New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT & DECISION

Case No. City/State: 223838/569031

Student’s Name: [REDACTED]

(hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: [REDACTED]

(herein after referred to as “Parent”)

School: [REDACTED]

(hereinafter referred to “Private School”)

Hearing Dates: 6/21/22; 6/30/22; 8/2/22

Actual Record Close: October 3, 2022

Hearing Officer: David R. Gronbach Esq.

Date of Decision: October 17, 2022

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent

[REDACTED], Parent

[REDACTED], Assistant Principal, Private School

[REDACTED], Interpreter

For the Department of Education:

[REDACTED], District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about January 18, 2022 regarding the 2019/20, 2020/21, and 2021/22 school years (P-Ex. A)^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by failing to provide an appropriate ABA program and services and placement (P-Ex. A). The Parent has requested direct tuition funding at Private School for the 2021/22 school year; transportation reimbursement for the 2021/22 school year; compensatory education; and a determination of Student’s program. (P-Ex. A; T-pg.46-51; P-Closing Brief).

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on May 5, 2022. A Pre-Hearing Conference was held on June 2, 2022, at which time a hearing was scheduled for June 21, 2022. (T.pg.21).

At the June 21, 2022 Hearing, the District presented documents that were entered into evidence, including a motion to dismiss on statute of limitations grounds. The District did not present any witnesses. (T-pg.33-34).^[2] Parent requested and was granted time to address the statute of limitations issue at the next hearing date. The Parent presented exhibits that were entered into evidence and presented the testimony of one witness. ^[3] (T-pg.36-41).

At the June 30, 2022 Hearing, the Parent presented exhibits that were entered into evidence, including the testimony of two witness and opposition to District’s motion to dismiss. (T.pg.74-78). The hearing was adjourned until August 2, 2022.

At the August 2, 2022 Hearing, the Parent presented an exhibit that was entered into evidence and the testimony of one witness. The Parties requested an opportunity to submit written closing briefs, which was granted. (T.pg.112). Both parties submitted closing briefs.

Two joint/unopposed requests to extend the compliance date were granted to October 17, 2022. The record closed on October 3, 2022.

DISTRICT’S MOTION TO DISMISS- STATUTE OF LIMITATIONS

District argued the DPC was filed on January 18, 2022 and thus Parent’s claims for the 2019/20 and 2020/21 school years were barred by the 2 year statute of limitation. (D-Ex.12).

On or about January 18, 2022, the Parents filed a request for an impartial hearing for the 2019-2020, 2020-2021, and 2021-2022 school years (P-Ex. A).

Parent argued that Student’s Parents speak Bengali and have a limited ability to speak and read English (P-Ex.SS-1, TT-1). Parents testified they have not been provided with interpretation services from English to Bengali during their interactions with the DOE. (P-Ex. SS-3, 9; TT-2, 5). The documents that the Parents received from the DOE were not translated from English to Bengali. District Ex.3, the 12/3/19 document it asserts as the operative date for SOL purposes, is in English.

On April 16, 2021, the DOE emailed Parents the Procedural Safeguards Notice. (D-Ex.5-29). Parent testified he received the document in April 2021, but did not understand it since there was no Bengali translation. (P-Ex.TT-5). Parents testified they learned about their right to get an attorney and file for a hearing in May 2021 (P-Ex. SS-10).

The IDEA contains two provisions pertaining to the timeliness of filing a due process complaint: 20 U.S.C. §1415(f)(3)(C) states: “A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows”. 20 U.S.C. §1415(b)(6)(B) requires a local education agency to develop procedures which provide parents with “an opportunity for any party to present a complaint” “which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for presenting such a complaint under this subchapter, in such time as the State law allows, except that the exceptions to the timeline described in subsection (f)(3)(D) shall apply to the timeline described in this subparagraph.”

New York law tracks the language of 20 U.S.C. §1415(b)(6)(B) and provides that a due process complaint must set forth “an alleged violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis for the complaint.” N.Y. Educ. Law § 4401(1)(a). See also 8 N.Y.C.R.R. §200.5(j): (i) Timeline for requesting an impartial hearing. The request for an impartial due process hearing must be submitted within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, except that the two-year timeline shall not apply to a parent if the parent was prevented from requesting the impartial hearing due to specific misrepresentations by the school district that it had resolved the problem forming the basis of the complaint or the school district’s withholding of information from the parent that was required to be provided to the parent under this Part or under Part 201 of this Title.

As set forth above, the two-year limitations period does not begin to run until a party knew or should have known they had a reason to file a complaint.

2019/20 School Year

Parent argued the claims regarding the 2019/20 school year fell within the withholding of information exception to the IDEA’s statute of limitations. The withholding of information exception includes the district’s failure to provide a parent with information about procedural safeguards, such as a PWN or procedural safeguards notice containing, among other things, information about requesting an impartial hearing. See 20 U.S.C. §1415(d)(1)(A); 34 CFR 300.503, 300.504; 8 N.Y.C.R.R. 200.5(a) and (f). Under the IDEA and federal and State regulations, a district must provide parents with a copy [emphasis added] of a procedural safeguards notice annually. 20 U.S.C. §1415(d)(1)(A); 34 CFR 300.504(a); 8 N.Y.C.R.R. 200.5(f)(3).

In this case, the DOE provided the Parents with a copy of the procedural safeguards notice on April 16, 2021 (P-Ex. 5-29). Student’s father testified he did not understand it since it was not translated into Bengali. (P-Ex. TT-5). The DOE never provided the Parents with any documentation in their native language, Bengali. (P-Ex. SS-1; TT-1). Parents testimony that they learned about their procedural rights, including their right to file for an impartial hearing, only sometime in April – May of 2021, was uncontroverted and supported by the evidence. District mistakenly claimed the document at Ex. 3 was a prior written notice dated 12/3/19. (D-Ex.12). In fact, it is BOE approval for preschool special education services dated 10/3/19. (D-Ex.3). Parent’s signature does not indicate they understood their rights or safeguards.

Thus, the filing of the DPC on January 18, 2022 falls within the two-year statute of limitations because the date Parent’s knew or should have known of their claim was April 16, 2021. Parents had at least until April 16, 2023 to file the DPC.

In addition, on March 20, 2020, the Governor of New York issued Executive Order No. 202.8 tolling the statute of limitations for the commencement of any legal action in New York, “including but not limited to the criminal procedure law, the family court act, the civil practice law and rules.” See 9 N.Y.C.R.R. 8.202.8. “The Governor later issued a series of subsequent executive orders that extended the suspension or tolling period, eventually through November 3, 2020.” See Application of the NYC Department of Education, SRO No. 21-157 at p. 6. The Second Department found that the Governor’s executive orders constituted a tolling of the statute of limitations, as opposed to a suspension of the statute of limitations. See Brash v. Richards, 2021 WL 2213786, at * 3 (2nd Dept. 2021), as discussed in SRO No. 21-157 at p. 6. In the present case, the tolling of the statute of limitations extended the deadline to file claims about the events that took place on October 8, 2019. Therefore, the Parents’ DPC that was filed on January 18, 2022 was timely.

2020/21 School Year

Two years prior to the 1/18/22 DPC was 1/8/20. Even assuming Parents knew about claims for 2020-2021 on the first day of that school year, July 1, 2020, the Parents would have had until July 1, 2022 to file a DPC. Parent’s filing on 1/8/22 was timely for this reason, and for the reasons set forth above.

Therefore, District’s motion to dismiss is denied.

FINDINGS OF FACT

Parent Mother testified Student has been diagnosed with Autism Spectrum Disorder (“ASD”). Student struggles to talk and express himself. Student has anxiety when asked to sit at the table and do academic tasks. He gets anxious and goes to the bathroom to avoid sitting. Student is hyperactive and very distractible. (P-Ex.SS; see also Ex.TT).

Student received Early Intervention (“EI”) services until the end of summer of 2019. The NYC Department of Education (“DOE”) conducted evaluations that showed Student was very delayed and behind other children his age. After a 10/8/2019 CPSE meeting, the District recommended a community school, which Parents determined was too far away, requiring a bus ride 2 hours each way. Student was three years old at the time, nonverbal, hyperactive, and easily frustrated. Parent informed the DOE representative the proposed school was too far. In November 2019, the DOE proposed another school that was still one hour and fifteen minutes each way. Parents found a school closer to home and Student began to attend in January 2020. Student did not receive any special education services from the October 2019 IEP meeting until early January 2020. (P-Ex.SS; see also Ex.TT).

At Student’s pre-school, there was only a teacher’s assistant and no certified special education teacher in Student’s classroom. In the middle of March 2020, after the school closures from COVID-19, Student’s preschool offered a remote learning program in the middle of April 2020 and continued until the end of June 2020 with multiple missed days because of Student’s disability or cancellations. (P-Ex.SS; see also Ex.TT).

Parent Mother testified because Student struggled to sit and attend to the screen, the remote learning sessions did not provide any benefit and Student was unable to participate in the virtual instruction and therapies. (P-Ex.SS; see also Ex.TT; WW).

Parent Mother testified there was no improvement or progress in Student’s language during his time at the preschool. (P-Ex.SS; see also Ex.TT; WW).

In January 2020, Parent Mother testified she arranged for Student to receive some ABA services at home through health insurance and Student responded well. (P-Ex.SS; see also Ex.TT).

As a result of the lack of progress and issues with the pre-school, Parents requested another pre-school and Student was transferred in September 2020 where he was placed in a small special education class with additional speech-language therapy and occupational therapy. (P-Ex.SS; see also Ex.TT).

Another CSE meeting was held in November of 2020 where Parent requested physical therapy, but it was not recommended. (P-Ex.Y). At the preschool for 2020-21, Parent Mother testified she did not see any progress in Student’s language, cognitive, emotional and behavioral skills. (P-Ex.SS; see also Ex.TT).

Parent Mother testified On May 20, 2021, they received a letter by mail inviting them to a meeting scheduled for the next day, May 21st, at 8 am. Parent Mother testified they did not have time to prepare for this meeting they did not understand what the meeting was for. Parent Mother was able to attend by phone and expressed that Student did not make any progress at the preschool. Parent requested the DOE recommend an ABA school. Parent Mother testified the DOE representative said could only recommend a “District 75” public school, and that they would have to get a lawyer to get Student into an ABA school. Parent Mother testified this was the first time the DOE explained the option. (P-Ex.SS; see also Ex.TT).

Parent Mother testified to the confusion over the DOE’s attempt to conduct a reevaluation of Student due to the language barrier. (P-Ex.SS; see also Ex.TT).

In late June 2021, Parent Mother testified she received a letter from the DOE recommending a District 75 program. Parent Mother called the school, but was not able to reach anyone by phone. Parent Mother testified the DOE told her no ABA would be provided at the school. (P-Ex.SS; see also Ex.TT).

Parents obtained a private neuropsychological evaluation in early August of 2021. (P-Ex.L). In addition to ASD, the evaluation diagnosed Student with severe Language (Expressive and Receptive) Disorder, severe Fine Motor Coordination Disorder, moderate Sensory Integration Disorder, and severe Attention Deficit/Hyperactivity Disorder (“ADHD”) (P-Ex. L-12). The evaluation recommended a small, structured classroom setting with a ratio of one teacher per two students, where Student would receive frequent 1:1 support and be educated with the use of the ABA methodology (P-Ex.L-13). The evaluation recommended an increase in SLT and OT as well as the after-school ABA therapy of 14 hours per week “to develop reciprocal skills, symbolic representation, and functional language in order to facilitate his learning” (id.). (P-Ex.L-13; P-Ex.SS).

Parent Mother testified she contacted the proposed DOE school but was told the program did not have any available seats for Student. (P-Ex.SS; see also Ex.TT).

Parent Mother testified on September 9, 2021, Student started to attend Private School because it provided an ABA program and all therapies, including physical therapy and a one-to-one paraprofessional. (P-Ex.SS; see also Ex.TT).

Parent Mother testified they had to drive Student 12.4 miles each way from September 13 to October 31, 2021,until a medical accommodation for Student was approved. Even after, Parent’s drove Student to school because of the long bus route. (P-Ex.SS; see also Ex.TT).

Parent Mother testified they could not afford the Private School tuition. (P-Ex.SS).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

As set forth in 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 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.

The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of production and persuasion is on the District for the first and third prongs. The Parent bears the burden of production and persuasion on the second prong.

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.” The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade... is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

DISTRICT’S BURDEN: DID THE DISTRICT PROVIDE FAPE

Here, the District failed to meet its burden in demonstrating that the District provided the Student with FAPE during the 2019/20, 2020/21, and 2021/22 school years. District presented exhibits with no witnesses to justify the proposed programs or services. The evidence presented by the Parent in the form of neuropsychological evaluations and testimony is that Student suffered from autism spectrum disorder that resulted in severe developmental delays, which required ABA therapy and an individualized program designed to meet Student’s needs.

Based on all of the above, I find that the District did not provide the Student with FAPE for the 2019/20, 2020/21, and 2021/22 school years.

PARENT’S BURDEN: APPROPRIATENESS OF UNILATERAL PLACEMENT The Parent bears the burden of proof to prove by a preponderance of evidence that the placement provides educational instruction specifically designed to meet the unique needs of the student with services necessary to permit the child to benefit from instruction. C.B. v. Garden Grove Unified School Dist., 635 F.3d 1155, 1159 (9th Cir. 2011) quoting Frank G. v Bd. of Educ., 459 F.3d 356, 365 (2d Cir. 2006).

Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89.

A private school placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school must provide an educational program which meets the student's special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

“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.”

(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

Parent presented the testimony of Assistant Principal, who testified she previously taught in District 75 schools. Private School is a private special education school primarily geared towards educating children with Autism Spectrum Disorders (“ASD”). Students with ASD typically have challenges with social skills, making it difficult for them to appropriately interpret social cues and interact with others in social situations. Students can also exhibit challenges with their speech and language skills, which further interferes with their social interactions. Students also present with sensory integration deficits resulting in sensitivity to noise, touch and light as well as perseverative behaviors and deficits in attention and focus. Students with ASD tend to present with low-muscle tone, which weakens their ability to sit upright for periods of time. All of these difficulties impede their ability to participate in, and gain access to, instruction. (P-Ex.RR; see also FF).

Assistant Principal testified Private School addresses uses specialized programming tailored to students. The curriculum integrates developmentally appropriate concepts at each grade level. Instruction is individualized to each child’s learning style, specific needs, and level. The majority of the teachers hold either a Permanent certificate in Special Education or a Provisional certificate in Special Education. Support staff includes a licensed school psychologist, a licensed mental health counselor, licensed clinical speech and language pathologists, Board Certified Behavior Analysists (“BCBA”), licensed occupational therapists, licensed physical therapists, a certified art therapist, and paraprofessionals. Private School has crisis intervention staff members who are Registered Behavior Technicians to address escalating behaviors. Private School uses ABA therapy, which is a science and evidence-based intervention that involves the application of basic behavioral practices (positive reinforcement, repetition, and prompting), and the use of systematic data tracking methods. Private School also uses an approach to help students identify their triggers and use strategies to cope and self-regulate their own behavior and a Therapy Program to address challenging behaviors as they arise, rather than wait for the child’s next scheduled therapy or counseling session. Private School uses Sensory Integration to address sensory issues. (P-Ex.RR; see also FF).

Assistant Principle testified Private School creates individualized behavior management plans for all students based upon Functional Behavioral Assessments conducted by the school psychologist under the supervision of a BCBA. (P-Ex.RR).

Private School’s Program works with students with intellectual disabilities who require a significant level of support and strict ABA instruction to engage in the classroom and learn daily living skills and functional academics. Each student’s academic and, if applicable, vocational goals are identified and customized on an individual basis to ensure success. (P-Ex.RR).

Assistant Principal testified Student is largely nonverbal; has a short attention span; and has difficulty listening to verbal directions and attending to tasks. Student requires frequent adult facilitation, redirection, and reinforcement in order to attend to the classroom activities. Since the beginning of the year, Student can sit for longer periods of time. (P-Ex.RR).

Assistant Principal testified Student has shown aggressive behaviors, such as scratching, hitting, kicking, and pinching. Private School developed a Behavior Intervention Plan (“BIP”) that includes various supports and strategies to address Student’s aggressive behaviors. Student was placed in a 6:1:1 class (six students, one teacher and one teacher assistant) and had a one-to-one paraprofessional to address Student’s significant attention deficits, behavioral challenges, and his need for one-to-one academic instruction. Assistant Principal testified Student requires 1:1 assistance for daily living skills and to implement his BIP. (P-Ex.RR; see also KK; LL).

Assistant Principal testified Student’s expressive and receptive language skills are significantly delayed. Private School provides speech-language therapy four times a week, individually, for a duration of 30 minutes per session. (P-Ex.RR; NN).

To address Student’s severe delays in fine motor and sensory processing skills, Private School provides him with occupational therapy three times a week, individually, for a duration of 30 minutes per session. (P-Ex.OO). To address the delays in Student’s gross motor skills, Private School provides physical therapy once a week, individually, for a duration of 30 minutes per session. (P-Ex.RR; PP).

Student receives a daily Adaptive Living Skills (“ADL”) course as well as a daily, targeted instruction towards improving ADLs. Student receives ABA services throughout the day integrated into all settings at school, including speech-language therapy, occupational therapy, and physical therapy. (P-Ex.RR).

Assistant Principle testified to the progress Student had made throughout the year. (P-Ex.RR; see also Ex.QQ).

With respect to the student’s progress at the Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here the Student has made academic progress.

After reviewing the testimony and evidence provided, I find that Parent has met their burden. I find that the Private School was an appropriate placement for the Student for the 2021/22 school year.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). The balancing of the equities examines the actions of the parents and District including:

1. Whether the Parents provided timely notice of the unilateral placement, either at the last IEP meeting or at least 10 business days prior to the removal of the student from the public school. Parent testified they provided Notice of the unilateral placement by letter dated August 25, 2021. (P-Ex.DD). Student became enrolled at Private School on September 9, 2021. (P-Ex.SS; GG). Thus, Parent’s notice was timely.

2. The Parent’s actions were reasonable. The Parent participated in the IEP meetings, provided evaluations and reports to the CSE, and attempted to visit proposed schools.

In balancing the equities, I find in favor of the Parent.

Compensatory Education The IDEA empowers courts to grant the relief that they determine to be appropriate. Burlington Sch. Comm. v. Massachusetts Dep't of Educ., U.S. 1985. (citing 20 U.S.C § 1415 (i)(2)(C)(iii)). IHOs are “granted broad authority… to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA.” SRO 12-033, See also SRO decision from February 13, 2015, 116 LRP 19162. The Second Circuit has determined that “[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA. P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Ed., 546 F.3d 111. An award of additional services should aim to place the Student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 (emphasis added). Courts may also direct districts to revise IEPs so that they meet the Student’s individual needs. Williamson County Bd. of Educ. v. C.K., 52 IDELR 40 (M.D. Tenn. 2009). Courts have the authority to craft appropriate relief even if the Parent does not particularize the relief in detail. R.P. ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1126 (9th Cir. 2011). Courts and hearing officers may not delegate to the school district the responsibility of crafting the appropriate compensatory relief. M.S. ex rel. J.S. v. Utah Sch. For Deaf & Blind, 822 F.3d 1128, 1130 (10th Cir. 2016).

An award of “compensatory education [has been held to be] appropriate relief where responsible authorities have failed to provide a handicapped student with an appropriate education as required by [the Individuals with Disabilities Education Act] (“the Act”).” Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1280 (11th Cir. 2008) (internal citations omitted). Compensatory education provides services “prospectively to compensate for a past deficient program.” G ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295, 308 (4th Cir.2003). The Act does not foreclose a compensatory award of placement in a private school. In Draper v. Atlanta, the Circuit court held that an award for private school placement was not an abuse of discretion because the record supported that the award was “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1290. The Student in that case was not required to prove that the School System was incapable of providing him an appropriate education.” Draper at 1286. The Supreme Court has explained, “The Act contemplates that such education will be provided where possible in regular public schools..., but the Act also provides for placement in private schools at public expense where this is not possible.” Burlington, 471 U.S. at 369, 105 S. Ct. at 2002–03. “When a public school fails to provide an adequate education in a timely manner a placement in a private school may be appropriate”. Draper at 1285. “[A] disabled student is not required to demonstrate that he cannot be educated in a public setting. Under [the Act], the relevant question is not whether a student could in theory receive an appropriate education in a public setting but whether he will receive such an education.” Id (emphasis added).

Parent’s BCBA testified as a result of the denial of FAPE and District’s failure to provide Student with an appropriate program, Student required 20 hours of one-to-one ABA per week during the 2019-2020 and 2020-2021 school year.

Parent requested 1480 hours of ABA services, for the time period during the 2019-2020 and 2020-2021 school years when Student was denied a FAPE (October 8, 2019 to August 31, 2021): 74 weeks at the rate of 20 hours per week.

BCBA also recommended a program that should have included:

• • 20 hours of ABA after-school services per week;
• • 1 hour of Family Counseling/ Parent Training by the BCBA per week,
• • 2 hours per week of Case Supervision by the BCBA per week.

(Ex. WW-20).

The Parent sought compensatory SLT and OT:

• • 102 individual SLT sessions, 30 minutes each, for the DOE’s failure to provide a FAPE during the 2019-2020 and 2020-2021 school years. 42 sessions for the 2020-2021 12-month school year (42 weeks x 1 session per week) and 60 sessions for the time period Student could not participate in the remote learning program offered during the COVID-19 pandemic, from mid-March 2020 to mid-August 2020 (20 weeks x 3 sessions per week, which is what the preschool IEP mandated for SLT).
• • 40 sessions of OT for the time period when Student could not participate in the remote learning program offered during the COVID-19 pandemic, from mid-March 2020 to mid-August 2020 (20 weeks x 2 sessions per week, which is what the preschool IEP mandated for OT).
• • The DOE failed to recommend Parent Counseling and Training to the Parents during the 2019-2020 and 2020-2021 school years. BCBA recommended 1 hour per week (Ex. WW-20).

Based on the District’s denial of FAPE and the evidence set forth above, Student is entitled to compensatory education as set forth in my Decision and Order below.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2019/20, 2020/21, and 2021/22 school years. District should have provided Student with an ABA program that included 20 hours of 1:1 ABA per week after school; 1 hour family counseling/training per week; and 2 hours of BCBA supervision per week.

I further find that the Parent’s unilateral placement at the Private School for the 2021/22 school year was appropriate and Parent could not afford the Private School tuition. Parent is entitled to direct tuition payment for the 2021/22 school year, with transportation reimbursement, and compensatory education, as set forth in my Order.

The Parent’s remaining claims are rejected for lack of support in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

• • ORDER THAT, the District shall directly pay the Private School for all tuition and fees for the Student’s unilateral placement at the Private School for the 2021/22 school year;
• • ORDER THAT, the District shall reimburse the Parents for all expenses incurred in transporting Student to and from Private School during the 2021-2022 school year, using the standard IRS mileage rate of $0.56/mile in 2021 and $0.585/mile in 2022;
• • ORDER THAT, the District shall provide Student with an ABA program that includes 20 hours of 1:1 ABA per week after school; 1 hour family counseling/training per week; and 2 hours of BCBA supervision per week; by providers of Parent choosing at market rate;
• • ORDER THAT, the District shall provide/fund a bank of 1,480 hours of compensatory ABA services, that shall not expire, to be provided by a licensed ABA therapist or BCBA of the Parent’s choosing, to be paid for at market rate;
• • ORDER THAT, the District shall provide/fund a bank of 102 thirty minute sessions of compensatory Speech-Language Therapy, 1:1, that shall not expire, to be provided by a licensed provider of the Parent’s choosing, to be paid for at market rate;
• • ORDER THAT, the District shall provide/fund a bank of 40 thirty minute sessions of compensatory Occupational Therapy, 1:1, that shall not expire, to be provided by a licensed provider of the Parent’s choosing, to be paid for at market rate;
• • ORDER THAT, the District shall provide/fund a bank of 74 hours of compensatory Parent Counseling and Training, that shall not expire, to be provided by a licensed provider of the Parent’s choosing, to be paid for at market rate;

SO ORDERED

DATED: October 17, 2022

David R. Gronbach

David R. Gronbach, Impartial Hearing Officer

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 EVIDENCE

Ex No. Date Description of Exhibit No. of pages

1 withdrawn

2 withdrawn

3 12/3/2019 Prior Written Notice 2

4 1 0/8/2019 CPSE IEP 28

5 7/25/2019 to

6/14/2022 Events Log 35

6 5/21/2021 IEP 29

7 6/2/2021 Prior Written Notice 4

8 7/19/2021 IEP 28

9 7/19/2021 Prior Written Notice 9

10 7/19/2021 IEP Reconvene 25

11 11/17/2021 Prior Written Notice 4

12 6/15/2022 Corrected MTD 7

13 1/18/2022 Due Process Complaint 10

PARENT EVIDENCE

• • 1/18/22 Impartial Hearing Request with Delivery Confirmation (12 pp.)

(B) 5/21/21 IEP (23 pp.)

(C) 7/19/21 IEP (19 pp.)

• • 7/19/21 Revised IEP with transportation accommodations (25 pp.)
• • 6/15/21 Prior Written Notice of Recommendation (4 pp.)
• • 7/19/21 Prior Written Notice of Recommendation (4 pp.)
• • 11/17/21 Prior Written Notice of Recommendation (4 pp.)
• • 9/24/21 OSH Physician Review Form for Transportation Requests (2 pp.)
• • 5/14/21 Meeting Notice Committee on Special Education (2 pp.)
• • 11/9/21 Parent’s agreement to amend the IEP without a CSE meeting (1 p.)
• • 8/6/21 – 8/13/21 Email Correspondence (1 p.)
• • 8/1/21 Pediatric Neuropsychological and Academic Evaluation (15 pp.)
• • 1/8/21 Assessment Summary and Treatment Plan (15 pp.)
• • 6/28/21 – 6/29/21 Email Correspondence with Attached Consent for Additional Assessments signed by the Parent (5 pp.)
• • 7/23/19 Bilingual Social History (3 pp.)
• • 7/29/19 Bilingual Speech-Language Evaluation (5 pp.)
• • 7/23/19 Bilingual Psychological Evaluation (8 pp.)
• • 7/25/19 Confidential Bilingual Educational Evaluation (7 pp.)
• • 8/14/19 Occupational Therapy Evaluation and Observation (5 pp.)
• • 8/30/19 Preschool Student Evaluation Summary Report (3 pp.)
• • 3/2/19 Bilingual Bengali Early Intervention Developmental Evaluation (6 pp.)
• • 3/2/19 Bilingual (Bengali/English) Speech-Language Evaluation (4 pp.)
• • 12/26/19 Letter of Dr. (2 pp.)
• • 10/8/19 Summary Student Information and Attendance Page (2 pp.)
• • 11/10/20 Student Summary Information, Final Notice of Recommendation, Authorization of the IEP, and IEP pages (14 pp.)
• • 12/4/20 Quarterly Progress Report by Preschool (11 pp.)
• • 11/3/20 Letter with Attached Evaluations (17 pp.)
• • 12/3/19 Parent’s Email to District (1 p.)
• • 4/2/20 – 4/4/20 Email Correspondence between the Parent and Preschool staff (2 pp.)
• • 8/25/21 Ten-Day Notice with Submission and Delivery Confirmation (5 pp.)
• • 12/31/21 2021 Federal Income Tax Return (12 pp.)
• • Undated Private School Program (2 pp.)
• • 6/3/22 Affidavit of Tuition Payments (1 p.)
• • 9/12/21 Parental Guarantee of 2021-2022 Tuition (2 pp.)
• • 6/3/22 Attendance Record for the 2021-2022 School Year (1 p.)
• • 2021-2022 Class Schedule (1 p.)
• • 12/7/21 Functional Behavioral Assessment (3 pp.)
• • 12/7/21 Behavior Intervention Plan (4 pp.)
• • 10/27/21 Academic 45 Day Report (3 pp.)
• • 11/1/21 Speech and Language 45 Day Progress Report (2 pp.)
• • 11/5/21 Occupational Therapy 45 Day Progress Report (2 pp.)
• • 11/1/21 Physical Therapy 45 Day Progress Report (2 pp.)
• • 4/21/22 Progress Report (18 pp.)
• • 6/13/22 Affidavit of Private School Assistant Principal (12 pp.)
• • 6/30/22 The Student’s Mother’s Affidavit (18 pp.)
• • 6/30/22 The Student’s Father’s Affidavit (7 pp.)
• • 11/13/19 – 12/3/19 The Parent’s Emails to District (1 p.)
• • 6/23/22 Parent Memorandum of Law on the Statute of Limitations Issue (9 pp.)
• • 7/29/22 Affidavit of BCBA (21 pp.)

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.

[2] Reference to the Transcript shall be referred to as “T”.

[3] A more detailed list of exhibits is attached.