NY IHO #227237: Impartial Hearing...

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

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 227237

NYS Identifier Number N/A

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Dates(s) of Hearing: 10/19/22

Actual Record Close Date: 11/04/22

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Attorney DOE 10/19/22 (V)

[REDACTED] Attorney PARENT 10/19/22 (V)

[REDACTED] Mother PARENT 10/19/22 (V)

[REDACTED] BCBA PARENT 10/19/22 (V)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Dated Title # of Pages

DOE EXHIBIT

08/02/2022

Individualized Education Program (IEP)

08/29/2022

Prior Written Notice (PWN)

08/29/2022

School Location Letter

02/2022 –06/2022

[REDACTED] Academy - Quarterly Report of Progress

07/23/2021

Individualized Education Program (IEP)

07/23/2021

Attendance Page

06/13/2022

Prior Written Notice (PWN)

06/13/2022

School Location Letter

03/2021-06/2021

[REDACTED] Academy - Quarterly Report of Progress

02/15/2019

DOE Classroom Observation

03/10/2022

DOE Social History

02/04/2019

NYC DOE Pre-School Evaluation Scale Results

11/02/22

DOE Closing Statement

PARENT EXHIBIT

Number/Letter Title Date # of Pages

FOFD in case# 209322

1/13/2022

Impartial Hearing Request

6/29/2022

Ten Day Notice

6/16/2022

Order on Pendency Agreement

7/13/2022

Project [REDACTED] Evaluation

12/2/2019

1/30/2022

[REDACTED] Academy Contract 2022-2023

4/14/2022

[REDACTED] Academy Credit Card Deposit

4/14/2022

6/29/2022

10/7/2022

[REDACTED] Academy Quarterly Report of

Progress

Feb - June 2022

[REDACTED] Academy Quarterly Report of

Progress

8/4/2022

Affidavit of [REDACTED]

10/19/2022

PARENT Closing Statement

11/02/22

N/A N/A N/A IHO N/A

On July 7, 2022 I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 and of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parents of a REDACTED year old student attending a private school and the New York City - Department of Education (“DOE”) - District: REDACTED, regarding the student’s special education program. After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on October 19, 2022. The Parent submitted a written closing statement that was received on October 22, 2020. (P-JJ) A list of the persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) filed by the student’s Parent through her attorney(s), REDACTED] and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) at an unspecified date but believed to be on or about July 7, 2022. An amended DPC was filed by the Parent on or about August 18, 2022. The DPC is carried under New York City (“NYC”) Case No. 227237. Therein, the Parent alleges that the DOE has failed to provide the student with a “free and appropriate public education” (“FAPE”) for the 2022-2023 school year. At the impartial hearing, the Parent seeks the following relief:

(a) A pendency order finding the student’s pendency to consist of the following: (i) placement at the private school inclusive of related services; (ii) twelve-month extended school year services; (iii) special transportation with limited travel time under 60 minutes; (iv) 10 hours per week of home-based 1:1 ABA; (v) 2 hours per week of home-based parent training; and

(b) A final order to consist of the following: (i) placement at the private school with related services; (ii) twelve-month extended school year services; (iii) special transportation (curb-to-curb) with limited time travel; (iv) Assistive Technology; (v); at minimum 10 hours of home-based ABA per week; (vi) 2 hours per week of home-based ABA parent training; (vii) Assistive Technology; and

(c) The IHO should order the DOE to prospectively pay, satisfy the Parent’s debt by direct payment to the vendor of such services and/or reimburse the Parent for any transportation expenses that the Parent incurs (including but not limited to public transportation, rideshare voucher funding, rideshare/taxi and/or car service or mileage funding for Student and a travel companion and return rides for any travel companion) until such time as the DOE has adequately implemented the Student’s transportation; and

(d) The Parent also requests that the DOE conduct an AT evaluation on an interim basis to assess Langston’s AT needs; and

(e) A declaration of rights in favor of the Parent, declaring the DOE’s conduct to be illegal as alleged herein; and

(f) A finding that the DOE has failed to provide the student with a FAPE; and

(g) A finding that the DOE subjected the student to discrimination based upon his disability; and

(h) Compensatory education, additional and/or make-up ABA, and related services based on the DOE’s denial of FAPE for the 2022-2023 school year including any uncontested services and any pendency services; and

(i) Attorneys’ fees; and

(j) Additional relief that is appropriate as of the time that the IHO is ready to issue a final order, but which was not known to the Parent at the time this hearing was filed, including any services or equipment recommended as a result of the independent evaluations.

At the hearing, the Parent rescinded her request under item (h). (T-26-7)

REQUEST FOR AN “ORDER ON PENDENCY” The amended DPC request for an “Order on Pendency.” On July 13, 2022, the parties executed a “Pendency Agreement” that provided for “pendency” to be based upon the unappealed “Findings of Fact & Decision” dated January 13, 2022 in NYC case No. #209322. (P-D) Under “pendency”, the parties agreed that the student would be placed at his current private school on a “12-month” basis, and for the student to receive ABA home-based services, 10 hours/wk on a 12-month basis and Parent training, 2 hours/wk on a 12-month basis.

It is well settled that the enforcement of an IHO's order or the parties’ agreement can properly be sought by filing an administrative complaint with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (VESID) pursuant to applicable federal and state regulations, or in federal court under 42 U.S.C. § 1983. (See 34C.F.R. §§ 300.151-300.153, 8 NYCRR 200.5[l], A.T. v. New York State Educ. Dep't., 1998 WL 765371, at *7(E.D.N.Y. 1998), Blazejewski v. Bd. of Educ., 560 F. Supp. 701 (W.D.N.Y. 1983), SRO Nos.: 06-130, 04-085 & 99-004), see also A.R. v. New York City Dep't of Educ., 407 F.3d 65, 78 n.^[13] (2nd Cir. 2005) (noting that IHOs have no enforcement mechanism of their own), SRO Nos.: 04-100 & 04-007 (recognizing that enforcement of prior orders of an IHO and/or a SRO are not properly determined by a SRO), SRO No.: 03-071 (holding that petitioner's enforcement remedies include judicial enforcement pursuant to CPLR Article 78, an action in federal court, or VESID administrative complaint procedure), SRO No. 01-086 (holding that petitioner's enforcement request was not properly before a SRO; petitioner's remedy was to seek judicial enforcement of the IHO's tuition reimbursement award), SRO No. 99-4, (holding that respondent's remedy was to seek enforcement in state or federal court, citing Blazejewski, 560 F. Supp. 701, A.T., 1998 WL 765371) and SRO Nos.: 06-044, 02-086, 04-006, 02-011 & 97-64)

As the issue of pendency has been agreed to by the parties, the failure of the NYC-DOE to implement “pendency”, if at all, may be addressed by the Parent as indicated above.

THE DOE’S CASE The DOE did not call any witnesses to testify on its behalf but submitted documents in evidence. (T-6-18 & 23) With the consent of the Parent, (13) documents were received in evidence on behalf of the NYC-DOE. (T-25) In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE The Parent identified (1) witness who was to testify on her behalf, on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f], ( P-M) However, the affidavit although identified in the Parent’s Exhibit Index, was not included in the actual exhibits submitted. One witness did testify live on behalf of the Parent. (T-28-50) The DOE did not cross examine the witness. (T-50-1) The Parent also submitted (13) documents in evidence. (T-13) In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - DEFAULT & INQUEST

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2nd Cir. 2005])

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2nd Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; 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"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).

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. (Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “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, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

DOES’ DEFAULT The DOE failed to call any witnesses to testify on its behalf, but did submit documents in evidence, failed to file and serve an answer but did serve a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e) & (T-6-18 & 23) “Prior Written Notice” means written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student.

It is noted that silence in a responsive pleading is an admission, and a counterclaim in federal practice is compulsory in the answer or deemed waived. (See New York Practice, 4th Edition §§ 223 & 224, citing Federal Rules of Civil Procedure, Rule 13(a) & Cummings v. Dresher, 18 N.Y.2d 105, 108, 271 N.Y.S.2d 976, 218 N.E.2d 688, 690 [1966])

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c]) Here, the DOE did not proffer any testamentary evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE. As previously noted, the DOE did not serve and file an answer in the case but did serve the Parent with “Prior Written Notice”, which would provide either a denial of the Parent’s allegation, or some explanation for the agency’s failure to provide a FAPE. (See 20 U.S.C. 1415(f)(3)[e])

It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing, Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative law judge (‘ALJ”) properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179)

However, here the DOE did not present a case-in-chief and did not controvert the documentary evidence submitted by the Parent. (Supra) The credibility of the documentary evidence was not rebutted by either party and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary evidence submitted by both sides and the testamentary evidence submitted by the Parent in this case to be credible and uncontroverted in this case.

As noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE and that if the Parent meets her burden under Schaffer v. Weast, the Parent is entitled to the proven relief she seeks. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033) It is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "'ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'"]) When, as here, the DOE does not present any case at the hearing, the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief.

The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005]. It is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE. The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2022-2023 school year and that the Parent may be entitled to the proven relief he has requested.

APPROPRIATENESS OF THE RELIEF SOUGHT

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

Where sought as relief, a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and 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 and Matrejek, 471 F. Supp. 2d at 419) 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. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"])

There was a request for compensatory educational services in this case that was rescinded by the Parent on the record. (T-26-7) In either case, an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]) Pertinent findings to enable an IHO to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student’s current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]) The Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept. 13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt (“Nesbitt II”), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008])

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5[j][5][v])

Shaffer decision of the Supreme Court of the United States issued on November 14, 2005, held as follows:

“We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, III, ¶2) (See Schaffer v. Weast, 546 U.S. 49, 58-62 [2005] (emphasis added)

The party who defaults in concedes only liability and not the amount of “damages.” (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930) The DOE’s default constitutes an admission of liability, but not of damages, which remains the Parent’s burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011])

In sum, substance and relevant part, the testamentary and documentary evidence in this case indicates the following.

The DOE’s default herein supports a judgment in favor of the Parent and a finding that the student was denied a FAPE for the 2022-2023 school year. (T-6-18 & 23)

The first witness for the Parent is a BCBA and New York State Licensed Behavior Analyst, who holds an initial certificate for teaching from (1st) to grade (2nd) grade for students with disabilities. (T-32) She is the student’s home-based ABA service since October 2021. (T-35) She works with him from seven -- five hours to ten hours a week on the student’s communication skills, social skills, self (indiscernible) skills and self-management skills. (T-35-6) She is also working on safety awareness skills, like crossing the street, looking at traffic lights and a lot of following simple direction skills. (T-38) She uses “DTT”, modeling, a lot of positive reinforcement, differential reinforcement and a token economy, extinction, naturalistic learning and some prompting. (Id.) What she has observed the most is major progress in the student’s communication skills. (T-43) He also made a lot of progress in his receptive language like the following vocal directions. (T-44) She has also observed a decrease in challenging behaviors in the student, although they still come up, but has decreased since she started working with him, and he's doing really well with his self-management skill. (Id.)

The witness testified that she still recommends (10) hours of home-based service continue. (T-46) She is familiar with the student’s private school and knows that it is a school that uses ABA. (T-48) She recommends ABA services at school and home because it is two completely different environments, and his schedule and routine are all different at home. (T-49) The DOE declined to cross examine the witness. (T-50)

The Parent’s second witness was identified in the Parent’s Exhibit Index as testifying on direct examination via affidavit. (P-M) However, the affidavit was not included in the Parent’s exhibit package.

In its closing statement, the NYC-DOE argued the following should restrict the undersigned from finding for the Parent, despite its default and the Parent’s witness’ uncontroverted testimony:

Just very, very briefly give a closing. So this, as we've noted, the student in this matter involves student REDACTED who's presently an REDACTED-year-old student who's unilaterally placed at REDACTED and receiving at-home services for the '22/'23 school year -- 12-month school year.

With regard to -- also as noted, the DOE is conceding Prong I. With regard to Prong II, and the appropriateness of the student's education program, I'm just going to break it out.

With regard to the request for tuition funding for REDACTED the DOE is not conceding or agreeing with the Parent's allegation regarding the appropriateness of the unilateral placement. We just submit that it's the Parent's burden to prove the appropriateness, and the IHO must determine whether or not the Parent has met that burden.

And next, with regard to the ABA at-home services, it's the DOE's position that the Parent is not entitled to the relief sought because the Parent has failed to provide convincing evidence of a contract or legal obligation, binding the Parent to make payment.

While the Parent has presented testimony and submitted evidence in support of the appropriateness of these services and whether the student's made progress during these services, it's the DOE's position that the record doesn't establish standing to make the request for funding.

Case law has held to show injury, a required element is that the plaintiff must have suffered concrete and particularized invasion of a protected interest as actual or imminent injury, can be conjectural or hypothetical, and to have standing, the party seeking relief must show a contract -- excuse me -- contractual obligation for payment, which has not been established.

And that is the basis for our objection with regard to funding for ABA at-home services. And with regard -- sorry -- withdrawn.

And that's the end of the DOE's closing statement. Thank you. (T-52-4)

The DOE also submitted a written closing statement. (D-13) Therein, in sum, substance and relevant part, the DOE extends its arguments as follows:

While the parent submitted evidence regarding the appropriateness of the program, they did not demonstrate a contractual obligation to pay for those services. A party seeking relief must show that they have a contractual obligation to pay for the services. See E.M. v. New York City Dept. of Educ., 758 F.3d 442, 449-62 (2d Cir. 2014); Cruz v. New York City Dept. of Educ., 2019WL147500 4-7 (S.D.N.Y. 2019); Application of a Student with a Disability, SRO No. 20-042; Application of a Student with a Disability, SRO No. 16-044; Application of a Student with a Disability, SRO No. 21-145. Parents cannot assert a claim for funding of services on behalf of another party where the parents themselves have incurred no obligation to pay the tuition and, thus, have no claim in their own right. See Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007); Emery v. Roanoke City School Bd., 423 F.3d 294, 299 (4th Cir. 2005); Piedmont Behavioral Health Center LLC v. Stewart, 413 F. Supp. 2d 746, 755-56 (S.D. W. Va. 2006). (Id.)

The DOE further cites “State Review Officer” (“SRO”) cases for the proposition that a provider where the records is “devoid of evidence regarding any contract between the SETSS provider and the parent that financially obligates her to pay.” (SROs 20-042, 16-044 & 21-145, specifically citing SRO 16-044) The DOE concludes its closing arguments as follows:

Here, no contract or invoices for ABA services was submitted by the parent as part of their documentary evidence, nor was there any testimony about a contract or agreement for payment of services. No agreement for services exists in the record for the ABA provider. As such, there is no reliable evidence that the parent is liable to the service providers for services provided to the student, and in the absence of such evidence, the DOE respectfully requests that Parent’s relief for payment for ABA services be denied.

The third prong of the Burlington test requires the parent to demonstrate that the equities favor their claim for reimbursement or prospective payment. The parent is seeking an order directing the DOE to make prospective payments for tuition and ABA in-home services for the 2022-2023 school year. The DOE submits that case law is clear that a parent must demonstrate a lack of financial resources to be awarded direct payment to the unilateral placement. See Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998). The parent has failed to establish an inability to pay the cost of tuition. Therefore, the parent is not entitled to an order directing the DOE to make direct payment. (Id.)

The Parent also submitted a written closing statement. In sum, substance and relevant part, the Parent’s counters the DOE’s closing argument as follows:

When, in the absence of a FAPE, a parent continues her child’s last agreed-upon placement, it is not a “unilateral placement” that shifts the burden of proof. M.N. v. The New York City Dep’t of Educ, 700 F.Supp.2d 356 (2010); Application of a Student with a Disability, Appeal No. 11-053. That is, once it was established that the DOE failed to provide a FAPE to [REDACTED], the Parent did not need to establish the appropriateness of [REDACTED]’s last agreed-upon program. Application of a Student with a Disability, Appeal No. 11-053.

Here, the DOE did not present any witnesses or exhibits or present any case whatsoever in defense of the provision of a FAPE for the 2022-2023 SY. The DOE agreed that [REDACTED] was a part of [REDACTED]’s pendency program. See Ex. D. Accordingly, the parent did not unilaterally place [REDACTED] at [REDACTED] - it was his pendency placement. Therefore, if the IHO finds that (a) [REDACTED] was denied a FAPE and that (b) [REDACTED] is [REDACTED]’s pendency placement (which the DOE has already conceded/agreed to) then the DOE is obligated to fund the tuition at [REDACTED] without a further showing from the parent.

To the extent that the IHO may weigh equitable considerations in determining whether it is appropriate to award the requested relief, it must be found that they favor the parent. Notably, there are no equitable considerations with respect to whether [REDACTED] should be funded as [REDACTED]’s pendency. The DOE has not put forth any argument or evidence that would substantiate a claim that the requested relief should be reduced or denied on equitable grounds.

Considering the foregoing, to the extent that the IHO finds equitable considerations relevant to the instant case, they must be found to favor the parent. Thus, under Burlington/Carter, the third “prong” is satisfied.

Under the circumstances, the parent was not required to prove the “appropriateness” of the last agreed upon program and placement, because the parent did not engage in a unilateral private placement. Rather, the services are part of stay put arising out of the ordered services in Exhibit B and, as such, the Burlington/Carter test does not apply. See M.N. v. N.Y.C. Dep’t of Educ., 700 F. Supp. 2d 356, 368-69 (S.D.N.Y. 2010) (“Because Plaintiffs are merely seeking to maintain the related services, they are currently receiving at DOE's expense pursuant to the IDEIA's pendency provisions, the Burlington–Carter test does not apply.”), rev’d on other grounds sub. nom., R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167 (2d Cir. 2012).

Relatedly, the DOE’s argument that the Parent does not have standing to seek continuation of the home-based ABA services is without merit. The Parent is not seeking “unilateral funding” for a specific program or agency to provide the afterschool 1:1 ABA services. She is seeking a finding that [REDACTED] requires 1:1 ABA and home-based parent training (as previously found by other IHOs and as currently mandated under pendency) as a part of his educational programming. Exs. A, B-9, D.

Moreover, the DOE has funded [REDACTED]’s 1:1 ABA services pursuant to the pendency order and prior orders without the need for a contract, as these services were implemented pursuant to pendency. See Ex A.

In sum, the Parent does not seek a specific provider to provide the services. The Parent seeks a finding that 10 hours of after-school 1:1 ABA services as well as 2 hours per week of parent training are a necessary part of a FAPE for [REDACTED] If the DOE is able to find a qualified provider to and is able to implement these services in a timely manner, the Parent would not object. (P-N)

The undersigned need only determine if the relief sought is appropriate. Here, the Parents needed only to demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65) The record as cited above, clearly supports a finding that the private school and private services were an appropriate placement for the student.

The documentary and testamentary evidence submitted by the Parent and cited above is completely uncontroverted and supports a finding that the relief sought meets the standard of “appropriateness” under the law. The Parent has accurately summarized the relevant law and affirms that she does not seek a specific provider to provide the services required. In fact, the Parent affirms that “If the DOE is able to find a qualified provider to and is able to implement these services in a timely manner, the Parent would not object.” This nullifies the DOE’s argument regarding the absence of a contract, and/or financial obligation on the part of the Parent.

As noted above, there is nothing in the record that support a finding that the Parent has not cooperated with the DOE.

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE denied the student a FAPE for the 2022-2023 school year and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent, and/or directly pay for the cost of implementing the “Order on Pendency” dated July 13, 2022 and payment of the private school tuition and related services and cost for the entirety of the student’s 2022-2023 12-month school year, and the NYC-DOE provide (10) hours per week of 1:1 ABA services and (2) hours per week of parent training to be provided by a qualified BCBA/LBA on a 12-month basis. In the event that the DOE is unable to implement these services itself within 10 business days of the issuance of the date of the decision/order as indicated below, than the services may be procured by the Parent at a rate that does not exceed the reasonable, fair and customary rate for such services in New York City; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall also conduct a re-evaluation of the student in all areas of his suspected disabilities not evaluated within the last two years, for the 2023-2024 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student’s evaluations and any other relevant information and produce a new IEP for the student’s 2023-2024 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: November 6, 2022 _____________________________

New York, New York Edgar De Leon - I.H.O.

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 L[2nd REDACTED] 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. (Rev. 07/09/20)

Footnotes

[1] [REDACTED] Psychology Group June Progress Report

[9] [REDACTED] Academy 2022-2023 tuition payment

[13] [REDACTED] Psychology Group January Progress Report

Impartial Hearing Decision

BACKGROUND