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Special Education Law
DECISIONParent PrevailedIHO Case No. 210863

New York City Department of Education, Impartial Hearing Decision

July 15, 2022·Martin J. Kehoe III·New York City Department of Education

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

CASE NUMBER: 554763 - NYC: 210863

FINDINGS OF FACT AND DECISION

Case Number: 210863

Student’s Name: [Redacted]

District: [Redacted]

Hearing Requested By: Parents

Hearing Officer: Martin J. Kehoe III, Esq.

Actual Record Close Date: July 15, 2022

Table of Contents

I. Introduction 2

II. Overview 2 a. Parents’ Position 3 b. District’s Position 3 c. Background of the Case 3 d. Student History 4 e. Legal Overview 5

III. Prong I 7 a. Did the District Fail to Present a Prima Facie Case? 7 i. Standard 7 ii. Analysis 7 iii. Conclusion 8

IV. Prong II 8 a. Legal Issue: Did the Parents Establish the Appropriateness of the Private Placement? 8 i. Legal Standard 8 ii. Analysis 8 iii. Conclusion 10

V. Prong III 11 a. Legal Issue: Did the Parents Cooperate with the District? 11 i. Legal Standard 11 ii. Analysis 13 iii. Conclusion 13

I. Introduction

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

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

II. Overview

This is a “reimbursement” case. A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis.

This case primarily involves a demand for tuition reimbursement for the 2021-2022 school year (SY). The Parents filed the complaint notice on July 7, 2021. (Ex. A) I was appointed as the IHO on July 12, 2021. A hearing was held across multiple dates.[1] The Parents introduced exhibits A-N into the record and called one (1) witness: the Assistant Principal at the Private School (Ex. IHO #1). The District did not offer any exhibits, nor did they call any witnesses; however, the District did exercise their right to cross-examine the Parents’ witness (T. 44-50).

The Parents also made a claim regarding “compensatory education” from July 7, 2021, through June 30, 2022. Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and... mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]. a. Parents’ Position The Parents allege that the District failed to offer the Student a Free Appropriate Public Education (FAPE) for the 2021-2022 SY. (Ex. A-2)

As a remedy, the Parents seek reimbursement for the following (dating back from July 7, 2021 through June 30, 2022):

  • • Tuition costs at the Private School which includes the cost of a crisis management paraprofessional as well as a transportation paraprofessional;
  • • Transportation costs including reimbursement of monies paid to date and any payment made in the future; and
  • • Related services costs including reimbursement of monies paid to date and any payment made in the future and/or Related Service Authorizations (RSAs) for the related services.

The Parents also seek payment for 1:1 in-home Applied Behavioral Analysis (ABA) services by a provider of the Parents’ choosing, as well as door-to-door special education transportation. Additionally, the Parents are requesting compensatory education for related services. (Ex. A-4)

The Parents assert that they cooperated with the District and in no way impeded the Committee on Special Education (CSE) from offering the Student a FAPE. They notified the CSE, in a timely manner, of their intentions to seek tuition reimbursement. (Ex. A-3) b. District’s Position The District did not present a case to establish the appropriateness of their recommendation. However, in respect to Prong II, the District did cross-examine the Parents’ witness, who defended the appropriateness of the Parents’ unilateral placement of the Student. (T. 44-50) c. Background of the Case

A CSE meeting was held on April 30, 2021, to develop an Individualized Education Program (IEP) for the Student. (Ex. A-2) Following the meeting, on June 21, 2021, the Parents sent the District a ten-day notice letter in which they claimed that they did not receive any documentation from the CSE regarding the Student’s special education program for the 2021-2022 SY. (Ex. B-1)

In the letter, the Parents advised the District of their intent to unilaterally place the Student at the Private School for the upcoming SY. Additionally, the Parents requested door-to-door transportation. (Ex. B-1)

On August 24, 2021, the parties agreed to pendency based on the uncontested Findings of Fact and Decision, dated August 3, 2021. The pendency agreement contained the following:

  • • Tuition at the Private School for twelve (12) months
  • • Transportation (Daily – Round Trip) for twelve (12) months Finally, on July 7, 2021, the Parents filed the complaint notice. (Ex. A)

d. Student History The Student was [Redacted] years old at the start of the 2021-2022 SY. He has been diagnosed with Autism Spectrum Disorder (ASD). (Ex. A-2) The Student’s classroom teacher describes him as a “sweet and caring boy who enjoys coming to school. He enters the classroom smiling every day, greeting staff and his peers, with prompts.” (Ex. I-3)

In the complaint notice, the Student is said to suffer from cognitive impairment. More specifically, the Parents write:

His overall performance on measures of cognitive development and adaptive functioning is well below age expectations. He suffers from pronounced language impairment, motor delays and highly self-directed behavior. His repetitive and challenging behaviors interfere with his participation in learning experiences and social interactions. He has weak executive skills, impulsivity and difficulty regulating his behavior and emotional responses. [The Student] exhibits behaviors that are injurious to himself and others, such as hitting, kicking, biting, and hitting his own head on the wall when he does not want to do something. (Ex. A-2)

On or about April 11, 2021, the Student underwent a Functional Behavioral Assessment (FBA) at the Private School. In the FBA, the evaluators note that the Student presents several behavioral issues, including: tantrums (moderate, 5 x daily); elopement (mild, 1 x monthly); and physical aggression (moderate, 2-3 x daily). (Ex. I-2)

Following the FBA, the Private School developed a Behavioral Intervention Plan (BIP) for the Student, in which they addressed each of the Student’s behavioral issues. (Ex. J) e. Legal Overview The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

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

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

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

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

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

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

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

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

IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “... offer a cogent and responsive explanation for their decisions...” Endrew F., Supra.

ii. Analysis

I first look to the Parents’ allegations to evaluate the scrutiny to apply in evaluating the District’s presentation. In the complaint notice, the Parents raise the following issues:

The complaint notice was explicit about the District’s failure to offer the Student the least restrictive environment (LRE). Additionally, the Parents allege that the District failed to provide them with a copy of the following documents: the Student’s Individualized Education Plan (IEP); a Prior Written Notice (PWN); and a School Location Letter (SLL). (Ex. A-2)

This is the backdrop in which I weigh the District’s recommendations, ever mindful that the District has the burden of proof. In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

The District conceded Prong I to the extent that they did not defend the recommended program or placement. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. There was no testimony indicating the nature of the CSE deliberations, or even if such deliberations occurred. Rather, I am left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the discussions that may or may not have contributed to a final recommendation. iii. Conclusion

Upon review, I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet his individualized needs. I, therefore, rule for the Parents on Prong I.

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

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

“... [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect"). ii. Analysis The Assistant Principal at the Private School (Assistant Principal) testified on the Parents’ behalf to demonstrate the appropriateness of their unilateral placement of the Student. The Assistant Principal began her testimony by detailing the Private School:

There are 207 students at [the Private School] for the 2021 -2022 school year. At [The Private School], there are students from ages 5-21, most of which are classified with autism. [The Private School] is comprised of two programs, but we offer three settings. [Program #1] is for students with intellectual impairment consisting primarily of functional academics and life skills. [Program #2] is for students who are intellectually capable of following the common core curriculum and are on a college path, but display significant impairments with social skills. The third setting is [Program #3] consisting of students from [Program #1] and [Program #2] where there is a mix of students who fit together academically, socially, emotionally and can learn from each other. (Ex. IHO #1-2)

The Assistant Principal mentioned that she is familiar with the Student. She described the Student’s program as follows:

[The Student] attends [Program #3] at [the Private School]. [He] is in a fifth grade in a class with a 6:1:1 ratio. [The Student] receives Speech and Language twice a week individually for 30 minutes, twice in group once a week for 30 minutes with our Speech-Language Pathologist. [The Student] receives OT twice a week once on an individual basis and on a group bases for 30 minutes with [the Certified Occupational Therapist Assistant], under [the Occupational Therapist]. He receives counseling one time a week individually and one time a week group for 30 minutes with [the School Psychologist]. [The Student’s] teacher name is [the Teacher] and has worked at [the Private School] since 2016.

I interacted with [the Student] at least three times a week since he began at [the Private School] and during the 2021-2022 school year. I have conversations with [the Student’s] teachers and related service providers. There are scheduled meetings between myself and [the Student’s] teachers. There's an official meeting held once a month with all of the teachers and related service providers. The students are reviewed to identify areas of difficulty and steps to address these difficulties. It is my way of keeping my finger on the pulse of the students, academically and emotionally and to ensure they are making progress towards their goals.

At times, a result of these meetings would be to schedule an individual student meeting to more closely review the student's FBA or BIP to address interventions needed. (Ex. IHO #1-2)

The Assistant Principal discussed how the Private School has addresses the Student’s behavioral issues:

If a student is struggling with dysregulation, we set aside specific meetings to discuss the student to teak his program. The teacher has daily communication with the parent. We discuss life at home and in school. We can revise the student's FBA or BIP and leave some things in place to help the student be successful.

[BCBA #1] and [BCBA #2] are two Board Certified Behavioral Analysts employed by [the Private School]. These BCBA's are in [the Student’s] classroom to observe [the Student], his behaviors and contribute information to the FBA and BIP. If there are any concerns the teacher may have or new behaviors that arise, the BCBAs develop different strategies to address these new behaviors using observation and specific data collected. The BCBAs in collaboration with [the Student’s] teachers and therapeutic team did significantly assist in [the Student] by implementing a variety of strategies he could use independently.

[The Student] has a diagnosis of autism. When [he] began [the Private School] he was extremely dysregulated, had a difficult time attending to task. He could not verbalize when he was upset, required sensory input and required behavioral in interventions. [The Student] would have tantrums with screaming, dropping to the floor, hitting himself with open hand, physical aggression with nonpreferred tasks (with a duration of 1-5 minutes in FBA dated 5/14/21). The duration of these behaviors have decreased since 2018 (decreased by 10 minutes). (Ex. IHO #1-3)

The Assistant Principal detailed some of the specific methodologies that the Private School has been providing to the Student:

[The Student] responds well to ABA methodologies. [He] has shown progress with the use of an ABA approach which assists to minimize his behaviors that interfere with learning and help him retain and organize any new academic info1mation presented. [The Student] benefits from an individual reward system as well frequent breaks implemented throughout his school day to self-regulate. [The Student] also utilizes Collaborative Problem-Solving techniques to accurately identify his own emotions and the thoughts, events, and or behaviors that lead to those emotions. [The Student] receives a 1:1 paraprofessional to ensure his safety. Using Collaborative Problem Solving, these behaviors have decreased. During Collaborative Problem Solving, [he] uses a vestibule to work through challenging moments. [The Student] has made tremendous progress in the terms of self-advocacy. He is now currently asking for a break when he becomes overstimulated. (Ex. IHO #1-3)

She mentioned that the Student struggles with “non-preferred” activities (i.e. writing) and often he will become self-injurious. When this occurs, the Student is removed from the classroom setting and works in “a quiet task area” to complete his work. (Ex. IHO #1.3-4)

To address the Student’s emotional dysregulation, the Private School utilizes “Collaborative Problem Solving.” (Ex. IHO #1-4) The Assistant Principal elaborated with the following:

Collaborative Problem Solving is an instrumental tool and strategy for [The Student]. It was developed by [author], and it's a specific, almost a script when a student is having difficulty where you validate the student's feelings. There's no punitive reaction or consequence to that. [The Student] has been receptive to this technique, which has been used both inside and at times, outside the classroom. [The Student’s] maladaptive behaviors have decreased over time. (Ex. IHO #1-4)

Additionally, there is a crisis intervention team at the Private School, so in the event that the Student needs to be taken outside the classroom, a member of this team will support him, allowing him to “feel validated and discuss his problem and together they will come up with a solution.” (Ex. IHO #1-4)

The Assistant Principal concluded her testimony with the following remarks:

[The Student] is a sweet and outgoing boy who has difficulty with transitions. [He] has difficulty sitting quietly and attending to the task at hand. He benefits from a highly structured classroom and the implementation of ABA methodologies and positive reinforcement. [The Student] benefits from behavioral expectations being clearly defined before earning. 'First...Then' language should be utilized to express the expectations of what he should be doing (ie: "First we will complete _______, then we will _______" …

… [The Student] benefits from 1:1 instruction from his c1isis paraprofessional. [He] requires a 12-month individualized special education program that provides structure, consistency and prevents regression. His crisis para successfully implements proactive strategies outlined in his Behavior Implementation Plan overseen by one of our BCBA's, [the BCBA]. (Ex. IHO #1.4-5 iii. Conclusion

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

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

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents where equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148[3]). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) ii. Analysis The Parents sent a ten-day notice letter in a timely manner, expressing their intent to unilaterally place the Student at the Private School for the 2021-2022 SY. In the letter, the Parents informed the District that they would seek funding from the District for the placement. iii. Conclusion

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

VI. Compensatory Education a. Issue: Is Compensatory Education Appropriate in this Case? b. Legal Standard

Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]).

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

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

As a remedy for the 2021-2022 SY, the Parents seek payment for 1:1 in-home ABA services by a provider of the Parents choosing. It appears from the record that the Private school provides ABA at school, OT, counseling and a 1:1 paraprofessional. Other than in the complaint notice, the 1:1 in-home ABA is not addressed, and I do not find support in the record for such services. As such, I dismiss this claim and have determined that if this service was warranted through pendency, then it should be provided under that order.

It is therefore ORDERED

For the District to reimburse/directly pay the Parents/Private School for the following, upon presentation of proper invoicing:

  • • Tuition costs at the Private School which includes the cost of a crisis management paraprofessional as well as a transportation paraprofessional;
  • • Transportation costs including reimbursement of monies paid to date upon presentation of proper invoicing; and
  • • Related services costs that are not covered by tuition at the Private School.

Dated: July 15, 2022

NOTICE OF RIGHT TO APPEAL

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

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

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

Footnotes

[1] A hearing was held across the following dates: September 2, 2021; October 7, 2021; October 19, 2021; March 21, 2022; May 3, 2022; and June 8, 2022.

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

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