NY IHO #226469: New York City... | Special Education Law

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NYSED # 573140 / NYC # 226469

FINDINGS OF FACT AND DECISION

Case Number: 226469

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 07/07/2022

07/29/2022

08/04/2022 Pendency Hearing

08/05/2022

Actual Record Close Date: 08/18/2022

Hearing Officer: Daniel Ajello Esq.

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

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/29/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/04/2022

(All present by video or telephone)

For the Student: [REDACTED], Attorney

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/05/2022

(All present by video or telephone)

For the Student: [REDACTED], Attorney

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

DOCUMENTS ENTERED INTO THE RECORD

PARENT DOCUMENTS

Entered 07/07/2022

• Impartial Hearing Request May 17, 2022 9 pages

Entered 07/29/2022

• Notice of Intention to Unilaterally Place June 17, 2021 3 pages
• IEP and Authorizations June 27, 2017 24 pages
• [REDACTED] Daily Schedule June 2022 1 page
• ABA Progress Report December 2021 7 pages
• Speech-Language Progress Report December 2021 4 pages
• Occupational Therapy Report December 2021 5 pages
• Physical Therapy Report December 2021 3 pages
• Attendance Cards -undated- 6 pages
• Affidavit of Services Provided -undated- 1 page
• ABA Goals 2021-2022 June 2021 4 pages
• Speech and Language Goals 2021-2022 June 2021 4 pages
• Occupational Therapy Goals 2021-2022 June 2021 3 pages
• Physical Therapy Goals 2021-2022 June 2021 2 pages
• Financial Agreement June 25, 2021 1 page
• ABA Therapy Goals & Report January 31, 2022 6 pages
• Neuropsychological Evaluation April 5, 2017 18 pages
• Neuropsychological Evaluation March 24, 2021 34 pages
• Affidavit of [REDACTED] July 28. 2022 5 pages
• Affidavit of [REDACTED] July 28, 2022 9 pages

Entered 08/05/2022

• Affidavit of [REDACTED] August 2, 2022 2 pages
• Signed and Notarized Affidavit of Services July 25, 2022 1 page

HEARING OFFICER DOCUMENTS

Entered 07/07/2022

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

II Interim Consolidation Order, 06/27/2022, three pages

Entered 08/05/2022

III Pendency Order, 08/04/2022, nine pages

DEPARTMENT OF EDUCATION

Entered 07/07/2022

Ex Document Date Page(s)

1 CSE notice 2/4/21 2

2 IEP 3/22/21 32

3 IEP meeting sheet 3/22/21 1

4 School location letter 4/7/21 10

5 School location letter 6/14/21 10

6 Social History 3/12/19 2

7 [REDACTED] ([REDACTED]) ABA report 12/20 8

8 [REDACTED] Progress Report 20/21, 12/20 4

9 [REDACTED] Progress Report 12/20 4

10 [REDACTED] 2021 OT progress report 12/20 5

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 07/07/2021, 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 2021-2022 school year. (Ex A 1)

Parent seeks a variety of forms of relief to remedy the alleged failure, including, funding for unilateral placement (UP), at [REDACTED] (UP), with transportation. (Ex A 4-5)

Parent requested a determination of Student Pendency, and Pendency Hearing was held, on 08/04/2022, and an Order was issued, establishing Student Pendency as:

• Special Education Instruction 24 hours weekly, direct service;

• Special Education Instruction, 1 hour weekly, indirect service;

• Speech-Language Therapy, Individual, 4, 45 minute sessions weekly;

• Speech-Language Therapy, Group of 2, 1, 45 minute session weekly;

• Occupational Therapy, Individual, 3, 45 minute sessions weekly;

• Physical Therapy, Individual, 3, 45 minute sessions weekly; and

• Parent Counseling and Training, quarterly, for 60 minute sessions.

(IHO Ex III 8)

THE POSITION OF EACH PARTY

The DOE appeared at Hearing and rested upon the submitted documents. (T 7)

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

Parent Attorney lays out some of the Student’s educational history:

“Basically, this is a student that since 2017 has received these services at the [REDACTED]. There have been pendency orders and then subsequent settlement agreements between the parties for each of those years. And those pendency orders, and then settlement agreements, funded the placement of the services –- or they funded the services at the [REDACTED]. So apparently this is how the [REDACTED] has something in writing to make sure that the parent is aware that they are responsible for the cost of the services.” (T 23)

Regarding sought after UP funding, for the 21-22 school year: “My understanding is that the pendency order on the prior case terminated as of September 24th of 2021. And that the program has not been paid for any services provided after September 24th of 2021. That that is what remains outstanding. That they were paid from the period of July 1, 2021 through September 24th of 2021.” (T 27)

Parent Attorney supported the Parent’s position via Documentary Evidence.

The IHO noted, at Hearing, that Exhibit J was neither signed, nor notarized. Parent Attorney was afforded an opportunity to submit an additional, properly signed document. Additional document was submitted, and entered into the Record, as Exhibit V. (T 51-52)

Documentary Evidence is found to be credible and supportive of the Parent's case, as considered below:

• Impartial Hearing Request May 17, 2022 9 pages Details Parent allegations of District denial of FAPE, for the Student, for the21-22 school year.

Parent alleges the IEP, of 03/22/2021 is insufficient:

“The team did not conduct, secure, or rely on sufficient evaluative measures to make a determination of [REDACTED]'s present levels of performance, educational and cognitive profile, and areas of need, including functional behavioral needs. The CSE significantly impeded the ability of the Parent to participate in the development of the IEP…At this meeting, the CSE members of the team recommended a 6:1:1 Special Class for 35 periods per week, Adapted Physic Education for 3 periods per week, Occupational Therapy for 5 periods per week, Physical Therapy for 3 periods per week, and Speech-Language Therapy for 5 periods per week, for a total program of 51 periods per week for [REDACTED]. The Parent expressed their objection to this type of program because of [REDACTED]’s documented need to receive instruction on a 1:1 basis using ABA. The CSE members of the team proceeded with their recommendation notwithstanding these concerns. The CSE team failed to meaningfully review any goals, management needs, or promotional criteria/transition planning with the parent at this meeting. The team failed to develop a behavior intervention plan at this meeting despite the clear need for such a plan and have failed to provide the Parent with either a Functional Behavior Assessment or a Behavior Intervention Plan.” (Ex A 2)

Parent seeks relief that includes District funding of the UP, for the 21-22 school year. (Ex A 4-5)

• Notice of Intention to Unilaterally Place June 17, 2021 3 pages Parent notifies the District of objection to the recent IEP; intent to unilaterally enroll the Student at the UP; and intent to seek District funding.
• IEP and Authorizations June 27, 2017 24 pages
• Student IEP evidencing entitlement to an array of special education services, for the 17-
• 18 school year.
• [REDACTED] Daily Schedule June 2022 1 page Student schedule indicating ABA and Related Services.
• ABA Progress Report December 2021 7 pages
• Details Student areas of special need and supports:
• “[REDACTED] demonstrates difficulties following directions with unfamiliar adults and requires prompting to engage in social skills with her peers (i.e., when on the playground with a peer [REDACTED] will sit and watch what the peer is doing rather than engaging in the activity or communicating with her peer). [REDACTED] engages in high rates of vocal stereotypy in unstructured and some structured environments. She also engages in motor stereotypy in the form of noncontextual touching and will sometimes get up from her seat to touch something across the room unprompted. When [REDACTED] is provided with 1:1 instruction, and her environment is highly structured and predictable, she engages in lower rates of stereotypy. A Functional Behavior Assessment (FBA) was conducted in November 2021 to determine the function of [REDACTED]’s vocal stereotypy and non-contextual touching. A Behavior Intervention Plan (BIP) was then created with tactics to decrease the instances of non-contextual touching and vocal stereotypy during [REDACTED]’s school day. Some of the tactics in the BIP include unmatched stimuli utilizing a sensory diet, self-management skills to help express her emotions which has shown to bring on vocal stereotypy, and a contingency contract (an agreement between [REDACTED] and her therapist determining appropriate behavior for predetermined periods of time in which she earn tokens for bigger reinforcement). [REDACTED] requires systematic programming for generalization and maintenance, and systematically faded reinforcement during 1:1 instruction. Stimulus prompts have proven to be an effective teaching strategy for [REDACTED]…[REDACTED] also receives speech and language therapy, occupational therapy, and physical therapy at [REDACTED]. Transdisciplinary collaboration is necessary for [REDACTED] to make progress. The behavior analyst collaborates with related service providers and [REDACTED]’s family, and conducts informal assessments as needed. While goals are developed for the school year, progress towards each goal is measured daily, and modifications to the goals may be made following further evaluation from the team. [REDACTED] requires an ongoing assessment process that is unique to her needs and reflects the level of oversight required to monitor her skill development and behavioral progress…[REDACTED] requires a full-day comprehensive ABA program presented in a 1:1 format with supervision from a behavior analyst in order to make progress towards her goals and age-appropriate skills.” (Ex E 1)
• Goals are set forth in areas of communication (Ex E 2-4); Reading and Writing (Ex 4-5);
• Math (Ex E 5); and Social Skills (Ex E-6).
• Speech-Language Progress Report December 2021 4 pages Student areas of delay, and goals are detailed.
• Occupational Therapy Report December 2021 5 pages Student areas of delay, and goals are detailed.
• Physical Therapy Report December 2021 3 pages Student areas of delay, and goals are detailed.
• Attendance Cards -undated- 6 pages
• Student attendance of related services, at the UP, for the 21-22 school year.
• Affidavit of Services Provided -undated- 1 page Updated via Exhibit V.
• ABA Goals 2021-2022 June 2021 4 pages
• Student special education needs, and ABA goals are detailed, noting the need for related
• services, and 1:1 instruction:
• “[REDACTED] struggles to follow directions with unfamiliar adults and requires significant prompting to engage in social skills with her peers. [REDACTED] requires systematic programming for generalization and maintenance, and systematically faded reinforcement during 1:1 instruction. Stimulus prompts have proven to be an effective teaching strategy for [REDACTED]. [REDACTED] engages in high rates of vocal stereotypy in unstructured environments. When [REDACTED] is provided with 1:1 instruction, and her environment is highly structured and predictable, she engages in lower rates of stereotypy…[REDACTED] also receives speech and language therapy, occupational therapy, and physical therapy at [REDACTED]. Transdisciplinary collaboration is necessary for [REDACTED] to make progress. The behavior analyst collaborates with related service providers and [REDACTED]’s family, and conducts informal assessments as needed. While goals are developed for the school year, progress towards each goal is measured daily, and modifications to the goals may be made following further evaluation from the team. [REDACTED] requires an ongoing assessment process that is unique to her needs and reflects the level of oversight required to monitor her skill development and behavioral progress. [REDACTED] requires a full-day comprehensive ABA program presented in a 1:1 format with supervision from a behavior analyst.” (Ex K 1)
• Goals are detailed which address: Communication, Academics, and Social Skills. (Ex K 1-4)
• Speech and Language Goals 2021-2022 June 2021 4 pages Details areas of Student need, and goals to address those needs.
• Occupational Therapy Goals 2021-2022 June 2021 3 pages Details areas of Student need, and goals to address those needs.
• Physical Therapy Goals 2021-2022 June 2021 2 pages Details areas of Student need, and goals to address those needs.
• Financial Agreement June 25, 2021 1 page
• Parent obligates herself to be financially responsible for the costs associated with the
• Student’s, 21-22, UP placement and program.
• ABA Therapy Goals & Report January 31, 2022 6 pages Present areas of Student progress, while at the UP, via ABA services, in areas of:
• Verbal Behavior
• Social Skills (Ex P 2)
• Leisure Skills (Ex P 3)
• Self-Management
• Daily Living Skills (Ex P 4)
• Community Skills (Ex P 5-6)

Report summarizes Student progress, and continued needs: “[REDACTED] 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 P 6)

• Neuropsychological Evaluation April 5, 2017 18 pages
• Confirms Student need for special education services, and diagnosis of: Autism Spectrum Disorder with accompanying intellectual impairment and language impairment (Ex Q 11)

Recommendations include: 12 month program, ABA, related services, and parent training. (Ex Q 12-18)

• Neuropsychological Evaluation March 24, 2021 34 pages Details Student areas of delay, and need. This includes academics, communication, and social skills. (Ex R 25-27)

Recommendations include:. full time 1:1 ABA program provided at home and in school, with related services, addressing academics, social skills and behavior. (Ex R 24-29)

• Affidavit of [REDACTED] July 28. 2022 5 pages
• Student’s mother provides Testimony that includes:
• - Student diagnosed with Autism;
• - Student requires 1:1 instruction;
• - Student requires ABA as recommended by evaluations (Ex S-1);
• - Since 2017, an IEP mandated 1:1 ABA services for the Student, with related services (Ex S-1-2);
• - Student has received those services, since 2017;
• - Participation in the 03/22/2021 IEP meeting, where she shared her concerns;
• - There was no discussion of ABA, 1:1 instruction, goals, and FBA or BIP, at the meeting (Ex S 2-3);
• - Goals include in the IEP cannot be provided in the recommended 6:1:1 setting, since they require 1:1 Instruction;
• - Parent received a school placement, contacted the placement, and has not received a response;
• - Student has attended the UP since 2017 (Ex S 3);
• - Total cost of the UP services, for the 21-22 school year, is $275,223.75, for which Parent is obligated to pay (Ex S 3);
• - The DOE has not offered any provider for Student services (Ex S 3);
• - The UP placement is appropriate to address Student needs and provide appropriate special education instruction and to provide meaningful educational benefit;
• - Student has gained meaningful educational benefit over prior years (Ex S 4); and
• - Progress reports are received and progress has been seen (Ex S 4).
• Affidavit of [REDACTED] July 28, 2022 9 pages Testimony includes:

- A review of Witness qualifications;

- The DOE has not offered any provider for Student services (Ex T 1);

- General characteristics of the UP include:

• a scientifically based education center for children 3 to 18 that offers individualized and structured services based on each student’s needs;
• comprehensive educational and behavioral services are provided year-round through one-to-one programming and include Applied Behavior Analysis (ABA), Speech/Language Therapy (SLT), Occupational Therapy (OT) and Physical Therapy (PT) services;
• assessments of a student’s repertories guide the development of our individualized programming;
• supplemental program provides 1:1 ABA, SLT, OT and PT services in addition to student’s full-time educational placement;
• services are provided in center-based, home-based, and community-based settings depending on the student’s needs and programming;
• case management from a behavior analyst, who is responsible for overseeing the implementation of the ABA and educational components, as well as collaborating with the student’s family, related service providers and any additional non-UP team members to promote consistency, mastery of skills and generalization;
• UP model is transdisciplinary in nature, with collaboration between ABA, SLT, OT and PT occurring through co-treatment sessions and team meetings;
• case managers are masters’ level BCBAs. In addition, they are also LBA-NYs;
• ABA therapists are masters’ and bachelor’ level providers with experience; and
• related service providers are all certified and registered in their related disciplines.

(Ex T 2)

- familiarity with the Student;

- For the 21-22 school year, the Student received weekly services that included:

a. 24 hours of 1:1 ABA therapy provided by a Special Education Itinerant Teacher (“SEIT”) b. 3x45 1:1 Occupational Therapy c. 3x45 1:1 Physical Therapy d. 4x45 1:1 Speech and Language Therapy (Ex T 2)

- Student’s ABA goals consisted the following domains: verbal behavior, learning readiness, academics, group and social skills, leisure skills, and self-help skills;

- Student made progress with her ABA goals, at the UP, during the 21-22 school year;

- Witness detailed progress in areas of: verbal behavior; learning readiness; academic skills; group and social skills; leisure skills; and self-help skills (Ex T 3-4);

- Progress is noted in OT, in areas such are sensory processing (Ex T 5-6);

- Progress in noted in PT, in areas such as improved strength (Ex T 6-7);

- Progress was noted in Speech Language Therapy, in areas such as comprehension (Ex T 7-8);

- Witness provides professional opinion: “[REDACTED] required the program she received in the 2021-2022 school year in order to make meaningful progress towards age-appropriate goals, and we were encouraged to see that she did in fact make progress as a result of these services…” (Ex T 9);

- Witness concludes: “[REDACTED] required a 1:1 program with the above mandates because of the deficits she faces and her need for a highly structured predicable environment with individualized programming and reinforcement as well as effective supports such as stimulus prompts and written schedules to make progress towards age-appropriate skills. Additionally, she required consistency and collaboration across providers to manage her interfering behaviors and ensure meaningful progress.” (Ex T 9)

• Affidavit of [REDACTED] August 2, 2022 2 pages
• Parent provides Testimony relative to sought after direct DOE funding of Student 21-22
• Tuition. Specifically, financial capability of the Parent, offering Testimony that includes:
• Single Parent, and Student’s sole guardian;
• Journalist who has been unable to work due to Student’s needs;
• Resides in a one bedroom rental apartment, within walking distance to the UP;
• Receives child support that covers rent and Student needs;
• No other sources of income;
• No assets sufficient to cover the costs of the UP;
• No cash, savings, or investment accounts sufficient to cover the cost of the UP;
• Inability to pay the UP for the costs incurred for the Student, and await reimbursement; and
• Seeks funding of open balance of UP Tuition related to Student program for the 21-22 school year (Ex U 2)

Parent notes that some UP Tuition has been paid, as a result of a prior Hearing, which was withdrawn. This leaves a period of Tuition unpaid for the period from September 24, 2021, through the end of the 2021-2022 school year, which is June 30, 2022. (Ex U 2)

• Signed and Notarized Affidavit of Services July 25, 2022 1 page UP Finance Manager provides Affidavit reflecting costs related to Student Program, at the UP:

Between 7/6/2021 through 6/30/2022 services provided are as follows:

• 24 x 60 minutes per week of SEIT Therapy at $195 per session

• 1 x 60 minutes per week of SEIT Supervision at $200 per session

• 5 x 45 minutes per week of Speech Therapy at $175 per session

• 3 x 45 minutes per week of Occupational Therapy at $ I 7 5 per session

• 3 x 45 minutes per week of Physical Therapy at $185 per session

The total cost of services provided between 7/6/2021 and 6/30/2022 is $275,223.75.

A total of: - 994.25 SEIT Therapy sessions for a cost of $193,878.75;

• 45 SEIT Supervision sessions for a cost of $9,000;
• 188 Speech Therapy sessions for a cost of $32,900;
• 107 Occupational Therapy sessions for cost of $18,725; and
• 112 Physical Therapy sessions for a cost of $20,720.

2 IEP 3/22/21 32

IEP classifies Student as one with Autism. (Ex 2-1)

IEP includes a variety of Management Needs, including:

* Multi-sensory teaching

* ABA instruction

* Repeated Instruction

*Behavior plan incorporating positive reinforcement (Ex 2-7)

Recommendations include a Special Class 6:1+1, with various related services. (Ex 2-23 & 2-24)

The DOE provides several documents relating to prior school years, each reflecting a Student educational program reliant upon ABA, 1:1 instruction. (Ex 6, 7, 8, 9 & 1)

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 2021-2022 School Year

The DOE opted not to present a defense to the Parent’s allegations, instead it rested upon the submitted evidence.

The DOE IEP reflects, as the Parent contends, reliance upon ABA instruction. (Ex 2-7)

The IEP also calls for a Behavior plan incorporating positive reinforcement. (Ex 2-7)

The DOE evidences neither how the IEP is appropriate to offer the Student a FAPE, nor a BIP to address Student behavior needs.

The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 21-22 school year.

I find the DOE failed to offer the Student a FAPE for the 2021-2022 school year.

UP Placement for the 2021-2022 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 2021-2022 school year.

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.

As considered above, Evidence detailing the Student’s special education needs, and UP program, sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex E, F, G, H, K, l, M, N, P, Q, R, S & T)

I find UP provides an appropriate education and program for the Student for the 2021-2022 school year.

The UP provides special education services specifically tailored to meet the needs of the Student.

TUITION FUNDING 2021-2022 School Year

Parent is entitled to funding for the UP, 2021-2022, Tuition.

The DOE has denied a FAPE to the Student for the 20-21 school year.

The Parent properly notified the DOE via TDN. (Ex B)

Student attended the UP, for the 21-22 school yar. (Ex I)

Parent obligates herself to be financially responsible for the costs associated with the Student’s, 21-22, UP placement and program. (Ex O & U)

Tuition for the 21-22, 12 month, UP placement set forth on Affidavit of Services. (Ex V)