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CASE NUMBER: 574510 - NYC: 227366
FINDINGS OF FACT & DECISION
Case No.: 227366
Student’s Name: REDACTED (hereinafter referred to as “Student”)
Date of Birth: REDACTED
District: REDACTED
Hearing Request by: REDACTED (hereinafter referred to as “Parent”)
School: REDACTED (hereinafter referred to as “Private School”)
Hearing Dates: September 6, 2023, October 2, 2023, October 25, 2023
Actual Record Close: November 27, 2023
Hearing Officer: Marisa Carbone, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 6, 2023
For the Student:
REDACTED, Esq, Attorney
REDACTED, Parent Student
For the Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 2, 2023
For the Student:
REDACTED, Esq., Attorney
REDACTED, Parent Student
REDACTED, Parent Student
For the Department of Education:
REDACTED, Esq., Agency Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 25, 2023
For the Student:
REDACTED, Esq., Attorney
REDACTED, Parent Student
REDACTED, Parent Student
REDACTED, BCBA
For the Department of Education:
REDACTED, Esq., Agency Attorney
ISSUES
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on July 1, 2022. The DPC alleged that the District failed to provide the Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing the Student with an appropriate special education program during the 2022/2023 school year. The Parent is seeking reimbursement for the unilateral placement of the Student at the Private School and reimbursement/and or compensatory services for up to 10 hours per week of 1-1 home-based ABA services supervised by a certified BCBA for the 2022/2023 school year.
PROCEDURAL HISTORY
The undersigned Hearing Officer was appointed to the above matter on July 5, 2022. A pre-hearing conference was held on August 12, 2022. Status conferences were held on October 13, 2022, November 10, 2022, December 13, 2022, January 13, 2023, February 10, 2023, March 9, 2023, April 13, 2023, May 12, 2023, June 8, 2023, July 11, 2023, and August 8, 2023. A hearing was held on September 6, 2023, October 2, 2023, and October 25, 2023 (See, Transcript).[1] The District did not introduce any exhibits into evidence or present any witnesses. The Parent presented documents which were admitted into evidence and presented three witnesses by affidavit. The record closed on November 27, 2023. There were fifteen extensions of the compliance date in order for the District to investigate the possibility of settlement and accommodate witnesses.
FINDINGS OF FACT
The Student was a REDACTED student who was parentally placed at a private school during the 2022/2023 school year. The Student has significant global developmental delays in the context of his complex medical history (P-Ex. B). The Student has been diagnosed with Autism Spectrum Disorder accompanied intellectual and language impairment; Attention Deficit Hyperactivity Disorder, combined type presentation; Speech Sound Disorder and a Developmental Coordination Disorder (P-Ex. B). The Student is classified as a student with a disability under Autism and his classification is not in dispute (P-Ex. B).
The District failed to introduce any evidence during the hearing regarding what IEP was offered to the Student during the 2022/2023 school year. The were no documentary or testimonial evidence to support that the District offered the Student a FAPE during the 2022/2023 school year. The Parent, however, introduced into evidence a neuropsychological evaluation that was conducted on the Student in 2021 (P-Ex. B). The evaluator recommended that the Student continue to be placed in a small, specialized, and nurturing classroom setting in a 12-month special education program with an emphasis on academics, social, and daily living skills where the related services are integrated throughout the daily curriculum (P-Ex. B). The evaluator further recommended that the Student receive Applied Behavior Analysis (“ABA”) at home for the next 12 months for 10 hours per week (P-Ex. B). The District never consented to the at home ABA instruction, so the Parent provided the ABA therapy to the Student privately for the 2022/2023 school year and is seeking reimbursement for only the out-of-pocket, non-insurance expenses (P-Ex. U).
At the hearing, the Parent produced REDACTED, Assistant Head of the Upper School at the Private School and REDACTED, Student’s Board-Certified Behavior Analyst (“BCBA”). REDACTED testified that the Student was in 9th grade during the 2022/2023 school year and how the Private School provided him with a modified curriculum, individualized goals, integration of related services, direct teacher support, small class size, visual and verbal prompts to stay on task, provision of sensory tools, visual/verbal/tactile cues, breaks between activities, graphic organizers, guided questions, visual aids, texts read aloud, checklists, and a 1-1 paraprofessional (P-Ex. Q). The Student participated in physical education, yoga/movement class, art therapy, music class, drama therapy, technology class and 10 hours of work in an internship (P-Ex. Q). The witness further testified that the Student made meaningful progress at the Private School in all domains-social/emotional, academic, adaptive, and transitional (P-Ex. Q).
REDACTED, the Student’s BCBA since 2019, testified that she provided between 4-6 hours per week of ABA therapy and between 4-6 hours per week of BCBA supervision (P-Ex. V). The home-based programming focused on improving his expressive language skills, safety awareness, social skills, and increasing his independence with activities of daily living skills (P-Ex. V). The witness further testified that home-based ABA instruction was necessary to prevent regression during school breaks, to generalize skills, and to support meaningful progress at school (P-Ex. V).
On June 17, 2022, Parent notified the District that the Student would be unilaterally placed at the Private School for the 2022/2023 school year (P-Ex. D).
CONCLUSIONS OF LAW
The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student’s recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998). Two purposes of the 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]; Rowley, at 206-07).
An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.
In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.” In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”
Here, the District did not introduce any documents or testimony into evidence to show that it provided FAPE to the Student during the 2022/2023 school year. Based on all of the above, I find that the District failed to meet their burden of proof and failed to offer the Student FAPE during the 2022/2023 school year.
PARENT’S BURDEN
Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). 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 the parents' unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89).
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 must provide an educational program which meets 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 (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
“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). Furthermore, the Board of Education shall be required to reimburse parents for the cost of unilaterally obtained services if the services offered by the Board of Education were inadequate or inappropriate and if those services selected by parents are appropriate and equitable considerations support the parents. In addition, the Board of Education shall be required to either reimburse parents for the services or directly fund those services. See, SRO-21-119, 22-144, and 22-027. Finding that the District did not provide FAPE to the Student during the 2022/2023 school year, the burden now shifts to the Parent to prove the appropriateness of the unilateral Private school placement and the appropriateness of the privately obtained ABA services. The Parent presented documentary evidence and testimonial evidence (P-Ex. C, F, K, L, M, O, P, Q, R, S, T, U) in support of their position that the unilateral placement at the Private School was appropriate and provided educational instruction and supportive services specifically designed to meet the Student’s unique needs. In addition, the Parent presented documentary and testimonial evidence to support their position that the unilaterally obtained private services, up to 10 hours per week of home-based ABA therapy, was appropriate. The evidence established that the unilaterally obtained services, up to 10 hours per week of home-based ABA therapy, provided the Student with skills and instruction necessary to permit him to attend school as well as to function at home and in the community.
EQUITABLE CONSIDERATIONS
Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process.
DECISION
Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2022/2023 school year. I further find that the unilateral placement at the Private School was appropriate and the unilaterally obtained services by the Parent for the Student, the home-based ABA therapy up to 10 hours per week, were appropriate and that equitable considerations favor the Parent.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby
1. ORDERED, that the New York City Department of Education shall reimburse Parent for the Student’s tuition at the Private School for the 2022/2023 school year and directly fund any outstanding balance due.
2. ORDERED, that the New York City Department of Education shall reimburse Parent for the out-of-pocket costs associated with the home-based ABA therapy provided by REDACTED during the 2022/2023 school year, upon proof of invoices.
ORDERED:
DATED: November 29, 2023
Marisa Carbone
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DISTRICT EVIDENCE
None
PARENT EVIDENCE
A. No. Date Description Pages Hearing Request 7/1/22 10 pages
B. Neuropsychological Evaluation 12/21/21 17 pages
C. REDACTED Summer Academy Program Description 4/11/22 2 pages
D. Ten Day Notice 6/17/22 3 pages
E. Ten Day Notice Confirmation 6/17/22 1 page
F. REDACTED Enrollment Contract 5/10/22 2 pages
G. BCBA Provider Affidavit 12/28/22 1 page
H. REDACTED Tuition Affidavit 1/4/23 2 pages
I. Request for Medical Accommodations 5/14/23 1 page
J. ABA Support Letter 8/2/23 1 page
K. REDACTED Summer Schedule 2022-2023 1 page
L. REDACTED Class Schedule 2022-2023 3 pages
M. REDACTED Program Description Undated 5 pages
N. Decision 12/28/22 16 pages
O. REDACTED Progress Report 2/3/23 23 pages
P. REDACTED Progress Report 6/16/23 21 pages
Q. Affidavit of Testimony: REDACTED 4/26/23 10 pages
S. R January2022 ABA Assessment and Treatment Plan 6 ABA Assessment and Treatment Plan August 2022 7 pages
T. ABA Assessment and Treatment Plan January 2023 9 pages
U. Affidavit of Testimony: REDACTED 10/16/23 3 pages
V. Affidavit of Testimony: REDACTED Undated 19 pages
IHO EVIDENCE
None
Footnotes
[1] Reference to the Transcript shall be referred to as “T”.