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CASE NUMBER: 562063 - NYC: 217914
FINDINGS OF FACT AND DECISION
Case Number: 217914
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: Harry A. Christodoulou
Date of Filing: 09/17/2021
Hearing Requested by: REDACTED
Date of Hearing: 04/14/2022, 05/12/2022, & 06/16/2022
Record Close Date: 06/28/2022
Date of Decision: 06/29/2022
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 14, 2022
For the Student:
REDACTED (hereinafter referred to as “Parents’ representative”)
Mother
For the Department of Education (“DOE”):
REDACTED (hereinafter referred to as “District’s representative”)
REDACTED (hereinafter referred to as “District’s Witness”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 12, 2022
For the Student:
Parents’ representative
Mother For the DOE:
District’s representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 16, 2022
For the Student:
Parents’ representative
Mother
REDACTED (hereinafter referred to as “Parents’ Witness 1”)
REDACTED (hereinafter referred to as “Parents’ Witness 2”)
For the DOE:
District’s representative
BACKGROUND AND PROCEDURAL HISTORY
Student is a REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.
On September 17, 2021, the Parents, through the Parents’ representative firm, filed a due process complaint (“DPC”) against the DOE pursuant to the IDEA (Exhibit IHO-I). I was appointed on November 02, 2021, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC, concerning the special education program of the Student.
The claims in the DPC relate to the Student’s special education program and placement for the 2021-2022 SY, asserting that based on numerous procedural and substantive grounds, the DOE failed to offer the Student a Free and Appropriate Public Education (“FAPE”). Parents are seeking, inter alia, tuition reimbursement for the cost of the Student’s placement at the Attending School for the 2021-2022 SY (Exhibit IHO-I-8).
The parties sought, and were afforded time, to try resolve the matter without the need for an IH. At a status conference held on March 11, 2022, it was agreed to schedule the IH for April 14, 2022 (T. P13, L2-7).
There were three DPCs (Exhibit P-A, IHO-I, and IHO-II). Parents’ representative confirmed at the IH that the Parents were not relying on Exhibit P-A, which was not filed or processed. Although Exhibit IHO-II had been processed as a DPC, it was done as a corrected DPC, whereas it is clear from the contents of that DPC (Exhibit IHO-II) as compared to the contents of the original DPC (Exhibit IHO-I), that it contained substantive amendments.
There was an extensive discussion held at the IH around the three DPCs, but the IH hearing still proceeded and there was no subsequent application made to formally amend the DPC in accordance with the regulations[1].
Insofar as the relief is concerned, there is only one addition to the request for relief added to the corrected DPC (Exhibit IHO-II) that is not included in the original DPC (Exhibit IHO-I), namely the request to find that the DOE violated the Student’s rights by failing to provide her with a 1:1 transportation paraprofessional since the first day of the 2021-2022 SY (Exhibit IHO-II-8, f.).
Given the DOE’s decision to concede Prong I, the Parents attempt to include this additional relief is unnecessary for the Parents to prevail and as such, does not require me to address the fact of the Parents not having formally amended the original DPC (Exhibit IHO-I) in accordance with the regulations, as opposed to filing a “corrected DPC” (Exhibit IHO-II).
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[2] and its implementing regulations[3], and the New York State Education Law[4] and its implementing regulations[5].
PARTIES’ POSITIONS AND CASES PRESENTED
DOE:
At the IH held on April 14, 2022, the District’s representative confirmed that the DOE was putting on a case in the sense that it would be calling two witnesses (T. V-I, P7, L7-8), and that it intended to submit 23 documents for admission to the record (T. V-I, P6, L24-5; P7, L8-10).
Notwithstanding Parents’ representatives’ objections noted on the record to Exhibits DOE-17 and DOE-18, the 23 documents proposed by District’s representative were admitted to the record and are listed below (T. V-I, P10, L19-25; P11-5; P16, L1-8). There were no objections raised to the admission of the DOE’s other proposed exhibits (T. V-I, P7, L10-16).
In an opening statement at the IH, District representative:
Confirmed that the DOE would be putting on a case regarding Prong I to show on a preponderance of the evidence that the DOE provided the Student with a FAPE for the 2021-2022 school year (“SY”); indicated that the DOE’s case would consist of the testimony of District’s Proposed Witness (defined on page 25) being the site coordinator at Proposed School (defined on page 25) who would testify that the school had a spot for the Student and could have implemented the program recommendations on the Student’s Individualized Educational Program (“IEP”); stated that District’s Witness, who was the district representative and school psychologist at the IEP meeting, would testify that the DOE’s program recommendation was appropriate given the Student’s academic, social, and behavioral needs; stated that the DOE was putting the Parents to proof of their Prong II burden as regards the appropriateness of the placement at the Attending School; asserted that the Parents declined to pursue all the programs the DOE offered, referencing the DOE Program (defined on page 25) and that the Parents’ withdrawal of their application thereto constituted “a cooperation issue”, impacting the equities regarding Prong III in favor the DOE; and reserved the right to raise additional Prong III arguments (T. V-I, P22, P23, 1-7).
District’s Witness was called to testify regarding the District’s Prong I case (T. V-I, P28-65) and another IH date was set, namely May 12, 2022, for District’s Proposed Witness to testify (T V-I, P73, L23-5; P24, L1-15). At the IH on May 12, 2022, District’s representative provided an update and confirmed on the record that the DOE was conceding FAPE, that it would not be putting on any more witnesses, and that the DOE rested its case (T. V-III, P98, L24-25; P99, L1-2).
In a closing statement at the IH, District representative, inter alia (T. V-IV, P138, L21-25; P139-141; P142, L1-12): Asserted that Parents failed to meet their burden that the unilateral placement was appropriate due to the Student’s limited progress and the lack of qualifications of the Student’s teachers; or that equitable considerations would limit the award and further asserted, based on prevailing case law and that the Parents were not asserting that the Student was not making progress, that the Parents’ claim for home-based ABA services was without merit.
Parents:
Parents, through the Parents’ representative, submitted 25 documents in support of the Parents’ case. All Parents’ proposed exhibits were admitted to the record (and are listed below) after confirming with the District’s representative that there were no objections from the DOE to those documents being admitted into evidence (T. V-I, P7, L16-21; P16, L9-25; P17; P18, 1-6; V-IV, P109, L5-25; P118, L3-7; P123, L22-25; P124, L1-6).
Mother, Parents’ Witness 1, and Parents’ Witness 2 were required for cross-examination and/or clarifying questions and appeared at the IH for that purpose. Exhibits P-W, P-X, and P-Y were admitted into evidence once the said witnesses dialed-in to the IH to testify. For Exhibits P-X and P-Y, Parents’ Witness 2 and Mother verified the contents of their respective “affidavits”[6] and the contents thereof as true and correct, after being sworn in or placed under oath (T. V-I, P7, L21-5; V-IV, P111, L8-18; P125, L7-11). Exhibit P-I was admitted as the Affiant (defined on page 25) was not required for either cross-examination or clarifying questions (T. V-IV; P124, L1-6).
In a combined opening and closing statement, Parents’ representative inter alia (T. V-IV, P133, L9-25; P134-137; P138, L1-3): Stated that the DOE conceded that it failed to provide the Student with a FAPE and how the Parents had met Prongs II and III; asserted that there were no equitable reasons to reduce the requested relief from being awarded, as the Parents cooperated and maintained an open mind throughout the process; and also clarified the relief sought in response to District’s representative’s queries.
PREVAILING PARTY
Parents are the prevailing party, and an award or Order is granted in their favor.
LEGAL FRAMEWORK
A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits[7].
If a procedural violation is alleged, an impartial hearing 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[8].
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE[9], and default judgments are disfavored by the federal courts[10]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”[11].
School districts are not required to “maximize” the potential of students with disabilities[12], but must provide “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement’”[13]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit”[14].
The IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student[15].
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, which exception applies in this case[16].
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents’ claim[17].
FINDINGS OF FACT AND DECISION
Prong I - Denial of a FAPE:
The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”[18] The DOE set out to provide such an explanation through the testimony of District’s Witness and the documentation submitted into evidence to substantiate a case that it offered the Student a FAPE for the 2021-2022 SY. The DOE, as of right, subsequently elected to concede that it failed to provide the Student with a FAPE for the 2021-2022 SY.
Given the DOE’s decision to concede Prong I, it has not discharged its burden in these proceedings to establish that it provided the Student a FAPE for the 2021-2022 SY. Parents have accordingly met the first criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement.
Prong II - Appropriateness of the Parents’ Placement:
Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, 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”[19]. The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements”[20].
The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child”[21].
The Judges in the Gagliardo case wrote that “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”[22] (my emphases).
In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and that the placement must reasonably serve those needs to an extent that permits the child to benefit from the instruction. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP. A District is not required to conduct its own evaluations in developing an IEP and recommending an appropriate program but may rely on information obtained from the Student’s private school personnel, including sufficiently comprehensive progress reports, in formulating the IEP[23].
Evidence on record:
Parents’ representative presented detailed testimony by Parents’ Witness 2, Parents’ Witness 1, and Mother and submitted documentary evidence in support of the Parents’ position that the Attending School placement was appropriate.
Parents’ Witness 1 testified (Exhibit P-W) as to:
Her credentials and work experience (1-5); ABA as an evidenced-based therapy (6-8); her familiarity with the Student (9); the three classroom teachers working with the Student and a case manager, as well as the case manager’s responsibilities (9); the meetings that she would hold twice a week with the case manager and what those meetings focused on (10-11); the assessments used when the Student first arrived at the Attending School to understand the Student’s current levels at the time and what the Student would need at the Attending School (12), and the school being set up to provide that level of support.
The Student’s skills being limited across all domains and how she did not communicate verbally at all and that her nonverbal communication was extremely limited (13); the class that the Student attended for the 2021-2022 SY with two other students and the 1:1 ABA instruction she received (14); the related services that the Student received, namely five sessions of speech and language therapy per week and four sessions of occupational therapy per week (14); the Student, like all other students at the Attending School, had an IEP developed by the Attending School, which contained targets and goals for each related service (14; 17; 18); the two other students in the Student's class being at similar functioning levels to the Student and that limited interaction among the students was permitted, including group activities such as adaptive physical education, which was used to foster as much interaction as possible (15-16).
The Student learning how to use an iPad to help her communicate with the use of a specified application, providing examples and asserting that without these necessary communication skills the Student was prone to engaging in problematic behaviors such as vocal protesting, loping, and dropping (19); how the Student had mastered the skill of identifying items on her class schedule, but that transitions remained challenging for her and how she continued to require 1:1 support when walking from one location to another within the school building; the Student’s tendency to elope if a teacher was not next to her or holding her hand, and how the school used edible reinforces for transitions throughout the school to limit the Student’s maladaptive behaviors, as well as a multi picture schedule with verbal headlining throughout the day to increase predictability (20).
The Student’s challenging or interfering behaviors in detail and how these interfered with her ability to learn, remain safe, and socially interact (23); the Attending School’s assessment conducted to determine the function of the interfering behaviors and use of that data to create a behavior plan with interventions designed to reduce and replace the problem behaviors, and detailed instructions on how to respond when she engaged in those behaviors (24); how the Student’s intense tantrums became more frequent in the fall, which the Attending School addressed with the Mother, resulting in the amended behavior intervention plan (Exhibit P-L) (25); how once the Attending School figured out the function and developed the intervention, they immediately preceded to teach the Student self-soothing techniques, with examples provided (25); the effectiveness of the behavior intervention plan and the Student’s responsiveness thereto (26); how the Attending School created a safe space for the Student to escalate her tantrums (27); her recommendation that the Student continue to receive 1:1 instruction utilizing the methodology of ABA to further develop communication, attending and behavioral controls, as well as to acquire and generalize skills across all domains (29).
Mother testified (Exhibit P-Y) as to:
The Student’s early communication experiences, the services received during early intervention as well as the placements the Student attended for prior school years and the related services received at that time (1-4); the issues that the Student struggled with then (5; 6); the neuropsychological evaluation obtained and the recommendation of the neuropsychologist (Parents’ Witness 2), namely a full time 1:1 ABA program in a small highly structured classroom (7; 8); how this was communicated to the CSE during the turning five meeting but that it was disregarded by the team and Mother’s concerns stated at that meeting (9; 10); her investigations and the number of programs that she applied to for the Student in seeking a potentially appropriate placement for this Student, and the outcome of those efforts (11; 12).
How she decided, without a public 1:1 program option for the Student, that the Attending School’s program offered an appropriate program for the Student as it provided the full time, 1:1 instruction with integrated related services and an extended school day, which the Student needed (13); how on August 25 2021, the DOE was notified of Parents’ intention to enroll the Student at the Attending School for the 2021-2022 SY if the DOE did not offer an appropriate program and placement and that there was no response to that letter (14).
How the Attending School helped the Student become more capable with her assistive and augmentative communication device and software and how the Student used it to communicate with her Parents, which had been a significant improvement in her communication abilities and also contributed to her decreased tensions, as her dysregulation was often triggered by frustration and not being able to express herself in a way that she could be understood (17); the Attending School’s efforts to work on the Student’s toilet training and that there had been a significant improvement in that regard (18); how the school had been proactive and receptive in its communication with the Parents regarding the Student’s progress and targets, providing details of such communications (19); and how the Attending School had been accommodating with the Parents’ requests, with examples provided to substantiate that responsiveness (21).
District representative had some limited cross-examination for Mother, Parents’ Witness 1, and Parents’ Witness 2. Whilst Parents’ Witness 2 confirmed that she did not observe the Student in a school setting or a virtual session, I find that this fact does not sufficiently impact Parents’ Witness’ 2’s observations, to render her findings, or recommendations unreliable, as Parents’ Witness 2 testimony is corroborated by Parents’ Witness 1 in material respects, who had the benefit of observing the Student in a school environment.
I find that the Student’s program was specifically designed to cater to a class or category of students, namely those with ASD and language-based learning disabilities, requiring a full time 1:1 ABA program. The entire program, including the learning methodologies and the supports provided were all designed to meet the needs of this class or category of student. The Student falls in this class or category.
Additionally, there is detailed uncontested evidence presented by Parents’ Witness 1 substantiating how the Student’s teachers specifically tailored the already specialized program – for the class or category of student – even further for this Student’s unique and individual needs. Parents’ Witness 1 testified (Exhibit P-W) that: The Attending School created an IEP (and a behavioral intervention plan) for this Student, based upon her individualized needs; Parents’ Witness 1 checked in with the case manager to ensure that the Student’s targets were aligned with her IEP and that they may have decided to modify or adjust the Student’s behavior targets when necessary (10); the school held “co-treat” meetings with the Student’s case manager and the Student to run through any problems the Student may have been experiencing, to see how things were moving along and recommend improvements or changes (11).
The evidence on record, which was not disputed through any testimony, let alone any expert testimony contradicting the clear recommendations of Parents’ Witness 2, supports the Parents’ representatives’ assertion that the Attending School was an appropriate placement for the Student, including: being a specialized program or placement where the Student received 1:1 ABA instruction and redirection throughout the day as part of a 12-month, although the Student was only enrolled for the regular SY, extended day, program.
The testimony of the Parent and Parents’ Witness 1, and the Parents’ documentary evidence (Exhibits P-K, P-L, P-N, P-O, P-S, P-T, P-U, P-W, P-X, and P-X) establishes that the Attending School was appropriate and provided the Student with educational instruction that was specifically designed to meet her unique special education needs, supported by such services that were necessary to permit her to benefit from instruction, for the 2021-2022 SY. I find that, based on the Student’s attendance at the Attending School for the SY in question, as testified to by the Parent (Exhibit P-Y) and Parents’ Witness 1 (Exhibit P-W), the Student has made progress during the 2021-2022 SY:
The Student met some of the objectives in the domain of expressive and receptive language and continued to work toward others (18); made progress in terms of her pre-academic skills and mastered some, examples being provided and referenced in the Student’s progress report (Exhibit P-N) (21); how the Student made progress under the behavior intervention plan and began to understand some of the replacement behaviors put in place (28); the Student learned to use her new requesting skills instead of engaging in tantrums and also to calm herself down (28); how the Student’s unsafe behaviors decreased and that she made progress in all domains during her first year at the Attending School (28; 29).
How over the course of the Students first year at the Attending School they saw significant progress in the Student, with improvement in her emotional regulation being one of the biggest, as well as a decrease in the number of tantrums as well as the duration and intensity of those (15); other examples of progress seen in the Student at school and at home were provided (16; 18); the Student’s communication improved markedly even though she was still nonverbal (17); Student’s tolerance for physical contact also improved as a result of the Attending School’s interventions and how Mother had seen positive changes in the Student’s social skills at home, which included the Student sometimes being able to engage in interactive play with her older sister (22; 23).
The Student’s progress is also supported by the contents of the Attending School’s progress reports prepared by the Authors (defined on page 25) (Exhibits P-K, P-N, and P-O).
Parents’ Witness 1 testified during cross-examination that the Student’s behavioral difficulties in the classroom had continued since the December 2021 progress report, and that if the behaviors required redirection in the sense of remastering it, the school immediately went into the behavior intervention plan. Some behaviors required the use of the redirection protocol. Parents’ Witness 1 testified that the behavior intervention plan was currently able to redirect all the problem behaviors that the Student engaged in, so even though the behaviors continued, the behavior intervention plan was effective in addressing them. She stated that it was doing what it was supposed to do (T. V-IV; P119, L11-25; P120, L1-23). Prong II does not require a Student’s problem behaviors to be eliminated by the efforts that the Attending School undertake. So even though it was conceded by Parents’ representative that there was slow progress, there was progress nonetheless, and although the behaviors had not been extinguished, they were being managed appropriately pursuant to the plan that was in place, which allowed for the Student to be available for learning (T. V-IV, P136, L19-25; P137, L1-2).
The Parents have therefore met the second criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement.
Prong III - Equitable Factors:
Equitable considerations are relevant to fashioning relief under the IDEA[24].
The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge 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[25].
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice 10 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”[26].
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”[27].
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[28].
The hearing record reflects that the Parents notified the CSE by letter dated August 25, 2021 (Exhibit P-F), emailed on the same day (Exhibit P-G), of their intention to place the Student at the Attending School and seek public funding for the 2021-2022 SY (Exhibit P-F-3).
I find that in this letter the Parents offered sufficient information to put the DOE on notice about the Parents’ concern regarding the CSE’s failure to make an appropriate program and placement recommendation and informed of the Parents’ intention to place the Student at the Attending School for the 2021-2022 SY, giving the District an opportunity to cure any deficiencies, which is the intent underlying the 10-day notice requirement[29].
Although it is apparent from the record that Mother signed a contract enrolling the Student in the Attending School prior to the start of the 2021-2022 SY, namely on June 23, 2021 (Exhibit P-D-3), the Second Circuit has explained that, so long as parents cooperate with the CSE, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming... that the parents never intended to keep [the student] in public school”[30].
Parents’ representative asserted that there is little better evidence of an open mind to a public education than having already spent two years getting a public education (T. V-IV, P136, L8-11). Mother stated in her unsigned affidavit that had the DOE offered the Student such a program, referencing a program that the Student needed as recommended by Parents’ Witness 2, she would have done whatever was necessary to enroll the Student (Exhibit P-Y-6, par. 26).
It was asserted by District’s representative that the Parents’ withdrawal of their application from the DOE Program (defined on page 25) should be considered at equitable factor that either bars or limits Parents’ right to tuition funding (T. V-IV, P131, L16-22). Parents’ representative asserted in her combined opening and closing statement that the DOE Program coordinator reached out to Parents in response to their application and were told that the DOE Program had no spot in July, that they didn't have a single open seat, and that the chance of a spot opening-up in September was slim. This was not confirmed by Mother under oath. It was also asserted that after she pursued the application process, Mother learned that the DOE Program was not even a 1:1 ABA program, which had been strenuously recommended by Parents’ Witness 2. Accordingly, it was asserted that the DOE Program was both inappropriate and unavailable, and based on that, the family withdrew Student's application from that program (T. V-IV, 135, L4-15).
To my mind the DOE’s argument regarding the DOE Program is a red-herring as this was not the placement offered to the Student. The Proposed School was. Had the DOE offered the Student a placement in the DOE’s Program, then refusal by the Parents to consider the program or the premature withdrawal of Parents’ application before a decision had been made might have been a relevant factor. It was neither the placement offered, nor was there any evidence on record that they would have been offered a placement in the DOE Program had their application not been withdrawn. As such, Parents withdrawal “before they were even offered a seat” is not a factor relevant to Prong III.
Parents have therefore met the third criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement. Having met all three criteria of the Burlington/Carter test, the Parents are entitled to funding for the cost of the Student’s placement at the Attending School for the 2021-2022 SY.
Amounts Claimed:
Affiant confirmed, as of September 13, 2021, the total annual tuition rate of $138,750.00 owing to the Attending School for the 2021-2022 10-month SY tuition for the Student’s enrolment, of which Parents had paid $74, 375.00 (Exhibit P-I-1, par. 4 & 6). Parents’ representative clarified for me that there is no direct funding sought and therefore Parents are claiming only tuition reimbursement. Partial payment by Parents towards the tuition owing, only up until September 13, 2021, is confirmed under oath on record.
The DOE had recommended related services as part of the total program offered to the Student for the 2021-2022 extended SY to include: counseling; occupational therapy; parent counseling and training; physical therapy; and speech & language therapy (Exhibit DOE-2-21). Parents’ Witness 1 confirmed that the Student was receiving five sessions of speech & language therapy and four sessions of occupational therapy per week (Exhibit P-W-4, Par. 14). Parents’ Witness 1 clarified that these sessions are for 45 minutes each (T. V-IV; P212, L14-25; P122, L1-9).
Given the related services included in the Student’s program by the Attending School as part of the total program offered for the 2021-2022 SY, I find that the aforesaid tuition rate is excessive or unreasonable, given what is offered by the Attending School as part of the program for the 10-month SY[31], even considering the extended school day, for this student for the 2021-2022 SY, given her needs relevant to the 2021-2022 SY. Parents’ Witness 1 also testified that the Student’s teachers in her classroom providing the ABA services are not licensed behavioral analysts, although she is, and are also not certified behavior analyst assistants (T. V-IV, P118, L17-25; P119, L1). This is, to my mind, an equitable factor relevant to Prong III. Given these considerations, an award of 80% of the tuition cost is being granted.
Parents’ representative made clear that the Parents are seeking tuition reimbursement and not tuition funding in the form of direct funding. As such, a case for direct funding based upon need does not have to be supported by the record (T. V-IV, P138, L9-17).
Home-based ABA services:
A District must provide extended school year (“ESY”) programming services when a student's IEP team determines on an individual basis that the services are necessary for the provision of FAPE to the child[32]. The term ESY services means special education and related services that: are provided to a child with a disability i) beyond the normal school year of the public agency; ii) in accordance with the child's IEP; iii) at no cost to the parents of the child; and iv) meet the standards of the state educational agency[33].
Based on the team’s findings and recommendations for the 2021-2022 SY, ESY was found necessary and recommended (Exhibit DOE-2-28). This would cover the risk of regression during the ESY[34].
Parents’ Witness 2 testified that the Student’s deficits are so severe and pervasive that she requires a home-based ABA program of 20 hours per week in addition her school program, and that she recommended this program particularly to address Student’s lack of safety awareness, her lack of toilet training, adaptive living skills like dressing and washing herself, and her emotional regulation (Exhibit P-X-7, par. 37).
Parents’ Witness 2 also testified that: she learned that the Student had made progress during her year at the Attending School; Student’s tantrums had decreased; that the Attending School had trained her in using an augmentative communication device; according to Mother, the Student used her device to make meaningful communication about her wants and needs; the Attending School had also worked with the Student on toilet training, and that she had improved in that area while at school [Exhibit P-X-8, par. 40]. Parents’ Witness 1 testified that the behavior intervention plan was able to redirect all the problem behaviors that the Student engaged in, so even though the behaviors continued, the behavior intervention plan was effective in addressing them (T. V-IV; P119, L11-25; P120, L1-23).
Mother testified, inter alia, that: Given the severity of Student’s autism, it is very important for her to receive reinforcement of behaviors across different settings and situations; home-based ABA could also help her master activities of daily living, which could potentially help her function in less restrictive environments in the future; and that they see, for example, the difference in the Student’s toileting abilities at school versus at home and it is clear that she would benefit from explicit ABA instruction at home as well.
Mother however testified and provided examples of how the Attending School’s efforts in the school, including the parent communication provided, had already translated into progress in other environments and settings, as well as helped the Student to “successfully transition from the home environment to school each weekday”, without any home-based ABA services including: interactive play with the Student’s older sister; improved behavior during walks – a necessary step for the Student to achieve greater independence – due to the Attending School targeting appropriate walking behaviors; and being able to tolerate the EEG as a result of the Attending School’s efforts working with the Student (Exhibit P-Y-4 & -5, par. 19 to 23).
Parents had enrolled the Student in the extended day program at the Attending School. Based on: Student’s age; when the school day ended and the time when the Student would get home from school[35]; the abovementioned progress transferring skills to other settings in the current school setting without any home-based services, I find that not only are the recommended home-based ABA services unwarranted, but also that it is not practical for such services to fit into the day, for the 2021-2022 SY. Given the extended school day enrollment, at a school that is providing full time 1:1 ABA services, these services are in effect being received at school and the skills are being carried over into the home and other environments and are therefore not being awarded.
Transportation:
Parents sought, as part of the proposed solution, an award for door-to-door transportation to and from the Attending School, and funding for such transportation if the District fails to provide it (Exhibit IHO-I-8, e. & f.). As the SY is now over, an order for transportation for the remainder of the SY is unnecessary.
Mother testified that at “the beginning of this school year, however, the bus did not always show up. Those days, we had to bring [the Student] to and/or from school in a car service. See Exh. H, J, Q, R”. Parents used Uber to take the Student to and from school and are seeking reimbursement in the sum of $486.42 (Exhibit P-H, -J, -Q, & -R).
A medical request for transport accommodations was provided for the Student for the 2021-2022 SY (Exhibit P-M), recommending inter alia “door to door” transport, 1:1 para-professional assistance, and an airconditioned bus. It is noted from Student’s IEP that the DOE recommended that the Student needs transportation from the closest safe curb location to school as a special transportation accommodation/service by reason of Student’s Diagnosis, “Adult Supervision – 1:1 Paraprofessional”, and air conditioning (Exhibit DOE-2-31).
As public transportation would not guarantee these recommendations, but more specifically transportation from the closest safe curb location to school, the Parents are entitled to reimbursement for using a private service when the DOE failed to provide transport.
It is apparent from the invoices submitted that these costs include: “NY Congestion Fees”; “NY Black Car Fund” fees; “Tolls, Surcharges, and Fees”; Tips; “Wait Time”; as well as round trips, which was confirmed by Mother during cross-examination (T, V-IV; P127, L5-9).
There is no justification for why the person accompanying the Student needed to use the same car service after dropping off the Student to return home (or to use it to travel to school to pick up the Student), as opposed to other public transport. Such special transportation service is not warranted based upon the Student’s needs and is not being reimbursed. Accordingly, the cost of the trip fare has been used as the basis for calculating the amount to be reimbursed for transportation, and where the receipt indicates a round trip, it has been divided by 2, as follows[36]:
- • September 09, 2021 – morning drop-off one way trip fare of $65.47 (Exhibit P-H-2) $65.47
- • September 10, 2021 – morning drop-off round trip fare of $56.35 / 2 (Exhibit P-H-1) $28.18
- • September 10, 2021 – afternoon pickup one way home x $49.35 (trip fare) (Exhibit P-H-4) $49.35
- • October 19, 2021 – afternoon pickup round trip home x $54.86 (trip fare) / 2 (Exhibit P-J) $27.43
- • March 02, 2022 – afternoon pickup round trip home x $52.82 (trip fare) / 2 (Exhibit P-Q) $26.41
- • March 03, 2022 – morning drop-off round trip fare of $64.68 / 2 (Exhibit P-R) $32.34 TOTAL $229.18 Other than the relief set out in my Order below, I find that no basis or evidence in the record supports any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby:
- • ORDERED that, the DOE shall reimburse the Parents the tuition payments made to the Attending School for the Student’s placement at the Attending School for the 2021-2022 school year in the sum of $111,000.00 (One Hundred and Eleven Thousand Dollars) (i.e., 80% of the cost), upon the submission of Parents’ proof of payments of the tuition owing to the Attending School in the sum of $138, 750.00 for the 2021-2022 school year.
- • FURTHER ORDERED that, the DOE shall reimburse the Parents’ transportation costs incurred in the sum of $229.18 (Two Hundred & Twenty-Nine Dollars, Eighteen Cents) for transporting the Student to and from the Attending School during the 2021-2022 school year.
SO ORDERED.
DATED: June 29, 2022
__H.A.C._(Signed Electronically)___
Impartial Hearing Officer
Harry A. Christodoulou
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.
DISTRICT’S EXHIBITS
Exhibit
Title
Date
Pages
1.
Notice of IEP Meeting
04/27/2021
3
2.
IEP
05/27/2021
35
3.
IEP Attendance Page
05/27/2021
1
4.
Consent for Additional Assessments
02/24/2021
1
5.
Consent for Use of Electronic Mail
02/26/2021
1
6.
Classroom Observation
03/22/2021
3
7.
Social History Update
Undated
3
8.
Neuropsychological Evaluation
10/23/2020
16
9.
REDACTED Consultation
02/25/2021
2
10.
Speech Language Therapy Referral
04/04/2021
1
11.
Suggested Speech Language Goals for Turning 5 IEP
02/24/2021
1
12.
NYC DOE Speech and Language Progress Report
02/24/2021
2
13.
OT Proposed Goals
01/29/2021
4
14.
Preschool Occupational Therapy Clinical Guide
03/12/2021
3
15.
Preschool Physical Therapy Clinical Guide
01/10/2021
3
16.
Reporting Progress Toward Physical Therapy Goals
01/25/2021
2
17.
GARS Parent Rating
Undated
3
18.
GARS Teacher Rating
Undated
3
19.
Turning 5 Teacher Report
Undated
2
20.
Prior Written Notice of Recommendation
06/03/2021
6
21.
School Location Letter
06/15/2021
5
22.
Parents’ Ten-Day Notice
08/25/2021
3
23.
Emails regarding REDACTED application
Undated
3
PARENTS’ EXHIBITS
Exhibit
Title
Date
Pages
A.
Corrected Hearing Request
11/09/2021
9
B.
Neuropsychological Evaluation
10/23/2020
16
C.
Occupational/Speech/Physical Therapy Prescription
04/12/2021
1
D.
Attending School Enrollment Contract
06/24/2021
3
E.
Request for Medical Accommodations
06/29/2021
1
F.
Ten Day Notice
08/25/2021
3
G.
Ten Day Notice Confirmation
08/25/2021
1
H.
Proofs of Payment: Uber to and from Attending School
09/09/2021
4
I.
Attending School Tuition Affidavit
09/13/2021
1
J.
Proof of Payment: Uber to and from Attending School
10/19/2021
1
K.
Attending School Occupational Therapy Evaluation Report
10/__/2021
6
L.
Attending School Behavior Reduction Plan
11/12/2021
8
M.
Request for Medical Accommodations
11/15/2021
1
N.
Attending School Progress Report
12/__/2021
3
O.
Attending School Speech and Language Progress Report
12/__/2021
5
P.
Pendency Agreement
01/27/2022
2
Q.
Proof of Payment: Uber to and from Attending School
03/02/2022
1
R.
Proof of Payment: Uber to and from Attending School
03/04/2022
1
S.
Occupational Therapy IEP
2021 – 2022
4
T.
Attending School Attendance Record
2021 – 2022
1
U.
Attending School Class Schedule
2021 – 2022
1
V.
Turning -5 Preschool Social History Update
Undated
3
W.
Affidavit of Testimony: Parents’ Witness 1
06/13/2022
8
X.
Affidavit of Testimony: Parents’ Witness 2
Undated
9
Y.
Affidavit of Testimony: Parent
Undated
6
IHO’S EXHIBITS
Exhibit
Title
Date
Pages
IHO-I
Original DPC[37] (plus email – 1 page)
09/17/2021
9
IHO-II
Corrected DPC[38] (plus email – 1 page)
10/25/2021
10
IHO-III
Parents proposed Subpoena duces tecum
Undated
2
IHO-IV
Signed Subpoena duces tecum
04/27/2022
2
APPENDIX
REDACTED
Footnotes
[1] C.F.R. § 300.508 (d)(3)(ii); 8 NYCRR § 200.5(i)(7)(i)(b).
[2] U.S.C. § 1400 et seq.
[3] C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq.
[5] NYCRR § Part 200.
[6] These were not deposed to before a notary and for Exhibit P-Y it is also unsigned.
[7] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[8] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[9] U.S.C. § 1415[f][3][E][i].
[10] See Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]; G.M. v. Dry Creek Joint Elementary Sch. Dist., 595 F. App'x 698, 699 [9th Cir. 2014]; Jalloh v. Dist. of Columbia, 535 F. Supp. 2d 13, 19-20 [D.D.C. 2008]; and Sykes v. Dist. of Columbia, 518 F. Supp. 2d 261, 267 [D.D.C. 2007], as well as Application of a Student with a Disability, Appeal Nos. 20-167; 20-203 and 21-032.
[11] Rowley, 458 U.S. at 203.
[12] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
[13] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[14] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[15] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].
[16] NYS Educ. Law § 4404(1)(c).
[17] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[18] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[19] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[20] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].
[21] Gagliardo, 489 F.3d at 115.
[22] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[23] G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *23 [S.D.N.Y. March 29, 2013], aff'd 554 Fed. App'x 56 [2d Cir. Feb. 11, 2014]; S.F., 2011 WL 5419847, at *10.
[24] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 [2d Cir., 2014]; M.C. v. Voluntown Bd. of Educ., 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"].
[25] U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; 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, 192 Fed. App'x 62, 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 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].
[26] U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[27] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
[28] 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].
[29] Greenland Sch. Dist., 358 F.3d at 160.
[30] C.L., 744 F.3d at 840.
[31] Florence County School District Four v. Carter, 20 IDELR 532 (U.S. 1993).
[32] C.F.R. § 300.106[a][2].
[33] C.F.R. § 300.106[b].
[34] Mother confirmed that the Student received instruction over the summer from the DOE.
[35] The Uber receipts provided evidence of the pick-up and travel time from the Attending School and home.
[36] Rounding has been used where necessary.
[37] Admitted on April 14, 2022 (T., V-I, P18, 22-25; P19, L1-2; P20, L17).
[38] Admitted on April 14, 2022 (T., V-I, P25, L1-6).