set forth.

U Special Education Teacher Support Services (SETSS)/ 06/30/23

Applied Behavior Analysis (ABA) Assessment Progress Report

Report details Student ABA goals, with treatment date, for areas which include:

- COGNITIVE FUNCTIONING

- SPEECH/LANGUAGE & COMMUNICATION SKILLS

- SOCIAL/EMOTIONAL FUNCTIONING

- MOTOR SKILLS/ABILITIES

- SELF-HELP SKILLS/ADAPTIVE FUNCTIONING (Ex U 1 & 1-24)

The UP Report details Student special education needs, services to address those needs, and makes recommendations moving forward.

Student:

- contends with a diagnosis of Autism Spectrum Disorder;

- has been receiving 55 hours per week of SETSS-ABA services from the present providers (35 hours [REDACTED]/20 hours home);

- During baseline assessments of these SETSS-ABA goals, Student was imitating zero to only a couple of actions/actions with objects, was not pointing at all to show that she wants something, was not making many receptive associations, did not know how to receptively identify family members, community members, weather scenes, nor was she able to identify items by their function, she was not able to identify body parts not on her face, she was unable to navigate through her device, did not know how to mand for bathroom on her device, did not know how to follow an activity schedule, was not working for ten tokens, was not following many directions, did not know how to spit, did not know how to wash her hands, was not engaging with her family members, did not know how to play, did not know how to do many of her self-help routines independently;

- After ABA treatments were implemented to address these goals, Student has increased her self-help skills by learning most steps to independently brush her teeth, learning how to shower, wipe herself, feed herself, and change her pad. She has learned how to follow a schedule and is now completing her morning and nighttime routines with increased independence following a schedule. She has increased her functional communication using her AAC device, she has increased her family engagement by learning turn taking and functional play skills. She can tact more items in her device, as well as with pictures. She has been making improvements with more advanced associations such as identifying items by function, identifying emotions, actions, locations, etc. Her text to picture correspondence has been developing and she has learned 20 words and is now learning clothing words;

- However, despite the noted progress, Student still requires more time to acquire new skills in reaching her goals. Therefore, to address the noted issues, and to help maintain and generalize her current level of progress, the present providers highly recommend a continuation of SETSS-ABA services.

(Ex U 25)

V [REDACTED] 2023-2024 Enrollment Agreement 06/29/23

Student Enrollment Agreement sets forth the cost of Student 23-24 Tuition via a rate set for each Student service to be delivered:

• 35 hours per week of center-based ABA at $155 per hour

• 20 hours per week of home-based ABA at $155 per hour

• 4 hours per week of BCBA Supervision at $245 per hour

• 2 hours per month of PCAT by a BCBA at $245 per hour

• 4 hours per month of parent training at $155 per hour

• Door to door transportation at $80 per day

• 1x60 Physical Therapy for $250 per hour

• 4x30 Occupational Therapy for $250 per hour (Ex V 1, T 22)

Parent is obligated to payment, under the terms of the Agreement, via signature. (Ex V 4)

W Resume of [REDACTED] Undated

Resume of Assistant Director/Program Supervisor at [REDACTED].

X Affidavit of [REDACTED] 08/16/23

Provides general information regarding the UP, including:

- Non-profit, full day treatment model, with a focus on ADL Skills, and ABA programming (Ex X 1);

- Provides a home and center based instructional program of ABA interventions (Ex X 1-2)

Provides professional qualifications. (Ex X 2)

Details areas of Student challenge which affect her special education needs. (Ex X 2)

Details goals which were addressed, at the UP, and notes progress. Progress is noted in areas that include: ADL Skills; identification of coins and bills, and their value; use of a communication device; and social/emotional functioning. (Ex X 2-5)

Reviews Student UP program, including ABA services which are center based, and provided at home. (Ex X 3)

Witness notes that the Student receives SLT, is learning American Sign Language, receives OT, and receives PT. (Ex X 5-6)

Witness believes Student requires:

• 12-month school year

• Small educational setting with 1:1 individualized teaching

• ABA

• Prompting

• Redirection (Ex X 6)

The UP is an appropriate full-day ABA program for the Student, which allows her to meet her academics, communication, social, behavioral, and emotional needs. (Ex X 6)

Continued individual SETSS-ABA, at home and in the community, is necessary due to Student’s severe behaviors which interfere with learning across, multiple settings. (Ex X 7-8)

Student still requires the UP program, with SETSS-ABA. to enable progress, acquire new skills, and help maintain and generalize her current level of progress. (Ex X 9)

Y Affidavit of [REDACTED], Parent 08/18/23

Reviews Student educational history, and challenges. (Ex Y 1-2)

Student has not had an IEP meeting and has not received a placement, from the DOE, for the 23-24 school year. (Ex Y 2)

Student attends the UP, and has been making progress. (Ex Y 2-3 & 4)

Student services include a full day UP ABA program, home ABA program, related services, and AT. (Ex Y 3-4)

Regarding the Student’s home/community program:

- ABA therapy is also very helpful for Student;

- Student has made great improvement with her ADL skills and she is learning how to become more independent;

- Student has been working on her academic skills, such as vocabulary, writing, and matching, and is also working on appropriate play and engages in activities such as completing a puzzle or playing with blocks;

- Student’s ABA provider uses a positive reinforcement system;

- Student’s home-based ABA provider and Parent take Student into the community;

- Parent receives at home PCAT where she has learned strategies to appropriately care for Student and effectively manage her behaviors;

- Student’s AT communication device is used at home (Ex Y 4);

- The DOE contacted the Parent, in June of 2023, to advise that Student evaluations were to take place, but the evaluations have yet to occur (Ex Y 4-5);

- Parent states she has always cooperated with the DOE, and attended all IEP meetings (Ex Y 5); and

- Parent is unemployed and cannot afford to pay the UP tuition, therefore she requests direct DOE funding. (Ex Y 5)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400- 1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

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]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), 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]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2023-2024 School Year The DOE opted not to present a defense to the Parent’s allegations.

The DOE has not evidenced development of an IEP for the commencement of the 23-24 school year.

The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 23-24 school year.

I find the DOE failed to offer the Student a FAPE for the 23-24 school year.

UP Placement for the 23-24 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 23-24 school year.

The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex B, E, F, G, H, I, K, L, M, N, O, P, S, T, U, X & Y)

I find that the UP provides special education services specifically tailored to meet the needs of the Student.

I find UP provides an appropriate education and program for the Student for the 23-24 school year.

This appropriate education, via the UP, includes the full array of services provided by the UP, including the Student’s home program with transportation.

Student’s last IEP called for a 12-month school year. (Ex B 17)

Evidence has not been brought forth to contest the Student’s need for continued 12month services.

TUITION FUNDING 23-24 School Year

The DOE has denied a FAPE to the Student for the 23-24 school year.

I find the Parent is entitled to Student’s UP Tuition funding, via the DOE, for the 23-24 school year.

Parent provided appropriate TDN, to the DOE. (Ex J)

Evidence includes a Student Enrollment Agreement, which sets forth the cost of Student 23-24 Tuition via a rate set for each Student service to be delivered:

• 35 hours per week of center-based ABA at $[REDACTED] per hour

• 20 hours per week of home-based ABA at $[REDACTED] per hour

• 4 hours per week of BCBA Supervision at $[REDACTED] per hour

• 2 hours per month of PCAT by a BCBA at $[REDACTED] per hour

• 4 hours per month of parent training at $[REDACTED] per hour

• Door to door transportation at $[REDACTED] per day

• 1x60 Physical Therapy for $[REDACTED] per hour

• 4x30 Occupational Therapy for $[REDACTED] per hour (Ex V 1, T 22)

Parent is obligated to payment, under the terms of the Agreement, via signature. (Ex V 4)

Parent testifies she is unemployed, and unable to afford to pay the UP tuition. (Ex Y 5)

With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here . . . parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769

F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

In this matter the Parents choose to continue Student placement at UP, without any DOE alternative.

Parent needs to meet the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of a unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

I find the Parent meets her burden, and establishes an inability to pay the UP Tuition, and await reimbursement.

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 23-24 school year.

This funding includes the full array of services provided by the UP, including the Student’s home program with transportation

I find the Parent is entitled to direct UP funding as Ordered below.

TRANSPORTATION

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 (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). 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" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). 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 (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

The Student’s last IEP, of 05/15/20, confirmed Student need for special education transportation from the closest safest curb location to school with air conditioning. (Ex B 20).

No evidence has been brought forth to contest the Parent’s request for continued transportation.

The DOE raises no objection to continuing special education transportation.

I find evidence supports the provision of a special education transportation for the Student for the 23-24 school year.

INDEPENDENT EDUCATIONAL EVALUATIONS

The IDEA provides parents with a number of procedural safeguards. Among them is the "right . . . to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" (34 CFR 300.502[a][1], [3][i]). Parents who express a disagreement with an evaluation conducted by the district also have the right to seek an IEE conducted at public expense in some circumstances (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; see also Lauren W. v. DeFlaminis, 480 F.3d 259, 275 [3d Cir. 2007] [explaining that parents do not have the right to an IEE at public expense where parents actually agreed with the school's evaluation]; Edie F. v. River Falls Sch. Dist., 243 F.3d 329, 335 [7th Cir. 2001] [explaining that parents do not have the right to an IEE at public expense where their disagreement was with the result of the child's IEP not with a particular diagnosis or methodology of evaluation]; M.C. v. Katonah/Lewisboro Union Free Sch. Dist., 2012 WL 834350, at *11–12 [S.D.N.Y. Mar. 5, 2012]; M.V. v. Shenendehowa Cent. Sch. Dist., 2013 WL 936438, at *6 [N.D.N.Y. Mar. 8, 2013]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense that was sought for additional information]). "If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation [m]ust be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child" (34 CFR 300.502[c])

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv]). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although the district will not be required to provide it at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]; see A.H. v. Colonial Sch. Dist., 2019 WL 3021232, at *3 [3d Cir. July 10, 2019]). Additionally, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The time period for asserting claims based upon a disagreement with a school district's evaluation can be shorter than the mandatory three-year reevaluation period in some cases (see D.S., 357 F. Supp. 3d at 179).

An IEE must use the same criteria as the public agency's criteria (Seth B. v. Orleans Par. Sch. Bd., 810 F.3d 961, 973–79 [5th Cir. 2016]). Informal guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area (Letter to Baus, 65 IDELR 81 [OSEP 2015]), however recent caselaw clarifies that parents may not demand a comprehensive IEE at public expense while at the same time refusing to consent to the school district's offer to conduct the same assessments (D.S. v. Trumbull Bd. of Educ., 357 F. Supp. 3d 166, 178 [D. Conn. 2019], citing N.D.S. v. Acad. for Sci. & Agric. Charter Sch., 2018 WL 6201725, at *5–*7 [D. Minn. 2018] [explaining that where parents request an IEE to challenge an obsolete evaluation, they are entitled to a due process hearing limited only to whether the evaluation was appropriate at the time it was completed; if parents wish for a publicly funded IEE with respect to their child's current condition, then they must allow the school district to conduct a current reevaluation and then request an IEE if they disagree]).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). In accordance with this burden, the district bears the burden of showing that its evaluation of the student was appropriate in order to prevail in its challenge to the parents' requests for IEEs at public expense

Additionally, an IHO is vested with the authority to direct that a student be evaluated at district expense (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]). IHOs are "granted broad authority in their handling of the hearing process and to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA" (Warren Consolidated Schs., 106 LRP 70659 [LEA MI 2000]).

A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]).

An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).

Under 200.5 (g) of the New York regulations and 34 CFR § 300.502 (b) (1) of the federal regulations, if a Parent disagrees with a district’s evaluation or re-evaluation of her child, she has the right to request an IEE at public expense. Upon Parent IEE request the public agency must, without unnecessary delay, either:

(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria. 34 CFR 300.502(b)(2). 8

NYCRR § 200.5 (g)

A school has the right in the first instance to obtain a comprehensive evaluation upon which to structure a student's IEP, and only if the child's parents believe that the evaluation is insufficient can they seek an IEE at public expense for the school's additional consideration. The publicly funded IEE protects parents' ability to contribute and have their voices heard; but this right arises in response to school action, it does not preempt it. Nor does it give parents the first and final word. The school, as a beneficiary of federal funds, has the right and obligation to conduct an evaluation in the first instance and to prove that its evaluation was appropriate. Only when those established procedures fall short does a parent get an IEE at public expense. See Schaffer, 546 U.S. at 60-61.

The DOE, as delineated above, had an opportunity to evaluate the Student. Notified the Parent of the intent to evaluate the Student, obtained Parental Consent, and then opted to leave the evaluation process incomplete. (Ex A, H & I)

It is noted that a parent’s DPC may serve as a demand for an IEE. A Parent may file a DPC notice with respect to "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). A sought after IEE may be a proper remedy for disagreement with a District's evaluation. Absent any requirement that the parent express her disagreement with the results of a district evaluation in a specific format, there is no reason why a DPC may not serve the function of expressing the parent's disagreement to the district.

Additionally, the DPC may serve as a basis for an IEE request when the District has failed to evaluate the Student in an area of suspected disability. The District, through a written response, or Resolution Process, can respond with whatever mechanism it has available to dispute the Parent request, or consent to an evaluation of some sort.

When a parent initiates a request for an impartial hearing by filing a DPC notice the IDEA provides for a resolution process that must be followed before a parentally requested hearing can proceed (34 CFR 300.510[a]). The parent cannot unilaterally waive the resolution meeting because the regulation requires both parties to waive a resolution meeting (34 CFR 300.510[a][3]). Accordingly, the District would have up to 30 days to consider and resolve any DPC, including any request for an IEE, before being required to proceed to an impartial hearing to defend its own evaluation, or IEP process which has been undertaken, for a student (see 34 CFR 300.510[b]). During that period, the District could agree to a parent's request for an IEE or seek further information from the parent.

In this case the DOE had undertaken to evaluate the Student, confirming the need for Student evaluations. Then the DOE failed to perform the evaluations. (Ex H & I)

Having received no action moving forward to complete Student evaluations, the Parent sought IEEs via DPC. (Ex A)

Presently, the DOE has not responded to the DPC request for IEEs, and has not evidenced any action moving toward completing Student evaluations.

Parent appropriately cooperated with the DOE, in an effort to complete Student evaluations.

Parent requested IEEs, the DOE has not responded.

I find the Parent is entitled to the sought after IEEs as Ordered below.

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 2023-2024 school year.

2. The [REDACTED] ([REDACTED] -UP) provides Student with an appropriate program and placement, for the 12-month, 23-24 school year.

3. The DOE shall directly fund Student, 12-month, 23-24 [REDACTED] Tuition, including after school ABA program, and transportation, as calculated below. The DOE shall provide payment within 30 days of receiving each invoice from SPARTA (UP):

• 35 hours per week of center-based ABA at $[REDACTED] per hour

• 20 hours per week of home-based ABA at $[REDACTED] per hour

• 4 hours per week of BCBA Supervision at $[REDACTED] per hour

• 2 hours per month of PCAT by a BCBA at $[REDACTED] per hour

• 4 hours per month of PCAT at $[REDACTED] per hour

• Door to door transportation at $[REDACTED] per day

• 1x60 Physical Therapy for $[REDACTED] per hour

• 4x30 Occupational Therapy for $[REDACTED] per hour

4. The DOE shall provide the Student with a protective iPad case, for Student’s Assistive Technology device, within 20 days of the date of this Order. If said case is not provided to Parent within ten days of the date of this Order, then Parent shall be authorized to purchase said device and the DOE shall reimburse Parent, for said purchase.

5. The DOE failed to appropriately evaluate the Student, and failed to respond to Parent’s request for Independent Educational Evaluations. The DOE shall authorize, and fund, Student evaluations, in areas listed below. Evaluations to be completed by Parent chosen provider(s) at reasonable market rate(s):

• Neuropsychology

• Speech-Language Therapy

• Assistive Technology

• Occupational therapy

• Physical therapy

• Vocational Assessment

• ABA Skills Assessment

• Functional Behavior Assessment (FBA)

• Behavior Intervention Plan (BIP)

6. The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.

7. This decision is subject to appeal and review by the State Review Officer.

DATED: August 29, 2023

DANIEL AJELLO

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.