New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 227147

Student's Name: REDACTED

District: REDACTED

Scho Hearing Requested By: Parent

Record Closed Date: 1-30-23

Hearing Officer: Dora M. Lassinger The student’s parent requested an impartial hearing on June 28, 2022, alleging a denial of FAPE for the 2022/2023 school year, and seeking various forms of relief, including funding for the student’s tuition at the REDACTED (hereinafter “the private school’), transportation, after school ABA services and payment for meal expenses. (Par. Ex. B). ^[1] I was designated to hear this matter on June 29, 2022. A pendency hearing was held before me on October 20, 2022.

Both parties agreed that effective June 28, 2022 and during the pendency of all due process proceedings the Department of Education (“DOE”) shall continue to provide the student with the following:

1. Tuition funding at the private school;

2. Literal door-to-door services for the student to attend the private school, including a travel paraprofessional to accompany the child on the bus to and from the private school, and to deliver the child and pick the child up from the facility’s front door;

3. Five hours per week of ABA services at home, after school. (IHO Ex. III).

A hearing on the merits was held on November 22, 2022 and January 3, 2023.

DOE Position The DOE did not present any evidence at the hearing. (Tr. pp. 22, 32). It argued, in its closing brief, that the parental placement was not appropriate, and that the DOE is not required to provide at home services in order for the student to generalize skills across settings. (IHO Ex. I).

Parent’s Position The parent’s position is that the DOE failed to offer the student a program for the 2022/2023 school year, that the parental placement (including 5 hours per week of at home ABA therapy) is appropriate, that equitable considerations support an award of tuition; and that the student is entitled to an award of compensatory ABA services. (Tr. pp. 35-36; IHO Ex. II).

Evidence at Hearing The student’s mother testified that the student has Down Syndrome, autism and leukemia. (Tr. p. 78). He receives ongoing therapy for leukemia. (Tr. p. 80). She testified that he was unable to attend school during the 2020/2021 and 2021/2022 school years, during the pandemic; and due to his disability, he was unable to participate in remote instruction. (Tr. p. 81). He regressed in his skills, including his communication and toileting skills, due to his lack of attendance; but is being retaught how to point, to indicate his needs, including his need for the bathroom. (Tr. pp. 82-83, 85).

On June 17, 2022, the parent (by her attorney) provided 10-day notice that she intended to unilaterally place the student at the private school and secure home-based ABA therapy, and would seek public funding for the placement. (Par. Ex. P).

On July 14, 2022, the parent entered into an enrollment agreement with the private school, agreeing to pay the private school $158,250.00 on account of the student’s tuition for the 2022/2023 school year (the period from July 6, 2022 to June 30, 2022). (Par. Ex. Q). The parent did not make any payment toward the tuition. (Par. Ex. E). The enrollment agreement was supplemented by a separate agreement, dated November 22, 2022, providing for a one-to-one health and toileting paraprofessional, at a pro-rated cost of $35,000 for the remainder of the school year. (Par. Ex. O).

The student is attending the private school during the current school year. He suffers with diarrhea; however, the school has been able to manage the situation, keeping him clean and avoiding skin irritation. (Tr. p. 84).

The parent receives various forms of public assistance, totaling $1,779 per month, and is unable to pay the private school tuition up front. (Tr. pp. 87-88). The student is supposed to receive 5 hours per week of home ABA services, pursuant to the pendency order; but has not yet received those services this year. The parent testified that he requires the at home ABA services, due to his regression and loss of instruction time during the pandemic. (Tr. pp. 88-89, 91-92).

The program director of the private school has a doctorate in psychology, and is certified as a Licensed Behavior Analyst (“LBA”) and a Board Certified Behavior Analyst (“BCBA”). She is also New York State Certified a Special Education Teacher. The private school provides a 1:1 Applied Behavior Analysis (“ABA”) program, serving 30 students aged 5 to 13. The program provides a multidisciplinary approach and provides Speech Language Therapy (“SLT”), Occupational Therapy (“OT”) and Physical Therapy (“PT”). (Tr. pp. 38-39, 54).

Each student has a one-to-one instructor for the duration of the school day. Data is collected on skill acquisition and behaviors; in order to develop interventions to increase skills and decrease challenging behaviors. All one-to-one staff are either Registered Behavior Technicians (“RBT”s) or working toward that certification. All related services providers are licensed. (Tr. p. 40).

The student began attending the private school in November 2021. The student has diagnoses of autism and down syndrome. He is non-verbal and has difficulty sitting for long periods and attending. (Tr. p. 44). During the 2021-2022 school year, he progressed in his goals, including sorting, completing puzzles, imitating fine and gross motor movements, identifying his body parts, pointing and gesturing and remaining seated. It was recommended, that due to his need of high-level support for skills acquisition and behavior management; that he continue in a restrictive classroom with a 1:1 RBT/student ratio, supervised by a BCBA, so that he can continue to make progress and avoid regression. (Par. Ex. J).

A neuropsychological evaluation was performed in March and April 2022. The student presented with a profound delay or impairment in his overall cognitive and intellectual functioning; with skills estimated to be equivalent to an average 18-month-old. It was observed that he has significant challenges with attention, learning and memory and acquisition of early academic skills, much of which was interrupted due to medical interventions. He was diagnosed with a Profound Intellectual Disability, and Autism Spectrum Disorder, Level 3, (requiring very substantial support). It was recommended that he continue to attend a 12 month, 1:1 educational environment, as part of a specialized ABA school with counseling and related services and family training. It was reported that his current placement had been effective in increasing his capacity to engage educationally. It was further recommended that he receive ABA support outside of school, so that he can generalize gains made at school; as well as maintain the intensity of intervention he requires due to the severity of his disability. In addition, it was recommended that he receive SLT, 1:1; OT and assistive technology. (Par. Ex. N).

During the current school year, he receives one-to-one support within a class of five students. The class has a lead teacher who is a BCBA, and provides ongoing training and supervision. (Tr. pp. 45, 50-51). The student’s program includes SLT (3 x 45); OT (2 x 45), and PT (2 x 45). (Par. Ex. H). Parent training is provided, as needed. (Tr. p. 52).

Following the Summer break in mid-August, there was a gap in the student’s attendance until November, due to the fact that he did not have a bus paraprofessional, and could therefore not attend. (Tr. p. 47). The student has acclimated well to the school, except that he has a lot of REDACTED and he is not toilet trained, which is challenging for staff. The school determined that he needs a health paraprofessional to monitor his medical needs. (Tr. pp. 48-49) The student continues to require home-based ABA therapy, to reinforce his learning and prevent regression. (Tr. p. 49). The program director testified that the student needs a lot of help with daily living skills in the home, including dressing and handwashing. (Tr. p. 54).

The student has a token board, and earns tokens for sitting for group and individual learning. He is progressing in his ability to attend and sit for long periods of time. He has accomplished puzzles and gross motor imitations. (Tr. p. 53). He works on pre-academic skills including matching and communication. (Tr. p. 55). He would benefit from an assistive technology device, which is first typically requested from the DOE. (Tr. p. 56).

A social worker who sees the student at least twice per month, testified that she is a licensed social worker who works with children, and the families of children with a diagnosis of cancer. The student was first diagnosed with cancer in 2015, has had various treatments, and is currently in remission. Due to his global delays and suppressed immune system, his educational needs are not easily met. (Tr. pp. 60-61). His multidisciplinary treatment team (including doctors and social workers) determined that he required a small school placement, a one-to-one travel paraprofessional and limited time travel. In addition, his condition results in significant gastrointestinal issues including REDACTED multiple times each day; and an individual paraprofessional is needed to manage the situation. (Tr. pp. 62-66).

Findings of Fact, Conclusions of Law and Order The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The IEP must be reasonably calculated to enable the child to make progress appropriate in light of the student’s circumstances. Id. at 1002.

A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Forest Grove School District v. T.A., 557 U.S. 230 (2009); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities does not preclude an award of reimbursement. Florence School District Four et al. v. Carter, 510 U.S. 7(1993).

The DOE failed to present any evidence that it offered the student any program at all during the 2022-2023 school year. Therefore, the DOE failed to meet its burden of proving that it provided the student a FAPE for the 2022-2023 school year.

Appropriateness of Parental Placement To qualify for funding under the IDEA, the parents must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

I find that the parent demonstrated that the program provided for the student at the private school, was specially designed to meet his unique needs. The school provided the student with a small class, with one-to-one ABA instruction and supervision, and related services of OT, PT and SLT, as recommended by the neuropsychologist. I also find that the addition of a one-to-one toileting/health paraprofessional to the student’s program was necessary, due to his unique medical needs. The student also continues to require a one-to-one travel paraprofessional.

The student progressed in his pre-academic skills and in his ability to attend.

Equitable Considerations In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 49 IDELR 39 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including whether the parent participated in the IEP meeting, visited the proposed placement and provided timely notice of her intent to place the student in a private school. See M.H. and E.K. v. New York City Dept of Education, 685 F 3d 217 (2d Cir. 2012).

Direct funding of tuition is an available remedy where equitable considerations favor an award of the costs of private school tuition; but the parents, though legally obligated to make tuition payments, have not done so due to a lack of financial resources. Application of a Student Suspected of Having a Disability, Appeal No. 15-038 (citing Mr. and Mrs. A. v. New York City Dep’t of Educ. 769 F. Supp. 2d 403 (S.D.N.Y. 2011); See Connors v. Mills, 34 F. Supp. 2d 794 (N.D.N.Y. 1998). In these proceedings, the parent presented evidence that she was unable to pay the tuition and seek reimbursement.

• • The record indicates that the parent cooperated with the DOE by providing notice of her intention to unilaterally place the student at the private school (and secure at home ABA therapy) and seek funding.

For the reasons set forth above, I find that the parent is entitled to direct funding for the student’s tuition at the private school for the 2022/2023 school year, in the amount of $193,250.00 ($158,250.00 plus $35,000 for the health paraprofessional).

ORDER

For all of the foregoing reasons, it is hereby ordered that:

• • The DOE shall directly fund the student’s tuition at the private school in the amount of $193,250.00 ($158,250.00 plus $35,000 for the cost of the health paraprofessional) for the 2022/2023 school year within, 30 days of this decision (to the extent tuition has not already been paid pursuant to the Order of Pendency herein);
• • The DOE shall continue to provide the student with 5 hours per week of at home ABA therapy;
• • The DOE shall provide the student with compensatory services consisting of 5 hours per week of at home ABA therapy for the period from June 28, 2022 until the date when the order for at home ABA therapy (5 hours per week) is implemented;
• • The DOE shall continue to provide the student with transportation to and from the private school, with a one-to-one transportation paraprofessional;
• • The DOE shall perform an Assistive Technology evaluation for the student, within 60 days of this order.
• • Dated: February 1, 2023 Dora M. Lassinger

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer

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 Office (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.

DOCUMENTATION ENTERED INTO THE RECORD

Impartial Hearing Officer

• • DOE Closing Brief, 1-23-23, 8 pp.
• • Parent’s Closing Brief, Undated, 11 pp.
• • Interim Order on Pendency, 10-20-22, 3 pp.
• • Extensions, various dates, 5 pp.

Parents

REDACTED

Footnotes

[1] The request for meal expenses is deemed withdrawn, as no evidence was presented regarding the student’s meal expenses; and no claim for such relief was made in the course of the hearing or in the parent’s closing brief. (IHO Ex. II).