New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 536318 - NYC: 193221

FINDINGS OF FACT AND DECISION

Case Number: 193221

Student's Name: [REDACTED] [STUDENT]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent Date of Hearing: 08/28/2020

09/10/2020

09/11/2020

Actual Record Close Date: 10/05/2020

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/28/2020

For the Student:

[REDACTED] (Via Telephone) For the Department of Education:

[REDACTED], District Representative (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/10/2020

For the Student:

[REDACTED], ESQ., Attorney (Via Telephone) [REDACTED], Parent (Via Telephone) [REDACTED], Parent (Via Telephone)

For the Department of Education:

[REDACTED], District Representative (Via Telephone) [REDACTED] (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/11/2020

For the Student:

[REDACTED], Attorney (Via Telephone) [REDACTED], Mother

[REDACTED], Father

For the Department of Education:

[REDACTED], District Representative (Via Telephone)

DOCUMENTATION ENTERED INTO THE RECORD PARENT

ENTERED 08/28/2020

A Parent's hearing request, 3/16/2020, seven pages ENTERED 09/10/2020

B IEP, 4/4/19, 23 pages

C Tuition contract with [REDACTED] Academy, 3/1/20, three pages

D Tuition affidavit and proof of payment from [REDACTED] Academy, 8/31/20, two pages E [REDACTED] Academy program description, 2019/2020, seven pages

F March-June 2020 student virtual schedule, 33 pages

G Attendance record for [REDACTED] Academy, 8/31/20, one page H Letter from [REDACTED], 12/24/19, one page

I School observation, 1/9/20, one page

J Summary of school skills and programs, 8/31/20, two pages K Letter regarding occupational therapy, 10/2/19, one page

L Note regarding occupational therapy, one page

M Annual speech-language report from [REDACTED] 1/31/20, three pages N Occupational therapy report from [REDACTED], 2/1/20, four pages

O Letter from parent to CSE, 2/21/20, three pages P Letter from parent to CSE, 3/6/20, two pages

Q 2019 Tax return, two pages

R Affidavit of [REDACTED], 9/2/20, seven pages S Affirmation of [REDACTED], 9/2/20, six pages

DEPARTMENT OF EDUCATION ENTERED 09/10/2020

1 IEP, 4/4/19, 24 pages

2 Preschool student evaluation summary, 10/23/18, four pages 3 Social history, 9/17/18, two pages

4 Psychological evaluation, 9/20/18, five pages 5 Educational evaluation, 10/2/18, five pages

• • Speech evaluation, 10/1618, four pages
• • Occupational therapy evaluation, 10/16/18, five pages 8 Physical therapy evaluation, 10/16/18, five pages

IMPARTIAL HEARING OFFICER ENTERED 08/28/2020

• • Notice of Appointment, 08/20/2020, four pages ENTERED 10/05/2020
• • Interim Order Denying Consolidation, 08/27/2020, three pages

INTRODUCTION

On 08/20/2020, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Appended to the record are lists of persons in attendance and the documents received in evidence. Pre-Hearing Conference was held on 08/28/2020.

Hearing set to commence on 09/10/2020, and concluded on 09/11/2020. Parent filed Due Process Complaint (DPC), dated 03/16/2020. (Ex A)

Hearing Request alleges the DOE failed to offer the Student a Free and Appropriate Public Education (FAPE) for the 2019-2020 school year. (Ex A 1)

Allegations include the Individualized Education Program (IEP) developed, on 04/04/2019, was insufficient to offer the Student a Free and Appropriate Public Education (FAPE) for the 18-19 school year. (Ex B & 4)

I note that the IEP was entered in duplicate to be sure any Testimonial Affidavits developed would be clearly referring to the proper pages of the IEP.

Parent allegations regarding the IEP include: inappropriate services, failure to properly include 1:1 services, insufficient related service mandates, and a failure to develop an appropriate Behavior Intervention Plan (BIP). (Ex A 2-3)

Student began attending the DOE recommended Public School, in September of 2019. (Ex A 4)

When Parent observed Student at the school, in November of 2019, she observed the Student stimming and performing adverse behaviors, without adult intervention. (Ex A 4)

On 01/09/2020, a Board Certified Behavior Analyst (BCB) observed the Student in class, and contends the classroom teacher was not addressing the Student’s needs, while the Student was stimming. (Ex A 4)

Parent was notified, on 10/02/2019, that the DOE school could no longer deliver mandated Occupational Therapy services. Student then did not received OT until December. (Ex A 4)

Parent contends the Student regressed during this time. (Ex A 4)

Concerns regarding the IEP were communicated to the Department of Education (DOE), did receive an acceptable response, and unilaterally placed the Student for the 18-19 school year. (Ex A 2)

Parent seeks relief that includes: DOE funding for Student 18-19 Tuition and Related Services, via reimbursement to the Parent. (Ex A 2)

On 02/27/2020, Parent received a letter indicating a classroom aide was resigning, thus changing the mandated 8:1:2 classroom to an 8:1:1. Aide resigned on 03/06/2020, and was not replaced. (Ex A 5)

Parent contacted the school regarding this change in program, but did not receive a response. (Ex A 5)

Parent seeks relief in the form of funding for unilateral placement at [REDACTED] Academy (UP), and compensatory services for undelivered OT sessions.

THE PARENT’S POSITION

Parent Attorney set forth the basic Parent position, via DPC. (Ex A)

Parent Attorney argues that the DOE failed to develop an appropriate IEP for the 19-20 school year, and Parent seeks funding for appropriate UP, as well as compensatory education services in the form of 20 occupational therapy sessions. (T 25-26)

Parent alleges the DOE IEP is insufficient in its failure to provide one-on-one support and failure to undertake a Functional Behavior Analysis (FBA) with appropriate Behavior Intervention Plan (BIP), nor conduct an assistive technology evaluation. (T 26-27)

Parent Attorney alleges the IEP was not implemented, and Student regressed. (T 27-28) Recommended 8:1:2 program was not actually delivered since a classroom aid (part of the 2), resigned and thus was no longer an 8:1:2. (T 27-28)

Student then enrolled at the UP and began attending on 03/09/2020, which has appropriately served the Student, for which Parent seeks DOE funding. (T 28-29)

Parent submitted documentary evidence in support of its position. This included Testimonial Affidavits. (Ex R & S)

DOE was offered the opportunity to cross examine the witnesses related to the Testimonial Affidavits, and declined. (T 70, Ex R & S)

Documentary evidence presented supports the appropriateness of the UP, and finding for relief sought.

A Parent's hearing request, 3/16/2020, seven pages Details Parent allegations and sought after relief.

B IEP, 4/4/19, 23 pages

Establishes Student as one entitled to special education services.

Recommendation includes:

Special Class 8:1:2

Speech Language Therapy three times weekly

30 minute sessions

Occupational Therapy twice weekly

30 minute sessions

Counseling twice weekly

30 minute sessions

Parent Counseling and Training once per quarter

30 minutes (Ex B 19)

C Tuition contract with [REDACTED] Academy, 3/1/20, three pages

Four months of Tuition for Student attendance set at $49,000.00. (Ex C 1) Parent signs contract obligating herself to payment. (Ex C 3)

D Tuition affidavit and proof of payment from [REDACTED] Academy, 8/31/20, two pages Evidences Parent payment of $2,000.00 towards tuition, and balance of $47,000.00.

E [REDACTED] Academy program description, 2019/2020, seven pages Details general characteristics of the UP.

Utilizes DIR/Floortime Model for children with Autism. (Ex E 1)

Utilizes ABA in an individualized education plan designed for each student. (Ex E 2)

Program includes Academics, Speech Therapy, Occupational Therapy, Physical Therapy, Music Therapy, Art Therapy, and a Vocational Center. (Ex E 2-7)

F March-June 2020 student virtual schedule, 33 pages

Detailed Student academic and related therapy service schedule set forth to facilitate remote learning due to Covid Pandemic.

G Attendance record for [REDACTED] Academy, 8/31/20, one page Evidence of Student attendance at UP.

H Letter from [REDACTED], 12/24/19, one page

Evidence of Student’s Autism diagnoses and recommendation of increase in speech language therapy to five times weekly.

I School observation, 1/9/20, one page

Observation confirms Parent concerns with recommended placement and lack of appropriate Student services. Observation indicates the Student requires constant and immediate supervision and prompting.

“During story time at circle, [Student] did not attend to the story (Polar Bear, Polar Bear by Eric Carle) read by his teacher, nor did he respond to one-step commands to point to an item in the book. He was observed to engage maladaptive behaviors such as biting his fingers, scripting and other non-contextual vocalizations. When one of his peers threw himself on the floor, [Student] imitated the action and also threw himself on the floor. During free play, [Student] did not interact with his peers. He moved quickly from one toy to another and did not engage in appropriate play…He did not appear to demonstrate any pretend play actions, however, he explored the items and moved them around the area. When the head teacher joined him in play with an activity, [Student] required a full-vocal prompt from his teacher to request help opening an item. He required prompts to transition from one activity to another. During snack, [Student] refused to eat his lunch which was presented in front of him. It was reported by his teachers that [Student] continues to refuse to eat lunch at school, even though it is the foods he typically eats at home. When taking [Student] to the bathroom, teachers provided full physical prompt to have [Student] point to the toilet visual. Throughout the observation at school, [Student] was not observed to engage in spontaneous functional communication (e.g mands previously mastered at home). At the end of the observation, [Student] was transitioned to his speech therapy session.”

J Summary of school skills and programs, 8/31/20, two pages

Continued evidence of Student severe behavioral challenges impeding his learning.

“behavioral difficulties that inhibit his ability to function at an age appropriate level in all settings. [Student] needs to be taught appropriate skills so that he can communicate appropriately, interact socially with others, and decrease his maladaptive behaviors such as non-compliance, tantrums, head banging, scripting and his routinized and ritualistic behaviors” (Ex J 1)

ABA program presented as addressing unique behavior and communication needs of the Student: “In his home-based ABA sessions, the team continues to implement Functional Communication Training, antecedent interventions, prompt fading, generalization training and repetition through Discrete Trial Teaching in order to increase [Student]’s skill acquisition, generalization, to minimize his maladaptive behaviors and promote his independence.” (Ex J 2)

K Letter regarding occupational therapy, 10/2/19, one page

Letter confirming the cessation of DOE OT services for the Student.

L Note regarding occupational therapy, one page

Additional documentation indicating cessation of OT sessions for the Student, while another provider is obtained.

M Annual speech-language report from [REDACTED], 1/31/20, three pages

Details Student speech language therapy challenges and recommends three times weekly Speech therapy sessions.

N Occupational therapy report from [REDACTED], 2/1/20, four pages Details Student OT challenges and recommends OT services.

O Letter from parent to CSE, 2/21/20, three pages

Detailed letter to the DOE raising Parent concerns with the Student placement and program, as well as lack of delivery of mandated IEP services:

“[Student] is not receiving instruction tailored to his needs and is not progressing academically.

We observed [Student] in school as did his BCBA. During the observations [Student] was not engaged with instruction. Neither the classroom teacher nor the aids were teaching, prompting, or redirecting him. [Student] engaged in maladaptive including scripting, stimming, and putting his hand in his mouth. These interfering behaviors have developed over the course of the school year as [Student] is not receiving appropriate instruction. The DOE does not have a BIP or appropriate behavioral supports in place. We also observed [Student] become upset where he was screaming and yelling for minutes before any school staff attended to him. [Student] is not offered any behavioral support…[Student] is not placed appropriately in the classroom. Most of his classmates are nonverbal and cannot serve as peer models. As noted, [Student] developed maladaptive behaviors while placed in this program. [Student] is not learning and according to his progress report is below age expectancy in all areas…In addition [Student] has not been receiving his IEP mandated therapies” (Ex O 1)

Parent also indicates that these concerns have been ongoing and assistance is still sought from the DOE. Though at this time it is for placement at [REDACTED], the concerns remain consistent and not to have addressed in any manner by the DOE.

“We have raised these issues to school staff but our concerns have not been addressed. We also do not believe that [REDACTED] is collaborative with us as parents. For example we requested to observe [Student] in September during classroom instruction, and despite follow up, were not permitted to come in until mid-November. We were not permitted to see any classroom instruction. We believe that [Student] requires a more intensive learning environment and appropriate behavioral supports and methodologies. We also believe he requires more related services. [Student] has been accepted to attend the [REDACTED] [REDACTED] beginning in March 2020. We believe this school would be appropriate to meet [Student]’s special education needs. We are requesting that the DOE consider placing [Student] there and provide special education transportation. We intend to seek tuition reimbursement/funding for this program absent an appropriate recommendation from the DOE. We also will seek compensatory education for the related services which were not provided during the 2019-2020 school year.” (Ex O 2)

P Letter from parent to CSE, 3/6/20, two pages

Parent again follows up with the DOE seeking response to their concerns regarding their child.

Q 2019 Tax return, two pages

Evidences Parent income as about $71,000.00 for the 2019 calendar year.

R Affidavit of [REDACTED], 9/2/20, seven pages Sets forth information for the UP.

UP is a special education school, offering small classrooms and related therapy services. (Ex R 1) School is staffed, in part, with Floortime specialists. (Ex R 1)

UP instruction methodologies are detailed, including Floortime and ABA. (Ex R 2). Student began attending UP in March of 2019. (Ex R 2)

Student requires 1:1 instruction and would benefit from the UP program. (Ex R 2)

Witness details Student areas of special education need: global delays, language deficits, interfering behaviors, difficulties focusing, socialization deficits and motor delays. (Ex R 2)

Student program included: a class of eight, a special education teacher, a teaching assistant and five additional instructors, as well as a related service therapist. (Ex R 3)

Classmates were homogenous in terms of abilities, all working on readiness skills, with similar learning styles. (Ex R 3)

Student had opportunities for peer modeling and socialization opportunities with classmates. (Ex R 3)

Student transitioned to remote learning due to Covid, which included synchronous video conferencing, and shared course materials. (Ex R 3)

Student supports included: picture stimuli, a visual sensory diet with calming and stimulating activities, visual daily schedule, embedded visual schedules for each class, and first then picture prompts; 1:1 support for academics, due to easily being distracted, incorporated related service goals into classroom programming to facilitate carryover and generalization. (Ex R 3)

Student challenges include: interfering behaviors, tantrums, scripted language, self stimulation and head banging. (Ex R 3)

Behavior interventions were provided to support Student, including schedules of reinforcement, visual schedules and instruction using ABA. (Ex R 3-4)

Student daily schedule and related services were customized to his needs, taught at his own pace and modified as needed. (Ex R 4)

Academics utilized Student individual program book, which included: sensory diet, visual spatial activities, Floortime, engaging in 1:1 lessons and increased use of verbal communication. (Ex R 4)

Student received Speech Therapy, Art Therapy, daily living skills, Floortime sessions, Occupational Therapy, Literacy, hands on Science experiments, and video lessons. (Ex R 4-5)

UP developed goals for academics and related services. (Ex R 5)

Student was appropriately placed at UP, where he received tailored instruction based on his needs, in a small nurturing class environment with peers with similar skills and needs. Student cognitive and learning difficulties, and behavioral issues were accommodated via appropriate ABA and DIR/Floortime methodologies. (Ex R 6)

Student is noted to have made progress in his ability to attend to instruction, socialize with peers, follow instructions, increase fine and gross motor skills, and communication. (Ex R 6)

Tuition is set at $49,000.00 for Student attendance, of which $2,000.00 has been paid by Parent. (Ex R 6)

S Affirmation of [REDACTED] [REDACTED], 9/2/20, six pages

Parent detailed Student characteristic and areas of special education need: “[Student]’s language skills are delayed. His speech is unintelligible to unfamiliar listeners. He communicates in a few words but mainly uses gestures, like pulling someone to show what he wants. He has a lot of non-functional speech like scripting repetitive phrases. [Student] engages in tantrums, emotional outbursts, screaming, crying, and putting his fingers in his mouth.” (Ex S 1)

Parent notes that recent IEP reduced speech services, and did not offer any 1:1 support, which concerned her. “He needed 1:1 for focus and prompting him to attend” (Ex S 1)

Parent asked for behavior therapy to address Student adverse behaviors, but was denied since Student was not “verbal enough”. (Ex S 2)

Parent was concerned with the IEP recommendations, but willing to try the program. (Ex S 2) Student began attending the DOE program and grew worse. (Ex S 2)

As early as September 2019, Parent requested to observe the Student in school. (Ex S 2)

Parent was able to observe the class in November of 2019, and was concerned with what she observed:

“On November 14, 2019 I observed [Student] in the gym at REDACTED. I saw [Student] become frustrated and he began crying. School staff did not intervene and did not interact with [Student] at all. He was standing there crying and yelling for several minutes before a teacher walked over to him. I observed [Student] again on November 27, 2020. During lunch [Student] was engaging in scripting 100 percent of the time. Not one teacher or assistant was engaging with him or prompting him to stop. I also saw [Student] attempting to work on a puzzle activity but he was self-stimulating the entire time. He was not completing the activity appropriately (the puzzle was upside down). Staff did not work with [Student] to complete the activity and nobody redirected his behavior. I did not see staff facilitate any socialization. It did not appear that any of the other children were verbal.” (Ex S 2)

Parent raised concerns regarding Student behavior and support, on 12/05/2019 at a meeting with DOE school staff. (Ex S 2)

Parent requested, and Student BCBA, observed the Student, resulting in report, that confirmed her concerns. (Ex S 2-3 & I)

Parent notes that Student did not receive OT for a period of time. During this time Student was less focused and developed additional adverse behavior of putting his hands in his mouth. (Ex S 3)

Parent had additional concerns regarding lack of school nurse, and inappropriate mandate for speech language therapy services. (Ex S 3)

Student continued performing below grade level, without meaningful academic gains. (Ex S 3-4) Events led Parent to seek alternative placements, ending up placing Student at the UP. (Ex S 4) Parent again notified the DOE of concerns, on 02/27/2020 and 03/06/2020. (Ex S 4)

Student began attending the UP on 03/09/2020. (Ex S 4)

Remote instruction is conducted via live instruction, with modified academic assignments, and continued 1:1 support. (Ex S 4)

Student speech language and OT continue to support the Student remotely, which have resulted in progress. (Ex S 5)

Parent includes the important aspect of the UP which is responsive and enables her to acquire skills to assist the Student: “I was able to connect with [REDACTED] staff by email or phone if I had any questions or needed help with any follow up at home. I think the fact that learning was remote and we had so much support from the staff made us better parents because they taught me the skills to better help him, from OT to speech to reading.” (Ex S 5)

Parent believes the UP has been appropriate. (Ex S 5)

Parent has paid $2,000.00 of the UP Student tuition. (Ex S 6)

Parent is unable to pay the full tuition “upfront” though she is obligated to full payment. (Ex S 6)

DEPARTMENT OF EDUCATION POSITION

DOE Representative appeared at Hearing of 09/10/2020 and set for the position of the DOE. DOE argues a FAPE was offered for the 19-20 school year, via an appropriate Individualized Education Program (IEP). (T 20-25, Ex 1)

DOE presented Witness, [REDACTED], CPSE Administrator (Via Telephone), whose testimony is detailed below:

Witness reviewed her qualifications and described her role as “I recommend and authorize 4 services for preschoolers who are given the classification of preschool student with a disability, and I put together IEPs, individualized education plans, for the student, and then I look for placement.” (T 31-32)

Witness agreed with the recommendations contained in the IEP of 04/04/2019. (T 33, Ex 1)

Witness, after the IEP meeting looks for placements and sends the documents to the school authorized to implement the services. (T 34)

Witness usually receives correspondence as to whether or not the actual IEP services are being delivered to the Student. (T 34-35)

Witness does not recall receiving any such information for this Student. (T 35)

At the time of the IEP meeting, the Witness does not recall any disagreement as to the IEP recommendations. (T 38)

Witness was asked to expand upon the IEP, which indicated the Student had “behavioral limitations. (T 41, Ex 1 4 & 5)

Witness describes Student behavioral limitations, and delays: “responding to others appropriately, pragmatic skills, you know, appropriate eye contact, following directions, simple, more complex, attention also, focus to the speaker, focus for activity, appropriate amount of focus also, and then the length of time that he attends to an activity, so five minutes, ten minutes, things like that, and how much support he needs, like does he need redirection? Does he need a lot of repetition? Things like that.” (T 42)

Witness was asked about the Student’s hand flapping as noted in the IEP. (Ex 1-7) Witness did not know the frequency of this behavior. (T 44)

Witness spoke to the Student hand flapping behavior: “just one of the behaviors that we consider when we recommend services, but there are many others, you know. I mean, not to stereotype, but a child who has previously been diagnosed with ASD, you know, hand flapping is not anything that's surprising. You know, of course, it's a spectrum and each child is an individual, absolutely, but that's very often one of the characteristics, so that's something to work on, absolutely, but there are many, many other goals for [Student].” (T 45)

Witness was asked about Exhibit M, Annual speech-language report from [REDACTED], 1/31/20, which notes the Student “engages in the following behaviors: throwing himself, attempting to bang his head, taking his shoes off, or mouthing his fingers.” (T 48, Ex M-1)

Witness is not sure she reviewed this document. (T 49)

Witness was asked if an FBA was conducted: “An FBA is something that is usually agreed on by the parent and then it's conducted.” (T 48)

Witness continued: “…we discussed it I remember at the annual review with the school. They said that they were meeting his needs in the class where he is -- special class -- with the services provided, so no FBA was needed.” (T 49)

Despite the adverse behaviors in the Report (Ex M), Witness states that the Student’s teacher provided information that the Student’s needs were being met. (T 49-50)

Witness states she would know the Student’s needs are being met since: “Usually the staff reaches out to me if they need an FBA or they need a BIP. A paraprofessional, anything like that. They keep in contact with me, and then I follow up.” (T 50)

Witness clarified that since no one contacted her she assumes all is okay. (T 51) Witness was asked about sensory goal of the IEP. (Ex 1-19)

Witness set forth some general information regarding sensory stimulation and options for sensory input, generally. (T 52-53)

Hearing Officer asked what specifically the goal meant for the Student. (T 53)

Witness provided additional general information, but was unable to explain or otherwise tie the IEP goal to the specific Student and his needs. (T 54)

Witness was asked about Student Speech Therapy.

At the time of the IEP meeting the Student was receiving four weekly, 30 minute sessions, which were reduced at the IEP meeting to three, 30 minute weekly sessions. (Ex 1-21)

Witness was asked why the reduction took place: “Because 3x30 for a sensor based program is actually a lot. You have to consider its structure. Recommending a special class that is extremely, extremely language enriched, and these are related services, so you have speech three times, and OT twice, PT twice. This child is taken out of his classroom seven times a week already, and this is a child who needs a lot of structure, so to constantly take him out, interrupt his flow of the day, bring him back, when the IEP is to be used -- the speech goals -- the speech-language goals -- are not to be used only by the speech therapist, but also the classroom teacher -- is not going to be good for him.” (T 58- 59)

Witness was asked if the Student was previously receiving Applied Behavior Analysis (ABA) as part of his program. Witness was not sure. (T 61)

Witness did not recall if the Student was toilet trained at the time of the IEP meeting. (T 62)

Witness was asked to refer to Exhibit 2-4, where is includes: has dramatically reduced safety and danger awareness” (T 62-63, Ex 2-4)

Witness states that the Student does not necessarily require one-to-one assistance regarding this issue. (T 63)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (2) 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 generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

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 (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 indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; 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 (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, 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" (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 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" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see 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. Bd. of Educ., 583 F. Supp. 2d 422, 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 CFR 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] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), 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 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also 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 Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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 (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "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 (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

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 (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (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). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13- 14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L.

• • Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

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 (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 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]). With respect to equitable considerations, 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 (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; 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 withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

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 their removal of the student from public school, or by written notice ten 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" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 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 (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v.

Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2019-2020 School Year

DOE presented Witness seeking to support its offer of FAPE for the 19-20 school year. Witness agreed with the recommendations contained in the IEP of 04/04/2019. (T 33, Ex 1)

Witness was unable to provide any evidence regarding the failure of the DOE to actually implement the mandated IEP, as alleged in the DOP. (Ex A)

Specifically, the DOE presented no evidence that the Student OT sessions were properly delivered, nor did it provide any evidence regarding the change in Student program from an 8:1:2 to an 8:1:1. (Ex A 4)

At the time of the IEP meeting, the Witness does not recall any disagreement as to the IEP recommendations. (T 38)

Parent did presumably accept the IEP, enrolling the Student at the recommended program and placement. (E A 1-2)

Witness was asked to expand upon the IEP, which indicated the Student had “behavioral limitations. (T 41, Ex 1 4 & 5)

Witness described a variety of Student behavioral challenges. (T 42)

Witness was not able to address the additional behavior issues presented in the Student records, such as: hand flapping (Ex 1-7); or “engages in the following behaviors: throwing himself, attempting to bang his head, taking his shoes off, or mouthing his fingers.” (T 48, Ex M-1)

Witness was asked if an FBA was conducted: “An FBA is something that is usually agreed on by the parent and then it's conducted.” (T 48)

Witness continued: “…we discussed it I remember at the annual review with the school. They said that they were meeting his needs in the class where he is -- special class -- with the services provided, so no FBA was needed.” (T 49)

Despite the adverse behaviors in the Report (Ex M), Witness states that the Student’s teacher provided information that the Student’s needs were being met. (T 49-50)

Witness states she would know the Student’s needs are being met since: “Usually the staff reaches out to me if they need an FBA or they need a BIP. A paraprofessional, anything like that. They keep in contact with me, and then I follow up.” (T 50)

The Witness was frank in her testimony, however, the role of the IEP team is not to rely on information from parties not present, but on the documents and discussions during the meeting.

Somehow important behavioral information regarding the Student was neither discussed nor addressed in the IEP.

Parent details additional behavior issues arising during the 19-20 school year. (Ex A 2-3)

IEP includes a variety of adverse Student behaviors, and/pr lack of appropriate behaviors, such as: that Student has cognitive, communication, sensory, behavioral and social limitations (Ex 1 4-5); does not demonstrate friendship seeking behaviors (Ex 1-6);”does not show awareness of the presence of other children” (Ex 1-6).

IEP notes that there are no strategies, positive behavioral interventions, or supports needed to address behaviors impeding the Student’s learning or learning of others. (Ex 1-8)

Considering the variety of Student behaviors set forth in the IEP and Student documents, it seems clear that indeed the Student behavior is interfering with his learning.

Witness was asked about sensory goal of the IEP. (Ex 1-19)

Witness set forth some general information regarding sensory stimulation and options for sensory input, generally. (T 52-53, Ex 1-9)

Hearing Officer asked what specifically the goal meant for the Student. (T 53)

Witness provided additional general information, but was unable to explain or otherwise tie the IEP goal to the specific Student and his needs. (T 54)

The goal set forth is so convoluted and vague that the Witness was unable to explain it in any sensible way, relative to the Student and his needs.

Witness was asked about Student Speech Therapy.

At the time of the IEP meeting the Student was receiving four weekly, 30 minute sessions, which were reduced at the IEP meeting to three, 30 minute weekly sessions. (Ex 1-21)

Witness was asked why the reduction took place, and responded with a general answer towards therapy sessions rather than any specific Student information. (T 58-59)

Additionally, no recent Speech Therapy information was presented regarding the Student, except for Report of 10/15/2018, which doe not include any recommendation. (Ex 6)

Witness was asked if the Student was previously receiving Applied Behavior Analysis (ABA) as part of his program. Witness was not sure. (T 61)

DOE Exhibit 5, Educational Evaluation Report, sets forth information that Student had been receiving 10 weekly hours of ABA Therapy. (Ex 5-1)

Witness did not recall if the Student was toilet trained at the time of the IEP meeting. (T 62)

Witness was asked to refer to Exhibit 2-4, where is includes: has dramatically reduced safety and danger awareness” (T 62-63, Ex 2-4)

Witness states that the Student does not necessarily require one-to-one assistance regarding this issue. (T 63)

The Witness did not evidence any particular review of any Student document relative to the IEP meeting she attended.

Parent Witness, who clearly knew the Student and his needs, testified to the inappropriateness of the DOE IEP.

Essentially, Witness stated the IEP was insufficient in failing to include 1:1 support, and failing to include a BIP. (Ex R 6)

The IEP is insufficient for several reasons, including: a reduction in speech services without justification, the lack of clearly presented sensory goal, and a lack of any appropriate services to address neither Student behaviors nor safety awareness.

Additionally, the DOE failed to establish it could actually deliver, or delivered the appropriate Student placement after March 6,2020.

Even if the IEP was appropriate, 03/06/2020, the DOE effectively altered the Student program and placement, without an IEP meeting, thus leaving the Student without an appropriate placement.

Evidence clearly sets forth a variety of adverse Student behaviors, which apparently grew worse once the Student’s mandated OT services were suspended. (T 48, Ex M-1 & S 3)

Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ., 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172; J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 [S.D.N.Y. 2009]; M.M., 583 F. Supp. 2d at 510; Tarlowe, 2008 WL 2736027, at *8; W.S., 454 F. Supp. 2d at 149-50; Application of a Student with a Disability, Appeal No. 09-101; Application of a Student with a Disability, Appeal No. 09-038; Application of a Student with a Disability, Appeal No. 08-028; Application of the Dep't of Educ., Appeal No. 07-120).

To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student (20 U.S.C. § 1414[d][1][A][i][IV]; 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v][a], [b][3]; M.W., 2013 WL 3868594, at *5; Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100, at *1 [S.D.N.Y. Apr. 7, 2011]; Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 [N.D.N.Y. Sept. 29, 2009] [discussing the student's IEP which appropriately identified program modifications, accommodations, and supplementary aids and services]; P.K., 569 F. Supp. 2d at 380; see also Schreiber v. East Ramapo Central Sch. Dist., 700 F. Supp. 2d 529, 556 [S.D.N.Y. 2010] [noting that when defending a unilateral placement as appropriate under the IDEA, a parent in some circumstances may also be required to demonstrate that appropriate "supplementary aids and services" are provided to the student]).

In this case the Student was exhibiting adverse behaviors, the Parent specifically raised concerns and sought support, and sufficient supports were not set forth, resulting in additional adverse behavior. (Ex S 2- 3)

I find the DOE IEP of 04/04/2019, to be insufficient in offering the Student a FAPE for the19-20 school year.

UP for the 19-20School Year

Testimony and documentary evidence support the UP as an appropriate Student placement for the 18- 19 school year.

Documents reviewed above describe Student’s special education needs, set forth services and goals to address those needs, and indicate areas of progress.

This includes addressing Student behaviors via supports that include engaging Parent to address behaviors as well. (Ex S 5)

I find the UP provides an appropriate education and program for the Student for the 18-19 school year.

UP provides special education services specifically tailored to meet the needs of the Student.

TUITION FUNDING 19-20 School Year

Parent established the Student was denied a FAPE for the 19-20 school year.

Parent is not evidenced to have thwarted any effort by the DOE to offer the Student a FAPE for the 19-20 school year.

Parent established appropriateness of the UP.

Parent is entitled to funding for the UP 19-20 Tuition.

Supportive evidence shows consistent Parent notice to the DOE of concerns related to the IEP and delivery of services for the Student for the 19-20 school year, established tuition, and limited Parent income:

C Tuition contract with [REDACTED] Academy, 3/1/20, three pages

Four months of Tuition for Student attendance set at $49,000.00. (Ex C 1) Parent signs contract obligating herself to payment. (Ex C 3)

D Tuition affidavit and proof of payment from [REDACTED] Academy, 8/31/20, two pages Evidences Parent payment of $2,000.00 towards tuition, and balance of $47,000.00.

G Attendance record for [REDACTED] Academy, 8/31/20, one page Evidence of Student attendance at UP.

P Letter from parent to CSE, 3/6/20, two pages

Parent again follows up with the DOE seeking response to their concerns regarding their child.

Q 2019 Tax return, two pages

Evidences Parent income as about $71,000.00 for the 2019 calendar year.

R Affidavit of [REDACTED] 9/2/20, seven pages

Tuition is set at $49,000.00 for Student attendance, of which $2,000.00 has been paid by Parent. (Ex R 6)

S Affirmation of [REDACTED] [REDACTED], 9/2/20, six pages Student began attending the UP on 03/09/2020. (Ex S 4) Parent has paid $2,000.00 of the UP Student tuition. (Ex S 6)

Parent is unable to pay the full tuition “upfront” though she is obligated to full payment. (Ex S 6)

With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs.

• • v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here... parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769 F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

Parent needs to meet the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of GY and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12- 132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

I find the Parent is entitled to direct UP funding of balance of UP tuition, and reimbursement of payments made thus far, for Student 19-20 UP tuition.

COMPENSATORY EDCUAITON SERVICES

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).

The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir.

2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).

In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought.10 Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology supports.); Woods v. Northport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) (upholding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”).

If Student is found to be entitled to compensatory education under applicable law; compensatory education is an equitable remedy that arises out of the jurisdiction of 20 U.S.C. § 1415; equitable factors do not bar relief here and no inequitable conduct was established on the part of the parents. N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Dist. of City, No. 07 Cv. 9648 (BSJ), 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) (Reversing the SRO and upholding the award; Court found that it is well established that, in the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim for tuition.); Wolfe v. Taconic Hills Cent. Sch. Dist., 167 21 F.Supp.2d 530 (N.D.N.Y. 2001)( the equities— requires a balancing of both parties’ conduct and interest—not merely the actions of the parent). There are no facts established here that show that the parent failed to cooperate or acted inequitably to interfere with the DOE’s ability provide FAPE.

In this case the Student tis shown to have missed OT sessions, mandated in the IEP. (Ex B, K & L) The result was addition of adverse behavior. (Ex S 3-4)

I find the Student is entitled to twenty (20) OT sessions as compensatory education services.

ORDER

• • Department of Education (DOE) failed to offer the Student a FAPE for the 2019-2020 school year.
• • DOE shall fund Student, 2019-2020, [REDACTED] Academy Tuition, as set forth below: Reimbursement to Parent in the amount of $2,000.00; and Direct payment to [REDACTED] Academy, in the amount of $47,000.00.
• • The DOE shall authorize and fund 20, 30 minute, individual, Occupational Therapy sessions for the Student, to be utilized by 06/30/2021.
• • The DOE shall provide Parent with any documents or forms necessary to facilitate tuition funding, and authorization of occupational therapy services, within ten days of the date of this Order.
• • This decision is subject to appeal and review by the State Review Officer.

DATED: October 5, 2020

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party not later than 25 10 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 the 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.

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 the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party not later than 25 10 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 the 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.