Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 252497

Student’s Name: [REDACTED] (Student)

Date of Birth: [REDACTED]

School District: New York City Department of Education (DOE)

Hearing Requested by: [REDACTED] (Parent)

Date Complaint Filed: August 10, 2023

Date of Hearing: October 12, 2023

Record Closed Date: December 15, 2023

Date of Decision: December 15, 2023

Impartial Hearing Officer: Amy Randhawa

Time Sensitive: YES

INTRODUCTION

This case concerns the Student whose eligibility for special education supports and services is not in dispute. The Parent, through counsel, filed a Due Process Complaint (DPC) alleging that the New York City Department of Education (DOE) failed to offer the Student a free appropriate public education (FAPE) for the 2023-2024 school year. P Ex. A.^[1] Specifically, the DPC asserts that the DOE’s Committee on Special Education (CSE) failed to: recommend an appropriate program and placement prior to the start of the 2023-2024 12-month school year; consider appropriate alternative placements where the Student would receive appropriate support and services to address his individual needs; provide the Student with a specific methodology, such as Applied Behavior Analysis (ABA) therapy, to adequately address the symptoms of his autism diagnosis and the deficits that are caused by his diagnosis; develop an appropriate functional behavior assessment (FBA) and failed to develop and implement an appropriate Behavioral Intervention Plan (BIP) that adequately addressed these target behaviors; provide the Student with a paraprofessional who possessed the appropriate training or experience dealing with the Student’s behavioral issues; provide social skills training; provide the Parent with appropriate parent counseling and training (PCAT); develop an Individualized Education Program (IEP) that recommended after-school or home-based ABA as a matter of policy and pre-determined the outcome of the IEP meeting; offer supervision by a Board Certified Behavior Analyst (BCBA); and, acknowledge and provide supports for the Student’s audiological processing deficits. Id. at 3-4.

By way of relief, the Parent requests an order requiring the DOE to provide the following supports and services for the DOE’s denial of a FAPE to the Student: (1) one hour per week of consultation/supervision by a BCBA of the Parent’s choice at a rate not to exceed $225/hour for the entirety of the 12-month 2023-2024 school year; (2) ten hours per week of special education instruction and/or behavioral support by a licensed and/or certified provider of the Parent’s choice at rate not to exceed $200/hour from the beginning of the 12-month 2023-2024 school year until the Student’s start date of attendance at the Private School, or if that does not occur, for the entirety of the 12-month 2023-2024 school year; (3) two and a half (2 ½) hours per week of individual Speech and Language Therapy by a licensed and/or certified provider of the Parent’s choice at a reasonable market rate from the beginning of the 12-month 2023-2024 school year until the Student’s start date of attendance at the Private School, or if that does not occur, for the entirety of the 12-month 2023-2024 school year; (4) two and a half (2 ½) hours per week of Occupational Therapy by a licensed and/or certified provider of the Parent’s choice at a reasonable market rate from the beginning of the 12-month 2023-2024 school year until the Student’s start date of attendance at the Private School, or if that does not occur, for the entirety of the 12-month 2023-2024 school year; (5) transportation, as needed, to and from all compensatory services for the Parent and the Student in the form of Metro card(s); (6) direct funding to the Private School for the total cost of the Student’s enrollment at the Private School for the remainder of the 12-month 2023-2024 school year; (7) appropriate transportation to and from the Private School from the Student’s start date of attendance at the Private School through the remainder of the 12-month 2023-2024 school year; and, (8) five hours per week of after-school special education instruction and/or behavioral support by a licensed and/or certified provider of the Parent’s choice at a rate not to exceed $200/hour from the Student’s start date of attendance at the Private School through the remainder of the 12-month 2023-2024 school year. IHO Ex. I; IHO Ex. II.

I find that: (1) the DOE denied the Student a FAPE for the 2023-2024 school year; (2) the DOE did not carry its burden with respect to the relief; and, (3) the Parent’s requested relief is appropriate.

JURISDICTION

This due process hearing (DPH) was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. § 1400 et seq., and its implementing federal regulations, 34 C.F.R. § 300 et seq.; Section 504 of the Rehabilitation Act of 1973; and New York State Education Law § 4404 et seq. and its implementing regulations at 8 NYCRR § 200.5 et seq.

PROCEDURAL HISTORY

The DPC was filed on August 10, 2023, and the parties appeared for a Pre-hearing Conference on September 12, 2023 and a DPH on October 12, 2023 before IHO 1. At the DPH, the Parent was represented by the Parent Attorney and the DOE was represented by the DOE Attorney. Tr. 20.

At the DPH, the DOE presented no testimony, confirmed that it was not putting on a case defending a FAPE, entered exhibits 1 through 5 into the record without objection from the Parent, rested on the evidence presented, and waived an opening statement. Tr. 25-26, 29. The DOE also failed to submit a written closing brief, as requested by IHO 1. Tr. 61-63.

Without objection from the DOE, the Parent entered exhibits A through G into evidence, including testimony by affidavit from the Parent (P Ex. F) and the Principal/Executive Director of the Private School (P Ex. G). Tr. 26-28. The DOE declined to cross-examine either affiant witness. Tr. 35. The Parent presented direct testimony from the Student’s independent special education instruction/behavior therapy provider (the Provider). Tr. 35-60. The DOE Attorney cross-examined the Provider. The Parent issued an opening statement on the record and submitted a written closing brief as requested. Tr. 29-34; IHO Ex. I.

I was assigned to this matter on December 7, 2023 and the Parent Attorney responded to my clarification questions regarding the Parent’s requested relief by email on December 13, 2023. IHO Ex. II.

FINDINGS OF FACT

I make the following findings of fact.

The Student is a [REDACTED]-year-old diagnosed with Autism and Attention Deficit Hyperactivity Disorder (ADHD) and presents with delays in non-verbal and verbal abilities and significant cognitive and academic deficits which require intensive remediation/instruction and related services. D Ex. 1:1-4. He is classified by the DOE as a student with Autism, and according to the DOE, as of the July 2023 IEP meeting, is at a Kindergarten instructional/functional level in reading and math and has a BIP which addresses his aggression, self-injurious behavior including hitting his head and body, elopement, inappropriate sexual behavior, negative vocalizations, and non-contextual vocalizations. Id. at 1-3, 33.

The Student is in good physical health. Id. at 3. However, he requires intense instruction due to outbursts involving stimming and shouting which can lead to self-harm and property destruction; needs constant repetition; exhibits below average communication skills and uses either two-word utterances or a communication device to communicate with the Provider and other people. Tr. 41-42.

The Student was enrolled in a different private school during the 2022-2023 school year, but that school did not have a seat for the Student for the 2023-2024 school year. P Ex. F ¶¶10-

11. As a result, the Parent informed the DOE that the Student required a new placement for the 2023-2024 school year. Id. at ¶12.

The DOE’s CSE convened on July 28, 2023 to create an IEP for the Student effective July 30, 2023. D Ex. 1:1, 35. The Parent participated in the meeting Id. at 36. The CSE recommended a 12-month extended school year 6:1:1 program at a DOE Specialized School along with PCAT once a month for 60 minutes; individual Occupational Therapy five times per week for 30 minutes each; individual Speech-Language Therapy three times a week for 30 minutes each; group Speech Language Therapy twice a week for 30 minutes each; a full-time daily individual paraprofessional for behavior support; and, and assistive technology device. Id. at 26-28, 33. The IEP also provides the Student with special transportation from the closest safe curb location to school with 1:1 Paraprofessional adult supervision and limited travel time given the Student’s autism and significant cognitive deficits. Id. at 32.

The IEP notes that the Student has a severe cognitive disability, significant deficits in communications/language, significant deficits in adaptive behavior and requires a highly specialized educational program that facilities the acquisition, application and transfer of skills across natural environments (home, school, community, and/or workplace). Id. at 30-31. Further, the IEP states that due to significant cognitive and academic concerns, the Student cannot participate in regular assessments and will participate in alternative assessments in order to assess his abilities. Id. at 31.

The Parent asserted, and the DOE did not refute, that the DOE failed to provide the Student a school placement following the July 2023 IEP meeting. P Ex. F ¶¶13-14. The DOE entered a March 21, 2023 School Location Letter into the record (D Ex. 5), but failed to present any evidence that the DOE offered the Student a placement that could implement the program recommended in the Student’s July 2023 IEP for the 2023-2024 school year.

Further, the Parent asserted, and the DOE did not refute, that as of October 2023, the DOE has not provided the Student with any services during the 12-month 2023-2024 school year, including but not limited to the July 2023 IEP’s mandate of individual Occupational Therapy five times per week for 30 minutes each, individual Speech-Language Therapy three times a week for 30 minutes each, and group Speech-Language Therapy twice a week for 30 minutes each. P Ex. F ¶18.

After the DOE failed to provide the Student with a school placement for the 2023-2024 school year, the Parent toured the Private School and found it to be an appropriate placement for the Student. Id. at ¶¶16-17. The Private School’s Principal credibly testified that the school reviewed the Student’s March 2023 IEP, conducted an in-person intake with the Student and the Parents in July 2023, and that the school and the Student’s Parents agreed that the school would be an appropriate fit for the Student and the school offered the Student a seat for the 2023-2024 school year contingent upon funding. P Ex. G ¶¶27-29.

The Private School is a nonpublic, not-for-profit school for students with disabilities from [REDACTED] years old. Id. at ¶4. There are approximately [REDACTED] students enrolled at the school for the 2023-2024 school year and although most of the students have Autism diagnoses, the school also accepts other students, including students exhibiting deficits with language, sensory processing, and behavior regulation. Id. at ¶¶5, 11. Each student receives a full-day individualized educational program incorporating a multi-strategic approach, data analysis, and evidence-based interventions and techniques, including but not limited to the DIR Floortime relationship-based model, ABA, the TEACCH methodology, and numerous environmental supports. Id. at ¶6. Further, related services are integrated into the classroom and students work on language development, social/emotional development, and improving sensory processing skills across multiple settings and with every teacher and provider. Id. The school utilizes a choice-driven curriculum and community integration to help students pursue their goals and provides adaptive physical education. Id. at ¶¶8, 13.

Each classroom at the school has a lead special education teacher and multiple teaching assistants. Id. at ¶12. Lead teachers hold or are enrolled in Master's degrees in education and are required to have at least three years of experience in the autism field. Id. In addition, the school employs certified speech/language and occupational therapy providers, a school psychologist, program supervisors, an art and music educator, and all related service providers are all licensed in the state of New York. Id. at ¶¶13-14.

The school is comprised of [REDACTED] individual classrooms, a large sensory gym that is utilized for occupational therapy, physical education, and individual sensory diet breaks, an additional light therapy room, an art and recreation room area for vocational skills and creative arts, and individual speech and occupational therapy offices. Id. at ¶17.

Once enrolled at the school for the remainder of the 2023-2024 school year, the Student will be placed in a 6:1:2 classroom with one lead teacher and two teaching assistants. Id. at ¶30. At most, the student to staff ratio for his class will be 2:1 and he will be placed in a classroom that meets his sensory, emotional, and behavioral needs, including a homeroom with students similar in need and appropriate in chronological and developmental age, and an academic group for Math and ELA that meets his direct levels based on assessments. Id. at ¶¶30-31. The Student will be provided with related services pursuant to his IEP, including Occupational Therapy and Speech-Language Therapy, both five times weekly. Id. at ¶32. He would be reassessed annually to determine if adjustments are needed to the provision of related services. Id.

In addition, the Student will be enrolled in a social skills class to improve his language and social skills in a natural environment, receive daily vocational training, and participate in community walks at least once per week in order to practice travel and safety skills in the community. Id. at ¶¶33-34.

The Parent and Principal credibly testified that in order for the Student to attend the Private School the Parent would either have to fund the program entirely or secure an IHO Order compelling the DOE to fully fund the Private School. P Ex. F ¶20; P Ex. G ¶37. The cost of the program for the 2023-2024 school year is [REDACTED] and the Student’s tuition would be prorated based on his start date. P Ex. C; P Ex. G ¶38. The Parent credibly testified that they cannot afford to pay the cost of the Private School’s tuition. P Ex. F ¶21.

With respect to the Parent’s request for special education instruction and/or behavioral support by a licensed and/or certified provider of the Parent’s choice, the Provider testified that she has been working with the Student since July 11, 2023, providing home-based behavior therapy grounded in ABA and special education instruction four times a week for two and a half hours per day for a total of 10 hours/week. Tr. 39-40. Specifically, the Provider is working with the Student on his communication goals and Activities of Daily Living (ADL) skills. Tr. 42. She is state certified in special education, has a master’s degree in special and general education, and has completed graduate coursework in ABA and training in a sensory-based reading program, the Barton Reading System. Tr. 36-37. The Provider is currently an independent contractor with the DOE and has been in this role for 13 years, serving as a Special Education Itinerant Teacher (SEIT) and Special Education Teacher Support Services (SETSS) provider, supporting students’ cognitive and/or social-emotional deficits to achieve their IEP goals. Tr. 37-38.

The Provider credibly testified that if the Student is placed at the Private School, she will maintain constant communication with the school. Tr. 42. In addition, she will respond to any DOE requests for progress reports or participation in a CSE meeting regarding the Student. Tr. 42. The Provider also testified that the Student has made progress since they began working together, including in the Student’s ability to maintain eye contact with the Provider, being more present during sessions and being able to work for a longer period of time, and transitioning more easily to the schedule. Tr. 43-44. Further, the Provider testified that she believes it is important for the Student to continue to receive home-based services for the reminder of the 2023-2024 school year even after starting at the Private School because after-school services will bridge the gap between the hours and help prepare him for school. Tr. 50-51.

With respect to the Parent’s request for BCBA supervision, the Provider testified that it is really important to have the skills and expertise of a BCBA to work with to help build a program that allows the Student to excel and meet his goals. Tr. 44-45. Further, the Provider testified that although she has a lot of training, it would be very valuable to be supervised by a BCBA consistently once a week. Tr. 44-45.

The Provider testified that her rate is $200/hour and that this is a DOE-approved rate. Tr. 45-47. Also, to her understanding, the rate for BCBA supervision would be $225/hour. Tr. 45-47.

With respect to the Parent’s request for 10 hours/week of home instruction from the start of the 2023-2024 school year until the Student begins attending the Private Counsel, Parent Counsel asserted that the basis for the 10 hours/week request is from home instruction guidelines which state that a student the Student’s age should receive 10 hours/week of home instruction if they are without a school placement. Tr. 58. On the record, the DOE did not object to the Parent’s request for 10 hours/week of instruction before the Student enters the Private School. Tr. 58.

CONCLUSIONS OF LAW AND ANALYSIS

Burden

In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c). The DOE has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169.

Provision of a FAPE

The IDEA provides that children with disabilities are entitled to a 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 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 Cty. Sch. Dist. RE-1, 580 U.S. 386, 389 (2017).

A district's assignment of a student to a particular public school site must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014]). In reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial or "material" (A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. Mar. 23, 2010]; M.L. v. New York City Dep't of Educ., 2015 WL 1439698, at *11-*12 [E.D.N.Y. Mar. 27, 2015; see Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir. 2007] [holding that a material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled student and the services required by the student's IEP].

I find that the DOE failed to offer the Student a FAPE for the 2023-2024 school year. The DOE should be “able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. at 404. Here, the DOE presented no testimony, confirmed that it was not putting on a case defending a FAPE, submitted documents into the record but pointed to no specific information in any document to establish that the Student was provided a FAPE, waived an opening statement, declined to cross-examine the Parent or Private School witness, and failed to submit a written closing brief, as requested. In addition, the Parent asserted, and the DOE did not refute, that the DOE failed to provide the Student a school placement for the 2023-2024 school year and failed to provide the Student with any of the programs or services recommended in the Student’s IEP since the start of the 12-month 2023-2024 school year, including mandated 2 ½ half hours/week of Speech-Language Therapy and Occupational Therapy, i.e., five times per week for 30 minutes each.

As such, I find that the DOE failed to establish by a preponderance of the evidence that it offered the Student a FAPE for the 2023-2024 school year. The DOE did not present any credible evidence that it has implemented the Student’s IEP program recommendations or provided the Student with a school placement.

Relief

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. When a school district denies a child a FAPE, the courts have “broad discretion” to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16. In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. of Educ., 790 F.3d 454 (2d Cir. 2015).

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).

Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child’s education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008) (citations omitted). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). An award of compensatory education “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.” Reid, 401 F.3d at 518, 524.

There are generally two approaches to fashioning a compensatory education award, the “quantitative” approach and the “qualitative” approach. M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 [3d Cir. 1996]; See, e.g., Reid, 401 F.3d at 518, 524. The quantitative approach provides for compensatory education equal to the period of deprivation, whereas the qualitative approach fashions an award based upon individual assessments and is 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.” Reid, 401 F.3d at 518, 524. The Second Circuit has generally adopted the practice of leaving “the mechanics of structuring the compensatory education award” to the sound discretion of the court to fashion a relief that is appropriate in light of the purpose of the Act, without articulating a specific formula or approach. Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 [2d Cir. 2016]; see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008]. When calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP] or encompass analogous educational services appropriate to the Student’s current needs,” but 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.” Doe. v. East Lyme, 790 F.3d at 457.

Under New York law, the district has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award, but the parent must identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the years it is claimed the student was denied a FAPE. Education Law § 4404[1][c]; See JKG v. Wissahickon Sch. Dist., 2021 U.S. Dist. LEXIS 55235 *25 [E.D. Pa. 2021]. The IHO may order that an award of services be placed in a bank to be used by a certain date to allow flexibility in the implementation. M.M. v. New York City Dep’t of Educ., 2017 U.S. Dist. LEXIS 47812, *25 [S.D.N.Y. 2017].

Here, I find that the DOE did not carry its burden to establish the appropriate relief needed to remediate the DOE’s failure to provide the Student a FAPE. The DOE did not call any of its own witnesses, propose any compensatory relief, or otherwise credibly develop the record to establish that any of the Parent’s requests are inappropriate or unnecessary to provide the Student with a FAPE.

I find that the Parent met her obligation to offer evidence in the record of a specific remedy for the denial of a FAPE to the Student for the 2023-2024 school year. Further, the Parent’s granted relief is reasonably calculated to provide the Student with the program that the Student would likely have accrued if the DOE had met its FAPE obligations and is supported by credible information included in the record regarding the Student’s needs.

With respect to the Private School, the DOE failed to provide the Student with any placement during the 2023-2024 school year, and the Private School is an appropriate fit for the Student. It serves students with similar diagnoses and educational needs and can address the Student’s deficits through individualized small-group instruction from certified teachers and related services providers. Further, the DOE is obligated to ensure that the Student receives the requested 10 hours per week of special education instruction and/or behavioral support from the beginning of the 12-month 2023-2024 school year until the Student begins attending the Private School as this is at minimum the educational benefits that likely would have accrued from special education services the DOE should have supplied in the first place.

Further, the Parent submitted sufficient credible evidence to establish that the request for one hour per week of consultation/supervision by a BCBA for the entirety of the 12-month 2023-2024 school year and five hours per week of after-school special education instruction and/or behavioral support from the Student’s start date of attendance at the Private School for the remainder of the 12-month 2023-2024 school year are appropriate services to meet the Student’s current communication, cognitive, behavioral, and ADL needs. Further, the services will provide the Student with an educational benefit once he starts attending the Private School and ensure the provision of a FAPE.

The Parent’s request for compensatory Speech and Language Therapy and Occupational Therapy is also supported by the record and directly corresponds to the services specified in the Student’s IEP which the DOE did not refute that the Student has not received since the beginning of the 12-month 2023-2024 school year.

Last, the Parent’s transportation request to and from the Private School and any compensatory services is appropriate. The Student’s IEP corroborates his need for special transportation, and the IDEA requires school districts to provide transportation “if that service is necessary for a disabled child ‘to benefit from special education,’ even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.” Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted); accord P. v. West Hartford Bd. of Educ., 885 F.3d 735, 741 (2d Cir 2018)(related services include necessary transportation) citing 20 U.S.C. § 1401(26)(A) and Bd. of Educ. v. Rowley, 458 U.S. 176, 188 (1982); see also 34 C.F.R. 300.34. Additionally, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs." NYS Educ. Law § 4401[1](emphasis added); §4402[4][a]; 8 N.Y.C.R.R. §200.1[ww]); NYC Chancellor’s Regulation A-801(2)(I)(A) (“State Education Law mandates that the City School District provide transportation for special education children residing in New York City to and from the school they legally attend”).

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered: (1) the DOE shall fund ten hours per week of special education instruction and/or behavioral support by a licensed and/or certified provider of the Parent’s choice at a rate not to exceed $200/hour from the beginning of the 12-month 2023-2024 school year until the Student’s start date of attendance at the Private School, or if that does not occur, for the entirety of the 12-month 2023-2024 school year; (2) the DOE shall fund two and a half (2 ½) hours per week of individual Speech and Language Therapy by a licensed and/or certified provider of the Parent’s choice at a reasonable market rate from the beginning of the 12-month 2023-2024 school year until the Student’s start date of attendance at the Private School, or if that does not occur, for the entirety of the 12-month 2023-2024 school year; (3) the DOE shall fund two and a half (2 ½) hours per week of Occupational Therapy by a licensed and/or certified provider of the Parent’s choice at a reasonable market rate from the beginning of the 12-month 2023-2024 school year until the Student’s start date of attendance at the Private School, or if that does not occur, for the entirety of the 12-month 2023-2024 school year; (4) the DOE shall fund transportation to and from any provider utilized for compensatory services identified in this order in the form of Metro cards for the Student and Parent; (5) the DOE shall directly fund the Private School’s pro-rated cost for the Student’s 12-month 2023-2024 tuition and any other related costs with attendance in an amount not to exceed [REDACTED]; (6) the DOE shall directly fund or provide appropriate transportation for the Student to and from the Private School from the Student’s start date of attendance at the Private School for the remainder of the 12-month 2023-2024 school year; and, (7) the DOE shall fund five hours per week of after-school special education instruction and/or behavioral support by a licensed and/or certified provider of the Parent’s choice at a rate not to exceed $200/hour from the Student’s start date of attendance at the Private School for the remainder of the 12-month 2023-2024 school year.

SO ORDERED.

DATED: December 15, 2023 s/ Amy Randhawa

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.

APPENDIX A – REDACTION IDENTIFICATION PAGE

Term Used In FOFD [REDACTED] Information Student [REDACTED] Parent [REDACTED] Parent Attorney [REDACTED] DOE Attorney [REDACTED] Private School [REDACTED] DOE New York City Department of Education Principal and Executive Director, Private

[REDACTED]

School Provider [REDACTED]

IHO 1 [REDACTED]

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

DOE EXHIBITS

EX. DATE NAME PAGES

1 07/28/2023 IEP 36

2 06/14/2023 Consent for Additional Assessments 4

3 06/13/2023 Agreement For Additional Reevaluation 1

4 01/23/2023 IEP 36

5 03/21/2023 School Location Letter 2

PARENT EXHIBITS

A. Ex. Date Description Pages Due Process Complaint 8/10/23 6 pages

B. Private School-Program Description 23-24 SY 1 page

C. Student Enrollment Contract Undated 3 pages

D. Auditory Processing Evaluation Undated 8 pages

E. Resume of Principal, Private School Undated 2 pages

F. Affidavit of Parent 10/3/23 3 pages

G. Affidavit of Principal, Private School IHO EXHIBITS: Ex. Date Description Pages 10/4/23 9 pages

PARENT

I. Closing Brief 10/25/2023 6 pages

II. Emails regarding Parent’s Relief 12/13/2023 3 pages

Footnotes

[1] Exhibits are referred to as follows: “D” for DOE exhibits, “P” for Parent exhibits, and “IHO” for Impartial Hearing Officer exhibits, followed by the exhibit number, and if applicable, page number(s) and/or paragraph(s).