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Special Education Law
DECISIONParent PrevailedIHO Case No. 195564

New York City Department of Education, Impartial Hearing Decision

April 15, 2022·Hearing Requested by:

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

FINDINGS OF FACT AND DECISION

195564

[Redacted]

REDACTED

Parents

Martin J. Kehoe III, Esq.

April 15, 2022

195564

[Redacted]

REDACTED

Parents

Martin J. Kehoe III, Esq.

April 15, 2022

Case Number:

Student’s Name:

District:

Hearing Requested By:

Hearing Officer:

Actual Record Close Date:

Table of Contents

I. Introduction 2

II. Overview – Reimbursement & Compensatory Education 3 a. Procedural History 4 b. Parents’ Position 4 b. District’s Position 5 c. Student History 5 d. Background of the Case 6 i. IEP Meeting 7 ii. Recommendations 8 e. Legal Overview 9

III. Prong I 11 a. Did the District Present a Prima Facie Case? 11 i. Standard 11 ii. Analysis 11 iii. Conclusion 12

IV. Prong II 13 a. Legal Issue: Did the Parents Establish the Appropriateness of the Private Placement? 13 i. Legal Standard 13 ii. Analysis 14 iii. Conclusion 18

V. Prong III 18 a. Legal Issue: Did the Parents Cooperate with the District? 18 i. Legal Standard 18 ii. Analysis 20 iii. Conclusion – Reimbursement 21

VI. Compensatory Education 21 a. Legal Issue 21 b. Rule 22

VII. Applied Behavioral Analysis 25

VIII. Concluding Remarks and Rationale for Reducing the Award 26

I. Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO), in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The school district will be referred to as District, the parent as Parent and the student will be referred to as Student.

The Second Amended Due Process Complaint invokes “the IDEA and its implementing regulations, the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act of 1972 and its implementing regulations, and Article 89 of the New York Education Law and its regulations and guidelines. The hearing also raises claims pursuant to the New York State Constitution, United States Constitution and 42 U.S.C. § 1983” (Ex C).

The scope of the impartial hearing is limited to the issues raised in the Complaint Notice. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Disst., No. 11 civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Issues and allegations not contained within the four corners of this complaint are not to be considered pursuant to the applicable case law and regulations cited above. Similarly, any claims set forth within the DPC that were not addressed at the hearing should not be considered as they are considered abandoned. Application of a Child With A Disability Appeal 08-037 and Application of a Child With A Disability Appeal 10-067, pg. 9, n. 9.

As a result, I have taken jurisdiction of the familiar claims under Article 89 of the New York State Educational Law, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 706 (Section 504 claims[1]) and the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. 1400 et seq. (IDEA). I strike the Parent’s claims under The Americans with Disabilities Act (ADA), Civil Rights Act 42 U.S.C 1983, and claims under the New York State Constitution and the United States Constitution. It is my belief that I do not have jurisdiction over these claims and in any event, the proof at the hearing was such that I deem these claims either outside of my jurisdiction, abandoned or without merit. In short, this is a “reimbursement” case with a compensatory education component.

II. Overview – Reimbursement & Compensatory Education

This is a “reimbursement” case. A board of education may be required to reimburse parents for their expenditures for private education 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). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis. I will apply that framework to this case.

There is a demand for “compensatory education” in addition to tuition reimbursement. Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and... mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]. a. Procedural History The Parent filed a complaint notice on July 2, 2020 (Ex. A), an amended complaint notice on September 2, 2020 (Ex. B), and a second amended complaint notice on September 7, 2020 (Ex. C)

Hearings were held on August 4, 2020; September 8, 2020; October 28, 2020; January 21, 2021; March 23, 2021; May 12, 2021; June 7, 2021; June 21, 2021; June 24, 2021; July 28, 2021; August 16, 2021; and September 20, 2021. The Parent submitted exhibits A-Q and called three witnesses: the Executive Director at the Private School, the BCBA/LBA, and the Parent. The District submitted Exhibits 1-7 but did not call any witnesses. The Parents stipulated to Exhibits 1-4 only. b. Parents’ Position In the complaint notices, the Parents alleged that the District did not provide a free appropriate public education (FAPE) for the 2020 – 2021 school year. (Ex. A, Ex. B, Ex. C) The Parents are seeking prospective funding/reimbursement for a program that provides full day 1:1 intervention that utilizes Applied Behavior Analysis (ABA), under the supervision of a board certified behavior analyst/licensed behavior analyst (BCBA/LBA) for the 2020/2021 school year; 20 hours per week of after school/home bases 1:1 ABA weekly; 2 hours of parent training weekly; individual SLT 3x30 weekly; individual OT 2x30 weekly; round trip special education transportation with limited time travel; 1:1 transportation paraprofessional; assistive technology; compensatory services to make up for the lack of FAPE in the 2020-2021 school year and for any time periods during the duration of the administrative proceedings during which he does not receive services he is entitled to by law, including any failure of the DOE to provide pendency or comply with interim orders; any afterschool or home-based services should be authorized for enhanced market rates; implementation of any recommendations received from independent evaluations; if the Parents incur any other debts or extend any funds with respect to the Student’s education for the 2020 -2021 school year, evaluations, transportation or compensatory education, their debts should be satisfied, or they should be reimbursed; and a legally valid IEP that follows the procedural and substantive requirements of the IDEA and New York State Education Law that includes adequate goals and that includes, at minimum, the services requested in the complaint notice. (Ex. A, B, C)

In the complaint notices, the Parent alleged:

  • • The District failed to develop legally appropriate IEP and provide a placement offer.
  • • The District failed to provide adequate related services during remote learning, or reasonable accommodations during the time schools were closed because of the Covid-19 pandemic.
  • • The District failed to appropriately evaluate the Student.
  • • The recommended placement never responded to the Parent’s messages asking about the program.

b. District’s Position The District provided exhibits 1-7, including a timely psychological evaluation (Ex. 2), an IEP (Ex. 5), and a school location letter (Ex. 7). It is the District’s position that they provided the Student with a FAPE. (T. 50) c. Student History The Student has a diagnosis of autism spectrum disorder (ASD). The Student presents with cognitive, executive function, and joint-attention deficits consistent with ASD (Ex. M). The Student is also diagnosed with Attention Deficit Hyperactivity Disorder. (Ex. L) The Student uses an augmentative and alternative communication device to express his basic needs and wants. (Ex. K)

The Student prevents with severe delays in auditory comprehension, expressive language, knowledge of vocabulary and pragmatic language. (Ex. L) The Executive Director of the Private School testified that the Student has deficits across all academic areas, and his main difficulty is his ability to attend and focus. (T. 74) The Student exhibits impulsive behaviors and stereotypical behaviors. The Executive Director stated that the Student Requires “a high level of redirection, a high level of motivation… very frequent reinforcement to make sure that he is able to kind of stay on track and focus.” (T. 75) See also, Exs. K,L,M,N,O,P,Q and R. He engages in high rates of vocal stereotypy and escape-maintained behaviors such as dropping to the floor, bending over, putting his head down on the table and laughing. The Student benefits from individualized and intensive supports that include clear and concise instructions presented by teachers and providers.

The Student enjoys music, dancing, watching dance videos. (Ex. M) d. Background of the Case The Parent testified that the Student stopped attending his previous school at the end of June 2020 because the school informed her that they could no longer provide an appropriate placement for the Student as they could not offer him the level of 1:1 ABA that he needed. (T. 141) The Parent did not have an updated IEP or a placement recommendation from the District as of July 1, 2020. (T. 142 – 143) On July 2, 2022, the Parent filed a DPC regarding the 2020-2021 School Year (“SY”) The DPC contained numerous specific allegations regarding the DOE’s substantive and procedural violations in relation to the Student’s education for the 2021-2022 SY. Ex. A. Parent filed an Amended Impartial Hearing Request on September 2, 2020 and a Second Amended Impartial hearing Request on September 7, 2020. A pendency Agreement was entered into between the parties on October 5, 2020. i. IEP Meeting The Parent testified that she participated at an IEP meeting for the Student on or about July 23, 2020, with members of the District, the Student’s previous school, and the Private Agency. (T. 143) The meeting was held by phone. (T. 158) She said that she remembered the CSE team discussed the Student’s progress reports, goals, behavioral assessments, BIP, and “behavioral episodes.” (T. 143 – 144) The Parent stated that she, the staff from the previous school, and the Student’s afterschool ABA provider all spoke of the Student’s need for 1:1 ABA, but the CSE team said that they could not provide those services to the Student. (T. 144) According to the Parent, the IEP was not appropriate for the Student. “Well, it wasn’t addressing any of the progress reports, any of the recommendations from the experts saying that he needed the one – to – one full day ABA program.” (T. 144)

The Parent testified that she received a placement offer from the District around August 25, 2020, but when she tried to contact the placement, she did not receive a response to her voicemail. (T. 145 – 146) She said the Student did not attend any school program during the summer of 2020 – 2021 and did not receive any one–to-one ABA services at school or at home, speech language services, or occupational therapy services from July 1, 2020 – August 15, 2020. (T. 146) The Parent also did not receive any parent counseling or training during that time. (T. 148) She said at that time it was difficult to find providers who are willing to go into people’s homes because of the coronavirus. (T. 146 – 147) She testified that the Student did not attend a school program from August 1 – November 9, 2020, and from September 1 – October 15, 2020, the Student did not receive any 1:1 ABA services at school or at home, did not receive any speech language therapy or occupational therapy, and that she did not receive any parent counseling and training or BCBA supervision. (T. 147) ii. Recommendations The Neuropsychologist who evaluated the Student recommended: a “full-day, highly-structured, highly-supportive, multi-sensory learning environment, to address his significant social, language, attention and learning needs. It is recommended that he remain in a class with an 8:1:2 student to teacher ratio and retain the assistance of a paraprofessional aide.” (Ex. M) He also recommended the shortest bus ride possible.

To prevent regression, he recommended that the Student be provided, “In-home structured behavioral intervention (i.e., discrete trail training) under the coordination and supervision of Board Certified Behavior Analyst, so as to prevent any further regression.” He further recommended ongoing parent training and support in these techniques, continuation of speech and language therapy, training for the Parent in using the communication devices, continuation of occupational therapy, multisensory learning approaches, consistent daily visional schedules and routines, and movement breaks.” (Ex. M).

The Student’s ABA Provider recommended continuing SETSS/ ABA services (Ex. N). The Educational Director, Clinical Supervisor, and Behavioral Instructors from the Private School recommended that the Student continue to attend a 12 month, 1:1 ABA program to reduce behaviors and increase receptive and expressive language skills, daily living skills, academic skills, leisure skills, socialization, and independence. (Ex. R) The Student’s last speech and language evaluation recommended 1:1 speech language therapy five times per week for 60 minutes and individual reading instruction 5x per week for 45 minutes. (Ex. L) The Student’s last assistive technology evaluation recommended an ipad mini 4 with Touchchat HD-AAC with Word Power and Chat Wrap 8 Server amp case by Silver Kite. (Ex. K) e. Legal Overview The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

(A) have been provided at public expense, under public supervision and direction, and without charge,

(B) meet the standards of the state educational agency,

(C) include an appropriate preschool, elementary, or secondary school education in the state involved, and

(D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).[2]

A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally, 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an IEE of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

III. Prong I a. Did the District Present a Prima Facie Case? i. Standard

IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “... offer a cogent and responsive explanation for their decisions...” Endrew F., Supra. ii. Analysis The District submitted evidence, but did not call any witnesses and failed to meet the Parent’s myriad allegations that the District failed to provide the Student with a FAPE. For example, substantively, the Parent said that the meeting was not timely for the 2020-2021 12-month school year, On the face of it, the District did meet the Parent’s objection regarding ESY services. The IEP only recommends a 10-month SY, not a 12-month SY.

However, a review of the record supports the position that the District was mistaken in failing to provide for a 12-month program. The great weight of the evidence demonstrates that the District should have recommended a 12-month, ESY program for the Student (Ex. A-2). From the report that the District utilized at the CSE meeting the Neuropsychologist opined:

In order to reduce regression due to any discontinuity of services, it is strongly recommended that he be provided in-home, structured behavioral intervention (i.e., discrete trial training) under the coordination and supervision of a Board Certified Behavior Analyst so as to prevent any further regression. (Ex. 2/Ex M)

This opinion alone would support ESY services. See, 8 NYCRR Part 200.1(eee) Twelve-month special service and/or program means a special education service... for students... whose disabilities require a structured learning environment of up to 12 months duration to prevent substantial regression.

But equally telling is the lack of explanation for following the mandate of the last unappealed decision regarding this student (Ex. F). In that decision a 12-month program is required. iii. Conclusion The District maintains that they offered the Student a FAPE in the 2020-2021 school year (T. 50). But they did not call any witnesses to defend their position. The District did submit evidence, including the IEP from the school year at issue. The Parents assert that the IEP did not offer the Student an appropriate program for the 2020-2021 school year and assert that there were omissions in the IEP of information from the last private school placement, that the program recommendation could not meet the Student’s needs, that there were procedural violations in the CSE process that effectively impacted parental participation, inter alia.

The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. (“SRO No.”) 16-028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016).

In this case I am left to speculate concerning the particulars of the CSE review process, the rationale employed by the CSE members and the deliberations that may or may not have contributed to a final recommendation of IEP.

They did not call any witnesses to demonstrate that the IEP was appropriate or how it would be implemented in the District school, and failed to demonstrate that they provided a FAPE. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. The District ultimately failed to support their burden of proof I, therefore, rule for the Parent on Prong I.

IV. Prong II a. Legal Issue: Did the Parents Establish the Appropriateness of the Private Placement? i. Legal Standard

I now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Unilateral Placement. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

“... [P]arents 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect"). ii. Analysis The Private School The Executive Director of the Private School testified that the school is for students with autism between the ages of five and twenty-one. The school uses applied behavior analysis (ABA) in a one-to-one format in instruction and behavior reduction programs, and uses data collection when deciding to change programming or behavior plans. (T. 70 – 71) The Student attended the Private School during the 2020 – 2021 school year, starting on November 9, 2020, which provided 1:1 instruction using ABA. (Ex. R, T. 150) The Student’s progress report showed that he made progress in behavior and skills in the program. (Ex. R) The Parent testified that she communicated with the Student’s teachers and providers at the Private School through virtual meeting rooms and phone calls. (T. 150)

When the Student enrolled in the Private School, the school assessed him with the Essentials for Living assessment, and parts of the Assessment of Functional Living skills, which assesses skills across all domains. (T. 78) The Student’s goals were based on the assessment, parent input, and direct observation. (T. 77)

According to the Executive Director, the Student made progress in his goals for the 2020 – 2021 school year across all domains. (T. 79) The Student was in a highly individualized program to meet his needs, and during the 2020 – 2021 school year, the Student received instruction in person by three direct instructors. (T. 73). The Student was learning to read sight words, working on his ability to match pictures to words, learning to count in math, learning to identify money, working on his ability to hold a writing utensil, and learning to trace his name. (T. 74) The school worked with the Student on his use of his communication device, and he learned to express his wants and needs using the device. (T. 75) The Private School also taught the Student social skills, such as playing a game with a peer, understanding how to take turns, how to wait his turn, and how to greet people. (T. 76) The Executive Director testified that the school has a clinic meeting with parents every 10 to 12 weeks. “So during that time, we do a full data review of every single program, every behavior, and then, you know, we write up the clinic notes across each of those goal areas and each of those behaviors to look at progress. And then we do a final progress report with all of the program’s behaviors at the end of each year.” (T. 80 – 81). She said if any new behaviors come up they will meet with parents immediately to discuss it. (T. 81) The school also sends a daily note home to parents. (T. 82)

The Student attended the Private School both in person and remotely, based on whether the school was closed because of staff or students testing positive for the coronavirus. (T. 151 – 152) According to the Parent, the Student made progress at the Private School during the 2020 – 2021 school year. “I mean, he engaged immediately because of the level of just attention, the one – to – one that he was afforded, whether it was remote or in person. I just saw level of engagement from him that I had never seen at his previous school. He was way more attentive. He was able to follow instructions a lot more.… (T. 152)

When asked if the Student requires a 1:1 ABA program, the Executive Director answered “yes”. When asked why, she responded “… his level of interfering behaviors is really, really high. A lot of impulsive behaviors, like I said, a lot of like, jumping out of his seat and running, eloping… He really requires the one-to-one ABA to make sure that he’s constantly redirected to the task at hand, that he’s motivated… with his communication. If he’s not motivated, he’s not going to communicate… I just think… without the kind of intensive, you know, one – to – one ABA model with these highly individualized programs and behavior plans… I don’t think he’d be able to make progress in that way. (T. 83) She testified that the Private School collaborates with the Student’s afterschool program to ensure consistency for the skills to be taught in the same way. (T. 83 – 84) b. Home Services The Student received 15 hours per week of SETSS/ABA services at home from the Private Agency during the 2020 – 2021 school year, starting on October 15, 2020. (T. 148) The Student made progress in imitating some vocal sounds; zipping and unzipping clothing; putting on shirts and socks; tracing lines, shapes and letters; and staying on task for a longer amount of time. (Ex. N) The Parent began to receive parent counseling and training at the time the Student began receiving 1:1 ABA. (T. 148 – 149)

The Parent testified that she communicated with the Student’s 1:1 ABA providers and discussed the Student’s progress. “We had a lot of team meetings between his home provider and his school teachers and the staff just to make sure that everyone was on the same page. … to make sure that we were generalizing as much as we could across the board and holding him to the same standard … just to make sure that we were all pushing him to reach his full potential at all times. (T. 153 – 154) It is the Parent’s opinion that the Student made progress with 1:1 ABA at home. For example, “He was able to actually sit and complete puzzles. He also was able to just have more control over his fine motor skills when it comes to writing and drawing and being able to identify… what he’s drawing… building something out of his Legos… I mean, it was incredible to witness, because at the beginning he wasn’t able to do any of those things… (T. 154 –155)

The BCBA/LBA testified that she worked with the Student from October 2020 – June 2021. (T. 103) She said that when she met him he had very limited communication skills, low tolerance for sustained activity, limited social skills, limited community skills, and limited academic skills. (T. 103) She said that she focused on helping the Student communicate, created a schedule for him to follow, worked on increasing his tolerance for staying with an activity longer, and gave him a variety of activities. “I was trying to create activities that interrupted some of the more repetitive aspects of his behavior or his repetitive desire to play games in the same exact way, to play with a toy in the same exact way, did a lot of that. We did a little bit in the community…” She added that she worked on having the Student walk next to her outside instead of wandering away, worked on turn-taking, understanding the rules in games, and having him learn not to be frustrated when he lost. (T. 105)

The BCBA/LBA said that she saw the summary that the Private School sent every day and participated in most of the meetings the Parents attended with the teachers and staff. “Just together we were strategizing just different approaches to addressing the behavioral issues and also sort of creating new ways of approaching learning opportunities. We were very much in concert throughout that period.” (T. 106) She said that she worked with the Student in person. (T. 107) When asked if what she did with the Student could be done during the school day, she responded,

No.… I think, first of all, because of the severity of his issues, he does require sort of continual intervention for the sake of his own progress. I also think there are certain things that can only be worked on at home, things that can only be worked on in the community around his home that are very specific to that environment. It’s very hard for child like him to generalize from learning things in one setting … (T. 107)

She said that she regularly communicated with the Parents about the Student’s afterschool ABA program. (T. 109) Accordingly to the BCBA/LBA, the Student made progress with home ABA. (T. 113, 116)

His ability to transition from activity to activity has improved greatly, you know, using a schedule, he’s able to anticipate what’s happening next and move to the next activity without becoming upset or avoidant or anything like that.… We were able to, like, sit and play game for the duration of the game, various games. He was able to complete… larger piece puzzles… improvement in his ability to stay focused and stay by my side when we were walking… (T. 112)

The Student also made progress in communication and academic skills. (T. 116 – 117) In her opinion, ABA is the best instructional methodology for the Student. (T. 113)

When asked why the Student would need ABA afterschool, the Executive Director said “… the school day… is not enough time. There’s just different skills that you’re able to work on in the home environment that you can’t at school.… He has real significant deficits…” (T. 84 – 85)

I credit the testimony of the Parent, the Executive Director, and the BCBA/LBA that the Students program of the Private School and home based ABA was appropriate and addressed his special education needs, enabling him to make progress. iii. Conclusion

I find that the Private School provided educational instruction specially designed to meet the unique needs of the Student. I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the placement in addition to the Student’s progress. The Parents have met their burden by establishing that such services were necessary to permit the Student to benefit from instruction. I, therefore, rule for the Parents for Prong II.

V. Prong III a. Legal Issue: Did the Parents Cooperate with the District? i. Legal Standard

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 where 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[3]). 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; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child 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. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]) 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])

ii. Analysis

After the District held a CSE meeting, the Parent participated in the Student’s IEP meeting and shared her concerns. The Parent’s attorney sent the CSE a ten day notice letter dated June 17, 2020 alleging that the District had not offered the Student an IEP or placement for the school year and stating the Parents intention to enroll the Student in the Private School and seeks tuition funding/reimbursement and special education transportation. (Ex. D)

I find that the Parent cooperated with the District. iii. Conclusion – Reimbursement

Upon review of the record, I find that the Parents cooperated with the District and did nothing to impede them from developing an appropriate IEP for the Student. As such, I find no reason for reduction in tuition reimbursement. I, therefore, rule for the Parents in Prong III.

VI. Compensatory Education a. Legal Issue The Parents also seek additional services to assist in placing the Student in the same position he could have been in had services to him had not been interrupted during the summer of the 2020-2021 SY. Specifically the Parents contend the following:

Paragraph 60:

The DOE has failed to provide reasonable accommodations for [the Student] during the time schools were closed due to the COVID-19 pandemic. Due to [his] global deficits he was and continues to be unable to benefit from remote learning in the manner it is being implemented by the DOE. As such he regressed in many of his skills and progress.

Paragraph 61:

  • • During the months that the school was closed no alternative learning was offered by the DOE.

Paragraph 64:

On or about August 25, 2020, the parent received a “Prior Notice Package” inclusive of a placement at the Public School

Paragraph 65:

  • • Upon receipt of the placement offer the Parent immediately contacted M138 @ M33 to inquire as to the program and its ability to provide Madden with an appropriate individualized program.

Paragraph 81:

The DOE has an illegal policy whereby it refuses to implement payments for last agreed-upon/pendency placements and services after a hearing is filed without an order from an impartial hearing officer, even where there is no legitimate or substantive dispute about the nature of the pendency placement and services. (Ex. C) b. Rule

Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001].

Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]).

Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]).

In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate 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"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]).

Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014.

The Parent testified that the Student did not have any school day or afterschool programming or any related services during the summer of 2020-2021. (T.146) The Student also did not receive any services or educational programming from July 1, 2020-August 15th, 2020. (T. 146-7) The Student continued to be without an educational program during the school day and after school in September of 2020. (T. 147)

VII. Applied Behavioral Analysis

On or about October 15th, the Student began to receive ten hours of 1:1 ABA services at home after the school day provided by a Psychology Group. (Tr.148). On or about October 15th, the Psychology Group also began to provide Parent Training and Counseling and weekly supervision provided by a Board Certified Behavior Analyst (Tr. 149).

The Student began to attend the Private School on November 9, 2020 where he received instructional programming in person and when COVID positivity testing dictated instructional programming was provided remotely using secure instructional platforms. (Tr. 151).

The Parent noted the progress made by the Student with the provision of a 1:1 ABA program, specifically increased engagement and attention, increased ability to follow instructions and a decrease in his behaviors and better ability to regulate himself. (Tr. 152-3). M.W. continued to receive 1:1 ABA afterschool when he began at BAC; 12 hours. (Tr. 153). The Parent further testified team meetings were held between the Student’s home providers and BAC to ensure standards and consistency of programming. (Tr. 154). The Parent continued testified that the Student showed progress in his ability to control his fine motor skills, self-regulate, attend to activities for protracted periods of time. Finally the Parent offered his opinion that the Student requires the 1:1 ABA he receives during the school day and afterschool to maintain the progress, consistency, decrease in negative behaviors and increased level of engagement. (T. 156)

The Parent also testified that the Student did not receive Occupational Therapy or Speech Language Therapy services during the summer of 2020-2021. (T. 146)

The Parent testified that the Student did not receive any educational programming or even his pendency program beginning July 1, 2020; the Student remained without the provision of his 1:1 ABA services for nearly six months. The District failed to refute and present evidence to the contrary or as to their efforts to comply with the Student’s stay put pendency provisions.

Again, pursuant to pendency, the DOE was required to provide placement at the Previous Public School, 20 hours of 1:1 ABA therapies after school, 1:1 OT 3x30 weekly, 1:1 SLT 3x30 weekly and 2x60 Parent Training and Counseling weekly. The Student, however, did not receive his full pendency mandate and missed a significant number of hours of 1:1 ABA, for which the Parent now seeks a compensatory award. (Ex. E)

VIII. Concluding Remarks and Rationale for Reducing the Award The District failed to address the compensatory services demand of the Parents. Nevertheless, I have reduced the requested award regarding compensatory education for two reasons:

  • • I am confident in the CSE and their ability, guided by the neuropsychological evaluation and the other evaluations developed over time, to make good decisions about the Student’s needs and related services going forward;
  • • I recognize there are a finite number of hours per week, and the demands of the Student’s school year along with significant hours of additional services, may be daunting. Inherent limits of stamina, pace, concentration and the like could easily place an unintended burden on the Student and the family. I attempt to mitigate these unintended consequences with my order.

It is therefore ORDERED

  • • That the District has violated the Student’s and the Parent’s rights under the IDEA, as alleged herein.
  • • That the District failed to provide the Student with a FAPE for the 2020-2021 SY. Accordingly, the District shall c reimburse and/or direct pay the Parents/Private School for the 2020-2021 SY.
  • • That the District reconvene and provide an IEP that offers FAPE and a program consistent with the following for the Student:
  • • A program that provides full-day, individual 1:1 intervention that utilizes Applied Behavior Analysis with essential behavioral supports and under the supervision of a Board-Certified Behavior Analyst/Licensed Behavior Analyst (BCBA/LBA);
  • • Twelve Month School Year
  • • Special Education Transportation with Limited Travel (60 Minutes or Less)
  • • Individual 1:1 transportation paraprofessional
  • • 20 hours of 1:1 after school ABA services
  • • 2 hours of ABA parent training per month by a Board-Certified Behavior Analyst
  • • Individual speech-language therapy 3 times per week for 30-minute sessions;
  • • Individual occupational therapy 3 times per week for 30-minute sessions;
  • • If the District cannot achieve the limited time travel mandate, then a car service to transport the student to and from school and home.
  • • District provision or funding of Assistive Technology Hardware and Software supports.
  • • That the District provide compensatory services to make up for the lack of FAPE in the 2020-2021 school year, specifically:
  • • Compensatory 1:1 ABA Therapy- During the School Day-210 hours
  • • In-school 1:1 ABA Therapy- 15 hours weekly
  • • To be calculated at 14 weeks (beginning July 6, 2021, up and through November 9, 2021)
  • • Compensatory Bank of 1:1 in school 1:1 ABA: (15 hours x 14 weeks) = 210 Hours
  • • Compensatory 1:1 ABA Therapy Afterschool-258 hours
  • • Afterschool 1:1 ABA Therapy- 10 hours weekly
  • • First, to be calculated at 11 weeks without any afterschool service (beginning July 6, 2021 up and through October 15th) (10 hours x 11 weeks)= 110 Hours
  • • Second, to be calculated at 37 weeks where the Student only received –12 hours weekly (beginning October 15, 2021 up and through June 25, 2021) (4 hours x 37 weeks) = 148 Hours
  • • Compensatory Services: Parent Training & Counseling- 8 hours
  • • Parent Training and Counseling– 2x60 Monthly
  • • To be calculated at 4 months without any afterschool service (beginning July 6, 2021 up and through October 15th)
  • • Compensatory Bank of Parent Training and Counseling: (2 hours x 4 months) = 8 Hours
  • • Compensatory 1:1 Speech and Language Therapy- 46 hours
  • • 1:1 Speech and Language Therapy- 1.5 hours weekly
  • • To be calculated at 46 weeks without any speech and language therapy (beginning July 6, 2021 up and through June 28, 2021)
  • • Compensatory Bank of 1:1 Speech and Language Therapy: (1.0 hours x 46 weeks) = 46 hours
  • • Compensatory 1:1 Occupational Therapy- 46 hours
  • • 1:1 Occupational Therapy- 1.0 hours weekly
  • • To be calculated at 46 weeks without any occupational therapy (beginning July 6, 2021 up and through June 28, 2021)
  • • That all compensatory services are to be utilized within 3 years of this order or they shall be deemed forfeited.
  • • In the event that a licensed behavior analyst (“LBA”) is not secured to provide ABA services to the Student, the District must fund 1:1 instruction using the principles of ABA until such time as the District locates an LBA and/or provider(s) that satisfy the state credential; and
  • • That the District provide Transportation to and from the above-mentioned programs/services, and any transportation costs.

Dated: April 15, 2022

NOTICE OF RIGHT TO APPEAL

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

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

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[1] Counsel for Parent has alleged and repeated that the District has engaged in “intentional and discriminatory acts” amounting to “bad faith and/or gross misjudgment”. There is a lack of proof regarding these allegations and I therefore dismiss the 504 claims in this footnote. 504 prohibits disability discrimination by any “program or activity” receiving federal funding.

[2] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

[3] § 300.148 Placement of children by parents when FAPE is at issue. (a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144. (b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520. (c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs. (d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section; (2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents. (e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and (2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if - (i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C))