New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 554885 - NYC: 210986

In the Matter of an Impartial Hearing pursuant to Part 200 of the Regulations of the Commissioner of Education

Redacted

-against-

Findings of Fact

The New York City Department of Education Case # 210986

Procedural Context

By letter dated July 14, 2021 I was appointed to hear the matter of redacted versus the New York City Department of Education pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). In furtherance thereof, a pre-hearing conference was held on August 18, 2021 for the purpose of developing a litigation calendar and, where possible, framing the issues. Thereafter, the matter was continued on October 28, 2021; January 26, 2022 and March 17, 2022. On this last occasion, the Department of Education did not appear (hereinafter the “Department”) and a default was taken. The proceedings went forward and, at the conclusion, the Parent moved to extend the compliance date for issuing a decision in the above-referenced matter. The compliance date was extended to April 11, 2022 and this is also the record close date. A list of persons in attendance and of evidence is appended hereto.

Specifically, the Parent asserts that the Department’s educational placement, as memorialized by the IEP of December 15, 2020 stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for her child. Relying upon the rules and principles set forth in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985], she is seeking tuition reimbursement for the 2021-2022 school year in furtherance of a unilateral transfer to the SCHOOL Academy (hereinafter “SCHOOL”), a non-public school setting. STUDENT is “a child with a disability” as that term is defined under the IDEIA, 20 U.S.C. § 1400 et seq., and is classified with “autism” as that term is defined by 20 U.S.C. § 1401(a)(1). There is no dispute regarding classification. A list of persons in attendance and of evidence is appended hereto.

It should be noted that the Department of Education submitted no evidence, nor did it offer testimony from any witnesses. Although it attempted to introduce evidence hours before the hearing, the Parent’s attorney objected and her objections were sustained. The evidence was, at a minimum, found to be violative of the five-day rule. However, more substantively, the documents were unsigned and/or undated and, in the absence of any testimony which might resurrect their admissibility, I find that they cannot be admitted into the record. Under these circumstances, I find that the Department of Education has not met its prong one burden consistent with Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985], nor has it established any credible defense to the Parent’s allegation that it stands in violation of both its IDEA mandate to provide STUDENT with FAPE for school years 2021-2-22. Exh. A at 4.

It should be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and preparation of closing memoranda. At the time the within Due Process Complaint was filed, the student was REDACTED years old and had just completed the fourth grade. As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held.

The Parent’s Case

CLINICIAN 1 testified via affidavit. Ms. CLINICIAN 1 has extensive experience in the field of autism and education. She currently serves as the Assistant Principal at SCHOOL. She noted that SCHOOL’s staff includes BCBA certified staff, registered behavior technicians, a school psychologist, guidance counselor and crisis intervention team. These individuals are further supported by various related service therapists. On-going training is required in the area of ABA, among other areas of instruction.

The witness observed that she is frequently in STUDENT’s classroom (four to five times per week) and is in contact with his teacher daily. As such she is familiar with STUDENT, having observed him in his classroom, during special school events, lunch/recess and within the school in general. The student has attended SCHOOL since the 2017-2018 school year.

Although the child is generally sweet and happy, an array of asocial and interfering behaviors are triggered by loud noises and crowded areas. These dysfunctional behaviors include self-injurious stereotypy and elopement. STUDENT participates in SCHOOL’s Blended Program, a program which utilizes ABA and Discrete Trial Teaching (hereinafter “DTT”). Instruction focuses on functional academics, life skills, social skills and vocational skills. Exh. R, passim. The witness affirmed that STUDENT’s behavioral and social-emotional profile was consistent with the other five students in his classroom and opined that he had been placed appropriately in their 6:1: class. The child is additionally assigned to a 1:1 paraprofessional, who ensures STUDENT’s safety when the child’s behavior becomes dangerous to himself or others. Beyond the safety concerns, the paraprofessional additionally facilitates the implementation of STUDENT’s FBA and BIP. She noted that STUDENT requires repetitive instruction in which skills are broken down into small components. He receives ABA or DTT throughout the day.

Ms. CLINICIAN 1 noted that STUDENT is a non-verbal student who utilizes an Augmentative and Alternative Communication (hereinafter “ACC”) device to supplement his vocalizations and gestures. He participates in class discussions using his ACC device and can generate full, grammatically correct sentences. The student works best with one-to-one instruction which incorporates an ABA approach to learning. He benefits from frequent movement breaks to address both internal and external stimuli. In furtherance thereof, Ms. CLINICIAN 1 testified that instructional staff are sensitive to difficulties evidenced by many autistic students in connection with poor sensory integration. They are, in addition, trained to address these issues expeditiously. Moreover, an occupational therapist is on staff to facilitate sensory integration through decreased sensitivity to visual or auditory input and facilitating organizational and motor planning skills She noted that many of the child’s interfering behaviors^[1] had lessened since STUDENT has attended SCHOOL, enabling more productive use of class time.

PARENT additionally testified as STUDENT’s mother. She noted that her son has been classified by the Department as “autistic” and has always participated in an extended school year program. She provided a brief history of STUDENT’s educational experiences, commencing with Early Intervention in 2013. At the outset, she noted that STUDENT’s dangerous and self-injurious behaviors were ameliorated when utilizing an ABA approach. Conversely, STUDENT’s ability to self-regulate regressed when this methodology was abandoned. Exh. Q, passim. Although the Department attempted to evaluate him at this time, results were compromised by the child’s non-verbal, self-directed, uncooperative and stereotypical behaviors. Since 2016, more than 5 ½ years later, the Department has not evaluated the child. Rather, SCHOOL has done so as part of its educational protocol.

As STUDENT’s behavior continued to deteriorate under the auspices of the Department’s public schools, PARENT eventually sought out the assistance of a developmental pediatrician. Although the child’s pediatrician, SETSS teacher and his BCBA uniformly recommended implementation of an ABA protocol, the witness reported that the Department refused to incorporate the need for ABA on STUDENT’s IEP. Rather, Department personnel indicated that such a provision would curtail instructional flexibility, to the child’s detriment. Instead, the child’s behavioral, social and academic skills continued to regress along with self-care skills such as toileting.

Concerned about her son’s declining abilities, Ms. PARENT eventually effectuated a unilateral transfer to SCHOOL, an ABA-based program. Since STUDENT’s admission to SCHOOL, July 2017, Ms. PARENT testified that her son has steadily improved. The witness indicated that SCHOOL understands the primacy of extinguishing off-task and interfering behaviors which prevent her son from learning. As such, STUDENT has always had an FBA and a BIP which are specifically tailored to the child’s needs. Most importantly, Ms. PARENT noted that SCHOOL has restored her son’s toileting and self-care skills, behaviors which had regressed dramatically prior to SCHOOL. Similarly, STUDENT’s tantrums and self-injurious behaviors have declined. As a result, the family is now able to spend time in public.

Significantly, Ms. PARENT noted that SCHOOL continued to service STUDENT notwithstanding the exigencies of the Covid-19 pandemic. The witness indicated that STUDENT continued to receive his ABA instruction along with all of his related services, including the participation of a 1:1 paraprofessional. During lengthy periods of distance learning, the Parent testified that SCHOOL has always provided STUDENT with direct service.

In sum, the witness noted that SCHOOL had reduced the challenges presented by Covid, rather than exacerbating them. Her son is now demonstrating global improvements in math, reading, adaptive and social skills. SCHOOL has provided ongoing parent training which enables her to work effectively with her son and reinforce the skills he is acquiring in school. Although much of STUDENT’s education has occurred at home due to the Covid 19 virus, he has continued to progress successfully. In sum, the Parent testified that her child has made significant and measurable improvement in all areas of intervention.

On June 15, 2021, a ten-day notice was sent to CSE 3 on my behalf. I based this notice upon the fact that the IEP generated six months earlier by the CSE neglected STUDENT’s specific needs for ABA, among other things. Thereafter, the Parent received notification from the Department, ostensibly dated June 17, 2021, indicating that the recommended school placement for 2021-2022 would be DOE SCHOOL. After multiple unanswered phone calls, Ms. PARENT finally learned that M 169 did not offer ABA nor did it have any BCBAs on staff. It also did not provide students with a sensory gym. The need for all of these services had been discussed at great length at the December 2021 IEP meeting and ignored by the Department. The Parent noted that STUDENT required an evidence-based, discrete trial approach in order to quantify improvements and focus on specific areas of need. Although previously willing to accept the Department’s prior educational offerings, it became clear to the Parent that these placements only led to deterioration and regression.

In her November 30, 2020 report, the Occupational Therapist indicated that the child’s current goals included the ability to “far point” 2-3 sentences with proper sizing, spacing and line regard. STUDENT was being encouraged to develop greater visual motor skills for scanning and independently finding 10-15 words in any easy search. STUDENT was also learning self-care skills such as shoelace tying. The therapist indicated that STUDENT was continuing to exhibit good progress in the area of fine motor coordination, opening classroom utensils and managing familiar containers, clothing and games with small pieces. He had improved his scissor skills and could now independently dress and toilet himself. While the child was making good progress with his fine motor coordination, his low tone and strength, nevertheless, continued to negatively impact his ability to manipulate coins, beads etc. Similarly, STUDENT demonstrated poor postural control and struggled to engage his core when sitting on a chair or therapy ball. As such, the therapist indicated that the child needed to improve his upper extremity strength and continue to build upon the progress he has made. The Occupational Therapy report of November 11, 2020 is the only report in the record, herein. Exh. I.

In physical therapy, the child continued to demonstrate decreased gross motor skills which compromised his ability to negotiate his educational environment safely and independently. Similarly, STUDENT continued to present with decreased muscle tone throughout his core and extremities, issues which bore upon his ability to maintain equilibrium and maintain a stable gait. The December 3, 2020 Physical Therapy Report is the only such report in the record, herein. Exh. J, passim.

The Department of Education’s Position

It should be noted that the Department of Education submitted no admissible evidence, nor did it offer testimony from any live witnesses. While not conceding liability, it put on no case, offered no opening statement and did not cross-examine any witnesses. Under these circumstances, I find that the Department of Education has not met its prong one burden consistent with Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985], nor has it established any credible defense to the Parent’s allegation that it stands in violation of both its IDEA mandate to provide STUDENT with FAPE for school years 2021-2022. Exh. A at 4.

The Parents’ Position The Parent asserts that the Department of Education stands in abrogation of its duty to provide STUDENT with a free and appropriate public education during the 2021-2022 school years in violation of the IDEA per 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997).

Consistent with their argument, the Parent contends that SCHOOL constituted an appropriate placement for her son during the 2021-2022 school year and, furthermore, that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. School District, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement. See U.S.C. § 1414 (d)(1)(A); §1401 et seq.; Board of Education of the County of Kanawha v. Michal M., et al., 95 F.Supp 2nd 600 [S.D.W.Va 2000].

Discussion

It is clear that the legislative intent of 20 US Code § l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C.Sx.1400 [d][1][A]; see Ms. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 N.Y.C.R.R. 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].

In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]).

In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199.

Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, a school district "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y. 2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]).

While both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

Finally, the Courts have addressed the question of whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEIA and subsequently enroll the child in a private school of their choice. The Supreme Court has established a three-pronged test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy. Florence County School District Four v. Carter by Carter, S.Ct. 361 (1993).

Point I: Pursuant to School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985], has the Department provided STUDENT with a free and appropriate education?

The Department did not put on a direct case by furnishing either testimony or evidence. It did not cross examine anyone. It did not offer an opening statement nor did it provide any closing argument. As a result, it is difficult to ascertain the exact nature of the Department’s objections, if any, and I find that they have not met their evidentiary burdens.

Point II: Was SCHOOL an Appropriate School for STUDENT during the 2021-2022 school year?

The Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a Parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the Parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir.2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the Parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it Department of Educations not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school Department of Educations not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement.  To qualify for reimbursement under the IDEIA, 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; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]).

Turning to the matter at bar, the evidence indicates that STUDENT is a REDACTED year old autistic child who currently attends SCHOOL Academy. SCHOOL is a small school which provides ABA and DTT in a data-driven setting. Its methodologies are based upon empirically established scientific evidence. STUDENT receives instruction as one of six children in his class who share a similar behavioral and social-emotional profile. In this context, witnesses testified that programming at SCHOOL offers a small, nurturing environment which meets the specific needs of children who fall within the autism spectrum.

Clearly, the program offered at SCHOOL correlates well with the student’s functional needs, as identified by credible witnesses. STUDENT is an autistic child with significant neuro-developmental delays. He is functionally grouped in a classroom whose students span a two-to-three-year range, enabling him to serve as a peer model and to learn from others. Both the Parent and STUDENT’s teachers uniformly agreed that the child is making meaningful progress within the SCHOOL paradigm. Its methods and curriculum are based upon experiential and empirical statistical research and its personnel are experienced with autism. STUDENT’s teachers receive on-going training in various educational and behavioral methodologies which serve the autistic community.

Data is taken routinely at SCHOOL, facilitating ongoing assessments of the child’s progress and areas of deficit. In this manner, the student’s goals may be individually tailored to meet his needs. Personnel are familiar with autistic stereopathies and self-injurious behaviors and are trained to reduce their occurrence. The child continues to receive ADL instruction while STUDENT’s sensory processing and integration issues are constantly addressed throughout the School day. SCHOOL is a language enriched program in which personnel are trained to maximize oral communication where possible. They also provide expertise in the area of augmented communication, a mode of communication utilized by STUDENT Both gross and fine motor deficits, including motor planning and sequencing, are addressed by certified and licensed professionals during the day on school grounds in the areas of occupational and physical therapy. There is no disruption to his academic day from related service sessions.

The child is additionally provided with a social skills protocol directed at facilitating appropriate interpersonal interactions. All skills are taught with an understanding that no skill is truly meaningful acquired until it generalizes to home and community.

The School’s administrator described STUDENT as a student who exhibits poor frustration tolerance and is highly distractible. STUDENT receives therapy directed at improving motor planning skills, cognitive sequencing and executive function. The student requires a multi-sensory approach to learning. The evidence indicates that STUDENT benefits from frequent repetition and reinforcement of new skills. Whenever possible, visual and tactile materials are incorporated in the student’s curriculum. Material is broken down into small, manageable components which are more easily mastered. In this manner, students can move forward having already experienced success through mastery.

A review of the child’s BIP and FBA from SCHOOL indicate that specific protocols have been implemented to address the child’s dysfunctional behaviors. Many of these behaviors (hitting, pinching, head butting and biting others) reflect physical aggression of a severe intensity with a moderate impact. Nevertheless, this behavior has been “maintained at zero trend.” Exh. H at 2. Specifically, SCHOOL has developed a meaningful menu of positive reinforcers for this particular child and implemented consistent strategies tailored to prevent the targeted maladaptive behaviors. Exh. G, passim. In furtherance thereof, STUDENT is provided with a visual schedule using words and pictures which facilitate transitions by reducing anxiety and frustration. In addition, verbal and visual transition warnings are offered. STUDENT is provided with limited sensory breaks while instruction is offered in a partitioned area with minimal distractions. The use of clear and concise directions, simplified and shortened directions, short working intervals and a multisensory approach has been beneficial to STUDENT A “first-then” approach has additionally been implemented so that sequences of appropriate behaviors can be encouraged.

Beyond this, the Parents’ placement provides related services on site during the day and offers a rich array of sensory processing opportunities, including adaptive physical education by specialized and certified providers. Inter-disciplinary conferences are held routinely and, in this manner, there is ongoing and consistent collaboration and communication between STUDENT’s related service providers and teachers. The curriculum includes participation in community activities and parent training is incorporated into its programming. A curriculum which focuses on the acquisition of functional academic and life skills is meaningfully tailored to the needs of this child. Indeed, the affidavits of both CLINICIAN 1 as well as STUDENT’s mother uniformly indicate that the School’s interventions have been successful and that the child is making significant progress. Given the above, I believe SCHOOL was an appropriate placement for STUDENT during the 2021-2022 school year.

Point III: Is the Parent entitled to equitable relief pursuant to Burlington, supra, for the 2012-2013 school year?

Prong three of Burlington provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student 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. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). 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]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

I find that there are no factors which militate against the Parent’s equitable right to reimbursement. For one, the Parent, in fact, provided a ten day notice pursuant to 20 U.S.C. § 1412[a][10][C][iii][I] and 34 CFR 300.148[d][1]. Exh. C. Beyond this, Ms. REDACTED willingly participated in all CSE meetings, in the absence of gratuitous hostility, sharing documentation and extensive educational records in order to facilitate an appropriate placement. Ms. REDACTED acted proactively to secure educational services for her child and did not rely upon the Department to meet all of her needs. However, although previously willing accept the Department’s placements, she soon realized that these programs led to little more than regression.

Conclusion The Parent’s request is granted.

Wherefore, it is hereby ordered that:

Within forty-five (45) days of the date of this Order and upon submission of a due affidavit from SCHOOL memorializing the child’s attendance records and all outstanding tuition amounts owed for the 2021-2022 school year. the Department shall make direct payment of this sum to SCHOOL Academy. This payment shall be made consistent with Connors v. Mills, 34 F.Supp.2nd 795 (N.D.N.Y. 1998).

Dated: April 11, 2022

L.B. Almeleh, Esq.

Lynn Botwinik Almeleh, Esq.__________________

New York State Certified Impartial Hearing Officer

Persons in attendance on October 28, 2021

For the Student:

Attorney

For the Department of Education

District Representative

Persons in attendance on January 26, 2022

For the Student:

Attorney

For the Department of Education

District Representative

Persons in attendance on March 17, 2022

For the Student:

Attorney

PARENT

For the Department of Education:

No appearances

NOTICE OF RIGHT TO APPEAL

Within 35 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 the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

Footnotes

[1] Removing, ripping, licking and/or playing with tags/strings from articles of clothing; biting his own hand, hitting, pinching, head butting and/or biting others.