New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 575042 - NYC: 227831

FINDINGS OF FACT AND DECISION

Case Number: 227831

Student’s Name^[1]: REDACTED (“Student”)

Date of Birth: REDACTED

School District: # REDACTED

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: 07/05/2022

Date(s) of Hearing: 11/03/2022

Actual Record Closed Date: 12/05/2022

Date of Decision: 12/17/2022

Date of Distribution if Different than Decision Date: n/a

Hearing Officer: Harry A. Christodoulou

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 03, 2022

For the Student:

REDACTED (hereinafter referred to as “Parent’s representative”)

Parent

REDACTED (hereinafter referred to as “Parent’s Witness 1”)

REDACTED (hereinafter referred to as “Parent’s Witness 2”)

For the Department of Education:

REDACTED (hereinafter referred to as “District’s representative”)

BACKGROUND AND PROCEDURAL HISTORY

Student is a REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute.

On July 5, 2022, Parent, through Parent’s representative firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA (Ex. P-A). I was appointed on July 12, 2022, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC concerning Student’s special education program.

It is asserted in the DPC that, based on numerous procedural and substantive grounds, the DOE failed to offer Student a free and appropriate public education (“FAPE”). Parent is seeking, inter alia, a finding that the DOE denied Student a FAPE for the 2021-2022 and 2022-2023 school years (“SYs”), tuition funding for the cost of Student’s placement at the Attending School (defined on page 28) for the 2022-2023 SY, and compensatory services (Ex. P-A-18, & P-A-19).

JURISDICTION

A decision in this matter is being rendered pursuant to the IDEA^[2] and its implementing regulations,^[3] and the New York State Education Law^[4] and its implementing regulations.^[5]

Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement... a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s] parents or guardian and representation by counsel, and a review procedure.”^[6] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The DOE delegated to the New York City Office of Administrative Trials and Hearings (“OATH”) the authority to adjudicate due process complaints under Section 504.^[7]

PARTIES’ POSITIONS AND CASES PRESENTED

District’s representative confirmed at the IH that the DOE was: not putting on a case, not calling any witnesses but was proposing three documents for admission to the record, which were admitted after addressing an objection by Parent’s representative on the record (T. P26, L14-25; P27-29; P30, L1-8) (and are listed below); and conceding Prong I, namely that it failed to provide Student with a FAPE for the two SYs at issue. District’s representative also confirmed that the DOE would make a brief opening statement (T. P21, L7-19). Given the concessions as to Prong I, this case essentially turns on Prong II and Prong III.

Parents, through the Parent’s representative, submitted twenty six documents in support of the Parent’s case. Parent’s proposed exhibits were admitted to the record at the IH (and are listed below) after confirming with the District’s representative that there were no objections from the DOE to those documents being admitted into evidence (T. P21, L23-25; P22, L1). Parent’s disclosure included the signed affidavits of three witnesses in support of Parent’s case, namely, Parent’s affidavit, as well as the affidavits of Parent’s Witness 1 and Parent’s Witness 2 (Ex. P-W, P-X, & P-Y). Parent’s Witness 1 and Parent’s Witness 2 testified at the IH. Parent’s representative did not make an opening statement.

Both parties submitted written closing briefs (Ex. IHO-I, & IHO-II).

PREVAILING PARTY

Parent is the prevailing party, and an award or Order is granted in favor of Parent.

LEGAL FRAMEWORK

A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits^[8].

If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits^[9].

The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE^[10].

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"^[11]. To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP^[12]. Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material"^[13].

School districts are not required to “maximize” the potential of students with disabilities,^[14] but must provide “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement.’”^[15] The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”^[16] The IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student.^[17]

The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.^[18]

Section 504

Section 504 prohibits discrimination against qualified students with a disability.^[19] Section 504 states, “[n]o otherwise qualified individual with a disability... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”^[20] Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].”^[21] Under Section 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.”^[22]

Under Section 504, an individual with a disability includes any person who: “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.”^[23] However, only students who have a substantial limitation of a major life activity are entitled to a FAPE.^[24] Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others.^[25]

Districts must conduct “periodic” reevaluations of students who are eligible under Section 504. Compliance with the IDEA’s reevaluation procedures is one way of complying with this requirement. ^[26] When making decisions about services and supports for a student, Section 504 requires that districts “draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior.”^[27] Additionally, districts must ensure that information from these sources is “documented and carefully considered.”^[28] Placement decisions must also be made “by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.”^[29]

Burdens

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition funding for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement – which is applicable in this case.^[30]

Parents bear the burden of proof, both in production and persuasion, on any claim under Section 504 of the Rehabilitation Act.^[31]

FINDINGS OF FACT AND DECISION

[I] Appropriate Remedies: Tuition Funding

Prong I - Denial of a FAPE:

The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”^[32] The DOE however elected to concede that it failed to provide Student with a FAPE for the 2021-2022 and 2022-2023 SYs. Given the DOE’s decision to concede Prong I, it has not discharged its burden in these proceedings to establish that it provided Student a FAPE for those two SYs.

Even if the concession had not been made, the record supports such a finding because, in short, the DOE’s proposed placement for the 2021-2020 SY, namely a special class, 8:1+1, was inappropriate and would not have resulted in Student receiving a FAPE. It was also at odds with the IHO’s order in the prior FOFD (Ex. P-C), which ordered on November 30, 2021 inter alia deferral of Student’s placement to the CBST to secure placement in an appropriate placement in an ABA program at a NYS-Approved NPS. The inappropriate placement persisted for 2021 and even after the said FOFD was issued, the DOE developed another IEP on January 20, 2022 (Ex. DOE-2-39), which had a projected implementation start date from February 4, 2022 and a projected annual review date of January 20, 2023 (Ex. DOE-2-1) (i.e., already in the 2022-2023 extended SY) that included the same placement recommendation (Ex. DOE-2-29, & DOE-2-39).

It was only in the next IEP developed for Student on June 27, 2022, some seven months after the FOFD was issued, that a NYSED Non-Public School (“NPS”) placement recommendation was made for Student (Ex. DOE-3-36). That IEP had a projected implementation start date from July 5, 2022 and a projected annual review date of June 27, 2023 (Ex. DOE-3-1). Parent testified that there was no school offer for the 2022-2023 SY (Ex. P-W-6) and there is no evidence that the DOE provided Parent with a school location letter for the proposed placement set out in the latest IEP. Parent therefore had no idea where the proposed IEP would have been implemented, given the DOE’s failure to provide a school location letter, whether the proposed placement (if there was in fact one) had availability, and whether it could have implemented the recommended program.^[33]

I also note that the IEP in question still recommended an 8:1+1 student to teacher ratio (Ex. DOE-3-28, & DOE-3-29), which according to the uncontested evidence of Parent’s Witness 2 (Ex. P-X-12): “[Student] could not and still cannot learn in a District 75 placement with eight students one teacher and one assistant (8:1+1) with a paraprofessional. [Student] requires significant targeted instruction due to [Student’s] learning needs and a very individualized program with far lower student teacher classroom ratio, which cannot be merely fulfilled with a paraprofessional. [Student] also requires the close supervision to maintain [Student’s] safety. [Student] is very distractible and requires a small number of students with far higher support and instructional facilitation. It is also essential that all related service providers are integrated throughout the day, in addition to the targeted sessions, that [Student] have a sensory diet that is implemented throughout the day with access to a sensory gym and sensory materials, and that [Student] receive an instructional methodology based on ABA and the use of a program like DIR Floortime. [Student] exhibits safety challenges due to [Student’s] distractibility, an inability to communicate wants and needs, and an inability to self-advocate which necessitates highly specialized and individualized one-to-one support. [Student] also must learn appropriate social skills an interactions as they occur throughout the day utilizing the behavioral and instructional methodologies of ABA …” (my emphasis).

Accordingly, even without the DOE’s concession, the record would have established that the DOE had failed to meet its burden to establish that Student was provided a FAPE for the two SYs. Parent has accordingly met the first criterion of the three-part test set out in the Burlington/Carter case for tuition funding.

Prong II - Appropriateness of the Parent’s Placement:

Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student.”^[34] The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”^[35] The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child.”^[36] The Judges in the Gagliardo case wrote that “no one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction”^[37] (my emphases).

In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and that the placement must reasonably serve those needs to an extent that permits the child to benefit from the instruction. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP.

Evidence on Record:

Parent’s representative presented detailed testimony by Parent, Parent’s Witness 1, and Parent’s Witness 2 by affidavit and submitted documentary evidence in support of the Parent’s position that the Attending School placement was an appropriate placement for the 2022-2023 SY. District’s representative cross-examined Parent’s Witness 1 and Parent’s Witness 2 at the IH. Parent’s Witness 2 testified (Exhibit P-X) as to:

Witness’s title, namely Principal and Executive Director of the Attending School; Witness’s educational background, credentials, and work experience; Witness’s duties and responsibilities; how the school develops an individualized, full-day educational program for each student; classrooms each having a lead special education teacher and multiple teaching assistants; the school having certified speech/language and occupational therapy providers, a school psychologist, program supervisors, an art and music educator, as well as adaptive physical education; the school’s related service providers all being certified in New York.

The number of students enrolled for the 2022-2023^[38] SY; Witness’ familiarity with Student; how a determination was made regarding which classroom Student would be placed in factoring in a combination of things such as Student’s language, interests, sensory needs, behaviors, comfort with staff and with students; how the Attending School minimally follow the most recent IEP available, but also looked at Student’s recent evaluation to determine related service mandates; how the program integrates many of the related services into its small classroom allowing the school to support the progress of skills throughout Student’s day or within a particular instructional period.

How Student requires a lot of one-to-one support in all areas, for safety, transitions, focus, support for communication, as well as close supervision at all times due to Student’s behaviors and safety concerns; how related service providers push-in to the classroom throughout the day, every day, and provide ample opportunities for one-to-one instruction; how the school supports Student’s use of an augmentative communication device in addition to Student’s use of verbal and nonverbal (such as gestures) language in order to facilitate Student’s communication; how the school supports Students ability to remain regulated throughout the day through the use of a sensory gym, a Zone of Regulation Curriculum, movement incorporated into the morning meeting period, and a daily mindfulness class/program period, which targets physical, sensory, and emotional self-regulation; and how the school provides a daily targeted vocational instruction period in addition to helping Student develop transitional skills within instructional and related service periods.

How in June 2022, the school reviewed Student’s progress within the program to meet Student’s goals and reviewed the effectiveness of the program and related services, allowing the school to developed an individualized and targeted program for the 2022-2023 school year; how the school had found the program Student received during the 2021-2022 SY (at the Attending School) was effective and should continue, save that the occupational therapist determined that Student would benefit from a change in the occupational therapy (“OT”) service frequency from Student’s IEP mandate to twice individually in a separate location/provider location and once in a small group; and how that was then put in place for the 2022-2023 SY.

How the school uses three teaching methodologies, which were elaborated on, and incorporates inter alia a lot of one-on-one learning into the teaching; how Student benefits from all three of methodologies used together, as well as from the push-in integration of the ABA provider providing a one-to-one ABA methodology; how the teachers and service providers are appropriately qualified, certified and/or licensed to teach and provide the services that are part of Student’s program, explaining what services are being provided; and how Student has access to a sensory gym, receives a sensory diet, and access to sensory materials, which allows Student to remain engaged in tasks for longer periods of time and to remain regulated.

How staff collaborate extensively so that they are all working together to help Student with individual goals and provide support throughout the school day; how Student has access to typically developing peers through integration into the local community on field trips and community walks to places like parks and stores; how each Friday, Student has two periods, back to back, that integrate community walks with OT and speech therapy, allowing Student’s therapeutic providers to work on Student’s social boundaries and recreational skills.

How Student has made “incredible progress” since starting at the Attending School, which was elaborated on in detail; and how Student has been successful in accessing Student’s education at the Attending School.

Both Parent (Ex. P-W) and Parent’s Witness 1 also testified (Ex. P-X) as to how the Attending School was and is an appropriate placement for Student, as well as all the progress that Student has made since attending the school (Ex. P-W-6).

I find that the Student’s program at the Attending School is specifically designed to cater to a class or category of students, namely those with Autism or language, sensory processing, and behavior regulation challenges, and who fit the general profile of the Attending School’s students, requiring a small class size with a low student-to-teacher ratio, one-on-one instruction, individualized attention, and small group instruction.

The entire program, including the learning methodologies and the supports provided were all designed to meet the needs of this class or category of student. The Student falls in this class or category.

The detailed evidence presented by Parent’s Witness 1 and Parent’s Witness 2 substantiating how school specifically tailors the program for Student’s unique and individual needs, is uncontested and credible. Parent’s Witness 2 confirmed that an FBA and BIP were created, and that Student’s BIP that was developed at the beginning of June 2021 was amended since the original one was developed, as the school is always analyzing the data and always making appropriate adjustments (T. P49, L5-17). The evidence on record, which was not disputed through any testimony, let alone any expert testimony contradicting the testimony of Parent’s witnesses, supports the Parent’s assertion that the Attending School is an appropriate placement for Student (Ex. P-X-4, P-X-11; P-X-12; P-W-6).

The testimony of the Parent, Parent’s witnesses, and the Parent’s documentary evidence (Ex. P-G, P-H, P-I, P-J, P-Q, P-R, P-W, P-X & P-Y) establishes that the Attending School is appropriate and is providing Student with educational instruction that is specifically designed to meet Student’s unique special education needs, supported by such services that are necessary to permit Student to benefit from instruction, for the 2022-2023 SY. I find that, based on the Student’s attendance at the Attending School for the extended SY in question, as testified to by Parent, and Parent’s Witness 1 and Parent’s Witness 2, Student has been making progress and will likely continue to do so for the remainder of the 2022-2023 SY.

District’s representative cross-examined Parent’s witnesses regarding the provision of ABA services, and ultimately seeks a dismissal of Parent’s claims in the DPC (Ex. IHO-I).

Parent’s representative asserts that a “home-based program that includes pushing into [Student’s] educational program, one such as the one described by [Parent’s Witness 1], does not undermine the appropriateness of [Attending School]. It is a further important piece of the educational puzzle for [Student]” (T. P37, L2-6). Parent’s representative is relying on two separate legal theories to support that relief (Ex. IHO-II).

Parent’s Witness 1 sought to motivate the necessity for ABA services to be added to Student’s program, which are to be utilized both in school and at home, in addition to the program being offered at the Attending School.

Parent’s Witness 1 testified, inter alia, that:

It is essential that Student receives a consistent behavioral plan across Students full day, at school, at home, and in the community. Intermittent reinforcement of skills and inadvertent reinforcement of problematic behaviors will increase inappropriate behaviors, decrease skill development, and make the maladaptive behaviors harder to extinguish. Given the significant behaviors and skills deficits, yet continuous progress and demonstrations in the efficacy of ABA interventions, Student requires 15 hours per week of school-based push-in ABA services with a provider who is certified in ABA, experienced and skilled in implementing a BIP and teaching replacement functional skill acquisition procedures. Student also requires 5 hours per week of one-to-one home-based ABA services to work on skills specific to the home and community settings, while generalizing the skills taught at school.

Behavior intervention should continue to incorporate decreasing maladaptive behaviors, as well as increasing replacement appropriate behaviors to effectuate appropriate behavior change not only at school, but also in the home and community settings. The ABA provider should also continue to condition appropriate social skills to reduce Student’s isolation and engagement in severely inappropriate behaviors that can lead to the harm of others or place Student in danger from others angered by Student’s actions.

I however do not find that the recommended school and home-based ABA program is required for Student to receive a FAPE for the 2022-2023 SY.

Parent’s Witness 1 testified in cross-examination that: Student is in a setting where Student is receiving appropriate academic instruction; that the role of the person from Service Provider (defined on page 28) is to ensure that Student is engaging so that Student is available for learning and that person also addresses behaviors; the said person does not take on academic instruction (T. P52, L19-25).

In re-direct, Parent’s Witness 1 testified that without the push-in services the Attending School would be an appropriate program. Parent’s Witness 1 testified that: Witness believes that Student would “greatly benefit from ABA, a full wraparound service of ABA”; at this time, the behaviors are still occurring, but are decreasing; Student is learning replacement skills; Witness believes that once Student has acquired these skills, and once “we have seen an extinction in these maladaptive behaviors”, Student will then be available to learn in that structured setting with individuals who are trained to work with other individuals with autism; the data is demonstrating that Student is acquiring these skills, however, given Student’s age, “which is pretty late in receiving these services”, there's going to need to be more intensive services, which is why Witness believes that the ABA is warranted; and that the goal would be to systematically fade out support.

I clarified with Parent’s Witness 1 about the time at school when Student is not receiving ABA services from Service Provider, who testified that: during the time that the person from Service Provider is there, they are addressing Student’s behaviors and replacing them; they are teaching replacement skills so that Student can apply them; in addition the staff, teachers and those in the classroom are utilizing the same strategies to then be able to generalize those behaviors across other people so that Student is not only responding this way with that one particular therapist; so although the person is not physically there for all of the school hours and home hours, the training is occurring where everyone is working in lockstep (T. P58, L9-25; P59, L1-24).

Given that the school personnel are utilizing the same strategies and are addressing Student’s maladaptive behaviors for more than half of the full school day (four out of seven hours), I find that the Attending School is an appropriate program for Student for the 2022-2023 SY notwithstanding the provision of ABA push-in services being received by Student in that setting, which according to Parent’s Witness 1 and Parent’s Witness 2, the school agreed to in order to accommodate Parent’s request. Parent’s Witness 2 in fact described generally and not specific to Student that ABA has been helpful for a student to be able to access their learning in “the most optimal way”, and in relation to Student specifically in response to whether it was necessary for Student to make progress, that Witness believed it is beneficial to Student (T. P69, L14-24).

Parent’s Witness 1 testified that Student attended an inappropriate District 75 small class setting through the 2021-2022 SY without appropriate behavioral change principals being utilized (P-Y-7). In cross-examination, Parent’s Witness 1 confirmed that the compensatory services being claimed was for the 2021-2022 SY for a portion covering July 2021 through March 2022, for a total of 39 weeks when Student was placed in an inappropriate academic setting and could have been making progress in that time and therefore should be remediated, or, that these hours should be used to remediate that lost time (T. P54, L15-25, P55, L1-3). Significantly, Parent’s Witness 1 went on to state regarding the proposed compensatory services being recommended: “Right. I guess the point I'm, I'm making specifically are for the times o- of lost academic instruction with- within an appropriate placement” (my emphasis) (T. P55, L9-11). Yet, Parent’s Witness 1 had previously testified that: Student was in an appropriate setting at the Attending School where Student was receiving appropriate academic instruction (i.e., from April 2022 until the end of the 2022-2023 SY); and that the role of the individual from Service Provider is to ensure that Student is engaging so that Student could be available for learning, and they are also addressing the behaviors (T. P52, L19-25). This really is the predominate function of these services, namely, to target and reduce Student’s maladaptive behaviors that have been interfering with Student’s ability to be available for learning.

These behaviors, as confirmed by Parent’s Witness 1, prevented Student from being available for learning during July 2021 through March 2022. However, both Parent’s Witness 1 and Parent’s Witness 2 confirmed in their testimony that the services Student received from Service Provider has resulted in the frequency and intensity of interfering behaviors that were occurring in the school setting from occurring, and certain of the serious behaviors were no longer occurring (T. P50, L2-8; Ex. P-Y-8). In other words, the services have been effective. These behaviors should have been targeted earlier, which is one of the reasons Parent’s Witness 1 motivates for the level of compensatory services required, being added “pretty late”. The behaviors, which had they been appropriately targeted during the 2021-2022 SY, would have been reduced or eliminated, as has been proven to be the case through the provision of services by Service Provider from April 2022 until now. Parent’s Witness 1 did confirm that although certain of the more serious behaviors have been eliminated, behaviors are still occurring and decreasing, they are still occurring and Student is learning replacement skills, and once Student has acquired these skills and the maladaptive behaviors have been extinguished, Student will be available to learn (T. P56, 8-14).

I find that there is a direct connection between the persistence of interring behaviors and the failure by the DOE to have addressed these behaviors in an appropriate manner, which is now being done, earlier. Had the DOE done so during the 2021-2022 SY, the Student would likely not require the level of ABA support being advocated for now by Parent, Parent’s Witness 1, and Parent’s Witness 2. This is exactly what the compensatory award (dealt with below) is aimed at addressing, namely, to place a student in the position a student would have been in had the District complied with its obligations under the IDEA^[39].

Given that the Attending School is now in an appropriate setting that is appropriately addressing Student’s academic instructional needs, the interfering behaviors which should have been addressed by the DOE during the 2021-2022 SY thereby contributing to a denial of a FAPE for that SY will be addressed through the award of compensatory services (addressed below). Student will therefore continue to “greatly benefit from ABA” as testified by Parent’s Witness 1, through that award.

I also note that part of the reason advanced by Parent’s Witness 1 to motivate the recommended 5 hours per week of home-based ABA, is to generalize the skills across settings, which further supports Student’s progress, help Student master the taught skills, and increase Student’s availability to learn and appropriately engage in lessons at school (Ex. P-Y). Key factors contributing to my finding that the Attending School is an appropriate placement, is that the Attending School works on Student’s adaptive daily living goals (Ex. P-G-2), uses “community integration to aid students in pursuit of their own life goals and happiness”, that certain of Student’s related services sessions take place in a community setting, and Student is provided with access to typically developing peers through integration into the local community on field trips and community walks to places like parks and stores (Ex. P-Q-1, & P-X). The concerns raised by Parent’s Witness 1 are being addressed by the Attending School.

Parent has therefore met the second criterion of the three-part test set out in the Burlington/Carter case for tuition funding.

Prong III - Equitable Factors:

Equitable considerations are relevant to fashioning relief under the IDEA.^[40]

The IDEA also provides that funding may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents.^[41]

The IDEA allows that funding may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.”^[42]

This statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools.”^[43]

Although a reduction in funding is discretionary, courts have upheld the denial of funding in cases where it was shown that parents failed to comply with this statutory provision^[44].

The hearing record reflects that Parent notified the CSE by letter dated June 17, 2022, of Parent’s intention to continue Student’s placement at the Attending School and seek public funding for the 2022-2023 SY (Exhibit P-B-12). I find that in this letter Parent offered an abundance of information to put the DOE on notice about Parent’s concerns regarding the CSE’s failure to make an appropriate program and placement recommendation and informed of Parent’s intentions, giving the DOE an opportunity to cure any deficiencies, which is the intent underlying the ten-day notice requirement.^[45]

Although it is apparent from the record that Parent signed a contract enrolling Student in the Attending School prior to the start of the extended 2022-2023 SY and before providing the CSE the ten-day notice, namely on May 19, 2022 (Exhibit P-S-3), the Second Circuit has explained that, so long as parents cooperate with the CSE, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming... that the parents never intended to keep [the student] in public school.”^[46] I find that the timing as to when the ten-day notice was sent to the CSE to be of no consequence to Parent’s claim and the relief being granted.

Amounts Claimed:

A District must provide extended school year (“ESY”) programming services when a student's IEP team determines on an individual basis that the services are necessary for the provision of a FAPE to the child.^[47]

The term ESY services means special education and related services that: are provided to a child with a disability: i) beyond the normal school year of the public agency; ii) in accordance with the child's IEP; iii) at no cost to the parents of the child; and iv) meet the standards of the state educational agency.^[48] I note that the IEPs prepared for the Student on record (Ex. DOE-1, DOE-2, DOE-3, P-D, P-E, & P-F) determined that Student was eligible to receive special education services and/or program during July/August (Ex. DOE-1-36, DOE-2-31, DOE-3-30, P-D-31, P-E-27, & P-F-17). Based on the record, I do not find that the IEP teams’ determinations should be disturbed, which is also supported by Parent’s witnesses’ testimony (Ex. P-X, & P-Y).

Tuition amount claimed:

Parent and Parent’s Witness 2 confirmed under oath: the cost of tuition for Student’s attendance at the Attending School for the twelve-month 2022-2023 SY in the sum of $112,000.00, inclusive of all related services (Ex. P-W-7, P-X-12, & P-X-13); the payments made to the Attending School totaling $0.00; and an obligation to pay. The amounts were confirmed by Affiant under oath (Ex. P-U-1), and matches the tuition amount set out in the enrollment contract (Ex. P-S-1), which also confirms Parent’s personal obligation and liability that are not covered by any payments from the District. Parent submitted into evidence Parent’s 2021 Form 1040 reflecting Parent’s taxable income and confirmed an inability to pay the tuition based upon Parent’s household income (Ex. P-W-7, & P-V). I find that a case for direct funding based upon need has been made out. This evidence was uncontested.

I do not find any factors applicable to warrant a reduction of the claim for tuition funding based upon equitable factors.

Parent has therefore met the third criterion of the three-part test set out in the Burlington/Carter case for tuition funding. Having met all three criteria of the Burlington/Carter test, Parent is entitled to funding for the cost of Student’s placement at the Attending School for the 2022-2023 SY.

[II] Appropriate Remedies: Compensatory Services Parent is also seeking compensatory education or compensatory services for the District’s failure to provide Student with a FAPE. A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE.^[49]

An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation.

A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).

Before addressing details of Parent’s relief for compensatory education or services, it is necessary to address whether an appropriate remedy for the denial of a FAPE should consist of both tuition funding and compensatory education or services, which is being sought in the DPC.

The purpose of an award of compensatory education or services is to provide an appropriate remedy for a denial of a FAPE.^[50] Some courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement (or funding) for the costs of a unilateral placement is also at issue for the same time period^[51] (my emphasis). The Second Circuit Court of Appeals has not directly addressed this question and, generally, appears to have adopted a broader reading of the purposes of compensatory education than the Third Circuit.

Unlike the Third Circuit, the Second Circuit's approach to compensatory education may leave room for unique circumstances where an award of compensatory education may be warranted where, for example, a student is unilaterally placed but the parent's request for tuition reimbursement (funding) is denied under a Burlington/Carter analysis.^[52]

It has been stated that where it is “permitted, it would be the rare case where a unilateral placement is deemed to provide instruction specially designed to meet the student's unique needs but the student is also deemed entitled to compensatory education to fill gaps in the services provided by such unilateral placement.”^[53] The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE^[54]. For the 2022-2023 SY, the denial of a FAPE is being appropriately addressed through the tuition funding claim addressed above, which is being granted in full.

Additionally, the purpose of compensatory education is neither to punish the District^[55] nor to “maximize the student's potential or to guarantee that the student achieves a particular grade-level in his areas of need. Thus, it would, for certain, be a pyrrhic victory if the delivery of an award of compensatory educational services only served to overwhelm the student or outpace the student's ability to make progress.”^[56] The full tuition amount being awarded is the amount determined due as an equitable remedy in the circumstances of this case for the 2022-2023 SY and should not be adjusted either up or down, as the remedial purpose of the IDEA is being served by that amount. Furthermore, the prior FOFD catered for tuition to be funded at the Attending School for the period April 2022 through June 2022 (T. P31, 25, P32, L1-2).

Factoring in the tuition funding claim being awarded for the 2022-2023 SY and that Student has been in an appropriate placement from April 2022 and will continue to be so until the end of the 2022-2023 SY, I agree with District’s representative’s assertion (Ex. IHO-I-13), and therefore I do not find that, the facts of this case could be categorized as a unique or “rare case”, warranting an award of additional compensatory education or services during the time that the Student is in the appropriate placement at the Attending School.

It is significant that notwithstanding the assertions put forward by Parent’s representative, Parent, and Parent’s witnesses, no claim for compensatory services is being claimed for the period April 2022 through June 2022, where Student was in the appropriate placement and maladaptive behaviors were being addressed through a compensatory award providing ABA services, at a time where those maladaptive behaviors were worse than where they are now.

Parent’s Witness 1 does state that the determination of a compensatory educational program to remediate the harm for approximately seven months is based on Student’s need for “this particular program for the entire school year” to address the harm of having failed to make progress and having continued to learn inappropriate behaviors during that time frame (Ex. P-Y-12, P-Y-13). Parent’s representative confirms that Parent is not requesting reimbursement for the months of service that were funded thus far through the compensatory award (Ex. IHO-II-17).

Given that the award for compensatory services being provided is for the period July 2022 through March/April 2022, these compensatory services (addressed below) are sufficient to ensure that Student will continue receive a FAPE, now that full tuition funding for Student’s placement in an appropriate setting for the 2022-2023 SY is catered for, where Student’s serious maladaptive behaviors have been addressed based upon a prior award, and where those behaviors that persist are being addressed and will continue being addressed for the remainder of the 2022-2023 SY through this award.

Parent’s Witness 1 set out the calculation for Witness’ recommended award of compensatory hours that include: 585 hours of compensatory ABA services, 78 hours of Board Certified Behavior Analyst (“BCBA”) supervision; and 39 hours of Parent Counseling and Training (“PCAT”) (Ex. P-Y-1, P-Y-12) to make Student whole and put Student in the position Student should have been in had Student received the correct support in Student’s educational program during those months (June 2021 through March 2022). Equitable factors however are germane to the award.

The formulation of these recommended hours should not disregard in its entirety the program and related services provided to Student as a whole over the period in question, which the formulation of hours by Parent’s Witness 1 manifestly fails to do. There is also no direct link between the hours recommended and any loss in academic progress, which neither Parent’s Witness 1 nor Parent’s Witness 2 address. Neither witness assert that because of the failure to address Student’s maladaptive behaviors, making it hard or difficult for Student to be available for learning, Student received no benefit or made no academic progress from the program Student received. A failure to make progress is asserted.

In analyzing the complete educational program offered in each of the IEPs relevant to the 2021-2022 SY, I find that although the DOE’s offering did fall short of providing the Student with a FAPE (which was also conceded), the DOE still attempted to meet its obligations, revise Student’s program, including management needs, interventions, and goals. After Parent explained that Student was having difficulty, counselling was added (T. P28, L23-25), even if that is seen as a “small change” (T. P27, L14-17), the DOE was responsive to Parent’s concerns.

I note that Supplementary Aids Services, with a projected beginning date of February 02, 2022, for “Paraprofessional Behavior Support, Individual service, Daily, 0.8” was added to Student’s program. The program was not insubstantial, and efforts were made by the DOE to provide Student with "personalized instruction” and educational benefits, which would have contributed to some extent to provide Student with educational benefits, just not at a sufficient level that resulted in the DOE providing the Student with a FAPE under the regulations given the inappropriate placement setting.

The DOE still recommended an inappropriate placement pursuant to the January 20, 2022, IEP meeting even after the prior FOFD was issued in November 2021 (Ex. DOE-2). Parent on the other hand still worked with the DOE, affording more time to the DOE, several months in fact, before finally placing Student at the Attending School (Exhibit P-W-5) starting in April 2022.

I also note that Parent’s Witness 1 recommended in Witness’ evaluation dated October 7, 2020, due to the DOE’s failure to provide an academic program, a remediation program for the 2017-2018, 2018-2019, and 2019-2020 SYs to close the gap and make Student whole: 1,380 hours of compensatory home-based ABA (10 hours per week of ABA x 46 weeks, for three 12-month academic years); 276 hours of compensatory BCBA Supervision (2 hours per week of BCBA Supervision x 46 weeks, for three 12-month academic years); and 138 PCAT hours (1 hour per week x 46 weeks x 3 years) to be provided by a BCBA. This was in addition to placing Student in a full-day rigorous ABA School program^[57] (Ex. P-K-8).

Accordingly, if Student were to be placed in an appropriate setting (which has been asserted that the Attending School is and which I have found to be the case), Parent’s Witness found that in 2020 that Student required 10 hours of home-based ABA, based upon a three-year denial of a FAPE. Even if the denial of a FAPE were taken over 46-weeks (and not based upon the 39-week calculation proposed by Parent’s Witness 1), 5 hours of home-based ABA services (being 50% previously proposed), does not proportionately equate with the reduced time period for the denial in issue here, being one third (33%), in circumstances where based upon the testimony from Parent, Parent’s Witness 1 and Parent Witness 2 there has been significant progress and reduction of maladaptive behaviors based upon those awarded hours being provided to Student (Parent’s Witness confirmed that Student was provided direct services by Service Provider during 2021 through March 2022 – T. P55, L4-7).

I also note that despite there being a three-year denial of a FAPE, only one hour per week of PCAT was recommended, yet it is still being proposed that Parent should still receive the one hour per week (or four hours per month) when the denial is for a significantly less period^[58].

I recognize that these PCAT hours are being sought for “outside the home”, however, it is asserted that PCAT will all be directed to all of the needs of Student (T. P39, L21-23). It was explained that Student’s needs that will arise will be addressed by the BCBA in PCAT so that Parent can provide support to Student. The whole program, as a wraparound very intensive program, Parent’s representative explained, is intended to take over that counseling piece (T. P40, L3-9). Parent’s representative therefore confirmed that 1:1 counseling services are not being pursued as separate bank because ABA is being pursued (T. P40, L10-14).

Parent’s Witness 1 confirmed that Parent received PCAT during the period July 2021 through March 2022, that there were some breaks, but not like there were with the ABA services that were being provided, as it was more consistent (T. P48, L5-17).

Parent’s Witness 1 confirmed that there was a break in the provision of ABA services, which prior to Student starting at the Attending School and ABA services commencing at the school in May 2022, were being provided at the Parent’s home. During July 2021 through July 2022 breaks occurred during the summer of 2021 and the fall of 2021 (T. P47, L19-25; P48, L1-4; P50, L16-24). During these breaks Student’s maladaptive behaviors were therefore not being addressed through the provision of ABA services, thereby rendering Student less available for learning.

Although Student was placed at the Attending School from April 12, 2022, there were busing issues and Student’s attendance was serious impacted resulting in eight missed school days, and only eleven days present in April 2022 (T. 65, L15; Ex. P-T-1).

Lastly, there is also authority that also bears mentioning in the context of the relief sought, namely: “Indeed, an award ordered without considering the nature of the FAPE violation to be remedied and the impact of the award on the child's educational needs could ultimately do more harm than good for a student (see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 30, 2017] ["Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity"]”. I am mindful that an overwhelming quantity of hours awarded has the potential to be burdensome.

These above considerations have factored into my calculation of compensatory hours awarded (also considering the complete relief being awarded) as follows (rounding has been used in the calculations, where required):

• • 585 compensatory hours of 1:1 ABA services sought - adjusted award: 410 compensatory hours of ABA services being awarded (i.e., +70%)
• • 78 compensatory hours of BCBA services sought - adjusted award: 43 compensatory hours of BCBA services being awarded (i.e., +55%)
• • 39 compensatory hours of PCAT sought - adjusted award: 14 compensatory hours of PCAT being awarded (i.e., +36%).

Parent’s Witness 1 confirmed the rates charged by Service Provider for the provision of ABA, BCBA, and PCAT services, which rates I find are reasonable (Ex. P-Y-13; T. P57, L15-25).

Other than the reasons provided for adjusting the award for compensatory services, I do not find any other equitable factors applicable.

[III] Appropriate Remedies: Remaining Relief

Parent’s representative confirmed that Parent was withdrawing: the request for compensatory services for OT, physically therapy, and counseling; and the request for an FBA and BIP (T. P33, L11-13; P39, L3-19).

Given my findings regarding the home-based program sought, Parent’s request to order the District to develop a program for Student that includes ABA push-in services at school and/or at home as part of the program (Ex. IHO-II-29) is denied. I note that the District has included a NYSED-Approved NPS placement on Student’s latest IEP (Ex. DOE-3-36). Given District’s concession that it denied Student a FAPE for the 2022-2023 SY, the District is reminded of its obligation to timeously develop an IEP for Student that will provide Student with a FAPE and provide a placement (and a school location letter) timeously, where that program can be implemented and thereby provide Student a FAPE for the upcoming SY.

If the proposed relief is seeking an award for the District to pay for Parent’s attorney fees and costs in connection with representation in this matter as part of this decision (Exhibit P-A-19), then it should be noted that only a court can determine who is entitled to attorney’s costs, fees, and expenses, and I would be exceeding the scope of my authority by determining that Parent is the prevailing party entitled thereto.

Other than the relief set out in my Order below, I do not find any other basis (including in terms of section 504) or evidence in the record supporting any additional relief.

ORDER

Based upon the above Findings of Fact, it is hereby:

• • ORDERED that, the DOE shall directly fund Student’s placement at the Attending School for the 2022-2023 school year in the sum of $112,000.00 (One Hundred and Twelve Thousand Dollars), minus any payments already made by the DOE to the Attending School for Student’s tuition for the 2022-2023 school year under or in terms of Pendency (if applicable).
• • FURTHER ORDERED that, the DOE shall fund the following compensatory services for the Student, which may be provided during the school year or during the summer (July/August), on weekdays, weekends, on holidays, or during school vacations, by a provider of the Parents’ own choosing at the providers’ customary and regular rates (i.e., “an enhanced rate”), limited to the amounts set out in #3 of this Order for each of the services:
• • 410 compensatory hours of 1:1 ABA services by a licensed behavior analyst;
• • 43 compensatory hours of BCBA services by a licensed BCBA; and
• • 14 compensatory hours of PCAT by a licensed BCBA, by issuing payment directly to the provider(s) within 30 (thirty) days upon the submission of invoices for services rendered.
• • FURTHER ORDERED that, the bank of compensatory services set out in #2 of this Order shall not expire until the expiration of one (1) year from the date of this Order and that the rates payable by the DOE for each of the services to the providers of the Parents’ own choosing shall be limited as follows:
• • Compensatory ABA services at a rate not to exceed $150.00 per hour.
• • Compensatory BCBA services at a rate not to exceed $200.00 per hour.
• • Compensatory PCAT at a rate not to exceed $200.00 per hour.
• • FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby ordered within 15 (fifteen) days.
• • FURTHER ORDERED that, the DOE shall continue to provide specialized transportation for Student, that includes door-to-door busing, for the remainder of the 2022-2023 SY.

SO ORDERED.

DATED: December 17, 2022

__H.A.C._(Signed Electronically)___

Impartial Hearing Officer

Harry A. Christodoulou

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.

APPENDIX A – REDACTION IDENTIFICATION PAGE

REDACTED

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EXHIBITS

Exhibit

Document

Date

Pages

P-A

Demand for Due Process Hearing

07/05/2022

20

P-B

Ten Day Notice

06/17/2022

12

P-C

Final Order and Decision

11/30/2021

40

P-D

IEP

01/01/2022

40

P-E

IEP

11/18/2020

34

P-F

IEP

11/20/2019

25

P-G

REDACTED Classroom Progress Report

06/__/2022

2

P-H

Speech Progress Report – 2021-2022 SY

06/__/2022

1

P-I

Occupational Therapy Progress Report: 2021-2022 SY

06/__/2022

2

P-J

REDACTED Daily Note

04/12/2022

4

P-K

Autism Skills Assessment

10/07/2020

9

P-L

Occupational Therapy Evaluation

09/14/2020

11

P-M

Assistive Technology Evaluation

09/04/2020

6

P-N

Speech-Language Evaluation

09/17/2020

5

P-O

Neuropsychological Evaluation

09/02/2020

22

P-P

Physical Therapy Evaluation

08/25/2020

6

P-Q

REDACTED Program Description

Undated

1

P-R

Class Schedule 2022-2023

Undated

3

P-S

REDACTED School Enrollment Contract

05/23/2022

3

P-T

Attendance Record 2022-2023

Undated

1

P-U

Affidavit of Finance

07/28/2022

1

P-V

Parent’s 1040 Individual Income Tax

04/11/2022

2

P-W

Affidavit of Parent

10/26/2022

8

P-X

Affidavit of Parent’s Witness 2

10/26/2022

13

P-Y

Affidavit of Parent’s Witness 1

10/27/2022

13

P-Z

Resume of Parent’s Witness 1

Undated

3

DOE’S EXHIBITS

Exhibit

Document

Date

Pages

DOE-1

Individualized Education Program

01/25/2021

45

DOE-2

Individualized Education Program

01/20/2022

40

DOE-3

Individualized Education Program

06/27/2022

40

IHO’S EXHIBITS

Exhibit

Document

Date

Pages

IHO-I

District’s representative’s Closing Brief

11/28/2022

16

IHO-II

Parent’s representative’s Closing Brief

11/28/2022

29

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] U.S.C. § 1400 et seq.

[3] C.F.R. § 300 et seq.

[4] Educ. Law Art. 89 § 4404 et seq.

[5] NYCRR § Part 200.

[6] C.F.R. § 104.36.

[7] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf.

[8] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].

[9] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].

[10] U.S.C. § 1415[f][3][E][i].

[11] Rowley, 458 U.S. at 203.

[12] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]

[13] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].

[14] Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Central School Dist., 346 F.3d 377, 379 [2d Cir. 1998]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998].

[15] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.

[16] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.

[17] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].

[18] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd.of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].

[19] U.S.C. § 794(a).

[20] U.S.C. § 794(a).

[21] C.F.R. § 104.33(a).

[22] C.F.R. § 104.33(b).

[23] C.F.R. §104.3(j)(1).

[24] U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2).

[25] See 28 C.F.R. § 35.108(c)(1)(ii).

[26] C.F.R. § 104.35(d).

[27] C.F.R. § 104.35(c)(1).

[28] C.F.R. § 104.35(c)(2).

[29] C.F.R. § 104.35(c)(3).

[30] NYS Educ. Law § 4404(1)(c).

[31] See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).

[32] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

[33] In L.B., ex rel. E.B., v. New York City Dep’t of Educ. the U.S. District Judge wrote: “Substantive violations of IDEA may include the failure to propose an IEP or deficiencies in the IEP itself. Id.; Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-39, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). School districts are required to have a written IEP in effect for each child with a disability by the beginning of the school year, 20 U.S.C. § 1414(d)(2)(A), and, in New York State, the school year begins annually on the first day of July. See N.Y. Educ. Law § 2(15). Thus, failure to provide a written IEP by July 1 constitutes a substantive denial of FAPE. C.W.L. and E.L. v. Pelham Union Free Sch. Dist., 149 F. Supp. 3d 451, 465” (122 LRP 8348) [S.D.N.Y. 2015] (citations included). This case addressed a statute of limitations issue, where the parent had relied upon the following failures by the DOE (the “Failures”): to hold an annual review for the student for the relevant school year; to provide the parent with prior written notice of a change, or lack thereof, to the student's IEP; to send a school location letter with a placement for the student for the relevant school year; and to produce an annual IEP by the first day of the relevant school year. It was conceded by the DOE that the Failures had constituted the denial of a FAPE and the DOE did not contest that it had denied the student a FAPE. The IHO Decision, which was the decision being appealed, did not probe whether the denial of a FAPE was procedural, substantive, or both, but found that "the DOE's failure to present a case at the hearing is a concession that it denied the student FAPE...." The U.S. District Judge wrote, about the Failures, that in “any case, there were clearly both procedural and substantive violations of IDEA that amounted to the denial of a FAPE”. Id.

[34] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].

[35] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].

[36] Gagliardo, 489 F.3d at 115.

[37] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).

[38] Parent’s Witness 2 testified that there are REDACTED students enrolled at the Attending School currently (Ex. P-X-3).

[39] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].

[40] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 [2d Cir., 2014]; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"].

[41] U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 192 Fed. App'x 62, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].

[42] U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].

[43] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].

[44] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007].

[45] Greenland Sch. Dist., 358 F.3d at 160.

[46] C.L., 744 F.3d at 840.

[47] C.F.R. § 300.106[a][2].

[48] C.F.R. § 300.106[b].

[49] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].

[50] See for example E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014] holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE.

[51] See for example D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 [3rd Cir. 2012] holding that "[b]ecause compensatory education is at issue only when tuition reimbursement is not, it is implicated only where parents could not afford to 'front' the costs of a child's education"; and P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 739 [3rd Cir. 2009] holding that "compensatory education is not an available remedy when a student has been unilaterally enrolled in private school".

[52] See Application of a Student with a Disability, Appeal No. 16-050.

[53] See Application of a Student with a Disability, Appeal No. 20-151.

[54] See for example E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014] holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE.

[55] See C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 [3d Cir. Sept. 27, 2010].

[56] See Application of the Bd. of Ed. of the S.C.S.D, Appeal No. 21-065.

[57] I note that the author of the Neuropsychological Evaluation was only recommending at that time 1:1 instruction, in a non-public school, utilizing ABA techniques for instruction for 25 hours per week (Ex. P-O-20), which ABA was being recommended for social skills and behavioral control (Ex. P-O-3).

[58] Again, I note that the author of the Neuropsychological Evaluation was only recommending at that time bi-monthly PCAT as essential, so that interventions would be successful across different settings and promote generalization of skills (Ex. P-O-22).