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Special Education Law
DECISIONParent PrevailedIHO Case No. 226760

Impartial Hearing Decision

October 15, 2022·Jean Marie Brescia·75 6:1:1 program with a paraprofessional and related services and have the use of a dynamic display speech generating device. Ex. 1.

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

FINDINGS OF FACT AND DECISION

Case Number: 226760

Student’s Name: REDACTED

Hearing Requested By: Parent

Dates of Hearing: July 8, 2022

August 15, 2022

September 8, 2022

Actual Record Close Date: October 2, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

July 8, 2022 For the Parent:

REDACTED REDACTED, Advocate For the Department:

None

August 15, 2022 For the Parent:

REDACTED REDACTED, Advocate For the Department:

REDACTED REDACTED, Esq.

September 8, 2022 For the Parent:

REDACTED REDACTED, Advocate

REDACTED REDACTED REDACTED, Parent

REDACTED REDACTED, Chief Financial Officer, REDACTED REDACTED

REDACTED REDACTED, Director, REDACTED REDACTED For the Department:

REDACTED REDACTED, Esq.

On June 30, 2022, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(j), in the matter of REDACTED REDACTED, after the appointment of another hearing officer was rescinded. REDACTED’s parent requested the hearing on June 2, 2022 in order to challenge the Department of Education’s failure to offer REDACTED a free appropriate public education for the Summer 2021 and to seek funding for tuition and costs at The REDACTED REDACTED (“REDACTED”), a non-public special education school, for summer (July and August) of 2021. Ex. A.

A pre-hearing conference was conducted on July 8, 2022. The hearing on the merits was conducted on August 15 and September 8, 2022. The Department offered documents, which were admitted in evidence, and did not present the testimony of any witnesses. The Department did not offer “any defense” of its offer of FAPE to REDACTED but did challenge, generally, the appropriateness of REDACTED for REDACTED. Tr. 14-15.

The parties made joint applications on the record for extensions of the compliance date. The applications were granted by written Orders of Extension dated July 8 and August 17, 2022.

The record closed on October 2, 2022, upon the hearing officer’s receipt and review of the transcript of the last hearing date, and the Actual Record Close Date is October 2, 2022.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

Findings of Fact

  • • REDACTED is a now REDACTED year old young man whose disability, for the purposes of the IDEA, is classified as autism. Ex.1.
  • • REDACTED experiences difficulties with communication, attention, cognition, sensory integration and regulation, social-emotional skills, fine motor skills, and ADL skills, and manifested severe behavioral needs, including elopement and aggression. Tr. 62; Exs. 1, 5, 6; Ex. J at ⁋ 29.
  • • The Department convened an IEP meeting on February 11, 2020. The CSE recommended that REDACTED’s disability be classified as autism and that REDACTED attend a District 75 6:1:1 program with a paraprofessional and related services and have the use of a dynamic display speech generating device. Ex. 1.
  • • REDACTED was a student recommended for a 12-month program. Ex. 1.
  • • REDACTED was a student eligible to receive a FAPE for the months of July and August 2021. Tr. 22, 38-39; Exs. 5, 6.
  • • REDACTED attended REDACTED from the time he was REDACTED years of age until he “aged out” of IDEA eligibility after he turned twenty-one years of age in August 2021. Tr. 67; Exs. 5, 6.
  • • REDACTED is a special education school for students ages 11 through 21 years. Tr. 58-59. The program includes instruction in academics (functional English language arts and mathematics), communication skills, ADL skills, travel skills and vocational skills and provides ABA therapy, speech therapy, occupational therapy, physical therapy and counseling. Tr. 58-59; Ex. B.
  • • During summer 2021, REDACTED’s class included five students, each of whom had disability classifications of autism. The students had similar academic, social and behavioral needs. Each student was mandated a 1:1 paraprofessional. Exs. E, J at ⁋ 25..
  • • REDACTED’s schedule for Summer 2021 included ELA, math, morning meeting, social skills, ADL and life skills, executive functioning skills, community skills, physical education (including swimming), speech therapy, occupational therapy and counseling. Ex. D.
  • • Related services were provided by appropriately licensed therapists. Ex. J at ⁋ 37.
  • • School personnel developed and implemented individualized goals for REDACTED. Tr. 60.
  • • REDACTED’s behavioral needs were addressed by a one-to-one paraprofessional to ensure his safety and a behavior analyst to work with REDACTED and consult with his teacher. Tr. 63; Ex. J at ⁋ 30.
  • • In addition, school personnel worked on improving REDACTED’s communication skills by utilizing his communication device; when REDACTED was able to communicate his wants and needs, he did not act out behaviorally to get what he wanted. Tr. 63; Ex. J at ⁋ 30.
  • • REDACTED’s program included community integration activities to promote safety skills and appropriate behaviors in the community. Tr. 60. These activities included class visits to a community swimming pool, parks, and restaurants. Tr. 64-65.
  • • REDACTED’s summer program included ABA discrete trial teaching, small group instruction, community integration, adaptive physical education, life skills training, and social and recreational activities. Ex. J at ⁋⁋ 26-27.
  • • REDACTED’s parents entered into an enrollment contract with REDACTED for REDACTED to attend REDACTED for summer 2021. The contract obligates them to pay $6,000.00 in tuition and the costs of related services. Ex. G.
  • • The costs of the REDACTED summer 2021 program for REDACTED were tuition of $6,000.00 and costs of related services of $9,090.00, for a total of $15,090.00. Tr. 50, 52; Ex. F.
  • • REDACTED’s parents have not paid the tuition or related services costs. However, they continue to owe, and are obligated to pay, these amounts. Tr. 50, 52; Ex. F at 2.
  • • REDACTED’s parents provided information about the family’s income. Ex. I.
  • • REDACTED’s mother submitted a ten-day notice letter to the DOE on June 30, 2021. Ex. C.

Decision

A board of education may be required to pay for education services obtained for a child by the child's 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. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).

A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). 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. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).

In New York, the school district bears the burden of proof in 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. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

Did the Department Offer REDACTED a FAPE?

The Department did not avail itself of its opportunity to offer testimony to explain how its IEP for REDACTED was “reasonably calculated” to permit him to make progress given his unique circumstances or to otherwise defend its offer of FAPE to REDACTED. As a result, the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test.

Is REDACTED’s Program Appropriate for REDACTED?

The parent bears the burden of proof concerning the appropriateness of REDACTED for REDACTED. See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided at REDACTED addressed REDACTED's identified special education needs. See C.F., 74;6 F.3d at 82; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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.”

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order).

The preponderance of the evidence establishes that REDACTED provided REDACTED with an educational environment in which his identified special education needs were addressed through specialized instruction (including ABA) and related services as well as individualized goals and interventions targeted to address his behavioral and communication challenges, safety needs, and ADL and life skills and community integration needs. REDACTED addressed REDACTED’s needs as described in paragraphs 7 through 15 above.

Furthermore, for many years, federal courts have recognized ABA as an appropriate and effective teaching methodology for students with autism. See, e.g., A.M. v. New York City Dep’t of Educ., 845 F.3d 523, 545 (2d Cir. 2017); R.E., 694 F.2d at 194; M.H. v. New York City Dep’t of Educ., 712 F. Supp. 2d 125 (S.D.N.Y. 2010), aff’d 685 F.3d at 252; see also 34 C.F.R. § 300.39(b)(3) (“[s]pecially designed instruction means adapting, as appropriate to the needs of [the child], the content, methodology, or delivery on instruction”) (emphasis added). REDACTED provided REDACTED with ABA-based instruction and behavioral interventions.

The preponderance of the evidence demonstrates that REDACTED was an appropriate special education placement for REDACTED for summer 2021. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs).

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at REDACTED was appropriate for REDACTED for summer 2021. As a result, REDACTED’s parents prevail with respect to the second Burlington/Carter criterion.

The Equities With respect to the third Burlington criterion, whether equitable considerations support the parent’s claims, the evidence establishes that REDACTED’s parent cooperated with the CSE by attending the CSE meeting and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district).

Furthermore, although REDACTED’s parents have not paid the REDACTED tuition and related services charges, the debt for the full amount of the tuition and related services charges is very real. Equitable considerations favor the award of relief to REDACTED’s parents. As a result, REDACTED’s parents prevail with respect to the third Burlington/Carter criterion.

Therefore, for all the above reasons, it is hereby ORDERED that:

The Department of Education shall fund REDACTED’s placement at REDACTED for summer 2021. The amount of funding shall not exceed $ 15,090.00. The funding shall be reimbursement to REDACTED’s parents for any amounts they have paid to REDACTED and direct payment to REDACTED for any remaining balance.

Dated: October 15, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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.

DOCUMENTATION ENTERED INTO THE RECORD

Department of Education Evidence

#

Document Description

Date

Page Count

1

IEP

2/11/20

25

2

Prior Written Notice

10/26/20

5

3

Student Invite

12/8/20

1

4

Discharge

9/13/21

2

5

Student Exit Summary

6/9/21

4

6

Exit Summary Notes

6/9/21

3

7

Request for Reevaluation

10/26/20

1

Parent Evidence List

ITEM

NUMBER

DATE

DESCRIPTION

Number of pages

A 06/02/22 Impartial Hearing Request 7

B Program Description 1

C 06/30/21 Ten Day Notice 2

D 21/22 Class Schedule 1

E 21/22 Class Profile 1

F 07/14/22 School Affidavit 2

G 06/22/21 Enrollment Contract 6

H 21/22 Attendance Record 1

I

2020

Parent 1040 U.S. Individual Income Tax Return

2

J 09/06/22 Affidavit of Testimony 5