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CASE NUMBER: 575264 - NYC: 228049
FINDINGS OF FACT AND DECISION
Case Number: 228049
Student’s Name: REDACTED (“Student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: “Parent(s)”
Request Date/Date Complaint Filed: July 5, 2022
Date(s) of Hearing: 9.14.22,9.19.22,11.4.22,12.13.22
Actual Record Closed Date: January 10, 2023
Date of Decision: January 11, 2023
Date of Distribution if Different than Decision Date:
Hearing Officer: Harriet Gewirtz
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about July 5, 2022
On July 5, 2022, the parent (the “Parent”) of REDACTED (the “Student”) filed a due process complaint under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”). I was appointed as impartial hearing officer (“IHO”) on July 14, 2022.
Lists of the documentary evidence submitted are appended to this Order.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
REDACTED is a REDACTED -year-old student who is classified as a student with a disability. The Student’s classification and eligibility for special education supports and services are not in dispute. The Parents allege a denial of FAPE for the 2021-2022 and 2022- 2023 school years. The Parents unilaterally placed the Student at the REDACTED for the 2022- 2023 school year. The Parents now seek tuition reimbursement for the cost of the REDACTED 2022-2023 school year placement. The Parents seek funding for ABA services, inter alia. The Parents maintain that the DOE failed to offer the Student an appropriate program and placement for the 2021-2022 and 2022-2023 school years and thus failed to offer him a free appropriate public education (“FAPE”). The Parents further maintain that the REDACTED placement is appropriate and that equitable factors support the tuition reimbursement claim.
The DOE conceded on the issue of FAPE and presented evidence, submitted a closing brief, but did not present witnesses.
The Parent submitted a documentary evidence package, and the testimony of four witnesses, and a closing statement.
FINDINGS OF FACT AND DECISION
The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).
Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether a the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:
In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).
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 reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement ( NYS Educ. Law § 4404(1)(c)).
A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (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, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G.,2007 WL 2982269 [Oct. 15, 2007].
The Parent raised multiple challenges to the committee on special education (“CSE”) program and placement recommendations. The DOE did not present any testimony or evidence to support a finding that it offered the Student a FAPE for the 2021 -2022, 2022-2023 school years Tr 24. 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.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). There was absolutely no explanation, let alone a cogent and responsive explanation, for the CSE’s program and placement recommendations.
The DOE has not, therefore, met its burden of proof in this proceeding.
The DOE has not, therefore, met its burden of proof in this proceeding. The Parent has therefore met the first of the three Burlington/Carter criteria for tuition reimbursement.
The Parent has the burden of proving that the unilateral placement was appropriate. In order to meet this burden, the Parent 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” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. 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" Gagliardo, 489 F.3d at 115):
No one factor is necessarily dispositive in determining whether Parent' 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, Parent 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).
The DOE did challenge the Parent’s contention that the REDACTED placement was an appropriate program and placement for the Student. The Parent presented extensive affidavit testimony and submitted substantial documentary evidence in support of their position that the REDACTED placement was appropriate (Parent Exs. F,H,I,J,K,N-Q). The testimony of the Parent’s witnesses (Ex V,X,Z, DD) (which was uncontroverted) and the Parent’s documentary evidence established that the REDACTED placement was appropriate and has been providing the Student with educational instruction that is specifically designed to meet the Student’s unique special education needs, supported by such services that are necessary to permit her to benefit from instruction.
The Parent have therefore met the second of the three Burlington/Carter criteria for tuition reimbursement.
The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. The DOE did not raise any issues that would limit or preclude tuition reimbursement. In fact, it did not oppose tuition reimbursement on equitable grounds. Moreover, the testimony and documentary evidence make clear that the Parent cooperated with the CSE and provided the DOE with appropriate and timely written notice. (Ex C)
Based on the foregoing, I find that equitable factors support the Parent’s claim for tuition reimbursement/direct funding for the 2022-2023 school year. The Parent has therefore met the third of the three Burlington/Carter criteria for tuition reimbursement. Having met all three of the Burlington/Carter criteria, the Parent is entitled to reimbursement/direct funding for the cost of the Student’s 2022-2023 REDACTED placement.
The cost of the 2022-2023 REDACTED year placement was $147.175.00.
The DOE did not oppose the request for direct tuition funding. The unopposed request that the DOE be directed to fund the cost of the Student’s 2022-2023 REDACTED enrollment by issuing payment directly to the school is therefore granted.
ABA SERVICES
In the instant case, the parent has failed to meet their burden of demonstrating that at-home ABA services are required for the Student to receive an educational benefit.
REDACTED ABA specialist, recommended at-home ABA for the purpose of generalization. Parent’s Ex. X (“[I]f ABA is not utilized in the home setting in addition to the school setting, it is likely that the skills taught to the Student at school will not be generalized, maintained, and reinforced.”). Further, Parent’s own evidence show the at-home ABA is for generalization. See Parent’s Ex. W (“ABA providers goals is to teach the skills taught at school and to generalize and maintain them at home and eventually in the community.”); see also, Parent’s Ex.
(discussing BCBA supervision, “[t]his supervision allows REDACTED to generalize and maintain the skills he has learned.”). The DOE is not required to design an educational program to address a student’s difficulties in generalizing skills to other environments outside of the school environment, particularly where the student is making progress in the classroom.
The SRO noted in 18-049 that:
the student's home-based instruction were supplemental services that appeared to be for the purpose of generalizing skills to other environments, and there is no evidence in the hearing record that the services were necessary for the student's educational progress. Accordingly, the district should not be required to reimburse the parents for these services, as they would not have been required to provide them in the first instance.
Courts have generally disfavored services intended to generalize skills outside of the school environment. Several courts have held that the IDEA does not require school districts as a matter of course to design educational programs to address a student's difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom (see, e.g., F.L. v.
New York City Dep't of Educ., 2016 WL 3211969, at *11 [S.D.N.Y. June 8, 2016]; L.K. v. New
York City Dep't of Educ., 2016 WL 899321, at *8-*10 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100 [2d Cir. Jan. 19, 2017]; P.S. v. New York City Dep't of Educ., 2014 WL 3673603, at *13-*14 [S.D.N.Y. Jul. 24, 2014]; M.L. v. New York City Dep't of Educ., 2014 WL 1301957, at *11 [S.D.N.Y. Mar. 31, 2014]; see also Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 [1st Cir.
2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v.
Hendry County Sch. Bd., 941 F.2d 1563, 1573 [11th Cir 1991]).
The Student has been receiving an educational benefit and has been making expected progress at REDACTED. See Parent’s Ex. Z (“The supports provided to The Student by REDACTED have allowed him to access the curriculum in a substantive and beneficial manner.”); see also, Parent’s Ex. DD (“I believe that REDACTED is reasonably calculated to confer an educational benefit to The Student “). Both REDACTED and REDACTED testified via affidavit that The Student has made progress over the 2022-2023 school year. Parent’s Ex. Z, DD.
There is no basis to award the double relief of tuition at REDACTED and at-home ABA. To award both tuition reimbursement and at-home ABA would be entirely superfluous – it is either inappropriate given that it is being received by the unilateral placement, or the need for it renders the unilateral placement inappropriate.
The Student’s teachers testified that The Student. is making progress at REDACTED. Parent’s Ex. Z, DD. REDACTED utilizes ABA in the classroom and has a BCBA that works with the class. Tr. 51,
58. ABA services are then either inappropriate and unnecessary or the need for these at home services are a clear indication that the unilateral placement is inappropriate and not meeting the student’s needs.
The Parent’s request for at-home ABA and BCBA supervision is be denied.
ORDER
IT IS HEREBY ORDERED that the New York City Department of Education is directed to directly fund/reimburse, the cost of the Student’s 2022-2023 school year placement at the REDACTED in a total amount not to exceed $147.175.00 to be paid within 45 days of submission of proof of payment and invoices to the implementation office.
Dated: January 11, 2023 ____________________
Harriet Gewirtz
Impartial Hearing Officer
For the Student:
REDACTED, ESQ., Parent Representative
REDACTED, Parent
REDACTED, Special Education Teacher, REDACTED REDACTED, Special Education Teacher, REDACTED REDACTED, Interpreter
For the Department of Education:
REDACTED, ESQ., Attorney
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
Exhibit
Document
Date
Pages
Exhibit Number
Number Exhibit Date of Pages
P-A Parent’s Hearing Request 07/05/22 6
INDIVIDUALIZED EDUCATION PROGRAM
P-B Individualized Education Program 06/06/22 25
CORRESPONDENCE
P-C Prior Written Notice (Notice of Recommendation) 06/15/22 4
P-D Notice Letter to Department 06/16/22 7
P-E Second Notice Letter to Department 06/16/22 6
EVALUATIONS AND PROGRESS REPORTS
P-F Independent Functional Behavior Assessment/ 07/06/21 16
Behavior Intervention Plan
P-G Independent Applied Behavior Analysis (ABA) 07/07/22 36
Skills Assessment
P-H Independent Occupational Therapy Evaluation 08/02/21 13
P-I Independent Assistive Technology Evaluation 10/15/21 9
P-J Independent Neuropsychological Evaluation 10/31/21 20
P-K Independent Speech and Language Evaluation 11/11/21 18
REDACTED (REDACTED) DOCUMENTATION
P-L REDACTED Enrollment Contract 06/10/22 16
P-M REDACTED Tuition Affidavit 07/19/22 1
P-N Student’s Summer Schedule Summer 2022 1
P-O REDACTED Program Description Undated 9
P-P REDACTED Learning Plan 2022-2023 Undated 1
P-Q REDACTED Quarterly Report of Progress 08/04/22 14
SUPPLEMENTAL DISCLOSURE
P-R REDACTED Resume Undated 4
P-S REDACTED Resume Undated 3
P-T Individualized Education Program 03/04/20 21
P-U Individualized Education Program 02/08/22 27
P-V REDACTED Affidavit 07/22/22 3
P-W REDACTED ABA Home Based Progress Report, 09/15/22 30
ABA Parent Counseling and Training Progress
Report, and ABA Home Supervision Progress
Report
P-X REDACTED Affidavit 10/25/22 7
P-Y Email to the DOE Attorney Regarding the Parent’s 10/26/22 20
Calculations of the Related Services not Provided to the Student During the 2022-2023 School Year
Pursuant to the DOE’s Related Services Encounter Attendance Records, with the Related Services
Encounter Attendance Records Attached
P-Z REDACTED Affidavit 10/27/22 8
SECOND SUPPLEMENTAL DISCLOSURE
P-AA Rachael Wynne Resume Undated 2
P-BB Parent Email to the Central Based Support Team 07/29/22 1
Case Manager
P-CC REDACTED Areas of Instructional and Therapeutic Focus 10/28/22 9 for the 2022-2023 School Year
P-DD REDACTED Affidavit 12/01/22 5
DOE EXHIBITS
Exhibit
Document
Date
Pages
Individualized Education Program
2/8/2022
24
Prior Written Notice
3/7/2022
7
Individualized Education Program
6/6/2022
27
Prior Written Notice
6/8/2022
7
Special Education Recovery Services
11/16/2021
3
Classroom Observation
5/26/2022
2
Social History Update
5/23/2022
2
Withdrawn
Deferral to Central
7/28/2022
5
IHO’S EXHIBITS
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.