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Special Education Law
DECISIONParent PrevailedIHO Case No. 210073

New York City Department of Education, Impartial Hearing Decision

May 31, 2022·Marcel P. Denis·05

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

CASE NUMBER: 553971 - NYC: 210073

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

District: 05

Hearing Requested by: REDACTED

Record Close Date: MAY 15, 2022

Hearing Officer: Marcel P. Denis, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 30, 2022

For the Student:

REDACTED, Attorney

REDACTED, Parent

REDACTED, BCBA, LBA, REDACTED

REDACTED, REDACTED New York

For the Department of Education:

REDACTED, District Representative

INTRODUCTION On July 2, 2021, the parent (the “Parent”) of REDACTED (the “Student”) filed a due process complaint under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”) alleging denial of FAPE for the 2020-2021 and 2021-2022 school years ( ). While awaiting appointment of an Impartial Hearing Officer, the Parent filed a second DPC on September 28, 2021, alleging again a denial of FAPE for the year 2021-2022 (case no. 218388). I was appointed as impartial hearing officer (“IHO”) on December 17, 2021. The first Pre-conference hearing was held on January 4, 2022. The Parent’s counsel appeared but the DOE sent no representative, despite efforts made by Parent’s counsel to reach out to the DOE to remind them of the scheduled hearing (January 4, 2022 Tr. 2). After waiting for the DOE for approximately fifteen minutes, the hearing commenced without the DOE (January 4, 2022 Tr. 2). At the January 4, 2022 hearing, counsel for the Parent moved to consolidate and case no. 218388. Pendency was not an issue as the parties entered into a pendency agreement on their own accord, although implementation was yet to take place (January 4, 2022 Tr. 3). On January 4, 2022, counsel for the Parent moved to consolidate the two cases. On January 5, 2022, both parties appeared, and the DOE, represented by REDACTED objected to Parent’s counsel motion to consolidate only because her case was assigned the lower number (January 5, 2002 Tr. 15). The DOE was afforded 5 business days to submit a response to Parent’s written motion to consolidate and the Parent was afforded 3 business days to reply (January 5, 2022 Tr. 21-22). The DOE never submitted a response (January 28, 2022 Tr. 32). Therefore, Parent’s motion to consolidate was granted (IHO. Ex. II-Consolidation Order dated January 24, 2022). At the January 28, 2022 hearing, the parties stated that there was no possibility to settle the matter amicably (January 28, 2022 Tr. 32-33). The parties requested a hearing date in March 2022 and the DOE declared that it would not put on a case (January 28, 2022 Tr. 33). Granting the parties’ request, the matter was scheduled for a substantive hearing on March 30, 2022. Since the present matter pertains to the 2020-2021 and 2021-2022 school years, a recapitulation of facts relating to previous years is deemed unnecessary.

Lists of the documentary evidence submitted are appended to this Order. The compliance date for issuing a decision in this proceeding has been extended (IHO Ex. I).

BACKGROUND AND POSITIONS OF THE PARTIES

REDACTED is a REDACTED-year-old REDACTED student who was diagnosed with Autism as early as in January 2018 (P-Ex. A). As a result of the Student’s classification, the DOE recommended ABA services at home and center-based (P. Ex. A). The Parent asserted that the CSE convened a meeting on May 28, 2020 “to develop a Turning Five IEP for the purpose of transitioning the Student from the CPSE to the CSE in 2020-2021 (P. Ex. A). According to the Parent, the Student was admitted into “AIMS” (“Acquisition, Integrated Services, Meaningful Communication, and Social Skills”), a program described by the DOE as an ABA-based program with individualized instruction designed to meet Students like Alex’s needs, which turned out to be untrue (P. Ex. A). As per the Parent, “the DOE was unable to [provide the Student with an] individualized IEP for AIMS, as all of the children’s IEPs in AIMS [received the same 6:1:1 classes together with related services, with] BCBA services, the frequency, group size and amount [being] left blank” (P. Ex. A). Parent asserted further that the entitlements recommended by the 2020 IEP (6:1:1 classroom in District 75 for 26 periods per week, OT, and PT 2x30 on a 1:1 basis, speech services 5 times per week for 30 minutes, 1:1, speech therapy 1x30, group of 2, ‘picture communication’ on a ‘daily’ basis, BCBA in a “group’ for ‘1 time per’-no indication of day, week, month or year,Visual cues, Modeling, Wait time, Small group instruction, Hand over hand prompting and Visual schedule) juxtaposed the services included in AIMS, not to mention the fact that the DOE is “expressly prohibited from recommending AIMS on IEP unless “AIMS program staff had [an opportunity] to review to make sure [the proposed entitlements] conformed to the AIMS model” (Parent. Ex. A). As per the Parent, the DOE designed the 2020 IEP without adhering to the mandates of the IDEA and without availing itself of the “evaluations and evaluative data” at their disposal at the time (Parent. Ex. A). The Parent also alleged that the Student did not receive all of the entitlements during COVID time (Parent. Ex. A). Parent also brought to light that even though “the DOE implemented a full-time, in person schedule,” the school day was shortened because the AIMS program ended at 1:45 pm instead of 2:45pm as the Student’s Parent was previously told (Parent. Ex. A); and because the DOE did not provide the Student with transportation, the Student’s Parents had to rearrange their work schedule in order to transport the Student to and from the ABA provider (Parent. Ex. BB). Parent’s exhibit BB was unsigned and unnotarized; however, Parent attested to its veracity on record without any objections from the DOE (March 30, 2022 Tr. 118-120). As per the Parent, the DOE provided limited instruction which contravened the IEP mandates for the 2020-2021 school year (Parent. Ex. BB). The Parent further contend that the DOE failed to implement the executed pendency agreement (Parent. Ex. DD), which caused the Student to receive “no pendency ABA and parent training services from July 1, 2021 [to] December 31, 2021” (Parent. Ex. BB).

The 2021-2022 School Year The 2021-2022 school year is no better as per the parent. The 2021 IEP generated by the DOE essentially mirrored the 2020 IEP; it did not mandate the Student for ABA, provided no parent training with the BCBA, no after-school services, feeding services or toileting services (Parent. Exs. AA, BB). The missing services from the 2021 IEP caused the parent to attend, at her expense, a program for children with Autism at the Center for Contemporary in Somerset, New Jersey to help build the Student’s leisure skills and motor skills at a cost of $462.88, including transportation (Parent. Ex. BB). Parent testified that out of concern for her child, she began to explore other options during the summer of 2021 (Parent. Ex. BB). She had the Student evaluated by a neuropsychologist who believed the Student needed “a far more intensive instructional program, and [as such,] recommended a full-day, 1:1 ABA program, with home-based, extended school day services (Parent. Exs. BB, K). The DOE denied the Student feeding services as well as assistive technology, and a communication device (Parent. Ex. A).

Unable to make headways with the DOE, parent secured placement for the Student at REDACTED (“REDACTED”) in September 2021 (Parent. Ex. BB). A Ten-Day Notice was sent to the DOE (Parent. Ex. X). Despite receipt of the Ten-Day Notice, the DOE failed to reach out to the parent and address her concerns; as a result, the Student began at REDACTED on October 12, 2021 (Parent Ex. BB). The DOE’s failure to provide the Student a FAPE caused the parent and her husband to forgo working full-time and to live on a reduced income while relying on public assistance (P. Ex. BB).

The Parents submitted a documentary evidence package, which included the Ten-Day Notice from Parents to the CSE informing them of the inadequacy of the IEP and the parents’ intention to unilaterally place the Student. The parents’ evidentiary package was entered into evidence without objections (March 30, 2022 Tr. 85). The DOE submitted no documentary evidence and presented no case (March 30, 2022 Tr. 75).

FINDINGS OF FACT AND DECISION

Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[1]

The IDEA requires a school district to have an Individualized Educational Plan (IEP) in effect for each child with a disability at the beginning of each school year. See 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a); see 71 Fed. Reg. 46682 [stating that the IDEA "is clear that at the beginning of each school year, each [district] must have an IEP in effect for each child with a disability in the agency's jurisdiction. Further, An IEP must be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

An IEP must be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii). See also 34 C.F.R. §§300.303-300.311, 300.315; 8 N.Y.C.R.R. § 200.4(f). All reevaluations shall be conducted by a multidisciplinary team, including a specialist in the area of the student’s disability. 8 N.Y.C.R.R. § 200.4(b)(4). Children must be assessed “in all areas of suspected disability” using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” 20 U.S.C. §1414(d); 34 C.F.R. § 10.

Additionally, 8 N.Y.C.R.R. § 200.4(b)(6) provides that every reevaluation must identify “all of the special education and related services needs, whether or not commonly linked to the child’s classification.” 34 C.F.R. § 303(c)(6).

§ 300.115 Continuum of alternative placements.

(a) Each public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.

(b) The continuum required in paragraph (a) of this section must

(1) Include the alternative placements listed in the definition of special education under § 300.38 (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions); and

(2) Make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement

Pursuant to the Decision in L.O. v. New York City Dep't of Educ., 822 F.3d 95 (2d Cir. 2016), "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not." R.E., 694 F.3d at 190.

Parents should be central members of IEP teams. See 20 U.S.C. §§ 1414(a)(1)(A), 1414(c), 1414(d)(1)(B)(i); 34 C.F.R. §§300.15; 300.303. Further, regulations provide that the parent must have an adequate opportunity to participate in the development of the child’s IEP Cerra v. Pawling Cent. School District, 427 F.3d 186, 192 (2d Cir. 2005, requiring that the Parent be properly notified of the IEP meeting and that such meeting be scheduled at a “mutually agreed upon time and place.” 34 C.F.R. § 300.322.

An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 C.F.R. § 300.320[a][3])

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).

However, in the recent decision of the United States Supreme Court, Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), argued January 11, 2017, and decided March 22, 2017, the Court held that, while Rowley declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act”, 458 U. S., at 202, it nevertheless still held that “a substantive standard was “implicit in the Act”. Rowley, 458 U. S., at 193, n. 15. It similarly held that “the statement that the Act did not “guarantee any particular level of education” simply reflects the unobjectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id.at 192. Rather, the Court in Endrew held that, “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances (emphasis added), as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth”. §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all”. The Court in Endrew further stated that “The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”. And although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created”. Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade... is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982).

Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). The school district must provide special education and related services to a student with a disability in accordance with the student's IEP and must make a good faith effort to assist the student to achieve the annual goals and, if appropriate, short-term instructional objectives or benchmarks listed in the student's IEP. See 8 NYCRR 200.4(e)(7). With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way (T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S., 2011 WL 3919040, at *13; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]). In order to show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimis failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP (see Houston Indep. Sch. Dist., 200 F.3d at 349; see also Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524–25 [3d Cir. 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho RV Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]). Accordingly, in reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" (A.P., 370 Fed. App'x at 205; see Van Duyn, 502 F.3d at 822 [holding that a "material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled [student] and the services required by the [student's] IEP"]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D. D.C. 2007] [holding that where a student missed a 'handful' of speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program]).

Section 504 provides that “[n]o otherwise qualified individual with a disability... shall, solely by reason of his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.” 29 U.S.C. §794(a). Section 504 and the IDEA are often seen as “complementary” statutes that, to a degree, mandate parallel requirements on schools to provide special education and related services. See R.B. ex rel. L.B. v. Bd. of Educ. of City of New York, 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000) (citations omitted). The Section 504 regulations clarify the nature of the prohibited discrimination. 34 C.F.R. § 104.4(b)(ii)-(iii). In addition, the Section 504 regulations place similar and even parallel requirements on schools to provide a FAPE. See 34 C.F.R. §§ 104.33-104.37.

Under New York State law, parents of a New York State resident student with a disability who is placed in a nonpublic school and who seeks to obtain educational “services” for his or her child may file a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law §3602-c [2]). Such “services” include “education for students with disabilities”, which means “special educational programs designed to serve persons who meet the definition of children with disabilities set forth in Education Law §4401(1); Education Law §3602- c[1][a], [d]. “Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent” (Education Law §3602-c[2][a]. In such circumstances, the district of the location’s CSE must review the request for services and “develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP]” (Education Law §3602-c[2][b][1]. The CSE must “assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district”. Additionally, unlike the provisions of the IDEA, section 3602-c provides that a parent may seek review of the recommendations of the CSE pursuant to the impartial hearing and State-level review provisions of Education Law § 4404. See Application of the Board of Educ., Appeal No. 18-088.

8 NYCRR 200.4(e)(3) provides in part:

The school district shall ensure that the recommendations on a student’s IEP, including changes to the IEP made pursuant to subdivision (g) of this section, are implemented, including but not limited to:

(i) ensuring that each regular education teacher, special education teacher, related service provider, and/or other service provider, as defined in section 200.2(b)(11)(i)(a) of this Part, who is responsible for the implementation of a student’s IEP, is provided a paper or electronic copy of the IEP prior to the implementation of such IEP or shall be able to access such student’s IEP electronically. If the board of education or board of trustees adopts a policy that the student's IEP is to be accessed electronically, then such policy shall also ensure that the individuals responsible for the implementation of a student's IEP shall be notified and trained on how to access such IEPs electronically; (iii) ensuring that each regular education teacher, special education teacher, related service provider, other service provider, supplementary school personnel as defined in section 200.1(hh) of this Part, and other provider and support staff person has been informed, prior to the implementation of the IEP, of his or her responsibility to implement the recommendations on the student's IEP, including the responsibility to provide specific accommodations, program modifications, supports and/or services for the student in accordance with the IEP;

As provided in 8 NYCRR 200.6(e):

Related services shall be recommended by the committee on special education to meet specific needs of a student with a disability as set forth in the individualized education program (IEP).

(1) The frequency, duration and location of each such service shall be in the IEP, based on the individual student's need for the service.

(2) For students with disabilities determined to need speech and language services, the total caseload of such students for teachers providing such services shall not exceed 65.

(3) When a related service is provided to a number of students at the same time, the number of students in the group shall not exceed five students per teacher or specialist except that, in the city school district of the city of New York, the commissioner shall allow a variance of up to 50 percent rounded up to the nearest whole number from the maximum of five students per teacher or specialist.

(4) A student with a disability may be provided with more than one such service in accordance with the need of the student.

(5) Related services may be provided in conjunction with a regular education program or with other special education programs and services.

200.6 Continuum of services.

(a) A student with a disability shall be provided with appropriate special education.

(1) Students with disabilities shall be provided special education in the least restrictive environment, as defined in section 200.1(cc) of this Part. To enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate, specially designed instruction and supplementary services may be provided in the regular class, including, as appropriate, providing related services, resource room programs and special class programs within the general education classroom.

(2) A student with a disability shall be provided the special education specified on the student’s IEP to be necessary to meet the student's unique needs.

(3) Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following:

(i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained.

(ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement.

(iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement.

(iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction.

(b) Staffing requirements pursuant to Part 80 of this Title.

(1) When a remedial service is included in the individualized education program, such service shall be provided by appropriately certified or licensed individuals.

(2) When a transitional support service is included in the individualized education program to be provided to teachers of a student with a disability, such service shall be provided by personnel appropriately certified or otherwise qualified in each area of service.

(3) Related services shall be provided by individuals with appropriate certification or license in each area of related service.

(4) Special education instruction shall be provided by individuals appropriately certified or licensed pursuant to Part 80 of this Title.

(5) An administrator or supervisor of special education programs serving more than 25 percent of his or her assignment in such capacity shall hold a certificate valid for administrative and supervisory service pursuant to Part 80 of this Title.

(6) When specially designed reading instruction is included in the individualized education program, such instruction may be provided by individuals qualified under section 80-2.7 or sections 80-3.3, 80-3.7(a)(3)(iv) and 52.21(b)(3)(xi) of this Title as applicable. For purposes of this paragraph, specially designed reading instruction shall mean specially designed individualized or group instruction or special services or programs, as defined in subdivision 2 of section 4401 of the Education Law, in the area of reading and which is provided to a student with a disability who has significant reading difficulties that cannot be met through general reading programs.

(c) Transitional support services prescribed in the individualized education program (IEP) shall be provided for a teacher upon the recommendation of the committee on special education and shall be specified in the student’s IEP. When the provision of a transitional support service is under consideration by a committee on special education, the teachers of the student for whom the service is being considered shall be given the opportunity to participate in the meeting of the committee for the purpose of advising the committee of the extent to which such services are needed.

A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).

COMPENSATORY SERVICES

The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 [2d Cir. 2014]. 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., 31F.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"]; Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10- 052). 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"]; S.A. v. New York City Dep't of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30, 2014] [noting that compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; 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 [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"]; Puyallup, 31 F.3d at 1497 [finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]; Application of a Student with a Disability, Appeal No. 13-168; Application of the Dep't of Educ., Appeal No.12- 135; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996) (holding generally that subject to equitable adjustment, the “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem.”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Reid, supra at 526.

ANALYSIS

The Parents raised multiple challenges to the committee on special education (“CSE”) program and placement recommendations. The DOE made no effort to show that it offered the Student a FAPE for the 2020-2021 and 2021-2022 school years. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). The DOE offered no explanation nor defended the adequacy of the CSE’s program and placement recommendations.

The DOE did not, therefore, meet its burden of proof in this proceeding. The Parents, on the other hand, met the first of the three Burlington/Carter criteria for tuition reimbursement. The Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]). The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

The standard to apply is whether “[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115):

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

Under applicable law, case law and regulations aforementioned, the burden is on the DOE to establish that it provided the Student with a FAPE and that it has effectively and materially implemented the provisions of an agreed upon IEP. As stated supra, the DOE presented no documentary evidence at the hearing, nor did it present any witness testimony. The Parent submitted substantial evidence in support of her claim that the AIMs was an inappropriate program for the Student (Parents Exs. A, B, F, G, I, K, BB, CC). The Parents presented the testimony of REDACTED, ABA supervisor at REDACTED, and progress report attesting to the Student’s progress (P. Exs, N. V); the Parents also submitted substantial documentary evidence in support of their position that the REDACTED placement was appropriate (Parent Exs. O, P, Q, Z, and BB). The testimony of the Parents’ witnesses (which was uncontroverted) and the Parents’ documentary evidence established that the REDACTED placement was appropriate and has been providing the Student with educational instruction that is specifically designed to meet the Student’s unique special education needs, supported by such services that are necessary to permit him to benefit from instruction.

The Parents have therefore met the second of the three Burlington/Carter criteria for tuition reimbursement.

The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether the parent cooperated with the CSE. The DOE did not raise any issues that would limit or preclude tuition reimbursement. In fact, it did not oppose tuition reimbursement on equitable grounds. Moreover, the testimony and documentary evidence make clear that the Parents cooperated with the CSE and provided the DOE with appropriate and timely written notice (Tr. 106; P. Exs. X and W).

Based on the foregoing, I find that equitable factors support the Parents’ claim for tuition reimbursement for the 2020-2021 and 2021-2022 school years. The Parents have therefore met the third of the three Burlington/Carter criteria for tuition reimbursement. Having met all three of the Burlington/Carter criteria, the Parents are entitled to reimbursement for the cost of the Student’s 2020-2021 and 2021-2022 REDACTED placement.

The Student is entitled to services on a twelve-month school year basis (Parent-Ex. BB, V, W, and X, G and H). The cost of the pro-rated part of the twelve-month REDACTED placement for the 2021-2022 school year at issue is $116, 100.00 (Parent Ex. W).

The Parent requested that tuition funding be in the form of direct funding because paying for the cost of the tuition and waiting for tuition reimbursement would be a financial hardship for the Parent (Parent-Ex. BB-166). The DOE did not oppose Parent’s request. The Parent’s affidavit (Parent Ex. BB) supports her contentions regarding the need for direct tuition funding. The request that the DOE satisfies the parent’s debt and prospectively pay the full tuition at REDACTED for the pro-rated part of the Student’s 2021-2022 REDACTED enrollment is therefore granted.

The signed contract is included in the Hearing Record (Parent Ex. W) and need not be resubmitted prior to reimbursement.

ORDER

IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED:

  • • the New York City Department of Education is directed to fund the cost of twelve-month extended school year placement and related services at the REDACTED in a total amount not to exceed $116,100.00, to be reduced by any amount, if any, already paid to REDACTED by the DOE; and it is further ORDERED that the New York City Department of Education is directed to pay directly to REDACTED-in the event that REDACTED is unable to provide the mandated services-to any other service providers of the parent’s choosing at prevailing market rates for 1:1 ABA services, ABA supervision and Weekly Parent Training; it is further ORDERED that the DOE is directed to provide the Student with the following services as compensatory education for the failure to provide the Student with a FAPE for the 2020-2021 school year at prevailing market rate, which may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations:
  • • 46 hours of Occupational Therapy, based on a 46-week school year, reduced only by any number of hours proven to have been received;
  • • 140 hours of Speech Language Therapy, based on 46-week school year, reduced only by any number of hours proven to have been received;
  • • 46 hours of Physical Therapy, based on a 46-week school year, reduced only by any number of hours proven to have been received;
  • • 2300 hours of 1:1 ABA services, based on a 46-week school year;
  • • 50 hours per week of ABA home-based program, based on a 46-week school;
  • • 2 hours per week of ABA supervision for 46 weeks, based on a 46-week school year;
  • • 1 hour of parent training per month for 46 weeks, based on a 46-week school year;
  • • Special Education Transportation for the entire year; and,
  • • The services are to be provided based on a 12-month extended school year; it is further ORDERED that the DOE is directed to provide the Student with the following services as compensatory education for the failure to provide the Student with a FAPE for the periods at issue at prevailing market rate, which may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations:
  • • 9 hours of Occupational Therapy, based on a 9-week mandate, reduced only by the number of hours proven to have been received;
  • • 31.5 hours of Speech Language Therapy, based on a 9-week mandate, reduced only by the number of hours proven to have been received;
  • • 9 hours of Physical therapy, based on a 9-week mandate, reduced only by the number of hours proven to have been received;
  • • 450 hours of ABA 1:1, based on a three-month period starting with July 1, 2021 through October 12, 2021;
  • • 240 hours of ABA 1:1 service, based on a three-month period beginning from October 2021 through December 31, 2021;
  • • 184 hours of ABA supervision, based on a 46-week school year;
  • • 46 hours of Parent training, based on a 46-week for the 2021-2022 school year plus an additional 10 hours of Parent training for the period covering July 1, 2021 through the first week of October 2021;
  • • 220 hours of ABA 1:1 for the period covering October 14, 2021 through December 31, 2021 during which FAPE was denied;
  • • The DOE shall reimburse parent for any and all out of pocket expenses incurred in enrolling the Student in a placement, program and together with transportation to and from such placement, program upon Parent’s presentment of invoices, receipts or any other form of acceptable proof of payment or indebtedness for such placement, program plus travel and transportation; it is further ORDERED that, notwithstanding the above, the DOE remains obligated to locate and provide the Parent with a compensatory related services provider within fifteen business days upon receipt of parent’s request seeking the DOE’s assistance in locating service providers.

IT IS SO ORDERED.

Dated: May 31, 2022

_______________________________

Marcel P. Denis, IHO

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.

DOCUMENTS ENTERED INTO THE RECORD

IHO Exhibits Date Title Number of Pages

  • • multiple dates Compliance date extensions 2
  • • 01/24/2022 Consolidation Order 3
  • • DOE Exhibits

N/A

  • • Parent Exhibits Date Title Number of Pages A 07/01/2021 Impartial Hearing Request 21 B 09/28/2021 Impartial Hearing Request 39 in Case # 218388 C 11/23/2020 FOFD in Case# 192824 26 D 09/04/2019 FOFD in Case# 175924 15 E 01/22/2022 Email Cover page Regarding 1 Processed Pendency Agreement

F 01/22/2018 REDACTED 7

Trilingual Psychological Evaluation

G 01/16/2018 REDACTED 3

Notes January 2018

H 04/23//2018- CPSE Evaluation Packet 25

05/12/2018

I 08/01/2018 REDACTEED 2

Notes May 2018

J 0/04/2019 REDACTED 10

Analysis Assessment Report

K 05/24/2021- Autism Diagnostic Evaluation 16

08/04/2021

L Undated Resume of REDACTED 3

M 04/16/2021 REDACTED New York 6

ABA Assessment Report

N 03/2022 REDACTED Applied 5

Behavior Analysis, PLLC

Progress Summary Home ABA

O 01-2022 REDACTED 4

Educational Progress Report

P 01-2022 REDACTED 5

Speech and Language Therapy

Progress Report

Q 01-2022 REDACTED 5

Occupational Therapy

Progress Report

R 05/26/2020 Parent Email Regarding T5 3

REDACTED Follow up

S 10/20-12/20 REDACTED P138M 2020-2021 Calendar 4

T Undated REDACTED Weekly Schedule 1

U 05/21/2020 REDACTED Observation 3

V Undated Affidavit of REDACTED 7

W 09/24/2021- REDACTED 6

10/06/2021 Enrollment Contract 2021-2022 and Addendum (10/6/21)

X 09/28/2021 Ten Day Notice with Proof of Service 37

Y 02/02/2022- Parent Emails Regarding Transportation 11

02/15/2022

Z Undated Affidavit of REDACTED Undated 11

AA 05/21/2021 Email from REDACTED 1 to REDACTED

BB 03/28/2021 Affidavit of REDACTED 23

CC 03/28/2021 Affidavit of REDACTED 4

DD 07/23/2021 Pendency Agreement 2

EE 04/14/2022 Closing Statement 30

Footnotes

[1] . The term “free appropriate public education” means 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 school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.