New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 572984 - NYC: 226358

FINDINGS OF FACT AND DECISION

Case Number: 226358

Student's Name: [STUDENT]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 07/08/2022

07/25/2022

08/24/2022

Actual Record Close Date: 08/30/2022

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/08/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/25/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/29/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], Attorney

For the Department of Education: [REDACTED], District Representative

DOCUMENTS ENTERED INTO THE RECORD

PARENT DOCUMENTS

Ex Date Title Page(s) Entered

A 05-11-2022 Impartial Hearing Request with Receipt 04 07/08/2022

B 06-17-2020 Ten-Day Notice with Receipt 04 08/24/2022

C 04-05-2017 Neuropsychological Evaluation 2017 18 08/24/2022

D 03-24-2021 Neuropsychological Evaluation 2020 34 08/24/2022

E Undated [REDACTED], LLC Home-Based

ABA Program Description 01 08/24/2022

F June 2022 Progress Reports 06 08/24/2022

G 05-11-2022 Services Affidavit 01 08/24/2022

H Undated Provider Certifications 03 08/24/2022

HEARING OFFICER DOCUMENTS

Entered 07/08/2022

I Notice of appointment, 06/27/2022, 4 pages

II Consolidation Order, 06/27/2022, 3 pages

DEPARTMENT OF EDUCATION

None

INTRODUCTION

On 06/27/2022, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Hearing commenced on 07/08/2021, to allow the DOE an opportunity to present a defense to the allegations contained in the DPC.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Due Process Complaint (DPC) alleges a failure of the DOE to offer the Student a Free Appropriate Public Education (FAPE) for the 2020-2021 school year. (Ex A 1)

The DPC refers to Individualized Education Plan (IEP), of 05/12/2020, which is alleged to be procedurally and substantively invalid. (Ex A 1)

IEP recommended:

• • A special 6:1:1 class is a District 75 school;
• • Occupational Therapy (OT);
• • Physical Therapy (PT);
• • Speech and Language Therapy (SLT);
• • Parent Counseling and Training (PCAT); and
• • A 12 month school year. (Ex A 1).

Parent seeks relief that includes:

• • 10 weekly hours of 1:1 home based ABA therapy services
• • 1:1 Special Education Itinerant Teacher (SEIT)/instruction utilizing ABA principles (25 weekly, individual hours);
• • SLT five, 45 minutes sessions weekly;
• • PY three, 45 minute, individual sessions weekly;
• • OT three, 45 minute, individual sessions weekly; and
• • PCAT one hour quarterly. (Ex A 3)

THE POSITION OF EACH PARTY

The DOE Representative appeared, at Hearing of 07/08/2021. DOE Representative Conceded Prong 1. This is common parlance to concede the DOE failed to offer the Student a Free and Appropriate Public Education (FAPE), for the year at issue. In this case the year at issue, is the 20-21 school year.

The Parent Attorney advised the IHO that settlement documents had been submitted recently.

At Hearing, of 07/25/2022, the Parent Attorney advised the IHO that there had yet to be a response, from the DOE, to the documents submitted regarding settlement. (T 14)

A date of 08/24/2022 was set. If the matter was not settled by that time, the Parent would present its case.

Hearing did continue, on 08/24/2022, at which time the Parent’s Attorney advised the IHO that the matter had not yet been settled. (T 24)

Parent Attorney set forth the basic Parent position, via DPC. (Ex A)

At Hearing, of 08/24/2022, the Parent Attorney advised that the only unresolved, 20-21 school year Student service, was the home based ABA. Parent seeks these services now as Compensatory Services. (T 25)

Parent Attorney clarified that the home based ABA services were received during the 20-21 school year, as a result of an award issued via previous litigation. (T 25-26)

Student received home ABA services via the “previous year's stipulation. But they still are owed the hours. It's just with the timing. By the time the stipulation was executed, the school year -- those are hours for a previous school year. But they weren't implemented until'20/'21 school year.” (T 26)

Parent Attorney argues that the Student presently is not receiving the ABA services, though so entitled. (T 27)

Parent Attorney notes that, due to Covid, there were periods of the 21-22 school year where the Student did not receive services. (T 30)

Parent Attorney summarizes the Parent’s position:

“…this child has a long history of profound special education needs. And two evaluations taken over the course of three years have shown that she needs trans-disciplinary one-to-one ABA services. So meaning, in addition to her center-based ABA, but needing these same services at home…generalize those skills and to focus on building the additional social-emotional and academic skills that she needs…[REDACTED] is able to provide these services of home-based ABA services, as shown in her affidavit and in her program description. And [STUDENT] has been able to make progress and continues to need to and is entitled to these services, ten hours per week, on a 12-month basis, for the 46-week school year, based on all the information that has been presented at hearing.” (T 35)

Documentary evidence is reviewed below. It is considered credible and supportive of the Parent’s position.

A 05-11-2022 Impartial Hearing Request with Receipt

Details Parent allegations of a denial of FAPE for the 20-21 school year, and sought after relief.

B 06-17-2020 Ten-Day Notice with Receipt

Parent details objections to the IEP, of 05/12/2020, and contends the Student still requires ABA services:

“[STUDENT] still requires intensive 1:1 ABA support, and the DOE’s recommended program would not be appropriate for her. She has been receiving such support for the past school year at the [REDACTED] (“REDACTED”), whose reports were provided to the CSE in advance of the meeting. The REDACTED progress report reflected unambiguously that [STUDENT] “continues to require a full-day ABA program in a 1:1 setting with related services offered in a transdisciplinary format.” Either the CSE chose to disregard this information, or declined to make such a recommendation because of the CSE’s view that such services are not available to NYC students, such as [STUDENT], who require them. Either way, the CSE’s failure to recommend such a program for my daughter was not appropriate, and the CSE did not conduct any evaluations of my daughter that called into question the necessity of such a 1:1 ABA program for [STUDENT].” (Ex B 1)

Parent also advises the DOE that she has “not been provided with an IEP or offer of placement for [STUDENT]. I have not been provided with any goals, strategies to meet her management needs, or any of the other critical information contained in an IEP. I have also not received a Prior Written Notice describing what was recommended and why, nor explaining why the CSE chose not to recommend a 1:1 ABA program for my daughter, even though the CSE knew that was the only program that is capable of providing [STUDENT] the opportunity to make educational progress.” (Ex B 2)

Parent advises the DOE that until appropriate services and placement are offered, the Student will be enrolled at [REDACTED] in July, and Parent will seek funding for continued placement at REDACTED for the 2020-2021 school year at DOE expense. (Ex B 2)

C 04-05-2017 Neuropsychological Evaluation 2017

Student testing details areas of delay, and diagnoses is set forth as:

F84.0 Autism Spectrum Disorder with accompanying intellectual impairment and language impairment. (Ex C 11)

Recommendation is made for services, including:

• • SLT (Ex C 12-13);
• • OT (Ex C 12);
• • PCAT (Ex C 15); and
• • Academic supports. (Ex C 12-14)

Recommendation specifically calls for an Applied Behavior Analysis (ABA) program, to be delivered at school, and at home:

“[STUDENT] has not received Applied Behavioral Analysis (ABA) since early intervention. A full time 1:1 ABA program (40 hours) is necessary for [STUDENT] to make meaningful progress. [STUDENT]’s ABA treatment must be cross-situational that is schedules and treatment times are distributed at school (30 hours a week in a 1:1 setting) and at home (10 hours a week in a 1:1 setting). Research in this area has documented the importance of data collection in measuring responsiveness to therapy. Therefore, daily graphical records should be obtained on [STUDENT]’s progress on operationally defined goal plans and results monitored carefully and frequently in order to analyze changes and reasons for success or failure. ABA can target the following areas:

• • Decrease content perseveration
• • Increase her awareness and communication of moods such as happy, sad, fear, disgust
• • Teach the affective meaning of facial expressions of emotion by having

[STUDENT] learn to match those expressions with situations that elicit the same moods. Use situations with which she can identify.

• • Increase vocabulary and use of language for communicative purposes” (Ex C 14).

D 03-24-2021 Neuropsychological Evaluation 2020

Student testing details areas of delay, and diagnoses, summarizing, in part:

• • Student is: “demonstrating the essential clinical features of an Autistic Spectrum Disorder with concomitant severe language and executive function challenges. Most marked challenges were noted in the areas of communication, social interaction and social emotional reciprocity.” (Ex D 25)

Recommendation is made for services, including:

• • SLT (Ex D 27); and
• • OT. (Ex D 28)

Recommendation specifically calls for an Applied Behavior Analysis (ABA) program, to be delivered at school, and at home:

“A full time 1:1 ABA program (40 hours) is necessary for [STUDENT] to make meaningful progress. [STUDENT]’s ABA treatment must be cross-situational that is schedules and treatments times are distributed at school (30 hours a week in a 1:1 setting) and at home (10 hours a week in a 1:1 setting). Research in this area has documented the importance of data collection in measuring responsiveness to therapy. Therefore, daily graphical records should be obtained on [STUDENT]’s progress on operationally defined goal plans and results monitored carefully and frequently in order to analyze changes and reasons for success and failure.” (Ex D 28)

E Undated [REDACTED], LLC Home-Based ABA Program Description

Service provider details aspects of the Student ABA services, including:

• • 1:1 ABA therapy from Licensed Behavior Analysts (LBAs). 1:1 ABA therapy includes program oversight and parent/caregiver coaching as well;
• • Our methods rely on a child centered approach and customized program with a focus on functionality;
• • Services are rendered in home, school or community-based settings as appropriate for each client, and highly individualized;
• • Upon initiating services, each child is assessed. Assessment is determined by the number of hours, setting, and type of skills to be targeted, and is determined collaboratively with the family. It may include a formal assessment, informal assessment, interviews with caregivers, collaboration with other team members, and review of the client’s records and educational history;
• • Skills are threaded into a comprehensive sequence to support a learner’s development from where they are now to where they can be. Each skill is broken down in a unique and dynamic way to promote functionality, mastery and generalization;
• • Our therapy focuses on supporting an independent and functional life, while keeping in mind the client preferences and family lifestyle;
• • ABA tactics such as task analyses; chaining; prompt and prompt fading; learn units; and verbal behavior training are incorporated into sessions on a child-specific basis;
• • Data is collected and analyzed on a regular basis, and modifications to programming and goals are ongoing based on the client progress and needs; and
• • We will work collaboratively with school-based teams and other professionals to provide each child with the required supports they need to learn and acquire new skills, as well as decrease interfering behaviors.

F June 2022 Progress Reports

Details Student areas of special need and supports:

Student is identified as: “REDACTED year old girl who is currently receiving 1:1 ABA therapy from two LBA-level clinicians in the home-based and community-based settings, in addition to services she receives as her school placement. Her home-based program focuses on increasing her verbal behavior, social skills, leisure skills and self-management skills. During this school year, [STUDENT]’s home-based programming was paused for approximately 6 weeks. Prior to pausing services, [STUDENT]’s mom was trained to carry over mastered skills for maintenance purposes. Upon resuming services, [STUDENT] demonstrated some regression, particularly with language skills, reverting back to shorter and more rote language initially.” (Ex F 1)

Student is noted to have made progress in all domains. (Ex F 1) require that skills are broken down and taught systematically.

Supports Student requires include: verbal, model or visual prompts to understand expectations being placed on her; high levels of prompting to support learning and minimize frustration; prompts can be faded throughout her sessions and require a high level of clinical judgment to determine Student’s readiness for independence; generalization and natural teaching to be embedded into her programming; for regular probes to be conducted on her skillset; and when working on more natural skills, such as varying her language; indirect verbal prompts and modeling novel language have been effective strategies to support Student’s development. (Ex F 1)

Goals and progress are detailed in areas of:

• • Verbal Behavior (Ex F 2);
• • Social Skills (Ex F 2-3);
• • Leisure Skills (Ex F 3-4);
• • Self Management (Ex F 4);
• • Daily Living Skills (Ex F 4-5); and
• • Community Skills. (Ex F 5)

Report concludes by summarizing Student progress, and opinion that the ABA services are still required: “[STUDENT] has made meaningful progress towards home and community goals, which are necessary to meet her unique needs, and prepare her for independence. She continues to requires 1:1 ABA therapy in the home and community based settings, in addition to her full-time school placement. Additionally, she requires a high level of collaboration between providers to ensure consistency, generalization and that appropriately ambitious expectations are set across therapists.” (Ex F 6)

G 05-11-2022 Services Affidavit

ABA provider sets forth a willingness, of her agency, to provide 10 weekly hours of home ABA services, for a 12 month school year, at a rate of $195.00 per hourly sessions.

H Undated Provider Certifications

Certifications of ABA home providers

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (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]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No.

07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] 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., 137 S. Ct. at 1000).

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, 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]; 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).

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). 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 offered an educational program which met 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 (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). 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 a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the 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; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

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 their removal of the student 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. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). 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]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2020-2021 School Year

The DOE conceded that a FAPE had not been offered, to the Student, for the 20-21 school year. (T 8)

The DOE has evidenced neither the development of an appropriate IEP, nor placement, for the commencement of the 20-21 school year.

The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 20-21 school year.

I find the DOE failed to offer the Student a FAPE for the 20-21 school year.

COMPENSATORY SERVICES

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).

The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).

In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought.10 Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology supports.); Woods v. Northport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) (upholding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”).

If Student is found to be entitled to compensatory education under applicable law; compensatory education is an equitable remedy that arises out of the jurisdiction of 20 U.S.C. § 1415; equitable factors do not bar relief here and no inequitable conduct was established on the part of the parents. N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Dist. of City, No. 07 Cv. 9648 (BSJ), 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) (Reversing the SRO and upholding the award; Court found that it is well established that, in the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim for tuition.); Wolfe v. Taconic Hills Cent. Sch. Dist., 167 21 F.Supp.2d 530 (N.D.N.Y. 2001)( the equities—requires a balancing of both parties’ conduct and interest—not merely the actions of the parent). There are no facts established here that show that the parent failed to cooperate or acted inequitably to interfere with the DOE’s ability provide FAPE.

A FAPE has already been found to have been denied the Student for the 20-21 school year.

Testimony and documentary evidence, as reviewed above, support the necessity of the sought after Student services, for the 20-21 school year. The Student is evidenced to have been in need of the sought after home based ABA services. This evidence is consistent in the evidence provided and uncontroverted by the DOE. (Ex C 14, D 25 & 28, E & F)

The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Evidence sets forth areas of Student special education need, specifics need for home ABA services to address those needs, and notes progress via the home based ABA services. (Ex C, D, E, F, G & H)

Parent evidences a reasonable basis for award of compensatory services, in light of the DOE failure.

Parent notified the DOE of the issues considered herein via TDN letter, of 06/17/2020. (Ex B)

Remaining sought after relief, outside of the home based ABA services, have been resolved. (T 25)

I find an award of Compensatory services is appropriate, in the form of:

• • 10 weekly hours of 1:1 home based ABA therapy services, for a 12 month school year.

ORDER

• • The Department of Education (DOE) failed to offer the Student a FAPE for the 2020-2021 school year.
• • The DOE shall fund compensatory services for the Student, to be utilized by 12/31/2023.
• • A bank of 10 weekly hours of 1:1 home based ABA therapy services, based upon a 12 month school year.
• • The DOE shall provide Parent with any documents or forms necessary to facilitate implementation, and payment under this Order, within ten days of the date of this Order.
• • 4. This decision is subject to appeal and review by the State Review Officer.

DATED: August 30, 2022

DANIEL AJELLO

DANIEL AJELLO

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.