New York City Department of Education, Impartial Hearing Decision

Case Number: 183538

Student’s Name:

Date of Birth:

Home District: CSE

Hearing Requested By: Parent

Date of Hearings: May 13, 2020

October 13, 2020

Hearing Officer: Ellen Cutler-Igoe, Esq.

Hearing Close date: October 30, 2020

NAMES AND TITLES OF PERSONS WHO APPEARED BY TELEPHONE ON MAY 13,

2020

For the Parents:

Esq. Parent Attorney

Parents

Classroom Supervisor

SETTS Provider

For the Department of Education:

Esq. Department of Education, Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

BY TELEPHONE ON OCTOBER 13, 2020

For the Parents:

Esq. Parent Attorney

For the Department of Education:

Esq. Department of Education, Attorney

On or about June 19, 2019, I was appointed the Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. 1415(f)(1) in the matter of The parties moved to extend the compliance date during the course of the proceeding. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter.

Accordingly, the request for extensions of the compliance were granted. Appended to the record is a list of documents submitted into the evidence.

is years old and resides in New York City with his Parent (Ex. A). __ is said to be a sweet, happy youngster diagnosed with Autism Spectrum Disorder (“ASD” or “autism”’), a rare chromosomal syndrome (18q syndrome) and mixed developmental disorders resulting in severe developmental delays. He presents with profound deficits in expressive and receptive language, social/emotional growth, academic achievement, sensory issues, the ability to make eye contact, toilet training, focus, attending and eating. —__is nonverbal and his overall levels of functioning in cognitive, communication, gross and fine motor skills are all well below expectations which greatly impact his ability to progress in school. has been known to the DOE since he transitioned from Early Intervention to the Committee on Preschool Special Education (“CPSE”) where he attended a 6:1:2 classroom in a center based preschool program that used Applied Behavioral Analysis (“ABA”) with intensive related services.

During the 2016-2017 school year, attended , a private ABA school. Parent’s attorney filed an impartial hearing on September 23, 2016 and IHO was appointed to oversee the case. On March 6, 2017, [HO issued a FOFD that ordered the DOE to fund

*s placement at for the 2016-2017 school year and 360 hours of ABA/SEIT instruction for the purposes of 10 hours per week of after school ABA. continued to attend during the 2017-2018 and 2018-2019 school years. A pendency hearing was held on July 17, 2019. At hearing, Parent’s counsel invoked ’s pendency rights to obtaining continuation of tuition at (“ ”), specialized transportation with a limited time travel; and Ten (10) hours weekly of home-based Applied Behavior Analysis ( “ABA”) pursuant to the last un-appealed decision, Impartial Hearing Officer (“IHO”)

’s Findings of Fact of Decision (“FOFD”) for NYC Case no. dated March 6, 2017.

A pendency order was issued on July 30, 2019 awarding the requested injunctive relief. Hearings were held on May 13, 2020 and October 13, 2020. Parent withdraw her claim seeking an order directing the DOE to fund two sessions per week of speech-language therapy with a PROMPT certified speech-language pathologist at an enhanced rate not to exceed $175 per session up until the provider was able to do so during the COVID-19 outbreak and not including any remote services. ( [HO exhibit I, page 13) The record is void of an IEP for the 2019/2019 school year.

The purpose of the IDEA is 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 to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B); see also Bd. of Educ.

of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 223 (2d.

Cir. 2012). The United States Supreme Court recently clarified the standard to which educational programs developed pursuant to the IDEA’s requirements are held. “To meet its substantive obligation under the IDEA, a school must offer an IEP 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, U.S.., 137 S. Ct. 988, 999 (2017). The determination of whether an IEP is sufficient to meet this standard therefore differs according to the individual circumstances of each student. See id. at 1000. A child's educational program must be appropriately ambitious in light of his circumstances. Id. at 992.

Where deprivation of FAPE is found, or conceded as it has been in this case, the IDEA allows a hearing officer to fashion a remedy that he or she finds appropriate under the circumstances, including but not limited to “ordering a local educational agency to comply with procedural requirements under this section,” 20 U.S.C. § 1415(f)(3)(E)G), and awarding compensatory education and additional services tailored to meet the unique circumstances of the case. 20 U.S.C. §§ 1401(3), 1412(a)(1)(B); N.Y. Educ. Law §§ 3202(1), 4401(1), 4402(5); see also P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008); Wenger v. Canastota, 979

F. Supp. 147 (N.D.N.Y. 1997). The IDEA further contemplates the equitable award of private tuition payment where, as here, parents of students covered under the IDEA have unilaterally placed the student privately in response to the DOE’s failures to provide the student with a FAPE. Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ., 471 U.S. 359, 373-74 (1985); Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); A.D. v. Bd. of Educ. of City Sch. Dist. of N.Y., 690 F. Supp. 2d 193, 198 (S.D.N.Y. 2010); 20 U.S.C. § 1412 (a)(10)(C). “In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA .. .. ‘Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance’ had it offered the student a FAPE.” SRO No. 12-135, p. 9 (quoting Burlington, 471 U.S. at 370-71, and citing 20 U.S.C. § 1412 (a)(10)(C)Gi) and 34 CFR 300.148). The broad spectrum of equitable relief contemplated under the IDEA encompasses all forms of private tuition payment remedies, whether that be reimbursement, prospective payment, retrospective payment, or any direct payment scheme under which the DOE would make the student’s tuition payments in the place of the parent. E.M. v. N.Y.C. Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014). Under the Burlington-Carter three-part assessment, parents are entitled to payment of a private placement if: (1) the DOE failed to offer the student a FAPE; (2) the private placement secured by the parents is appropriate to the child's needs; and (3) equitable considerations support the plaintiffs’ claim. Forest Grove, 557 U.S. 230; Carter, 510 U.S. 7; Burlington, 471 U.S. 359; Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006); 20 U.S.C. § 1412(a)(10)(C).

The burdens of production and persuasion fall upon the DOE for all matters at issue other than the appropriateness of the parental placement, for which the burden of proof lies with the parents. N.Y. Educ. Law § 4404(1)(c); see also M.P.G. v. N.Y.C. Dep’t of Educ., 2010 WL 3398256 at *7 (S.D.N.Y. Aug. 27, 2010).

The District of Education did not put on a Prong I case. The DOE, however, neither conceded to or agreed to Parent’s relief seeking reimbursement of tuition for for the 2019-2020 school year except as it pertains to the 12 month aspect of the program and the period time during COVID-19 closures. The DOE asserted since the Due Process Complaint does not allege a need for a 12 month program or contain any allegations regarding regression in the absence therein, the Parent should be awarded no more than the cost of a pro-rated program.

The DOE summarized the record void of evidence that | experienced such severe regression as to be eligible not only for 12-month services, but for services provided every week of the year.

See, IHO exhibit 11, page (DOE citing to M.M. v. New York City Department of Education, 2017 WL 1194685 (SDNY 2017).

The DOE also seeks a deduction in an award for tuition for the portion of the school year impacted by COVID-19 school closure. The DOE proffered:

“Equitable considerations are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]. See also Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]) and E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the amount of the private school tuition was reasonable.” The DOE cited to a State Review Officer’s determination in SRO 18-049 for discounting the Parent’s claim relating to _’s educational need to participation in a 12 month program. (Ex. I], page 7). The DOE submitted, in SRO 18-049, the State Review Officer purported to explain the difference between a finding that a program at a unilateral placement is appropriate and a parent’s entitlement to have the DOE pay for the service being provided to the student by the unilateral placement as follows:

“Initially, the district failed to convene a CSE for the student and did not create an IEP for the 2016-17 school year. The district did not present any evidence of the parent's failure to cooperate with the district or that the parents were in any way at fault for the district's failure to convene a CSE. In fact, the district did not present any evidence at the impartial hearing. Further, the parents provided timely notice of their intent to enroll the student at and to seek funding at public expense (see Parent Ex. B). However, turning to the district's assertions about the unreasonableness of the costs of the unilateral placement, the district's argument that there is no justification in the hearing record for the services provided to the student at home on weekends appears to be justified. While parents are entitled to reimbursement for the cost of an appropriate private placement whena district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]e1mbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370- 71 [emphasis added]]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). Accordingly, while a parent should not be denied reimbursement for an appropriate program due to the fact that the program provides benefits in addition to those required for the student to receive educational benefits, a reduction from full reimbursement may be considered where a unilateral placement provides services beyond those required to address a student's educational needs (L.K., 674 Fed. App'x at 101; see C.B. v. Garden Grove Unified Sch. Dist., 635 F. 3d 1155, 1160 [9th Cir. 2011] [indicating that "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced"]; Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1161 [Sth Cir. 1986] ["The Burlington rule is not so narrow as to permit reimbursement only when the [unilateral] placement chosen by the parent is found to be the exact proper placement required under the Act. Conversely, when [the student] was at the [unilateral placement], he may have received more ‘benefit’ than the EAHCA [the predecessor statute to the IDEA] requires"]).”

In regards to the at-home ABA services in dispute, the DOE proffered numerous federal court and SRO decisions that have held that there is no obligation to provide at-home ABA services unless the at-home ABA services are required for the student to obtain a meaningful educational benefit from the student’s at-school program. (Exhibit II, page 11). The DOE contended:

“In the due process complaint notice, the parent asserted that the student required home-based ABA services for generalization (Parent Ex. B at p. 3). Several courts have held that the IDEA does not require school districts as a matter of course to design educational programs to address a student's difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom (see, e.g., F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 [S.D.N.Y. June 8, 2016]; L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *8-*10 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100 [2d Cir. Jan. 19, 2017]; P.S. v. New York City Dep't of Educ., 2014 WL 3673603, at *13-*14 [S.D.N.Y. Jul. 24, 2014]; M.L. v. New York City Dep't of Educ., 2014 WL 1301957, at *11 [S.D.N.Y. Mar. 31, 2014]; see also Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 [1st Cir. 2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 [llth Cir 1991]). While the Second Circuit has not specifically ruled on the issue of a district’s obligations, or lack thereof, under the IDEA to provide for the generalization of skills outside of school as part of an educational program, in considering whether certain home-based services provided for the purpose of generalization should be funded by the district, the Second Circuit has held that "parents are not entitled to reimbursement for services provided in excess of a FAPE" (L.K., 674 Fed. App'x at 101). Based on the prevailing case law, and on the fact that the parent is not contending that the student was not making progress in the school environment, the parent's assertion that the student required homebased ABA services to allow the student to generalize skills learned at school to the home environment is without merit.” The DOE argued, in the case at bar, the student attends a school, , which provides ABA instruction and/or utilizes ABA methodology throughout all its instruction and related services during a school day which runs from 8:45am-4:45pm Monday through Friday. (Ex. C-1).

Therefore, in light of the amount of ABA instruction/methodology used by to educate including during related services during a school day which runs from 8:45am-4:45pm

Monday through Friday, the DOE has no obligation to provide for additional at-home ABA services unless the at-home ABA services are required for the student to obtain a meaningful educational benefit from . As the DOE argued, the fact that may benefit from athome services in and of itself is not enough as "parents are not entitled to reimbursement for services provided in excess of a FAPE" (L.K., 674 Fed. App'x at 101) and school districts are not required to "maximize" the potential of students with disabilities. Rowley, 458 U.S. at 189, 199.

Further, the DOE asserted, the Parent has not presented any evidence from _ ’s school, ; indicating or even discussing that at-home ABA services are required for the student to obtain a meaningful educational benefit from and in fact, had not presented any testimony or document regarding the fact that or to what extent the school could not service the student without the at-home ABA services. The parent’s documentary evidence and testimony show the exact opposite. The DOE concluded that at-home ABA services were not in any manner required for to obtain a meaningful educational benefit from . (Ex. II page 6).

The DOE cited to Parent’s counsel’s stipulation that it would not seek compensation for at home ABA services during remote learning as a direct result of Covid-19 as proof that — did not otherwise need the services for other portions of the year in the form of a need analysis comparison. E.M. v New York City Department of Education, 758 F3d 442, 461 (2d Cir. 2014)

Parent proffered that although a District’s failure to prove prong I "automatically entitles the parents to reimbursement," C.F., 746 F.3d at 79 (quoting R.E., 694 F.3d at 190), the second and third prongs of the Burlington-Carter Test are nonetheless satisfied here. (THO exhibit I, page 2).

Parent asserted the testimony and documentary evidence provided by the Parent establish that is an appropriate placement for . The Parent provided ample evidence of _’s needs as well as the ways in which meets his needs to enable him to make meaningful progress. In addition to the documentary evidence, the Parent presented the testimony of , Classroom Supervisor at . Ms. testified that she has a Master’s degree in Special Education from and ABA certificate from . In addition to her degrees, Ms. is a Board Certified Behavior Analyst (““BCBA”), a New York State Licensed Behavior Analyst (“LBA”) as well as a New York State Certified Teacher with certifications in Special Education and Early Childhood Education. (Ex. K1) provides an ABA program implemented by highly trained staff, including certified teachers and/or BCBAs, small class structure that allows provisions of one-to-one (1:1) instruction; a verbal behavior component; social skills training; self-management instruction; appropriate levels of speech and language services and occupational therapy services incorporated throughout the day; co-treatment of therapy sessions to ensure collaboration and consistency between related services and classroom goals, activities and objectives; access to a sensory gym; opportunities to participate in activities in the community; parent training and education; and support for other family members. (Ex. K2-K3) Ms. testified that she was personally familiar with as a result of being his head teacher in July 2018 and the classroom supervisor of his classroom since July 2019. However, _ started attending in September 2016 after having gone through the typical admissions process at that time. She takes part in developing _’s program, by supervising his classroom and his teachers as well as observing him during instruction. (Ex. K-3)

’s program consists of a 7-hour day and provides 1:1 instruction throughout the day, including groups, where he receives 1:1 instructional support. is in a classroom with 3 other students with a 1:1 ratio with staff. He attends school 40 hours per week, receives speech therapy every day, occupational therapy four days per week and his schedule rotates every 45 minutes. The components of the curricula include: receptive and expressive language development, preacademic and academic skills, social and leisure skills, development of Activities of Daily Living Skills, and development of behavior and self-regulation skills. (Ex K-5). ’s lead teacher holds a Bachelor’s degree in Psychology and Master’s degree in Education and Applied Behavior Analysis. The other instructors in ’s classroom have either a Master’s or Bachelor’s degree. With regard to progress, Ms. indicated that has continued to make progress within the program (Ex. K6-K9, K11). Academically, continued to learn beginning reading and math skills, with the support of teacher prompts, particularly when a new skill is initially introduced. mastered this year’s goal to identify 2 new words and is learning to match words to words as well as how to fluently tact or label items using his AAC device.

continues to develop appropriate self-help skills, including dressing, personal hygiene and toileting; age appropriate leisure and play skills that include sharing his toys and playing with new ones; receptive and expressive language by requesting desired items/activities using

Proloquo2Go and using sign language to communicate “all done’, “help” and “more.”; as well as self-regulation, self-care, activities of daily living, and gross motor and fine motor through occupational therapy. As a result of the COVID-19 related school closures in New York City, transitioned to a remote program on March 16, 2020 with assignments emailed home and parent consultations. Teleconferencing based teaching and related service sessions were added on March 23, 2020. Real time services began with two staff online for each session including related service sessions where session was conducted by related service provider and an ABA clinician was there for behavioral support — one to direct student and the other to facilitate parent prompting and data collection. (Ex. K10). Ms. testified that receives four 15 minutes sessions a day of actual video therapy, tele-therapy. (Tr. 29). The 15 minutes, Ms. stated was due to _ ’s limited attention span and the need for him to be successful in receiving instruction through a computer as opposed to through a person as he was accustomed to. (Tr. 39). An overall schedule similar to the school hours was created for the family to follow at home. ’s day began at about 8:45 and ended at about 4:45 with the teletherapy sessions incorporated into the schedule. In between each session, he is scheduled to work on relevant ADL skills such as eating and brushing teeth. (Tr. 32). Once the family was able to adhere to the schedule, the entire day allowed for the ABA targets to be worked on.

Additionally, Ms. reported that nightly emails were sent to check in, to see if the family had any questions or if there was anything that they could do to support the family in increasing _’s independence. (Tr. 34). When not in session, staff worked continually to develop more goals for new targets to foster independence or were responding to families via email, in essence doing the same amount of work as they would during a normal school day. (Tr. 35). The Parent contends and I concur, the program ___ received at was appropriate under the BurlingtonCarter test, in that it met the requirements set out in the IDEA and has enabled to make meaningful progress. The DOE did not provide any evidence or witness testimony to rebut the Parent’s evidence on this point, and it did not elicit any contradictory testimony with respect to the foregoing. Accordingly, the Parent has satisfied her burden with respect to Prong II.

In support of the continued ten hours of ABA provided by (“ ”), the Parents provided testimony from Ms. . Ms. testified that she has a Master’s degree in special education, as well as New York State certification for students with disabilities grades birth through 6th (Tr. 42). Ms. works as a SETSS provider at (Tr. 42). Ms. explained that she been doing ABA at for about 6 years under the supervision of a Board Certified Behavior Analyst (““BCBA”’’) and is required to have training in ABA. Ms. testified that she first became familiar with approximately five years ago (Tr. 43). For the 2019-2020 school year, she provided him with ten hours per week of SETSS/ABA at home. About once a month her BCBA supervisor would come to ’s home after reaching out to the Parent to discuss her concerns. After observing Ms. ’§ sessions with , the BCBA would go through _ ’s IEP goals and progress with her to assist Ms. in developing new goals or creating different ways to address __’s learning, skills needed in regard to the IEP and assessments utilized. ’°s ABA session targeted three main areas that severely impact ’s functioning. It targeted his communication. According to Ms. , is nonverbal and hasn't seen any progress in his verbal ability to indicate sounds so he has to use a communication device. He received training at home to make requests and to respond to simple yes or no questions using his device. It targeted ’s short attention span. He often required breaks, so a token board is used to keep him motivated and on task; it targets his physical delays as well. Given _’s low tone and poor fine motor skills, hand-over-hand in addition to visuals must be used to address his ADL skills. (Tr. 45-46). Despite not being provided with after school ABA since March 17, 2020 as a result of the COVID-19 related in home service suspension, Ms. opined that continues to require ABA after school in addition to the school program. She stated that, as is delayed in many areas and getting him to learn a skill on a basic level, he requires a lot of repetition. He also requires a great deal of prompting, modeling, and breaking down. (Tr. 48). He learns best through repetition and requires frequent opportunities to practice learned skills. Ms. noted in her February 13, 2020 progress report that regresses during long breaks and benefits from an intensive school and home based programs to help master skills across domains. (Ex. M4). She consistently collaborated with ’s team at via emails on a weekly basis to ensure cohesion in his provision of services and supports (Tr. 47). The DOE attorney declined to cross-examine Ms. regarding the appropriateness of ABA services and did not present any evidence to refute or object to the Parent’s ABA request. The Parents have met their burden in establishing that °s weekly home-based ABA therapy was appropriate as an integral component of his special education program, without which he would not be able to access his education.

As to the third prong of the Burlington-Carter analysis, “[e]quitable considerations [relating to the reasonableness of the action taken by the parents]” are relevant in determining whether, and to what extent, parents should be reimbursed. Frank G. v. Bd. of Educ., 459 F.3d 356, 363 (2d Cir. 2006). Parents bear the burden of demonstrating that equities lie in their favor.

S.B. v. N.Y.C. Dep't of Educ., 117 F. Supp. 3d 355, 361-62 (S.D.N.Y. 2015). The Parent submits that the equities in this case weigh strongly in her favor. At the outset, it is worth noting that a finding of FAPE deprivation necessarily tips the balance of the equities toward the Parent. If

Congress did indeed intend for a school district to “‘belatedly pay expenses that it should have paid all along and would have borne in the first instance’ had it offered the student a FAPE,” (Burlington, 471 U.S. at 370-71, emphasis added; 20 U.S.C. §1412(a)(10)(C) (i); 34 CFR

300.148), then a finding (or concession) of FAPE deprivation necessarily or logically leads to a finding that the DOE should fund the parent’s alternative placement. This is consistent with the Second Circuit’s recent holding that a substantive deprivation of FAPE "automatically entitles the parents to reimbursement.” C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 79 (2d Cir. 2014) (quoting R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 190 (2d Cir. 2012)). That said, the evidence provided further favors the Parents on this point. For example, one such consideration is whether parents “obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014); GB v. N.Y.C. Dep't of Educ., 145 F. Supp. 3d 230, 244 (S.D.N.Y. 2015).

Here, it cannot be overemphasized that the District failed to offer a placement to at all relevant times and failed to convene a CSE prior to the start of the current school year. (Ex. L)

At the same time, the Parent provided a 10-day notice and due process complaint alerting the DOE as to its failures and of the Parent’s intentions to enroll at without further response from the DOE (Ex. A). As such, it can hardly be said that the Parent failed to cooperate with the DOE in unilaterally placing at . Without a doubt, the DOE offered the Parent no other choice but to finance her child’s education (Ex. L). The IDEA provides that IHOs may reduce or deny a parent’s claim for tuition where the parent failed to provide written notice to the school district (at least) “10 business days prior to the removal of the child from the public school” “that they were rejecting the placement proposed by the public agency ... and [they intend] to enroll their child in a private school at public expense.” 20 U.S.C. §

1412(a)(10)(C)(ii)(1)(aa)-(bb). Here, the CSE did not even convene to plan for the contested school year. (Ex. A). Further, the Parent did indeed provide the DOE notice of intent to unilaterally place at least 10 days prior to _’s “removal [ | from the public school” in that notice was provided at least 10 days prior to the July 8th start of the 12-month school year, and the enrollment contract contains a cancellation clause in the event of a DOE placement by July 20th of the school year (Ex. C). It was not the signing of the contracts that effectively removed _ from the public school, triggering the 10-day notice requirement, rather the July 8th program start date. Regardless, courts have found that the equities favor the Parent even where the Parent did breach the 10-day notice window, such as where “the student's need for a therapeutic placement came about as a result of a crisis” and “after the [P]arents referred the student to the CSE, they cooperated fully with the CSE, consented to evaluations, made the student available to the CSE for those evaluations and participated in the CSE meeting.” Bd. of Educ. of the Wappingers Cent. Sch. Dist. V. M.N. ex rel Their Child, J.N., 1:16-cv-09448 (S.D.N.Y., Oct. 2017). In that case, the Court found further that irrespective of the official date of the Parents’ formal, written notice, the DOE did have actual notice of the Parents’ need to place, stating: “Parents did notify the plaintiff of the precarious situation they faced in December 2014, putting plaintiff on notice that they should evaluate J.N. and implement an IEP.” Bd. of Educ. of the Wappingers Cent. Sch. Dist. V. M.N. ex rel Their Child, J.N., 1:16-cv-09448 (S.D.N.Y., Oct. 2017). Lastly, as the Court points out in Bd. of Educ. of the Wappingers Cent. Sch. Dist. V. M.N., id., 20 U.S.C. § 1412(a)(10)(C)Gii) reimbursement “may be reduced or denied,” but whether or not to grant reimbursement is discretionary, to be decided in light of all applicable considerations. While notice is an elemental feature of due process, the laws do not intend and the courts refuse to deprive parents of their remedy, or of their full remedy, where the DOE had actual notice of the Parent’s need to unilaterally place and where the Parent in all other respects acted reasonably on behalf of her child. Here, the Parent cooperated with the DOE throughout every step of this process, and the DOE offered no evidence to the contrary despite bearing the burden of proof on this prong. In effect, the Parent had no choice but to unilaterally place at and incur considerable expense as a result (Ex. C, Ex. L2), and there is no doubt that the DOE had actual knowledge of this fact that required a special education program. As such, the equitable considerations on this issue favor the Parent, entitling to tuition payment for the school year at issue.

Upon due consideration of the relevant factual posture as presented from the inception of this matter including and of utmost importance, the pendency order of July 30, 2019, Parent is awarded tuition costs, ten (10) hours weekly of home based ABA/SETSS services and specialized transportation with limited travel for the 2019 — 2020 school.

Moreover, I do not find Covid-19 Impact services and resulting expenses diminished _ ’s right to a FAPE during such time period. Contrary to the DOE’s position, the record fails to support its assertion that — received services in excess of a FAPE. (Ex. II, page 6). The DOE failed to provide a FAPE, placement and services provided to were appropriate and continued to remain as such under the circumstances for which his providers needed to adapt due to Covid-19 and equitable considerations in Parent’s favor.

Accordingly, it is hereby ORDERED that the DOE shall reimburse the Parent’s tuition costs for the 2019-2020 school year at in the amount of $159,700.00 (Ex. C) and for any and all outstanding pendency services.

Dated: October 31, 2020

Ellen Cutler-Igoe

Ellen Cutler-Igoe, Esq.

Impartial Hearing Officer

EXHIBITS MARKED INTO EVIDENCE — MAY 13, 2020

A. Exhibit Description Pages Due process complaint, 6/14/19 5 pages

B. Findings of fact and decision, 3/6/17 22 pages

C. School enrollment contract, 4/12/19, 3 pages

D. progress report, 12/2019 26 pages December 2019

E. speech and language progress report, 12/2019 19 pages December 2019

F. occupational therapy progress report, January 2020 5 pages January 2020

G. Behavior reduction plan, 6/11/19 8 pages

H. Program description 1 page

I. Student schedule 3 pages

J. Affidavit of, 9/26/19 2 pages

K. Affidavit of 12 pages

L. Affidavit of 3 pages

M. SETSS progress report, 2/13/20 4 pages

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.