New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 251120

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 07/17/2023 Pendency Hearing

08/07/2023 Pre-Hearing Conference

08/11/2023

08/16/2023

08/29/2023

09/06/2023

Actual Record Close Date: 09/15/2023

Decision Date: 09/15/2023

Hearing Officer: Daniel Ajello Esq. Hearing Officer‘s Finding of Fact & Decision

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/17/2023

(All Parties Appeared Via Teleconference)

[REDACTED], Attorney — Student

[REDACTED], DOE Representative — DOE

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

(All Parties Appeared Via Teleconference)

[REDACTED], Attorney — Student

NONE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/11/2023

(All Parties Appeared Via Teleconference)

[REDACTED], Attorney — Student

NONE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/16/2023

(All Parties Appeared Via Teleconference)

[REDACTED], Attorney — Student

NONE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/29/2023

(All Parties Appeared Via Teleconference)

[REDACTED], Attorney — Student

[REDACTED], — Parents

[REDACTED], District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/06/2023

(All Parties Appeared Via Teleconference)

[REDACTED], Attorney — Student

[REDACTED], MS.ED., BCBA, LBA

For the Department of Education: [REDACTED], District Representative

Hearing Officer‘s Finding of Fact & Decision

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Ex. Document Date Page(s) Entered 07/17/2023 A Due Process Complaint (DPC) 07/06/2023 18 B Findings of Fact and Decision, Case 203399 08/16/2021 34 Entered 08/11/2023. C Affidavit of Neuropsychologist 08/01/23 2 D Ten Day Notice (TDN) 06/21/23 3 E Individualized Education Program (IEP) 04/25/23 17

F IEP 05/23/22 27

G [REDACTED], Inc. Progress Report 05/12/23 8 H NYC DOE Report Card, Marking Period 2, 22-23 03/06/23 1 I Autism Skills Assessment 06/30/21 11 J Occupational Therapy Evaluation 05/18/21 8 K Physical Therapy Evaluation 05/18/21 6 L Neuropsychological Evaluation 02/04/21 32 M NYC DOE Assistive Technology Evaluation 01/22/21 14 N NYC DOE Speech/Language Evaluation 01/20/21 5 O Curriculum Vitae of Dr. [REDACTED] Undated 2 P Resume of [REDACTED] Undated 1 Q Resume of [REDACTED] Undated 1 R Program Disagreement/IEE Request Letter 06/20/23 3 Entered 09/06/2023 S Affidavit of [REDACTED] 08/17/23 7 T Neuropsychological Evaluation 09/05/23 33 Hearing Officer‘s Finding of Fact & Decision

DEPARTMENT OF EDUCATION (DOE)

NONE

IMPARTIAL HEARING OFFICER

Entered 07/17/2023 I Notice of Appointment, 07/12/2023, 4 pages II Teleconference Notice, 07/12/2023, 1 page Entered 08/07/2023 III Pendency Order, 07/17/2023, 8 pages IV Notice of Appearance, 08/01/2023, 1page Entered 08/16/2023 V Interim Order, Evaluations, 08/10/2023, 13 pages Hearing Officer‘s Finding of Fact & Decision

INTRODUCTION

On 07/12/2023, 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.

Parent requested a determination of the Student’s Pendency during the proceedings. (Ex A 1-2)

Hearing to determine Student Pendency was held on 07/17/2023.

Pendency Order was issued, on 07/17/2023. (IHO Ex III)

Pre-Hearing Conference was held, on 08/07/2023.

Hearing commenced, was set, and took place, on 08/11/2023, to address Parent request for Independent Educational Evaluations (IEEs).

Interim Order was issued, which included:

1. The Department of Education (DOE) failed to evaluate the Student in all areas of suspected disability.

2. The DOE failed to respond to the Parent request for Independent Educational Evaluations

(IEE) in a timely manner.

3. The DOE shall immediately authorize and fund Independent Educational Evaluation as detailed below, via currently located provider(s) or similarly qualified provider chosen by the Parent:

• Independent Neuropsychological Evaluation by Dr. [REDACTED]

at the rate of $7,000.

(IHO Ex V 13)

Hearing continued, on 08/16/2023, to allow an opportunity for the DOE to defend against the allegations contained in the DPC.

Appended to the record are lists of persons in attendance and the documents received in evidence. Hearing Officer‘s Finding of Fact & Decision

Due Process Complaint (DPC) relates to the 22/23 and23/24 School Years, and allegations include:

- Student is a ten-year-old boy entering his 5th grade year at a Public School, classified by the New York City Department of Education (DOE/District) as a student with Autism;

- Hearing request pertains to the program of services and support offered for the 2022-2023 and 2023-2024 school years (Ex A 1);

- Individualized Education Program (IEP) meeting was held on 04/25/2023, and the district recommended:

o Special education class consisting of twelve students, one teacher, and one assistant teacher (12:1+1)

o New York State Education Department (NYSED) Approved Non- Public school, ten times per week for Math, ten times per week for o ELA, two times per week for Social Studies, and four times per week for Sciences o Individual Counseling one time per week for 30-minutes, group Counseling one time per week for 30-minutes,

o Individual Occupational Therapy (OT) one time per week for 30-

minutes

o Individual Speech-Language Therapy (SLT) one time per week for 30- minutes, and group speech-language therapy one time per week for 30-

minutes

o A tablet with communication applications, writing and text to speech applications, headphones, and a microphone o Services recommended on a twelve-month basis. (Ex A 2)

- Recounting Student challenges and educational history (Ex A 2-7);

- Parent alleges the 04/25/2023 IEP was not appropriately assembled, relying upon past information, and not considering current student information (Ex A 8);

- Parent corresponded its objections with the DOE regarding the IEP, Placement and Evaluations; and TDN regarding continuing Student Hearing Officer‘s Finding of Fact & Decision services (Ex A 9, Ex D); and

- Parent alleges the DOE failed to offer the Student a Free Appropriate Public Education (FAPE) for the 22-23 and 23-24 school years, based on procedural and substantive grounds, including not locating a Student placement (Ex A 9-13).

Presently, Parent seeks relief to remedy the alleged failure, including:

- A finding the DOE failed to offer the Student a FAPE for the 22-23 and 23-24 school year (Ex A 13);

- An Order directing the DOE to address Student’s special education needs (Ex

A 13-14);

- A Functional Behavioral Assessment (FBA) and Behavior Intervention Plan (BIP) by a Board Certified Behavior Analyst (BCBA) (Ex A 14);

- An array of Compensatory make up services: “At minimum, a bank of private one-to-one ABA services at a rate calculated on a 46-week basis will also be ordered as well as BCBA supervision of this program should be ordered as push-in services and after-school.” (Ex A 14); and

- Compensatory Related Services of:

● A bank of private one-to-one occupational therapy services at the enhanced rate offered by the district, by a provider of the parent’s choosing, to make-up for lack of appropriately individualized services provided by the district.

● A bank of private one-to-one physical therapy services at the enhanced rate offered by the district, by a provider of the parent’s choosing, to make-up for lack of appropriately individualized services provided by the district.

● A bank of private one-to-one speech-language services at the enhanced rate offered by the district, by a provider of the parent’s choosing, to make-up for lack of appropriately individualized services provided by the district.

● A bank of private one-to-one counseling and social skills training at the enhanced rate offered by the district, by a provider of the parent’s choosing, to make-up for lack of appropriately individualized services provided by the district.

● A bank of private one-to-one assistive technology (AT) training (for both the Hearing Officer‘s Finding of Fact & Decision Parent and Student) at the enhanced rate offered by the district, by a provider of the Parent’s choosing, to make-up for lack of appropriately individualized services provided by the district.

● A bank of private one-to-one parent counseling and training services at the enhanced rate offered by the district, by a provider of the parent’s choosing, to make-up for lack of appropriately individualized services.

● A bank of private one-to-one ABA with BCBA supervision (both in school and at home) at the enhanced rate offered by the district, by a provider of the parent’s choosing, to make-up for lack of appropriately individualized services provided by the district. (Ex A 14-15)

Parent Attorney, at Hearing, of 09/06/2023, opted not to present information regarding some forms of relief. Ultimately, withdrawing the relief related to OT, PT, SLT, Counseling and AT services. (T 100)

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 did not appear at Hearing, of 08/16/2023. This Hearing was held to allow an opportunity for the DOE to defend against the allegations contained in the DPC.

The DOE not appear, or otherwise defend against the allegations contained in the

DPC. (Ex A)

The DOE responded to neither any allegation made in the DPC, nor to any information presented in the Parent’s evidence.

The DOE has not evidenced any interest in responding to the special education needs of the Student. It is somewhat shocking the at the DOE has no response to the Hearing Officer‘s Finding of Fact & Decision conclusions of the Clinical Psychologist which paint a grim picture of the actions taken, and not taken, by the DOE:

“Certain entities in the DOE are wasting my time, tying up valuable time of the Impartial Hearing Office and making a mockery of educational law.” (Ex T 29); and

Referring to the Student: “The DOE is squandering his potential and functionality.” (T 30)

Notably, the DOE failed to appear at three of the six Hearing dates.

The Parent Attorney briefly summarized the Parent’s position related to the sought after relief:

“I'm seeking programmatic relief as well as compensatory relief, for the past two full school years. The last decision was in August of 2021. So it covers the full two school years of '21/'22 and '22/'23 compensatory-wise. I filed this on the first day of the current school year, '23/'24, to seek programmatic relief of continual push in full-day ABA and the at-home program and BCBA supervision and Parent counseling training.” (T 49-50)

Services sought match those indicated in the recent Pendency Order. (T 51, IHO Ex III)

Parent laid out the Parent’s position via an opening statement, recounting Student educational history and allegations. (T 51-58

Parent recounted the Student’s education history, including:

- A finding that the DOE denied the Student a FAPE, for multiple school years, which included relief of deferral to the Central Based Support Team (CBST), and compensatory services (T 55, Ex B);

- Parent had difficulty engaging appropriate Student services, which resulted in gaps of service (T 55);

- In May of 2022 am IEP recommended a Non-Public School, however, a placement was not offered (T 55, Ex F);

- An April 2023 IEP was developed (Ex E) included the previously made recommendations, which were not implemented (T 55); and

- Student has been denied a FAPE for the past several school years resulting in the Parent seeking programmatic relief of “30 hours a week of push-in ABA Hearing Officer‘s Finding of Fact & Decision into his current public school, three hours a week of BCBA supervision, one hour a week of parent counseling and training. We're also seeking at-home ABA, in the amount of 10 hours a week of ABA, as well as one hour a week of BCBA supervision.”; Compensatory services, as recommended; and an FBA and BIP (T 57-58 & 73-74).

The Parent Attorney acknowledges that the 30 sought after weekly hours, of ABA services, with 3 weekly hours of BCBA supervision, is an increase from the most recently implemented 25 weekly hours of ABA with 2.5 hours of weekly BCBA supervision. (T 87-88, Ex B 28 & Ex III 7)

Parent Attorney argues the increase is necessary due to: “…his regression, on the fact that they haven't found a school, that they didn't allow the ABA to push in for a long period of time. That decision with the pendency was back in 2021. So that's what was appropriate then. And clearly, he needs more. So that's supported by the neuro-psych, Exhibit T, also.” (T 88)

Parent seeks hours to utilized both in school and in the home setting. (T 91)

Parent Attorney argues for relief that would make Student whole for the denial of FAPE, and for services that went undelivered, which resulted in regression: “I'm seeking a final order that they provide the push-in ABA, 30 hours full day, and the ten hours of athome weekly, as well as three hours of BCBA supervision of the school program.” (T 92 & 94)

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

[REDACTED], MS.ED., BCBA, LBA

Witness provided Testimony via Affidavit (Ex S), and at Hearing, which included:

- She is the director and behavior analyst at [REDACTED], the Agency intending to provide the Student in-school ABA services, for the upcoming school year (T 101-102);

- She feels it is appropriate to increase the Student’s weekly ABA hours from 25 Hearing Officer‘s Finding of Fact & Decision to 30 (T 103);

- She recommends compensatory ABA services to be provided in the Student’s home (T 103);

- Witness confirmed the recommendation for home services was made, I part, due to the lack of appropriate service in the past and added: “As well as due to actually not even being in the correct placement and not receiving ABA…the student's problem and behaviors have increased…in both environments. So because of that, the student would need and would require…the services both at the school and at the home to ameliorate those behaviors.” (T 104);

- Witness notes that her recommendation is the minimum amount to make the Student whole: “Sure that is the minimum amount appropriate. Unfortunately, [Student], due to the interruption in services, the exhausting of the hours, the hours not being reauthorized, the delay of the initial authorization to start services -- this student has really not have -- had the opportunity…to be successful…And so as a result, this is…the minimum, the very base…that would be appropriate to get him to that place. However, that is not the -- that is not to say that that is -- that it's not the maximum. Obviously, he would require more, but that would just be the very minimum.” (T 106); and

- The Witness distinguishes between the compensatory hours and the recommended ten weekly home hours of ABA service: “…the ten hours…

would be the current programming that is required for him in order to -- that's minimally appropriate for him to acquire skills to decrease the problem behaviors…and also, we're also looking…with [Student], we have to now have those other behaviors…that have now…have been demonstrated which are problematic that he's not he did not have before. Now it's a new set of learned behaviors which may have a different function. And that is why…I was also requesting a functional behavioral assessment. Those all have to be now extinguished…And so…the current program would work…on just the current -

- what he requires at the moment versus the compensatory is…what he would require in order to bring him back to a place where he should have been. Hearing Officer‘s Finding of Fact & Decision

A Due Process Complaint (DPC) 07/06/2023

Details allegations of a denial of FAPE and sought after relief.

B Findings of Fact and Decision, Case 203399 08/16/2021

Found a denial of FAPE for the 19-20, 19-20, 20-21, and 21-22 school years. (Ex B 28)

Served as the basis of Student Pendency, as set forth in Pendency Order. (IHO Ex III)

C Affidavit of Neuropsychologist 08/01/23

Details qualifications of Psychologist, and rate for evaluation.

D Ten Day Notice (TDN) 06/21/23

Parent notifies the DOE of:

- Student recent educational history and DOE failure to offer a FAPE, for the 22-23 and 23-24 school years;

- Objection to the recent IEPs (Ex D 1);

- Areas of disagreement with the proposed IEPs, and services Parent believes are necessary to be included to offer the Student an appropriate program (ABA)

(Ex D 2-3);

- Demand for an Independent Educational Evaluation (Ex D 3); and

- Notice of intent to seek DOE funding for necessary Student services, to provide Student appropriate support, to enable access to education. (Ex D 3)

E Individualized Education Program (IEP) 04/25/23

Classification of Autism. Ex E 1)

Notes there is no need for a BIP. (Ex E 4)

Recommends:

o Special education class consisting of twelve students, one teacher, and one assistant teacher (12:1+1)

o New York State Education Department (NYSED) Approved Non-Public Hearing Officer‘s Finding of Fact & Decision school, ten times per week for Math, ten times per week for o ELA, two times per week for Social Studies, and four times per week for

Sciences

o Individual Counseling one time per week for 30-minutes, group Counseling one time per week for 30-minutes,

o Individual Occupational Therapy (OT) one time per week for 30-minutes o Individual Speech-Language Therapy (SLT) one time per week for 30- minutes, and group speech-language therapy one time per week for 30-

minutes

o A tablet with communication applications, writing and text to speech applications, headphones, and a microphone o Services recommended on a twelve-month basis.

(Ex E 17-19 & 23)

o Special Transportation (Ex E 23)

Includes Instructional and Functional Levels of 1st grade for Reading and Math. (Ex E 24)

F IEP 05/23/22

Classification of Autism. Ex F 1)

Notes there is no need for a BIP. (Ex F 6)

Recommends:

o Special education class consisting of twelve students, one teacher, and one assistant teacher (12:1+1)

o New York State Education Department (NYSED) Approved Non-Public school, ten times per week for Math, ten times per week for o ELA, two times per week for Social Studies, and four times per week for

Sciences

o Individual Counseling one time per week for 30-minutes, group Counseling one time per week for 30-minutes,

o Individual Occupational Therapy (OT) one time per week for 30-minutes o Individual Speech-Language Therapy (SLT) one time per week for 30Hearing Officer‘s Finding of Fact & Decision minutes, and group speech-language therapy one time per week for 30-

minutes

o A tablet with communication applications, writing and text to speech applications, headphones, and a microphone o Services recommended on a twelve-month basis.

(Ex F 18-20 & 24)

o Special Transportation (Ex F 23-24)

Includes Instructional and Functional Levels of Kindergarten for Reading and Math. (Ex F 24)

G [REDACTED], Inc. Progress Report 05/12/23

Details Student challenges and special education needs, including: Autism, communication, and behaviors. (Ex G 1-2)

Behaviors and interventions are detailed, including the use of ABA. (Ex G 1-2)

Student academic challenges are detailed, with goals, and progress is noted, for:

o Reading (Ex G 2-4)

o Math (Ex G 4)

o Daily Living Skills (Ex G 4-5)

o Social Skills (Ex G 5-7)

Recommendations include:

- Noting the Student has shown progress in the school and home settings;

- Student continues to require intensive evidence based interventions of ABA to be available for learning;

- Student requires a small, structured, full-day ABA program in a school setting with professionals who have experience and training in ABA implementation;

- Student targeted goals should focus on improving coping skills, appropriate social skills, conversations with peers, classroom readiness, and daily living skills (i.e., toileting)

- Student ABA program requires supervision by a Behavior Analyst to

Make systematic modifications and adjustments to the interventions; Hearing Officer‘s Finding of Fact & Decision

- If Student is not placed in an ABA school that provides ABA throughout the day, including during specials and related services, Student continues to require a minimum of 25-hours of push-in ABA at his current school placement and throughout the school day (including during specials and related services);

- Student requires continuation of at-home ABA services to teach the necessary skills (academic, language, social, self-help, community)

while ameliorating problem behaviors that pose a barrier to learning and achieving socially significant outcomes. (Ex G 7)

- Student requires at-home ABA not only for skill acquisition, skill maintenance, retention of skills taught, and prevention of regression of skills, but he requires intensive intervention in both environments to eliminate carryover effects and behavioral contrast. This is crucial as behaviors will increase in the environment where the empirically based interventions are not being implemented. Similarly, if the evidence-based interventions are utilized in one environment and not the other, the behaviors will be maintained and perpetuated in the environment where the interventions are not being implemented which will have a carryover effect into the environment in which the intervention is being implemented; and

- Student’s family continues to require parent counseling and training to teach them how to effectively implement the interventions not only in the home, but also in the community. (Ex G 8)

H NYC DOE Report Card, Marking Period 2, 22-23 03/06/23

Indicates Student is below standards academically.

I Autism Skills Assessment 06/30/21

Reviews Student records, testing, services, supports, parental concerns, and behavior observations. (Ex I 1-5)

Testing results are summarized: Hearing Officer‘s Finding of Fact & Decision

- Student emitted significant high rates of problem behaviors that interfered with his availability for sustained attention. Behaviors observed included, but were not limited to: elopement from the testing area, grabbing materials and items in close proximity, continuously getting out of his seat, failure to respond, failure to attend to stimuli in front of him, protesting in the form of whining, frequent movement and turning his body away from testing area while seated, failing to comply to requests made, and failure to respond;

- Problem behaviors were continuous and interfered with Student’s ability to attend and fluidly participate in the assessment (Ex I 7);

- Report notes that conventional classroom strategies of prompting is solely utilized. In order for Student to be available for learning, he requires ABA in order to shape behaviors. (Ex I 8)

Recommendations include:

o A full day ABA program

o Class size of no more than 6 students

o 12 month extended school year (Ex I 9)

o Minimum of 7.5 weekly hours of home ABA instruction for academics and to address behaviors (Ex I 9-10)

o Parent Counseling and Training (PCAT) four (4) hours per month in order to train the family in the interventions (Ex I 10)

J Occupational Therapy Evaluation 05/18/21

Details areas of Student need, sets forth goals, and recommends OT services.

K Physical Therapy Evaluation 05/18/21

Details areas of Student need, sets forth goals, and recommends PT services.

L Neuropsychological Evaluation 02/04/21

Evaluation reviews Student educational record, sets forth Student testing, and Hearing Officer‘s Finding of Fact & Decision reviews results. (Ex L 1-29)

Summary and recommendations include:

- Diagnoses of:

o Autism Spectrum Disorder, Level 3, requiring very substantial support for deficits in social communication and restricted behaviors with intellectual impairment: Level of severity: Severe o Attention Deficit Disorder, Combined type (Ex L 29)

- Student “requires a private school program for children with ASD. He requires an homogenous grouping with a ratio of no greater than 6:1 and a 1:1 paraprofessional assigned to him for instruction and for safety. His severe symptomatology makes him unavailable for learning. [Student] was responsive to 1:1 ABA techniques I used during the evaluation. In my clinical opinion, he requires 1:1 intensive instruction implementing a research-based, structured program of Applied Behavioral Analysis(ABA)

which has been shown to be effective for children with autism.” (Ex L 30);

The frequency and duration of ABA, based on best clinical practice, is a minimum of 35 hours per week, 12 months a year to treat significant symptoms of autism (poor imitation skills, poor incidental learning, maladaptive behaviors and self-stimulatory behavior) in order to provide an appropriate program (Ex L 30);

- It is recommended that Student receive 10 hours of ABA at home and school-based 25 hours of ABA per week. Student “requires a private school program for children with ASD. (Ex L 30);

- Staff needs to be trained by a BCBA;

- Calls for Autism Assessment, FBA and BIP (Ex L 30-31); and

- Student program should include PCAT and related therapy services. (Ex L 31)

M NYC DOE Assistive Technology Evaluation 01/22/21 Hearing Officer‘s Finding of Fact & Decision

Evaluation calls for Student to receive AT supports.

N NYC DOE Speech/Language Evaluation 01/20/21

Details areas of weakness relating to the need for SLT.

O Curriculum Vitae of Dr. [REDACTED] Undated

Details qualifications of evaluator who completed Neuropsychological Evaluation. (Ex L)

P Resume of [REDACTED] Undated

Details qualifications of behavior analyst at [REDACTED], the Agency intending to provide the Student in-school ABA services, for the upcoming school year. (T 101102);

Q Resume of [REDACTED] Undated

Details qualifications of BCBA employed by [REDACTED].

R Program Disagreement/IEE Request Letter 06/20/23

Communication with DOE, from Student’s mother:

- Detailing objections to recent IEP, of 04/25/2023 (Ex R 1-2, Ex E);

- Requesting a Neuropsychological Evaluation (Ex R 1);

- Contending the Student requires ABA services as part of an appropriate

Program (Ex R 2-3);

- Requesting an appropriate Student program, inclusive of ABA, BCBA and PCAT. (Ex R 3)

S Affidavit of [REDACTED] 08/17/23

Witness, director of [REDACTED], testimony includes:

- detailing her qualifications, and experience (Ex S 1-2);

- familiarity with the Student, for whom she conducted an Autism Skills Hearing Officer‘s Finding of Fact & Decision

Assessment (Ex I, Ex S 2);

- detailing Student challenges, and progress made via ABA interventions (Ex S

3);

- Student’s ABA services were discontinued, in April of 2023, and did not start up until July 2023 (Ex S 3-4);

- Due to the lack of services the Student “significantly regressed to a point where he was at baseline levels.”; additional behaviors developed which significantly impedes his ability to learn; and academic skills significantly regressed (Ex S 4);

- Recommendations include:

o Full-day ABA program, both in school and at home (Ex S 4-5)

o Until placement is found 30 hours of push in ABA, with BCBA supervision of 3 hours weekly (Ex S 5)

o A 12-month extended school year

o Daily SLT

o Small class of no more than 6 students (Ex S 5)

o 10 hours weekly of home-based ABA, with a weekly hour of BCBA supervision (Ex S 5-6)

o PCAT of four hours monthly (Ex S 6)

- Compensatory recommendations are made for failure to continue appropriate ABA services, intended to make Student whole for his loss of skills/regression:

o 690 hours of intensive 1:1 At home make up ABA, with 69 hours of BCBA supervision (Ex S 6)

o PCAT of 92 hours (Ex S 6-7)

T Neuropsychological Evaluation 09/05/23

Recent Evaluation includes:

- Recounting Student educational and evaluation history (Ex T 1-6);

- Testing and Behavior Observations (Ex T 7-27)

- Summary includes:

o lack of progress due to a wholly inadequate IEP Hearing Officer‘s Finding of Fact & Decision o His current educational program is inappropriate. “The most egregious statement on the IEP indicates that the only reason a non-public school setting was considered was due to an Impartial Hearing Order. In the next sentence, the IEP indicates that the placement was rejected because of the Order. In addition, all of Nicolas’ IEP goals are vague, not quantifiable and therefore unmeasurable.” (Ex T 28, Ex F 26);

o Student ASD is significant and it is clear that he has needed a higher level of intervention than a class of 12:1:1 in a community school and this need was known years ago. This need was recognized by an Impartial Hearing Order but rejected on his current IEP. Student clearly needs a specialized program to address the symptomatology of Autism which is preventing him from accessing his education;

o The data of multiple evaluations not consistent with programming at a community school. The persistence of worsening symptomatology

(regression of scores in this report) indicate that the program was not appropriate (Ex T 29);

o Diagnoses of Autism Spectrum Disorder, Level 3, requiring very substantial support for deficits in social communication and restricted behaviors with intellectual impairment and language impairment; and

Attention Deficit/Hyperactivity Disorder, combined type (Ex T 28);

- Recommendations include:

o private school program dedicated exclusively to the education of children with ASD, severe o Unless and until an appropriate program can be located, Nicolas must receive full day (30-hours weekly) 1:1 ABA pushed into his public school placement, along with at home ABA to even allow him access to his education (Ex T 29)

o total wrap-around program where ABA is an integral part of the program, including behavior specialists, special educators, speech and language specialists, PTs, OTs and behavior specialists o 1:1 intensive instruction implementing a research-based, structured Hearing Officer‘s Finding of Fact & Decision program of ABA

o It is imperative that ABA be implemented at home in order to decrease intermittent and unwitting reinforcement of inappropriate behaviors and to prevent regression in the school setting. Regression is noted in the data of the current neuropsychological evaluation in comparison to the

2/21 report. Student has a severe handicapping condition. His 2021 was hopeful. The DOE is squandering his potential and functionality o BCBA supervision and training of staff o An FBA and BIP, conducted by a Licensed Behavior Analyst/BCBA (T 30)

o PCAT

o Compensatory PCAT

o Compensatory ABA to be utilized simultaneously while addressing his academic needs in all areas as well as social skills and counseling to attempt to make Student whole again after being denied a specialized and individualized program to allow him access to his education o OT

o SLT

o AT (Ex T 31)

o Social Skills Training

o 12-month school year (Ex T 33)

Witness adds that he has confidence in his recommendations being able to result in Student improvement. (Ex T 33) Hearing Officer‘s Finding of Fact & Decision

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 Hearing Officer‘s Finding of Fact & Decision 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 Hearing Officer‘s Finding of Fact & Decision

[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 Hearing Officer‘s Finding of Fact & Decision 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). Hearing Officer‘s Finding of Fact & Decision

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 Hearing Officer‘s Finding of Fact & Decision 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 22-23 and 23-24 School Years The DOE opted not to present a defense to the Parent’s allegations.

The district has presented no witnesses in this matter. Although various documents, including IEPs (Ex E & F), it is well established that an IEP does not on its own, without testimony to explain its appropriateness, establish that a FAPE has been provided. See e.g. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016) Additionally, evidence, as considered above does not support the IEPs as sufficient to offer the Student a FAPE.

Accordingly, I conclude that the district has not met its burden to establish that it provided a FAPE, for either school year.

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 22-23 or 23-24 school years.

I find the DOE failed to offer the Student a FAPE for the 22-23 and 23-24 school years. Hearing Officer‘s Finding of Fact & Decision

Appropriate Student Services for the 23-24 School Year & Compensatory Services

Uncontroverted Testimony and Documentary Evidence, as reviewed above, support the sought after relief as forming the basis of an appropriate Student program, for the 23-24 school year.

Evidence also supports an award of Compensatory services, as detailed below.

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 when an appropriate Student program is provided. (Ex G, I, J, L, M, N, S & T)

Student is also evidenced to be entitled to an award of compensatory services, due to the DOE failure to offer the Student a FAPE via appropriate IEPs, and through the failure to offer the Student an actual placement. This resulted in the Student not receiving necessary services, and regressing. (T 88, 92& 94, Ex G 8, T 29 & 33, S 4 & 6)

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).

The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Hearing Officer‘s Finding of Fact & Decision

Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).

In this instance I find it appropriate to tailor the appropriate relief based upon the evidence provided which supports a program of services designed to meet the Student’s immediate needs or an appropriate education, in conjunction with coordination of appropriate compensatory services to address the Student’s regression.

I find that the array of services to be supported by the evidence, and shall provide special education services specifically tailored to meet the needs of the Student, as well as provide compensatory services designed to meet the unique needs of the Student. I note that the services have consistently been recommended, in one form or another, as appropriate and necessary for the Student, for several years. (Ex B & I)

Appropriate Relief includes:

o Student’s appropriate 23-24 program includes a Full-day, ABA program, with an home ABA program component (Ex S 4-5)

o A 12-month extended school year (Ex S 5 & T 33)

o Until an appropriate placement is found student shall receive 30 hours of school-based push-in ABA, with BCBA supervision of 3 hours weekly (Ex S 5 & T 29)

o 10 hours weekly, of home-based ABA, with a weekly hour of BCBA supervision (Ex S 5-6 & T 29)

o Compensatory services of:

- Parent Counseling and Training (PCAT) of 92 hours (Ex S 6-7)

- 690 hours of 1:1 At home make up ABA, with 69 hours of BCBA supervision (Ex S 6) Hearing Officer‘s Finding of Fact & Decision

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 Hearing Officer‘s Finding of Fact & Decision 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 Hearing Officer‘s Finding of Fact & Decision 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)

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 Hearing Officer‘s Finding of Fact & Decision 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 does not offer any response to the Parent’s request for an FBA and

BIP. (Ex A 14)

Evidence supports the need for Student evaluation in the form of an FBA and BIP. disagree with the Parent request for evaluations. (T 30, L 30-31 & T 30) Hearing Officer‘s Finding of Fact & Decision

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 22-23 and

23-24 school years.

2. An appropriate 23-24 Student program includes:

- A Full-day, ABA program, with a home-based ABA program component; and

- A 12-month extended school year

3. Until an appropriate placement is found, and accepted by the Parent, the DOE shall fund, via Parent chosen provider(s), at reasonable market rate, 12-month Student services of:

o 30 hours of school-based push-in ABA, with BCBA supervision of 3 hours weekly o 10 hours weekly, of home-based ABA, with a weekly hour of BCBA

supervision

o Parent Counseling and Training (PCAT) of four hours monthly

4. The DOE shall fund Compensatory Student services, via Parent chosen provider(s), at reasonable market rate, of:

o Parent Counseling and Training (PCAT) of 92 hours o 690 hours of 1:1 At home make up ABA, with 69 hours of BCBA supervision

Parent shall have until 12/31/2025 to utilize the above Compensatory Services.

5. The DOE shall fund Student evaluation, via Parent chosen entity/evaluator, at reasonable market rate:

o A Functional Behavioral Assessment (FBA) and Behavior Intervention Plan (BIP) by a Board-Certified Behavior Analyst (BCBA) Hearing Officer‘s Finding of Fact & Decision

6. The DOE shall provide Parent with any documents or forms necessary to authorize and facilitate services, and 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: September 15, 2023

DANIEL AJELLO

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.