New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 224442

FINDINGS OF FACT AND DECISION

Case Number: 224442

Student’s Name^[1]: REDACTED, (“Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED, (“Parent”)

Request Date/Date Complaint Filed: 2/11/22

Date(s) of Hearing: 6/22/22, 7/27/22, 9/21/22, 10/12/22, 11/17/22, 12/14/22 1/12/23, 2/13/23, 5/1/23, 5/22/23, 6/13/23

Actual Record Closed Date: 7/20/23

Date of Decision: 7/26/23

Hearing Officer: Barbara J. Caravello

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 22, 2022, 2022

For the Student: REDACTED

For the Department of Education: REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 27, 2022

For the Student: REDACTED

For the Department of Education: REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 21, 2022

For the Student: REDACTED

For the Department of Education: REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 12, 2022

For the Student: REDACTED

For the Department of Education: REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 17, 2022

For the Student: REDACTED

For the Department of Education: REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 14, 2022

For the Student: REDACTED

For the Department of Education: REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 12, 2023

For the Student: REDACTED

For the Department of Education: REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 13, 2023

For the Student: REDACTED

For the Department of Education: REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 1, 2023

For the Student: REDACTED

For the Department of Education: REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 22, 2023

For the Student: REDACTED

For the Department of Education: REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 13, 2023

For the Student: REDACTED

For the Department of Education: REDACTED

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC" or “Impartial Hearing Report”) filed on or about February 11, 2022. (Exhibit P-A)^[2].

After a period of settlement negotiations, the hearing on the merits of the complaint commenced on May 22, 2023.

The Parent submitted evidence listed as A through FF. The DOE submitted neither documentary or testimonial evidence. All submitted evidence was admitted into the record on May 22, 2022. The parties were given an opportunity to submit a closing statement and brief.

ISSUES

The Parent alleges that the DOE did not provide a free and appropriate public education (“FAPE”) for the 2020-2021 and 2021-2022 school years in that it failed to develop procedurally compliant and substantively appropriate IEP’s. The Parent, alleges that after proper notification to the DOE, the Student was placed unilaterally at the REDACTED school for the 2020-2021 and 2021-2022 school years when the Student, who was diagnosed with Autism, failed to thrive under the recommendations of any procedurally compliant IEP’s during and directly prior to the school years in question.

The Parent requests declaratory judgment that there was a FAPE denial, that the Student’s current placement is appropriate and that the equities favor the Parent.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

FINDINGS OF FACT

The Student was REDACTED years-old at the time of the hearing with several an educational classification of Autism. The Student’s diagnosis is considered REDACTED, Autistic Spectrum Disorder requiring substantial support and has also been diagnosed with REDACTED and REDACTED, REDACTED and Attention Deficit/Hyperactivity Disorder, (“ADHD”), (EX. F; Tr. 93). Due to these diagnoses, the Student is greatly lagging behind more typical children of his age with respect to a level of independence, (Tr. 98). As an example, the Student, who has REDACTED deficits, is inclined to put nonedible items such as stones and glass, in his mouth, Id. The Student has a very specific and inflexible need for continuity and will typically tantrum if taken to school, for example, using a route he is not familiar with, (Tr. 98-99). He engages in echolalia and can usually only use one to three words individually. Communication issues create frustration that have resulted in self harm. The Student has punched himself in the face and jaw when his understanding of speech or ability to make others understand his ideas prove ineffective, (Tr. 100).

The DOE has been aware of the Student’s struggles since his toddlerhood when he began to receive Early Intervention Services, (Tr. 100-103). For Kindergarten, the Student was placed in 370K at PS 237, a District 75 program. (Tr.103-104, 109-110). The Parent alleges that the Student’s progress regressed and he was evaluated at the REDACTED, (Ex. F; Tr. 104-105). Applied Behavior Analysis (“ABA”) was recommended by the evaluators along with increased levels of Speech-Language Therapy, Occupational Therapy, and Physical Therapy, (Ex. F-9, F-11). The evaluators further recommended therapy to address oral-motor communication skills (Ex. F-11). These recommendations were presented by the Parent to the DOE when requesting IEP meetings, (Tr. 106).

A private Speech-language evaluation was also engaged by the Parent, (Ex. E) where further speech-language support was recommended, (Ex. E).

I find that all the witnesses presented by the Parent were credible and their testimony, I find to be relevant.

Equities favor the Parent who gave sufficient notice to the DOE prior to the unilateral placement, (Exh. E). Further, the Parent’s attendance at the IEP meeting is an example of her willingness to work closely with the DOE on her child’s behalf. There was no credible showing by the DOE that the parent’s actions were anything but reasonable.

The Parent proved liability to the REDACTED for tuition and fees. The Parent has paid none of this amount citing her inability to afford the tuition.

The school has contracted with the Parent to accept direct funding, should she be successful in these proceedings, (Exh. M, Tr. 64-65). This direct funding is necessary to protect the Parent.

CONCLUSIONS OF LAW

The IDEA was legislated to, “ensure that all children with disabilities have available to them, a free appropriate public education that emphasizes special education and related services designed to meet their unique needs,” Board of Education of Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). The hallmark of a free and appropriate public education (“FAPE”) is 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,” id.

The IDEA does not directly create a local educational agency’s responsibility provide FAPE to its students. Rather, the IDEA fixes the responsibility for providing FAPE on the states, 34 CFR 300.149, See St. Tammany Parish Sch. Bd. v. State of Louisiana, 28 IDELR 194 (5th Cir. 1998), cert. dismissed, 110 LRP 44942, (noting that the ultimate responsibility for providing FAPE rests with the state educational agency); and T.B. v. Bryan Indep. Sch. Dist. 47 IDELR 224 (S.D. Tex. 2007), vacated on other grounds, 55 IDELR 244 (5th Cir. 2010) (explaining that SEAs are responsible for providing programs and services that LEAS are unwilling or unable to supply).

“The initial procedural inquiry is no mere formality, Walczak v. Florida Union Free Sch. Dt., 142 F. 3d 119, (2d. Circ., 1998). “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, See, Walczak, supra, and must be specifically designed to meet a child’s unique needs and be reasonably calculated to enable the child to receive educational benefits, Endrew F., 137 S. Ct. at 999, Gagliardo v. Arlington Cent. Sch. Dist. 489 F. 3d 105, 107 (2d Cir. 2007) (citing 20 U.S.C. § 1401(9).

An appropriate program begins with an IEP which 1) accurately reflects the results of the 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) provides criteria and evaluation procedures for the measurement of goals. See, Walzcak, supra; Id., Appeal No 00-005.

It is the responsibility of the DOE to provide the Student with the services and/or placement that will bring the student to a level of learning that is not only sufficient to confer some educational benefit upon the ‘handicapped’ child, Rowley, supra, but emphasizes “special education and related services designed to meet the Student’s unique needs and prepare him for further education, employment and independent living as well as 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.

A three-pronged test, generally known as the “Burlington-Carter test,” requires payment of tuition of a non-public school be made by the school district only if it is found that the FAPE was denied the student, the unilateral placement is appropriate and the equity of the case lies with the Parent, School Committee of Town of Burlington, Massachusetts v. Department of Education of Massachusetts, 471 U.S. 359, 370 (1985); Florence County School District v. Carter, 520 U.S. 7, 15 (1993).

Other than the appropriateness of a parental placement, the DOE’s burden of proof and persuasion applies to every contested issue in the hearing, including that of compensatory education issues, Appeal No. 17-105 at p, 8-9 SRO January 22, 2018. Allegations that are left unchallenged are deemed as true, “unless found to be inconsistent with the evidence in the record,” Appeal No 01-044 (SRO March 27, 2002, Appeal No 12-006.

In this instance, where the DOE has submitted no evidence of either a testimonial or documentary basis, it has failed to show that it has provided a FAPE to the Student and has in essence conceded FAPE denial, the DOE has defaulted on this point.

A school district has the burden of proof, including the burden of persuasion and the burden of production in IDEA due process hearings, except that a parent or person in a parental relationship, seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and the burden of production with respect to the appropriateness of such a placement, In re: Student with a Disability, NYS Educational Agency, 14-022, (3/31/14); In re: Student with a Disability, NYS Educational Agency, 175353, (12/14/18); M.P.G. v. N.Y.C. Dep’t. of Educ., 2010 WL 3398256, (S.D.N.Y. 8/27/10); NYS Educ. Law § 4404(1)(c).

It becomes the burden of the Parent to show the appropriateness of the unilateral setting.

A private placement must be appropriate and if it is not, funding of tuition by the districts may be denied. The parents, however, need not show that the placement furnishes every special service necessary to maximize potential, Sch. Comm. Of Burlington v. Dept. of Educ. of Mass., 471 U.S. 359 (1985); Frank G. v. Board of Educ. of Hyde Park Cent Sch. Dist., 46 IDELR 33 (2D CIR. 2006), cert. denied, 109 LRP 29770, 552 U.S. 985 (2007); see also, C.B. v. Garden Grove Unified Sch. Dist., 56 IDELR 121 (9th Cir. 2011), cert. denied, 111 LRP 68912, 132 S.CT. 500 (2011).

In both extensive documentary evidence, including the Affidavit of REDACTED, School Principal of the Student’s current placement and REDACTED, Speech Therapist and Supervisor, it was established that the REDACTED was an appropriate setting for this Student, (Exs. K, O-Z, DD, EE). The school is a small private school for student aged 5-21 with disabilities and in particular, those students on the Autism spectrum, (Ex. DD, K). All staff receive training in ABA therapy, along with other modalities such as, Collaborative & Proactive Solutions, (“CPS”), Real Time Functional Therapy, (“RTFT”), and additional interventions for students with Autism Spectrum Disorder, such as Sensory Integration, (Ex. DD). The Student delayed expressive, receptive and pragmatic skills were addressed through the thorough and comprehensive services provided at REDACTED, (Ex. S, T, U, W, X, Y, DD, EE).

A Functional Behavior Analysis and a Behavior Intervention Plan were conducted by the current placement where it was found that the principals of ABA would benefit the student,, (Ex. P, Q), a finding that proved valid, (Ex. DD, Z). The Student’s harmful behaviors decreased and the Student exhibited an increase in academic and behavioral understanding and progress in all spheres, (Ex. EE, Tr. 116-118).

Once a district fails to develop an IEP that makes FAPE available, the proper private placement need only confer some educational benefit to the student, C.B. v. Special Sch. Dist. No. 1, 56 IDELR 187, (8th Cir. The balancing of equities is the final consideration in determining whether the cost of reimbursement should be borne by the District for a unilateral placement, J.T. v. Dep’t of Educ., State of Hawaii, 72 IDELR 95 (D. Haw. 2018). The factors that must be considered consist of:

• • Whether the parents failed to provide the school district with timely notice of their rejection of the proposed public placement, including their concerns and intent to enroll the student in a private school at public expense. This notice is timely if it is made either at the most recent IEP team meeting or at least l0 business days prior to removal of the student from the public school, 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148 (d)(3).
• • Whether prior to the student’s removal, the school district informed the parents of its intent to evaluate the student, but the parents did not make the student available for the evaluation, 20 U.S.C. § 1412(a)(10)(C)(iii)(II); 34 C.F.R. § 300.148 (d)(1).
• • Whether the parents’ actions were unreasonable, 20 U.S.C. § 1412(a)(10)(C)(iii)(III); 34 C.F.R. § 300.148 (d)(3).
• • Whether the cost of the private placement is unreasonable, Carter, supra.
• • Whether there was a lack of parental cooperation with the school district, ^[3] The DOE failed to raise any cogent objections to the Parents’ claims based on equitable considerations. The Parent submitted that she is both unable to pay the tuition amount due of $112,300.00 for the 2021-2022 school year and obligated to do so, (Ex. M, AA, BB, Tr. 115).

Special education under New York State law is defined as “specially designed instruction …and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” requiring school district to provide disabled students with “suitable transportation,” See, Educ. Law §§4401(1); 4402 (4)(a); see also Educ. Law § 4401 (2); 8 NYCRR 200.1(ww). As special education transportation was not provided for the entire school year, the Parent had to incur out-of-pocket expenses for transporting the Student by car service or taxi for the 2021-2022 school year. Given the Student’s sensory issues and reaction to frustration, it is entirely reasonable that the Parent did not take the risk of riding public transportation with the Student.

Compensatory education is defined as educational services above and beyond that normally due to a student under his state’s education law. The purpose is to place the student in the position that the student would be in had the district provided the appropriate services in the first place, Reid v. Dist. Of Columbia, 43 IEDLR 32 (D.C. Cir. 2005).

Compensatory education may be awarded to a student who remains eligible for special education services if he or she was denied a FAPE. 20 U.S.C.§§ 1401(3)l 1412(a)(1)(B); P v. Newington, 546 F.3d 111, 123 (2d Cir. 2008), (stating that the “IDEA allows a hearing officer to fashion an appropriate remedy” and that “compensatory education is an available option under the Act to make up for a denial of a FAPE”), Student v. New York City Dep’t Of Educ., 2008 WL 4890440, at *23 (E.D.N.Y., 1/30/2008); Streck v. Board of Educ. of the East Greenbush Central School Dist., 408 Fed Appx 411 (2d Cir. 2010); Application of a Student with a Disability, Appeal No. 17-015. The Parent need not establish a “gross violation” of the IDEA to be awarded compensatory relief. I agree, however, that the DOE’s insistence upon ignoring the obvious benefit derived from the absent services and application of illegal blanket policies does rise to the level of a gross violation, id.

The IHO has broad authority in crafting an appropriate equitable remedy, Burlington v. Dep’t of Educ., 471 U.S. 359, 369 (1985), (recognizing that the IDEA “confers broad discretion on the court” in granting appropriate relief, 20 U.S.C. 1415 (i) (2)(C) (iii).

In fashioning compensatory relief, “the inquiry must be fact-specific and the award must be “reasonably calculated to provide the educational benefits that likely would have accrued from special education services that the school district should have supplied in the first place,” Reid v. Dist. of Columbia, 401 F. 3d 516, 524 (D.C. Cir. 2005).

This is a student with global developmental delays with profound deficits in REDACTED, all of which delay learning, (Exs. E, F, P-Y, DD, EE, FF). An evaluation, issued by the REDACTED recommended a variety of support services such as ABA with BCBA supervision, (Exs E, F, P-7, DD, EE, FF). Although the Student has not received Applied Behavioral Analysis in the District 75 program or an other DOE programs prior, it is clear that in this instance it has been the only modality that has resulted in the kind of progress that should have been expected in prior years, (EX. FF). The Student regressed significantly when enrolled in the District 75 program, (Tr. 104, 112-113) and there was no available NYS approved non-public school available to implement the October 8, 2020 IEP.

A reevaluation by REDACTED, a BCBA Licensed Analysist posited that the lack of ABA based instruction while enrolled in a District 75 program during the 2020-2021 school year, essentially deprived the Student of a program that was reasonably calculated program to educationally benefit him, (Ex. FF). The evaluator calculated that 20 hours per week for a time period of 38 weeks during that school year was what the Student needed to be able to progress adequately and that the compensation by this service would bring the Student to a significant level of progress in all domains, Id. This time period totaled 760 hours.

In order to accomplish proper ABA instruction, it is recommended that there be 2 hours per week of Case Supervision by a Board Certified Behavior Analyst to supervise, research, analyze data, and plan goals. For the tie missed in the 2020-2021 school year, the equivalent compensation. In addition, this Student’s level on the Autism spectrum, along with his multiple disabilities, needs an intense level of reinforcement and continuity. To establish that, and to complete the services that will make up for the program that the Student should have but did not receive, parent counseling is both necessary and appropriate, (Ex. FF). The recommended amount of training is 38 hours which corresponds to a 38 week school year, where there should have been one hour per week of the service.

ANALYSIS

This Student has been denied a FAPE due to the DOE’s failure to render a timely, procedurally appropriate IEP. The Student has been diagnosed with Autism along with multiple educational disabilities which were not met by the most recent IEP.

It should have been clear to the District that the Student was regressing in his Kindergarten class and that the program was inadequate. The DOE did not, however, provide an appropriate placement.

The DOE has therefore not met its burden to show that a FAPE was offered the Student. The Parent by contrast, has met her burden to show the appropriateness of the unilateral placement.

The equities remain with the Parent, whose request for direct funding to the unilateral placement be ordered paid by the DOE is granted. There is no showing that the Parent was anything but cooperative and reasonable.

ORDER

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

• • The DOE has violated the IDEA and failed to provide the Student a FAPE for the 2020-2021 and 2021-2022 school year in that the actions and omissions of the DOE significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE and caused a deprivation of educational benefits;
• • The REDACTED was an appropriate program for the Student during the 2021-2022 school year.
• • The DOE must fund REDACTED directly, the total tuition cost or the 2021-2022 school year in the amount of $112,300.00.
• • Student was entitled to transportation for the 2021-2022 school year the Parent is to be reimbursed for out-of-pocket expenses incurred for transporting the Student to and from the REDACTED during the 2021-2022 school year using Lyft or similar cab services in an amount no greater than $640.66, to the extent that the amount sought can be documented using the means of documentation ordinarily utilized by the DOE’s implementation unit in the usual course of business.
• • The DOE shall fund a bank of 760 hours of 1:1 ABA services, 76 hours of BCBA supervision, and 38 hours of Parent Training by the BCBA provider, to be delivered by providers chosen by the Parent at the market rates, with no expiration date to use these services to compensate the Student for the DOE’s failure to provide a FAPE for the relevant portions of the 2020-2021 and 2021-2022 school years prior to when the Student began attending REDACTED.
• • The district must immediately upon receipt, enter this order on a system that is used to keep track of such orders.

SO ORDERED:

Dated: July 26, 2023

______________________________________

Barbara J. Caravello, Impartial Hearing Officer

APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD

REDACTED

APPEAL RIGHTS

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] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[3] Neither Burlington, Carter nor the IDEA mentions this equitable consideration, but other courts have weighed parental cooperation in deciding whether to award reimbursement, See e.g., Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656 (S.D.N.Y. 2005), Glendale Unified Sch. Dist. v. Almasi, 122 F. Supp. 2d 1093, (C.D. Cal. 2000), 20 U.S.C. §1412(a)(10)(C).