Impartial Hearing Decision

CASE NUMBER: 252217

FINDINGS OF FACT AND DECISION

Case Number: 252217

Student’s Name: [REDACTED] [REDACTED]

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: July 28, 2023

Date(s) of Hearing: August 28, 2023

September 26, 2023

October 5, 2023

Actual Record Closed Date: October 25, 2023

Date of Decision: November 7, 2023

Date of Distribution if Different than Decision Date: N/A Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

August 28, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

September 26, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

[REDACTED] [REDACTED], Legal Intern

[REDACTED] [REDACTED], Parent Student

[REDACTED] [REDACTED], BCBA, LBA

For the Department of Education:

[REDACTED] [REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

October 5, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

[REDACTED] [REDACTED], Parent Student

[REDACTED] [REDACTED], CCC-SLP, Speech Language Pathologist

[REDACTED] [REDACTED], BCBA, LBA

For the Department of Education:

[REDACTED] [REDACTED], Esq.

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC”) filed on or about July 28, 2023. Ex. A.^[1] On August 1, 2023, I was appointed by the New York City Department of Education to hear this matter. Parent alleges that the Department of Education (the “Department”) failed to provide [REDACTED] with a free appropriate public education (“FAPE”) for the 2023-2024 school year and seeks funding for a proposed home-based program of ABA therapy, speech-language therapy, occupational therapy, counseling and parent training and counseling until such time that the Department can identify an appropriate non-public school placement with a 1:1 transportation paraprofessional for [REDACTED]; compensatory education and services, such as ABA therapy, speech-language therapy, occupational therapy, and counseling with related transportation costs; and an independent educational evaluation at public expense (“IEE”). Ex. A.

I conducted a prehearing conference on August 28, 2023. Counsel` appeared on behalf of [REDACTED]’s parent; no one appeared on behalf of the Department. Counsel clarified the claims and the relief sought in this case, stated that Parent was not seeking a pendency order, and discussed the IEE request, stating that Parent wished to proceed to the hearing on the merits (and include evidence relating to the IEE request) rather than seeking an interim order as to the IEE request. Tr. 4-10. Evidentiary matters were discussed, and hearing dates were scheduled. Tr. 10-19.

The hearing commenced on September 26. Department counsel presented an opening statement that the Department was not presenting a case but would cross-examine Parent’s witnesses and present arguments with respect to equitable factors. Parent’s Exhibits A through K were admitted in evidence, and Parent’s counsel presented an opening statement. [REDACTED]’s mother and a Board Certified Behavior Analyst (“BCBA”) testified. The hearing was continued to, and completed on, October 5 with the testimony of a speech-language pathologist, the admission of Parent’s Exhibit L, and closing statements.

The record closed on October 25, 2023, upon the Hearing Officer’s review of the transcript of the final day of hearing.

Counsel requested an extension of the compliance date, and a written Order of Extension was issued on September 26, 2023. The reasons for granting the extension are set forth in the Order of Extension.

JURISDICTION

The due process hearing was held, and a decision in this matter is now 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. Part 300, and New York State Education Law § 4404, and its implementing regulations, 8 N.Y.C.R.R. Part 200. [REDACTED]’s parent consented to the conduct of the hearing by videoconference and the transmission of this decision by email.

ISSUES

[REDACTED]’s parent challenges the Department’s failures to provide [REDACTED] with a FAPE for the 2023-2024 school year and requests funding for “private providers” for the following program for [REDACTED]: 35 hours per week of “ABA-based” home instruction, two hours per week of ABA supervision by a BCBA, one hour per week of parent-training and counseling, one hour per week of speech-language therapy and one hour per week of occupational therapy, “until the District can identify an appropriate Non-Public School placement with a 1:1 transportation paraprofessional;” a compensatory education award in the form of a 12-week program composed of the same special education and related services; and a number of independent evaluations and assessments as an IEE at public expense. Ex. A; Tr. 36-38. At the hearing, the Department did not defend the special education programs that it offered to [REDACTED] for the 2023-2024 school year. The issues to be resolved are:

1. What is the import of the Department’s failure to defend its CSE’s IEP for [REDACTED] for the 2023-2024 school year?

2. Is [REDACTED]’s parent entitled to funding for the costs of the proposed program of home-based ABA instruction with ABA supervision and related services?

a. Does a preponderance of the evidence demonstrate that the proposed program meets [REDACTED]’s special educational needs?

b. What are the equitable factors relevant in this proceeding?

c. What are the current educational alternatives for [REDACTED], and what authority does a Hearing Officer have to order such alternatives?

3. What, if any, compensatory educational relief is appropriate for [REDACTED] for the 2023-2024 school year?

4. Is [REDACTED] entitled to an IEE at public expense?

a. If so, what are the components of an appropriate IEE for [REDACTED] in light of Parent’s requests for a neuropsychological evaluation, a speech-language evaluation, an occupational therapy evaluation, an assistive technology evaluation, an ABA Skills Assessment, and a functional behavioral assessment (“FBA”)?

b. If so, what are the reasonable costs for an appropriate IEE for

[REDACTED]?

FINDINGS OF FACT

1. [REDACTED] is a REDACTEED year-old young man who is eligible for special education and related services under the IDEA and whose disability, for the purposes of the IDEA, is classified as autism. Ex. E at 1.

2. [REDACTED] “presented with signs of a developmental and [REDACTED] disorder in early childhood.” Ex. B at 14. He has been diagnosed with a [REDACTED], an [REDACTED] ([REDACTED]), [REDACTED], [REDACTED], [REDACTED],

[REDACTED], and [REDACTED] [REDACTED] [REDACTED] [REDACTED]. Ex. B

14, 17-19.

3. [REDACTED] has a history of behavioral and [REDACTED] difficulties throughout his school career. Exs. B at 2, C, D, E, J at ⁋ 4.

4. [REDACTED] struggles with attention, social relatedness, speech and language, all aspects of academics, aggressive and dangerous behaviors, [REDACTED] behaviors, behaviors which interfere with his learning, impulsivity, distractibility, executive functioning, understanding and following instructions, anxiety, self-isolation, and coping skills. Ex. B passim; Ex. C passim, Ex. D passim; Ex. E passim; Ex. J at ⁋⁋ 4, 5. Furthermore, “[t]he interaction of [REDACTED], [REDACTED] and [REDACTED] difficulties significantly limits [his] ability to function to his potential” and he “needs a very high degree of academic, clinical and social supports.” Ex. B at 16. [REDACTED]’s Educational History

5. As a preschool student, [REDACTED] received some SEIT services in his preschool classroom. He would elope from his preschool classroom. Tr. 118-119.

6. [REDACTED] was placed in a general education kindergarten class. He demonstrated

“outbursts” in his kindergarten classroom and bit and hit teachers. Tr. 119; Ex. B at 1. 7. [REDACTED] was placed in a special education classroom in a general education school for first grade. Tr. 117-118, 119. 8. He remained in a special class in a general education school until second or third grade, when the Department placed him in a District 75 special education school, where he remained through fifth grade. Tr. 119-120. 9. [REDACTED] attended a District 75 middle school. Tr. 120. During his middle school years, Department personnel prepared a BIP for [REDACTED]. This BIP targeted the following behaviors that [REDACTED] demonstrated: refusing to do school work, getting out of his seat, running out of the classroom (which included “escaping from the class or building”), and violating school property. Ex. B at 8; see also Ex. J at ⁋ 4. [REDACTED]’s High School Years 10. [REDACTED] attended [REDACTED]. [REDACTED] School, a District 75 high school, where his behavioral and emotional difficulties “significantly worsened.” He became “[REDACTED]” about attending class and would elope from the school building. Ex. B at 2; see also Ex. J at ⁋ 7. 11. [REDACTED]’s mother removed him from [REDACTED] for “safety reasons,” specifically that [REDACTED] had eloped from the school, and school staff were unfamiliar with [REDACTED]’s IEP. Tr. 132-133; Ex. J at ⁋ 7. 12. For tenth grade, the Department placed [REDACTED] at the [REDACTED] [REDACTED], a New York State approved non-public school in [REDACTED] [REDACTED]. Tr. 120; Ex. B at 1-2. 13. When [REDACTED] attended [REDACTED], the Department recommended a transportation paraprofessional for him because he was “aggressive and unsafe on the school bus.” Ex. B at 2. Even with the paraprofessional, he would elope from the bus on the way to school; he was suspended from the bus as a result. When [REDACTED] did attend school, he refused to enter the classroom and spent the day “alone with his 1:1 crisis para.” Ex. B at 2; see also Ex. J at ⁋⁋ 8, 9. 14. In 2020, [REDACTED] was evaluated by a neuropsychologist, who recounted a comprehensive history and conducted comprehensive testing of [REDACTED]. Ex. B. 15. Testing revealed that [REDACTED]’s general cognitive functioning fell in the borderline range, that “slow processing speed, limited persistence, inattention, poor planning impaired oral expression and verbal reasoning as well as variable motivation compromised [REDACTED]’s performance,” and that “[REDACTED]’s depressed, sullen mood, withdrawal and [REDACTED] behavior interfered with his performing up to potential.”2 Ex. B at 10. 16. On academic testing (specifically the WJ-IV), [REDACTED] attained the following scores: word recognition – 9th%ile, 5.^[2] grade equivalent; decoding – 17th%ile, 4.7 grade equivalent; reading comprehension – 23rd%ile, 6.9 grade equivalent; writing samples – deficient at 1st%ile, 2.5 grade equivalent (he struggled to write simple sentences); math computation – 2nd%ile, 4.1 grade equivalent; and math problem solving – below 0.1 %ile, 2.0 grade equivalent. Ex. B at 13-14. 17. The neuropsychologist recommended that (Ex. B at 18-20): a. [REDACTED] attend a day treatment program for students with ASD that can provide small classes of no more than eight students; b. [REDACTED] receive 1:1 or 2:1 instruction throughout “most” of the school day; c. [REDACTED] receive daily 1:1 reading, writing and math remediation; d. [REDACTED]’s program include mental health professionals and a BCBA, who can “regularly perform” FBAs and develop and modify BIPs for [REDACTED]; e. [REDACTED] receive ten hours per week of tutoring; f. [REDACTED] receive speech and language therapy, counseling, and psychotherapy; g. Kyree undergo occupational and assistive technology evaluations; h. [REDACTED]’s mother receive parent counseling and training; and i. Weekly [REDACTED] consultation. 18. In 2020, [REDACTED] participated in an FBA performed by an independent evaluator, who also developed a BIP. Ex. C. The evaluator was a BCBA. Ex. C at 28. 19. The evaluator found that [REDACTED] demonstrated the following behaviors that “prevent him from functionally engaging in his environment:” ^[3] a. Elopement (including leaving class, school, and the school bus); b. Verbal aggression (screaming, yelling); c. Non-compliance (ignoring directions or refusing to follow directions); and d. Off-task behaviors and refusing to acknowledge others. 20. The evaluating BCBA recommended that [REDACTED] attend a special education school with a 1:1 educational program, a BCBA on staff, and providing a full-time ABA program “which is equivalent to about 35 hours per week of full time 1:1 ABA support” and a BIP. Ex. C at 16-18. 21. The evaluating BCBA also recommended that [REDACTED] receive (in addition to a school program) ten hours per week of ABA therapy at home provided by a BCBA. Ex. C at 18. The purpose of these services would be to address [REDACTED]’s maladaptive and inappropriate behaviors in order for him to be available for learning at school such that he would be able to develop foundational skills. Ex. C at 18. 22. The evaluating BCBA recommended parent counseling and training for [REDACTED]’s mother. Ex. C at 19-20. 23. In addition to the FBA, [REDACTED] was administered an ABA Skills Assessment in 2020. The Assessment was conducted by a BCBA. Ex. D. The Assessment indicated that [REDACTED] demonstrated maladaptive behaviors that interfered with his learning and deficits in all skills domains. Ex. D. 24. The evaluating BCBA substantially repeated the recommendations set forth in the FBA/BIP, in evidence as Exhibit C. Ex. D. 25. In summer 2021, [REDACTED]’s mother enrolled [REDACTED] at the [REDACTED] [REDACTED] School, a non-approved special education school located in northern Westchester County. Tr. 120; Ex. J at ⁋ 10. [REDACTED] continued at [REDACTED] [REDACTED] through June 2023. Tr. 121. 26. On December 7, 2021, [REDACTED]’s mother attended an IEP meeting for [REDACTED]. Ex. E at 37. At the meeting, [REDACTED]’s mother reported that [REDACTED] was doing well at [REDACTED] [REDACTED] and that he had eloped from the bus only two times since starting at the school. Ex. E at 37; see also Ex. E at 5-6 (outlining teachers’ reports of [REDACTED]’s progress at [REDACTED] [REDACTED]). 27. The CSE recommended that [REDACTED] attend District 75 8:1:1 program with related services, full-time 1:1 behavior support paraprofessional, and specialized bus transportation with a 1:1 paraprofessional for supervision. Ex. E at 28, 34-35; Ex. F at 1. 28. The Department again offered [REDACTED] a placement at the J.M. [REDACTED] School. Ex. F at 5. 29. [REDACTED]’s mother continued [REDACTED]’s placement at [REDACTED] [REDACTED]. Tr. 121. 30. During the 2022-2023 school year, the Department failed to consistently provide the bus paraprofessional; without the paraprofessional, [REDACTED] could not get on the bus; if he could not get on the bus, he could not attend school that day. Sometimes, [REDACTED] went weeks without a paraprofessional and missed weeks of school. Tr. 123-125, 128-130; Ex. J at ⁋⁋ 11, 12. The 2023-2024 School Year and Parent’s Proposed Program 31. In March 2023, the Department asked [REDACTED]’s mother for consent to conduct a reevaluation of [REDACTED]; [REDACTED]’s mother promptly consented in writing. Ex. G. 32. On June 22, 2023, [REDACTED]’s mother participated in an IEP meeting for [REDACTED]. Tr.131; Ex. H. The IEP includes a summary of June 2023 testing results from a WJ-IV showing scores in the low average range in reading and math. Ex. H at 2. 33. The IEP also includes information from [REDACTED] [REDACTED] that [REDACTED] had improved his ability to attend class consistently, engage in literacy activities, complete math assignments, and make progress in speech therapy. Ex. H at 4-5. 34. The IEP also notes [REDACTED]’s attendance difficulties due to the problems with securing a bus paraprofessional and the school’s and parent’s concerns about [REDACTED]’s safety on the bus. Ex. H at 5. 35. The CSE again recommended that [REDACTED] attend District 75 8:1:1 program with related services (counseling, 30 minutes per week; occupational therapy, two 30-minute sessions per week; speech language therapy, two 30-minute sessions per week; parent counseling and training, one hour per month), full-time 1:1 behavior support paraprofessional, and specialized bus transportation with a 1:1 paraprofessional for supervision. Ex. H at 23-24, 29-30. 36. At the meeting, Department personnel informed [REDACTED]’s mother that they were going to recommend a District 75 school for [REDACTED]. Tr. 131; Ex. J at ⁋ 14. 37. The Department again offered [REDACTED] a placement at the J.M. [REDACTED] School. Ex. I at 5; Tr. 136; Ex. J at ⁋ 15. 38. [REDACTED]’s mother did not inform the Department that she had concerns about or otherwise objected to the June 2023 IEP or the placement at [REDACTED]. Tr. 135-136. 39. [REDACTED] was unable to continue at [REDACTED] [REDACTED] because the Department failed to consistently provide the bus paraprofessional. Tr. 123-125, 128-130; Ex. J at ⁋⁋ 11, 12. 40. [REDACTED] has not attended school since June 2023. Tr. 121. 41. [REDACTED]’s mother first informed the Department that she was seeking home-based instruction for [REDACTED] when the DPC was filed on July 28, 2023. Tr. 126-127. 42. [REDACTED] [REDACTED] in a Board Certified Behavior Analyst (“BCBA”), a New York State Licensed Behavior Analyst (“LBA”), and a New York State certified special education teacher for grades kindergarten through twelve. Tr. 89, 108; Ex. K at ⁋⁋ 1, 2. 43. Mr. [REDACTED] is the Clinical Director of [REDACTED] LLC, an agency providing home and school-based specialized education, including ABA therapy, to students diagnosed with autism or other developmental disabilities. Ex. K at ⁋ 5. 44. Mr. [REDACTED] described ABA as “the science and study of behavior” and explained that “ABA professionals observe and analyze behavior and then apply behavioral principles to change that behavior with the overall goal [of] increase[ing] appropriate behaviors while also decreasing challenging behaviors that interfere with a child’s ability to learn.” Ex. K at ⁋ 6. 45. ABA utilizes “proactive measures,” which are strategies that are “put in place to set the student up for success, including visual supports, visual schedules, and token economy systems so the child is getting [positive] reinforcement frequently.” Such strategies are outlined in a BIP along with “detailed procedures on how [therapists are] supposed to respond when an interfering behavior occurs [in order] to decrease the likelihood that it will occur again in the future..” Ex. K at ⁋⁋ 10, 11, 13; see also ⁋⁋ 14, 15. 46. Mr. [REDACTED] generally begins working with a student by “conducting an assessment to obtain information on where the child’s current level functioning is,” and, based on that information “develop specific programming goals that will teach the child specific skills that are necessary for him or her to learn and function in their daily environment.” Ex. K at ⁋ 8. 47. Mr. [REDACTED] has not evaluated or provided ABA services to [REDACTED]. He has, however, reviewed [REDACTED]’s IEPs, Department evaluations of [REDACTED], [REDACTED] Psychology Group independent neuropsychological evaluation (Ex. B), and a 2021 ABA skills assessment (Ex. D). Ex. K at ⁋ 17; Tr. 47-50, 52-54, 60-61, 88-89. 48. Mr. [REDACTED] based his recommendation for [REDACTED] of 35 hours per week of 1:1 ABA instruction on his document review. Tr. 61-62, 65, 82-83. 49. Mr. [REDACTED] recommended that ABA instruction should be provided at [REDACTED]’s home because [REDACTED]’s mother reported to him that [REDACTED] had eloped from the school bus, and Mr. [REDACTED] concluded that [REDACTED] was unable to tolerate commuting to school. Tr. 65-68, 82-83. 50. Mr. [REDACTED] opined that he agreed with the recommendation set forth in the 2021 ABA skills assessment (Ex. D) that [REDACTED] needed approximately 35 hours per week of ABA instruction because he “experience[es] a multitude of maladaptive behaviors,” and, as a result, needed to “diminish” these behaviors in order to be available for learning and to learn skills, including needed life, social, and pre-vocational skills as well as academic skills. Tr. 91-93, 102; Ex. K at ⁋⁋ 17, 18. Behavior reduction enables a student to focus on instruction and to learn. Tr. 102. 51. Mr. [REDACTED] opined that [REDACTED] needs consistent ABA interventions in order to make progress and that 35 hours per week of “1:1 ABA instruction will diminish [REDACTED]’s overall rate of maladaptive behaviors” and increase his attention span “to the point that he is acquiring and imitating behaviors” that are “conducive to acquisition[n]” of new skills. Ex. K at ⁋ 18. 52. ABA instruction would be provided by Registered Behavior Technicians (“RBTs”) and “target” [REDACTED]’s academic, functional communication, and daily living skills as well as his “maladaptive behaviors, including elopement and off-task behavior.” Tr. 101-102; Ex. K at ⁋ 19. 53. Mr. [REDACTED] recommended that [REDACTED]’s ABA program include one hour per week of supervision by a BCBA/LBA to supervise the ABA providers to ensure the proper implementation of the ABA program. Tr. 73; Ex. K at ⁋ 20; see also Tr. 110-111, 113. 54. Mr. [REDACTED] also recommended that [REDACTED]’s mother receive one hour per week of parent counseling and training in order to assist her in understanding the interventions and to implement ABA techniques at home, when the ABA providers were not present, in order “to reduce maladaptive behaviors, increase socially significant behaviors, and increase activities of daily living skills to help [REDACTED] function in the community, which is crucial for [REDACTED]’s age.” Ex. K at ⁋ 21. 55. [REDACTED]’s parent did not present any evidence of the compensatory hours of ABA that [REDACTED] should receive to address alleged violations of FAPE during prior school years or during the 2023-2024 school year to date. See, e.g., Tr. 70, 79-80. 56. Mr. [REDACTED]’s agency charges $300.00 per hour for ABA therapy and instruction. Tr. 98, 105-106, 109. 57. The agency pays the RBTs $75.00 to $80.00 per hour for providing ABA therapy and instruction. Tr. 103. 58. Mr. [REDACTED] charges $250.00 per hour for ABA supervision and provision of parent training and counseling. Tr. 98-99, 108. Factual Matters Relating to Request for IEE at Public Expense and Related Services 59. [REDACTED]’s mother, in the DPC, stated her disagreement with the Department’s most recent evaluations of [REDACTED] on the grounds that the Department failed to comprehensively evaluate [REDACTED] because it had not conducted speech-language, occupation therapy, assistive technology, ABA and psychological/neuropsychological evaluations of [REDACTED]. Ex. A at 5. 60. Mr. [REDACTED] charges $175.00 per hour for ABA-related assessment services. Tr. 95-96. 61. Mr. [REDACTED] charges $2,500.00 to conduct an ABA skills assessment because the testing requires approximately ten hours and then he prepares a report of the testing. Tr. 94-95. 62. Mr. [REDACTED] charges $2,500.00 for a combined FBA and Behavior Intervention Plan (“BIP”). Tr. 96-97. 63. Mr. [REDACTED] explained that a BIP sets forth specific strategies to reduce an individual’s maladaptive behaviors. Tr. 97. 64. [REDACTED] [REDACTED] is a New York State licensed speech-language pathologist. Ex. L at ⁋ 1. 65. Ms. [REDACTED] operates a private practice, [REDACTED] [REDACTED] Speech Services (“[REDACTED]”). Ex. L at ⁋ 5. She, along with other licensed speech and language pathologists, conducts speech-language evaluations and assistive technology evaluation and provides speech-language therapy and assistive technology training. Ex. L at ⁋⁋ 5-8. [REDACTED] also provides occupational and physical therapy. Ex. L at ⁋ 9. 66. [REDACTED] charges the following amounts for conducting evaluations and related services: speech-language evaluation, $2,500.00; assistive technology evaluation, $3,000.00; occupational therapy evaluation, $2,500.00; speech-language and occupational therapies, $300.00 per hour. Ms. [REDACTED] opined that these rates are “normal and customary rates” that are “comparable” to charges of other licensed providers in New York City and stated that the Department has paid these [REDACTED] at these rates in the past. Ex. L at ⁋⁋ 11-18; see also Tr. 182. 67. Ms. [REDACTED] has not evaluated or met [REDACTED] nor has she reviewed any evaluations, IEPs or other documents concerning [REDACTED]. Tr. 172. 68. The Department did not provide a schedule of rates that the Department has approved for independent evaluations at public expense or for related services. Additional Factual Matters Relating to the Equities 69. [REDACTED]’s parent did not submit a “ten-day” notice letter to the Department that she was seeking funding for a home-based program. Tr. 136.

CONCLUSIONS OF LAW

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982).

A board of education may be required to pay for education services obtained for a child by the child’s 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. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District

v. Carter, 510 U.S. 7 (1993); see also R.E. v. New York City Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121.

A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137

S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E., 694 F.3d at 189-90. 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. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 N.Y.C.R.R. 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v). The school district must then implement the IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3).

A hearing officer may determine that a school district denied a student a FAPE based upon the district’s procedural errors in the development of the IEP, deficiencies in the substance of the educational program set forth in the IEP, or both. See L.O. v. New York City Dep’t of Educ., 822 F.3d, 95, 109 (2d Cir. 2016); see also 20 U.S.C. § 1415(f)(3)(E)(i); 8 N.Y.C.R.R. § 200.5(j)(5)(v). If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. Furthermore, “[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; see also L.O., 822 F.3d at 123-124.

In New York, the school district bears the burden of proof in 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. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85. What is the import of the Department’s failure to defend its CSE’s IEP for [REDACTED] for the 2023-2024 school year?

In this case, the Department elected not to present testimony or documentary evidence to explain how its IEP met [REDACTED]’s unique special educational needs and provided a FAPE to [REDACTED]. Since the Department did not offer evidence to demonstrate that the program it had developed for [REDACTED] was “reasonably calculated” to permit him to make progress given his unique circumstances, the Department did not carry its burden of proof of demonstrating that it offered [REDACTED] a FAPE for the 2023-2024 school year. As a result, [REDACTED]’s parent prevails with respect to the first Burlington/Carter criterion. Is [REDACTED]’s parent entitled to funding for the costs of the proposed program of home-based ABA instruction with ABA supervision and related services?

1. Does a preponderance of the evidence demonstrate that the proposed program meets [REDACTED]’s special educational needs? [REDACTED]’s parent bears the burden of proof concerning the appropriateness of the proposed home ABA program and related services for [REDACTED]. See, e.g., Frank G. v. Board of Education of the Hyde Park Central Sch. Dist., 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, [REDACTED]’s mother must show that the educational services provided through the proposed home ABA program with related services would address [REDACTED]'s identified special education needs. See C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014); C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free Sch. Dist., 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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.

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order). The preponderance of the evidence in this record demonstrates that the proposed home ABA program (consisting of 1:1 ABA instruction, one hour per week of ABA supervision, and one hour per week of parent counseling and training) with related services of speech and occupational therapies is “reasonably calculated” to offer [REDACTED] the special education instruction and services he needs to address his specific and identified complex constellation of special educational needs at this time. First and foremost, the proposed home ABA program would work to address [REDACTED]’s interfering and maladaptive behaviors and autism-related challenges through an FBA and BIP and 1:1 ABA strategies and instruction. See paragraphs 2 through 24 and 43 through 54, above. Furthermore, it is undisputed that [REDACTED] would benefit from speech-language and occupational therapies, and he should be provided with these therapies. See paragraph 35 above.

For many years, federal courts have recognized ABA as an appropriate and effective teaching methodology for children with autism. The reports in evidence, while not up-to-date, recommend ABA for [REDACTED] and focus on ABA as a means to improve his behavior and other functional skills. See paragraphs 18 through 24, above. As a result, from this record, it is reasonable to conclude that an ABA program, as described in Mr. [REDACTED]’s credible testimony and as recommended in the 2020 assessments, is appropriate for [REDACTED]. See, e.g., A.M. v. New York City Dep’t of Educ., 845 F.3d 523, 545 (2d Cir. 2017) (where reports “specifically recommended the continued need for ABA therapy,” IEP is substantively inadequate because it did not recommend any ABA); R.E., 694 F.2d at 194; M.H. v. New York City Dep’t of Educ., 712 F. Supp. 2d 125 (S.D.N.Y. 2010), aff’d 685 F.3d at 252; see also 34 C.F.R. § 300.39(b)(3) (“[s]pecially designed instruction means adapting, as appropriate to the needs of [the child], the content, methodology, or delivery on instruction”) (emphasis added).

The evidence thus demonstrates that proposed home ABA program with related services is reasonably calculated to provide [REDACTED] with an appropriate special education program. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress); see also, e.g., Application of a Student with a Disability, Appeal No. 22-002 at pp. 16-19 (prong II burden met when testimony of school witness describes how school’s program addresses student’s individual needs); Application of a Student with a Disability, Appeal No. 21-063 at pp. 14-16 (same); Application of a Student with a Disability, Appeal No. 21-056 at pp. 18-

22 (same).

The Department observes that Mr. [REDACTED] did not recommend home-based services for [REDACTED]. Tr. 189, 191-193. This observation is correct; however, at the hearing, the Department did not present a school or other location at which [REDACTED] could receive special education or related services; as a result, the ABA program, out of necessity, must be provided in [REDACTED]’s home. The Department also argues that Mr. [REDACTED]’s testimony was “confusing” as to whether his recommendations were for “pendency” or “compensatory services.” Tr. 190-191. Again, the Department is correct; but it does not matter. Mr. [REDACTED] testified credibly about the documentation he reviewed and the conclusions that he, as an educator and ABA therapist, drew from those materials.

In addition, the ABA home program should commence as soon as possible and should include an FBA (and the development of a BIP based upon that FBA) and an ABA skills assessment as proposed by Mr. [REDACTED]. The FBA/BIP and the ABA skills assessment are not ordered as IEEs, but rather as assessments that I find necessary in order for the ABA program to be appropriately up to date for [REDACTED], and such an order is within my authority as a hearing officer.

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the proposed program of 1:1 home-based ABA instruction with ABA supervision, parent counseling and training, and the related services of speech-language and occupational therapies is appropriate for [REDACTED] for the 2023-2024 school year and that program should include an FBA (and the development of a BIP based upon that FBA) and an ABA skills assessment. As a result, [REDACTED]’s parent prevails with respect to the second Burlington/Carter criterion.

2. What are the equitable factors relevant in this proceeding?

With respect to the third Burlington criterion, whether equitable considerations support [REDACTED]’s parent’s claims, the evidence establishes that [REDACTED]’s mother cooperated with the CSE by consenting to the spring 2023 evaluations and attending and participating in CSE meetings. She did not, however, provide the requisite statutory notice or otherwise promptly communicate with the Department about [REDACTED]’s leaving [REDACTED] [REDACTED] and not attending school or about seeking a home program for [REDACTED]. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district).

A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment (rather than reimbursement) because: (1) such payment is permitted by Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); and (2) it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled children whose parents have the financial wherewithal to “front” the entire amount of the private school tuition and subsequently seek repayment from the school district. Thus, it does not matter that [REDACTED]’s mother has not yet paid for any services foe [REDACTED] for the 2023-2024 school year.

I must also consider the issue of standing, even though neither party bothered to discuss this issue at the hearing. In order to have standing to bring a direct funding case, parents must have a legal obligation to pay for the educational services for which they are seeking funding. E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 456-458 (2d Cir. 2014); Application of a Student with a Disability, Appeal No. 23-097 at pp. 7-9. Under a Burlington/Carter analysis, services which are determined as reimbursable or fundable are fully reimbursed or funded by the school district “unless, as a matter of equitable considerations, the costs sought to be reimbursed are excessive or otherwise should be reduced, or, in the case of direct funding, the parent has not demonstrated a legal obligation to pay the cost and an inability to do so.” Application of a Student with a Disability, Appeal No. 21-245 at p. 17 (emphasis added). In short, there must be proof of parents’ legal obligation to pay for services provided to their child. Id. at pp. 17-18. See also, e.g., D.A. v. New York City Dept. of Educ., 769 F Supp. 2d 403, 430 (S.D.N.Y. 2011). Even though [REDACTED]’s mother has not paid for or contracted to pay for services for [REDACTED], she clearly has standing under the IDEA to commence this proceeding because: (1) [REDACTED] is her son and she is challenging the education the Department recommended for him, and (2) Mr. [REDACTED] and Ms. [REDACTED] were clear that they charge for their services and that, by implication, they would not provide services to [REDACTED] at no cost, and that if [REDACTED]’s mother engaged their services, she would have to pay for them. To find that [REDACTED]’s mother does not have standing would subvert the purposes and the language of the IDEA. See 20 U.S.C. §§ 1400, 1415; Honig v. Doe, 484 U.S. 305. As to “inability to pay,” there is a recent decision from the Southern District, which is precedent controlling in this matter, holding that proof of inability to pay is not necessary. See Ferreira v. New York City Dep’t of Educ., 22 Civ. 4993 (S.D.N.Y. March 14, 2023).

On the other hand, [REDACTED]’s parent did not submit a “ten-day” notice to the Department to inform the Department that she was seeking funding for a home program, to be delivered by non-Department providers, for [REDACTED]. See ⁋ 69, above. This failure is certainly not a complete bar to funding, but it does impact the balance of the equities in this proceeding. See 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(bb).

I must also consider that the Department was not on notice of the facts that [REDACTED] was not continuing to attend [REDACTED] [REDACTED] and that his mother was seeking a home-based program for him until the filing of the DPC on July 28 (a Friday afternoon at 5:00 PM). Ex. A at 9. Again, such failures do not bar funding, but do impact the balance of the equities, particularly as to determining the commencement date of services to be funded by the Department.

As a result, the Department should be responsible for funding [REDACTED]’s home-based program as of September 1, 2023, and extending through the end of the 2023-2024 school year for a 36-week program. Since there are fewer than 36 weeks remaining until June 30, 2023, any unfulfilled weeks may be provided in July and August 2024; this permits “make-up” hours for services that would have been provided during September and October 2023 and accommodates the equitable concerns relating to delayed notice to the Department, as described above. ^[4]

Furthermore, the record includes evidence of rates charged by Mr. [REDACTED]’s and Ms. [REDACTED]’s agencies. The Department did not rebut this evidence. However, some of the rates, particularly for the ABA instruction provided by the RBTs and for speech-language and occupational therapies appear to be excessive. Arbitrating rates for services may, in certain instances (like the instant case), be beyond the purview of a hearing officer. As a result, I will order the Department to pay licensed providers reasonable rates not to exceed the highest rates paid to the providers (or comparable providers) by the Department for comparable services delivered to students in New York City during the 2023-2024 school year. ^[5]

Equitable considerations thus favor the award of substantial, but not the full, relief sought by [REDACTED]’s parent. As a result, [REDACTED]’s parent substantially prevails with respect to the third Burlington/Carter criterion, and, as a result of the above analyses, relief is granted for the time period commencing September 1 (as described above) in the form of 36 weeks of the proposed home-based program of 1:1 ABA instruction, ABA supervision, parent counseling and training, and speech-language and occupational therapies.

3. What are the current educational alternatives for [REDACTED], and what authority does a Hearing Officer have to order such alternatives?

In making the prongs II and III determinations above, I also considered that a home-based program is a highly restrictive educational program for [REDACTED], [REDACTED]’s history of dangerous behaviors on the bus when traveling to school, and the context of this case—which is that the Department does not have an appropriate program available for [REDACTED] at this time. A school-based program, with safe and supported transportation, is preferable for [REDACTED], for many reasons—for example, opportunities to improve his social relatedness and communication skills with his peers. See, e.g., 20 U.S.C. § 1412(a)(5)(A); 8 N.Y.C.R.R. 200.1(cc), 200.6(a)(1).

The Department has not come forward to defend its current program for [REDACTED] (as set forth in the June 2023 IEP) or with an alternative proposed program (for example, a non-public school). [REDACTED]’s mother was able to locate ABA programming for [REDACTED], which is home programming because there are no other alternative locations for [REDACTED] at this time. In order to provide options for [REDACTED] for the 2023-2024 school year,^[6] the Department should undertake a search for a New York State approved non-public school for [REDACTED] and, at the same time, provide [REDACTED]’s mother with a P-3 (also known as a “Nickerson”) letter permitting [REDACTED]’s mother to undertake her own search (should she choose to do so) for a placement at a New York State approved non-public school for [REDACTED]. Should [REDACTED]’s mother enroll [REDACTED] in a New York State approved non-public school during the 2023-2024 school year, then (as Parent requested in the DPC) the home-based ABA program would be terminated. See Ex. A at 7. What, if any, compensatory educational relief is appropriate for [REDACTED] for the 2023-2024 school year?

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each student. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE to that student. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (IDEA “allows a hearing officer to fashion an appropriate remedy” and “compensatory education is an available option . . . to make up for” a denial of a free appropriate public education”); Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (in determining an appropriate compensatory education remedy, “the inquiry must be fact-specific, and to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place”).

An award of compensatory education should aim to place the student in the position he or she would have been in had the district met its IDEA obligations. Newington, 546 F.3d at 123 (compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP”); Reid, 401 F.3d at 518 (compensatory education is a “replacement of educational services the child should have received in the first place” and “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA”).

Here in the Second Circuit, compensatory educational relief in the form of supplemental special education or related services has been awarded to such students if they have been denied a free appropriate public education. P. v. Newington, 546 F. 3d at 123; see also Application of a Student with a Disability, Appeal No. 19-026 at pp. 18-19. Compensatory “additional services” have been awarded to students who remain eligible to attend school and have been denied appropriate services, “if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation.” Application of the New York City Department of Education, Appeal No. 11-132 at

p. 19. The Department argues that there is no evidence in the record of loss of meaningful educational benefits to [REDACTED] during the 2023-2024 school year to date and that, as a result, an award of compensatory education would be “premature.” Tr. 188-189, 195. The Department is correct; however, [REDACTED] needs to be educated, and I therefore crafted the award of special education and related services to include “make-up” services for [REDACTED] for the months of September and October 2023, for the reasons stated above. Is [REDACTED] entitled to an IEE at public expense?

The IDEA requires school districts to evaluate and reevaluate a student using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in” formulating an IEP for the student. 20 U.S.C. § 1414(b)(2)(A). The IDEA requires that an evaluation of a student “be comprehensive.” D.S. v. Trumbull Board of Education, 975 F.3d 152, 162-163 (2d Cir. 2020) (“Trumbull”). A district must, among many other requirements, ensure that a student “is assessed in all areas of suspected disability,” that “assessment tools and strategies [are employed] that provide relevant information that directly assists persons in determining the educational needs” of the student (20 U.S.C. §§ 1414(b)(3)(B) & (C); 8 N.Y.C.R.R. §§ 200.4(b)(1), 200.4(b)(3), 200.4(b)(6)(vii)), and that “the evaluation is sufficiently comprehensive to identify all of the student’s special education needs, whether or not commonly linked to the disability category in which the student has been identified.” 8 N.Y.C.R.R. § 200.4(b)(6)(ix).

The New York State regulations carefully spell out the requirements for evaluations of students with disabilities. An evaluation includes “any procedures, tests or assessments used selectively with an individual student . . . as may be necessary to determine whether a student has a disability and the extent of his/her special education needs.” 8 N.Y.C.R.R. § 200.1(aa). The purpose of an individual evaluation is “to gather relevant functional, developmental and academic information about the student that may assist in determining . . . the content of the student’s [IEP], including information related to enabling the student to participate and progress in the general education curriculum.” 8 N.Y.C.R.R. § 200.4(b)(1). A reevaluation of a student with a disability must “be sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education.” 8 N.Y.C.R.R. § 200.4(b)(4). A reevaluation must also include data to determine the student’s present levels of academic achievement and related developmental needs, whether the student continues to needs special education, and whether the student needs additions or modifications to special education services. 8 N.Y.C.R.R. § 200.4(b)(5)(ii)(a)-(d). In other words, as stated above, a school district’s evaluation or reevaluation of a student must be “comprehensive.” Trumbull, 975 F.3d at 157, 163; see also 20 U.S.C. § 1414(b) & (c).

Section 200.1(ww)(3)(i) describes the four areas of individual needs into which the CSE must inquire: (a) academic achievement, functional performance and learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information, and learning style; (b) social development which shall mean the degree and quality of the student's relationships with peers and adults, feelings about self, and social adjustment to school and community environments; (c) physical development which shall mean the degree or quality of the student's motor and sensory development, health, vitality, and physical skills or limitations which pertain to the learning process; and (d) management needs which shall mean the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction . .

8 N.Y.C.R.R. §200.1(ww)(3)(iii). School districts are required to “administer tests and other evaluation materials as may be needed to produce the data” described in 8 N.Y.C.R.R. §200.4(b)(5)(ii) and §200.1(ww)(3)(i).

Students must be “assessed in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, vocational skills, communicative status and motor abilities” and the evaluation must be “sufficiently comprehensive to identify all of the student's special education needs, whether or not commonly linked to the disability category in which the student has been identified.” 8 N.Y.C.R.R. § 200.4(b)(6)(vii) & (ix); see also Application of a Student with a Disability, Appeal No. 13-215 at pp. 16-17.

The CSE must address the results of an evaluation or reevaluation in a meeting to review the student’s IEP. Id. The purpose of the entire evaluation process is to enable the CSE to create an appropriate IEP for the student. A.R. v. Norwalk Board of Education, 183 F. Supp. 2d at 549; Application of a Student with a Disability, Appeal No. 10-033 at pp. 30-32.

The regulations relevant to the IEE requests state further that: “[i]f the parent disagrees with an evaluation obtained the school district, the parent has a right to obtain an independent educational evaluation at public expense.” If a parent requests an independent educational evaluation at public expense, “the school district must, without unnecessary delay, either ensure that an independent education evaluation is provided at public expense” or initiate an impartial hearing “to show that its evaluation is appropriate, or that the evaluation obtained by the parent does not meet the school district criteria.” 8 N.Y.C.R.R. §200.5(g)(1)(iv) (emphasis added); see also Pajaro Valley Unified School District v. L.S., 47 IDELR 12 (N.D. Cal. Dec. 15, 2006); Application of the New York City Department of Education, Appeal No. 20-117 at pp. 13-15; Application of the Board of Education, Appeal No. 11-122 at pp. 16-17.

The Second Circuit has made clear that a parent’s right to an IEE at public expense “is triggered” when a parent disagrees with a school district’s evaluation. Trumbull, 975 F.3d at 158, 163 (parent must express disagreement with a school district’s evaluation as a prerequisite to obtaining an IEE at public expense); see also, e.g., Application of a Student with a Disability, Appeal No. 21-091 at p. 52. While school district personnel may ask a parent why he or she disagrees with the district’s evaluation, a parent is not required to provide such an explanation to the district. 8 N.Y.C.R.R. § 200.5(g)(1)(iii); see also 34 C.F.R. § 300.502(b)(4). Federal courts have granted leeway to parents in expressing disagreement. See Trumbull, 975 F.3d at 165 (“Nothing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.”). Thus, for example, [REDACTED]’s parent’s concerns expressed in the DPC that the Department’s evaluation of [REDACTED] was not “comprehensive” is sufficient to “trigger” her right to an IEE at public expense.

The Department then failed to “ensure that an independent education evaluation [was] provided at public expense” or to initiate an impartial hearing “to show that its evaluation is appropriate, or that the evaluation obtained by the parent does not meet the school district criteria.” See 8 N.Y.C.R.R. §200.5(g)(1)(iv). As a result, I will order an IEE for [REDACTED].

1. What are the components of an appropriate IEE for [REDACTED] in light of Parent’s requests for a neuropsychological evaluation, a speech-language evaluation, an occupational therapy evaluation, an assistive technology evaluation, an ABA Skills Assessment, and an FBA?

A comprehensive evaluation of [REDACTED] should include a neuropsychological evaluation due to the interrelatedness of his complex challenges (see, e.g., ⁋ 4, above) and should also include speech-language and occupational therapy evaluations, as indicated by the Department’s recommendations for speech-language and occupational therapies for [REDACTED] (see ⁋ 35, above). An ABA skills assessment and an FBA are assessments (rather than evaluations), see Trumbull, 975 F.3d at 164-165; however, these assessments are necessary for [REDACTED] at this time and are addressed elsewhere in this Decision. The record does not support the other requested evaluations as components of a comprehensive evaluation of [REDACTED], therefore those requests are denied.

2. What are the reasonable costs for an appropriate IEE for [REDACTED]?

As to the costs of IEEs, school districts may establish policies relating to IEEs, including “cost-containment measures.” Application of a Student with a Disability, Appeal No. 19-101 at p.

11. A district is permitted to establish “maximum allowable charges for specific tests to avoid unreasonable charge for IEEs;” however, “[w]hen enforcing reasonable cost containment criteria, the district must allow parents to opportunity to demonstrate that ‘unique circumstances’ justify an IEE that does not fall within the district’s cost criteria.” Id. at 11; see also Letter to Anonymous (OSEP October 9, 2002). Here, the Department presented no evidence of its polices relating to IEEs, such as “cost-containment measures.” As a result, I will base my Decision on the information in the record as to costs of the evaluations and order a speech-language evaluation performed by a New York State licensed speech pathologist of [REDACTED]’s mother choosing at a rate not to exceed $2,500.00 and an occupational therapy evaluation performed by a New York State licensed occupational therapist of [REDACTED]’s mother choosing at a rate not to exceed $2,500.00. See ⁋ 66, above. There is no evidence of the cost of a neuropsychological evaluation for [REDACTED]; however, given the complexity and inter-relatedness of his challenges, a neuropsychological evaluation of [REDACTED] will be complex. As a result, I will order the Department to fund such an evaluation at a reasonable rate not to exceed to the Department’s highest approved rate for the current school year.

Furthermore, as per the relevant regulations, [REDACTED]’s parent should forward the independent evaluation reports to Department personnel promptly upon her receipt of the evaluation reports. The Department shall then convene an IEP meeting, consider the IEE reports as well as other relevant materials and input, and develop an IEP for [REDACTED]. See 8 N.Y.C.R.R. §200.5(g)(1)(vi)(a).

In addition, review of the record shows that there have been references to and recommendations for a [REDACTED] consult for [REDACTED]. See ⁋⁋ 2, 4, 15 (and n.2), 17. As a result, I am exercising my authority as a hearing officer to order that the Department conduct a [REDACTED] evaluation of [REDACTED] after receiving consent for such an evaluation from [REDACTED]’s mother. If [REDACTED]’s mother elects not to consent to a [REDACTED] evaluation, then the Department shall not conduct a [REDACTED] evaluation.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED that:

1. The Department of Education shall fund for [REDACTED], for the 2023-2024 school year commencing on September 1, 2023 and for a period of 36 weeks: 35 hours per week of 1:1 home-based ABA instruction, one hour per week of ABA supervision by an LBA, one hour per week of parent counseling and training, one hour per week of speech-language therapy, and one hour per week of occupational therapy. All providers shall be chosen by [REDACTED]’s parent and shall be appropriately licensed or certificated in their respective fields. The Department shall pay the providers at reasonable rates not to exceed the highest rate paid to the respective provider by the Department for services delivered during the 2023-2024 school year.

2. In order to permit “make-up” hours for services that [REDACTED] missed during September and October 2023, any unfulfilled weeks of the 36-week program, as of June 30, 2024, may be provided to [REDACTED] during July and August 2024. These “make-up” hours shall be funded by the Department, with total funding not to exceed 36 weeks of: 35 hours per week of 1:1 home-based ABA instruction, one hour per week of ABA supervision by an LBA, one hour per week of parent counseling and training, one hour per week of speech-language therapy, and one hour per week of occupational therapy

3. The request for compensatory education is denied.

4. The Department shall fund for [REDACTED] an ABA skills assessment and a combined FBA/BIP, each to be performed by a New York State LBA. The Department shall fund each assessment at a rate not to exceed $2,500.00.

5. The Department shall, upon requesting consent from [REDACTED]’s mother, and, should it receive consent from [REDACTED]’s mother, conduct a [REDACTED] evaluation of [REDACTED].

6. The Department shall, within five business days of this decision, issue a “P-1” (also known as a “Nickerson”) letter to [REDACTED]’s parent.

7. The Department shall, in addition to issuing the P-1 letter, undertake its own search for a school placement for [REDACTED], including a search of New York State-approved non-public schools.

8. Should [REDACTED]’s mother enroll [REDACTED] in a New York State approved non-public school during the 2023-2024 school year, then the home-based ABA program, the parent counseling and training, and related services would be terminated, and the Department would no longer be responsible for funding the home-based ABA program, the parent training and counseling, and related services.

9. The Department of Education shall fund an IEE for [REDACTED] consisting of a neuropsychological evaluation, a speech-language evaluation, and an occupational evaluation, all to be performed by appropriately licensed professionals of [REDACTED]’s mother’s choosing. The Department shall fund these evaluations at the following rates: speech-language evaluation at a rate not to exceed $2,500.00; an occupational therapy evaluation at a rate not to exceed $2,500.00; and a neuropsychological evaluation at a rate up to the Department’s highest permitted rate during the 2023-2024 school year.

10. The Department shall, upon the receipt of the IEE, cause the CSE to convene to consider the IEE, along with other evaluative material and input, and, if appropriate, to develop an IEP for [REDACTED].

SO ORDERED.

DATED: November 7, 2023

Jean Marie Brescia, Esq.

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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EXHIBITS

A. Exhibit Name Date Pages Parent’s Impartial Hearing Request 07/28/23 9 pages

B. Neuropsychological Evaluation 03/13/20 29 pages

C. Functional Behavior Assessment 01/25/21 28 pages

D. ABA Skills Assessment 01/28/21 26 pages

E. Individualized Education Program 12/07/21 39 pages

F. Prior Written Notice 12/14/21 6 pages

G. Consent for Additional Assessments 03/09/23 2 pages

H. Individualized Education Program 06/22/23 33 pages

I. Prior Written Notice 06/29/23 6 pages

J. Affidavit of [REDACTED] [REDACTED] 09/22/23 3 pages

K. Affidavit of [REDACTED] [REDACTED] 09/20/23 4 pages

L. Affidavit of [REDACTED] [REDACTED] 09/27/23 3 pages

Footnotes

[1] Exhibits shall be referred to as follows: Parent’s exhibits are identified with letters; Department exhibits are identified with numbers; and Impartial Hearing Officer’s Exhibits are labelled as “IHO.”

[2] The neuropsychologist stated that “[o]ngoing REDACTED consultation is needed to determine whether [REDACTED] presents with psychosis, a mood disorder or Schizotypal Personality Disorder.” Ex. B at 18. Parent did not present evidence as to any such REDACTED follow-up, diagnoses, or treatment.

[3] This also translates into plain English as: prevents or interferes with learning, not only in the areas of academics but also with respect to functional domains, such as social, communication, adaptive, etc.

[4] See also the analysis under Compensatory Education, below.

[5] Compensation to providers for performing evaluations and assessments is addressed separately in this Decision.

[6] I am mindful of the fact that this Decision relates only to the 2023-2024 school year and does not extend to recommendations, programs, or placements for REDACTED for subsequent school years.