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Special Education Law
DECISIONParent PrevailedIHO Case No. 194946

New York City Department of Education, Impartial Hearing Decision

September 1, 2022·Tiffany Hamilton·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 538216 - NYC: 194946

FINDINGS OF FACT AND DECISION

Case Number: 194946

Student’s Name: REDACTED

(hereinafter referred to as “Student”)

Date of Birth: REDACTED

Hearing Requested by: REDACTED

(hereinafter referred to as “Parent”)

District: REDACTED

Dates of Hearing: 5/18/22, 6/3/22, 6/9/22,

6/16/22, 6/22/22, 6/24/22

Record Close: Aug 19, 2022

Hearing Officer: Tiffany Hamilton

NAMES AND TITLES OF PERSONS WHO APPEARED ON 5/18/2022

For the Student:

REDACTED, Attorney

For the Department of Education:

REDACTED, Attorney

REDACTED, School Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED ON 6/3/2022

For the Student:

REDACTED, Attorney

For the Department of Education:

REDACTED, Attorney

REDACTED, CPSE Administrator

NAMES AND TITLES OF PERSONS WHO APPEARED ON 6/9/2022

For the Student:

REDACTED, Attorney

REDACTED, TITLE

For the Department of Education:

REDACTED, Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 6/16/2022

For the Student:

REDACTED, Attorney

REDACTED, Parent

REDACTED, Parent

REDACTED, teacher

REDACTED, speech-language pathologist

For the Department of Education:

REDACTED, Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 6/22/2022

For the Student:

REDACTED, Attorney

REDACTED, teacher, REDACTED

REDACTED, CFO, REDACTED

For the Department of Education:

REDACTED, Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 6/24/2022

For the Student:

REDACTED, Attorney

REDACTED, occupational therapist

For the Department of Education:

REDACTED, Attorney

I. Introduction and Procedural History

This matter comes before the undersigned Hearing Officer at Parent’s request, via a due process complaint filed pro se on July 1, 2020 and amended by counsel on January 1, 2021. Parent charged that the DOE failed to provide Student with a free appropriate public education (FAPE), and violated Parent’s procedural rights under the IDEA for the 2018-2019, 2019-2020 and 2020-2021 school years, and also violated Section 504 of the Rehabilitation Act of 1973. Specifically, Parent alleges that the DOE failed to: evaluate Student in an appropriate and timely fashion; develop a substantively and procedurally acceptable IEP for Student in a timely manner; and offer Student a timely and appropriate placement and services.

The undersigned was appointed as a Hearing Officer on December 15, 2020. A pre-hearing conference and subsequent status conferences were held, and extensions of the compliance date were entered in the record as appropriate pursuant to regulations.

II. Jurisdiction

This due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (“IDEA”), as amended in 2004, codified at 20 U.S.C. §§ 1400, et seq.; the federal regulations implementing IDEA, 34 C.F.R §§ 300.1, et seq.; and Article 89 of the New York State Education Law.

III. ISSUES PRESENTED AND PARTIES’ POSITIONS The issues to be determined in this matter are: 1) whether the DOE failed to provide Student with a FAPE during the 2018-2019, 2019-2020, and 2020-2021 school years; 2) whether the DOE discriminated against Student during the aforementioned school years in violation of Section 504;

3) whether the funding of tuition and related services is an appropriate remedy for the FAPE violation; 4) and whether the awarding of compensatory education is an appropriate remedy.

Parent contends that the DOE failed to provide Student with a FAPE for the 2018-2019 school year in that it failed to evaluate Student properly and on time, thus failing to perform its Child Find obligations under Section 504. Parent argues that the DOE failed to provide student with a FAPE for the 2019-2020 school year in that: none of the IEP meeting attendees had personal knowledge of Student, apart from Parent; the resulting IEP was not reasonably calculated to enable student to receive educational benefits; and the IEP was not sufficiently implemented. For the 2020-2021 school year, Parent contends that the March and October 2020 IEPs were not reasonably calculated for Student to receive educational benefits, and that the placements were inappropriate. Parent also argues that Student should be awarded compensatory education, and that the DOE violated Section 504.

The DOE maintains that it offered Student a FAPE for the school years at issue, in that it created appropriate IEPs that would have given student the required support to make meaningful progress. The DOE also argued that tuition should not be awarded because Student failed to demonstrate that the chosen program was appropriate.

IV. EVIDENCE

The Parent submitted disclosure documents A-SS, which were duly entered into the record. The District submitted disclosure documents 1-30, plus witness affidavits, which were duly entered into the record.

V. FINDINGS OF FACT

  • • Student is a REDACTED diagnosed with attention deficit hyperactivity disorder-combined presentation (“ADHD”) and autistic spectrum disorder (“ASD”), with accompanying language impairment associated with another neurodevelopmental, mental, or behavioral disorder (P. Ex. B- 2).
  • • Student’s autism diagnosis results in delayed communication skills. Student is verbal but is unable to carry on a back-and-forth conversation and engages in echolalia. She is also restless and hyperactive (P. Ex. B- 2).
  • • Student did not receive special education services through Early Intervention and was first evaluated by the Committee on Preschool Education (“CPSE”) when she was a little over three and a half years old. Social history, psychological, speech and language, and occupational therapy evaluations were performed. No diagnoses were noted by evaluators, but the evaluations indicated severe delays in multiple areas. Student did not receive special education services during the 2018-2019 school year. She began receiving services in September 2019, approximately redacted (P. Ex. B- 2).
  • • The CPSE met in July 2019 and classified Student as a Preschool Student with a Disability. An IEP was created and authorized in September 2019, which recommended placement in a 10-month program with 10 hours per week of SEIT services, speech and language therapy 3x30 (1:1), and occupational therapy 2x30 (1:1). A special education preschool was not offered as a placement (P. Ex. B-4).
  • • The recommended services were “pushed-in” to a program at REDACTED, a private school, which student attended until June of 2020 (P. Ex. B-4).
  • • A Turning Five IEP meeting was held on March 13, 2020, which parent attended, along with an advocate. Prior to and during the meeting, Parent expressed that the evaluations performed were insufficient, and requested a neuropsychological evaluation and an updated speech and language evaluation. The IEP team did not approve and arrange the requested evaluations (P. Ex. B-6).
  • • The resulting March 2020 IEP classified Student as a Student with a Speech or Language Impairment, and recommended placement in a 10-month program in a community school, with a 12:1:1 classroom for ELA, Math, Social Studies and Sciences, as well as OT 2x30 (1:1) and SLT 3x30 (1:1). Parent disagreed with the classification and the IEP, notified the DOE, and requested an updated speech and language evaluation, as well as an independent neuropsychological evaluation, to rule out ASD (P. Ex. B-6).
  • • Parent’s request for an independent neuropsychological evaluation was denied, but the DOE had a neuropsychological evaluation performed by REDACTED, who is DOE approved and who diagnosed Student with attention deficit hyperactivity disorder (“ADHD”) an autistic spectrum disorder (“ASD”), with accompanying language impairment associated with another neurodevelopmental, mental, or behavioral disorder (P. Ex. B-6).
  • • Student received some remote learning in or around the March 2020, during the early stages of the pandemic, but had difficulties paying attention. She did not receive all of the services mandated in the IEP (P. Ex. B-6).
  • • Parent is an essential worker and worked during the school day as a respiratory nurse.
  • • Before the neuropsychological examination had been completed, the DOE issued a Prior Written Notice, again offering a placement at REDACTED. On August 27, 2020, Parent sent a Ten-Day Notice of her intent to enroll Student at the REDACTED School (“REDACTED”). The DOE did not respond in a timely fashion, and Parent enrolled Student at REDACTED on October 1, 2020. (P. Ex. B-7).
  • • On October 15, 2020, the DOE held another IEP meeting. The resulting IEP changed Student’s classification to Autism and again recommended placement in a community school, in a 10-month program with a 12:1:1 classroom for ELA, Math, Social Studies and Sciences, with OT 2x30 (1:1) and 1x30 (3:1), SLT 3x30 (1:1), and parent counseling and training 4x year for 60 minutes. (P. Ex. B-7).
  • • Parent contends, among other things, that the DOE denied Student a FAPE, discriminated against Student based on her disability, failed to recommend adequate services, failed to perform required evaluations, and failed to ensure that services were implemented during remote learning. (P. Ex. B-11).
  • • REDACTED, CPSE Administrator, testified via affidavit. She participated in the July 2019 IEP meeting, and noted that the classroom teacher was unavailable but provided input through BASC and classroom observation. She stated that the team discussed Student’s needs, present levels of performance, and evaluation results. She believed that the goals in that IEP were appropriate for Student. (Affidavit of REDACTED, p. 3).
  • • REDACTED, School Psychologist, testified on behalf of the DOE via affidavit. She stated that prior to her participation in the March 13, 2020 Turning 5 IEP meeting, she performed a psychological update. She stated that a DOE social worker observed student in the classroom, and that the team reviewed various progress reports and had sufficient information with which to make an appropriate recommendation (Affidavit of REDACTED, p. 1-2).
  • • REDACTED stated that there was no autism diagnosis or concerns at the time of the March meeting, and that the Parent’s advocate indicated that Parent wished for Student to attend REDACTED (Affidavit of REDACTED, p. 4).
  • • REDACTED indicated that after the team made its recommendation, Parent requested a subsequent neuropsychological evaluation. The team then attempted to hold another meeting in August 2020, but the Parent did not want to move forward because she also wanted an independent speech evaluation performed. The IEP meeting was rescheduled for Oct 15, but the Parent requested an adjournment to obtain a consultation regarding resolution. A meeting was finally held on, October 22, 2020, after the DOE made multiple attempts to reach Parent (Affidavit of REDACTED, p. 4).
  • • REDACTED noted that at the meeting the team changed the classification to Autism and made the same recommendations as the earlier IEP with the addition of parent counseling and training. She indicated that the recommendation was appropriate in her view, and that the changed classification did not warrant a change in recommendation (Affidavit of REDACTED, p. 4).
  • • REDACTED, neuropsychologist, testified via affidavit on behalf of Parent. She conducted an observation of Student at home on 7/28/21 and at school on 8/16/21. She concluded that Student’s behavior, along with her neuropsychological test results, suggested a diagnosis of Autism Spectrum Disorder and that Student would benefit from placement in a specialized program with a small class size and experts training students with language-based disorders. She also noted that Student would need a 12-month program, including speech and language therapy, occupational therapy, and adaptive behavior interventions (R. Ex. PP-9).
  • • REDACTED concluded that due to the DOE’s failure to provide an appropriate program and services, Student should be entitled to a flexible, non-expiring bank of remediation hours for social skills training, home-based ABA, and parent counseling/training, calculated by missed service opportunities during the 2018-2019 and 2019-2020 school years (R. Ex. PP-10).
  • • REDACTED, Student’s teacher during the 2019-2020 school year, testified via affidavit that Student was “very academically delayed” and also had severe communication delays. She was not present at Student’s July IEP meeting, and testified the resulting IEP was “insufficient to address Student’s most important needs.” Specifically, she stated that the IEP should have contained basic academic goals such as writing her name and identifying letter, shapes, and colors. She noted that Student was able to focus when her SEIT was present, and opined that she should have had 5 hours minimum of SEIT services. Ms. REDACTED also noted that Student regressed during remote learning, as she was not able to engage. Ms. REDACTED acknowledged on cross examination that regression was common during remote learning, but noted that Student had an even harder time. She concluded that Student’s 2019 IEP was insufficient to meet her needs. (Ex. QQ-2).
  • • REDACTED, speech and language pathologist, also testified on behalf of Parent. She explained that she administered Student’s speech and language evaluation, and that she scored below average in all tests. She also noted a delay in Student’s social skills. She recommended services 3 times per week in a group of three, in order for Student to make meaningful progress. She also recommended 138 hours of compensatory services using a qualitative approach (Tr. 393).
  • • REDACTED, Parent, also testified. She could not recall having been told about Early Intervention when student was of age and could not recall if she had asked the DOE to evaluate Student prior to 2019 (Tr. 393).
  • • REDACTED stated that she did not begin the application process for REDACTED prior to the March 2020 IEP meeting. She did a virtual tour of REDACTED after the meeting and was told that Student would be placed in a bridge class as the only kindergartener (Tr. 418).
  • • REDACTED stated that the October 2020 “wasn’t much of an IEP meeting” and that it was “cut short” after the DOE revealed that a bridge program was being recommended (Tr. 419).
  • • REDACTED, Student’s teacher at REDACTED, testified via affidavit that the school’s goal is to meet the needs of preschool and school age children with severe language and autism spectrum disorders, and described in detail the methodology used to increase student achievement. (R. Ex. PP at 13).
  • • REDACTED stated that she was Student’s teacher for the 2020-2021 school year, and that the classroom had 6 students and 2 teachers. In-person learning was offered for the entire school year, and she benefitted from a multi-sensory approach and both individualized and small group instruction. She stated that during the 2020-2021 Student made academic and social-emotional progress that was consistent and meaningful, and that REDACTED is an appropriate placement for student. A 12:1:1 ratio would provide insufficient support, in her view, and the REDACTED program is the least restrictive environment for Student’s needs (R. Ex. PP at 13).
  • • REDACTED, Chief Financial Officer at REDACTED, stated in his affidavit: “Even though Ms. REDACTED signed a contract to reserve a spot for REDACTED for the 2020-2021 school year, REDACTED would have refunded Ms. REDACTED any deposit she made and would not have obligated her to pay for any tuition for the 2020-2021 school year if she opted to enroll [Student] in a public school program in New York City or elsewhere.” (R. Ex. RR-1)
  • • REDACTED, occupational therapist, testified via affidavit that she performed an evaluation of Student on August 19, 2021 and that she displayed delays in visual motor skills, fine motor coordination, sensory processing, and activities of daily living, which impact her ability to complete self-help tasks and fully participate in daily activities. She recommended a program of three OT sessions per week at 30 minutes per session, in a group of two. She recommended compensatory OT services in the form of a bank of 138 OT hours (approximately 1.5 hours per week for 2 years at 46 weeks per year) on a 12-month basis. The calculation was made using a qualitative approach (R. Ex. SS - 5-6).

VI. CONCLUSIONS OF LAW

1. The School District denied Student a FAPE for the 2018-2019 School Year and violated Section 504.

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). School districts are required to provide the services set forth in a student’s IEP.

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production regarding the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

Here, the DOE did not evaluate Student until she was REDACTED years old and did not provide services until she was two months shy of her REDACTED birthday. The DOE argues that Parent did not request an initial evaluation prior to the July 8, 2019 IEP, and that therefore “the DOE had no way of knowing that Student may be in need of services before this initial meeting took place.” However, Parent’s failure to request an evaluation does not relieve the DOE of its obligation, under Section 504, to identify and locate every student with a disability, and to then notify the student and parents accordingly. This “Child Find” duty comes into play when the district “has reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability.” Dept. of Educ. V. Cari Rae S, 158 F. Supp. 2d 1190 (D. Haw. 2001). A failure to conduct Child Find is a violation of Section 504, as well as the IDEA, which also requires districts to locate and evaluate students with any level of disability. 20 U.S.C. § 1412(a)(1)(3).

There is sufficient evidence in this case to show that when Student attended her DOE funded pre-K program in 2018-2019, the DOE had reason to suspect that she might have a disability. The DOE’s failure to evaluate her amounts to a violation of Section 504 and a failure to provide FAPE.

  • • The School District denied Student a FAPE for the 2019-2020 School Year.

The team that met to create the July 2019 IEP consisted of: 1) Special Education Teacher REDACTED, 2) CPSE Administrator REDACTED; 3) Dr. REDACTED, Psychologist; 4) Parent. Parent argues that the only member present with any sustained personal knowledge of Student was Parent. However, I find no procedural defect with the development of the IEP. The team members were qualified to make recommendations based on their observations. I do not find the absence of Student’s REDACTED teacher to render the IEP unreliable or inappropriate, particularly given that the teacher completed a BASC questionnaire and the classroom was observed prior to the meeting (DOE Ex. 10).

With respect to the substance of the IEP, I find that it was not reasonably calculated to ensure Student’s educational benefit. It lacked important academic goals, such as reading, writing, math, science, and technology skills. (P. Ex. C). The reading and writing goals were particularly important given that Student’s evaluations showed that she could not yet fully recognize the letters of the alphabet, write her name, or count to ten (Tr. 296).

I also find the IEP inappropriate given Student’s severe delays in cognitive, speech language, social, emotional, and occupational therapy needs. REDACTED stated that a 12-month program was not recommended because it was Student’s first year receiving services. However, this justification fails to take into account the fact that it was the DOE who erred in failing to offer an IEP for the previous school year. The DOE cannot have it both ways, by failing to create an IEP and then ruling out a 12-month program because the Student received no prior services.

Even if the July 2019 IEP had been deemed reasonably calculated to ensure Student’s progress, it was not fully implemented. In March 2020, during the early days of the pandemic, Student was without a SEIT for one month, and had demonstrated challenges with remote learning. Parent alleges that no remote learning plan was provided. The DOE contends that Parent did not respond to the SEIT’s outreach regarding the provision of remote services (Tr. 317, 323). Given that no remote learning plan was submitted into evidence to substantiate the DOE’s position, I find that the DOE failed to demonstrate that it fully implemented the July 2019 IEP.

  • • The School District denied Student a FAPE for the 2020-2021 School Years A Turning 5 IEP meeting was held in March of 2020, prior to the DOE’s neuropsychological evaluation. A subsequent IEP meeting was held in October 2020, taking into consideration findings from REDACTED’s evaluation. The goals and recommendations remained the same, despite a diagnosis of autism spectrum disorder and attention deficit disorder, and despite information from Student’s teacher that she had regressed since the March IEP and that the frequency of services should be increased.

The Parent contends that the placement offered to Student for the 2020-2021 school year– a bridge class with students from K-3, where Student would be the only kindergarten student - was inappropriate. Given Student’s diagnoses and well-documented special needs, and considering the credible testimony presented, I agree that such a placement would not have enabled student to make reasonable progress (Tr 242, Ex. PP).

REMEDIES:

  • • Parent is entitled to Compensatory Education for the 2018-2019 school year.

When a school system fails to provide special education or related services to a disabled child, the child should receive compensatory education, “i.e., the replacement of educational services the child should have received in the first place.” Reid v. District of Columbia, 401 F. 3d 516, 518 (D.C. Cir 2005). Compensatory education is an equitable concept, and is designed to fit the individual circumstances of each case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). The goal is to place disabled children in the same position they would have been in but for the school district’s violation of IDEA. Reid, 401 F.3d at 518. “Because compensatory education is a remedy for past deficiencies in a student’s educational program,” a finding as to whether a student was denied a FAPE in the relevant time period is a “necessary prerequisite to a compensatory education award.” Peak v. District of Columbia, 526 F.Supp 2d 32, 36 (D.C. Cir. 2007).

A compensatory education award “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid, 401 F.3d at 524. An examination of the specific educational deficits resulting from a student loss of FAPE is required to ascertain what must be put in place to make the student whole. See, P. v. Newington Bd., 546 F.3d 111 at 123 (2d Cir. 2008). This qualitative approach must be applied with flexibility. See id.

Having found that the DOE failed to provide a FAPE to Student for the 2018-2019 and 2019-2020 school years by failing to provide and/or implement services, I find the DOE shall fund the following compensatory education hours at reasonable market rates in a bank of services consisting of the following hours with no expiration date, so they may be used flexibly:

  • • 720 1:1 ABA (10 hours per week for 46 weeks for 2 years), less the hours actually provided to Student during the 2019-2020 school year, to be calculated by the DOE's Implementation Unit within 30 days of this decision;
  • • 1150 hours of 1:1 SEIT (10 hours per week for 46 weeks, to account for the DOE’s failure to provide appropriate any SEIT or education services during the 2018-2019 SY, and 15 hours per week for 46 weeks, to account for the DOE’s failure to provide 25 hours of SEIT per week during the 2019-2020 school year as recommended as necessary by Ms. REDACTED);
  • • 138 SLT hours (approximately 1.5 hours per week for 46 weeks x 2 years)
  • • 92 OT hours, (approximately 1 hour per week for 46 weeks x 2 years)

While the parent requested additional ABA, SEIT, and OT hours, I find the amounts awarded to be appropriate in light of the testimony provided, taking into account Student’s current educational program and the number of hours in a day available for student education.

  • • 2. Parent is entitled to tuition reimbursement/direct funding for the 2019-2020 and 2020-2021 school years.

A school district may be required to pay for educational services obtained for a student by his or her parent, if (i) the services offered by school district were inadequate or inappropriate, (ii) the services selected by the parent were appropriate, and (iii) equitable considerations support the parents' claim. See M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F. 3d 96, 102, 104 (2d Cir. 2000), cert denied, 532 U.S. 942 (2001); see also Walczak, 142 F.3d at 129 (citing Burlington Sch. Comm. v. Dept. of Educ., 471 U.S. 359 (1985)). These three factors are known as the "Burlington factors." i) Appropriateness of School District Program

Given the above determination that the school district denied Student a FAPE for the 2019-2020 and 2020-2021 school years, Parent has met the first of the three Burlington factors for tuition reimbursement. ii) Appropriateness of Parent Placement

Under the second prong of Burlington, a parent bears the burden of proving the appropriateness of the services sought for a student. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a child with a disability. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007); 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. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. Here, Parent must demonstrate that REDACTED offered an educational program designed to meet Student’s special education needs. The test is not whether the private placement is perfect, but rather whether it is appropriate. See Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999).

I find that in this case Parent has met the burden of demonstrating the appropriateness of Student’s program at REDACTED. I was particularly persuaded by the testimony of Ms. Erin Knuth, who provided details about the effectiveness of the school’s curriculum and learning structure, as well as its small class size. She noted that Student made progress academically, socially, and emotionally during the school years at issue (Tr. 52), and these observations were shared by Student’s other providers.

For the reasons noted above, I find Parent has met the burden of demonstrating that the chosen program was an appropriate placement for Student for the 2019-2020 and 2020-2021 school years. iii) Equitable Considerations The third prong of the Burlington analysis requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if, notwithstanding being advised to do so, a parent neither informs the CSE of his or her disagreement with its proposed placement and his or her intent to place the child in a private school at public expense at the most recent CSE meeting prior to the removal of the child from public school, nor provides the school district with written notice of such information ten business days before such removal. 20 U.S.C. 1412(a)(10)(C)(iii).

In this case, Parent actively participated in the process and raised concerns in a timely manner. Although the DOE contends that she was unreachable at times, the evidence shows that she participated in the process when required. Parent attended the July 2019 and October 2020 IEP meetings, provided authorization for evaluations, and gave timely notification of her concerns. She requested a neuropsychological evaluation after the March 2020 IEP, and informed the committee that she had concerns about Student possibly having ASD. Through her advocate, she also voiced concerns prior to the October 2020 IEP meeting. The fact that she had expressed a desire that her child remain at REDACTED does not mean that she would not have accepted an appropriate public school placement. Also, the fact that she signed a contract on April 22, 2020 is immaterial; there is no clear evidence of precisely when she began the application process, and Parent is certainly entitled to explore all options available to her child. In addition, Mr. REDACTED, the CFO of REDACTED, testified that the school would have refunded the deposit if Parent had elected to send Student to a public placement.

I find that Parent has prevailed in proving that the DOE failed to offer Student a FAPE for the 2019-2020 and 2020-2021 school years, and that the program chosen by the parent was appropriate. I further find that the equities in this case favor Parent. Tuition reimbursement is therefore an appropriate remedy.

ORDER

  • • The DOE shall reimburse Parent, upon receipt of proof of payment, for the cost of the Student’s 2019-2020 and 2020-2021 school year tuition at the REDACTED School, as well as the cost of related services, including OT and SLT.
  • • The DOE shall fund 10 hours per week of 1:1 ABA
  • • The DOE shall award compensatory education at reasonable market rates in a bank of services consisting of the following hours with no expiration date, as follows:
  • • 720 1:1 ABA (10 hours per week for 46 weeks for 2 years), less any hours provided to Student during the 2019-2020 school year, to be calculated by the DOE's Implementation Unit within 30 days of this decision;
  • • 1150 hours of 1:1 SEIT
  • • 138 hours SLT
  • • 92 hours OT
  • • The DOE shall fund the cost of a private independent neuropsychological reevaluation.

IT IS SO ORDERED.

Dated: September 1, 2022

Tiffany Hamilton

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An Appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings 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.

  • • EXHIBITS
  • • Please see attached.