NY IHO #196192: New York City... | Special Education Law

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CASE NUMBER: 539471 - NYC: 196192

FINDINGS OF FACT AND DECISION

Case Number: 196192

Student’s Name^[1]: REDACTED (“Student”)

Date of Birth: REDACTED

School District: NYC

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: 07/07/2020

Date(s) of Hearing: 12/06/2022, 12/08/2022

Actual Record Closed Date: 12/19/2022

Date of Decision: 12/30/2022

Date of Distribution if Different than Decision Date: N/A

Hearing Officer: Leah Martin, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/06/22

For the Student:

REDACTED (“Parent’s Counsel”), REDACTED (“Parent”)

For the Department of Education:

REDACTED (“DOE Representative”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/08/22

For the Student:

REDACTED (“Parent’s Counsel”), REDACTED (“Parent”)

For the Department of Education:

REDACTED (“DOE Representative”)

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on July 7, 2020. (Ex. C)^[2]. In the DPC,^[3] the Parent alleges that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973 (“504”) for the 2020-21 school year. (Ex. C). Parent further alleges systemic policies that unlawfully discriminated against the student under 504, among other claims. (Ex. C).^[4] The Parent has unilaterally placed the student in a private school (“Private School”) and was originally seeking funding for the student to attend the Private School and to receive an after-school program of Applied Behavior Analysis (“ABA”) with Board Certified Behavior Analyst (“BCBA”) supervision and related services for the 2020-21 extended school year (“ESY”).^[5] (Id.). Parent was further seeking reimbursement of out-of-pocket expenses, independent educational evaluations (“IEEs”) for assistive technology (“AT”) and a BCBA evaluation with autism screening, as well as compensatory education for any lack of services during the 2020-21 school year. (Id.).

I was appointed to hear the matter on October 19, 2022, following recusal by the previous IHO. On October 25, 2022, Parent’s Counsel appeared virtually for a status conference^[6] and hearing dates were set. Nineteen (19) status conferences had been held by the prior IHO, during which time extensions were granted for witness availability and settlement discussions. (See Tr. SC various dates).

Pendency was raised in this matter. (Ex. C-21-22). At a January 19, 2021 status conference, Parent’s Counsel had informed the prior IHO that pendency had been settled by agreement (See Tr. 1/19/21 SC), but stated at the due process hearing (“DPH”) that the DOE had unilaterally written a pendency agreement with an incorrect AT device listed and that the Parent had never signed it (Tr. 1-18).^[7] The parties agree on the substance of the pendency placement but disagree on the AT software and device that should be provided under pendency – the AT provision on the DOE form includes an iPad with Proloquo2Go software (Ex. W-2) and the Parent asserts that the correct software is “touch chat,” which they claim should be provided for the student’s Nova chat device (Ex. C-16; Tr. 1-18). Parent now seeks a clarification of the pendency program in the final decision. (Tr. 2-53).

A virtual hearing was held on December 6 and 8, 2022. It was a closed hearing. The Parent was present and represented by Parent’s Counsel. The DOE Representative was also present. At the DPH, the DOE entered twelve exhibits (Ex. 3-14),^[8] without objection, and called no witnesses. (Tr. 1-29-30). Parent entered into evidence 42 exhibits (A-PP) without objection. (Tr. 1-9-13). Parent’s Counsel objected to the “late notice” that the DOE was defending the provision of a FAPE, stating that the DOE had previously indicated on the record their intention to concede prong 1. (Tr. 1-23-24, 40). Their objection was overruled because the prior transcripts contain no such assertion by the DOE, they submitted the required Prior Written Notice (“PWN”), and their five-day disclosures were submitted the same day as Parent’s disclosures.^[9] Parent’s Counsel presented live testimony from Parent during the second day of hearing. (Tr. 2-9-32). Oral closing arguments were made on the record (Tr. 2-41-54), and Parent’s Counsel supplemented their arguments with case law in a series of three emails, which are now included in the record as IHO Exhibits i, ii, and iii. The record was closed on December 19, 2022.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq., and Section 504,^[10] 29 U.S.C. §794(a).

BACKGROUND

The student is currently redacted and classified with autism. (Ex. C-1). The student is registered with and receives some services from the Office of People with Developmental Disabilities (“OPWDD”). (Tr. 2-11). On June 8, 2020, the DOE convened a meeting of the committee on special education (“CSE”) and developed an individualized education program (“IEP”) for the student for the 2020-21 school year. (Ex. C-15-16). The 6/8/20 IEP offered the same REDACTED placement (“Public Placement”) that had been rejected the previous year.^[11] (Ex. C-19). On June 17, 2020, Parent sent the DOE a Ten-Day Notice of their intent to enroll the student in the Private School unless an appropriate program was offered by the DOE. (Ex. C-19; E). The DOE did not substantively respond to the Ten-Day Notice and the student was unilaterally placed at the Private School for the 2020-21 school year, where he has remained due to pendency. (Ex. C-19). There was a delay in implementation here, so the student has not received all the services to which he is entitled under pendency. (Tr. 2-19-20). During the pendency of this case, the student has been enrolled in the Private School and has also been receiving after-school ABA and related services through the Private School Provider (“Private School Provider”). (Ex. C-15; J; W; BB-1).

ISSUES

Parent contends that the DOE’s failure to timely and fully re-evaluate the student, develop an appropriate IEP, or offer an appropriate placement denied the student a FAPE (under the IDEA and 504) for the 2020-21 school year. (Ex. C). Parent additionally contends that the student’s placement at the Private School “does not constitute a removal from a public school setting” (Ex. C-21) so they should have no burden to prove its appropriateness (Tr. 2-46). In the alternative, Parent asserts that the student is entitled to compensatory services for any gaps in pendency, but at no time argued that the Private School is an appropriate unilateral placement. (Tr. 2-47). Finally, Parent contends that the DOE’s policy of not offering private school placements or 1:1 or ABA instruction constitutes an unlawful discriminatory policy and that the DOE’s repeated and intentional IDEA violations here constitute gross misconduct under 504. By way of relief, Parent seeks: (1) a correction of the student’s pendency program; (2) reimbursement of $500 for the student’s AT device; (3) a bank of 460 hours of ABA services as well as any missing hours of OT and SLT services to which the student was entitled under pendency. (Tr. 2-48).^[12]

FINDINGS OF FACT^[13]

This student has been enrolled at the Private School since he was REDACTED years old, and he will be REDACTED next year. (Tr. 2-10-11). The student has various global deficits. (Ex. C; Tr. 2-11-21, 29-30). For example, he struggles with verbal communication, he does not know how to choose weather-appropriate clothing, he will always need assistance to prepare and eat meals, he has trouble walking with a partner, and he has intense reactions to certain stimuli (dogs, loud noises) that can cause him to tantrum or to run into the street or stop in a dangerous location. (Tr. 2-15). The student does not handle changes well and transitions often cause him to tantrum. (Tr. 2-16). The student primarily communicates through an AT device that generates speech for him. (Tr. 2-11-12). His previous AT device was an iPad with the touch chat program, but it was upgraded to a “nova chat” device in 2020 because the iPad broke, and the DOE would not replace it. (Tr. 2-12, 17-18). The nova chat device was paid for by the Parent’s insurance, except for a $500 deductible for the device case which amplifies the sound and is necessary to the proper use of the device. (Tr. 2-17-18). Since the pandemic, the student has been having bathroom accidents on a weekly basis, which affect his ability to do Dayhab or supportive employment. (Tr. 2-19-20). According to his May 2021 FBA/BIP, the student exhibits disruptive behaviors that impede his learning or that of others and place the student or others at risk of harm or injury. (Ex. R-1). According to the BIP data, the student engages in disruptive repetitive behaviors an average of 32.7 times per day and disruptive stereotypy behaviors an average of 7.6 times per day. (R-4,6).

On June 8, 2020, the CSE met and drafted an IEP. (Ex. 3). The Parent was present at the meeting along with the Director of Education of the Private School (“Private School Director”). (Ex. 3-49-50). The meeting lasted 15-20 minutes and began with the district representative saying that the student would only be referred for a public-school placement. (Tr. 2-23-24). At the 6/8/20 meeting, the Parent and Private School Director both expressed that the student requires individual ABA instruction under BCBA supervision “due to his learning needs and rapidly changing behaviors” and that without this support, the student “can become aggressive and disruptive.” (Ex. 3-49). After the Parent and the Private School Director spoke about the Private School Progress Reports and recommendations, the DOE representative said they would email their recommendations then they abruptly hung up, ending the meeting. (Tr. 2-24). No potential placement offers, or IEP goals were discussed at the meeting. (Tr. 2-24). Only one person from the DOE spoke at the meeting. (Ex. C-16). The CSE refused to consider any after-school or home-based program for ABA and related services. (Ex. C-15).

The IEP program is inconsistent with the recommendations of the Parent and Private School Director made at the meeting. The IEP recommended an 8:1+1 special class placement in a District 75 school with occupational therapy (“OT”)(twice a week individually and twice in a group of two), speech-language therapy (“SLT”)( three times a week individually and twice in a group of two, parent counseling and training (one hour per month), with a full time behavioral paraprofessional and dynamic display speech generating device (“SGD”) on a twelve-month basis, but no ABA services. (Ex. 3-41-42). The IEP indicates that the student has difficulty generalizing what he learns in school in the home environment (Ex. 3-12) but contains no home-based services. The IEP notes that the student “presents with significant learning, communication, behavior and attention challenges that require intensive special education support.” (Ex. 3-15). The IEP notes that the student is functioning at a second-grade level in reading and math. (Ex. 3-47). The IEP contains numerous references to the student’s struggles with daily living skills. (Ex. 3-3-4, 6-8, 14). However, the IEP’s transition plan contained no acquisition of daily living skills or vocational training. (Ex. 3-43-44). The IEP also contained no remote learning plan, and no testing accommodations. (Ex. 3).

The only evaluative data used in the drafting of the IEP was the Private School “Classroom Progress Report (July 2019 – December 2019),” which was quoted extensively in the Present Levels of Performance and Individual Needs section of the IEP. (Ex. 3-1-15). The Prior Written Notice (“PWN”) for this IEP states that the IEP was based on consideration of the following evaluations: 7/18/18 Social History Update, 7/25/18 Psychoeducational, 7/18/18 Vocational Assessment, 6/5/20 Functional Behavioral Assessment (“FBA”), 6/5/20 OT Progress Report, 6/5/20 SLT Progress Report, and 6/5/20 Teacher Report. (Ex. 4-2). However, I do not credit that assertion, as it is directly contradicted by the face of the IEP (Ex. 3-1) as well as the Parent’s testimony (Tr. 2-24-25), which I find credible. Because I find that the Social History (Ex. 6), Psychoeducational (Ex. 7), and Vocational Assessment (Ex. 8) were not used in the development of the IEP, I decline to consider the contents thereof. Although not listed separately on the IEP, information from the Private School reports^[14], including the FBA (Ex. 13), OT Report (Ex. 10), SLT Report (Ex. 9), and Teacher/Educational Progress Report (Ex. 11), were all included in the IEP. (Ex. 3-1-15). The DOE Exhibits of the ABA Goals and Progress Report (Ex. 12) and the Interim FBA/BIP for Remote Instruction (Ex. 14) are not mentioned in the PWN or IEP, so I find that they were not considered by the CSE, and I decline to consider them for the purposes of the provision of a FAPE.

The goals in the IEP are based on the student’s Private School program (Ex. 9; 10; 11; 13) and are not consistent with the IEP program offer; for example, one pre-vocational goal relates to the school-based internship that the student had been attending at the Private School (Ex. 3-6) but that is not offered in the IEP (Ex. 3-25, 44). Similarly, multiple goals relate to the acquisition of daily living skills when no program for daily living skills is included in the transition plan. (Compare Ex. 3-26-27, 38 with 3-44). Additionally, one goal requires the use of sensory strategies and routines, but no sensory supports (other than a sensory diet) are included in the IEP’s management needs. (Compare Ex. 3-37 with 3-14). Furthermore, many of the goals include activities to be monitored in the home, but the IEP contains no home-based program. (Ex. 3). The Educational Program Report that was considered by the CSE contains the recommendation that the student continue his Private School program “within a small ABA classroom where he can receive 2:1 instruction throughout the day in order to acquire, maintain and generalize skills.” (Ex. 11-8). Although much of the content of this Report was included in the IEP, this recommendation was not followed in the IEP’s program mandate. (Ex. 3-41-42).

On June 17, 2020, the Parent sent the DOE a Ten-Day Notice, detailing their disagreement with the recommended program and indicating their intention to unilaterally place the student at the Private School and to seek a continuation of the after-school ABA, SLT, OT, AT, and transportation on a twelve-month basis unless the DOE offered an appropriate IEP and placement. (Ex. E). On June 18, 2020, the DOE sent Parent a school location letter offering the same Public Placement to implement the IEP (Ex. 5-1) as they had offered for the previous two school years (Ex. C-19). The DOE did not respond substantively to the Ten-Day Notice, other than a July 9 letter informing Parent that they must file a DPC (Ex. F-1). After receiving the school location letter, Parent attempted to get more information about the proposed Public Placement; she emailed for additional information and called several times but got no response from the DOE. (Tr. 2-27; C-19-20).

On July 8, 2020, the Parent signed an enrollment contract with the Private School, obligating them to pay $158,720 for the 2020-21 12-month school year if “Connors” funding is not paid by the DOE by May 31, 2021. (Ex. J).^[15] The Private School provides individualized instruction using the principles of ABA and incorporates SLT, OT, sensory integration, natural environment training and family support. (Ex. I-1). The student’s class at the Private School has eight students and one lead teacher along with seven additional instructors, for a total staff to student ratio of 1:1. (Tr. 2-10). The Private School offers a daily communication log with Parent regarding the student’s performance and activities, in addition to quarterly clinical team meetings, twice yearly home visits, and weekly classroom observations. (Ex. I-13).

The Private School progress reports contained in Parent Exhibits L-N, P, and FF relate to school years prior to the one at issue here, so I decline to consider them. Similarly, the Private School Classroom, OT, and SLT Goals contained in Parent’s Exhibits T-V, HH-KK, and MM-NN relate to the school years after the one at issue here, so I decline to consider them as well. Furthermore, the middle portion of Exhibits X (pages 6-9), Y (pages 6-10), and Z (pages 8-13), relate to the following school year and I decline to consider them. Even though the ABA Progress Reports contained in Parent’s Exhibits Q and GG relate to subsequent school years, since no ABA services were provided for the majority of the school year at issue, I do find them relevant.

Starting in March 2020, the Private School offered synchronous and asynchronous instruction for remote learning, including live video for classroom instruction, SLT, and OT. (Ex. K-1). Starting September 10, 2020, the student returned to in-person instruction full time. (Ex. X-1). His program at the Private School, starting in September 2020, consisted of 5 hours per day of 2:1 individualized instruction using ABA, an additional hour of 2:1 instruction for lunch and leisure skills, and daily small and large groups with 1:1 instruction and support. (Id. at 1, 10). The Private School also offers parent training. (Ex. I-14). The Private School provides the student with various prevocational training and transition services, including an internship in an office setting. (Tr. 2-18-19; Ex. X; Y; Z). The student also received SLT (3x30x1 plus one thirty-minute lunch consultation) and OT (2x30x1 plus one thirty-minute lunch consultation) in school, as well as one hour per week of “transdisciplinary instruction,” which is a collaboration between the SLT/OT providers and the classroom teacher. (Ex. X-1-2; Y-1-2, 11; Z-1-2, 14).

During his school OT sessions, the student worked on sensory processing and integration, self-regulation and time-management skills, gross, fine, and visual motor skills, social skills and safety in the community, clerical and vocational tasks, self-care and activities of daily living, visual perception skills, and computer navigation. (Ex. Y-2-5, 13-17). During his school SLT sessions, the student worked on receptive and expressive language, operational and strategic competency on his AT device, pragmatic language, and motor speech. (Ex. Z-2-6, 14-20). During the 2020-21 and 2021-22 school years, the student also received OT services one hour per week from a separate OT service provider (“OT Service Provider”). (Ex. S-1; LL-1). They worked with the student to address self-regulation, sensory integration, executive functioning, and fine motor skills and report progress but inconsistent carry-over between sessions. (Id.).

It is undisputed that the student showed progress at the Private School during the 2020-21 school year. (Ex. X). For example, the student mastered identifying story elements for 8 level K stories and answering questions about three level K books (from the Reading A-Z program), mastered completing four worksheets containing double-digit by single-digit multiplication problems, mastered completing two worksheets containing division equations, mastered inputting information from a receipt into a mock bank ledger with a vocal antecedent, mastered eight lessons in the Spelling Mastery curriculum, mastered textually responding to a 5-8-sentence story given textual antecedents, mastered responding to comprehension questions with textual prompting, mastered worksheets for seven health science topics, mastered selection-based responses to comprehension questions about articles related to current events, mastered identifying the correct word to correspond to verb tenses, mastered independently answering questions in a conversational context, mastered manding for help with his AT device, mastered using the phrase “I don’t know” with his AT device independently, mastered finding, copying, and pasting a picture from online into a Word document, mastered steps related to composing and sending an email with an attachment, mastered replacing a garbage bag, paper towel roll, and toilet paper roll in a bathroom dispenser, mastered using an electric razor, mastered skills relating to relationship concepts, mastered taking and sending a picture with his iPhone with a vocal antecedent, mastered independently completing video conferencing tasks like screen sharing, mastered imitating actions after watching an online how-to video, and mastered sharing his location using Google Maps. (Ex. X-2-4, 11-13).

The December 2020 and June 2021 Educational Progress Reports indicates the student’s continuing need for a small ABA classroom with 1:1 and small group instruction throughout the day. (Ex. X-5, 14).^[16] The Parent agrees that the student needs this level and type of support due to his autism and the complex needs he has related to his learning, behavior, and communication. (Tr. 2-29). The student tried a 6:1+1 program in preschool and did poorly in that setting. (Tr. 2-30). The December 2020 and June 2021 OT Progress Reports indicate the student’s continuing need for OT (twice per week individually, once per week in a group of two, and one weekly lunch consultation). (Ex. Y-5, 17).^[17] The December 2020 and June 2021 SLT Progress Reports indicate the student’s continuing need for SLT. (Ex. Z-7, 21).^[18]

There is no evidence in the record to dispute the Parent and the Private School’s opinions that the student requires an ABA program with 1:1 instruction in order to learn, due to his autism and his complex learning, behavioral, and communication needs. There is also no evidence to dispute the Private School Provider’s assertion that the student continues to need his current level of OT and SLT services, and the DOE has not contested these services. Finally, there is no evidence in the record to dispute the Private School Provider’s opinion that the student continues to require ten hours of ABA services in a 1:1 setting in addition to a full-time ABA-based school program.^[19] (Ex. Q-4; GG-4).

In a Findings of Fact and Decision (“FOFD”) dated 6/13/18 (case #166697), an IHO found that the DOE had failed to offer a FAPE for the 2017-18 school year (the DOE did not defend) and that a twelve-month program at the Private School is an appropriate unilateral placement. (Ex. B-6-8). That FOFD further found that the AT device (iPad with Prologuo2GO software), after-school services [10 hours per week of ABA therapy at an enhanced rate, two hours per week of BCBA supervision at an enhanced rate, and SLT (2x45x1 + 3x30x1) and OT (1x60x1 + 2x30x1) at enhanced rates if necessary], and special education transportation (air-conditioned mini-bus with limited travel time) for the twelve-month school year are appropriate for the student. (Ex. B-3, 9-11). The 6/13/18 FOFD was not appealed. (Ex. D-3).

In an FOFD dated 7/20/2019 (case #174250), an IHO found that the unappealed 6/13/18 FOFD contained the student’s pendency program, with the substitution of the “touch chat” software for the student’s iPad and iPhone, rather than Prologuo2Go on only the iPad. (Ex. D-3). No substantive ruling on the merits was made in the 7/20/19 FOFD, as the entire school year had been funded through pendency and the IHO found any remaining issues moot. (Id.). The 7/20/19 FOFD was not appealed. (Ex. O-3).

In an FOFD dated 12/19/20 (case #184048), an IHO determined that the program from the 6/13/18 FOFD, with the updated AT software and devices from the 7/20/19 FOFD, constitute the student’s pendency program. (Ex. O-3). The 12/19/20 FOFD further found that the DOE had failed to offer a FAPE^[20] for the 2019/20 ESY and that the Private School is an appropriate unilateral placement. (Ex. O-7). Finally, the 12/19/20 FOFD also found that the student’s home-based program of 9 hours per week of ABA services, along with the “touch chat” AT software, is appropriate. (Ex. O-9, 11). The 12/19/20 FOFD was not appealed. (Ex. W-1).

During the pendency of this case, the DOE unilaterally executed a pendency “agreement” form, stating that the pendency placement lies in the 12/19/20 unappealed FOFD and consists of: tuition at the Private School for the ESY, home-based ABA services (10 hours per week for the ESY at an enhanced rate), SLT (2x45x1 + 3x30x1 home-based for ESY), OT (1x60x1 + 2x30x1 home-based for ESY), AT (iPad with Proloquo2GO), and special education transportation (air-conditioned mini-bus with limited travel time). (Ex. W-1-2). However, those services described in the pendency agreement form do not match those granted on the merits in the 12/19/20 FOFD that it purports to reference. (Compare Ex. O-9, 11 with W-1-2). Subsequent to the issuance of the form, Parent’s counsel informed the DOE by email that they agreed with everything in the form except the AT portion, which should have included the Touch Chat program, instead of Prologuo2Go, for the student’s iPad and iPhone. (Ex. AA; EE-5). The DOE response was that, once purchased, the AT portion of the prior FOFDs do not create an ongoing obligation under pendency, but instead that they created only a one-time obligation. (Ex. EE-5-6).

The student has not received all the services to which he is entitled under pendency. (Tr. 2-31, 28, 39). Additionally, it appears that not all the pendency services that were provided have been paid by the DOE. (Ex. G; H; EE-7). There was a delay in implementation, so it appears that the student received no ABA services for the 2020-21 school year until April 20, 2021. (Tr. 2-39; Ex. G). Even then, DOE’s delinquent payments led to the Private School and Private School Provider threatening to terminate the student’s enrollment, and the student’s ABA services were discontinued for a time. (Ex. C-15; CC; DD). The unpaid ABA invoices in evidence are outdated (G-4, 8, 12; H-5-6, 10, 13, 17, 21, 25, 29, 33, 36, 37, 40, 42, 45), so it is not clear exactly how many are still unpaid at the time of this decision. It is also unclear exactly how many hours of services are still owed under pendency that were never provided. The Parent testified that no after-school OT or SLT services were provided in the beginning months of the 2021-22 and 2022-23 school years (Tr. 2-31), but there are no documents in evidence that show exactly how many sessions were missed. Parent’s Counsel argued that the student should receive a bank of 460 hours of ABA therapy that was missed for the 2020-21 ESY, but invoices in evidence (Ex. G) show that at least 40.5 of those hours were already provided.

LEGAL FRAMEWORK

IDEA

The IDEA provides that children with disabilities are entitled to a 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). 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, 137 S.Ct. 988, 999 (2017). A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.” Id. The IEP must be reviewed at least annually [34 C.F.R. §300.324(b)(1)(i)], and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year [8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010)]. To avoid predetermining an IEP, the District must come to the meeting with an “open mind.” T.P. ex rel S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009).

For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dept. of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).

The IDEA requires that school districts re-evaluate students with disabilities at least once every three years, unless the parent and the district agree that re-evaluation is unnecessary. 34 C.F.R. §300.303(b). Additionally, a district must honor a parent’s request for re-evaluation if one has not occurred within the previous 12 months. M.S. v. Lake Elsinore Unified School District, 69 IDELR 148 (9th Cir. 2017). As part of any re-evaluation, the CSE must review existing evaluative data on the student, including any private evaluations, classroom observations, and observations by teachers and service providers, and then conduct further assessments if necessary. 34 C.F.R. §300.305. The failure to conduct further assessments can result in a denial of a FAPE if more information is needed to develop an appropriate IEP. See, e.g., New Mexico Pub. Educ. Dep’t, 115 LRP 12278 (SEA NM 03/02/15); James v. Dist. of Columbia, 68 IDELR 11 (D.D.C. 2016). Additional circumstances that warrant a re-evaluation include a substantial change in the student’s academic performance,^[21] a change in placement (particularly to a more restrictive environment),^[22] a significant escalation in the student’s behavior,^[23] and situations where the student’s behavior is impeding learning and the cause is unclear.^[24]

Pendency The IDEA and the New York State Education Law require that a student remain in the student’s then-current educational placement, unless the student’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation, or placement of the student.^[25] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships.^[26]

Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement.^[27] Although not defined by statute, the phrase “then current placement” has been found to mean either:

(1) the placement described in the student’s most recently implemented Individualized Education Program (“IEP”);

(2) the operative placement actually functioning at the time when the due process proceeding was commenced; or

(3) the placement at the time of the previously implemented IEP.^[28]

Courts have generally agreed that a student’s “then-current educational placement” refers to a student’s last-agreed-upon educational program (and services) before the parent requested the due process hearing.^[29]

The Second Circuit has stated that educational placement means “the general type of educational program in which the child is placed”^[30] and that “the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers.” ^[31] However, if there is an agreement between the parties on the student’s educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student’s then-current educational placement.^[32] The regulations provide that an SRO decision that “agrees with the parents that a change of placement is appropriate... must be treated as such an agreement.”^[33] Similarly, an agreement is implied by law where an unappealed FOFD from an IHO finds that a unilateral placement is appropriate.^[34]

504

Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].” 34 C.F.R. §104.33(a). Under 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.” 34 C.F.R. §104.33(b).

Under Section 504, an individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such impairment, or (iii) is regarded as having an impairment.” 34 C.F.R. §104.3(j)(1). However, only students who have a substantial limitation of a major life activity have a separate entitlement to a FAPE under the statute. 29 U.S.C. §705(20)(B)(i); 42 U.S.C. § 12102(2). Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others. See 28 C.F.R. §35.108(c)(1)(ii). In examining whether a district has failed to provide a FAPE under 504, the office of civil rights (“OCR”) considers whether: 1) the district evaluated the student per 504 requirements; 2) the student's needs were determined on an individual basis; and 3) the district provided related aids and services necessary to meet the student's individual needs. Mansfield (AR) Pub. Schs., 59 IDELR 265 (OCR 2012). Section 504 requires that districts re-evaluate a student periodically and before any significant change in placement. 34 C.F.R. § 104.35(a) and (d).

Burdens In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking tuition reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c). Parents have the burden of proof for all 504 claims that are not subsumed by the IDEA. See, e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990).

Relief

A board of education may be required to pay for educational services obtained unilaterally by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions (prongs) constitute the Burlington/Carter test.

A unilateral placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)(“[Parents] 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.”). Educational progress can be a factor weighing in favor of the appropriateness of a unilateral placement. Frank G., 459 F.3d at 365. To qualify for reimbursement under the IDEA, parents need not show that the unilateral placement is perfect or that it meets all state educational standards. Id. at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).

Under Burlington/Carter, if the parents are financially obligated to pay for the contracted services and have met their prong two burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced. See Florence Co. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993) (“Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”); J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009). In making that equitable determination, a hearing officer may consider many factors, including whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

ANALYSIS AND CONCLUSIONS OF LAW

Prong 1

There is no dispute about the student’s eligibility for a special education program and services under both the IDEA and 504 here. (Tr. 1-45). I have reviewed the Parent’s Section 504 claims articulated in the DPC and find that those regarding the provision of a FAPE mirror and have merged with those allegations as made under the IDEA. Accordingly, the analysis as to the provision of a FAPE need not be evaluated separately. The DOE has the burdens of production and persuasion as to the provision of a FAPE. All 504 claims regarding discriminatory policies are not subsumed by the IDEA and will be evaluated separately. The Parent has the burdens of production and persuasion on those claims.

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at the hearing. The DOE presented no witnesses to dispute the Parent’s claims, nor did they make any substantive arguments in their opening statements. (Tr. 1-31). When I inquired whether there were any particular documents they wanted to direct my attention to that show the provision of a FAPE, the DOE Representative said there were not. (Tr. 1-31). The DOE did not contest the Parent’s allegation that the IEP was based on insufficient evaluative data, and I credit this undisputed claim. A re-evaluation should have been conducted before such a significant change in program but wasn’t. No evaluations were considered by the CSE or discussed at the IEP meeting. It is also undisputed that, at the time the IEP was drafted, the student (who is now twenty) was performing at a second grade level in reading and math. While all the required CSE members may technically have been present, the fact that only one person from the DOE spoke at the meeting and that no placements or goals were discussed deprived the Parent of necessary information and impeded their participation in the IEP process. This deprivation was furthered by the DOE’s failure to respond to the Parent’s questions about the proposed school location, effectively denying them participation in the placement process. I find the facts that the meeting was opened with a declaration that there would be a public school placement and that there was no discussion of placements or goals at the CSE meeting lead to the inevitable conclusion that IEP was impermissibly predetermined. Since the DOE chose not to present any witnesses to defend its case, there is no evidence to the contrary.

The DOE argued in summation that a FAPE was offered because the CSE considered the Private School Progress Reports that had been provided by the Parent and incorporated them into the IEP. However, it is clear from the face of the IEP that, although it contains much of the content of the reports in the present levels of performance and goals, the ultimate program recommendation is inconsistent with not only the Reports but also the input from the Private School Director and Parent who were present at the meeting. The IEP does not contain the required remote learning plan, behavioral intervention plan, transition program (with acquisition of daily living skills and vocational training), testing accommodations, or individual instruction, sensory supports, or ABA services that the student needs to obtain educational benefit. While, generally, an IEP need not specify a particular methodology, here the DOE was provided with sufficient evidence of the student’s need for ABA or similar services and failed to meaningfully consider such need. “[W]hen the reports and evaluative materials present at the CSE meeting yield a clear consensus; an IEP formulated for the child that fails to provide services consistent with that consensus is not ‘reasonably calculated to enable the child to receive educational benefits.’” A.M. v. New York City Dept. of Educ., 845 F.3d 523, 543 (2d Cir. 2017) citing R.E. v. New York City Dept. of Educ., 694 F.3d 167 (2d Cir. 2012) and C.F. v. New York City Dept. of Educ., 746 F.3d 68 (2d Cir. 2014). Here, there is a consensus in the record among those involved in the student’s education that he requires ABA services and at least 2:1 instruction in order to learn. Moreover, the DOE presented no cogent or responsive explanation for rejecting this consensus, or indeed for any of the decisions made in the IEP. For all these reasons, I find that the DOE failed to offer the Student a FAPE for the 2020-21 school year.

Although unnecessary to my decision, I do find evidence in the record to establish gross misjudgment under 504. The student was not evaluated prior to a change in placement, as required by 504. It is difficult to understand how the DOE could reasonably believe that it was appropriate to offer the same Public Placement that had previously been offered and rejected the two prior years, a program which they had conceded (in prior due process hearings) did not offer a FAPE. Furthermore, since the IEP was predetermined and clearly omitted services that there is a consensus that the student needs, and the DOE offered no explanation or witnesses to defend the CSE’s decisions, it is clear that the student’s needs were not determined on an individual basis and that the DOE failed to provide the related aids and services necessary to meet the student’s needs. This is especially true given that the student has attended the Private School for the last fourteen years and that no one at the CSE meeting, other than the Parent and Private School personnel, had any familiarity with the student. Essentially, the CSE went against the only informed opinions regarding the student’s needs without any factual basis for the deviation. Moreover, there is no dispute that the student was denied ABA pendency services for nearly the entire 2020-21 school year and missed SLT and OT as well, a failure for which the DOE has offered no explanation. Especially considering the student’s significant deficits and the fact that he is nearing the end of his eligibility for services, the deprivation of services for this significant period of time rises to the level of at least gross misjudgment, if not reckless indifference. See, e.g., R.B. ex rel. L.B. v. Board of Educ., 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000)(finding failure to timely develop or implement IEP sufficient to plead bad faith or gross misjudgment under 504). Accordingly, the student was denied a FAPE under the IDEA and 504 for the relevant school year.

Prong 2

Although the Parent argued that they have no prong 2 burden, they provided no legal support for this contention, and I disagree. However, I find on the record before me that the Private School offered an educational program which meets the student’s need under Prong II of the Burlington/Carter standard. Here, the weight of the evidence establishes that the student’s individual special education needs are addressed by the Private School and that the instruction offered is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. The DOE has not challenged the appropriateness of the unilateral placement or the qualifications of the Private School or its Providers. Moreover, I find that the Parent’s testimony was credible that the student needs the program and supports provided by the Private School. Although Parent offered no testimony from Private School personnel, there is sufficient documentary evidence in the record to show that they provide instruction designed to meet the student’s individual needs and that he has made progress in that program. He is receiving the individual, ABA instruction that he needs, along with the necessary related services. Furthermore, the DOE relied on the reports from the Private School in drafting the IEP, without conducting any testing or evaluations of its own, which indicates the DOE’s believe that the Private School providers are appropriately qualified and that there is no reason to doubt the information contained in those reports. For all these reasons, I find that Parent has met their prong 2 burden.

Prong 3 The equities here favor the Parent. Parent has been fully cooperative with the DOE. They participated in the CSE meeting, as did the Private School Director. Additionally, the Parent provided the necessary Ten-Day Notice of their concerns with the DOE’s failure to offer a FAPE for the 2020-21 school year. Furthermore, the DOE has made no allegations of any actions on the part of the Parent that would weigh against them in terms of the equities. Nor has the DOE alleged that the Private School tuition is excessive or that the Parent is not financially obligated to pay. Moreover, the record contains evidence of the Parent’s financial obligation. Accordingly, the equities favor the Parent and there is no basis in the record for any reduction of the awarded relief based on equitable considerations.

Although it appears that the tuition has already been paid in pendency, the issue is not moot because it is capable of repetition yet evading review. See Spencer v. Kemna, 523 U.S. 1, 17 (1998). Thus, equity demands that the DOE fund the student’s Private School tuition for the 2020-21 ESY in this instance.

• discrimination claims “[S]omething more than a mere violation of the IDEA is necessary in order to show a violation of Section 504 in the context of educating children with disabilities, i.e., a plaintiff must show that a school district acted with bad faith or gross misjudgment.” Y.D. v. New York City Dep’t of Educ., No. 14C1137-LTS, 2016 WL 698139, at *6 (S.D.N.Y. Feb. 19, 2016); see also VW v. N.Y.C. Dep’t of Educ., 2022 U.S. Dist. LEXIS 147630, at *21 (S.D.N.Y. Aug. 17, 2022) [citing C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 841 (2d Cir. 2014) (citations omitted)]; S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007). In P.C. v. McLaughlin, the Second Circuit noted that Section 504 assures that handicapped individuals receive “even-handed treatment” in relation to non-handicapped individuals, not as compared with the needs of other handicapped individuals, and that plaintiff’s disability could not form the basis of a denial of services available to non-handicapped individuals. 913 F.2d 1033, 1041–42 (2d Cir.1990).

Here, there is insufficient evidence in the record for me to determine that the student’s disability formed the basis of a denial of services available to non-handicapped individuals. Although the Parent alleges a discriminatory DOE policy, whereby no 1:1 or ABA services are offered for autistic students in an IEP, Parent has not met their burden of proving this claim. The only testimony in the record regarding such a policy is the Parent’s claim that at every CSE meeting she is told that the DOE does not offer ABA services, and the student’s history of successfully challenging his IEPs. However, generally, an IEP is not required to specify a particular methodology, so the DOE’s failure to include one in the IEP does not necessarily prove an underlying discriminatory practice. This record contains no testimony or documentation from the DOE showing the existence of such a policy. While it may be true that such a policy exists, more of a factual record would be needed to make such a showing here. Since the Parent declined to present any other witnesses or evidence on this issue, I find that they have not met their burden on this claim.

Pendency The student’s pendency program at the time this DPC was filed consisted of a combination of the program from the unappealed 6/13/18 FOFD (case #166697) with the updated AT device found appropriate in the unappealed 7/20/19 FOFD (case #174250). Since those decisions were not appealed, they became the student’s agreed-upon program by operation of law. Accordingly, from the DPC filing date of July 7 until December 19, 2020 (the retroactive start date of the January 13, 2021 pendency agreement), the student’s pendency program included: tuition at the Private School, after-school services [10 hours per week of ABA therapy at an enhanced rate, two hours per week of BCBA supervision at an enhanced rate, and SLT (2x45x1 + 3x30x1) and OT (1x60x1 + 2x30x1) at enhanced rates if necessary], and special education transportation (air-conditioned mini-bus with limited travel time), all for the 12-month school year (Ex. B-3, 9-11), as well as an AT provision for an iPad and iPhone with the “touch chat” software (Ex. D-3). The reason the bulk of the pendency program is found in the 6/13/18 FOFD rather than the 7/20/19 FOFD is because the latter made no substantive determination on the merits, other than regarding the appropriate AT provision.

As of December 19, 2020, the student’s pendency program changed by agreement of the parties. Although the Pendency Agreement (Ex. W) is dated January 13, 2021, it indicates on its face that its effect is retroactive to 12/19/20.^[35] Although it is not signed by Parent, their agreement with the substance of the Pendency Agreement, other than the AT provision, was expressed to the DOE in writing. (Ex. AA; EE-5). As there has been an agreement between the parties on the student’s educational placement (on everything except AT) during the due process proceedings, I find that it supersedes the prior program as the student’s then-current educational placement. The only differences between the new agreement and the former program are the elimination of 2 hours per week of BCBA supervision at an enhanced rate and the change in AT device. Since the Parent has agreed to all the non-AT provisions of the Pendency Agreement, I find that the student’s pendency placement as of 12/19/20 does not include the 2 hours per week of BCBA supervision. Furthermore, since both parties did not agree to the change in AT, I find that the AT provision from the previous pendency program (an iPad and iPhone with “touch chat” software) is still the applicable provision for pendency purposes. According, as of December 19, 2020, the student’s pendency program includes: tuition at the Private School, after-school services [10 hours per week of ABA therapy, SLT (2x45x1 + 3x30x1), and OT (1x60x1 + 2x30x1), all at enhanced rates], and special education transportation (air-conditioned mini-bus with limited travel time), all for the 12-month school year (Ex. W), as well as an AT provision for an iPad and iPhone with the “touch chat” software (Ex. D-3).

Remedies

Although the DPC contained additional requests, at the hearing, the only remedies requested were a clarification on pendency, the $500 AT reimbursement, a bank of 460 compensatory hours of ABA therapy, and for the DOE to calculate and provide the number of hours of OT and SLT owed under pendency.^[36] The DOE has not disputed the Parent’s claims regarding the need for compensatory services to make up for the gaps in pendency. Nor have they argued that reimbursement for the $500 AT device case is inappropriate. There is sufficient evidence in the record to support these claims. The student was entitled to pendency services from the filing date of July 7, 2020, to the date of this decision, as described above. Any services that were not provided during that time should be provided as a bank of hours. Since the equities favor the Parent, and continuity of service is in the student’s best interest, these services shall be provided by a provider of the Parent’s choosing. The ABA services shall be provided at an enhanced rate, and the OT and SLT shall be funded through related service authorizations, if the Parent’s chosen provider accepts them, or at an enhanced rate, if not. Since it is unclear from the record exactly how many ABA, OT, and SLT sessions are owed, the DOE must review service records and provide a bank of any missing services from 7/7/20 to the date of this order.

I also find that the sound-amplifying case is necessary for the student’s effective use of his AT device. Although the device he currently uses is not the same as that contained in his pendency program, the record shows that the student’s recommended AT device (iPad) broke and was not replaced, as required, by the DOE. It was because of the DOE’s failure that the Parent obtained the new device. Accordingly, the Parent should be reimbursed for the $500 portion that was not paid by insurance. However, at the time of hearing the Parent was unable to produce a receipt. Parent will have to provide proof of payment to the DOE prior to any reimbursement, either in the form of a receipt or credit card statement, or, in the alternative, a sworn, notarized affidavit can be provided by Parent attesting to the amount of payment, to whom payment was made, and what the payment was for.

I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED THAT:

• Parent’s claim for tuition reimbursement for the student's unilateral placement at the Private School is GRANTED for the 2020-21 12-month school year as follows: The New York City Department of Education shall reimburse the Parent for any amount paid to the Private School for the 2020-21 extended school year within thirty (30) days of submission of proof of payment (less any amount paid in pendency); it is further
• ORDERED that, within thirty (30) days of receipt of this Order, the New York City Department of Education shall review service records and determine how many hours of compensatory ABA, BCBA, SLT, and OT services the student is entitled to that were not already provided under pendency in this case. Each missed session will be provided as a bank of compensatory education services and must be used within two years of the date of this Order. From the DPC filing date of July 7 until December 19, 2020, the student’s pendency services included: 10 hours per week of ABA therapy at an enhanced rate, two hours per week of BCBA supervision at an enhanced rate, and SLT (2x45x1 + 3x30x1) and OT (1x60x1 + 2x30x1) at enhanced rates, if necessary, all for the 12-month school year. Starting on December 19, 2020, until the date of this decision, the student’s pendency services included: 10 hours per week of ABA therapy, SLT (2x45x1 + 3x30x1), and OT (1x60x1 + 2x30x1), all at enhanced rates for the 12-month school year; it is further
• ORDERED that the DOE shall fund any un-funded pendency services received by the student, including tuition at the Private School and any ABA, OT, or SLT services within thirty (30) days of receipt of this Order; and it is further
• ORDERED that the DOE shall reimburse the Parent (up to $500) for her out-of-pocket expenses for the student’s nova chat device and case, within thirty (30) days of receipt of proof of payment, either in the form of a receipt or credit card statement, or, in the alternative, a sworn, notarized affidavit can be provided by Parent attesting to the amount of payment, to whom payment was made, and what the payment was for.

SO ORDERED.

DATED: December 30, 2022 Leah Martin, Esq. (Signed Electronically)_ 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 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.

APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD

DOE’S EXHIBITS

Exhibit

Document

Date

Pages

Individualized Education Program

06/08/20

Prior Written Notice

06/18/20

School Location Letter

06/18/20

Social History Update

07/18/18

Psychoeducational Evaluation Report

07/18/18

Level I Parent Vocational

07/18/18

Private School Speech and Language Progress Report

12/2019

10.

Private School Occupational Therapy Progress Report

12/2019

11.

Private School Teacher/Educational Progress Report

12/2019

12.

ABA Goals and Progress Report 2019-20

12/2019

13.

Private School Functional Behavior Assessment and Behavior Intervention Plan

01/2020

14.

Interim FBA/BIP for Remote Instruction

04/2020

PARENT EXHIBITS

Exhibit

Document

Date

Pages

Impartial Hearing Request

6/30/19

FOFD in Case # 166697

6/13/18

Corrected Impartial Hearing Request

6/30/20

FOFD in Case # 174250

7/20/19

Ten Day Notice

6/17/20

Determination Report

7/9/20

ABA Invoices 2021

Various 2021

ABA Invoices 2021-22

Various 21-22

Private School Parent Handbook

2020-21

Private School Enrollment Contract

7/8/20

Private School Letter Regarding Remote Learning

3/16/20

Private School Educational Progress Report

6/2020

Private School Occupational Therapy Progress Report

6/2020

Private School Speech and Language Progress Report

6/2020

FOFD in Case # 184048

12/19/20

Private School ABA Goals and Progress Report

2019-20

Private School ABA Progress Report

12/2021

Private School FBA & BIP

05/2021

OT Service Provider Occupational Therapy Report

05/12/21

Classroom Goals 2021-22

2021-22

OT Goals 2021-22

2021-22

Speech Language Goals 2021-22

2021-22

Pendency Agreement

01/13/21

Private School Educational Progress Report 2020-21

2020-21

Private School OT Progress Report 2020-21

2020-21

Private School SLT Progress Report 2020-21

2020-21

AA.

Email Correspondence Regarding Pendency Agreement

3/18/21, 6/17/21

BB.

Private School Pendency Contract

7/20/21

CC.

Emails Regarding Private School Termination and Payment

9/17/20

DD.

Private School Email Regarding Funding Issues

5/15/20

EE.

Emails b/n Parent’s Counsel and DOE Counsel Re Pendency Implementation

Various 2020

FF.

Private School ABA Goals and Progress Report 2018-20

2018-20

GG.

Private School December 2021 ABA Progress Report

12/2021

HH.

Private School 2021-22 Speech Goals

2021-22

II.

Private School 2022-23 Speech Goals

2022-23

JJ.

Private School 2021-22 Classroom Goals

2021-22

KK.

Private School 2022-23 Classroom Goals

2022-23

LL.

OT Service Provider Occupational Therapy Report

5/28/22

MM.

OT Goals 2021-22

2021-22

NN.

OT Goals 2022-23

2022-23

OO.

DOE Continuum of Special Education Services

Summer 2020

PP.

D 75 Continuum of Special Education Services undated

IHO’S EXHIBITS

Exhibit

Document

Date

Pages i.

Parent Case Law Email 1

12/7/22

2 ii.

Parent Case Law Email 2

12/7/22

2 iii.

Parent Case Law Email 3

12/7/22

Footnotes

[1] Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parent’s Exhibits, numbered designations for DOE’s Exhibits, and roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent’s Exhibit A, page 1, will be referred to as (Ex. A-1).

[3] The record contains a DPC (Ex. A) and a corrected DPC (Ex. C), which fixed the incorrect date of June 30, 2019, to June 30, 2020.

[4] The DPC contains allegations of violations of 42 U.S.C. §1983, but since I have no authority to adjudicate those claims, they will not be discussed further herein.

[5] Now that the operative school year is over, the Private School tuition has been paid in pendency, but the requested ABA and related services were not fully provided so they remain at issue.

[6] The DOE had notice of the conference and received the meeting link but failed to appear.

[7] The hearing transcript will be referred to as “Tr.” followed by the day of hearing (1-2), then the page number within the transcript. For example, page two of the transcript from day one of hearing would be cited as (Tr. 1-2).

[8] Proposed exhibits 1 and 2 were not admitted, as they were duplicates of Parent’s Exhibits A and E. Parent’s exhibits had already been entered into evidence when the DOE Representative appeared for the hearing, nearly an hour late. A more detailed list of the admitted exhibits is attached as Appendix A, “Documentation Entered into the Record,” to this decision.

[9] Both parties’ disclosures were submitted one day late but neither party objected to the other party’s exhibits on that basis.

[10] The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504. NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf.

[11] Parent initiated due process proceedings regarding the same program offer the previous school year; at that DPH, the DOE conceded a denial of a FAPE for the 2019-20 school year. (Ex. O-7).

[12] Although the DPC included several additional requested remedies, only these three were requested at the hearing.

[13] Facts contained in the Background section above are incorporated here as well.

[14] Although the PWN lists the dates of all these reports as 6/5/20, the reports themselves do not contain that date- the dates covered in the reports are July 2019 – December 2019, and the date listed in the Exhibit List (Appendix A) is December, 2019. (Ex. 4; 9; 10; 11; 13). Presumably, the DOE has dated them 6/5/20 in the PWN because that was the date of receipt.

[15] It is unclear what portion of the total tuition has been paid in pendency and what, if any, portion was either paid directly by the Parent or is still owed.

[16] This recommendation is made by the student’s lead teacher and classroom supervisor, both of whom have master’s degrees and are BCBAs and licensed behavioral analysts (“LBA”). (Ex. X-5, 14).

[17] This recommendation is made by a NY State licensed occupational therapist. (Ex. Y-5, 17).

[18] This recommendation is made by a NY State licensed speech and language pathologist. (Ex. Z-7, 21).

[19] This recommendation is made by one of the student’s ABA providers, who has a master’s degree in education and is a BCBA and New York licensed LBA.

[20] Neither the 6/13/18 nor the 12/19/20 FOFDs in evidence discuss what specific program was offered by the DOE that failed to provide a FAPE because the DOE did not contest either case.

[21] See Corona-Norco Unified Sch. Dist., 22 IDELR 469 (SEA CA 1995); Reserve Indep. Schs., 112 LRP 6241 (SEA NM 01/30/12); and Board of Educ. of City of White Plains, 20 IDELR 1475 (SEA NY 1994).

[22] See Board of Educ. of City of White Plains, 20 IDELR 1475 (SEA NY 1994); and Brimmer v. Traverse City Area Pub. Sch., 22 IDELR 5 (W.D. Mich. 1994).

[23] See West-Linn Wilsonville School District v. Student, 63 IDELR 251 (D. Ore. 2014); and San Marino Unified Sch. Dist., 71 IDELR 138 (SEA CA 2017).

[24] See, e.g., District of Columbia Public Schools, 75 IDELR 176 (SEA 2019) (holding that the district should have conducted an FBA where the student was frequently off task, avoided work and class, and called out and joked around during instruction but several years of school counseling wasn't helping to reduce or identify the cause of the behavior).

[25] U.S.C. § 1415[j]; Educ. Law §§ 4404[4], 4410[7][c]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see, Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. Jan. 18, 2005]; Application of a Student with a Disability, Appeal No. 14-024; Application of the Dep't of Educ., Appeal No. 08-061).

[26] Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; see, Wagner v. Bd. of Educ., 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996].

[27] Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D., 694 F.2d at 906.

[28] Dervishi v. Stamford Bd. of Educ., 653 Fed. Appx 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014][holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987].

[29] See Dervishi, 653 Fed. Appx. at 57-58; Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71.

[30] Concerned Parents, 629 F.2d at 753, 756.

[31] T.M., 752 F.3d at 171.

[32] Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007].

[33] See 34 C.F.R. § 300.514(a) and (c); Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d Cir. 2004)

[34] See Bd. of Educ. v. Schutz, 290 F.3d 476,103 LRP 37743 (2d Cir. 2002); Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 52 IDELR 1 (9th Cir. 2009); St. Tammany Parish Sch. Bd. v. State of Louisiana, 142 F.3d 776, 28 IDELR 194 (5th Cir. 1998); Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 24 IDELR 839 (3d Cir. 1996).

[35] As discussed above, although the face of the agreement references the 12/19/20 FOFD (case # 184048), I find that its terms contradict the findings of that decision. Accordingly, I find the explicit terms contained in the agreement to be binding.

[36] Presumably, due to the significant time this case has been pending, the additional remedies requested in the DPC have either already been received or are no longer applicable.

New York City Department of Education, Impartial Hearing Decision

JURISDICTION

BACKGROUND

ISSUES

FINDINGS OF FACT[13]

Relief

Remedies

ORDER

FINDINGS OF FACT^[13]