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Special Education Law
DECISIONParent PrevailedIHO Case No. 210989

New York City Department of Education, Impartial Hearing Decision

April 24, 2022·Randy Glasser·New York City Department of Education (“DOE” or the “District”)

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

NYSED # 554888 / NYC # 210989

CORRECTED FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

District: New York City Department of Education (“DOE” or the “District”)

Hearing Requested by: REDACTED, Esq., of REDACTED, on behalf of REDACTED (the “Parent”) and the Student

Record Close Date: April 24, 2022

Hearing Officer: Randy Glasser, Esq.

On July 9, 2021, REDACTED, Esq., of Law Office of REDACTED, filed a due process complaint (“DPC”) on behalf of the Parent and her child, the Student, regarding his special education program and services for the 2019/2020 and 2020/2021 school years, pursuant to the Individuals with Disabilities Education Act (the “IDEA”), the Americans with Disabilities Act (ADA) 442 U.S.C. 12101, et. seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794(a), Part 200 and “201” of the Regulations of the “Commissioner of New York State”[1]; New York Education Law §4404(a) against the DOE (Parent Ex. “A”). This Hearing Officer was appointed as the Impartial Hearing Officer (“IHO”) on October 28, 2021, after the appointment of the previous Hearing Officer for this case was rescinded. A prehearing conference (“PHC”) was held on November 3, 2021, and a status conference was held on January 28, 2022. The Hearing regarding the requested independent educational evaluations was held on December 8, 2022, and the Full Hearing went forward on December 1, 2021, March 14, 2022, and March 22, 2022. The DOE was represented by REDACTED, and the Parent and Student by REDACTED, Esq.

The District submitted into evidence Exhibits “1” through “2” and the Parent submitted into evidence Exhibits “A” through “O”, with the latter consisting in part of the Affidavit Testimony of REDACTED, REDACTED, and REDACTED (see Parent Ex. “M” “N”, and “O”, respectively). Pursuant to the parties’ agreement at the Hearing, they were supposed to submit their written closing statements by April 12, 2022 (Tr. 265). However, in an email dated April 11, 2022, REDACTED stated that he would not be submitting a written closing for this matter on the District’s behalf (IHO Ex. “III”; see also: Parent’s Closing Statement at IHO Ex. “IV”). Lists of the appearances and documentary evidence submitted in this proceeding are appended to this Decision. The compliance date for this matter was extended to May 11, 2022 (IHO Ex. “V”).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is REDACTED years old, classified as a student with Autism, and diagnosed with Autism Spectrum Disorder, Global Developmental Delay, and possible Attention Deficit Hyperactivity Disorder (Parent Ex. “E” and “F”).

The Student’s Individualized Education Program (“IEP”) for the 2021/2022 school year recommends the following twelve (12) month special education program and services: Special 12:1+1 Class for English Language Arts (“ELA”) ten (10) times per week, one (1) period per session, for Math, ten (10) times per week, one (1) period per session, Social Studies three (3) times per week, one (1) period per session, and Sciences two (2) times per week, one (1) period per session, along with individual occupational therapy two (2) times per week, thirty (30) minutes per session, individual physical therapy two (2) times per week, thirty (30) minutes per session, individual speech language therapy two (2) times per week, thirty (30) minutes per session and in a group of two (2) students, one (1) times per week, thirty (30) minutes per session (DOE Ex. “2” at pp. 14-15).

The Parent unilaterally placed the Student at REDACTED (the “School”) for the 2021/2022 school year, for which she is now seeking in part tuition reimbursement/funding, along with the following determinations by this IHO:

  • • The Student was denied a FAPE for the 2020-2021 and 2021-2022 school years;
  • • The data relied upon by the District to determine the Student’s speech language, physical therapy, and occupational therapy needs for both years was insufficient;
  • • The District is required to fund a bank of compensatory hours for occupational therapy, physical therapy and speech therapy services and any other related services indicated in the independent evaluations (i.e. feeding and swallow therapy) at an hourly rate to be proven at the hearing;
  • • The District deprived the Student and Parent of a free appropriate public education (“FAPE”) by failing to afford the Parent meaningful participation in the planning of her child’s program for the 2020/2021 and 2021/2022 school years;
  • • The District failed to assess the impact of the behaviors associated with the Student’s autism with respect to the 2020/2021 and 2021/2022 school years;
  • • The District failed to provide the behavioral programming the Student needed while he was in kindergarten during the 2020/2021 school year and that the District be ordered to pay for an evaluation by a BCBA to determine the number of hours that should be awarded to the Parent as compensatory services for ABA therapy, BCBA oversight and school coordination and Parent training[2] at a rate established at hearing;
  • • The District failed to appropriately respond to the Parent’s request for an independent reevaluation at PALS (Pediatric Assessment Learning & Support), New York at a rate of $7,000.00[3];
  • • The School is appropriate for the Student and the District is obligated to reimburse the Parent for all amounts she paid for the Student’s enrollment and tuition at the School and pay the School directly the remaining balance due for such enrollment and tuition for the 2021/2022 school year;
  • • The Parent cooperated with the District;
  • • The District is obligated to provide transportation for the Student to the School;
  • • Attorney’s fees[4]; and
  • • Granting such other relief as is just and proper.

(Parent Ex. “A”).

At the Hearing held on March 22, 2022, the Parent’s attorney stated she was waiving the request for an independent occupational therapy, physical therapy and speech language evaluation at a cost of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00) each (Tr. 269-270), and at the Hearing held on December 1, 2021, the Parent’s attorney stated that the Parent was no longer requesting this IHO find the District is obligated to pay for any amounts owed or paid by the Parent in securing transpiration for the Student to the School (Tr. 170-171).

The District waived its opening statement, did not put on a direct case or present rebuttal witnesses (Tr. 53-54, 290). The Parent’s attorney made an opening statement (Tr. 55-58) expressing the Parent’s position in this matter, put on a direct case and as aforementioned, submitted a closing statement.

The Student’s eligibility and classification are not at issue in this case.

FINDINGS OF FACT AND DECISION

A. Introduction: The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A)). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensively written IEP (Id., 20 U.S.C. §1414(d); 34 C.F.R. § 300.17). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through, the IDEA's procedures, and is (c) reasonably calculated to enable the student to receive educational benefits. Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE (8 NYCRR § 200.5(j)(4)(i)), except:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

Id. (Emphasis added.)

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

  • • The IDEA empowers a hearing officer to grant the relief he/she deems appropriate. 34 CFR §300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Burlington Sch. Comm. v. Mass. Dep’t. of Educ., 471 U.S. 359, (1985). Notably, the mere fact that the state educational agency and/or LEA has not approved the private school placement does not bar the parents from reimbursement. Florence County Sch. Dist. Four v. Carter, supra.

The Parent presented seven (7) witnesses on her direct case; the Parent, REDACTED, REDACTED, REDACTED, REDACTED, REDACTED, and REDACTED.

REDACTED, Director of REDACTED at the School (Tr. 63-65) testified in relevant part regarding how he knows the Student (Tr. 65), why he was admitted to the School and the class he is in (Tr. 68-69); his observation of the Student when he first started at the School in July 2021 (Tr. 71-72) and the improvements in the Student’s behavior he recently observed (Tr. 72). On cross-examination Mr. REDACTED testified in relevant part regarding the daily rounds he conducts (Tr. 73-76), the fact that the Student has difficulty with remaining seated and on task, and sustaining attention and how a token board is used in part to address these behaviors (Tr. 78).

REDACTED, the Student’s special education teacher at the School since September 2021, testified in relevant part (Tr. 92-93, 94); what the Student was like when he started in her class and how she addressed his behaviors versus the Student’s behaviors at the present time (Tr. 94-95, 95-97); small group instruction in her class (Tr. 97-98); a day in her class (Tr. 98-99); specials the students attend (Tr. 100); the School Quarterly Report/Summer Session at Parent Ex. “D” (Tr. 100-101); the speech, occupational and physical therapy services the Student receives and how she coordinates with his related service providers (Tr. 102, 103); how often the BCBA is in the classroom and how she uses the related services providers’ strategies in her classroom (Id.); that in her opinion he would not do well in a 12:1+1 class because it would not have enough support and the support he needs (Tr. 105-106); the impact a 12:1+1 class would have on his sensory needs (Tr. 106-107); the School’s Area of Instruction and Therapeutic Focus that she helped developed and which contains goals for the Student, developed at the end of October 2021 (Tr. 106-109); the Student’s reading level went from “B” to “D” (which was further described on cross-examination) (Tr. 109-111). On cross-examination Ms. REDACTED also testified that she relies on a token system when the Student is not on task (Tr. 112).

The Parent testified in relevant part that her total annual income is THIRTY NINE THOUSAND FIVE HUNDRED DOLLARS ($39,500.00) (Tr. 119-120); she received no response from the District to the Ten-day letter sent by her attorney on her behalf (Parent Ex. “B”, Tr. 122); she has paid TWO THOUSAND DOLLARS ($2,000.00) of the total amount due for the Student’s annual tuition at the School for the 2021/2022 school year (Tr. 127-128); the Student before he attended the School (Tr. 128); she never refused to attend a meeting with the District (Tr. 132); she discussed the Student’s needs with the District (Tr. 133-135); she shared the REDACTED Developmental Pediatric Reports along with her concerns regarding the Student’s behavioral issues and the type of support he needs to address them with REDACTED at the District, to which REDACTED responded that due to COVID and the fact the students were not in the classroom the District could not address the Parent’s concerns at that time (Tr. 136-140); why she looked at alternative programs for the Student (Tr. 142); her expectations of the public school program and why the program provided to the Student was not appropriate, e.g., not enough support (Tr. 142-143); the Student did not receive his speech language services until October 2020 (Tr. 143); the District did not have a real behavior plan for the Student and what the Student was like when he started at the School (Tr. 144); the Student’s communication skills before attending the School and that these skills have “gotten better” at the present time (Tr. 146-147); the Parent’s discussion with the Student’s speech therapist at the School, including areas of concern and that the therapist works on feeding skills (148-149); the Student’s reading comprehension skills before he started at the School and that they presently have “gotten better” (Tr. 149-150); the Student did not receive all of his physical therapy sessions for the 2020/2021 school year (Tr. 150-151); regression in the Student’s mobility skills and they fact that they got worse during the 2020/2021 school year (Tr. 151-152); The School’s related service providers provide the Parent with strategies to use at home (Tr. 153); she signed the contract with the School in May with the understanding that she could cancel the contract without financial penalty if the District provided an appropriate placement for the Student (Tr. 154, 165); the Student received remote learning during the 2020/2021 school year pursuant to the Parent’s choice (Tr. 156-157); and the Parent did not request that the District conduct a physical therapy, speech language and occupational therapy evaluation of the Student (Tr. 160).

REDACTED, a BCBA at the School, testified in relevant part how he knows the Student and involvement with his program (Tr. 174-175); his observations of the Student when he started at the School (Tr. 178); the fact he meets with the Student’s teachers and related service providers two (2) times per month (Tr. 180); his opinion that the Student would not benefit from a 12:1+1 class and that he needs and should have had behavioral programming in his educational all along with access to behavioral experts (Tr. 182-183); the Student should have had “some form of behavioral programing or consulting throughout his entire educational history” (Tr. 182); the Student “should have been in a program in which he has access to … a behavioral expert,... as a resource for him, his family, his teachers, and to consult, and to provide his team with individualized supports.” (Tr. 183-184); the last time he observed the Student and spoke with his teacher his seat time had improved (even though he did not take the data) (Tr. 145-185, 188); and the Student’s related service providers do not have any concerns regarding his behavior (Tr. 186). On cross-examination Mr. REDACTED testified in relevant part that he did not have the opportunity to observe the Student during the 2020/2021 school year, and does not know if the Student’s maladaptive behaviors interfere with him transitioning from one activity to the next (Tr. 187-188).

  • • Neuropsychologist, REDACTED testified in relevant part regarding his evaluation of the Student (Parent Ex. “M” at ¶7); his familiarity with the School program (Id. at ¶8); the fact he diagnosed the Student with Autism Spectrum Disorder, Level 2, with accompanying language but not with intellectual impairment, requirement support, Mixed Disorder of Scholastic Skills (a/k/a Learning delays in all areas) and developmental Coordination Disorder and that he requires a classification of Autism on his IEP (Id. at ¶9); the Student presents with average intellectual functioning when language is removed from the assessments, and has significant difficulties with speech articulation, expressive speech and his verbal intellectual functioning is in the impaired range (Id. at ¶10); the Student has the ability to learn, however his academic skills are severely deficient and intertwined with his speech pronunciation deficits, language disorder and developmental coordination disorder, and that he has particular difficulty with language comprehension (Id. at ¶11); the Student displays many characteristics of Autism Spectrum Disorder, and his strengths are less typical e.g., lack of repetitive behaviors, intact nonverbal intellectual functioning and he is friendly and well behaved (Id. at ¶12); the Student’s current class and related services he receives at the School, his familiarity with the integrated approach used at the School and with respect to the Student (Id. at ¶13); up until the Student’s placement at The School he never had an appropriate educational program, which has interfered with his learning and acquisition of skills, and further compounded his inability to develop the necessary skills in order to learn and function (Id. at ¶14); his observations of the Student and why he has “greatly benefited from the structured ABA-like strategies” he receives at the School and that ABA strategies should have been incorporated into his education throughout the school day and before the School, and that the Student requires extended school days to address his behavioral and academic needs (Id. at ¶16, 15); the Student requires a “very extensive specialized program” throughout the school day, such as the one he receives at The School, an remediation to address his “academic learning, maladaptive behaviors, language, motor, and attentional deficits” (Id. at ¶16); “[I]n order for [the Student] to access academic and social-emotional learning, he must be provided an extended school year program in a very small class with low student teacher ratio in a specialized nonpublic or private school, with individualized instruction provided throughout the school ay utilizing applied behavioral analysis (“ABA”) overseen by a Board Certified Behavior Analyst (“BCBA”), with integrated related services,, multisensory curriculum, a social skills program designed for children on the autism spectrum” (Id. at ¶17); the related services offered pursuant to the Student’s IEP for the 2020/2021 school year were inappropriate because he “should have been offered a program with integrated related services in a specialized environment with teachers who have training in teaching students with Autism, “targeted, individualized speech language therapy individual and group counseling, and occupational therapy that incorporate his behavioral programs – with coordination with school staff and the behavioral therapists” and his parents require individualized, “regularly provided parent counseling and training/support in implementing [the Student’s] behavioral program” (Id. at ¶18).
  • • REDACTED REDACTED, testified regarding the services provided to the Student, their cost, and that the rates charged for such services are the “normal and customary rate at REDACTED” [REDACTED] (Parent Ex “N” at ¶¶10 -14). However, it was unclear whether REDACTED’s rates are normal and customary for the injury or just REDACTED.
  • • REDACTED, a BCBA, and Licensed Behavior Analyst (“LBA”) testified in relevant part regarding her evaluation of the Student (Parent Ex. “O” at ¶¶1, 2); her observation of the Student and documents she reviewed (Id. at ¶3); the fact the School is using principles of ABA, and behavioral methodologies to increase the student’s functional communication, which have “succeeded in increasing [the Student’s] functional behaviors in a way that has increased his ability to be available for instruction” and her opinion that the School is providing “the kind of behavioral intervention that should have been in place for [the Student] during the previous school year (Id. at ¶3); her review of the Student’s IEP and that the Student required behavioral programming throughout the school day during the 2020/2021 school year in that ABA strategies should have been integrated into his education, he should have been a 12-month student, and at a minimum he should have had thirty (30) hours per week of “data-driven instruction that provides well-established, high quality, evidence-based ABA practices 5 days a week for the entirety of the 46-week school year, for a total of 1,380 hours” (Id. at ¶¶4, 5); the Student also required behavioral programming at home or an extended school day program during the 2020/2021 school year to provide the Student with “smooth homework completion and learning of academic skill” in an environment outside of school, and that the “home/extended school day programming should have been provided for 10 hours a week for 46 weeks a year, for a total of 460 hours” (Id. at ¶6); parent training should have been provided one (1) hour per week for forty-six (46) weeks a year, for a total of 46 hours, which must be coordinated with his current school which requires two (2) additional hours of BCBA oversight, and, and that the behavioral programming hours should be provided by a CBA or special educator with ABA training under the supervision of a LBA (Id. at ¶¶7, 8); and that such compensatory award “will allow [the Student] to make progress towards the functional level he likely would have attained had he been provided with an appropriate program in the first place (Id. at ¶9). In addition, Ms. REDACTED provided the following testimony:
  • • MS. REDACTED: Is there an interrelationship -- you had -- you testified in your affidavit that he also required behavioral programing at home or in an extended school day program. MS.
  • • REDACTED: Um-hum.
  • • MS. REDACTED: Was there an interrelationship between his progress, the progress that he would have had during the school day with a behavioral program and the extended school day program that you are recommending in paragraph 6?
  • • MS. REDACTED: Yes; they're interrelated. In order to produce the best outcome for REDACTED, my recommendation is for him to receive 30 hours a week in the data driven instruction at school and 10 additional hours in the home setting. That combination of services would be the best for REDACTED.
  • • MS. REDACTED: And is it your testimony that that is what he should have had during school year '20/'21?
  • • MS. REDACTED: That is correct.
  • • (Tr. 289 -290).
  • • On cross examination, when asked whether or not the Student demonstrated “severe behaviors” Ms. REDACTED testified, “Well, again, I need to clarify. When I say severe behavioral issues, I mean something that people normally think of when we talk about behaviors such as, you know, physical aggression or self-injurious behaviors, but he definitely presents with behaviors that are (indiscernible) his learning. So we can talk about severity of those” and that the extreme attentiveness he displayed was a “severe behavior” (Tr. 287).

The District did not present any rebuttal witnesses (Tr. 290).

B. Data Relied Upon: As aforementioned the Parent requests this IHO determine “that the data relied upon by the District for determination of [the Student’s] speech language, physical therapy and occupational therapy needs in both years was insufficient.” However, the Parent failed to proffer any testimony/evidence in this regard and demonstrate how if proven, the sufficiency of the data relied upon by the District to determine the Student’s related services need, impacts on whether the District provided a FAPE to the Student for the 2021/2022 school year. Nonetheless, this IHO has found that the District failed to provide a FAPE to the Student for the 2021/2022 school year, without the Parent substantiating this claim.

C. Compensatory Hours:

1. Introduction: In the Second Circuit, it is established that the IDEA allows a Hearing Officer to fashion an appropriate remedy, and therefore courts have held compensatory education is an available option under the IDEA to make up for denial of a FAPE. P. v. Newington, 546 F.3d 111 (2d Cir. 2008).

Ordering compensatory education is not automatic or a matter of quid pro quo, where a student gets one hour for every hour missed of compensatory time. Accordingly, an order of compensatory education is an equitable remedy available to a hearing officer or judge. Rather than being awarded pursuant to a formula, the ultimate award must be fact-specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that would have accrued from the special education services the school district should have supplied in the first place. Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (Reid was cited by the second circuit in Newington, in reaching its conclusion that compensatory education is an option. Newington at 123). Notably, Reid, supra, emphasizes that compensatory services are equitable relief; they are not a contractual remedy. Reid at 123.

There are primarily two competing approaches utilized in fashioning a compensatory education award, namely the “quantitative” approach authored by the Third Circuit[5], and the “qualitative approach relied upon by the Sixth and D.C. Circuits[6]. Although compensatory is a form of equitable relief, at times courts have used a quantitative method to calculate the amount, of services missed so that the services can be made up through compensatory education. M.C. on behalf of J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996); Manchester Sch. Dist. v. Christopher B., 807 F. Supp. 860 (D.N.H. 1992). However, neither the Second Circuit[7] nor the New York courts[8] have taken a position on a preferred approach. Accordingly, Hearing Officers have discretion as to which approach to apply.

No matter which approach, when determining the appropriate equitable remedy for compensatory services, the IHO may go back in time for many years. Thus, in G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3rd Cir. 2015), the court held that equitable relief could go back for many years in cases of compensatory education because Moreover, the IDEA’s two year “statute of limitations does not apply to limit the permissible periods of compensatory educational awards.” Id at 610. Among the lower court cases cited by G.L. to support this proposition was the New York case of K.H. v. New York City Dep’t. of Educ., No. 12-CV-1680, 63 IDELR 295 (E.D.N.Y. 2014).

Moreover, when a school district deprives a child with a disability of a FAPE in violation of the IDEA a court or hearing officer fashioning appropriate relief may order compensatory education (20 U.S.C. 1415(i)(2)(C)(iii); 34 C.F.R. 300.516(c)(3); Sch. Com. of Burlington v. Dep’t. of Educ., 41 U.S. 359, (1985). Generally, said denial must be more than de minimis Catalan v. Dist. of Columbia, 478 F.Supp.2d 73, 75 (D.D.C. 2007) (court found no evidence that the handful of missed speech therapy sessions added up to a denial of FAPE) quoting Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 348-349 (5th Cir. 2000), cert. denied, 531 U.S. 815 (2000). As explained by the Court in M.C.:

a school district that knows or should know that a child has an inappropriate IEP or is not receiving more than a de minimis educational benefit must correct the situation. If it fails to do so, a disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem. We believe that this formula harmonizes the interests of the child, who is entitled to a free appropriate education under IDEA, with those of the school district, to whom special education and compensatory education is quite costly.

Id. at 397.

The District was required under the due process procedures set forth in New York State law to address the issue by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that he would have been but for the denial of a FAPE (Educ. Law § 4404(1)(c); see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. 2017) (noting the SRO's finding that the District had the burden of proof on the issue of compensatory education); see also Doe v. East Lime Board of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. District of Columbia, 401 F.3d, 516, 524 (D.C.D.C. 2005). Where, as here, New York State law has placed the burden of production and persuasion at an impartial hearing on the District, it is not the IHO's responsibility to craft the District's position regarding the appropriate compensatory education remedy. However, at no point during the hearing did the District offer any evidence to the contrary regarding the number of the compensatory services being requested, or challenge the Parent’s authority to select the providers for these services.

In the instant matter the Parent provided the aforementioned testimony demonstrating how it was apparent the District knew the Student’s program was inappropriate and/or that he was not receiving more than a de minimis education benefit, at several points during the 2020/2021 school year. In this regard the Parent testified that even though she requested that the District assess address the Student’s behaviors, Ms. REDACTED stated that the District was unable to do so because of COVID, despite the fact that she presented the REDACTED Medicine Developmental Pediatric Reports to the District they failed to implement the recommendations contained therein e.g., feeding therapy, twelve month program, (Parent Ex. “E”, “F”, “K”, “L”) a. Occupational therapy, physical therapy and speech therapy services: As aforementioned the Parent requests in part that “the District be required to pay for a bank of compensatory hours in occupational therapy, physical therapy and speech therapy services, and any other related services indicated in the independent evaluations (i.e. feeding and swallow therapy) at an hourly rate to be proven at hearing” (Parent Ex. “A”).

Moreover, in the Parent’s Closing Statement she writes in part:

Evaluations were necessary to allow development of a record concerning how many hours of compensatory physical therapy, speech language therapy or occupational therapy should be awarded. The parent’s request for these evaluations was denied. As such, there is no record to establish the number of hours that should be awarded to make up for the FAPE deprivation in these areas during the 2020-2021 school year.

(IHO Ex. IV at p. 7). However, as aforementioned the Parent withdrew her request for these independent evaluations and failed to proffer any evidence in support of this request (see: Infra). Accordingly, there is no basis for this IHO to grant this requested relief. b. ABA therapy, and BCBA oversight and School Coordination/Parent Training: The Parent is requesting compensatory services consisting of ONE THOUSAND EIGHT HUNDRED AND FORTY HOURS (1,840) hours of ABA instruction and FORTY-SIX (46) hours of Parent training. In this regard, Ms. REDACTED testified:

  • • I understand that the parent is seeking a bank of hours to make up for the behavioral programming that was not provided during the 2020-2021 school year. Sadly, I cannot even begin to estimate what REDACTED would have accomplished had he had the appropriate programming. What I can say is that he ought to have had at least 1380 hours of behavioral programming during the school day, plus 460 hours in an extended school day program and 46 hours of parent training. Due to the current shortage of Licensed Behavior Analysts in New York State, if a New York State licensed clinician cannot be identified, the service may be delivered by a BCBA or a special educator with ABA training under the supervision of a Licensed Behavior Analyst, developed and overseen by a BCBA. This must also include coordination among the BCBA and the child’s current school. 2 hours a month should be provided for parent training, 4 per month for BCBA oversight and 2 per month should be provided for school coordination.
  • • A compensatory award will allow REDACTED to make progress towards the functional level he likely would have attained had he been provided with an appropriate program in the first place.

(Parent Ex. “O” at ¶¶8, 9). Ms. REDACTED’s recommendations regarding compensatory BCBA and Parent training services were based upon her testimony contained in her Affidavit at ¶¶5-6).

Moreover, Ms. REDACTED provided the following additional testimony at the Hearing as justification for the one thousand eight hundred and forty hours (1,840) hours of BCBA services and forty-six (46) hours of Parent training:

HEARING OFFICER GLASSER: Okay. In paragraph 7 you state that the parent training should have been provided to the parent one hour a week for 46 weeks.

MS. REDACTED: Yes.

HEARING OFFICER GLASSER: What's the basis of that statement?

MS. REDACTED: So best practices that always include parents in the process. So again, the 46 weeks would be, to my knowledge, as to how long the school year lasts, so that's -- that's how I got the number of 46 six hours.

HEARING OFFICER GLASSER: Why one hour a week? What's the basis of the recommended one hour per week?

MS. REDACTED: Yeah, like I said, that's the best practice in the field applied here.

HEARING OFFICER GLASSER: So that's just what you do for all students; is that correct?

...

MS. REDACTED: I said not all students. It really depends.

HEARING OFFICER GLASSER: Not all?

MS. REDACTED: Yes. Sometimes I would recommend two hours, sometimes three, depending on what the needs of the students are.

HEARING OFFICER GLASSER: So is this -- is this the best practice, or is it based on something else? I'm not clear.

MS. REDACTED: It's the best practice for the student such as [the Student].

HEARING OFFICER GLASSER: And why is that?

MS. REDACTED: So he does not show any severe maladaptive behaviors that would require parent to have a more comprehensive parent training. So one hour is optimal adult skill level that he currently possesses.

(Tr. 282-284).

HEARING OFFICER GLASSER: Okay. You state in paragraph that -- I'm just reading this – [the Student] needed behavioral programing in order to complete his homework and to learn academic skills at home; is that correct?

MS. REDACTED: Correct.

HEARING OFFICER GLASSER: And you recommend 10 hours a week for 46 weeks. What's the basis for that recommendation?

MS. REDACTED: Yeah, so for -- for the comprehensive care that REDACTED is -- according -- or based on my opinion, based on my observation and my assessment that I conducted, 30 to 40 hours a week of ABA is not something that I randomly arbitrarily selected. This amount is recommended based on research and to produce the best outcome. So I recommended 30 hours a week in the school setting and additional 10 hours in the home setting so that these skills that are taught in the school setting can be transferred into the home environment or environment outside of school to allow for comprehensive treatment to address multiple affected areas (indiscernible).

HEARING OFFICER GLASSER: I just lost you. I didn't hear the end of your answer.

MS. REDACTED: So I said that these additional 10 hours would allow for the skills that are taught in the school setting to be transferred into the environment other than school, as well as to allow for the comprehensive treatment of the areas that are affected in [the Student’s] case, as well as to, you know, possibly close the gap between [the Student’s] level of functioning compared to his peers.

HEARING OFFICER GLASSER: Okay. In paragraph 8 you state that there should be -- I think it's BCBA supervision two hours a month. Let me see -- two hours a month should be provided for parent training.

MS. REDACTED: (Interposing) Yes, this is an ongoing parent training -- parent training that I recommend, as well as the consultation, or we call it a coordination of care between the current (indiscernible) and the provider that would -- that would coordinate with the school staff and school personnel. That would be two hours a month, as well as the supervision or oversight of the provider in case the provider is a BCBA. That would be four hours a month.

(Tr. 284-286).

Notably, in addition to Ms. REDACTED’s testimony, as aforementioned the Parent provided extensive testimony that the Student’s program was not appropriate in part because of its failure to contain behavioral programing in order to address his classroom behaviors (e.g., see testimony of Mr. REDACTED at Tr. 182, and REDACTED at Parent Ex. “M” at ¶¶3-4). Moreover, despite the Parent’s request for the District to address the Student’s behaviors, they stated they were unable to do so because of COVID (Infra). Accordingly, the Parent has submitted sufficient testimony/evidence in support of her request for compensatory BCBA and Parent training hours.

However, a school year consists of one hundred and eighty (180) days, or thirty-six (36) weeks, (plus six (6) additional weeks for the extended school year) for a total of forty-two (42) weeks per year, not forty-six (46) weeks (N.Y. Educ. Law §4408(1)[9]). Accordingly, the Student is entitled to forty-two (42) weeks x 40 hours per week = 1,680 hours of BCBA services and for parent training forty-two (42) weeks x 1 hour per week of parent training = 42 hours of parent training. Based upon the aforementioned testimony and the probable outcome for the Student as a result of receiving these compensatory services, which this IHO finds to be credible, the probable outcome for the Student as a result of receiving these services, and this IHO’s computation above, the Student is entitled to compensatory services consisting of one thousand seven hundred and eighty (1,680) hours provided by a BCBA or special education teacher with ABA training under the supervision of a Licensed Behavior analyst, developed and overseen by a BCBA, and the Parent is entitled to forty-two (42) hours of parent training plus two (2) additional hours per month of parent training to coordinate, with both the BCBA (or special education teacher) and parent training being provided at the market rate. Due to the number of BCBA hours and the fact that the Student is school aged and therefore attends a full day center-based program, it may, take up to three (3) years for the Student to receive the compensatory BCBA hours being awarded pursuant to this Decision.

Pursuant to Ms. REDACTED’s aforementioned testimony, in order to foster coordination between the BCBA and the Student’s then current school, the Student should receive four (4) additional hours per month of BCBA oversight, two (2) additional hours per month of BCBA services, and two (2) additional hours per month of parent training, for the duration that this Student receives the BCBA and parent training compensatory services ordered herein (Parent Ex. “O” at ¶8).

D. Meaningful Participation: The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415(b)(1)). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5(d)). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see T.F. v. New York City Dep't of Educ., 2015 WL 5610769, at *5 (S.D.N.Y. 2015); A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *8, *10 (S.D.N.Y. 2015); E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *17 (E.D.N.Y. 2013) (stating that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions"); P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008) ("A professional disagreement is not an IDEA violation"); Sch. for Language & Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. 2006) ("Meaningful participation does not require deferral to parent choice")). When determining whether a district complied with the IDEA's procedural requirements, the inquiry focuses on whether the parents "had an adequate opportunity to participate in the development" of their child's IEP (Cerra, 427 F.3d at 192).

In the instant matter the Parent failed to submit any evidence substantiating this claim. Accordingly, this IHO cannot find that the District failed to afford the Parent meaningful participation in the planning of the Student’s program for the 2020/2021 and 2021/2022 school years.

E. District’s Assessment of Impact of Student’s Behaviors/Behavioral programming: The Parent presented credible evidence substantiating her claim that the District failed to assess the impacts of the behaviors associated with the Student’s autism and in general with respect to the 2020/2021 and 2021/2022 school years. In this regard, Ms. REDACTED testified in relevant part:

  • • I reviewed the IEP that was developed for the 2020-2021 school year and understand that REDACTED’s attentiveness was a concern when his IEP for the 2020-2021 school year was developed. However, that IEP contained no analysis of REDACTED’s behavior or provisions or appropriate supports or strategies to reduce his maladaptive behaviors and increase his functional skills.
  • • (Parent Ex. “O” at ¶4).
  • • Well, some things that were reported in the IEP of 2020/2021 were indicating to me that certain problem behaviors were observed within that year, but I could not find the evidence that any evidence-based practices were -- were used to alleviate or address those problems.

(Tr. 276).

HEARING OFFICER GLASSER: What behaviors 10 were you referring to?

MS. REDACTED: Inattention. The fact that he was escaping the tasks presented to him. Inability to follow directions on his own. The fact that he required consistent prompting in order to comply. Impairment in expressive and receptive language. Can you hear me?

(Tr. 277).

While the Parent testified:

MS. REDACTED: Do you recall whether you ever discussed behavioral implementation of behavioral programing by the Public School District with anyone from the District?

[PARENT]: I did discuss with Ms. REDACTED, about his behavior and what type of support he needs to address those behavioral issues, yes.

MS. REDACTED: And do you recall what her response was?

[PARENT]: She said something on the lines of him not being able to be in the classroom, so you know, it was kind of just, like, well, he's not in the school, so we can't really provide what he -- you know, what -- what it is, what my concerns were. So it was kind of just, like, a -- like, a -- we can't really provide that right now because of the situation.

MS. REDACTED: The situation being COVID?

[PARENT]: Yes.

MS. REDACTED: Okay. Did you ever ask the District to do a functional behavioral analysis?

[PARENT]: I did ask them if they provide some sort of behavioral evaluations so they can actually see what type of -- like, what exactly he needs, because if you're going to place him, he needs to have something so you can know exactly what he needs, but yeah.

MS. REDACTED: And do you recall when you made that request?

[PARENT]: I -- trying to remember exactly; I'm looking at my emails.

MS. REDACTED: Well, please don't, just look at the evidence. (Indiscernible) –

HEARING OFFICER GLASSER: (Interposing) Excuse me –

[PARENT]: (Interposing) I don't -- yeah, I don't –

HEARING OFFICER GLASSER: -- excuse me, [Parent]. No, no -- listen. [Parent], you can't look at any documents other than the documents that are in front of you, okay?

[PARENT]: Oh, no, I'm not looking. I'm looking at -- no, no, no. I'm just looking at K and J.

HEARING OFFICER GLASSER: Okay, fine, all right. Thank you.

[PARENT]: Yes. Okay, so no, I don't have an answer for that question.

MS. REDACTED: Okay, but did you discuss your concerns about the need for behavioral analysis sometime in the spring of 2021?

[PARENT]: Yes.

MS. REDACTED: Okay, do you recall what you were told at that time?

[PARENT]: Everything was mainly about COVID, so because it was remote learning, they were unable to provide the additional services, or -- or any -- anything that I had a major concern with, it was kind of more so a problem with COVID. So that was the reason why they weren't able to provide certain services.

(Tr. 139-141).

[PARENT]: Her and I discussed some of the behavioral assessments -- HEARING OFFICER GLASSER: (Interposing) Okay.

[PARENT]: -- that I felt that he -- he needed.

HEARING OFFICER GLASSER: And what behavioral assessments did you feel he needed?

[PARENT]: Well, because of his lack of attention, I wanted to see if they had a behavioral specialist that could, you know, evaluate him to see exactly what type of support he needed, and if he was -- you know, what type of classroom he needed to be in.

HEARING OFFICER GLASSER: And Ms. REDACTED stated that that couldn't be conducted because of COVID; is that correct?

[PARENT]: She stated because he was a -- I'm trying to remember exactly what it was she said.

HEARING OFFICER GLASSER: You don't have to remember. Just if you remember the gist of what you said, or if you don't remember, you don't remember.

[PARENT]: That definitely was the -- sorry, that definitely was the gist of -- of what our discussions were, was about the pandemic, and things being difficult to be done because of the COVID pandemic.

(Tr. 159-160).

In addition to the above-quoted testimony, the record is replete with additional testimony substantiating the Parent’s claim that the Student’s program was not appropriate in part because of its failure to contain behavioral programing in order to address his classroom behaviors (e.g., see testimony of Mr. REDACTED at Tr. 182 -184, REDACTED at Parent Ex. “M” at ¶¶3-4, Ms. REDACTED at Parent Ex. “O” at ¶¶5.6).

Moreover, under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414(d)(3)(B)(i); 34 CFR 300.324(a)(2)(i); see 8 NYCRR 200.4(d)(3)(i); see also E.H. v. Bd. of Educ., 2009 WL 3326627, at *3 (2d Cir. 2009); A.C., 553 F.3d at 172; J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 (S.D.N.Y. 2009); M.M. v. New York City Dep't of Educ., 583 F. Supp. 2d 498, 510 (S.D.N.Y. 2008); Tarlowe v. New York City Board of Educ., 2008 WL 2736027, at *8 (S.D.N.Y. 2008); W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 149-50 (S.D.N.Y. 2006). To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student (20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(a), (b)(3); Piazza v. Florida Union Free Sch. Dist., 777 F. Supp. 2d 669, 673 (S.D.N.Y. 2011); Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 (N.D.N.Y. Sept. 29, 2009) (discussing the student's IEP which appropriately identified program modifications, accommodations, and supplementary aids and services); P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 380 (S.D.N.Y. 2008)). State regulation defines a functional behavioral assessment (“FBA”) as the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment" and include(s), but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it (8 NYCRR 200.1(r)). According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the student's history of presenting problem behaviors (8 NYCRR 200.22(a)(2)). An FBA must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a BIP (if required) may be developed "that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement" (8 NYCRR 200.22(a)(3)). Although State regulations call for the procedure of using an FBA when developing a BIP, the Second Circuit has explained that, when required, "[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all" (R.E. v. New York City Dep't of Educ., 694 F.3d 167, 190 (2d Cir. 2012). The Court also noted that "[t]he failure to conduct an FBA will not always rise to the level of a denial of a FAPE," but that in such instances particular care must be taken to determine whether the IEP addresses the student's problem behaviors (id.).

Accordingly, as part of the District’s assessment of the Student’s interfering behaviors they should have considered what if any positive behavioral interventions, supplementary aids and services, and supports, and other strategies, were necessary to address the Student’s interfering behaviors, whether a functional behavioral assessment and ultimately behavior intervention plan should have been developed for the Student, which does not appear to have been done in his case.

F. Tuition Reimbursement: A board of education may be required to pay for educational services obtained for a child by the child's parent, (1) if the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim (Burlington Sch. Comm v. Mass. Dep’t. of Educ., supra; Florence County Sch. Dist. Four et al. v. Carter, supra; see also Frank G. and Dianne G. v. Board of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. Sch. Dist. v. Frank G., 2007 WL 2982269 (2007). Accordingly, the above-stated three (3) prong analysis (the “Burlington/Carter Criteria”) is applied to determine whether the board of education is required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents. Id.

The inquiry made pursuant to the first prong, may go beyond the appropriateness of the student’s IEP and/or placement and encompass other FAPE claims (see 20 USC §1412(a)(10)(C)(ii); 34 C.F.R. §300.148(a) and (c); Forest Grove v. T.A., 557 U.S. 230 (2009); P.C. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.D.N.Y. 2011); Mr. N.C. v. Bedford Cent. Sch. Dist., 300 F. App’x 11 (2d Cir. 2009). To determine whether the school district made FAPE available to the student in a timely matter, Rowley’s two-part test, as modified by Endrew F. v. Douglas County Sch. Dist., RE-1, supra, for appropriateness should be applied. Specifically, the hearing officer must determine whether the school district complied with the procedural requirements of the IDEA and whether the IEP is reasonably calculated to enable the child to make appropriate progress in light of her circumstances. Id. “An appropriate educational program therefore begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” (See Application of the Dept. of Educ., Appeal No. 07-018 (2007)). Thus, the annual goals and short-term objectives should be consistent with, and relate to, the identified needs and abilities of the student. See Application of a Student with a Disability, Appeal No. 14-078 (2015) (citing 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 CFR § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii)).

While the Second Circuit has emphasized that school districts must comply with a checklist of procedures for developing a student’s IEP, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA. See A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits to the student (20 U.S.C. §1415(f)(d)(E)(ii); 34 C.F.R. §300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)).

In the instant case, the DOE failed to put on a direct case, present rebuttal testimony, or submit a written closing statement (see infra). As aforementioned, the DOE has the statutory burden of persuasion and production in this case, to show that the program and services offered by the DOE pursuant to the Student’s IEPs were adequate or appropriate in order to satisfy Prong I of the Burlington/Carter Criteria. Accordingly, the District failed to proffer sufficient documentary or any testimonial evidence or otherwise prove that it had offered the Student a FAPE for the 2021/2022 school year, e.g., whether it offered a program that “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

The Parent presented extensive and credible testimony proving the District’s recommended program, including but not limited to the 12:1+1 class is not appropriate for the Student, in that it does not address his needs e.g., Parent (Tr. 142-143, 144, 151-152), REDACTED (Tr. 105-106, 106-107), REDACTED (Parent Ex. “M” at ¶14), REDACTED (Tr. 182-183, 183-184), and REDACTED, who testified in part regarding the deficiencies in the Student’s program recommended by the District (Parent Ex. “O” at ¶¶3-7) (see: Infra).

As aforementioned, the District failed to put on a direct case or present rebuttal testimony. Consequently, since the hearing record is devoid of any persuasive evidence, arguments or statutory authority proffered by the District, which can adequately support a contention or otherwise negate the Parents’ allegations, it is this IHO’s finding, as discussed more fully infra that the District both procedurally and substantively denied the Student a FAPE, for the 2021/2022 school year.

Due to the DOE’s failure to satisfy the first prong of the Burlington/Carter criteria, the burden shifts to the Parents to prove that the unilateral placement was appropriate or proper. Burlington Sch. Comm., 471 U.S. at 369 and 370; see also Florence County Sch. Dist. Four et al. v. Carter, 510 U.S. at 15. In order 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)). In this regard, the court in Gagliardo explained:

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.

Id. at 112 (quoting, Frank G., 459 F.3d at 364-65).

However, the private school placement “need not meet the IDEA’s definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Board of Educ., at 364). Moreover, 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. Id.

In the instant case, the testimony and documentary evidence overwhelmingly support the Parent’s claim that the Student’s placement at the School provides him with educational instruction that is specifically designed to meet his unique special education needs, supported by such services that are necessary to permit him to benefit from instruction and established that the Student has, in fact, made meaningful progress at the School (see: Parent Ex. “D”, the School Quarterly Progress Report Summer Session which stated that all of the Student’s skills were “maintained” when he was enrolled in the Summer 2021 program at the School); and “M” at ¶¶13-15). In this regard REDACTED also testified in relevant part:

I not only observed [the Student] in his current school [The School], but reviewed progress reports from the school. The current school is utilizing principles of applied behavioral analysis and has succeeded in increasing [the Student’s] functional behaviors in a way that has increased his ability to be available for instruction. They are also using behavioral methodologies to increase [the Student’s] functional communication. In my opinion, his current school is providing the kid of behavioral interventions that should have been in place for [the Student] during the previous school year.

(Parent Ex. “O” at ¶3). While, as aforementioned, REDACTED testified regarding the initial assessment of the Student and the behavioral interventions used at The School to address the Student’s behaviors (see: Infra).

When asked “why” the Student was admitted to the School, Mr. REDACTED testified:

We just felt that he needed an individualized program. And he had global deficits that warrant -- in cognitive areas and academics, in his communication, social development, his independent living skills. And we just felt like, just based on his overall developmental delays, that he was similar to the students in our program.

(Tr. 68). Mr. REDACTED also testified how the School determined the Student’s class (Tr. 68-70), and the improvements he has seen in the Student since he started at the School (Tr. 73).

The Student’s teacher at the School, Ms. REDACTED, testified regarding the Student’s lack of attention and inability to stay seated when he first started in her class, the behavioral and other strategies used to address these behaviors throughout the school day and the improvement she has seen in the Student’s behaviors as a result of these interventions (Tr. 95-97).

The Parent testified in relevant part regarding the progress in the Student’s communication skills and reading comprehension since he started at The School (Tr. 146, 149-150), and the fact that the Speech therapist is working on the Student’s feeding skills which was recommended in the REDACTED Medicine Developmental Pediatric Report (Parent Ex. “D”), she had shared with the District (Tr. 148-149) and the School provides her with strategies to use at home with the Student (Tr.153). is providing is pro The determination of whether, or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether, the parent cooperated with the CSE. In the instant matter, the DOE failed to provide any evidence and/or raise any equitable factors, which would preclude or limit tuition reimbursement for the Parent’s unilateral placement of the Student at the School for the 2021/2022 school year. In fact, the only issue that may have impacted upon these equitable factors is the fact that the Parents signed the contract with the School on May 19, 2021, which required a TWO THOUSAND DOLLAR ($2,000.00) nonrefundable deposit which was made (Parent Ex. “H”, Tr. 357). However, the Parent testified in relevant part that she signed the contract with the School with the understanding that she could cancel the contract without financial penalty if the District provided an appropriate placement for the Student (Tr. 154, 165). In addition, the Parent testified that she never refused to attend a meeting with the District (Tr. 132), and that even though her attorney provided a ten-day no.00tice of her intention to place the Student at the School, she never received a reply from the DOE (Tr. 122).

Based on the foregoing, this IHO finds that the Parent has satisfied the third prong of the Burlington/Carter Criteria for tuition reimbursement. Having met all three (3) of the Burlington/Carter Criteria, the Parent is entitled to reimbursement for the cost of the Student’s tuition at the School for the 2021/2022 school year. The record in this case establishes that the Student’s total annual tuition at the School for the 2021/2022 school year is ONE HUNDRED AND FOUR THOUSAND FIVE HUNDRED AND FIFTY-THREE DOLLARS ($104,553.00) of which the Parent has paid TWO THOUSAND DOLLARS ($2,000.00), leaving a remaining balance of ONE HUNDRED AND TWO THOUSAND FIVE HUNDRED AND FIFTY-THREE DOLLARS ($102,553), with FIFTY TWO THOUSAND TWO HUNDRED AND SEVENTY SEVEN DOLLARS ($57,277.00) due the School as of the date of this Decision, TWENTY FIVE THOUSAND ONE HUNDRED AND THIRTY EIGHT DOLLARS ($25,138.00) due the School on or before May 1, 2022, and TWENTY FIVE THOUSAND ONE HUNDRED AND THIRTY NINE DOLLARS ($25,139.00) due the School on or before June 1, 2022 (see: Parent Ex. “C”, “H” and “I”, Tr. 127, 128).

However, the Parent appears to maintain it is a financial hardship to fund her child’s tuition at the School because the family’s total annual household income is THIRTY NINE THOUSAND FIVE HUNDRED DOLLARS ($39,500) and that there are no other sources of funds to support the Student (Tr. 119-120). Based upon the total household income, the Parent has shown that it, would be a financial hardship for her to fund the Student’s aforementioned tuition at the School for the 2021/2022 school year, totaling ONE HUNDRED AND FOUR THOUSAND FIVE HUNDRED AND FIFTY-THREE DOLLARS ($104,553.00), and is therefore requesting the DOE be ordered to pay such tuition directly to the School (Parent Ex. “A”).

As explained by the Court in Mr. & Mrs. A. ex rel. D.A. v. New York City Dept. of Educ., 769 F. Supp 403 (S.D.N.Y. 2011):

Within this Circuit, a number of courts have stated or suggested in dicta that a direct tuition remedy is available where parents have presented a meritorious Burlington claim but lack the financial means to pay private school tuition out-of-pocket. For example, in Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998), plaintiff sought prospective payment of tuition costs at a non-approved private school, where the school district had conceded that it could not provide a FAPE to her child. Connors, 34 F. Supp. 2d at 797, 799. The school district contended that IDEA does not authorize prospective direct payment of private school tuition, and that plaintiff was required "to front the costs of unilateral and thereafter to request due process review in order to obtain reimbursement for same." Id. at 800. The court concluded that the school district could be required, under § 1415, "to pay the tuition directly" to the private school:

once the Burlington prerequisites relative to a nonapproved private school are met, and a parent show that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately. Id. at 805-06.

Id. at 425.

Moreover, under 20 U.S.C. §1415((i)(2)(C)(iii) direct retroactive payment is an appropriate remedy in proceedings under IDEA (see: Mr. and Mrs. A. ex rel. D.A. v New York City Dept. of Educ., supra at 428, in which the court held "[W]here a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs or will take years to do so parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief." Id.

Since the Parent has presented a “meritorious Burlington claim but lack the financial means to pay the School’s tuition out-of-pocket”, the direct payment to the School of the Student’s tuition for the 2021/2022 school year, is an appropriate remedy in this case (see: Connors v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y. 1998), Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., supra).

G. Transportation: As aforementioned the Parent requests that a determination be made by this IHO that the District is obligated to provide transportation to the School (Parent Ex. “A”). Notably, the Parent testified that the District has been providing the Student with transportation to the School since the beginning of the 2021/2022 school year (Tr. 145). Nonetheless, as explained by the SRO in App. No. 18-115 (2018), citing relevant case law:

... under a more traditional application of the Burlington/Carter framework for tuition reimbursement, an order for tuition reimbursement may very likely have included the costs of the transportation sought by the parent (see Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 [9th Cir 1994) (finding "that the language and spirit of the IDEA encompass reimbursement for reasonable transportation and lodging expenses... as related services"); see also N.E. Cent. Sch. Dist. v. Sobol, 79 N.Y.2d 598, 608 (1992) [finding that, since a FAPE included related services such as transportation, an order of reimbursement for transportation was an appropriate remedy for a denial of a FAPE)).

Id.

Accordingly, this IHO’s decision that the Parent is entitled to tuition reimbursement, encompasses reimbursement for the Student’s reasonable transportation to the School for the 2021/2022 school year.

ORDER

IT IS HEREBY ORDERED that the District shall fund up to ONE THOUSAND SIX HUNDRED AND EIGHTY (1,680) hours of BCBA services for the Student, to be provided at the market rate, over a three (3) year period after the date of this Decision;

AND IT IS FURTHER ORDERED that the District shall fund up to FORTY-TWO (42) Hours of parent training to the Parent, to be provided at the market rate;

AND IT IS FURTHER ORDERED that the District shall fund four (4) additional hours of BCBA oversight services to be provided at the current market rate, for up to three (3) years or when the Student has received all of the above-ordered BCBA compensatory services, whichever is less;

AND IT IS FURTHER ORDERED that the District shall fund two (2) additional hours of BCBA services per month, at the current market rate, to coordinate the Student’s services with his then current school, for up to three years or when the Student has received all of the above-ordered BCBA services, whichever is less;

AND IT IS FURTHER ORDERED that the District shall fund two (2) additional hours of parent training services per month, at the current market rate, to coordinate the Student’s services with his then current school, up until the Parent has received all of the above-ordered parent training services;

AND IT IS FURTHER ORDERED that no later than thirty (30) days after this Decision, the DOE shall reimburse the Parent the total amount of TWO THOUSAND DOLLARS ($2,000.00), representing the amount the Parent paid towards the Student’s annual tuition at the School for the 2021/2022 school year;

AND IT IS FURTHER ORDERED that no later than thirty (30) days after this Decision, the DOE shall pay directly to the School the total amount of ONE HUNDRED AND TWO THOUSAND FIVE HUNDRED AND FIFTY THREE DOLLARS ($102,553.00) which is comprised of SEVENTY SEVEN THOUSAND FOUR HUNDRED AND FOURTEEN DOLLARS ($77,414.00), (TWO HUNDRED DOLLARS ($200.00) due on May 15, 2021, June 1, 2021, July 1, 2021, September 1, 2021, October 1, 2021, November 1, 2021, December 1, 2021, January 1, 2022, and February 1, 2022, plus the TWENTY FIVE THOUSAND ONE HUNDRED AND THIRTY-EIGHT DOLLARS ($25,138.00) due March 1, 2022, April 1, 2022, May 1, 2022) plus, the remaining balance of TWENTY FIVE THOUSAND ONE HUNDRED AND THIRTY-NINE DOLLARS ($25,139.00) which shall be paid on or before June 1, 2022; with the total amount being ordered herein, representing the Student’s total tuition (minus the $2,000,00) deposit paid by the Parent), for the School for the 2021/2022 school year; and AND IT IS FURTHER ORDRED that the District is obligated to provide the Student with roundtrip transportation between his home and the School for the 2021/2022 school year.

April 24, 2022

Corrected: April 25, 2022

Corrected: April 26, 2022

Randy Glasser

Randy Glasser, Esq.

Impartial Hearing Officer

NAMES AND TITLES OF APPEARANCES FOR HEARING HELD ON:

DECEMBER 1, 2021

DOE

REDACTED, District Representative

PARENT

REDACTED, Esq.

REDACTED, Parent

REDACTED, Director, REDACTED, The School

REDACTED, Teacher, The School

REDACTED, REDACTED, The School

MARCH 14, 2022

DOE

REDACTED, District Representative

PARENT

REDACTED, Esq.

REDACTED, Parent

MARCH 22, 2022

DOE

REDACTED, District Representative

PARENT

REDACTED, Esq., Attorney

REDACTED, REDACTED

REDACTED, Parent

DOCUMENTS ENTERED INTO THE RECORD

IHO Exhibits

I. Interim order, 12/13/21, 8 pages

II. Email correspondence, 12/15/21 to 12/21/21, 4 pages

III. Email, 4/11/2022, 1 page

IV. Parent’s Closing Statement, undated, 15 pages

V. Order of Extension, 3/22/2022, 1 page

DOE Exhibits

  • • 1. IEP, 4/16/2020, 23 pages
  • • 2. IEP, 4/9/2021, 23 pages Parent Exhibits A. Impartial hearing Request, 7/9/2021, 5 pages B. Ten-day letter, 6/15/21, 1 page C. The School enrollment contract, '21/'22, 5/20/21, 4 pages D. The School quarterly progress report, 7/2021 to 8/2021, 6 pages E. Pediatric report, REDACTED, 4/30/21, 7 pages F. Developmental pediatric report, 12/13/19, 7 pages G. REDACTED psychological evaluation, 10/24/20, 6 pages H. Tuition affidavit, 11/3/21, 1 page I. Parent proof of payment, various dates, 7 pages J. Email from REDACTED, unidentified 4/26/2021, 1 page K. Email from REDACTED, 4/27/21, 1 page L. Areas of instructional and therapeutic focus by The School, 2021/2022, 3 pages M. Affidavit of REDACTED, 3/8/22, 4 pages N. Affidavit of REDACTED, 3/8/22, 1 page O Affidavit of REDACTED, 3/8/22, 2 pages

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] This appears to be a typographical error and should be referring to the New York Commissioner of Education instead.

[2] This evaluation was ordered and performed pursuant to this IHO’s Interim Order dated December 13, 2022 (IHO Ex. “I;” see also Parent Ex. “O”).

[3] This evaluation was ordered and performed pursuant to this IHO’s Interim Order dated December 13, 2022 (IHO Ex. “I;” see also Parent Ex. “M”).

[4] The Individuals with Disabilities Education Act (“IDEA”) does not authorize an administrative officer, e.g., IHO, to award attorneys' fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction (see 20 U.S.C. § 1415(i)(3)(B); B.C. v. ColtonPierrepont Cent. Sch. Dist., 2009 WL 4893639, at *2 (2d Cir. 2009) (holding that the possibility that parents may recoup attorneys’ fees does not salvage an appeal from being moot); see also Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); Ivanlee J. v. Wilson Area Sch. Dist. 1997 WL 164272, at *1 (E.D.Pa. 1997) (noting that administrative hearing officers may not award attorneys’ fees under the fee shifting provisions of the IDEA); Andalusia City Bd. of Educ. v. Andress, 916 F.Supp. 1179, 1183 (M.D.Ala. 1996)); see generally, Dell v. Bd. of Educ., Twp. High Sch. Dist., 32 F.3d 1053, 1055-56 (3d Cir.1994); Moore v. District of Columbia, 907 F.2d 165, 166 (D.C. Cir. 1990). Therefore, this IHO does not have authority to issue the requested attorney’s fees.

[5] See, e.g., M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996) holding that when a school district knows or should know that a disabled child’s program is deficient yet fails to correct it, the child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the program. See also: Manchester Sch. Dist. V. Christopher B., 807 F. Supp. 860 (D.N.H. 1992).

[6] See, e.g., Reid v. Dist. of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (adopting a flexible, fact-specific approach in which the ultimate award is reasonably calculated to provide the educational benefits that likely would have occurred from special education services that the school district should have supplied in the first place).

[7] See, L.O. v. New York City Dep’t. of Educ., 822 F.3d 95 (2d Cir. 2016) (remanding to the district court to determine whether the student is entitled to relief by “’leav[ing) the mechanics of structuring the compensatory education award to the [D)istrict [C)ourt’s sound discretion’”); Doe v. East Lyme Board of Educ., 700 F.3d 440 (2d Cir. 2015 (remaining to the District court to decide whether compensatory education should be limited to the kinds of services specified in the student’ contested IEP or encompass analogous educational services appropriate to the student’s current needs).

[8] See, e.g., Student X. v. New York City Dep’t. of Educ., 51 IDELR 122 (E.D.N.Y. 2008) (noting that the Second Circuit has not adopted a test for determining how to calculate an award of compensatory education but awarding hour-for-hour).

[9] N.Y. Educ. Law 4408(1) provides: State aid. The commissioner shall make payments for approved July and August programs for students with disabilities in accordance with this section in an amount equal to eighty percent of the sum of the approved tuition and maintenance rates and the transportation expense for the current year enrollment of students with disabilities ages five through twenty-one or students eligible for services during July and August pursuant to article eighty-five, eighty-seven or eighty-eight of this chapter, 1 where such costs are determined pursuant to section forty-four hundred five of this article, provided that the placement of such students was approved by the commissioner, if required. Such programs shall operate for six weeks and shall be funded for thirty days of service, provided, however, that the observance of the legal holiday for Independence day may constitute a day of service. Upon certification by the school district in which the student resides, that such services were provided, such payment shall be made to the provider of such services, in accordance with the provisions of subdivision three of this section. (Emphasis added).