Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 252433

Student’s Name: Student

School District: N.Y.C. Dept. of Ed., District #

REDACTED

Impartial Hearing Officer: Ritter, Jennifer

Date of Filing: 8/8/2023

Hearing Requested by: Parent

Date of Hearing: 11/3/2023

Record Close Date: 12/7/2023

Date of Decision: 12/7/2023

TIME SENSITIVE

BACKGROUND

Parent, through counsel, filed a Due Process Complaint(“DPC”) on or about 8/8/2023. In the Request, Parent alleges that the Department of Education (“DOE”) failed to offer Student with a free appropriate public education (“FAPE”) for the 2023-2024 school year. (Parent’s Exhibit A, hereinafter “P A”).

Parent alleges that the DOE failed to provide a FAPE to Student because the DOE never gave Student a School Location Letter (SLL). Id. By way of relief, Parent seeks an award of tuition reimbursement for Student’s attendance during the 2023-2024 school year at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities. Id. Parent also seeks:

• a behavioral paraprofessional for the bus to travel to and from Private School. • assistive technology (“AT”) including both equipment and applications. • home based Applied Behavioral Analysis (“ABA”) Therapy, ten (10) hours per week. • Board Certified Behavior Analyst (“BCBA”) supervisory hours for two (2) hours per week. • Parent Counseling and Training (“PCAT”) for two hours per week. • AT training for twenty hours. • Two Independent Educational Evaluations (IEE). o Functional Behavior Analysis (“FBA”) and a Behavioral Intervention Plan

(“BIP”)

o Applied Behavioral Analysis Skills Assessment Id.

Parent alleges that the equities support their claim for tuition reimbursement and direct tuition funding for the school years at issue. Id. In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered Student FAPE for the 2023-2024 school year, the b) Private School offers Student with specially designed instruction sufficient to meet Student’s needs, and c) the additional program elements are appropriate and (d) the equities support the Parent’s requested relief.

PROCEDURAL HISTORY

I was appointed on 8/10/2023. I wrote to the parties that soon thereafter scheduling a status conference. On 9/28/2023, the parties appeared for a virtual status conference. The parties indicated that this case would concern tuition and other supportive services. At that time, the parties jointly moved for an extension of the compliance period, which I granted.

On 11/3/2023, the DOE sent an email stating that they would not be present. The DOE was present when this hearing date was picked. (Transcript dated 9/28/2023 at page 6-8, hereinafter “Tr. 9/28/23 at p. 6-8”). The DOE did not file any disclosures or witness list. Parent appeared and filed disclosures and a witness list. Parent offered twenty-seven (27) exhibits into the record, twenty-six (26) were accepted and one was withdrawn. Included in Parent’s evidence were three (3) affidavit(s), from Parent, Psychologist and Private School Director. All affidavits were accepted in the record. Parent opened, presented live testimony, rested and Parent’s counsel made an oral closing (11/3/23 Tr. at p. 29-59).

FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

Student is a redacted-year-old with a classification of Autism.. (P C-1). Student was diagnosed with Attention-Deficit/Hyperactivity Disorder (“ADHD”) and Oppositional Defiance Disorder (“ODD”). (P I-3,4). He has a learning disorder and accompanying impairments in reading, written expression, and math. (P I-15). Student exhibits sudden outbursts, has difficulty working towards long-term goals and organization, and has difficulty transitioning from one activity to another. Student struggles to make friendships and becomes aggressive when he is denied something he wants, such as electronics. (P I-15). Student has had a recent increase in maladaptive behaviors and at school, has engaged in verbal and physical aggression directed at himself and others. (P H-9, I-15). More than once, Student had to be sent to the emergency room for psychiatric care. (P H-9, 11, I-3-4, R-1). Each evaluation asserts that these challenges inhibit Student’s ability to learn. (P E-31-33, F-18, G-11, H-12 I-15-16). Student has been attending Private School since the 2019-2020 school year. (P A-3). Early in 2023, IEEs were ordered by a different IHO. (P A-4). The requests in this complaint are correlated with those IEEs.

DOE developed an IEP dated June 12, 2023. (P C). The IEP relied upon independent evaluations, progress reports from Private School and other assessments. The DOE recommended a 6:1:1 class with adapted physical education, counseling services (“CO”), occupational therapy (“OT”), Parent Counseling and Training (“PCAT”), physical therapy (“PT”), and speech-language therapy (“SLT”) with a full time behavioral paraprofessional and AT devices for school and home. (C 32-33). The DOE recommended an extended year program. (Id at C-33).

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

Prong I

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

Although not explicitly stated in federal or State regulation, implicit in a district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an IEP, a district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student's IEP (see T.C. v. New York City Dep't of Educ., 2016 WL 1261137, at *9 [S.D.N.Y. Mar. 30, 2016] [noting that "a parent must necessarily receive some form of notice of the school placement by the start of the school year"]; Tarlowe, 2008 WL 2736027, at *6 [finding that a district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year]); Application of a Student with a Disability, Appeal No 22-150 at p. 22. This is particularly so in a district so immense in size as the district in the present case, which has so many public school building locations within its boundaries. While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation—for example, by a school location letter which is the mechanism adopted by the district in this case— it nonetheless follows that it must be shared with the parent before the student's IEP may be implemented.

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden, at hearing. Even if the DOE had been present for the hearing, they could not have met this burden. The Prior Written Notice and the School location letter were only sent after the beginning of the 10 month school year on September 21, 2023. (P K). As previously noted, Student attends school for the extended school year. (C-33). To be timely, the DOE would have to have contacted the parents, at a minimum, before July 5, 2023, the beginning of the 2023-2024 school year. Therefore, I am constrained to find that the DOE failed to offer Student FAPE for the 2023-2024 school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer FAPE for the 2023-2024 school year.

Prong II

A private school placement must be "proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). 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)" 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)

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. 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).

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).

Private School is a non-profit school which primarily serves students classified with autism. (P N). Staff receive training weekly in different methodologies. (PAA-3). Private School Director testified that Private School uses a mixture of methodologies, such as Treatment and Education of Autistic and Related Communication Handicapped Children (“TEACCH”), applied behavioral analysis (“ABA”), and DIR Floortime. (P AA-2). Private School customizes the curriculum for each student. (P AA-3). Student requires ABA to assist with his obsessions. (P

AA-3). Student is in a 6:1:2 classroom with 1:1 support for other needs. (P AA-6, U-1). Student’s teachers have either a Master’s degree in Special Education or is working on a Master’s in Special Education. (P AA-6). Private School incorporates academic skills such as math with vocational skills every day.

I find that Parent has met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard. This school year, Student is making progress academically and in all related service areas. (P AA 6-8). Though past performance is no guarantee of future progress, Parent has provided four progress reports from the 2022-2023 school year to demonstrate the appropriateness of the curriculum. (P R, S, T, U). All the related service providers have licenses. (P AA-7). Student attends CO three times a week in a group and individually to assist with his serious behavioral issues. (P R-1). Student attends OT twice a week as well and continues to work on organization and self-regulation during activities. (P S). In SLT, which Student attends four (4) times a week, Student focuses on pragmatic language skills, expressive skills and receptive language skills. Student especially likes Madlibs. (P T-1). Parent testified that Student is reading more fluently this year and copying words more accurately. (P Z 3-4).

The weight of the evidence establishes that Student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. Since the DOE did not appear at the hearing, the DOE offered no arguments concerning the appropriateness of Parent’s unilateral placement, nor challenging the equities in this action. The DOE did not crossexamine any of Parent’s witnesses, nor object to any document accepted into the record. Under these circumstances, I find that Parent’s witnesses are credible.

Equities

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009) In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here, Parent provided the necessary Ten-Days’ Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2023-2024 school year. Therein, Parent detailed specific concerns.(P D). Parent furthermore, gave the DOE notice of their intention to unilaterally place the Student at the Private School. Id. No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Letter.

By way of relief, Parent seeks reimbursement for their private school tuition costs and to have the balance of unpaid tuition sent directly to the Private School. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011). Direct funding is permissible without proof of income or need. Cohen v. N.Y.C. Dep’t. of Educ., 1:21-cv06260MKV, (S.D.N.Y 9/26/23). I note that the DOE offered no arguments challenging the equities in this action. Equity demands that the DOE fund Student’s Private School tuition in this instance.

I find no issue with the reasonableness of the costs, including tuition, associated with Private School. See (P O). Student is attending Private School for the 2023-2024 school year. Id. Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2023-2024 school year. (P C). Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement and direct funding.

Additional Elements for Program

Assistive Technology Requests

As part of Student’s most recent IEP, the IEP recommended the use of technology: a “cloud-based laptop with e-text reader, digital books/library, PDF Annotator, Graphic Organizer, and Math Programs.” (P C-14, 33). The DOE is aware, and, by way of the IEP, admits that Student needs assistive technology to assist him in accessing the curriculum. Earlier this year, Parent had student evaluated for Student’s use of assistive technology. The report recommended that technology be used both in school and at home. (P G 12). The evaluator tested Student on at least one of these products to make sure the were suited for Student. (P G 11). These products are designed to help independently write, organize, and proofread Student’s work. (P G). This will likely decrease frustration and increase Student’s engagement in academics.

The Evaluator recommended: Recommended Equiptment and Apps:

1. Google Pixelbook with 12.3 inch display 16GB RAM and 256 GB storage

2. Snap&Read

3. Individual Epic! Membership

4. Raz-Kids individual license

5. CoWriter

6. Grammarly Premium

7. SnapType Pro

8. Mindview 8 – Mindview Suite

9. Prodigy – Math

10. IXL – Core subjects Recommended without brand name:

1. Carrying case

2. Stylus pen

3. Noise cancelling headphones (P G 11-12).

I find that each of these devices or applications are appropriate for Student. In addition, to train Student in the use of this technology, Student should receive 20 hours of training to make sure Student learns how to use each program and effectively access this technology. (P G-12).

Behavioral Paraprofessional for the Bus

New York State regulation includes as a special factor an IEP team’s consideration of 1:1 paraprofessional service to meet the individualized needs of a student with a disability. 8 N.Y.C.R.R. 200.4(d)(3)(vii); 20 U.S.C. § 1414(d)(3)(B); 34 C.F.R. 300.324(a)(2). The IEP team must consider a number of factors before recommending a 1:1 paraprofessional on a student's IEP, including but not limited to the student's goals and management needs, the specific support the 1:1 paraprofessional would provide, other supports or accommodations that could meet the student's needs, how long and under what circumstances the student needs the paraprofessional, staffing ratios in the classroom, any potential harmful effect of having a 1:1 paraprofessional, and training and support that will be provided to help the paraprofessional understand and address the student's needs. 8 N.Y.C.R.R. 200.4(d)(3)(vii).

Moreover, according to the DOE’s Special Education Standard Operating Procedures Manual (“SOPM”), a 1:1 paraprofessional must serve one of the following functions: 1) Behavior Support, 2) Health, 3) Toileting, 4) Orientation and Mobility for visual impaired students.^[1] Standard Operating Procedures Manual (SOPM), Pages 63-64, November 16, 2021 available at Special Education Standard Operating Procedures Manual (nyced.org) According to the SOPM, a Behavioral Paraprofessional may be considered “Only if the student presents with serious behavior problems that cannot be addressed through a BIP implemented with fidelity (as well as the provision of alternative general education and special education supports and services) should a behavior support paraprofessional be recommended.” Id.

Here, the IEP recommends a behavioral paraprofessional daily, full time. (P C-33). The DOE relies on progress reports and a private psychological evaluation from this calendar year when it evaluates Student’s social development. (P C-9-11). The IEP even calls for behavioral intervention. (P C-14) It lists behaviors to increase and decrease, but not strategies for increasing or decreasing these behaviors. (P C14-15). Among the behaviors to decrease are self-injurious behavior, aggression toward others, destruction of property, and threatening sexual acts or physical harm toward others. Having a behavioral paraprofessional on the bus with Student will help reinforce appropriate behaviors and increase safety of all students. Given the number of behaviors to be ameliorated and the DOE’s own recommendation for a full-time behavioral paraprofessional, a behavioral paraprofessional should accompany Student full time on a bus. This is an appropriate part of Student’s educational plan.

Home Based ABA, Supervisory ABA and PCAT

Parent is requesting funding for ten (10) hours per week of home-based ABA therapy, two (2) hours per week of BCBA supervision and two (2) hours per week of PCAT services. Psychologist testified that students with autism respond best to ABA therapy. (Tr. 11/3/23 at p. 37). This therapy will help generalize these skills, learned at school, through all settings. (Id at 38, P Y-10). The therapy targets “repetitive behaviors, inattention, and social and communication deficits.” (P Y-10). Two hours of supervision per week are recommended to coordinate all providers and ensure that communication and collaboration happens. (Id., Tr. 11/3/23 at p. 38-9). Psychologist testified that the two hours of PCAT are needed to assist Parents learn how to reinforce behavior. (Tr. 11/3/23 at p. 39, 42). Since DOE failed to appear, all of this evidence is unchallenged, and I accept these statements and find them credible. I find that ten (10) hours of home-based ABA therapy per week, two (2) hours of BCBA supervision per week, and two hours of PCAT per week are appropriate.

Independent Educational Evaluations

Student has significant behavioral challenges, and the last FBA was in 2018. (P A-2). Parent claims, in their DPC that as a result of a private neuropsychological evaluation, Student needs an updated FBA, a BIP and an ABA Skills assessment. (P A, P I-18). To support these claims, Parent submitted a psychological evaluation into evidence. (P I). The DOE relied on this evaluation in creating the most recent IEP. (P C-2). As noted earlier, the IEP recommends a BIP, but does not do the assessment. Parent testified that he requested these tests during the IEP meeting. (Tr. 11/3/23 at p. 47-48).

General Process for IEEs

An Independent Educational Evaluation (“IEE”) is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 NYCRR § 200.1(z).

The IDEA and State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” 546 U.S. 49, 60-61 (2005).

If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE. 8 NYCRR § 200.5(g)(1)(i). A school district can set criteria regarding the IEE, including the qualifications of the examiner, but the district’s criteria must be the same as the criteria it uses for its own evaluations, and the district cannot impose additional conditions or timelines related to the IEE. 34 C.F.R. § 300.502(e)(1); 8 NYCRR § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989). For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE (Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011)), nor can it deny an IEE at public expense based solely on financial cost. Letter of OSERS, 2002. A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE. Letter to Carroll, 68 IDELR 279 (OSEP 2016). Finally, while the school district may “ask for the parent’s reason why he or she objects to the public evaluation,” the district cannot require an explanation or delay providing the IEE until the parent provides an explanation. 8 NYCRR § 200.5(g)(1)(iii).

When a parent disagrees with a school district’s evaluation and 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 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv) (emphasis added).

IEE for District’s Failure to Conduct an Evaluation in an Area of Need

A parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need. D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020). In D.S., the court stated that, “[n]othing 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.” Id. The U.S. Department of Education's Office of Special Education Programs (“OSEP”), has similarly stated that when 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 to determine whether the child has a disability and the nature and extent of the special education and related services that child needs.” Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016).

When the DOE Does Not Follow One of the Two IEE Procedures

In this case, the DOE did not initiate an impartial hearing to establish that its recent evaluations were appropriate, nor did it take the necessary action to ensure that the Parent’s requested IEE was provided at public expense. The Parent is therefore entitled to have the IEEs for a FBA, BIP and ABA skills assessment conducted at public expense by a duly qualified evaluator selected by them.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) Parent’s claim for tuition reimbursement for Student’s unilateral placement, as well as direct tuition funding, at Private School is GRANTED for the 2023-2024 school year as follows:

(a) The District shall directly fund the balance of the Student’s tuition at the Private School in an amount not to exceed $116,480.00 within 30 days of the date of this decision;

(2) The DOE shall assign a full-time behavioral paraprofessional to the student for travel to and from Private School. If the DOE does not provide a behavioral paraprofessional, Parent may retain one at a rate not to exceed $150.00 per hour to be paid to the provider of Parent’s choosing. .

(3) The DOE shall purchase for Student within seven 7 days of this decision:

1. Google Pixelbook with 12.3 inch display 16GB RAM and 256 GB storage.

2. Snap&Read – for a license/year.

3. Individual Epic! Membership - month or annual payment

4. Raz-Kids individual license per year

5. CoWriter –per license/year

6. Grammarly Premium -per month

7. SnapType Pro

8. Mindview 8 – Mindview Suite per month for 1 year

9. Prodigy – Math per year or month

10. IXL – Core subjects - per month

11. Carrying case not to exceed $100.00

12. Stylus pen not to exceed $15.99

13. Noise cancelling headphones not to exceed $329.00. ^[2] (a) If the DOE does not purchase these items within seven (7) days for Student, Parent may purchase the above items, and DOE shall reimburse Parent for the estimated cost (above) plus taxes and shipping, if any, within 15 days.

(4) The DOE shall fund twenty (20) hours of assistive technology training (which includes parent and support staff training) to be provided by an independent provider of the Parent’s choosing, at the provider’s normal and customary rate.

(5) The DOE shall fund ten (10) hours per week of home-based ABA therapy at a rate not to exceed $330.00 per hour to the provider of Parent’s choosing.

(6) The DOE shall fund two (2) hours per week of BCBC Supervision at a rate not to exceed $330.00 per hour to the provider of Parent’s choosing.

(7) The DOE shall fund two (2) hours per week of PCAT at a rate not to exceed

$330.00 per hour to the provider of Parent’s choosing.

(8) The DOE shall fund a Functional Behavioral Analysis at a rate not to exceed

$4,125.00 to the provider of Parent’s choosing.

(9) The DOE shall fund a BIP, if deemed necessary by the FBA ordered above, at a rate not to exceed $1375 to the provider of Parent’s choosing.

(10) The DOE shall fund an ABA Skills Assessment at a rate not to exceed $4,950.00 to the provider of Parent’s choosing.

Dated: 12/7/2023

Jennifer Ritter

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.

DISTRICT EVIDENCE

PARENT EVIDENCE

A. Impartial Hearing Request 08/08/23 14 pages

B. WITHDRAWN

C. Individual Education Program 06/06/23 42 pages

D. Ten Day Notice Letter 06/16/23 2 pages

E. Independent Vocational Evaluation 10/20/21 35 pages

F. Independent Speech Therapy Evaluation 02/22/23 20 pages

G. Independent Assistive Technology Evaluation 02/22/23 13 pages

H. Independent Occupational Therapy Evaluation 04/13/23 13 pages

I. Independent Psychological Evaluation 05/24/23 29 pages

J. Email from DOE re: Transportation for Student 06/07/23 1 page

K. Prior Written Notice Package 09/21/23 20 pages

L. Parent Email to DOE Recommended Placement 10/05/23 1 page

M. DOE Recommended Placement Email to Parent 10/05/23 1 page

N. REDACTED Program Description Undated 1 page

O. REDACTED 2023-2024 Enrollment Contract 05/22/23 3 pages

P. REDACTED 2023-2024 Tuition Affidavit 08/04/23 1 page

Q. REDACTED 2023-2024 Class Schedule 2023 3 pages

R. REDACTED Counseling Progress Report 05/23/23 2 pages

S. REDACTED Occupational Therapy Progress Report 06/30/23 2 pages

T. REDACTED Speech Therapy Progress Report 06/2023 6 pages

U. REDACTED Academic Progress Report 06/2023 4 pages

V. Rate Sheet of IEE Provider 01/01/23 2 pages

W. Resume of REDACTED Director Undated 2 pages

X. Resume of Psychologist Undated 2 pages

Y. Affidavit of Psychologist 10/24/23 11 pages

Z. Affidavit of Parent 10/26/23 5 pages

AA. Affidavit of REDACTED Director 11/01/23 9 pages

IHO EXHIBITS

Footnotes

[1] Standard Operating Procedures Manual (SOPM), Pages 63-64, November 16, 2021 available at Special Education Standard Operating Procedures Manual (nyced.org)

[2] Upon request from IHO, Counsel for Parent submitted a price list for these items. The price list is submitted as IHO I.