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_____________________________________________________________________ In the Matter of the Due Process Hearing
Between The Parents of [REDACTED] And
[REDACTED]
NYSED Case #535871
Pursuant to the Provisions of Article 89 of the Education Law of the State of New York
JAMES P. WALSH, ESQ.
Impartial Hearing Officer
81 Delaware Avenue
Delmar NY 12054
APPEARANCES:
[REDACTED]
DECISION
JURISDICTION
This proceeding was commenced by the Parents of [REDACTED], a student then residing within the territorial jurisdiction of the [REDACTED] and a student previously determined to be a student with a disability, (hereinafter referred to as “Student”), by the filing by their attorneys, [REDACTED] JP.C. on February 20, 2020, of a Due Process Complaint Notice, dated February 20, 2020, with the [REDACTED] (hereinafter referred to as “District).
In accordance with the Regulations of the Commissioner of Education of the State of New York, the undersigned was appointed as the Impartial Hearing Officer authorized to preside over the above-captioned proceeding on February 24, 2020.
Pre-Hearing Conferences were conducted on March 25, 2020; April 21, 2020; May 20, 2020; June 19, 2020; August 24, 2020; September 24, 2020; October 19, 2020; November 2, 2020; December 4, 2020; and December 29, 2020. In the last of such Pre-Hearing Conferences, dates were set for the commencement of hearings, but also set a Pre-Hearing Conference for January 27, 2021.It should be noted that the considerable delay encountered in moving the matter to hearing was the coronavirus pandemic that required the closure of schools and seriously impacted upon District Counsel’s ability to meet with school district personnel in preparation for the hearing.
At that January 27, 2021 Conference, Parents’ Counsel advised that Parents would be filing an Amended Due Process Complaint. An Amended Due Process Complaint was, indeed, filed, dated February 1, 2021. Such Amended Complaint fully replaces Parents’ original Complaint, so that neither such original Complaint nor District’s Response thereto is any longer considered part of the Record. On March 3, 2021, another Pre-Hearing Conference was conducted, at which time a schedule of hearing dates was established.
Parents’ Amended Complaint (Parents’ Exhibit B) (hereinafter referred to as “Parents’ Due Process Complaint” or “Parents’ Complaint”) alleges that District has failed to offer Student a Free, Appropriate Public Education (FAPE) for the twelve-month school years of 2019-2020 and 2020-2021. Parents seek an Order requiring District to reimburse Parents for their payment of [REDACTED] which Student received at the [REDACTED] during the school year 2019-2020 and that portion of the 2020-2021 school year ending November 15, 2020, when Parents moved out of District and relocated to Ithaca, New York, as well as reimbursement of out-of-pocket expenses or mileage reimbursement incurred in transporting Student to such facility during such time periods.
THE HEARING
All sessions of the hearing were conducted virtually, utilizing a ZOOM platform as well as the services of a Court Reporter. Hearings were held on the following dates:
April 14, 2021;
April 16, 2021;
May 13, 2021;
May 14, 2021;
June 10, 2021
June 14, 2021 The District, in submitting its case-in-chief, presented the testimony of six (6) witnesses. They were:
[REDACTED] Licensed Marriage and Family Therapist –
Board-Certified Behavior Analyst – Doctoral
Level
[REDACTED] Employed by District as Assistant Supervisor of Special Education – in charge of hosting CPSE and CSE Meetings for preschoolers and primary school students – Chaired all CPSE Meetings involving Student during the 2019-2020 and 2020-2021 School Years
[REDACTED] A Licensed Occupational Therapist – Employed by District - Provided Student with Occupational Therapy Services commencing in June of 2019
[REDACTED] A Licensed Speech Pathologist – provided
Speech Therapy Services to Student beginning in September 2019
[REDACTED] Employed by the [REDACTED] County Early Intervention and Preschool Program as the official who managed the birth to three program, as well as the Preschool Manager for the Program - attended CPSE Meetings involving Student – involved in recommendations for placement.
[REDACTED] A Licensed School Psychologist – employed by District to work with Preschool students – Evaluated Student in May of 2019 as Student was transitioning from Early Intervention to Preschool – Attended all CPSE meetings involving Student In addition to the testimony of the above witnesses, District offered thirty-eight (38) exhibits into evidence, all of which were received and considered.
Parents submitted the testimony of two witnesses. They were
[REDACTED] Parent of Student
[REDACTED] Clinical Director of [REDACTED], Inc. - A Licensed Special Education Teacher - A Board-certified Behavior Analyst – Described Student’s program and progress at [REDACTED] In addition to the testimony of the above witnesses, Parents offered twenty-three (23) exhibits into evidence, all of which were received and considered.
In Rebuttal, District offered the testimony of one (1) witness. She was [REDACTED] Supervisor of Special Education and Student
Support Services for District
No further exhibits were offered.
At the close of proceedings, both parties requested the opportunity to submit Post-Hearing briefs, which requests were granted as long as such were submitted no later than the Close of Business on July 30, 2021.Such date was, upon the request of Parents’ Counsel, adjourned to August 6, 2021. Each party timely submitted a Closing Brief and each has been read and considered. The Actual Record Close Date was August 6, 2021
DISCUSSION
THE STUDENT
Student is currently [REDACTED] of age, having been born on [REDACTED]. Student was seen by [REDACTED] of the [REDACTED], a part of [REDACTED] of [REDACTED] New York on August 18, 2018, due to Parental concerns regarding Student’s development. At the time of such examination, Student was [REDACTED] of age and receiving Early Intervention services of Speech/Language Therapy and Occupational Therapy from [REDACTED] County. [REDACTED] reported that Student was diagnosed with [REDACTED] per DSMS criteria and “supported by the [REDACTED] that I administered” (Exhibit D-A). The Report continued: “I am recommending [REDACTED] as medically indicated for his intervention”.
According to the testimony of Parent, Student was placed at [REDACTED], located in [REDACTED], New York, soon after receiving Dr. [REDACTED]’s Report and Recommendation. According to the testimony of Witness [REDACTED], the Clinical Director of [REDACTED], (hereinafter “[REDACTED]”), Student was assessed and, following such assessment, received into [REDACTED]’s program. Witness [REDACTED] described [REDACTED] as a Related Service provider. Witness [REDACTED] further testified, that after assessment, wherein it was determined that Student was functioning at a [REDACTED] level. In light of that, while it was intended by [REDACTED] to start Student with a program of five hours of [REDACTED] [REDACTED] ([REDACTED]) per day, it initially placed Student a program of three hours of therapy each day. However, after such initial period, Student received, during the remainder of the 2018-2019 school year, five hours per day of [REDACTED] [REDACTED] therapy at [REDACTED]. Parent testified that one or the other of Student’s parents drove Student each morning from their home in [REDACTED] to [REDACTED], located in [REDACTED], a distance of approximately [REDACTED] miles, and repeated the trip in the afternoon. Student continued in such program at [REDACTED] during the 2019-2020 and a portion of the 2020-2021 school year
THE 2019-2020 SCHOOL YEAR
As Student, born on [REDACTED] would soon reach the age of [REDACTED] years, and would transition from the County’s [REDACTED] Program to District’s Preschool program, it was necessary for District’s Committee on Preschool Special Education (CPSE) to plan to prepare Student’s mandated education program for the 2019-2020 school year. District’s CPSE met on June 5, 2019. The meeting was chaired by [REDACTED]. Also, in attendance were [REDACTED] the County representative; [REDACTED] the County’s Early Intervention coordinator; School Psychologist [REDACTED]; [REDACTED]; and Student’s mother. According to the testimony of Witness [REDACTED], Parent advised the Committee of Student’s attendance at [REDACTED] Center, and requested that such program be made part of his I.E.P. However, the Committee rejected such request, claiming that it could not do so, as [REDACTED] was not an approved facility in accord with the provisions of Education Law Section 4410. It was the testimony of Witness [REDACTED] that, lacking such certification or approval, the County could not contract with [REDACTED] – and because the County could not contract with it, District was prohibited from recommending it.
District’s CPSE determined Student’s Individualized Education Program (I.E.P.) for the 2019-2020 school year. In such, it directed that Student receive Speech/Language Therapy twice weekly, thirty minutes per session, individually and Occupational Therapy Services, thirty minutes per session once weekly (Exhibit 14). Also, it was noted that Parents elected to remain under the Early Intervention program until August 31, 2019, as was their wont, as such would ensure Student would have a Summer program (T.R.79-80).
Parent advised District’s CPSE that Student would continue his program at [REDACTED] during the 2019-2020 school year and that Parents would seek reimbursement from District for the costs associated with such program, including transportation.
It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s Parents, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parents were appropriate and (3) equitable considerations support the Parent’s claim. Such prerequisites were established by the United States Supreme Court when considering claims for reimbursement brought by parents who had unilaterally placed their disabled child in a private facility. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 01-052). Further, it was later held by the same Court that the fact that the facility selected by the parents to provide special education services to the child had not been approved as a school for children with disabilities by the state agency would not be dispositive of a parents’ claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). The Court noted that parents who unilaterally decide to place their child do so at their own financial risk.
Burden of Proof
Surprisingly, District makes the assertion, contained in District’s Closing Brief that Parents, as the party commencing this proceeding, bear the burden of establishing that the IEP proposed by District was inappropriate, citing Schaffer v. Weast, 546 U.S.49 (2005). Such is in error. The provisions of New York State Education Law §4404(1)(c) state that:
The Board of Education or Trustees of the school district or the state agency responsible for providing education to students with disabilities shall bear the burden of proof, including the burden of persuasion and the burden of production, in any school impartial hearing, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral placement shall have the burden of persuasion and the burden of production on the appropriateness of such placement
Generally, in applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented, that I first determine whether or not the School District offered to the student a free, appropriate public education. Under the guidelines established by Burlington and Carter, should I determine that District offered Student an appropriate educational program, my inquiry into Parents’ request would cease at that point, for if a district has offered an appropriate program, a parent’s right to the requested relief must be denied. Under the same guidelines, if it is determined that District failed to establish the appropriateness of its program, I must then determine the appropriateness of the Parents’ unilaterally selected educational facility. The burden of establishing such appropriateness rests upon Parents (N.Y.S. Education Law §4404). Should Parents fail to establish the appropriateness of the unilaterally selected facility, Parents’ request for relief must be denied. If the unilaterally selected educational facility is determined to be appropriate, I must, because the awarding of any relief is possible only by an invocation of the equitable powers inherent in the proceeding, then review the equities in order to determine whether equitable considerations favor an award of any relief to the Parents.
DISCUSSION
Essential to any determination of an entitlement to reimbursement is whether the agency responsible for a student’s education provided that student with a free, appropriate public education (FAPE). However, exactly what criterion is employed to determine if – or whether – a free, appropriate public education has been provided? It has often been stated that a FAPE is offered to a student when a 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). The mandate that a Board comply with all procedural requirements set forth in IDEA ofttimes resulted in courts and reviewing officers concluding the negative – that is, that if all procedural requirements were not fully complied with, it necessarily had to follow that a free, appropriate public education had not been provided. Courts and reviewing officers, as well as the United States Congress itself, were concerned with such outcome. Courts considering that issue therefore ruled that, while school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at *4 [2d Cir. Jan. 16, 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]). Such also resulted in the United States Congress amending IDEA, so as to now require that if a procedural violation is 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 Parent’s' 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii];
It has been stated that a FAPE is offered to a student when (a) a board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through those procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). However, such statement is no longer exactly accurate. For, while school districts are required to comply with all IDEA procedures, not all procedural errors will render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at *4 [2d Cir. Jan. 16, 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 as amended, if a procedural violation is 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 Parent' 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; 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]).
It has also been stated that an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Student with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).17 The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see P. v. Newington Bd. of Educ., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; 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 Parent" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (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'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). Most recently, the United States Supreme Court, in deciding Endrew F. v. Douglas City Sch. Dist. 137 S. Ct. 1001; 197 L. Ed 2d 335 (2017), held that the Individuals with Disabilities Act (IDEA) “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
DID DISTRICT OFFER A FREE, APPROPRIATE PUBLIC EDUCATION
TO STUDENT FOR THE 2019-2020 SCHOOL YEAR?
As noted, “It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s Parents, if (1) the services offered by the Board of Education were inadequate or inappropriate.” The I.E.P. issued by District’s CPSE on June 5, 2019 offered Student only the Related Services of Speech/Language Therapy and Occupational Therapy (Exhibit 14).
According to Witness [REDACTED], the CPSE discussed Student’s possible attendance at [REDACTED], a preschool program with a Special Class located in [REDACTED] New York. According to Witness [REDACTED] such facility had Section 4410 approval. However, according to Witness [REDACTED], Parent had already visited such program with County Coordinator [REDACTED] and had rejected such placement as inappropriate for Student. However, Witness [REDACTED] noted that District could have offered an [REDACTED] program to Student at [REDACTED] through [REDACTED]’ s working with personnel at such facility. Such information, however, is irrelevant, as the CPSE made no offer of such program or placement in its I.E.P.
Student began to receive his Related Services of Speech-Language Therapy and Occupational Therapy. Indeed, CPSE reconvened on September 27, 2019 to increase Student’ Occupational Therapy from once weekly to twice weekly, thirty minutes per session (T.R.119). On November 6, 2019, District’s CPSE met and increased Student’s Speech/Language Therapy from twice weekly, thirty minutes per session to twice weekly, ninety minutes per session (T.R.120).
At the November 6, 2019 Committee meeting, according to the testimony of Witness [REDACTED], the CPSE proffered a possible placement for Student at [REDACTED], located in [REDACTED] New York, which was described as a New York State-approved school which offered [REDACTED] instruction. Parent dutifully visited the proffered placement and found it unacceptable. Again, the I.E.P. made no recommended placement at [REDACTED] or any other facility, making such testimony irrelevant. While it granted the increase in the Related Service, District’s I.E.P. made no offer of such – or any program or placement.
I have some concern that apparently District’s offer and endorsement of [REDACTED] and [REDACTED] as possible placements for Student was that, in either case, had Parents accepted such placement, the County, rather than the District, would be responsible for payment of all tuition and transportation costs. However, I make no evaluation or determination as to the appropriateness of [REDACTED] or [REDACTED] in connection with the appropriateness of the Special Education Program offered by District to Student during the 2019-2020 school year, as District’s CPSE never formally offered either of such programs to Parents. Each of the I.E.P.’s proffered by District during the 2019-2020 school year offered the Related Services of Speech Therapy and Occupational Therapy only. It was explained by [REDACTED] that – had the CPSE offered [REDACTED] or [REDACTED] as a recommended placement knowing that Parents would not accept such and would reject the I.E.P., - Student would be unable to obtain his Related Speech/Language and Occupational Therapy services. However, I find such explanation not only disingenuous, but meaningless, as Parents did reject District’s I.E.P. – and District has continued to provide Student with (increased) Related Services.
District’s contention that it has offered Student an appropriate program by proposing placements rejected by Parents continued [REDACTED] in District’s Closing Brief, where it continued to reiterate – and re-reiterate – that all of its proffered programs were better than Student’s Related Services at [REDACTED] – while apparently oblivious to the fact that none of such programs was ever placed in any of Student’s I.E.P.’s.
District claims that its CPSE never was provided with a Report that [REDACTED] had examined and diagnosed Student or made program recommendations until [REDACTED] wrote to Parents requesting documentation but were aware of its existence and content (T.R.109). It is unquestioned that Parents gave [REDACTED]’s Report to the Early Intervention soon after it was issued. It is also clear that Early Intervention, working with District’s CPSE as Student approached his transition from Early Intervention to District’s programs, provided all information regarding Student to District’s CPSE. I therefore find that District’s CPSE was aware, at its June 5, 2019 meeting, that Student had been diagnosed as having [REDACTED]. I further find that that District’s CPSE was aware that Student had been in attendance in a five-hour per day [REDACTED] [REDACTED] Therapy program at [REDACTED] for over nine months. I find that it was incumbent upon District personnel to inquire and explore such facility. Student’s attendance at [REDACTED] was overwhelmingly the majority of his program.
It appears that District’s CPSE perhaps erred in relying on its assumption that District could not contract with [REDACTED] because it was not a State-approved school. In fact, as explained by Witness [REDACTED], [REDACTED] is not a school, but a Related Service provider. As District could contract with its other Related Service providers, it appears that it could have – and should have – contracted with [REDACTED] for its services to Student. District’s CPSE, upon proper inquiry, would have learned that Student had been diagnosed by Dr. [REDACTED] and had been specifically recommended to receive [REDACTED] services. It would have been able to review and determine the success that such program was encountering in meeting Student’s deficits. However, the entity charged with the proper evaluation and programming for Student never took such steps.
If I am in error in questioning whether District might have erred in concluding that it was powerless to contract with [REDACTED] and provide Student with an appropriate program, (and I have, on more than one occasion, attempted to read and comprehend Education Law Section 4410 with but very little success), District’s CPSE still had the obligation to provide Student with a program sufficient to meet Student’s individualized needs.
It is my finding and determination that Student’s [REDACTED] [REDACTED] Therapy was an important – indeed critical – element of his program. District’s CPSE advised Parents that, unless they accepted [REDACTED], there was simply nothing it could offer (T.R.457). However, the lack of appropriate service providers does not relieve District from its responsibilities to Student (In the Matter of the Application of a Student with a Disability - SRO Decision 19-091). The failure of District to provide such personnel, however, establishes that District’s program as established by Student’s I.E.P.’S was inadequate to meet his clearly-discernable needs.
One final point. District, in its Closing Brief, made much of its claim that Student’s program at [REDACTED] was not in the Least Restrictive Environment (LRE) and provided little, if any, opportunity for socialization. Student’s program at [REDACTED] was the provision of the Related Service of [REDACTED] [REDACTED] therapy. Most therapies provided pursuant to the provision of an I.E.P. are provided in isolation and involve neither LRE nor socialization opportunities. Indeed, District’s provision of Speech/Language Therapy and Occupational Therapy are provided in isolation, at home, and with no concern for LRE or opportunities for socialization.
Thus, it is my finding and determination that District has failed in its burden of establishing that it offered Student a free, appropriate public education for the 2019-2020 school year.
Having made such determination, I now necessarily examine the appropriateness of Parents’ unilateral decision to maintain Student in his program at [REDACTED] for the 2019-2020 school year.
WAS PARENTS’ UNILATERAL PLACEMENT OF STUDENT DURING THE 2019-2020 SCHOOL YEAR
AT [REDACTED] APPROPRIATE?
I recognize that Parents initially placed Student in the program at [REDACTED] soon after receiving the Report from [REDACTED] which recommended [REDACTED], in September of 2018. However, for the purpose of assessing Parents’ application for reimbursement from District, the placement under review is that made by Parents to maintain Student at [REDACTED] at the June 5, 2019 CPSE meeting. Necessarily, however, such decision required a review of Student’s involvement with [REDACTED], beginning in September of 2018.
Witness [REDACTED], the Clinical Director at [REDACTED], testified regarding the program at [REDACTED]. Witness [REDACTED] explained in detail the Assessment of Student and the Assessment Report it made to determine Student’s needs. I find that Assessment (Parents’ Exhibit E – pages 1-20) to be comprehensive and detailed. Witness [REDACTED] also described the Behavior Reduction Plan completed as part of Student’s Assessment (Parents’ Exhibit E – pages 21-34). Based on that Assessment (Parents’ Exhibit E), it was determined that, while chronologically Student was [REDACTED] of age, he was functioning at a [REDACTED] level.
From the information received from Student’s Assessments, [REDACTED] prepared an Individual Treatment Plan for Student. Individualized Treatment Plans, according to the testimony of Witness [REDACTED], are updated every six months, resulting in essentially a series of new treatment plans. (See Parents’ Exhibits F, G and H). [REDACTED] [REDACTED] instruction is provided daily, with therapists, referred to at [REDACTED] as behavior technicians, rotating among the students to provide generalization. All behavior technicians are college graduates with extensive training in Carbone’s methodologies and [REDACTED] (T.R.609).
A number of Charts were received into evidence related to a program utilized at [REDACTED] known as the [REDACTED], utilized at [REDACTED], which include Language Barriers Scoring Forms (also referred to as “Barrier Grids) and Milestone Master Scoring Forms, which are used to track the individual progress of Student every six months. Such forms, utilizing various color codes, displayed steady progress by Student.
It is my finding and determination that the program in which Student participated during the 2019-2020 school year at [REDACTED] was appropriate and incredibly beneficial. I found it significant that, when questioned regarding a lack of socialization opportunities for Student while at [REDACTED], Witness [REDACTED] pointed out that, when first at [REDACTED], Student lacked any abilities that would permit Student to participate or benefit from any socialization.
District raised, in its Post Hearing Brief, a question regarding the amount of hours Student spent in his [REDACTED] program at [REDACTED], contending that Parents alone determined the extent of the program in which Student had been placed. I find that, in all determinations, it was Witness [REDACTED], as Clinical Director of [REDACTED], and not Parents, who recommended Student receive [REDACTED] BALNK hours daily of [REDACTED] [REDACTED] services at [REDACTED] during the 2019-2020 school year. While recognizing that Parents had to agree to such program, the recommendation came from Ms. [REDACTED]. I was impressed by Clinical Director [REDACTED]’ professionalism and competence and accept her recommendation as appropriate.
It is my finding and determination that Parents have borne their burden of establishing the appropriateness of the program for which Parents seek reimbursement.
DO EQUITABLE CONSDIERATIONS
FAVOR PARENTS?
Having made such determination, I must now examine whether Equitable Considerations warrant an award of reimbursement to Parents.
I note that Parents have fully cooperated with District and its C.P.S.E. Further, I fully comprehend Parents’ clearly expressed determination to have Student continue in his program at [REDACTED]. Their early concerns for Student’s development led them to consult with [REDACTED], whose clear recommendation was that Student receive [REDACTED] services. Parents’ involvement with [REDACTED] personnel, that facility’s thoroughness in assessing Student and the intensive [REDACTED] program it provided, and the progress Student evidenced from such program, convinced Parents that such was not to be lost.
It is my finding and determination that Equitable Considerations clearly favor Parents in this proceeding.
RELIEF
Parents, in this proceeding, seek reimbursement of the monies paid by Parents for the services provided to Student at [REDACTED]. as well as payment for their transportation of Student to and from [REDACTED]. Having prevailed, they are entitled to such.
Parents, during the entire period under review, had an unusual arrangement with [REDACTED] for the payment of Student’s Therapy, in that insurance payments paid for sixty-five percent of all charges and Parents – presumably for the remaining thirty-five percent. However, [REDACTED] provided to Parents, as a “Curtsey” (sic), a fifty-percent reduction of Parents’ share, thus effectively reducing Parents’ obligation to only seventeen-and one-half percent of monies owed, and [REDACTED] picking up the remaining seventeen-and one-half percent.
Parents have placed into evidence copies of Billing Statements from [REDACTED] for the periods beginning June 24, 2019 and concluding June 30, 2020 (Parents’ Exhibit X). However, Exhibit X -12 covered the period beginning on June 24, 2012 and concluding August 26, 2019. Such period was the same period Parents had exercised their right to remain under the County’s Early-Intervention Program. As District had no obligation for Student’s program during such period, nothing is allowed.
For the period September 5, 2019 to October 11, 2019,
(Parents’ Exhibit X-17), Parents paid $1,901.00 For the period October 15, 2019 to December 20, 2019,
(Parents’ Exhibit X-21), Parents paid $2,475.49 For the period January 8, 2020 to February 6, 2020,
(Parents; Exhibit 27), Parents paid $1,406.50 For the period February 10, 2020 to J une 19, 2020,
(Parents Exhibit X-30), Parents paid $2,062.87 For the period June 22, 2020 to June 26, 2020, end of the 2019-2020 school year - (Parents’ Exhibit X-36), Parents paid $532.00
I compute the Total Amount Parents paid to [REDACTED] during the 2019-2020 school year for the period September 5, 2019 to June 30, 2020 is $8,377.86.
Parents also seek in this proceeding the costs of transporting Student from their home in [REDACTED] New York to [REDACTED], located in [REDACTED] New York, on those days when Student attended [REDACTED] during the 2019-2020 school year. It appears from the testimony that such is permissible and proper. However, while I acknowledge that one of the Parents drove from [REDACTED] to [REDACTED] each morning to drop Student off at [REDACTED], returning thereafter to [REDACTED] only to have one or the other repeat the same trip later in the day to pick up Student from [REDACTED], I am constrained to allow reimbursement for travel to only one trip per day, as Student rode each day only once up and once back.
I shall, therefore award Parent’s reimbursement for a total of one hundred twenty-five trips between [REDACTED] and [REDACTED], the number of days I find from a review of Exhibit X to be the number of days Student was driven from [REDACTED] to [REDACTED]. During such period, at seventy-three miles per round trip at the federal mileage rate of $0.57 for a total of $5,201.25
DID DISTRICT OFFER A FREE,
APPROPRIATE PUBLIC EDUCATION
TO STUDENT FOR THE 2020-2021
SCHOOL YEAR?
District’s CPSE convened on May 20, 2020 to conduct an Annual Review and prepare Student’s I.E.P. for the 2020-2021 school year. According to the I.E.P created by the CPSE at that meeting, (District’s Exhibit 34), participating in that Meeting was Chairperson [REDACTED]; School Psychologist [REDACTED]; County Representative [REDACTED]; Speech and Language Therapist [REDACTED] Occupational Therapist [REDACTED]; Parents’ Attorney [REDACTED] Esq.; School District Attorney [REDACTED].; Jessie [REDACTED] and [REDACTED] from [REDACTED]; and Parents. The meeting was conducted virtually. It appears in the IEP that the Committee reviewed [REDACTED]’s [REDACTED] Evaluation of May 2012; Speech and Language Evaluation prepared in May of 2020 by Speech/Language Therapist [REDACTED]; and an Occupational Therapy Annual Progress Summary by Occupational Therapist [REDACTED]. The I.E.P. also notes, under the erroneous heading “Classroom”, information regarding Student’s attendance at [REDACTED], including a review of the progress Student has made as a result of his receipt of [REDACTED] [REDACTED] Therapy.
The Committee again recommended only that Student receive the Related Services of Speech/Language Therapy and Occupational Therapy at Home.
For the same reasons that I found that District failed to offer Student a free, appropriate public education during the 2019-2020 school year, it is my finding and determination that District has failed to sustain its burden of establishing that it offered Student a free, appropriate public education during the 2020-2021 school year In its Prior Written Notice to Parents, dated May 21, 2020, (District’s Exhibit 34), it is stated that:
“The family’s attorney requested 1:1 [REDACTED] services to be added to [Student’s] IEP. It was explained that while an [REDACTED] consultation could be added to his IEP, there is no present 1:1 [REDACTED] services provider available in this region who has the ability to contract with the county. [REDACTED] stated that they are able to contract at school age with school districts at the CSE level but not at the CPSE level.”
I note that there is no testimony in the Record before me that [REDACTED]’s ability to contract is so limited - and no testimony from Witness [REDACTED] to support such statement.
However, the critical fact is that District did not afford to Student the one-om-one [REDACTED] Therapy to which Student was entitled and which had proven so beneficial to his progress.
Having made such determination, I must now consider
WAS PARENTS’ UNILATERAL PLACEMENT
OF STUDENT DURING THE 2020-2021 SCHOOL
YEAR AT [REDACTED] APPROPRIATE?
Beginning at the commencement of the 2020-2021 school year, Student attended [REDACTED] for [REDACTED] per day, with one or the other Parent driving Student from [REDACTED] to [REDACTED], and, after, home. Again, it was the decision of Parents as informed by Clinical Director [REDACTED]. Parents removed from District in November of 2020, ending District’s obligations to Student.
However, it is clear that Student benefited from the provided Related Services he received at [REDACTED], which were not changed but only intensified during the 2020-2021 school year. I will not reiterate my findings wherein I determined that Student’s therapy at [REDACTED] was appropriate. I find that Parents have clearly established that such was appropriate and extremely beneficial.
It is my finding and determination that Parents have successfully borne their burden.
DO EQUITABLE CONSDIERATIONS
FAVOR PARENTS?
Having made such determination, I must now examine whether Equitable Considerations warrant an award of reimbursement to Parents.
I note that Parents have fully cooperated with District and its C.P.S.E. Further, I fully comprehend Parents’ clearly expressed determination to have Student continue in his program at [REDACTED]. Their early concerns for Student’s development led them to consult with [REDACTED] whose clear recommendation was that Student receive [REDACTED] services. Parents’ involvement with [REDACTED] personnel, that facility’s thoroughness in assessing Student and the [REDACTED] program it provided, and the progress Student evidenced from such program, convinced Parents that such was not to be lost.
It is my finding and determination that Equitable Considerations clearly favor Parents in this proceeding.
RELIEF
Parents, in this proceeding, seek reimbursement of the monies paid by Parents for the services provided to Student at [REDACTED], during the 2020-2021 school year as well as payment for their transportation of Student to and from [REDACTED]. Having prevailed, they are entitled to such.
Parents, during the entire period under review, had an unusual arrangement with [REDACTED] for the payment of Student’s Therapy, in that insurance payments paid for sixty-five percent of all charges and Parents – presumably for the remaining thirty-five percent. However, [REDACTED] provided to Parents, as a “Curtsey” (sic), a fifty-percent reduction of Parents’ share, thus effectively reducing Parents’ obligation to only seventeen-and one-half percent of monies owed, and [REDACTED] picking up the remaining seventeen-and one-half percent.
Parents have placed into evidence copies of Billing Statements from [REDACTED] for the periods beginning July 1, 2020 and concluding November 30, 2020
(Parents’ Exhibit X-39)
For the period July 1, 2020 to August 7, 2020
(Parents’ Exhibit X-17), Parents paid $1,163.18 For the period August 10, 2020 to October 14, 2020
(Parents’ Exhibit X-1 $3,254.50 For the period from October 19, 2020 to November 16, 2020
(Parents’ Exhibit X-9) $1,176.00
Parents also seek in this proceeding the costs of transporting Student from their home in [REDACTED], New York to [REDACTED], located in [REDACTED] New York, on those days when Student attended [REDACTED] during the 2020-2021 school year. It appears from the testimony that such is permissible and proper. However, while I acknowledge that one of the Parents drove from [REDACTED] to [REDACTED] each morning to drop Student off at [REDACTED], returning thereafter to [REDACTED] only to repeat the same trip later in the day to pick up Student from [REDACTED], I am constrained to allow reimbursement for travel to only one trip per day, as Student rode each day only once up and once back. I shall, therefore award Parents a total of seventy-two trips between [REDACTED] and [REDACTED], at seventy-three miles per round trip at the federal mileage rate of $0.57 for a total of $4,104.00.
DETERMINATION
Having found that District failed to offer Student a free, appropriate public education in both the 2019-2020 and 2020-2021 school years; that Parents placement of Student at [REDACTED] for [REDACTED] [REDACTED] Therapy for such years was appropriate; and that Equities favor Parents, I hereby order that District pay to Parents as reimbursement for payments made by Parents to [REDACTED] during the 2019-2020 school year $8,377.86
I hereby order that District pay to Parents as reimbursement for payments made by Parents to [REDACTED] during the 2020-2021 school year $5,593.69 For a total of $13,971.55
I hereby order that District pay to Parents as reimbursement for round-trip travel made by Parents to [REDACTED] during the 2019-2020 school year $5,201.25
I hereby order that District pay to Parents as reimbursement for round-trip travel made by Parents to [REDACTED] during the 2020-2021 school year $4,104.00 For a total of $9,305.25
Grand Total $23,276.80
Dated: August 17, 2021
Delmar, New York
________________________
JAMES P. WALSH
Impartial Hearing Officer The above constitutes my decision that in accordance with the provisions of Article 89 of the New York State Education Law.
Within 40 days of the date of this Decision, Parent and/or the [REDACTED] has a right to appeal this 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 serve 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 notice of intention to seek review, notice of request for review. request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http:/www, sro.nysed.gov
DOCUMENTATION ENTERED INTO RECORD
No.: # of Pages Description Offered by
3 1 Letter from [REDACTED] to Parents, District dated 3-4-20
10 5 IEP/Program Review for Meeting of 9/27/19; District IEP dated 10/10/19
14 13 IEP dated 6/5/19 and Program Review District
16 2 Minutes (handwritten) of CPSE Meeting of District
6/5/19
17 2 Meting Notice for CPSE Meeting of 6/5/19 District
18 6 Psychological Evaluation of Student by District School Psychologist [REDACTED], dated 6/3/19
19A 3 Preschool Student Evaluation Summary District
Report, dated 5/22/19
19B 2 Minutes (typed) of CPSE Meeting of 6/5/19 District
19C 2 Minutes (typed) of CPSE Meeting of 11/6/19 District
20A 11 Child Outcomes Summary Form – 6/5/19 District
20B 1 Social and Developmental (Health) History District dated 4/11/19
20D 3 Prior Written Notice, dated 11/7/19 District
20C 1 Student’s Health Report, dated 6/7/19 District
21A 2 Prior Written Notice to Parents, dated 11/7/19 District
21B 3 CPSE Transition Report by [REDACTED], District
M.S. CCC/SLP, dated 6/5/19
21C 1 Occupational Therapy Justification to Increase District
Services, dated 9/20/19
21D 5 Early Intervention Core Evaluation by District [REDACTED] Network, dated 1/17/18
22 5 Letter from Special [REDACTED] Services, District
Dated 3/6/19, and Social History, dated 3/5/19
23 9 Form for Parent Referral to the CPSE, dated District
3/5/19
24 9 Early Intervention Developmental Progress District
Report/IFSP Review, dated 7/12/18
25A 3 Early Intervention Progress Report, dated District
1/5/19
25B 1 Form permitting Parent to select evaluator District
25C 1 Statement by Parent of receipt of explanation District Of Due Process rights, dated 4/11/19
25D 1 Request by CPSE for evaluations, dated District
6/18/16 (sic)
25E 1 CPSE Committee Report and Parent Consent, District dated 6/5/19
25F 1 CPSE Committee Report and Parent Consent District
Regarding Placement, dated 9/27/19
25G 1 CPSE Committee Report and Parent Consent District
Regarding Placement, dated 11/6/19
29 4 Publication: [REDACTED] bank – The District [REDACTED] Program
30 2 Email to/from L. [REDACTED] by/to Parent, District dated 12/10/19
31 2 Email from L. [REDACTED] to several re: District
Visit to [REDACTED], dated 11/13/19
34 15 Student Information Summary and IEP, dated District
5/20/20
35 15 Student Information Summary and IEP, dated District
10/7/20
36 3 Prior Written Notice dated 5/21/20 District
37 3 Prior Written Notice dated 4/29/20 District
38 2 Prior Written Notice dated 10/2/20 District
39 3 Prior Written Notice, dated 10/8/20 District
42 1 Email from L. [REDACTED] to Parents, District dated 10/7/20
43 1 Email from Parents to L. [REDACTED], District dated 9/14/20
B 17 Parents’ Amended Due Process Complaint, dated Parents
1/29/21
C 3 Ten-Day Notice Letter from Parents’ Counsel to Parents
District, dated 6/30/20
D-A 4 Records of Dr. [REDACTED], M.D., Cover Page, Parents
Dated 8/19/18 (1); Report (3)
D-B 7 Report of Dr. [REDACTED], M.D., Parents dated 8.20/19 (4); After-Visit Summary, dated 8/20/12 (3)
F 8 Individualized Treatment Plan by [REDACTED] Parents
Educational Center for Learning for Period
G 14 Individualized Treatment Plan by [REDACTED] Parents for Period January to June 2020
H 8 Individualized Treatment Plan by [REDACTED] Parents for Period January to June 2019 I 1 [REDACTED] Language Barriers Scoring Form, Parents
Dated 1/2019
J 1 [REDACTED] Language Barriers Scoring Form, Parents
Dated 6/2019
K 1 [REDACTED] Language Barriers Scoring Form, Parents dated 1/2020
L 1 [REDACTED] Milestones Master Scoring Form, Parents dated 1/2019
M 1 [REDACTED] Milestones Master Scoring Form, Parents
Dated 6/2019
N 1 [REDACTED] Milestones Master Scoring Form, Parents dated 6/2020
O 8 Progress Report by [REDACTED], Parents for period December 30, 2019 – February 7. 2020
P 9 Progress Report by [REDACTED], Parents for period February 10, 2020 – March 20, 2020
Q 9 Progress Report by [REDACTED], Parents for period April 13. 2020 – July 17, 2020
R 8 Progress Report by [REDACTED], Parents for period July 20, 2020 – August 28, 2020
S 10 Progress Report by [REDACTED], Parents for period August 31, 2020 – October 9, 2020
T 8 Progress Report by [REDACTED], Parents for period October 12, 2020 – November 20. 2020
U 8 Psychological Evaluation Report by [REDACTED] Parents
[REDACTED], Psy.D., undated but based on examinations of 5/26/20 and 5/27/20
V 4 Occupational Therapy Evaluation, dated 6/5/20 by Parents
[REDACTED], OTRL
W 3 Speech and Language Evaluation Report, dated Parents
6/9/20, by [REDACTED]MS, CCC-SLP
X 39 Billing Statements from [REDACTED] Parents to Parent – Covering Period from
6/4/19 to 11/30/21