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FINDINGS OF FACT AND DECISION
Case Number: 166992
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 24, 2018
December 3, 2018
January 4, 2019
Actual Record Closed Date: April 1, 2019
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 24, 2018
For the Student:
ESQ., Attorney
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 3, 2018
For the Student:
ESQ., Attorney
ESQ., Attorney
parent
BCBA (via telephone)
BCBA (via telephone)
Psychologist (via telephone)
speech Pathologist (via telephone)
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 4, 2019
For the Student:
ESQ., Attorney
ESQ., Attorney
For the Department of Education:
District Representative
I]. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the attorneys for the student and the parents in a due process complaint notice dated June 30, 2017. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”’) for the 2017/18 school year (Exs. P-A, P-E).'[1] When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“TEP”), which is delegated to a local committee on special education (the “CSE”’) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR 8§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(1).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(4)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and as “Ex.” confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (hC1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(V), (vii), (x11).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(4)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR§ 200.5(k).
PROCEDURAL HISTORY
On July 6, 2017, the DOE appointed me to serve as the [HO in this matter. See 8 NYCRR § 200.5(G)(3)(@).. On October 10, 2018, the parent filed an amended due process complaint (Ex. P-E). See 8 NYCRR § 200.5()(7)G). On October 11, 2018, the undersigned rendered an Interim Order on Pendency which directed the DOE to fund the student’s receipt of home- and center-based ABA/SEIT and related services until these proceedings concluded (Ex. P-D at 7-8). See 20 U.S.C. § 1415qG); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). Hearings on the merits of the matter were thereafter held on December 3, 2018 and January 4, 2019.[2] Appended to "Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 11-12; Exs. IHO- - IHO-XVIII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(G)(5). this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
I. FACTUAL BACKGROUND
At the time of the October 10, 2018 amended due process complaint, the student was old and presents with profound delays in all developmental areas (Exs P-H at 9-10, P-S at 5, P-U at 1-2, P-W at 2). For the 2017/18 school year, the student received home-, and center-based, services including: 1:1 ABA therapy, BCBA supervision, parent training and related services of occupational therapy, physical therapy, and PROMPT-based speech and language therapy (Ex. P-G at 8-9). The student's eligibility for special education and related services as a student with autism is not in dispute in this hearing (Exs. P-E at 4, P-S at 1). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR§ 200.1(zz)(1).[3]
The student has significant impairments in her communication skills including her receptive, expressive, and pragmatic language abilities. Her significant attentional, cognitive, and language deficits interfere with her acquisition of skills. She presents with significant social skills issues, physical issues, sensory processing skills, and various medical issues.*. She lacks appropriate safety awareness and can present a danger to herself if not carefully supervised at all times. She demonstrates various self-stimulatory and stereotyped behaviors and she engages in self-harm as well as aggressive behaviors towards others when frustrated (Ex. P-E at 4).
8 NYCRR § 200.1(zz)(1).
On or about June 19, 2017, the parents informed the DOE that, as they had not been yet invited to attend an annual review meeting, nor received an IEP or notice of proposed school placement for the 2017/18 school year, they intended to continue the student’s home-based program and would seek reimbursement from the DOE for all necessary and related costs (Ex. P-F).
On or about August 10, 2017, the parents received a Nickerson letter from the DOE with the student’s 2015/16 IEP attached.[5] There were, however, no appropriate New York State-approved nonpublic schools for the student for the 2017/18 school year as she required an intensive center-based/home-based program and the 2015/16 IEP that was attached to the Nickerson letter did not accurately reflect the student’s needs as of August 2017 (Ex. P-U at 3).
For approximately three (3) months after the start of the 2017/18 school year, the student remined without an IEP or a program recommendation (Ex. P-U at 2). On October 3, 2017, the CSE convened to develop an JEP for the student through October 2018. The CSE recommended that the student receive the majority of her instruction in a 6:1+1 special class, with a daily, full-time health paraprofessional, in a specialized ( ) school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: specialized transportation (i.e., air-conditioned minibus with five (5) point car seat and limited time travel of not more than sixty (60) minutes); individual occupational therapy, five (5) times per week for sixty (60) minutes per session; parent counseling and training, two (2) times per week for sixty (60) minutes per session; individual physical therapy, five (5) times per week for forty-five (45) minutes per session; and individual speech/language therapy, six (6) times per week for sixty (60) minutes per session (Exs. P-S at 17-18, 20-22, P-U at 3).
In November 2017, the parents received a copy of the student’s IEP for the 2017/18 school year and a placement recommendation letter. The recommended placement was a program located in . After visiting the proposed program, the parents concluded that it would not be appropriate for the student because it only offered forty-five (45) minutes of ABA in the school day, it did not offer the student (whose has severe allergies) a nut-free environment, and it would require the student (who is diagnosed with ) to walk up four flights of stairs daily (Ex. P-U at 3-4). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE asserts that the matter was resolved once it issued the parents a Nickerson letter and the parents’ claims concerning the 2017/18 school year should be dismissed as moot (R. 29-30).
B. The Parents
The DOE should also be ordered to reimburse the parents, and/or directly pay, for the student’s twelve (12) month home- and center-based program, which included ABA, BCBA supervision, and PROMPT-based speech/language therapy. The matter is not moot because the parents were unable to secure an appropriate State-approved nonpublic school with the DOE’s Nickerson letter. The CSE’s 2017/18 IEP for the student was untimely and inappropriate. In contrast, the home- and center-based services secured by the parents for the student appropriately addressed the student’s unique educational needs. The relevant equities also support an award of reimbursement, and/or direct public funding, of the student’s home- and center-based program (R. 30-38; Exs. P-A, PE).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[6]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M_H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). '[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an JEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; 4.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)GD; 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5G)(4)(1); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)G). A school district offers a FAPE "by providing personalized instruction with ufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement." See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful’ benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d A422, 428 (W.D.N.Y. 2008).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)q), (2)G)(A); 8 NYCRR § 200.4(d)(2)(i1), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); SW. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Proposed Public Program
The DOE failed to establish at the hearing that it offered the student an appropriate educational program reasonably calculated to enable the student to receive educational benefit.
1. Mootness
A dispute between parties must at all stages be "real and live," and not "academic," or it risks becoming moot. See Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 (2d Cir. 2005); see also Toth, 720 Fed. App'x at 51; F.O. v. New York City Dep't of Educ., 899 F. Supp. 2d 251, 254 (S.D.N.Y. 2012); Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *12 (E.D.N.Y. Oct. 30, 2008); JN. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 (W.D.N.Y. Sept. 30, 2008); Coleman v. Daines, 19 N.Y.3d 1087, 1090 (2012); Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 (1980).
In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted. See, e.g, V.M. v. N. Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 119-21 (N.D.N.Y. 2013); MS. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 280-81 (E.D.N.Y. 2010); Patskin, 583 F. Supp. 2d at 428-29; J.N., 2008 WL 4501940, at *3-*4. Furthermore, a party's "unwillingness to admit liability is insufficient, standing alone, to make [a] case a live controversy," where the party has otherwise agreed to fully resolve the dispute. See McCauley v. Trans Union,
L. , 402 F.3d 340, 341-42 (2d Cir. 2005). However, in most instances, a claim for compensatory education will not be rendered moot. See Mason v. Schenectady City Sch. Dist., 879 F. Supp. 215, 219 (N.D.N.Y. 1993); see also Toth, 720 Fed. App'x at 51.
Based on the evidence contained in the hearing record, I find that the matter is not moot. At the hearing, the DOE failed to offer a copy the Nickerson letter it claims it transmitted to the parents. The DOE also failed to offer any evidence of a stipulation of settlement resolving the parents’ claims for the 2017/18 school year. The student’s mother testified (via affidavit) that the parents were unable to use the DOE’s Nickerson letter because there were no New York State-approved nonpublic school programs appropriate for the student for the 2017/18 school year. The student’s mother also stated that the student’s BCBA supervision was discontinued after the settlement funds for the services agreed to by the DOE for the 2016/17 school year were exhausted (Ex. P-U at 3-4). In the absence of any evidence that the parents’ 2017/18 school year claim was resolved, I decline to find that the matter is now moot.
2. Timeliness of Recommended Program/Placement
The parents assert that the DOE failed to timely recommend an appropriate program and placement for the student to attend instruction during the 2017/18 school year (Exs. P-A, P-E).
In general, the IDEA and State regulations require that a school district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability. See 34 C.F.R. § 300.323(a); 8 NYCRR § 200.4(e)(1)(i1); Cerra, 427 F.3d at 194; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff'd, 530 Fed. App'x 81, 2013 WL 3814669 (2d Cir. July 24, 2013). Although federal and State regulations do not expressly state that a school district must provide a written notice to the parents in any particular format describing the "bricks and mortar" location to which a student is assigned and where the student's IEP will be implemented, once an JEP is developed and a parent consents to a school district's provision of special education services, the IDEA is clear such services must be provided to the student by the school district in conformity with the student's IEP. See 20 U.S.C. §§ 1401(9)(D), 1414(d); 34 C.F.R. §§ 300.17(d), 300.320. When determining how to implement a student's IEP, the assignment of a particular school is an administrative decision, provided it is made in conformance with the CSE's educational placement recommendation. See K.L.A. v. Windham Southeast Supervisory Union, 371 Fed. App'x 151, 154, 2010 WL 1193082 (2d Cir. Mar. 30, 2010); T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 (2d Cir 2009); Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 (2d Cir. 1980).
However, although not explicitly stated in federal or State regulation, implicit in a school 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 the IEP, a school district must notify parents of the bricks and mortar location of the special education program and related services in a student's IEP. See Tarlowe, 2008 WL 2736027, at *6 (stating that a school district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year). While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation, it nonetheless must be shared with the parent before the student's IEP may be implemented. See Application of the New York City Dep't of Educ., Appeal No. 14-083 at 13 (SRO Jan. 8, 2015).
Here, it is undisputed that the CSE did not convene until October 2017 to develop an IEP for the student for the 2017/18 school year (Exs. P-S at 21, P-U at 3). The hearing record did not include a copy of a prior written notice (“PWN”) of the CSE’s recommendation, a final notice of recommendation (“FNR”), or a school location letter. There was no testimony offered of the routine office practice, if any, followed in the applicable DOE office relative to the mailing of such documents to the parents. The parent testified (via affidavit) that she first received the student’s IEP and notice of placement in November 2017 (Ex. P-U at 3). I therefore find that DOE failed to timely develop and IEP for the student and that such delay impeded the student's right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student and caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)Gi); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5())(4)(11).
C. Appropriateness of the Private Program
Given my finding that the DOE failed to provide the student with a FAPE during the 2017/18 school year, I turn to the appropriateness of the parents’ private program. With respect to the second criterion for an award of reimbursement, a parent must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “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., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Jd. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the credible testimony of ; , Dr. ; ; (via affidavit), and the student’s mother (via affidavit), I find that the program and services secured by the parents for the student were appropriate because the homeand center-based program provided her with specifically designed, individualized instruction to meet her unique educational needs (R. 45-113; Exs. P-U, P-W).
Ms. , an ABA provider who also provided parent training throughout the 2017/18 school year, described the student’s need for ABA services on a fifty-two (52) week basis in order to practice, track and reinforce skills across settings and providers (Ex. P-W at 4). Ms. *s has a master’s degree in general and special education and a master’s degree in (Ex. P-W at 1). Ms. is a New York State certified general and special education teacher and she was trained and continues to be supervised by a BCBA (Ex. P-W at 1). Ms. provided six (6) hours of home-based ABA per week to the student and two (2) hours of parent training to the parents (Ex. P-W at 2). During the ABA sessions, Ms. worked on academic skills such as number, people and color identification and color sorting, as well as on functional and self-help skills throughout the 2017/18 school year (Ex. P-W at 2-3). The student had opportunities for social interaction in the community under Ms. ’s close supervision (Ex. P-W at 3). She tracked the student’s progress by recording data of every skill practices, graphing the data and sharing it with other ABA providers (Ex. P-W at 3-4).
During the hearing, the parents also presented the testimony of Ms. , who has been a certified Special Education teacher in New York and a BCBA since 2003 (R. 44-45). Ms. , who provided BCBA supervision to the student during the 2016/17 school year, testified that the student needed a BCBA to supervise the home-based ABA providers’ programs in order to effectively collaborate and ensure consistent ways of treating the student (Ex. 48-49). , who also testified during the hearing, has a master’s degree in special education, a Ph.D. in ABA, and is licensed and certified as a BCBA by the State of New York (R.72). Ms. testified that she briefly worked with the student during the 2017/18 school year as a BCBA supervisor of the student’s ABA/SETSS provider, (R. 74, 76-77). She testified about the learning-impeding behaviors she observed the student display during the 2017/18 school year, which included ; (R. 75, 78-79). It was Ms. ’*s opinion that the student required BCBA supervision since only a BCBA has the specific training to identify the functions of the maladaptive behaviors and to create evidence-based interventions to address those behaviors (R. 79-80). Although several witnesses testified that the student requires fifteen (15) hours of BCBA supervision per week in order to progress, and the most recent evaluation of the student also recommended fifteen (15) hours per week of BCBA supervision of the student, the parents were unable to secure BCBA supervision consistently during the 2017/18 school year since they were unable to afford the cost of BCBA supervision (R. 50-51; 56; 84-85; 98-99; Exs. P-G, P-H; P-U at 4; P-W at 5).
The Parents also presented testimony of , the stent’s PROMPT-trained speech pathologist (R. 115). Ms. holds her New York State license in speech pathology and is PROMPT-trained and certified (R. 114-115). Ms. provided six (6) hours per week of 1:1 PROMPT-based speech language therapy to the student during the 2017/18 school year (R. 120). The hearing record shows that Ms. had a deep understanding of the student’s issues with volitional control due to her severe apraxia of speech (R. 119-120, 122-123). She testified that the student progressed throughout the 2017/18 school year by learning to pick the right item in a field of five and pairing gestures with attempts to produce at labels (R. 124-125).
The weight of the evidence supports a finding that the parents have met their burden to show that the home- and center-based instruction and services that they secured for the student was appropriate to meet her special education needs for the 2017/18 school year.
D. Relevant Equities
The final criterion for a reimbursement award is that the parents’ claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bad. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)aii); 34 C.F.R. § 300.148(d); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); MV. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff'd, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)ai)(); 34 C.F.R. § 300.148(d)(1). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see also Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007).
The relevant equities support an award of reimbursement and/or direct payment for the student’s home- and center-based program for the 2017/18 school year. In a letter dated June 19, 2017, the parents gave the DOE adequate written notice of his intent to make a unilateral placement of the student in a home- and center-based program for the 2017/18 school year at public expense (Ex. P-F). See 20 U.S.C. § 1412(a)(10)(C)Gu)(); 34 C.F.R. § 300.148(d)(1). There is also no evidence indicating that the parents were uncooperative with the CSE (Ex. P-S), see 20 U.S.C. § 1412(a)(10)(C)(i1i), nor was the cost of the student’s home- and center-based program unreasonable given the severity of the student’s needs and services necessary to address those needs, see Carter, 510 U.S. at 16.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
ITIS
HEREBY ORDERED THAT:
The parents’ claim that the student was denied a free appropriate public education (FAPE) for the 2017/18 school year is SUSTAINED; The home- and center-based program created by the parents was reasonably calculated to provide educational benefit and to meet the student’s needs; The Parents have cooperated throughout the special education process and the equities do not bar an award of funding for the private home- and center-based program for the 2017/18 school year which includes: a) at least forty (40) hours per week of 1:1 ABA/SEIT services; b) at least fifteen (15) hours of BCBA supervision per week; c) at least six (6), sixty (60) minute sessions per week of 1:1 Speech and Language Therapy by a PROMPT-certified provider; d) at least five (5), sixty (60) minute sessions per week of 1:1 Occupational Therapy; e) at least five (5), forty-five (45) minute sessions of 1:1 Physical Therapy; f) at least two (2) hours of parent training by a BCBA per week; g) all services at enhanced rates; h) appropriate transportation to and from the student’s center-based program currently at , with all necessary special education transportation accommodations, including limited time travel, and climate-controlled minivan; and i) all services to be provided on a fifty-two (52) week basis including weekends, vacations and holidays at the parents’ discretion. Dated: April 26, 2019 /s/ Jeffrey J. Schiro Jeffrey J. Schiro, Esq. Impartial Hearing Officer
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO THE RECORD
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 6/30/17, 10 pgs.
B. Findings of Fact & Decision , 11/9/15, 26 pgs.
Interim Order on Pendency , 10/26/16, 11 pgs.
Interim Order on Pendency , 10/11/18,
10 pgs. ss Amended Due Process Complaint Notice/Impartial Hearing Request, 10/10/18, 13 pgs.
Ten Day Notice, 6/19/17, 4 pgs.
Neuropsychological Evaluation Update, 8/20/15, 9 pgs.
Neuropsychological Evaluation, 9/29/18, 12 pgs.
— Schedule, 2017/18, 1 pg.
Attendance Record, 2017/18, 2 pgs. AcCHevpOrOZsESZEr
SEIT & SLT Progress Reports, 2017/18, 10 pgs.
Student Progress Report (SETSS/ABA), 2017/18, 14 pgs.
Child Observation Forms, 2017/18, 12 pgs.
Student Progress Report (PT), 6/12/18, 4 pgs.
Occupational Therapy Progress Report, 10/4/18, 7 pgs.
Curriculum Vitae — , undated, 6 pgs.
SETSS/ABA Progress Report, 2017/18, 8 pgs.
Speech/Language Therapy Progress Report, 2017/18, 9 pgs.
Individualized Education Program (IEP), 10/3/17, 23 pgs. [Reserved]
Affidavit of , 12/18/18, 7 pgs. [Reserved]
Affidavit of , 12/18/18, 5 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Order on Consolidation 12/3/18, 5 pgs.
II. Confirmation of Extension, 9/13/17, 1 pg.
Il. Confirmation of Extension, 10/9/17, 1 pg.
IV. Confirmation of Extension, 11/6/17, 1 pg.
V. Confirmation of Extension, 12/13/17, 1 pg.
VI. Confirmation of Extension, 1/8/18, 1 pg.
VII. Confirmation of Extension, 2/12/18, 1 pg.
VII. Confirmation of Extension, 3/9/18, 1 pg.
IX. Confirmation of Extension, 4/9/18, 1 pg.
X. Confirmation of Extension, 5/7/18, 1 pg.
XI. Confirmation of Extension, 6/19/18, 1 pg. XH. Confirmation of Extension, 7/5/18, 1 pg. XU. Confirmation of Extension, 8/13/18, 1 pg.
XIV. Confirmation of Extension, 9/13/18, 1 pg.
XV. Confirmation of Extension, 12/26/18, 1 pg.
XVI. Confirmation of Extension, 1/25/19, 1 pg.
XVII. Confirmation of Extension, 2/18/19, 1 pg. XVIII. Confirmation of Extension, 3/26/19, 1 pg.
Footnotes
[1] "References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 11-12; Exs. IHO- - IHO-XVIII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.
[5] A "Nickerson letter" is a letter from the district authorizing a parent to place a student in a State approved nonpublic school at no cost to the parent. See Jose P. v. Ambach, No. 79 Civ. 270, 553 IDELR 298 (E.D.N.Y. Jan. 5, 1982). The remedy of a "Nickerson letter" is intended to address the situation in which a student has not been evaluated or placed in a timely manner. See, e.g., Application of the New York City Dep’t of Educ., Appeal No. 11-040 (SRO June 8, 2011).
[6] The term “free appropriate public education” means special education and related services that — (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) ofthis title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.