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Special Education Law
DECISIONParent PrevailedIHO Case No. 221130

New York City Department of Education, Impartial Hearing Decision

August 4, 2022·Hearing Requested by:

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

CASE NUMBER: 565737 - NYC: 221130

FINDINGS OF FACT AND DECISION (CORRECTED)

221130

Redacted

Redacted

Parents

Martin J. Kehoe III, Esq.

221130

Redacted

Redacted

Parents

Martin J. Kehoe III, Esq.

Case Number:

Student’s Name:

District:

Hearing Requested By:

Hearing Officer:

Actual Record Close Date:

Table of Contents

I. Introduction 2

II. Overview 4 a. Parents’ Position 4 b. District’s Position 5 c. Background of the Case 5 d. Student History 6 e. Legal Overview 7

III. Prong I 11 a. Did the District Present a Prima Facie Case? 11 b. Legal Standard 11 c. Analysis 12 d. Conclusion 13

IV. Prong II 13 a. Legal Issue: Did the Parents Establish the Appropriateness of the Private Services that they Procured for the Student? 13 b. Legal Standard 13 c. Analysis 14 i. The Administrator at the Private Agency – Testimony 14 ii. The BCBA at the Private Agency – Testimony 16 iii. The Parent/Mother – Testimony 18 d. Conclusion 18

V. Prong III 20 a. Legal Issue: Did the Parents Cooperate with the District? 20 b. Legal Standard 20 c. Analysis 21 d. Conclusion 22

VI. Compensatory Education 23 a. What is the Appropriate Remedy for Denial of a FAPE? 23 b. Compensatory Education Legal Standard 23 c. Analysis 24 i. Recommendations 24 ii. The Services Provided by the Private Agency 28 iii. Rationale for Award 28 d. Conclusion 29

I. Introduction

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

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

Regarding this point, the Parents have requested that the Student receive extended school year services. (Ex. IHO #1) However, this was not mentioned in the complaint notice nor in the ten-day notice. Because the scope of the hearing is limited, it is out of my jurisdiction to rule on this issue.

This case explicitly does involve the following demands:

  • • A finding that the District failed to provide the Student a FAPE for the 2021-2022 SY.
  • • An order mandating the District to implement the following services, weekly:
  • • Applied Behavioral Analysis (ABA) services, 40 hours;
  • • ABA Supervision, from a BCBA, 3 hours;
  • • Speech and Language Therapy, 2 x 30;
  • • Occupational Therapy, 2 x 30;
  • • Physical Therapy 2 x 30.
  • • An order compelling the District to provide [The Student] with a bank of compensatory hours to make up for missed services during the 2021-2022 school year, resulting from the District’s failure to implement at the start of the 2021-2022 school year. (Ex. B-4)

These demands are similar to the situation where a party requests reimbursement for a unilateral placement. Application of a Student with a Disability, Appeal No.21-245. A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis.

The issue of whether there was a denial of FAPE shall be addressed under Prong I. The issue of the adequacy or a mandate to the CSE for future programming consistent with this presentation shall be addressed under Prong II. Finally, I address the demand for compensatory education under the Prong III with an application of equitable principles slightly larger than that typically reserved for a Prong III “reimbursement” analysis, but rather, with recognition of principles traditionally considered in a “compensatory education” analysis.

Toward that end, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and... mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].

II. Overview In the instant matter, the Parents filed the initial complaint notice on November 8, 2021. (Ex. A) I was appointed as the IHO the December 6, 2021. The following day, on December 7, 2021, the Parents filed the amended complaint notice in which they increased their sought relief. (Ex. B)

On January 20, 2022, I issued a pendency order in which I directed that the Student continue to receive services per his most recent IESP, dated June 15, 2021.

A hearing was held across multiple dates.[1] The Parents introduced exhibits A-K into the record and called three (3) witnesses: the Administrator at the Private Agency (the Administrator); the Board-Certified Behavior Analyst at the Private Agency (the BCBA); and the Parent/Mother. Additionally, the Parents submitted a closing brief which is included in the record as IHO #1. The District did not offer any exhibits, nor did they have any witnesses testify on their behalf. a. Parents’ Position The Parents allege that the District failed to provide the Student a procedurally valid and substantively appropriate Individualized Education Services Program (IESP) for the SY at issue. As such, the Student was denied a free appropriate public education (FAPE). (Ex. B-1)

To remedy the above violation, the Parents seek the following relief:

  • • A finding that the District failed to provide the Student a FAPE for the 2021-2022 SY.
  • • An order mandating the District to implement the following services, weekly:
  • • Applied Behavioral Analysis (ABA) services, 40 hours
  • • ABA Supervision, from a BCBA, 3 hours
  • • Speech and Language Therapy, 2 x 30
  • • Occupational Therapy, 2 x 30
  • • Physical Therapy 2 x 30
  • • An order compelling the District to provide the Student with a bank of compensatory hours to make up for missed services, resulting from the District’s failure to implement at the start of the 2021-2022 school year. (Ex. B.3-4)

b. District’s Position The District did not present a case, introduce evidence, nor call any witness to testify on their behalf. c. Background of the Case The Student began attending the Private School during the 2018-2019 SY when he turned five (5) years old. (Ex. K-2) On June 15, 2021, a Committee on Special Education (CSE) meeting was held with the purpose of developing an IESP for the Student. (Ex. C) At the meeting, the CSE team recommended various related services[2] as well as a paraprofessional (for health, focus, and safety). (Ex. C-8)

On November 8, 2021, the Parents filed the complaint notice which they then amended on December 7, 2021. (Ex.s A & B)

On January 25, 2022, the Parents belatedly sent the District a letter, notifying them that they contracted the Private Agency to provide services to the Student.[3] In the letter, the Parents advised the District that they would seek reimbursement for the services. (Ex. D-1) d. Student History

At the start of the 2021-2022 SY, the Student was seven (7) years old and was classified with Autism.[4] (Ex. B-1) The Mother described her Student as “a bright child who benefits from learning alongside typically developing peers and who can learn new skills and behaviors with proper behavioral conditional techniques.” (Ex. K-4)

When the Student was in preschool, he underwent a neuropsychological evaluation. (Ex. E) The Neuropsychologist recommended the Student be further evaluated.[5] (Ex. E-6) He later was diagnosed with Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD. (Ex. K-2) The Student also has been diagnosed with REDACTED. (Ex. C-3)

On January 15, 2022, the Student underwent a Functional Behavioral Assessment (FBA), and a Behavioral Intervention Plan (BIP) was developed. (Ex.s G & H) In the BIP, the BCBA wrote the following remarks regarding the Student’s behavior:

[The Student] does not spontaneously verbalize wants, needs, emotions, and thoughts. He does not identify his own emotions and lacks coping skills, has a low frustration tolerance, and escapes all non-preferred tasks or activities. He has extremely restricted interests and does not follow individual or group instructions. He has difficulty shifting attention, dividing attention, and maintaining attention for more than a few seconds.

[The Student] has presented with these problem behaviors ever since starting school and beforehand. Since [the Student] is little, he has had little to no ability to function in a group setting and always required one to one support. He displayed these problem behaviors as a young child but the behaviors have increased in a school setting.

[The Student] requires one to one support 100% of his school day. He is unable to follow simple instructions and group instructions, transition from one task to another, and struggles to use functional communication as replacement for problem behaviors. He does not keep up with the group and needs consistent support to acquire basic classroom skills and to decrease problem behaviors.

[The Student] struggles to functionally communicate with staff and peers. He requires full prompting to ask for help, to ask for clarification, and to communicate wants and needs. He often talks to himself but not to others. He does not have any conversation with peers or adults. (Ex. G-3)

The BCBA noted that the Student refused to do his work and struggles to communicate or ask for help. He typically engages in “problem behaviors” to avoid or escape tasks. (Ex. G.6-7) e. Legal Overview The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

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

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

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

(D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).[6]

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

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

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

When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4[a]). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]). Application of a Student with a Disability, Appeal No.21-245

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

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

c. Analysis

I first look to the Parents’ allegations to evaluate the District’s presentation, or in this case, lack of presentation. In the Parents’ amended complaint notice, they are implicit about the District’s failures in the following ways:

  • • The CSE failed to properly evaluate the Student and consider evaluations in all his areas of weakness.
  • • The CSE failed to consider the full continuum of services for the Student.
  • • The actions taken by the District precluded the Parent from fully participating in the creation of the educational program.
  • • The District failed to implement the Student’s special education program, under all relevant Federal and State Law. (Ex. B-1)

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

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

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

IV. Prong II a. Legal Issue: Did the Parents Establish the Appropriateness of the Private Services that they Procured for the Student? b. Legal Standard

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

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

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect"). c. Analysis i. The Administrator at the Private Agency – Testimony The Administrator at the Private Agency (the Administrator) began his testimony by detailing the Private Agency, stating that the agency provides special education teacher services, related services, ABA services, BCBA services. (T. 106)

The Administrator mentioned that he is familiar with the Student, who began receiving paraprofessional services pursuant to his IESP at the beginning of November. (T. 107) The Private Agency provided sixteen (16) hours per week (T. 108)

The Administrator described the level of support that the Private Agency was providing to the Student’s paraprofessional:

For [the Student], specifically, there were issues with his behaviors. He had very diff -- he has very difficult behaviors that necessitated additional training and supervision, and we brought in a professional licensed behavioral analyst to work with his -- with his – with his paraprofessional to make sure that -- that they know what they’re doing and that they know how to interact with him, how to redirect him and keep him effective in the classroom. So he should be able to attend and be a part of the regular classroom group. (T. 111)

When asked to describe the ABA services provided by the Private Agency, the Administrator responded:

Sure. So ABA services -- ABA is a -- is a methodology that’s provided by a by -- by trained paraprofessionals type -- by a person that -- we usually, take a person that has some sort of background or degree in -- in education. They are specifically trained by a -- a -- a licensed behavioral analyst who trains them, who designs a plan for -- for the child that is being serviced, and that -- and the -- the behavioral technician, the behavioral teacher, implements the plan, takes data on an ongoing basis, and works under the direct supervision of a licensed behavioral analysist. It's -- I'm -- I'm not an educator myself, but I know that it's a very involved methodology. It -- it -- it's constant -- it's constant data. It's constant -- it's constantly doing -- I'm sorry -- awarding behavior and -- and -- and implementing that -- the specific strategies that help children with autism or children that have tho -- those types of issues to -- to learn how to behave and how to overcome their delays. It's -- like I said, it's an evolved methodology. It works. It's completely provided under the supervision of a licensed behavioral analyst in New York State and a BCBA in other states. And it requires ongoing communication, ongoing observation, ongoing assessment by the teacher -- by the ABA teacher to -- who works under the supervision of a LBA. (T. 117-119)

Next, the Administrator was asked how the ABA services compare to the paraprofessional services, to which he replied:

So it's completely different. It's not even -- they're not even the same thing. A -- a paraprofessional is a person that -- I know that the City basically hires people right out of high school to just basically stand behind the child, protect the child, maybe redirect them when they -- when they lose their temper or help them re -- reorient themselves into the classroom. It's basically like an extra pair of hands to -- to help the student now, to help the student attend the class and be in the classroom.

For -- for ABA, it's -- it's a specific methodology. It's -- it's a methodology that's -- that's research-driven. It's -- it's all about the data. It's all about specific trials and outcomes. It's very -- it's very individualized to a student and it's very goal-oriented. It's meant to drive outcomes. The regular paraprofessional services, I would -- I would say, are not goal-oriented, that they're not really meant to accomplish anything. And then to -- to help the student be in school, where they can accomplish -- where they can learn through other people that are there, through teachers, through their special educators, through their therapists, whatever. ABA is a methodology that is meant to -- to -- to teach the child the social skills and the behavioral skills and the controls and the -- and the necessary skills to be able to -- to effectively learn new things and -- and control their own behavior and -- and attend. And obviously, with ABA, I would say probably the majority of the time, the -- the child -- the skills that the child learns eventually allows the ABA to be -- to be taken down, to be -- to be lower -- the frequency to be lowered and eventually eliminated.

With paraprofessional, it would be -- it would have to be, like, something -- something -- something different, but it wouldn't be -- it's not skill-based, so it would basically have to be just the child either getting older or being placed in a special school or taking medication, something like that. ABA is -- is an effective methodol -- it's an effective service. It's -- it's not just a -- it's not just a protection. It's an actual service. (T. 119-121) ii. The BCBA at the Private Agency – Testimony The BCBA at the Private Agency (the BCBA) began her testimony stating that she was familiar with the Student. (T. 79) She described him as “a bright kid, and intelligent, and he has the ability to learn, read and write, and to learn math, and all different subjects.” She noted that “[h]e definitely was behind in his academic studies due to his behavioral and social deficits.” (T. 81-82)

The BCBA then described the Student’s then-current levels of communication and language:

[The Student] is verbal, and presents as a kid who can speak and verbalize. But he does not have the skills to functionally communicate, and socially communicate, which means he doesn’t’ spontaneously ask for help, or express his frustration, or express when he needs a break or to go to the bathroom. And also [he] did not have the ability to have conversations with peers and adults. So although he can verbalized and express himself, his -- his language and communication was not very functional, and not social and conversational. (T. 82)

Next, the BCBA detailed the Student’s struggles regarding his daily living skills:

[The Student] can take care of getting what he needed, and finding materials that were necessary, but it was very difficult for him to get through his day because he has extremely rigid routines, and rigid ways of thinking, and he got stuck very frequently on things that didn’t go his way, or transitioning between one activity or one task to another. He got extremely overwhelmed by just basic tasks and demands, or basic -- and overwhelmed by stimuli in the environment. So it was very difficult for him to function and carry through his day. (T. 82-83)

The BCBA mentioned that the Student has a low frustration tolerance and something as simple as finding a pen can trigger him and cause him to have a meltdown which entails screaming and crying. (T. 84)

During her testimony, when asked about the Student’s program of service during the 2020-2021 SY, the BCBA at the Private Agency (the BCBA) discussed how the Student had two paraprofessionals, one for the morning and another for the afternoon. The BCBA only supervised the afternoon paraprofessional, who works for the Private Agency; however, because the morning paraprofessional worked for the District, she did not supervise her. (T. 84)

The BCBA noted that the Student’s lack of progress could be due to the fact that his paraprofessionals were not trained in ABA methodologies. (T. 85) She added that there was “consistent inconsistency” between the two paras since the morning paraprofessional did not incorporate the Student’s BIP. The BCBA also mentioned that she saw “a lot of regression,” specifically during breaks and periods out of school due to his inability to acquire skills. (T. 86-87)

The BCBA made the following remarks regarding the Student’s lack of progress:

[O]verall, he just didn’t make the progress that he was really capable of. And if he was given the opportunity to have the appropriate support, we would definitely see a lot more progress, and we’d definitely see a kid who would be able to be mainstreamed and fully involved in the classroom. [The Student] really is a child with autism. He really does need ABA therapy, and in all of my work over the past ten years, ABA is the gold standard of intervention for students with ASD. So really he needs a para with training and ongoing weekly support, but at a different level of support. But what we had this year was definitely not enough, and we weren’t able to make the progress that we could’ve made. (T. 87-88)

The BCBA later offered a conflicting opinion that the Student benefited from her support, along with the paras’. She has observed a reduction in the problem behaviors; however, she emphasized that in order for the Student to truly progress, he requires ABA therapy. (T. 88)

The BCBA detailed some of the Student’s problem behaviors, such as his restricted interests, refusal to do tasks, escape-making behaviors, attention seeking, and his inability to socialize. She then discussed some of the target/replacement behaviors in the Student’s BIP. (T. 89-91)

When asked what is the minimum amount of ABA that the Student requires, the BCBA replied:

I would recommend 40 hours, so that we can cover all the hours in school, that we have all the hours covered, and we have a consistent person providing the ABA therapy, and consistency in implementing the behavior plan every day, across the entire day. (T. 95)

She concluded her testimony by recommending summer services. To justify this, the BCBA stated:

I definitely recommend it, because I would want to see that consistency in terms of the behavioral intervention plan implemented all year. If we take a break, he will for sure regress, and we’re going to have to pick up come September with a huge regression.” (T. 98) iii. The Parent/Mother – Testimony

During her testimony, the Mother expressed that the Student was making progress as a result of the services being provided by the Private Agency:

The agencies services proved integral for [the Student] … As a parent with two children with Autism, I am keenly aware of their neurodevelopmental profiles, and for [the Student], how his behaviors are primary to his diagnosis. Just as [the Neuropsychologist] recommended, he requires intensive ABA therapy to overcome his challenges… (Ex. K-2)

… [The Student] is a bright child who benefits from teaming alongside typically developing peers and who can learn new skills and behaviors with proper behavioral conditioning techniques. He has the potential to thrive in his mainstream environment, if provided with the ABA support that he requires. I’ve seen it done when [the Student] received support from ABA therapy through insurance, and now through [the BCBA’s] support. (Ex. K-3) d. Conclusion

I find that the testimony consistently supported the utilization of ABA therapy, together with the use of trained paraprofessionals to implement a program supervised by a BCBA. There is conflicting testimony regarding the implementation of the ABA program in this case.

For example, during her testimony, the BCBA recommended that the Student receive a minimum of 40 hours of ABA; however, the Mother only requested 30 hours, supplemented by two hours a week of BCBA. Additionally, in the BCBA’s report, she only recommended 36 hours of ABA services. (T. 95-96) The mandate is best worked out by a full CSE with the benefit of updated evaluations and the opinions of the BCBA.

In another instance, the BCBA stated that the Student was struggling and was not making progress, thus he required a different level of support that includes a para with training. She even goes onto say that “we weren’t able to make the progress that we could’ve made.” But later in her testimony, the BCBA claims that the Student was benefitting from her support, along with that of the paras’. (T. 87-88)

As a result of these inconsistencies, paired with their inability to demonstrate the appropriateness of the Private Agency, I find that the Parents have fallen short of meeting their Prong II burden of proof. However, all is not lost, as this entire matter should be remanded to the CSE for consideration for exactly the type of program contemplated by the Parents, including the provision of extended school year services.

I, therefore, rule for the District on Prong II but remand this Student’s case to the CSE for further consideration.

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

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

Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) c. Analysis The Parents sent the District a notice on January 25, 2022, in which they advised the District that they were contracting the Private Agency to provide services for the Student. This notice should ideally be provided ten days before the Parents unilaterally secure independent providers d. Conclusion

Upon review of the record, I find that the Parents cooperated with the District to a certain extent, but the notice they provided was late. More importantly the entire endeavor to educate the Student for the 2021-2022 SY was sabotaged by a system that is broken. SROs have noted an alarming level of dysfunction regarding the provision of SETSS to dually-enrolled students and the procedural safeguards that are supposed to protect students (see e.g., Application of a Student with a Disability, Appeal No. 21-119; Application of a Student with a Disability, Appeal No. 21-029; Application of a Student with a Disability, Appeal No. 21-028; Application of a Student with a Disability, Appeal No. 21-025; Application of a Student with a Disability, Appeal No. 20-141; Application of a Student with a Disability, Appeal No. 20-140; Application of a Student with a Disability, Appeal No. 20-115; Application of a Student with a Disability, Appeal No. 20-099; Application of a Student with a Disability, Appeal No. 20-094; Application of a Student with a Disability, Appeal No. 20-087). In describing the effect of the district's failure to perform its obligation to provide SETSS to dually-enrolled students, one SRO has noted "[t]hat dysfunction has twisted itself into a murky dispute that the parents should not even be involved in, but for their efforts to locate services that the district was responsible to plan and provide for" (Application of a Student with a Disability, Appeal No. 20-087). See, Application of a Student with a Disability, Appeal No. 21-245.

Accordingly, I below consider this perspective, and endeavor to make an equitable award based upon the Parents overall cooperation with the District, the earnest advocacy and support for the appropriate programming for the Student going forward.

VI. Compensatory Education a. What is the Appropriate Remedy for Denial of a FAPE? b. Compensatory Education Legal Standard

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

Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]). c. Analysis i. Recommendations

1. The Neuropsychologist The Neuropsychologist who evaluated the Student on June 18, 2018, recommended the following for the Student:

Plan

Educational and Psychological Evaluation:

- Look forward to his learning about his IEP and services

- Given on-going concerns about social difficulties, [the Student] requires and ADOS-2 (Autism Diagnostic Observation Schedule) to further evaluate for an autism spectrum disorder. This should be performed through the CPSE.

Educational and Pre-Educational Intervention and Services:

- Implementation of an Individualized Education Program is recommended.

- Given on-going behavioral challenges at school, [the Student] would benefit from SEIT services in the school setting to help work with [the Student] and his teachers on behavioral management.

- Given poor articulation, [the Student] should receives speech/language therapy.

- Given his recent diagnosis of Asperger's disorder, [the Student] qualifies for ABA therapy covered by his insurance. His parents are working with his insurance to find out how many hours of therapy are covered and hope to send a ABA therapist to the school to work with [the Student] throughout the school day.

- [the Student] should continue to attend a structured preschool/preK program.

-Within the school environment, [the Student] is likely to benefit from the following accommodations for his behavior: [the Student] will benefit from structure, predictability, and clear daily routines in his classroom; [the Student] will function best in a classroom environment which is well-ordered, quiet, and minimally stimulating; [the Student] will benefit from teachers providing reminders and praise for remaining on task;

Information should be presented both visually and verbally in order to help keep his attention focused.

[the Student] will benefit from visual supports and strategies to increase structure in the classroom such as a daily schedule of the classroom routine.

[the Student] should have preferential seating near the teacher and away from distracting peers.

Independent tasks and homework should be completed in low stimulation/distraction areas of the classroom.

New tasks should be both previewed and reviewed, and also should be broken down into smaller, easy-to-complete units, with positive feedback at the completion of each;

Providing a variety of high-interest, hands-on activities to facilitate learning will keep [the Student’s] attention level and motivation high;

[the Student] will benefit from being given warnings before transitions, and demands and expectations should be clearly stated (e.g., "First_, then_").

Regularly scheduled sensory and motor breaks could help [the Student].

[the Student] may also enjoy being responsible for small jobs or tasks at school that give him a break from sitting, such as taking materials to the school office or watering a class plant. Removal of recess privileges should not be a discipline method for [the Student].

External Interventions and Services:

- Behavior management training I counseling for parents [the Student] and his family should participate in Family Behavioral Therapy to address his behavior regulation challenges at home. This treatment should include parent training and practical guidance on behavioral management techniques for the home setting.

- If [the Student] does not qualify for speech therapy through the school district, he would benefit from outpatient speech therapy to work on his articulation difficulties.

Ex. E-6

Ex. E-6

2. The BCBA The BCBA who developed the Student’s BIP, dated January 21, 2022, made the following goals and recommendations:

Identify long-term goals:

Parents:

  • • Parents will consistently follow behavior plan procedures in order to decrease problem behaviors and replace with skill acquisition.
  • • Parents will prompt and reinforce all communication from [the Student] on an FR1 schedule.
  • • Parents will teach [the Student] to start and complete a task that is nonpreferred.

School:

  • • [The Student] will comply with simple instructions, following the daily schedule, and completing tasks without problem behaviors.
  • • [The Student] will communicate his wants/needs, when he needs help, how he feels, and when he needs a break.
  • • [The Student] will tolerate frustration by using coping skills in all situations and settings in school.
  • • [The Student] will work in a group setting with peers without engaging in problem behaviors.
  • • [The Student] will transition from each part of his schedule independently without additional prompts from teachers or paraprofessional.
  • • [The Student] will perform basic classroom expectations such as raising his hand, sitting in his sit, remaining quiet during lesson time, etc.

Identify replacement behavior(s) that serve the same function and strategies for teaching new behavior(s):

There are three essential characteristics of replacement behaviors:

  • • They serve the same function as the problem behavior
  • • They are easier to do than the problem behavior
  • • They are socially acceptable
  • • Teach [the Student] to ask for help, ask for a beak, or say when something is difficult for him.
  • • Teach [the Student] to request a modified task or for breaks in between the task.
  • • Teach [the Student] to utilize coping strategies such as drinking water, taking deep breathes, taking a short walk, asking to talk about the problem.
  • • Teach [the Student] basic compliance with one step directions.
  • • Teach [the Student] to start and complete a task or assignment without problem behaviors.
  • • Teach [the Student] to transition from preferred to non-preferred activities without engaging in problem behaviors.
  • • Teach [the Student] to tolerate frustration by setting up small problems that he will solve without melting down or engaging in problem behaviors.
  • • Teach [the Student] to tolerate working with a peer on a small task without engaging in problem behaviors.
  • • Teach [the Student] to join the class during meeting time for 10 minute increments without engaging in problem behaviors.
  • • Teach [the Student] to perform student expectations such as raising his hand (instead of calling out or talking aloud), sitting properly in his chair, answering questions, and taking out accurate materials for each class.
  • • Teach [the Student] to start assignments or work within one minute from when the instruction is given.

Intervention Strategies:

Include strategies that will:

  • • Alter the setting events and antecedents to prevent the Targeted Problem Behavior(s)[8]
  • • Alter the consequences that currently maintain the Targeted Problem Behavior(s)
  • • Be used to teach alternative and replacement behaviors that serve the same function as the Targeted Problem Behavior(s) while building skills that will make the Targeted Problem Behavior(s) no longer necessary Progress Monitoring:

In collaboration with the team above, progress will be monitored on a consistent basis and renewed and adjusted accordingly.

Follow-up/Next Steps:

Ex. H.1-5

Ex. H.1-5 ii. The Services Provided by the Private Agency The testimony of the Administrator, the BCBA and the Mother demonstrated a sincere belief that the services that the Student was receiving were moving in the right direction. (See Prong II Analysis, Supra) There is no doubt that the Student required a level of services including ABA methodology. In reaching this conclusion I am mindful that the District failed to either support their own recommendation or rebut the position of the Parents. iii. Rationale for Award

I credit the Parents’ witnesses for demonstrating the Student’s special education needs and the services he requires to make progress. Per the January 20, 2022 pendency order, which is also found in the agreed upon June 2021 IESP, the programs and services shall include:

Speech and Language Therapy Group - 2 x 30 minutes Occupational Therapy 1:1 - 2 x 30 minutes Counseling 1:1 - 2 x 30 minutes

Paraprofessional, Health, Focus and Safety - Daily -.8

Notwithstanding my negative finding on Prong II above, I direct that all invoices for educational services on or after the date of the complaint notice herein, shall be paid at a rate of $75 dollars per hour for Paraprofessional services (a reduction of the stated $80/hour invoicing for such services) and full invoice for all other providers consistent with the testimony and record in this case. d. Conclusion

Based upon the extensive record in this case, I find that the District denied the Student a FAPE for the 2021-2022 SY. As such, I find that compensatory education is warranted.

It is therefore ORDERED:

  • • The District shall reimburse/directly pay the Parents for tuition at the Private Agency for the 2021-2022 SY from November 8, 2021 through June 30 2022 upon invoice. (paid at a rate of $75 dollars per hour for Paraprofessional services (a reduction of the stated $80/hour invoicing for such services) and full invoice for all other providers consistent with the testimony and record in this case).
  • • The District reconvene a CSE meeting to consider the propriety of the following programming components, weekly and the inclusion of ESY services[9]:
  • • ABA services, 40 hours
  • • ABA Supervision, from a BCBA, 3 hours
  • • Speech and Language Therapy, 2 x 30
  • • Occupational Therapy, 2 x 30
  • • Physical Therapy 2 x 30 Dated: August 4, 2022

NOTICE OF RIGHT TO APPEAL

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

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

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

Footnotes

[1] A hearing was held across the following dates: January 20, 2022; February 17, 2022; March 21, 2022; April 29, 2022; May 5, 2022; and May 10, 2022.

[2] The CSE team recommended the following related services: speech-language therapy (group, 2x30); occupational therapy (individual, 2x30); and counseling services (individual, 2x30). (Ex. C-8)

[3] The Private Agency began providing services to the Student on November 12, 2021. (Ex. D-1)

[4] NYCRR Part 200.1(zz)(1) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.

[5] The Neuropsychologist wrote, “[the Student] requires and (sic) ADOS-2 (Autism Diagnostic Observation Schedule) to further evaluate for an autism spectrum disorder. This should be performed through the CPSE.” (Ex. E-6)

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

[7] § 300.148 Placement of children by parents when FAPE is at issue. (a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144. (b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520. (c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs. (d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section; (2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents. (e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and (2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if - (i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C))

[8] These “Targeted Problem Behaviors” include the following: non-compliance; screaming/crying; aggression; and eloping. The BCBA recommended that the Student receive positive reinforcement (praise & check towards a token economy). (Ex. H.2-5)

[9] See the review of testimony in Prong II herein and the recommendations provided by the BCBA and Neuropsychologist under the heading of Compensatory Education.